Garcia v. Social Security Administration

Filing 35

MEMORANDUM OPINION AND ORDER adopting 34 REPORT AND RECOMMENDATIONS and denying 21 MOTION to Remand to Agency filed by Daniel A. Garcia, by District Judge James O. Browning. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DANIEL A. GARCIA,
Plaintiff,
vs.

No. CIV 16-1170 JB/GBW

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
MEMORANDUM AND OPINION ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Magistrate Judge’s Proposed Findings
and Recommended Disposition, filed October 13, 2017 (Doc. 34)(“PFRD”), recommending that
the Court deny the Plaintiff’s Motion to Remand, filed March 17, 2017 (Doc. 21)(“Remand
Motion”). Neither party has filed Objections to the PFRD, and, upon review of the record and
otherwise being fully advised, the Court concludes that the Honorable Gregory B. Wormuth,
United States Magistrate Judge’s PFRD is not clearly erroneous, arbitrary, obviously contrary to
law, or an abuse of discretion. Accordingly, the Court adopts the PFRD, denies the Remand
Motion, and dismisses the case with prejudice.
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
RECOMMENDATIONS
District courts may refer dispositive motions to a Magistrate Judge for a recommended
disposition. See Fed. R. Civ. P. 72(b)(1) (“A magistrate judge must promptly conduct the
required proceedings when assigned, without the parties’ consent, to hear a pretrial matter
dispositive of a claim or defense . . . .”). Rule 72(b)(2) governs objections: “Within 14 days

after being served with a copy of the recommended disposition, a party may serve and file
specific written objections to the proposed findings and recommendations.” Fed. R. Civ. P.
72(b)(2). Finally, when resolving Objections to a Magistrate Judge’s proposal, “[t]he district
judge must determine de novo any part of the magistrate judge’s disposition to which there has
been a proper objection. The district judge 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). Similarly, 28 U.S.C. § 636 provides:
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)(C).
“‘The filing of objections to a magistrate’s report enables the district judge to focus
attention on those issues -- factual and legal -- that are at the heart of the parties’ dispute.’”
United States v. One Parcel of Real Property, with Buildings, Appurtenances, Improvements &
Contents, 73 F.3d 1057, 1059 (10th Cir. 1996)(quoting Thomas v. Arn, 474 U.S. 140, 147
(1985))(“One Parcel”). As the United States Court of Appeals for the Tenth Circuit has noted,
“the filing of objections advances the interests that underlie the Magistrate’s Act,[1] including
judicial efficiency.” One Parcel, 73 F.3d at 1059 (citing Niehaus v. Kan. Bar Ass’n, 793 F.2d
1159, 1165 (10th Cir. 1986); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)).
The Tenth Circuit has held “that a party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the

1
Congress enacted the Federal Magistrates Act, 28 U.S.C. §§ 631-39, in 1968.

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district court or for appellate review.” One Parcel, 73 F.3d at 1060. “To further advance the
policies behind the Magistrate’s Act, [the Tenth Circuit], like numerous other circuits, [has]
adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the
magistrate’s findings or recommendations waives appellate review of both factual and legal
questions.’” One Parcel, 73 F.3d at 1059 (citations omitted). In addition to requiring specificity
in objections, the Tenth Circuit has stated that “[i]ssues raised for the first time in objections to
the magistrate judge’s recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996). See United States v. Garfinkle, 261 F.3d 1421, 1426 (10th Cir. 1996)(“In
this circuit, theories raised for the first time in objections to the magistrate judge’s report are
deemed waived.”). In an unpublished opinion, the Tenth Circuit stated that “the district court
correctly held that [a petitioner] had waived [an] argument by failing to raise it before the
magistrate.” Pevehouse v. Scibana, 229 F. App’x 795, 796 (10th Cir. 2007)(unpublished).2
In One Parcel, the Tenth Circuit, in accord with the other United States Courts of
Appeals, expanded the waiver rule to cover objections that are timely but too general. See One

2
Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an
unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See
10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their
persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we
have generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its
disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that
Pevehouse v. Scibana has persuasive value with respect to a material issue, and will assist the
Court in its disposition of this Memorandum Opinion and Order.

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Parcel, 73 F.3d at 1060. The Supreme Court of the United States -- in the course of approving
the United States Court of Appeals for the Sixth Circuit’s use of the waiver rule -- noted:
It does not appear that Congress intended to require district court review
of a magistrate’s factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings. The House and Senate
Reports accompanying the 1976 amendments do not expressly consider what sort
of review the district court should perform when no party objects to the
magistrate’s report. See S. Rep. No. 94-625, pp. 9-10 (1976) (“Senate Report”);
H.R. Rep. No. 94-1609, p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p.
6162 (“House Report”). There is nothing in those Reports, however, that
demonstrates an intent to require the district court to give any more consideration
to the magistrate’s report than the court considers appropriate. Moreover, the
Subcommittee that drafted and held hearings on the 1976 amendments had before
it the guidelines of the Administrative Office of the United States Courts
concerning the efficient use of magistrates. Those guidelines recommended to the
district courts that “[w]here a magistrate makes a finding or ruling on a motion or
an issue, his determination should become that of the district court, unless specific
objection is filed within a reasonable time.” See Jurisdiction of United States
Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in
Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st
Sess., 24 (1975)(emphasis added)(“Senate Hearings”). The Committee also heard
Judge Metzner of the Southern District of New York, the chairman of a Judicial
Conference Committee on the administration of the magistrate system, testify that
he personally followed that practice. See Senate Hearings at 11 (“If any
objections come in, . . . I review [the record] and decide it. If no objections come
in, I merely sign the magistrate’s order.”). The Judicial Conference of the United
States, which supported the de novo standard of review eventually incorporated in
§ 636(b)(1)(C), opined that in most instances no party would object to the
magistrate’s recommendation, and the litigation would terminate with the judge’s
adoption of the magistrate’s report. See Senate Hearings at 35, 37. Congress
apparently assumed, therefore, that any party who was dissatisfied for any reason
with the magistrate’s report would file objections, and those objections would
trigger district court review. There is no indication that Congress, in enacting
§ 636(b)(1)(C), intended to require a district judge to review a magistrate’s report
to which no objections are filed. It did not preclude treating the failure to object
as a procedural default, waiving the right to further consideration of any sort. We
thus find nothing in the statute or the legislative history that convinces us that
Congress intended to forbid a rule such as the one adopted by the Sixth Circuit.
Thomas v. Arn, 474 U.S. at 151-52 (footnotes omitted)(emphasis added in Thomas v. Arn).
The Tenth Circuit also noted, “however, that ‘[t]he waiver rule as a procedural bar need
not be applied when the interests of justice so dictate.’” One Parcel, 73 F.3d at 1060 (quoting

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Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). See Moore v. United States, 950
F.2d at 659 (“We join those circuits that have declined to apply the waiver rule to a pro se
litigant’s failure to object when the magistrate’s order does not apprise the pro se litigant of the
consequences of a failure to object to findings and recommendations.”). Cf. Thomas v. Arn, 474
U.S. at 154 (noting that, while “[a]ny party that desires plenary consideration by the Article III
judge of any issue need only ask,” a failure to object “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”). In
One Parcel, the Tenth Circuit noted that the district judge had decided sua sponte to conduct a de
novo review despite the objections’ lack of specificity, but the Tenth Circuit held that it would
deem the issues waived on appeal, because it would advance the interests underlying the waiver
rule. See 73 F.3d at 1060-61 (citing cases from other Courts of Appeals where district courts
elected to address the merits despite potential application of the waiver rule, but Courts of
Appeals opted to enforce the waiver rule).
Where a party files timely and specific objections to the Magistrate Judge’s proposed
findings and recommendation on “dispositive motions, the statute calls for a de novo
determination, not a de novo hearing.” United States v. Raddatz, 447 U.S. 667, 674 (1980).
“[I]n providing for a ‘de novo determination’ rather than de novo hearing, Congress intended to
permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to
place on a magistrate’s proposed findings and recommendations.” United States v. Raddatz, 447
U.S. at 676 (quoting 28 U.S.C. § 636(b))(citing Mathews v. Weber, 423 U.S. 261, 275 (1976)).
The Tenth Circuit requires a “district court to consider relevant evidence of record and not
merely review the magistrate judge’s recommendation” when conducting a de novo review of a
party’s timely, specific objections to the magistrate’s report. In re Griego, 64 F.3d 580, 583-84

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(10th Cir. 1995). “When objections are made to the magistrate’s factual findings based on
conflicting testimony or evidence . . . the district court must, at a minimum, listen to a tape
recording or read a transcript of the evidentiary hearing.” Gee v. Estes, 829 F.2d 1005, 1008-09
(10th Cir. 1987).
A district court must “clearly indicate that it is conducting a de novo determination”
when a party objects to the Magistrate Judge’s report “based upon conflicting evidence or
testimony.” Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court does not meet 28
U.S.C. § 636(b)(1)’s requirements when it indicates that it gave “considerable deference to the
magistrate’s order.” Ocelot Oil Corp. v. Sparro Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). A
district court need not, however, “make any specific findings; the district court must merely
conduct a de novo review of the record.” Garcia v. City of Albuquerque, 232 F.3d 760, 766
(10th Cir. 2000). “[T]he district court is presumed to know that de novo review is required.
Consequently, a brief order expressly stating the court conducted de novo review is sufficient.”
Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996)(citing In re Griego, 64 F.3d at
583-84). “[E]xpress references to de novo review in its order must be taken to mean it properly
considered the pertinent portions of the record, absent some clear indication otherwise.”
Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722, 724 (10th Cir. 1993). The Tenth
Circuit has held that a district court properly conducted a de novo review of a party’s evidentiary
objections when the district court’s “terse” order contained one sentence for each of the party’s
“substantive claims” and did “not mention his procedural challenges to the jurisdiction of the
magistrate to hear the motion.” Garcia v. City of Albuquerque, 232 F.3d at 766. The Tenth
Circuit has explained that brief district court orders that “merely repeat[] the language of §

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636(b)(1) to indicate its compliance” are sufficient to demonstrate that the district court
conducted a de novo review:
It is common practice among district judges in this circuit to make such a
statement and adopt the magistrate judges’ recommended dispositions when they
find that magistrate judges have dealt with the issues fully and accurately and that
they could add little of value to that analysis. We cannot interpret the district
court’s statement as establishing that it failed to perform the required de novo
review.
In re Griego, 64 F.3d at 584.
Notably, because “Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and
recommendations,” United States v. Raddatz, 447 U.S. at 676, a district court “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge,” 28 U.S.C. § 636(b)(1). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d at
724-25 (holding that the district court’s adoption of the Magistrate Judge’s “particular
reasonable-hour estimates” is consistent with the de novo determination that 28 U.S.C.
§ 636(b)(1) and United States v. Raddatz require).
Where, as here, no party objects to the Magistrate Judge’s proposed findings and
recommended disposition, the Court has, as a matter of course and in the interests of justice,
reviewed the Magistrate Judge’s recommendations. In Pablo v. Soc. Sec. Admin., No. CIV 110132, 2013 WL 1010401 (D.N.M. Feb. 27, 2013)(Browning, J.), the plaintiff failed to respond to
the magistrate judge’s proposed findings and recommended disposition, and thus waived his
right to appeal the recommendations, but the Court nevertheless conducted a review. See 2013
WL 1010401, at **1, 4. The Court stated that it generally does not, however, “review the
[Proposed Findings and Recommended Disposition] de novo, because the parties have not
objected thereto, but rather review[s] the recommendations to determine whether they are clearly

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erroneous, arbitrary, obviously contrary to law, or an abuse of discretion.” 2013 WL 1010401, at
*4.
The Court, when there are no objections, does not determine independently what it would
do if the issues had come before the Court first, but rather adopts the proposed findings and
recommended disposition where “‘the Court cannot say that the Magistrate Judge’s
recommendation . . . is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.’”

2013 WL 1010401, at *3 (alterations omitted)(footnote omitted)(quoting

Workheiser v. City of Clovis, No. CIV 12-0485, 2012 WL 6846401, at *3 (D.N.M. Dec. 28,
2012)(Browning, J.)). See Alexandre v. Astrue, No. CIV 11-0384, 2013 WL 1010439, at *4
(D.N.M. Feb. 27, 2013)(Browning, J.)(“The Court rather reviewed the findings and
recommendations . . . to determine if they are clearly erroneous, arbitrary, obviously contrary to
law, or an abuse of discretion. The Court determines that they are not, and will therefore adopt
the [Proposed Findings and Recommended Disposition].”); Trujillo v. Soc. Sec. Admin., No.
CIV 12-1125, 2013 WL 1009050, at *5 (D.N.M. Feb. 28, 2013)(Browning, J.)(adopting the
proposed findings and conclusions, and noting that “[t]he Court did not review the ARD de
novo, because Trujillo has not objected to it, but rather reviewed the . . . findings and
recommendation to determine if they are clearly erroneous, arbitrary, obviously contrary to law,
or an abuse of discretion, which they are not”).

This review, which is deferential to the

Magistrate Judge’s work when there is no objection, nonetheless provides some review in the
interest of justice, and seems more consistent with the waiver rule’s intent than no review at all
or a full-fledged de novo review. Accordingly, the Court considers this standard of review
appropriate. See Thomas v. Arn, 474 U.S. at 151 (“There is nothing in those Reports, however,
that demonstrates an intent to require the district court to give any more consideration to the

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magistrate’s report than the court considers appropriate.”). The Court is reluctant to have no
review at all if its name is going at the bottom of the order or opinion adopting the Magistrate
Judge’s proposed findings and recommendations.
ANALYSIS
No party submitted any objections to the PFRD. The Court will thus review it only to
determine whether it is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion. The Court concludes that the PFRD is not clearly erroneous, arbitrary, obviously
contrary to law, or an abuse of discretion, and it will thus adopt the PFRD as its own, and it will
deny Plaintiff’s Motion to Remand.
IT IS ORDERED that: (i) the Magistrate Judge’s Report and Recommendations, filed
October 13, 2017 (Doc. 34) is adopted; (ii) the Plaintiff’s Motion for Remand, filed March 17,
2017 (Doc. 21) is denied; and (iii) this case is dismissed with prejudice.

________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Helen Laura Lopez
Law Office of Helen Laura Lopez
Santa Fe, New Mexico
Attorney for the Plaintiff
James D. Tierney
Acting United States Attorney
Manuel Lucero
Assistant United States Attorney
United States Attorney’s Office
Albuquerque, New Mexico

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--and-Kirsten Westerland
Social Security Administration
Denver, Colorado
Attorneys for the Defendant

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