United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon United States District Judge
Matthew D. brought this action for review of the final
decision made by defendant, Commissioner of the Social
Security Administration, denying Matthew's claim for
social security income (SSI) under the Social Security Act.
Both parties moved for summary judgment, and pursuant to 28
U.S.C. § 636(b)(1)(B), the court referred the motions to
U.S. Magistrate Judge Robert S. Ballou for a report and
recommendation (R&R). On May 24, 2019, the magistrate
judge issued his R&R, finding that substantial evidence
supported the Commissioner's decision. (Dkt. No. 20.)
Plaintiff filed a timely objection on June 13, 2019.
(Pl.'s Obj., Dkt. No. 21.)
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, deny
Matthew's motion for summary judgment, and affirm the
court adopts the recitation of facts and procedural
background as set forth in the report. (R&R 3-12.)
Standard of Review
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). 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.
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
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 “the purpose of magistrate review is to
conserve judicial resources, ” 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.
Comm'r of Soc. Sec., 100 F.Supp.3d 487, 497 (E.D.
brief to the magistrate judge in support of his motion for
summary judgment, Matthew argued that the ALJ erred in
evaluating his medically determinable impairments and the
opinion evidence. Matthew also argued that the ALJ's
assessment of his mental impairments and subjective
allegations is not supported by substantial evidence.
(See Pl.'s Mem. in Supp. of Mot. for Summ. J.
10-27, Dkt. No. 13.) In many if not most respects,
Matthew's objections are a restatement of his summary
judgment arguments. The court agrees with the
Commissioner's observation that “Plaintiff's
objection is that Magistrate Judge Ballou erred by not
accepting the arguments in her brief.”
(Comm'r's Resp. to Pl.'s Obj. 1, Dkt. No. 22.) It
is not necessary for the court to address the exact same
arguments raised before the magistrate judge. The court will,
however, address the following objection.
argues that the ALJ erred by rejecting the opinion of
occupational therapist Elizabeth McCoy, who opined that
Matthew was not capable of sedentary work. The magistrate
judge credited the ALJ's explanation that Ms. McCoy is
not an acceptable medical source who can provide opinions,
and her one-time evaluation was not consistent with the
record evidence and Matthew's reported activities. (R.
20; R&R 15.) Matthew argued that the ALJ should have
given controlling weight to the opinions of his treating
physician, Dr. Clare Weidman, because Dr. Weidman's
opinion is consistent with Ms. McCoy's occupational
therapy evaluation. The magistrate judge considered this
argument a “nonstarter” because
“substantial evidence supports the ALJ's
determination that Ms. McCoy's opinion also deserves
little weight. The ALJ correctly noted that an occupational
therapist is not an acceptable medical source who can provide
medical opinions, and so he considered her evidence as that
from an ‘other source.'” (R&R 26 (citing
R. 20; 20 C.F.R. § 404.1513).)
to Matthew, while an unacceptable medical source cannot
render opinions as to the severity of an impairment, an
unacceptable medical source can render opinions regarding RFC
limitations. Thus, Matthew claims that the R&R erred in
concluding Ms. McCoy cannot provide opinions on functional
limitations. See Hitchens v. Colvin, No.
7:13-CV-40-FL, 2014 WL 6977765, at *18 (E.D. N.C. Dec. 9,
2014) (“[O]pinions from other health care providers who
are not acceptable medical sources provide valuable evidence,
which the [ALJ] must consider, on such issues as impairment
severity and functional limitations.”) (citing 20
C.F.R. § 404.1513(d); SSR 06-03, 2006 WL 2329939).
Contrary to Matthew's objection, the magistrate judge did
not find that a non-acceptable medical source such as Ms.
McCoy cannot render an opinion on functional limitations.
Instead, the magistrate judge credited the ALJ's
explanation that Ms. McCoy's “conclusion that
Matthew could not perform even sedentary work was
inconsistent with the medical evidence showing consistent
findings of mild abnormalities with tenderness, range of
motion, and sensory functioning.” (R&R 26 (citing
R. 20).) Additionally, “her opinion is inconsistent
with Matthew's own reported ...