Whited v. Commissioner of Social Security

Filing 18

ORDER Accepting Report and Recommendation re 15 Report and Recommendation which affirmed the Commissioner's decision. The Clerk shall enter judgment against Whited and in favor of the Commissioner. Signed by Judge Mark W Bennett on 04/18/2014. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
THOMAS EDWARD WHITED,
No. C 13-4039-MWB
Plaintiff,
vs.
CAROLYN W. COLVIN, Commissioner
of Social Security,

ORDER REGARDING REPORT AND
RECOMMENDATION

Defendant.
___________________________
This case is before me on a Report and Recommendation (R&R) from Judge
Leonard Strand, filed on January 9, 2014 (docket no. 15). In the R&R, Judge Strand
recommends that I affirm a decision by the Commissioner of Social Security (the
Commissioner) denying plaintiff Thomas Whited (Whited) disability benefits under
Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. Whited timely
filed objections to the R&R (docket no. 16). I adopt the recommendations in the R&R
and affirm the Commissioner’s decision.
In his R&R, Judge Strand concluded that substantial evidence supports the ALJ’s
decision to deny Whited benefits. I review this conclusion pursuant to the statutory
standards found in 28 U.S.C. § 636(b)(1):
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of
the court may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge. The judge may also receive further evidence or
recommit the matter to the magistrate judge with
instructions.

28. U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b) (stating identical requirements);
N.D. Ia. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate
judge but not articulating any standards to review the magistrate judge’s R&R). While
examining these statutory standards, the United States Supreme Court explained:
Any party that desires plenary consideration by the Article
III judge of any issue need only ask. Moreover, while the
statute does not require the judge to review an issue de novo
if no objections are filed, it does not preclude further review
by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 154 (1985). Thus, a district court may review de novo
any issue in a magistrate judge’s R&R at any time. Id. Usually, if a party files an
objection to the magistrate judge’s R&R, the district court must “make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). In the absence
of an objection, the district court is not required “to give any more consideration to the
magistrate’s report than the court considers appropriate.” Thomas, 474 U.S. at 150.
While Whited has filed objections to the R&R, they are incredibly general. In
response to Judge Strand’s detailed, 24-page R&R, Whited attempts three, conclusory
objections:
I.

The Report and Recommendation does not give Dr. McKay’s opinion
adequate weight in reporting that the Claimant would have a problem with
heavy lifting and does not adequately address his incontinence.

II.

The Report and Recommendation does not give Dr. Upadhay’s opinion
appropriate weight in considering the Claimant’s mental impairments as
evidenced by the Psychiatric Questionnaire completed by the doctor and
submitted at Ar. 1223-31.

III.

That the Report and Recommendation fails to properly apply Polaski factor
(Polaski v. Hecklar, 739 F.2d 1320, 1322 (8th Cir. 1984) in analyzing the
case. In fact, the ALJ discredited the Claimant based upon his work history
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that demonstrated his substantial activity over the past 10 to 15 years. He
uses his work history against him. (Report and Recommendation, p. 22)
(Docket no. 16, at 4). In support of these objections, Whited offers one sentence of
argument: “Please refer to Argument in Plaintiff’s Brief, pp. 14-23 filed July 26,
2013” (docket no. 16, at 4).
Whited’s objections fail to comply with Local Rule 72.1, which states that “[a]
party who objects to . . . a magistrate judge’s report and recommendation must file
specific, written objections to the . . . report and recommendation . . . ” (emphasis
added). Accord Fed. R. Civ. P. 72 (stating that “a party may serve and file specific
written objections to the proposed findings and recommendations” (emphasis added)).
Whited’s objections are anything but specific. In essence, Whited asks that I reverse
the Commissioner’s decision for the reasons already argued to, and addressed by, Judge
Strand. While Whited ostensibly takes issue with three conclusions in the R&R, he
raises no specific deficiency in Judge Strand’s analysis and offers no argument other
than a general reference to 10 pages of his previous brief before Judge Strand.
Whited’s objections really just reiterate his arguments previously rejected by Judge
Strand without offering any new analysis. I am left to guess: Where did Judge Strand
err?

And what record pages support Whited’s objections?

Even if I were to

extrapolate a more detailed objection based on arguments from Whited’s brief, I would
simply be duplicating the work Judge Strand has already done, thus defeating the entire
purpose of the R&R.
This potential duplication of effort is precisely why Whited’s scant objections are
akin to making no objection at all. I agree with the Sixth Circuit Court of Appeals’s
analysis of objections like those offered here:

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A general objection to the entirety of the magistrate’s report
has the same effects as would a failure to object.1 The
district court’s attention is not focused on any specific issues
for review, thereby making 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. We
would hardly countenance an appellant’s brief simply
objecting to the district court’s determination without
explaining the source of the error. We should not permit
appellants to do the same to the district court reviewing the
magistrate’s report.
Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)
(internal citations omitted); accord United States v. Scott, No. CR07-2004-MWB, 2007
WL 1668058, at *4 (N.D. Iowa June 7, 2007) (“Therefore, the court denies defendant
Scott’s objection on the ground that defendant Scott has failed to state his objection with
the requisite particularity.”). Similarly, the Eighth Circuit Court of Appeals has noted
that a number of circuits hold that a district court need not conduct a de novo review of
a magistrate’s order where the objecting party makes only a general, conclusory
objection. Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994); see also Thompson v.
Nix, 897 F.2d 356, 357-58 (8th Cir. 1990) (“We also remind parties that objections
must be . . . specific to trigger de novo review by the District Court of any portion of
the magistrate's report and recommendation.”).

It has also noted that “[t]here is

language in [Branch v. Martin, 886 F.2d 1043 (8th Cir. 1989)] which indicates this

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Whited did not object to the entire R&R. But his threadbare objections, which do not
confront Judge Strand’s analysis, present the same duplication problems addressed by
the Sixth Circuit Court of Appeals.

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Circuit’s approval of such an exception.” Belk, 15 F.3d at 815 (citing Branch, 886
F.3d at 1046 (“In the present case, plaintiff’s objections to the magistrate’s factual
conclusions were timely filed and specific enough to trigger de novo review.” (further
citations omitted))). Still, the Eighth Circuit Court of Appeals has suggested that, in
cases involving “strikingly brief” records, or those in which a pro se litigant objects,
district courts should apply de novo review more liberally, even in the face of general
objections. See id. (holding that a pro se litigant’s objections were “definite enough” to
trigger de novo review of a concise record); Hudson v. Gammon, 46 F.3d 785, 786
(8th Cir. 1995) (holding that a litigant’s “pro se objections sufficiently directed the
district court to the alleged errors”).
Here, Whited is represented by counsel and the record is relatively lengthy, yet
Whited offers nothing more than a conclusory objection to Judge Strand’s R&R. Under
these circumstances, I treat Whited’s objection as if he had not objected at all. See
Carter v. Colvin, No. C 12-4085-MWB, 2013 WL 5970258, at *3 (N.D. Iowa Nov. 8,
2013) (treating similarly conclusory objections as no objection). Thus, I will review
Judge Strand’s R&R under a “clearly erroneous” standard of review. See Grinder v.
Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting when no objections are filed and
the time for filing objections has expired, “[the district court judge] would only have to
review the findings of the magistrate judge for clear error”); Taylor v. Farrier, 910
F.2d 518, 520 (8th Cir. 1990) (noting the advisory committee’s note to Fed. R. Civ. P.
72(b) indicates “when no timely objection is filed the court need only satisfy itself that
there is no clear error on the face of the record”). The United States Supreme Court
has explained that “[a] finding is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Anderson v. City of Bessemer City,

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470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948)).
THEREFORE,
Having reviewed Judge Strand’s very thorough and well-written findings of fact
and conclusions of law in the R&R, I find no clear error and adopt the R&R (docket
no. 16). The Commissioner’s decision is affirmed. The Clerk shall enter judgment
against Whited and in favor of the Commissioner.
IT IS SO ORDERED.
DATED this 18th day of April, 2014.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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