United States District Court, E.D. Virginia, Newport News Division
SHERRY LYNN DELINO O/B/O B.J. A MINOR CHILD, 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 Sherry Lynn
Delino'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. 20
at 2-7. Claimant B.J. was born on July 14, 2008 and has
experienced issues related to his alleged disability since at
least January 1, 2011. ECF No. 20 at 2, In July 2014,
Claimant was diagnosed with a borderline intellectual
disability, Attention Deficit Hyperactivity Disorder
("ADHD"), and communication disorder. Id.
at 3-4. A State Agency psychiatrist also concluded Claimant
had severe language and speech impairment and suffered from
ADHD. Id. at 6. In August 2014, Claimant's
pediatrician noted that Claimant displayed mild symptoms of
hyperactivity and restlessness with impulsive behaviors, but
had no behavioral problems in school and was doing well
academically. Though Claimant was required to repeat
kindergarten in the 2014-2015 school year due to learning
delays and speech deficits, Claimant properly interacted with
his peers, followed rules, and improved his academic
performance. Id. at 5. In June 2015, Claimant's
speech pathologist reported no behavioral issues despite
minor issues with Claimant's vocabulary. Id. at
4. Claimant was also evaluated by a State Agency psychiatrist
in June 2015, who found Claimant suffered from ADHD, Speech
and Language Impairment, and Borderline Intellectual
Functioning ("BIF"). Id. at 6.
Claimant's academic performance and behavior improved
through the second grade with an Individualized Learning Plan
("ILP") and speech therapy. Id. at 5-6. By
the 2016-2017 school year, Claimant's school reported
that he was generally a happy student and a hard worker.
Id. at 5.
April 4, 2014, 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 is
Claimant's grandmother and filed the application on his
behalf. Id. at 3. Plaintiffs claim is based on
Claimant's ADHD, Autism Spectrum Disorder, Encopresis,
and mood disorder. ECF No. 4 at 5. On July 30, 2014,
Plaintiffs application was denied. ECF No. 20 at 2. On June
17, 2015, it was denied again upon reconsideration.
Id. Plaintiff requested a hearing before an
administrative law judge ("ALJ"), and on March 1,
2017, an ALJ conducted such a hearing. Id. The ALJ
denied Plaintiffs application on August 24, 2017.
Id. Plaintiff requested the Appeals Council
reconsider the decision, but that was denied on July 19,
2018. Id. At this point, the ALJ's decision
became the final decision of the Commissioner. Id.
September 11, 2018, Plaintiff filed her first complaint for
judicial review of the Commissioner's decision in a
pro se action. ECF No. 4. On November 16, 2018, the
Commissioner filed an answer. ECF No. 8. On November 19,
2018, the case was referred to the Magistrate Judge. ECF No.
10. On November 27, 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. 11. On December 14, 2018, Plaintiff filed her motion
for summary judgment. ECF No. 12. On January 11, 2019, the
Commissioner filed her cross-motion for summary judgment. ECF
No. 14. On January 24, 2019, Plaintiff filed a rebuttal. ECF
No. 18. On June 18, 2019, the Magistrate Judge issued his
R&R denying Plaintiffs motion and granting the
Commissioner's motion. ECF No. 20. On July 1, 2019,
Plaintiff filed her objections to the R&R. ECF No. 21. On
July 15, 2019, the Commissioner filed her response to those
objections. ECF No. 22.
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, 114 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 properly
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.
objects to the Magistrate Judge's conclusions with a
filing that is identical to her reply brief in support of
summary judgment. Plaintiffs filing is supplemented by a
letter written after the Magistrate Judge's R&R was
issued, which describes the Claimant's behavior and
condition after the ALJ's decision was rendered. ECF No.
21 at 4.
Court affirms the Magistrate Judge's findings. While an
objecting party may re-raise arguments presented to the
magistrate, a mere duplication of 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)). Here, Plaintiffs
objection to the Magistrate Judge's R&R fails because
it is identical to the Plaintiffs summary judgment motion.
Therefore, the Court concludes Plaintiffs filing lacks the
specificity necessary to alert the Court of a proper
objection to the Magistrate Judge's R&R.
the Court cannot consider the letter attached to Plaintiffs
filing. A district court reviewing an ALJ's decision
cannot consider evidence outside the record in front of the
ALJ. Smith v. Chafer, 99 F.3d 635, 638 n.5 (4th Cir.
1996). A district court can order evidence presented to the
Commissioner on remand only if the evidence is relevant to
the determination of disability at the time the application
was filed. Gregory v. Berryhill, No. 17-629, 2018 WL
2224056, at *2 (E.D. Va. May 14, 2018). The letter attached
to Plaintiffs filing describes care administered to the
Claimant beginning in August 2018, after the ALJ's
decision was issued. EFC No. 21 at 4. Further, the letter was
written on June 28, 2019, 10 days after the Magistrate Judge
issued his R&R. Therefore, the letter cannot be
considered as evidence relevant to an objection to the
Magistrate Judge's R&R and may not be considered by
this Court in reviewing the initial determination of
on a de novo review of the filings and the R&R,
this Court determines that the Magistrate Judge's
recommendations and findings are proper. Wilmer, 774
F.2d at 73. The R&R supports all factual findings and the
Court finds Plaintiffs objections are without merit. The
Court does not find any legal errors in the Magistrate
Judge's findings. Accordingly, the Court concludes that
Plaintiff raises no grounds which ...