Brandenburg v. Social Security Administration
Filing
28
MEMORANDUM OPINION AND ORDER adopting 27 REPORT AND RECOMMENDATIONS re 22 MOTION to Remand to Agency by District Judge James O. Browning. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
YVONNE BRANDENBURG,
Plaintiff,
vs.
No. CIV 17-0507 JB/JHR
NANCY A. BERRYHILL,
Deputy Commissioner for Operations
performing duties and functions not reserved
to the Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING THE 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 May 25, 2018 (Doc. 27)(“PFRD”), recommending that the
Court grant Plaintiff Yvonne Brandenburg’s Motion to Reverse Commissioner’s Administrative
Decision and Remand Claim, filed September 15, 2017 (Doc. 22)(“Motion”).
The PFRD
notified Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security
Administration (“Commissioner”), of her ability to file objections and instructed her that, if she
did not file objections, she waived appellate review. See PFRD at 9-10. Objections were due by
June 8, 2018. See PFRD at 9. To date, the Commissioner has not filed objections. Because the
Court concludes that the PFRD of the Honorable Jerry H. Ritter, United States Magistrate Judge
of the District of New Mexico, is not clearly erroneous, arbitrary, obviously contrary to law, or
an abuse of discretion, the Court adopts the PFRD and grants the Motion.
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.” Finally, when resolving
objections to a Magistrate Judge’s proposal, “the district judge must determine de novo any part
of the magistrate judge’s disposition that has been properly objected to. 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,
and Contents, 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel”)(quoting Thomas v. Arn, 474
U.S. 140, 147 (1985)). As the United States Court of Appeals for the Tenth Circuit has noted,
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“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 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
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, have
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 1030, 1030-31 (10th Cir.
2001)(“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
1
28 U.S.C. §§ 631-639.
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 opinions 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
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In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expanded the
waiver rule to cover objections that are timely but too general. See One 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 -- has 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) (hereafter Senate Report); H. R.
Rep. No. 94-1609, p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p. 6162
(hereafter 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) (hereinafter 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 id., 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
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)(citations omitted). The Court
concludes that Pevehouse v. Scibana has persuasive value with respect to material issues, and
will assist the Court in its preparation of this Memorandum Opinion and Order.
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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 150-52 (emphasis in original)(footnotes omitted).
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
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)(“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.”)(citations omitted). 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 lack
of specificity in the objections, 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 waiver rule, but Courts of Appeals opted to enforce 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
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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
(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 fails to 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 58384). “[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
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Circuit has previously 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 § 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 a district court may place whatever reliance it chooses on a Magistrate
Judge’s proposed findings and recommendations when there is no objection, a district court
“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate,” 28 U.S.C. § 636(b)(1), as “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)(emphasis omitted).
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 no party objects to the Magistrate Judge’s proposed findings and recommended
disposition, the Court has, as a matter of course in the past and in the interests of justice,
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reviewed the Magistrate Judge’s recommendations. In Pablo v. Soc. Sec. Admin., No. CIV 110132, 2013 WL 1010401, at **1, 4 (D.N.M. 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. The Court
generally does not, however, “review the PF&RD de novo, because the parties have not objected
thereto, but rather review[s] the recommendations to determine whether they are clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion.” Pablo v. Soc. Sec.
Admin., 2013 WL 1010401, at *4. The Court, thus, 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 “[t]he Court cannot say that the Magistrate Judge’s
recommendation . . . is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *3. See Alexandre v. Astrue, No.
CIV 11-0384, 2013 WL 1010439, at *4 (D.N.M. 2013)(Browning, J.)(“The Court rather
reviewed the findings and recommendations of the Honorable Stephan M. Vidmar, United States
Magistrate Judge, 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
PFRD.”). 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 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 magistrate’s report than the court considers
appropriate.”). The Court is reluctant to have no review at all if its name is signed at the bottom
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of the order adopting the Magistrate Judge’s proposed findings and recommendations.
ANALYSIS
The Court has carefully reviewed the PFRD, the Motion, and the Memorandum in
Support of Plaintiff’s Motion to Remand, filed September 15, 2017 (Doc. 23). The Court did not
review the PFRD de novo, because the parties have not objected to it, but rather reviewed
Magistrate Judge Ritter’s PFRD to determine if it is clearly erroneous, arbitrary, obviously
contrary to law, or an abuse of discretion, which it is not. Accordingly, the Court will adopt the
PFRD.
IT IS ORDERED that: (i) the Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed May 25, 2018 (Doc. 27), is adopted; and (ii) the Plaintiff’s Motion to Reverse
Commissioner’s Administrative Decision and Remand Claim, filed September 15, 2017
(Doc. 22), is granted.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Julie Lee Glover
GloverLuck, LLP
Dallas, Texas
Attorneys for the Plaintiff
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John C. Anderson
United States Attorney
Manuel Lucero
Assistant United States Attorney
United States Attorney’s Office
Albuquerque, New Mexico
-- and -Noah Schabacker
Steven Martyn
Office of the General Counsel
Social Security Administration
Denver, Colorado
Attorneys for the Defendant
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