McPherson v. Astrue

• Decision Date: 02 March 2009
• Docket Number: Civil Action No. 5:07-cv-00367.
• Citation: 605 F.Supp.2d 744
• Parties: Barbarah J. McPHERSON, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

605 F.Supp.2d 744

Barbarah J. McPHERSON, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.

Civil Action No. 5:07-cv-00367.

United States District Court, S.D. West Virginia, Beckley Division.

March 2, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Gregory W. Evers, Franklin W. Kern, Charleston, WV, for Plaintiff.

Kelly R. Curry, U.S. Attorney's Office, Charleston, WV, Michael McGaughran, Social Security Administration Office of General Counsel, Philadelphia, PA, for Defendant.

MEMORANDUM OPINION

THOMAS E. JOHNSTON, District Judge.

This is an action seeking review of the final decision of the Commissioner of Social Security (Commissioner) denying Barbarah J. McPherson's (Plaintiff) application for Disability Insurance Benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. This action was referred to the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this Court of proposed findings of fact and a recommendation for disposition (PF & R) pursuant to 28 U.S.C. § 636(b)(1)(B). On August 29, 2008, the magistrate judge submitted proposed findings of fact and recommended that the Court deny Plaintiff's Motion for Judgment on the Pleadings or in the Alternative for Remand [Docket 15], grant Defendant's Motion for Judgment on the Pleadings [Docket 21], affirm the final decision of the Commissioner, and dismiss this action from the Court's docket. Objections to the PF & R were due by September 15, 2008. Plaintiff filed a Motion for Extension of Time to File Objection [Docket 23] on September 11, 2008. This motion was granted, and the time to file objections was extended to September 25, 2008. On September 25, 2008, a second Motion for Extension of Time to File Objection [Docket 25] was filed. The Court granted this motion and gave Plaintiff until October 5, 2008, to file objections. Timely objections to the PF & R were filed on October 5, 2008. The briefing is complete, and the matter is now ripe for the Court's consideration.

Pursuant to Fed.R.Civ.P. 72(b), the Court must "make a de novo determination upon the record ... of any portion of the magistrate judge's disposition to which specific written objection has been made." However, the Court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). The Court has reviewed de novo those portions of the Magistrate Judge's PF & R to which Plaintiff has properly objected and finds that the objections lack merit. For the reasons set forth below, the Court ADOPTS and incorporates herein Magistrate Judge VanDervort's PF & R. The Court DENIES Plaintiff's Motion for Judgment on the Pleadings [Docket 15], GRANTS Defendant's Motion for Judgment on the Pleadings [Docket 21], AFFIRMS the final decision of the Commissioner and DISMISSES this action from the Court's docket.

I. LEGAL STANDARD

The Court's review in this case is limited to determining whether the factual findings of the Commissioner—as set forth in the decision of his designee, Administrative Law Judge Theodore Burock (ALJ)—are supported by substantial evidence and were reached through application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.1987). The Social Security Act states that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). The Supreme Court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Further, substantial evidence "consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir.1966).

In reviewing the record for substantial evidence, the Court does not re-weigh conflicting evidence, make determinations as to credibility, or substitute its own judgment for that of the Commissioner. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990). Rather, the court must adopt the Commissioner's findings if there is evidence in support of such findings "to justify a refusal to direct a verdict were the case before a jury." Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir.1972). "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)." Walker v. Bowen, 834 F.2d 635, 640 (7th Cir.1987). Thus, even if the Court would have reached a different decision, it must nonetheless defer to the conclusions of the ALJ if such conclusions are bolstered by substantial evidence and were reached through a correct application of relevant law. See Coffman, 829 F.2d at 517.

II. PLAINTIFF'S OBJECTIONS

Plaintiff raises four objections to the PF & R. Each properly raised objection will be afforded de novo review.

A. First Objection: Magistrate Judge's Review of Evidence

Plaintiff's first objection states, in its entirety:

The plaintiff contends that the U.S. Magistrate erred in his review of the ALJ's Decision of February 24, 2006, with regard to his identification of the claimant's severe impairments by conducting an incomplete selective and, in part, de novo review of the medical evidence. Contrary to the Magistrate's conclusion as to which of the claimant's impairments are "severe" for purposes of her claims for Title II and Title XVI Benefits, the plaintiff contends that the medical evidence provides substantial evidence for a finding of severity for Ms. McPherson's left-sided weakness, imbalance, headaches, low back pain, bilateral foot pain, obesity, bladder problems, memory, concentration problems, in addition to those severe impairments identified by the Administrative Law Judge in his Decision of February 24, 2006.

(Pl.'s Objs. Prop. Findings & Recom U.S. Magistrate R. Clarke VanDervort Filed Aug. 29, 2008 at 2 [hereinafter Objs.]). Each of the two sentences of this objection raise seemingly disparate issues and will be addressed separately.

On its face, 28 U.S.C. § 636(b)(1)(B) does not require any review, by either the district court or the court of appeals, of any issue that has not been made the subject of an objection. See Thomas, 474 U.S. at 149, 106 S.Ct. 466; Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). When a party does make objections, but these objections are so general or conclusory that they fail to direct the district court to any specific error by the magistrate judge, de novo review is unnecessary. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982); Howard's Yellow Cabs, Inc. v. United States, 987 F.Supp. 469, 474 (W.D.N.C.1997). A litigant who makes only vague objections to the magistrate judge's findings prevents the district court from focusing on disputed issues and thus renders the initial referral to the magistrate judge useless. Howard's Yellow Cabs, 987 F.Supp. at 474. A general objection does not meet the requirements of 28 U.S.C. § 636(b)(1), and failure to file a specific objection constitutes a waiver of the right to de novo review. Id. (citing Mercado v. Perez Vega, 853 F.Supp. 42, 44 (D.P.R.1993)).

Neither of the two sentences of Plaintiff's first objection calls the Court's attention to any specific error by the magistrate judge. The first sentence purports to object to the thoroughness of the magistrate judge's review and to the standard of review applied, stating that a de novo standard was applied. Plaintiff does not, however, identify any specific portion of the PF & R in which Magistrate Judge VanDervort reviewed the record selectively or applied a de novo standard. This is precisely the type of vague and conclusory objection contemplated by Orpiano and Howard's Yellow Cabs, Inc. that does not merit review by this Court.

The second sentence of Plaintiff's first objection is similarly general and conclusory. It alleges that the magistrate judge failed to recognize that the ALJ's list of severe impairments was underinclusive because there is substantial evidence to support Plaintiff's claims. Plaintiff makes this assertion baldly, without a scintilla of support or argument. In addition to the fact that the details of this allegation are properly set forth in Plaintiff's second objection, the first objection misstates the applicable standard of review. Under the deferential standard mandated by 42 U.S.C. § 405(g), the findings of the Commissioner are not be disturbed if there is substantial evidence in the record to support those findings. It is not appropriate for this Court to weigh the evidence de novo. There may be, as Plaintiff asserts, "substantial evidence for a finding of severity" with regard to Plaintiff's left-sided weakness, imbalance, and headaches. (Objs. 2.) However, the inquiry is not whether Plaintiff's position enjoys the support of substantial evidence; the question is whether the ALJ's decision is supported by substantial evidence.

The Court FINDS that Plaintiff's first objection is general and conclusory and that de novo review of the issues raised is not warranted. Therefore, it is OVERRULED.

B. Second Objection: List of Severe Impairments

Plaintiff's second objection argues that the magistrate judge erred by concluding that the ALJ's identification of severe impairments was supported by substantial evidence. The ALJ found the following severe impairments: cervical disc disease, carpal tunnel syndrome, depression, anxiety, visual impairment, and porphyria. (Tr. 26.) Plaintiff contends...