United States District Court, E.D. Virginia, Norfolk Division
RICHARD L. HARRELL, Plaintiff,
ANDREW SAUL, Commissioner, Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
RAYMOND A. JACKSON, UNITED STATES DISTRICT JUDGE
matter is currently before the Court on Richard L.
Harrell's ("Plaintiff) objections to the Magistrate
Judge's Report and Recommendation ("R&R").
For the reasons set forth below, the R&R is
ACCEPTED and ADOPTED.
Plaintiffs Motion for Summary Judgment is
DENIED, and Commissioner Andrew Saul's
("Commissioner") Motion for Summary Judgment is
FACTUAL AND PROCEDURAL HISTORY
Magistrate Judge's R&R thoroughly details the factual
and procedural history of the case. See ECF No. 22
at 2-9. Since at least 2009, Plaintiff has experienced issues
related to bipolar disorder, post-traumatic stress disorder
("PTSD"), and attention deficit hyperactive
disorder ("ADHD"). Id. at 3. Plaintiff
reportedly suffered from suicidal thoughts and attempted it
at least twice. Id. at 3-4. On October 10, 2012,
Plaintiff was seen at the Norfolk Crisis Stabilization
Program and reported the same problems, as well as a history
of high blood pressure ("HBP"). Id. at 4.
Throughout 2015, Plaintiff received psychotherapy. Id. at
6. He went through a mental status exam and appeared
overall normal, but did also manifest some impaired
concentration, memory, and difficulty sleeping. Id.
On August 24, 2015, a state agency psychologist found that
Plaintiff could perform "simple tasks despite difficulty
concentrating due to racing thoughts and periods of
dissociation and being easily distracted." Id.
at 7. On December 18, 2015, another state agency psychologist
found that "Plaintiff could perform simple tasks with
limited contact with coworkers and the public when
considering [his] difficulty concentrating and racing
thoughts." Id. Later, in 2016, Plaintiff
presented in much better condition. Id.
January 14, 2015, Plaintiff filed an application for
Disability Insurance Benefits ("DIB") and
Supplemental Security Income ("SSI") under the
Social Security Act of 1935, Pub. L. No. 74-271, 49 Stat. 620
("SSA"). Id. at 2. Plaintiff filed his
application due to his PTSD, ADHD, bipolar disorder,
hyperthyroidism, and HBP. Id. On September 2, 2015,
Plaintiffs application was denied. Id. On December
22, 2015, it was denied again upon reconsideration.
Id. Plaintiff requested a hearing before an
administrative law judge ("ALJ"), and on May 18,
2017, an ALJ conducted such a hearing. Id. The ALJ
denied Plaintiffs application on August 10, 2017.
Id. Plaintiff requested the Appeals Council
reconsider the decision, but that was denied on April 27,
2018. Id. At this point, the ALJ's decision
became the final decision of the Commissioner. Id.
16, 2018, Plaintiff filed his first complaint for judicial
review of the Commissioner's decision. ECF No. 3. On
August 15, 2018, Plaintiff filed his First Amended Complaint.
ECF No. 5. On October 11, 2018, the Commissioner filed her
answer. ECF No. 11. On October 12, 2018, the case was
referred to the Magistrate Judge. ECF No. 12. On October 15,
2018, the Magistrate Judge issued an order directing
Plaintiff to file a motion for summary judgment and other
responsive pleadings among the parties. ECF No. 13. On
November 16, 2018, Plaintiff filed his motion for summary
judgment. ECF No. 16. On December 14, 2018, the Commissioner
filed her cross-motion for summary judgment. ECF No. 18. On
December 28, 2018, Plaintiff filed a rebuttal brief. ECF No.
20. On April 2, 2019, he also filed a notice of supplemental
authority. ECF No. 21. On May 24, 2019, the Magistrate Judge
issued his R&R denying Plaintiffs motion and granting the
Commissioner's motion. ECF No. 22. On June 7, 2019,
Plaintiff filed his objections to the R&R. ECF No. 23. On
June 21, 2019, the Commissioner filed her response to those
objections. ECF No. 24.
STANDARD OF REVIEW
Rule 72(b)(3) of the Federal Rules of Civil Procedure, a
district judge is required to "determine de
novo any part of the magistrate judge's disposition
that has been properly objected to." The de
novo requirement means that a district court judge must
give "fresh consideration" to the objected-to
portions of the Magistrate Judge's report and
recommendation. See Wilmer v. Cook, 774 F.2d 68, 73
(4th Cir. 1985); United States v. Raddatz, 447 U.S.
667, 675 (1980). "The district judge may accept, reject,
or modify the recommended disposition; receive further
evidence; or recommit the matter to the magistrate judge with
instructions." Fed.R.Civ.P. 72(b)(3).
district court must review the relevant findings by the
Magistrate Judge de novo when a party objects to the
Magistrate Judge's report and recommendation. 28 U.S.C.
§ 636(b)(1). Objections made to the report must be made
"with sufficient specificity so as reasonably to alert
the district court of the true ground of the objection."
United States v. Midgette, 478 F.3d 616, 622 (4th
Cir. 2007). Objections must also respond to specific errors
in the report and recommendation because general or
conclusory objections are not proper. See Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). General or
conclusory objections are the equivalent of a waiver.
Id. Moreover, "a mere restatement of the
arguments raised in the summary judgment filings does not
constitute an 'objection' for the purposes of
district court review." Nichols v. Colvin, 100
F.Supp.3d 487, 497 (E.D. Va. 2015) (citing Abou-Hussein
v. Mabus, No. 2:09-1998, 2010 WL 4340935, at *1 (D.S.C.
Oct. 28, 2010)).
Objection to Magistrate Judge's Finding of Waiver of
Appointments Clause Argument
first objects to the Magistrate Judge's finding that he
had waived his Appointments Clause challenge. ECF No. 23 at
1-7. Plaintiff argues that the Magistrate Judge erred in
finding that he waived this argument because he failed to
raise this argument before the ALJ. Id. These
arguments largely parallel the same arguments Plaintiff made
in his motion for summary judgment. See ECF No. 17
Court agrees with the Magistrate Judge's finding.
Generally, non-jurisdictional constitutional challenges, such
as the one in this case, are waived if they are not raised
during the administrative proceeding. Jones Bros., Inc.
v. Sec 'y of Labor, 898 F.3d 669, 676 (6th Cir.
relies on Sims v. Apfel,530 U.S. 103 (2000), which
held that a plaintiff need not raise an issue before the
Appeals Council to preserve it during judicial review.
Id. at 110. However, the Court in Sims
specifically limited this holding to the Appeals Council and
did not address the exhaustion question at the ALJ stage.
Id. at 107. This stems from the fact that courts
also have their own issue-exhaustion requirement and
"[t]he basis for a judicially imposed issue-exhaustion
requirement is an analogy to the rule that appellate courts
will not consider arguments before trial courts."
Id. at 108-09. This practice is largely based on the
idea that "parties should have an opportunity to offer
evidence on the general issues involved in the less formal
proceedings before administrative agencies entrusted with the
responsibility of fact finding." Hormel v.
Helvering,312 U.S. 552, 556 (1941). Therefore, while a
plaintiff may not need to raise an issue before the Appeals
Council, it would make sense for ...