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Herschel G. v. Saul

United States District Court, W.D. Virginia, Roanoke Division

September 12, 2019

HERSCHEL G., [1]Plaintiff,
ANDREW SAUL, Commissioner, Social Security Administration,[2] Defendant.


          Elizabeth K. Dillon United States District Judge

         Plaintiff Herschel G. brought this action for review of the final decision made by defendant, Commissioner of the Social Security Administration (Commissioner), finding him not disabled and therefore denying his claim for disability insurance benefits (DIB) under the Social Security Act. The defendant moved for summary judgment, and pursuant to 28 U.S.C. § 636(b)(1)(B), the court referred the motion to U.S. Magistrate Judge Robert S. Ballou for a report and recommendation (R&R). On August 26, 2019, the magistrate judge issued his R&R, finding that substantial evidence supported the Commissioner's decision. (R&R, Dkt. No. 15.) Herschel filed a timely objection on September 9, 2019. (Pl. Obj., Dkt. No. 16.)

         After de novo review of the pertinent portions of the record, the report, and the filings by the parties, in conjunction with the applicable law, the court agrees with the magistrate judge's recommendation. Accordingly, the court will grant the Commissioner's motion for summary judgment and affirm the Commissioner's decision.

         I. BACKGROUND

         The court adopts the recitation of facts and procedural background as set forth in the report. (R&R 2-6.)


         A. Standard of Review

         This court's review of the administrative law judge's (ALJ) underlying decision is limited. Specifically, “[a] district court's primary function in reviewing an administrative finding of no disability is to determine whether the ALJ's decision was supported by substantial evidence.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence does not require a “large or considerable amount of evidence, ” Pierce v. Underwood, 487 U.S. 552, 564- 65 (1988); rather, it requires “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). This is “more than a mere scintilla of evidence [and] somewhat less than a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).

         Where, as here, a matter has been referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1), this court reviews de novo the portions of the report to which a timely objection has been made. Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”); United States v. Raddatz, 447 U.S. 667, 673-74 (1980) (finding that de novo review of the magistrate's report and recommendation comports with due process requirements).

         For an objection to trigger de novo review, it must be made “with sufficient specificity so as reasonably to alert the district court of the true ground for the objection.” United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007). Further, objections must respond to a specific error in the report and recommendation. See Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). General or conclusory objections, therefore, are not proper; they are in fact considered the equivalent of a waiver. Id. Likewise, an objection that merely repeats the arguments made in the briefs before the magistrate judge is a general objection and is treated as a failure to object. Moon v. BWX Techs, 742 F.Supp.2d 827, 829 (W.D. Va. 2010). As other courts have recognized in the social security context, “[t]he Court may reject perfunctory or rehashed objections to R&Rs that amount to a second opportunity to present the arguments already considered by the Magistrate Judge.” Heffner v. Berryhill, No. 2:16-cv-820, 2017 WL 3887155, at *3 (D.S.C. Sept. 6, 2017) (quoting Felton v. Colvin, No. 2:12-cv-558, 2014 WL 315773, at *7 (E.D. Va. Jan. 28, 2014)). Because “[t]he purpose of magistrate review is to conserve judicial resources, ” a “mere restatement of the arguments raised in the . . . 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).

         B. Herschel G.'s Objections

         In his brief to the magistrate judge, Herschel argued that the ALJ incorrectly weighed the opinion evidence of Dr. Bradley and DNP Ely, failed to explain fully how she applied the vocational expert's (VE) opinion, and failed to develop the record regarding her finding that Herschel's cervical and thoracic disc degeneration was not severe. (Pl. Br. 8-16, Dkt. No. 12.) Herschel's objections to the magistrate judge's recommendation largely focus on the same purported deficiencies and errors in the ALJ's decision, which the magistrate judge has already considered. (See, e.g., Pl. Obj. 1-3 (arguing that the ALJ failed to resolve a conflict between the VE's testimony and the Dictionary of Occupational Titles and failed to determine how many related jobs exist); Pl. Obj. 3-5 (finding error in the ALJ's consideration of Dr. Bradley's opinion as a treating physician); Pl. Obj. 5-6 (noting that the failure to give appropriate weigh to opinion evidence led to an error in the ALJ's conclusion that Herschel's cervical and thoracic disc degeneration are non-severe).) To the extent that Herschel's arguments are condensed versions of his original assertions and were considered by the magistrate judge, the court need not consider them de novo. Nonetheless, several of Herschel's claims deserve additional review and discussion.

         1. The magistrate judge appropriately considered potential conflicts with the VE's testimony and correctly found that the ALJ's decision was adequately supported

         Herschel has past relevant work as a biomedical technician, a job defined by the Dictionary of Occupational Titles (DOT). Although the DOT indicates that a biomedical technician position requires only a “light” exertional level (R. 22, Dkt. No. 9-1), Herschel objects to the ALJ's failure to resolve what he argues is an “apparent conflict” between the ...

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