Pettyjohn v. Social Security Administration

Filing 38

MEMORANDUM OPINION AND ORDER by District Judge James O. Browning ADOPTING 37 REPORT AND RECOMMENDATIONS. (fs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DONNA F. PETTYJOHN,
Plaintiff,
vs.

No. CIV 23-0422 JB/LF

MARTIN O’MALLEY, Commissioner
of the Social Security Administration,
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 July 14, 2024 (Doc. 37)(“PFRD”). The PFRD notifies
Plaintiff Donna Pettyjohn of her ability to file objections within fourteen days and that failure
to do so waives appellate review. To date, Pettyjohn has not filed any objections, and there is
nothing in the record indicating that the proposed findings were not delivered. The Court
concludes that the PFRD that the Honorable Laura Fashing, United States Magistrate Judge for
the United States District Court for the District of New Mexico, wrote, is not clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion, and the Court therefore adopts it.
Accordingly, the Court will grant in part the Defendant’s Opposed Motion to Remand for Further
Administrative Proceedings Pursuant to Sentence Fourt of 42 U.S.C. § 405(g), filed April 8, 2024
(Doc. 34), and remand this matter to the Commissioner for an outright award of benefits.
LAW REGARDING OBJECTIONS TO THE PFRD
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 or a prisoner petition challenging the conditions of confinement.”). 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 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 Prop., with Bldgs, Appurtenances, Improvements, & Contents, Known as: 2121
East 30th Street, Tulsa Okla., 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, “the filing of objections advances the interests that underlie the Magistrate’s Act[, 28
U.S.C. §§ 631-39], 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)).
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

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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, ha[s]
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 (quoting Moore v. United States, 950 F.2d 656, 659
(10th Cir.1991)). “[O]nly an objection that is sufficiently specific to focus the district court’s
attention on the factual and legal issues that are truly in dispute will advance the policies behind
the Magistrate’s Act.” One Parcel, 73 F.3d at 1060. 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 has stated that “the district court correctly
held that [a plaintiff] had waived [an] argument by failing to raise it before the magistrate.”
Pevehouse v. Scibana, 229 F. App’x 795, 796 (10th Cir. 2007).1

1

Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on a Tenth Circuit
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, . . . [a]nd 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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The Tenth Circuit has 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
[judge’]s order does not apprise the pro se litigant of the consequences of a failure to object to
findings and recommendations.”)). In One Parcel, the Tenth Circuit notes that the district judge
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 such actions
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 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 PFRD
“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)(“Raddatz”). The Tenth Circuit has stated that
a de novo determination, pursuant to 28 U.S.C. § 636(b), “requires the district court to consider
relevant evidence of record and not merely review the magistrate judge’s recommendation.” In re
Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). The Supreme Court of the United States has noted
that, although a district court must make a de novo determination of the objections to
recommendations under 28 U.S.C. § 636(b)(1), the district court is not precluded from relying on
the Magistrate Judge’s PFRD. See Raddatz, 447 U.S. at 676 (“[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.”)(quoting 28 U.S.C. § 636(b)(1)). See Bratcher v. Bray-Doyle

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Indep. Sch. Dist. No. 42 of Stephens Cnty., Okla., 8 F.3d 722, 724-25 (10th Cir. 1993)(holding
that the district court’s adoption of the Magistrate Judge’s “particular reasonable-hour estimates”
is consistent with a de novo determination, because “the district court ‘may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate.’” (quoting
28 U.S.C. § 636(b)(1))(emphasis in Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42 of Stephens
Cnty., Okla.)).
Where no party objects to the Magistrate Judge’s PFRD, the Court has, as a matter of
course in the past and in the interests of justice, reviewed the Magistrate Judge’s recommendations.
In Workheiser v. City of Clovis, No. CIV 12-0485, 2012 WL 6846401 (D.N.M. December 28,
2012)(Browning, J.), where the plaintiff failed to respond to the Magistrate Judge’s PFRD,
although the Court determined that the plaintiff “has waived his opportunity for the Court
to conduct review of the factual and legal findings in the [PFRD],” the Court nevertheless
conducted such a review. 2012 WL 6846401, at *3.

The Court generally does not review,

however, the Magistrate Judge’s PFRD de novo and determine independently necessarily what
it would do if the issues had come before the Court first, but rather adopts the PFRD where
“[t]he Court cannot say that the Magistrate Judge’s recommendation . . . is clearly erroneous,
arbitrary, [obviously2] contrary to law, or an abuse of discretion.” Workheiser v. City of Clovis,
2012 WL 6846401, at *3.

2

The Court previously used as the standard for review when a party does not object to the
Magistrate Judge’s PFRD whether the recommendation is “clearly erroneous, arbitrary, contrary
to law, or an abuse of discretion,” thus omitting “obviously” in front of contrary to law. Solomon
v. Holder, No. CIV 12-1039, 2013 WL 499300, at *4 (D.N.M. January 31, 2013)(Browning
J.)(adopting the recommendation to which there was no objection, stating: “The Court determines
that the PFRD is not clearly erroneous, arbitrary, contrary to law, or an abuse of discretion,
and accordingly adopts the recommendations therein”); O’Neill v. Jaramillo, No. CIV 11-0858,
2013 WL 499521 (D.N.M. January 31, 2013)(Browning, J.)(“Having reviewed the PRFD under
that standard, the Court cannot say that the Magistrate Judge’s recommendation is clearly
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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 going at the
bottom of the order adopting the Magistrate Judge’s PFRD.
ANALYSIS
The Court has reviewed carefully the PFRD. The Court did not review the PFRD de novo,
because the parties have not objected to it, but rather reviewed the Magistrate Judge Fashing’s
PFRD to determine if it is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.

The Court determines that it is not.

Accordingly, the Court will adopt the

recommendations.

erroneous, arbitrary, contrary to law, or an abuse of discretion. The Court thus adopts Judge
Wormuth’s PFRD.”)(citing Workheiser v. City of Clovis, 2012 WL 6846401, at *3); Galloway v.
JP Morgan Chase & Co., No. CIV 12-0625, 2013 WL 503744 (D.N.M. January 31,
2013)(Browning, J.)(adopting the Magistrate Judge’s recommendations upon determining that
they were not “clearly contrary to law, or an abuse of discretion.”). The Court concludes that
“contrary to law” does not reflect accurately the deferential standard of review which the Court
intends to use when there is no objection. Concluding that a Magistrate Judge’s
recommendation is contrary to law would require the Court to analyze the Magistrate Judge’s
application of law to the facts or the Magistrate Judge’s delineation of the facts -- in other words
performing a de novo review, which is required only when a party objects to the
recommendations. The Court concludes that adding “obviously” better reflects that the Court
is not performing a de novo review of the Magistrate Judges’ recommendations. Going forward,
therefore, the Court will review, as it has done for some time now, Magistrate Judges’
recommendations to which there are no objections for whether the recommendations are clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion.

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IT IS ORDERED that: (i) the Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed July 14, 2024 (Doc. 37), is adopted; (ii) the Defendant’s Opposed Motion to
Remand for Further Administrative Proceedings Pursuant to Sentence Fourt of 42 U.S.C.
§ 405(g), filed April 8, 2024 (Doc. 34), is granted in part as outlined in the Proposed Findings
and Recommended Disposition, and this matter is remanded to the Commissioner for an outright
award of benefits; and (iii) a Final Judgment is entered concurrently herewith.

________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Laura J. Johnson
Armstrong Johnson Law, LLC
Albuquerque, New Mexico
Attorneys for the Plaintiff
Michael A. Thomas
Social Security Administration
Baltimore, Maryland
-- and -Alexander M.M. Uballez
United States Attorney
Manuel Lucero
Assistant United States Attorney
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for the Defendant

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