Dailey v. Colvin

Filing 17

MEMORANDUM OPINION AND ORDER rejecting Claimant's 15 Objection; adopting the 14 Proposed Findings and Recommendations by Magistrate Judge Aboulhosn in allits respects; granting Defendant's 13 Motion for Judgment on the Pleadings; denying Claimant's 12 Motion for Judgment on the Pleadings; affirming the final decision of the Commissioner; and dismissing the case from the docket. Signed by Judge Robert C. Chambers on 6/22/2017. (cc: counsel of record) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
TIMOTHY EARL DAILEY,
Claimant,
v.

CIVIL ACTION NO. 3:16-10765

NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Claimant’s objections to the Magistrate’s Proposed Findings
and Recommendations (“PF&R”) affirming the Social Security Administration’s decision to deny
Claimant’s application for disability benefits. ECF No. 14. Defendant, the Commissioner of the
Social Security Administration, filed a Response to Claimant’s objections, urging the Court to
adopt the Magistrate’s PF&R. For the following reasons the Court rejects Claimants objection and
ADOPTS the PF&R.
The Plaintiff, Timothy Earl Dailey (“Claimant”), filed his application for disability benefits
on June 18, 2013, alleging a disability since September 15, 2008 due to back and neck issues. His
initial claims were denied on September 5, 2013 and again on reconsideration on November 12,
2013. Claimant requested an administrative hearing and one was held on June 23, 2015. On July
2, 2015, the administrative law judge (“ALJ”) entered a decision finding that Claimant was not
disabled anytime from September 15, 2008 up to the date of the decision. The ALJ’s decision
became final on September 15, 2016, when the Appeals Council denied Claimant’s appeal.

On November 10, 2016, Claimant applied to this Court, seeking judicial review of the
administrative decision. Claimant’s case was referred to the Magistrate. On May 1, 2017, the
Magistrate rendered his decision recommending that this Court affirm the final decision of the
Commissioner of the Social Security Administration. Seemingly unbeknownst to the Magistrate,
on November 15, 2016, Claimant filed a subsequent application for disability benefits based on
the same back and neck issues, albeit with additional medical records. On April 12, 2017,
approximately three weeks before the Magistrate issued his decision, Claimant was awarded
disability benefits. The Social Security Administration determined that Claimant was eligible for
benefits starting in November 2016, sixteen months after his initial claim was denied by the ALJ.
The record before the Court bears no sign that Claimant ever informed the Magistrate of any of
the later medical records produced after Claimant’s request for judicial review or his disability
award.
Claimant now objects to the Magistrate’s recommendation because the later finding that
Claimant has been disabled due to back and neck issues since November 2016 casts doubt on the
ALJ’s decision to reject his first application. Claimant requests a de novo review of the record by
this Court and a reversal and remand to the ALJ to make another determination in light of his
newly awarded benefits.
The Federal Magistrates Act, 28 U.S.C. § 636, defines the relationship between magistrate
judges and district court judges. District court judges “may designate a magistrate judge to conduct
hearings . . . and to submit to a judge of the court proposed findings of fact and recommendations
for the disposition, by a judge of the court, of any [judgment on the pleadings] . . . .” 28 U.S.C.
636(b)(1)(B). If a party objects to a portion of the magistrate’s report and recommendation within
fourteen days, “[a] judge of the court shall make a de novo determination of those portions of the

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report . . . to which objection is made. The judge may also receive further evidence or recommit
the matter to the magistrate judge with instructions.” § 636(b)(1)(C).
The Fourth Circuit interpreted the Magistrates Act to require a district court to consider de
novo “any issue to which proper objection is made . . . regardless of whether [the arguments
supporting the objection] were raised before the magistrate.” United States v. George, 971 F.2d
1113, 1118 (4th Cir. 1992). It grounded its decision on the meaning of “de novo determination” in
the Magistrates Act and a suspicion that a categorical waiver of arguments not raised before the
magistrate may render the district court’s decision vulnerable to constitutional attack. George, 971
F.2d at 1118 (citing United States v. Raddatz, 447 U.S. 667, 683 (1980) (holding that “delegation”
to a magistrate “does not violate Art. III so long as the ultimate decision is made by the district
court” (emphasis added)).
No other Circuit has adopted the Fourth Circuit’s approach, and none share its anxiety over
the constitutional validity of waiver. The First and Tenth Circuits have categorically restricted
district courts from hearing arguments not raised before the magistrate. Paterson-Leitch Co. v.
Mass Mun. Wholesale Elec. Co., 840 F.2d 985, 990–91 (1st Cir. 1988) (finding a party is not
entitled to review of an argument not raised before the magistrate); Marshall v. Chater, 75 F.3d
1421, 1426 (10th Cir. 1996) (same). While the Eleventh, Ninth, Eighth, Sixth, and Fifth Circuits
have endorsed a district judge’s discretionary review of arguments not raised before the magistrate.
United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (finding a district court “is not required
to consider evidence presented for the first time in party’s objection to the magistrate judge’s
recommendation”); Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (finding the district
had the discretion to consider arguments not raised before the magistrate); Madol v. Dan Nelson
Auto Grp., 372 F.3d 997 (8th Cir. 2004) (finding arguments not raised before the magistrate may

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be waived); Murr v. United States, 200 F.3d 895, 902 n. 1 (6th Cir. 2000) (same); Cupit v. Whitley,
28 F.3d 532, 535 n. 5 (5th Cir. 1994) (same). The primary concern of these Circuits is the
preservation of the purpose of the magistrate judge system. The Ninth Circuit aptly observed that
“allowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change
their strategy and present a different theory to the district court would frustrate the purpose of the
Magistrates Act.” Greenhow v. Sec’y of Health and Human Servs., 863 F.2d 633, 638 (9th Cir.
1988).
The Ninth Circuit also noted that the Supreme Court suggested that a district court has no
obligation to consider evidence not presented to the magistrate. Howell, 231 F.3d at 622. In
Raddatz, the same decision on which the Fourth Circuit relies for its holding incidentally, the
Supreme Court explained “in 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 magistrates judge’s proposed findings and recommendations.”
Raddatz, 447 U.S. at 676. The Ninth Circuit interpreted the Supreme Court’s decision, along with
the Magistrates Act,1 to require a district court to make a de novo determination of the portions of
the magistrate’s recommendation that drew an objection, but in making that determination the
district court may exercise discretion to accept new evidence. Howell, 231 F.3d at 622.
Courts in this District have distinguished the Fourth Circuit’s holding in George to apply
only to arguments not made before the magistrate but directed at claims brought before the
magistrate—not to issues never addressed by the magistrate. Boothe v. Ballard, No. 2:14-cv25165, 2016 WL 1275054, at *20 n. 8 (S.D. W. Va. Mar. 31, 2016); Samples v. Ballard, No. 2:14-

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“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) (emphasis added).
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cv-15413, 2016 WL 1271508, at *19 (S.D. W. Va. Mar. 31, 2016) (“In so finding, the Fourth
Circuit did not express any intent to extend its holding to cases . . . where the arguments raised in
the objections went to an issue not before the magistrate judge.” (emphasis in original)). In light
of the unanimity of the Fourth Circuit’s sister circuits, Judge Johnston was skeptical that the Fourth
Circuit intended its holding in George to apply to situations where a party attempts to raise a new
claim in an objection to the magistrate’s recommendation, and accordingly found that George did
not apply to such a case. Samples, 2016 WL 1271508, at *19.
The weight of authority, including the Raddatz decision and the Magistrates Act, counsel
the use of discretion by the district court to consider new claims or new evidence not presented to
the magistrate. A discretionary standard preserves the function and purpose of the magistrate
system. It avoids reducing the magistrate’s role to “a mere dress rehearsal,” Paterson-Leitch Co.,
840 F.2d at 991, and alleviates the constitutional concerns that animated the George decision.
Turning back to the case at hand, Claimant’s objection is not based on any issue raised
before the magistrate. It is what can best be described as a collateral attack on the denial of his first
application for benefits. To support his objection, Claimant presents the Court with new medical
records and raises a new claim that because he was eventually awarded benefits for the same
medical issues, the initial denial of benefits should be revisited. Claimant’s medical records and
new claim could have been presented to the magistrate before he rendered his decision but
Claimant has made no attempt to explain why they were not. The medical records date from
November 2016 and February 2017. The Commission approved Claimant’s subsequent
application for benefits on April 12, 2017. The magistrate did not render his decision until May 1,
2017. Without some explanation for why this issue was not presented to the magistrate for
consideration when it clearly could have been, the Court declines to consider Claimant’s objection.

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Accordingly, the Court REJECTS Claimant’s objection, and ADOPTS the PF&R in all
its respects. Defendant’s Motion for Judgment on the Pleadings is GRANTED. ECF No. 13.
Claimant’s Motion for Judgment on the Pleadings is DENIED. ECF No. 12. The final decision of
the Commissioner is AFFIRMED and the case is DISMISSED from the docket.

ENTER:

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June 22, 2017