United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief United States District Judge
social security disability appeal was referred to the
Honorable Robert S. Ballou, United States Magistrate Judge,
pursuant to 28 U.S.C. § 636(b)(1)(B), for proposed
findings of fact and a recommended disposition. The
magistrate judge filed a report and recommendation (R&R)
on August 27, 2019, recommending that the plaintiffs motion
for summary judgment be denied, the Commissioner's motion
for summary judgment be granted, and the Commissioner's
final decision be affirmed. Plaintiff Patricia T.
("Patricia") has filed objections to the report and
this matter is now ripe for the court's consideration.
Standard of Review of Magistrate Judge Decision
objection requirement set forth in Rule 72(b) of the Federal
Rules of Civil Procedure is designed to "train[ ] the
attention of both the district court and the court of appeals
upon only those issues that remain in dispute after the
magistrate judge has made findings and recommendations."
United States v. Midgette. 478 F.3d 616, 621 (4th
Cir. 2007) (citing Thomas v. Am. 474 U.S. 140,
147-48 (1985)). An objecting party must do so "with
sufficient specificity so as reasonably to alert the district
court of the true ground for the objection."
Id. at 622.
To conclude otherwise would defeat the purpose of requiring
objections. We would be permitting a party to appeal any
issue that was before the magistrate judge, regardless of the
nature and scope of objections made to the magistrate
judge's report. Either the district court would then have
to review every issue in the magistrate judge's proposed
findings and recommendations or courts of appeals would be
required to review issues that the district court never
considered. In either case, judicial resources would be
wasted and the district court's effectiveness based on
help from magistrate judges would be undermined.
district court must determine de novo any portion of
the magistrate judge's report and recommendation to which
a proper objection has been made. "The district court
may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the
magistrate judge with instructions." Fed.R.Civ.P.
72(b)(3); accord 28 U.S.C. § 636(b)(1).
however, a party '"makes general or conclusory
objections that do not direct the court to a specific error
in the magistrate judge's proposed findings and
recommendations, '" de novo review is not
required. Diprospero v. Colvin. No.
5:13-cv-00088-FDW-DSC, 2014 WL 1669806, at *1 (W.D. N.C.
2014) (quoting Howard Yellow Cabs. Inc. v. United
States. 987 F.Supp. 469, 474 (W.D. N.C. 1997) (quoting
Orpiano v. Johnson. 687 F.2d 44, 47 (4th Cir.
1982))). "The court will not consider those objections
by the plaintiff that are merely conclusory or attempt to
object to the entirety of the Report, without focusing the
court's attention on specific errors therein."
Camper v. Comm'r of Soc. Sec. No. 4:08cv69, 2009
WL 9044111, at *2 (E.D. Va. 2009), affd, 373 F.App'x 346
(4th Cir.); see Midgette. 478 F.3d at 621
("Section 636(b)(1) does not countenance a form of
generalized objection to cover all issues addressed by the
magistrate judge; it contemplates that a party's
objection to a magistrate judge's report be specific and
particularized, as the statute directs the district court to
review only 'those portions of the report or
specified proposed findings or recommendations
to which objection is
made."7) Such general objections
"have the same effect as a failure to object, or as a
waiver of such objection." Moon v. BWX
Technologies. 742 F.Supp.2d 827, 829 (W.D. Va. 2010),
affd, 498 F.App'x 268 (4th Cir. 2012). See also
Arn. 474 U.S. at 154 ("[T]he statute does not
require the judge to review an issue de novo if no
objections are filed... .").
arguments raised before the magistrate judge does not comply
with the requirement set forth in the Federal Rules of Civil
Procedure to file specific objections. Indeed, objections
that simply reiterate arguments raised before the magistrate
judge are considered to be general objections to the entirety
of the report and recommendation. See Veney v.
Astrue. 539 F.Supp.2d 841, 844-45 (W.D. Va. 2008). As
the court noted in Veney:
Allowing a litigant to obtain de novo review of her entire
case by merely reformatting an earlier brief as an objection
"mak[es] the initial reference to the magistrate
useless. The functions of the district court are effectively
duplicated as both the magistrate and the district court
perform identical tasks. This duplication of time and effort
wastes judicial resources rather than saving them, and runs
contrary to the purposes of the Magistrates Act."
Howard [v. Sec'y of Health & Human Servs.].
932 F.2d [505, ] ¶ 509 [(6th Cir. 1991)].
Veney, 539 F.Supp.2d at 846. A plaintiff who
reiterates her previously-raised arguments will not be given
"the second bite at the apple she seeks;" instead,
her re-filed brief will be treated as a general objection,
which has the same effect as would a failure to object.
Judicial Review of Social Security Determinations
not the province of a federal court to make administrative
disability decisions. Rather, judicial review of disability
cases is limited to determining whether substantial evidence
supports the Commissioner's conclusion that the plaintiff
failed to meet his burden of proving disability. See Hays
v. Sullivan. 907 F.2d 1453, 1456 (4th Cir. 1990); see
also Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.
1966). In so doing, the court may neither undertake a de
novo review of the Commissioner's decision nor
re-weigh the evidence of record. Hunter v. Sullivan.
993 F.2d 31, 34 (4th Cir. 1992). Evidence is substantial
when, considering the record as a whole, it might be deemed
adequate to support a conclusion by a reasonable mind,
Richardson v. Perales. 402 U.S. 389, 401 (1971), or
when it would be sufficient to refuse a directed verdict in a
jury trial. Smith v. Chater. 99 F.3d 635, 638 (4th
evidence is not a "large or considerable amount of
evidence, " Pierce v. Underwood. 487 U.S. 552,
565 (1988), but is more than a mere scintilla and somewhat
less than a preponderance. Perales, 402 U.S. at 401;
Laws, 368 F.2d at 642. "It means-and means
only-'such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."'
Biestek v. Berryhill. 139 S.Ct. 1148, 1154 (2019)
(quoting Consolidated Edison Co. v. NLRB. 305 U.S.
197, 229 (1938)). If the Commissioner's decision is
supported by substantial evidence, it must be affirmed. 42
U.S.C. § 405(g); Perales. 402 U.S. at 401.
objections to the R&R, Patricia asserts that the
magistrate judge erred when he made the following findings:
(1) that the Appeals Council was correct in refusing to
consider additional evidence and (2) that the administrative
law judge ("ALJ") properly evaluated the opinion of
Patricia's treating physician.
Additional Evidence at Appeals Council
in this case issued a determination on May 5, 2017 in which
she found Patricia not disabled. R. 39-50. Patricia sought
review by the Appeals Council. On November 7, 2017 the
Appeals Council agreed to review the case after finding that
die ALJ decision was not supported by substantial evidence
because the ALJ did not apply the "special
technique" to evaluate the severity of Patricia's
anxiety. R. 271. The Appeals Council reviewed the
ALJ decision, applied the "special technique, " and
notified Patricia that it intended to conclude mat she had no
functional limitations related to her anxiety. R. 270-273.
The Appeals Council further intended to conclude that
Patricia had not been under a disability since her onset date
of June 4, 2012 through May 5, 2017, the date of the
ALJ's decision. R. 273. The Appeals Council advised
Patricia that she could submit a statement about the facts
and submit more evidence within 30 days. The additional
evidence would be considered if it "[met] the rules we
applied above." R. 270, 273. The rules referred to by
the Appeals Council are the same as those set out in 20
C.F.R. §§ 404.970(a) and 416.1470(a) (2017).
December 22, 2017 Patricia sent a memorandum to the Appeals
Council arguing that the ALJ erred when she accepted
vocational evidence from the vocational expert without
requiring the expert to provide additional evidence from the
Dictionary of Occupational Titles. She asked that the
ALJ's decision be vacated and that her case be remanded
for a new hearing. R. 408.
February 22, 2018 the Appeals Council adopted the findings of
the ALJ and issued a decision that Patricia was not disabled.
The Appeals Council noted that Patricia had submitted
additional evidence from Blue Ridge Pain Management
Associates ("Blue Ridge"). Part of the records were
22 pages dated from February 18, 2016 through January 26,
2017. The Appeals Council found that the additional evidence
did not show a reasonable probability that it would change
the outcome of the decision and thus it did not consider and
exhibit the evidence. The second part of the records was 18
pages dated May 11, 2017 ...