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Mehaffey v. Berryhill

United States District Court, D. New Mexico

July 25, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         THIS MATTER comes before the Court on U.S. Magistrate Judge Gregory Fouratt's Proposed Findings and Recommended Disposition (“PFRD”) [ECF No. 26] and Plaintiff's Objections [ECF No. 27]. In the PFRD, Judge Fouratt made findings and recommendations on two issues:

(1) May Plaintiff argue, for the first time in her reply brief, that her time as an inspection supervisor does not qualify as past relevant work?
(2) If Plaintiff may advance this argument, does her argument undercut the ALJ's finding that she could return to work as an inspection supervisor as that position is generally performed in the national economy?

See PFRD 9-10.

         Judge Fouratt recommended that this Court answer both of the above in the negative. Plaintiff objects. Nevertheless, Plaintiff's Objections fail to convince this Court that the magistrate judge's recommendations are erroneous. At the outset, Plaintiff has yet to demonstrate why this Court should abandon the general rule of waiver. Even if this Court could be convinced to ignore the rule, it finds no error in Judge Fouratt's findings or recommendation regarding Plaintiff's past relevant work. For the following reasons, and having conducted a de novo review, the Court hereby overrules Plaintiff's Objections and adopts the PFRD.


         When a party files timely written objections to a magistrate judge's recommendation, the district court generally will conduct a de novo review and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(C); see also Fed. R. Civ. P. 72(b)(3). However, to preserve an issue for review, “a party's objections to the magistrate judge's report and recommendation must be both timely and specific.” United States v. One Parcel of Real Prop., With Buildings, Appurtenances, Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996) (“One Parcel”).

         Where a party files timely and specific objections to a 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). The Tenth Circuit has stated that a de novo determination pursuant to § 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 has noted that, although a district court must make a de novo determination of the objected to recommendations under § 636(b)(1), the district court is not precluded from relying on the magistrate judge's proposed findings and recommendations. 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)); Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42 of Stephens Cnty., Okla., 8 F.3d 722, 724-25 (10th Cir. 1993) (holding that as part of a de novo determination, “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); Raddatz, 447 U.S. at 676) (emphasis omitted).


         Plaintiff filed an application for Disability Insurance Benefits and Supplemental Security Income on August 6, 2012. Pl.'s “Motion to Reverse and Remand for a Rehearing with Supporting Memorandum” (“Motion”) 3, ECF No. 18. Plaintiff claimed disability beginning on February 1, 2006, based on emphysema, esophageal spasms, osteoporosis, and high blood pressure. AR 228. The Social Security Administration (“SSA”) denied Plaintiff's application initially on March 19, 2013, and upon reconsideration on September 13, 2013. AR 75, 76. At her request, Plaintiff received a de novo hearing before Administrative Law Judge (“ALJ”) Eric Weiss on May 13, 2015. AR 37-74. On June 5, 2015, the ALJ issued his decision, finding that Plaintiff was not disabled within the meaning of the Social Security Act (“the Act”). AR 18-29. The Social Security Administration's (“SSA's”) Appeals Council declined review on December 4, 2015. AR 1-3. Consequently, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. § 422.210(a) (2016). Plaintiff timely filed her appeal to the U.S. District Court on February 3, 2016. ECF No. 1.

         On April 25, 2017, Magistrate Judge Fouratt issued his PFRD, recommending that this Court deny Plaintiff's Motion on two grounds: first, because Plaintiff waived the only contested issue in this case by failing to raise it until her reply brief [PFRD 10-11, ECF No. 26], and secondly, because “Plaintiff's ability to return to her past relevant work as an inspection supervisor mandates a finding of nondisability.” Id. at 11-14. Plaintiff timely filed her Objections on May 9, 2017, requesting “that the recommended findings be rejected and/or modified, in whole or in part . . . and that this case be remanded for further proceedings.” Pl.'s Objs. 6, ECF No. 27. First, Plaintiff argues that the general waiver rule is not absolute, and that “departure from the general rule will not offend the policies that underlie the rule: fairness and judicial economy.” Id. at 3. She also challenges Judge Fouratt's recommendation on the merits, arguing that Plaintiff's work as an inspection supervisor was actually a composite job, and therefore, “the ALJ could not have relied on the DOT[1] to determine that [Plaintiff] could perform past work as ‘ordinarily required by employers throughout the national economy.'” Id. at 5 (citing SSR 82-61, 1982 WL 31387, at *2 (Jan. 1, 1982)). In fact, she contends that “as a matter of law, none of the past relevant job tests apply in [Plaintiff's] case.” Id.


         A. Standard of Review

         When the Appeals Council denies a claimant's request for review, the ALJ's decision becomes the final decision of the agency.[2] The Court's review of that final agency decision is both factual and legal. See Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (citing Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992)) (“The standard of review in a social security appeal is whether the correct legal standards were applied and whether the decision is supported by substantial evidence.”)

         The factual findings at the administrative level are conclusive “if supported by substantial evidence.” 42 U.S.C. § 405(g) (2012). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004); Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). An ALJ's decision “is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214. Substantial evidence does not, however, require a preponderance of the evidence. U.S. Cellular Tel. of Greater Tulsa, L.L.C. v. City of Broken Arrow, Okla., 340 F.3d 1122, ...

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