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Patricia T. v. Saul

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

September 18, 2019

PATRICIA T., Plaintiff
v.
ANDREW SAUL, Commissioner of Social Security, Defendant

          MEMORANDUM OPINION

          Michael F. Urbanski Chief United States District Judge

         This 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.

         I. Standard of Review of Magistrate Judge Decision

         The objection requirement set forth in Rule 72(b) of the Federal Rules of Civil Procedure[1] 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.

Id.

         The 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).

         If, 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... .").

         Rehashing 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. Id.

         II. Judicial Review of Social Security Determinations

         It is 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 Cir. 1996).

         Substantial 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.

         III. Plaintiffs Objections[2]

         In her 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.

         A. Additional Evidence at Appeals Council

         The ALJ 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.[3] 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).

         On 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.

         On 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 ...


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