Jordan v. Colvin

Filing 29

ORDER APPROVING AND ADOPTING 25 REPORT AND RECOMMENDATIONS IN FULL. Signed by District Judge Liam O'Grady on 01/23/2018. (dvanm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
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MELISSA GAYE JORDAN,

Plaintiff,

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Civil No. l:16-cv-951

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Hon. Liam O'Grady
Hon. Theresa Buchanan

NANCY A. BERRYHILL,

Defendant.
ORDER

This mattercomes before the Court on PlaintiffMelissa GayeJordan's Partial Exceptions

to the Report and Recommendation ofthe United States Magistrate Judge (Dkt. 27). Inher
motion, Plaintiff asserts three grounds of error in United States Magistrate Judge Buchanan's

Report and Recommendation ("R&R") (Dkt. No. 25). This Court reviews de novo those portions
of the R&R to which objection is made. See 28 U.S.C.A. § 636. Having reviewed the record, the
Court finds no error in Magistrate Judge Buchanan's R&R, which the Court hereby APPROVES
AND ADOPTS IN FULL. Plaintiffs three assignments of error fail for the reasons explained
below.

First, Plaintiffasserts that the Administrative Law Judge ("ALJ") erred by failingto

address Plaintiffs purported physical limitations in his decision. Dkt. 27 at 2. As partof this

argument, Plaintiff claims thatMagistrate Judge Buchanan erred by failing to include in her
R&R"a discussion of all the impairments the ALJ found to be severe, including COPD and
painful lower back impairment." Id.

Plaintiff cannot now, for the first time, challenge whether her physical impairments

received proper consideration by the ALJ. The Fourth Circuit has held that a party may not assert

entirely new issues for the first time inobjections to a magistrate judge's recommendation. See

Samples v. Ballard, 860 F.3d 266,273 (4th Cir. 2017). In Samples, the Fourth Circuit elaborated
on its decision in United States v. George, 971 F.2d 1113 (4th Cir. 1992). The court in George

held that "as part of [a district court's] obligation to determine de novo any issue towhich proper

objection is made, a district court is required to consider all arguments directed to that issue,
regardless ofwhether they were raised before the magistrate." George, 971 F.2d at 1118. In

Samples, the Fourth Circuit explained that '"'"George envisions ahierarchical scheme, wherein a
legal case is divided into issues, and issues are further subdivided into arguments'' Samples, 860
F.3d at 272. The Court further definedthe issues as the "asserted grounds for relief," and the

arguments as "whatever position istaken insupport oforagainst each asserted ground for
relief" Id. at 273.

Following this scheme, the relevant "issue" thatPlaintiff asserted before Magistrate

Judge Buchanan was the ALJ's purported failure to properly consider Plaintiff's mental
impairments. Plaintiffherselfacknowledges that her appeal was focused on the ALJ's treatment
of the evidence of Plaintiff s mental impairments. See Dkt. 27 at 2. Her memorandum in support

of her Motion for Summary Judgment only challenged Defendant's decision based on Plaintiffs

mental impairments.' See Dkt. 15 at 2, 5 ("[Plaintiff] has a number of impairments including
high blood pressure, chronic obstructive pulmonary disease, sleep apnea, andarthritis. Of
paramount importance, however, [Plaintiff] has suffered from mental impairments since early
childhood ... The overwhelming medical evidence of record shows [Plaintiff] to be suffering
from severe and disabling mentalimpairments.") (emphasis added). Although Plaintiffis entitled
in her objection to raise new arguments related to the whether the ALJ properly considered her
' This is true despite the factthat the header of Plaintiff's Issue I is broadly phrased as "Whether Defendant erredby
failing to support his decision by substantial evidence." See Dkt. 15at 1.The argument beneath that headeris
limited to a discussion of the ALJ's consideration of mental impairments. See id. at 5.
2

mental impairments, she cannot now raise the new issue ofwhether the ALJ properly considered
her physical impairments.^
Inhersecond assignment of error. Plaintiff claims thatMagistrate Judge Buchanan

incorrectly referred to certain physicians as Plaintiffs "other doctors," when infact these

physicians were "consultative examiners who did not have a longitudinal history oftreatment of
[Plaintiff] and thus [were] not as familiar with the severity of [Plaintiffs] impairments as Dr.
Wilson." Dkt. 27 at 2-3. Although the argument is not entirely clear (and Plamtiffdoes not

provide a cite for the objectionable statement). Plaintiff seems to suggest that Magistrate Judge
Buchanan erroneously believes that theconsulting medical experts were Plaintiffs treating

physicians, thereby skewing the review oftheALJ'sdecision. However, a review of the R&R
makes clear that Magistrate Judge Buchanan distinguished between Dr. Wilson as Plaintiffs
treating physician and otherphysicians as consultants. See Dkt. 25 at 8; 11; 14; 18-19; 25.
Plaintiffs unsupported contention to the contrary is meritless.

Third, Plaintiff reasserts an argument made in her appeal, alleging that the ALJ's

hypothetical question to the vocational expert("VE") failed to properly approximate an
individual with impairments and limitations similarto Plaintiffs, and that Plaintiffs

representative was "cut off at the hearing by the ALJ. See Dkt. 21 at 3; Dkt. 15 at 6-7. Because
"a mere restatement of the arguments raised in the summary judgmentfilings does not constitute
an 'objection' for the purposes of districtcourt review," Plaintiffs third argument fails. Nichols

^Additionally, permitting Plaintiffto raise the new issue of theALJ'sconsideration of herpurported physical
impairments would leadto inequitable results. Defendant reliedon this limitation in her memorandum supporting
her Motion for Summary Judgment and opposing Plaintiffs. See Dkt. 22 at 3 n.3. Plaintiffs Opposition to
Defendant's motiondid not object to Defendant's characterization of the limitedscope of review, nor did it
reference physical impairments. See Dkt. 23. Magistrate Judge Buchananalso relied on this limitation in her R&R.
See Dkt. 25 at 7 n.3 ("Because Plaintiff limited her arguments on appeal to issues relating to her mental
impairments, the relevant medical evidence will be limited to evidence pertaining to Plaintiff's mental
impairments.").

V. Co/v/w, 100 F. Supp. 3d 487,497 (E.D. Va. 2015) (noting thatthe purpose of magistrate
review is to conserve judicial resources).

Therefore, upon review of the record and for good cause shown, the Court hereby
APPROVES AND ADOPTS IN FULL Magistrate Judge Buchanan's R&R (Dkt. 25).
It is SO ORDERED.

Januar\^3> 2018

Alexandria, Virginia

LiamO'(

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United States District Judge