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Thompson v. Berryhill

United States District Court, D. New Mexico

June 28, 2018

TODD JOSEPH THOMPSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER is before the Court on Plaintiff's Objections [ECF No. 24] to the Magistrate Judge's “Proposed Findings and Recommended Disposition” (“PFRD”) [ECF No. 23] on Plaintiff's “Motion to Reverse Commissioner's Administrative Decision and Remand Claim” [ECF No. 14] and “Brief in Support of the Motion to Reverse and Remand” (collectively, “Motion”).[1] ECF No. 15. After de novo review of the record in this case, the Court overrules the objections, adopts the PFRD, and denies Plaintiff's Motion.

         I. BACKGROUND

         On August 2, 2017, Plaintiff filed a motion to reverse the Social Security Administration's (“SSA's”) decision denying his application for disability insurance benefits. ECF No. 14. Plaintiff alleged that his disability began on January 6, 2012, due to post traumatic stress disorder (“PTSD”), spinal injuries, sciatica, complications from knee replacement, and sleep apnea. AR 183. On May 29, 2018, Magistrate Judge Gregory J. Fouratt issued his PFRD, recommending that Plaintiff's Motion be denied and the SSA's decision be affirmed. ECF No. 23. On June 11, 2018, Plaintiff filed objections to Judge Fouratt's PFRD. ECF No. 24. The Commissioner responded to the objections on June 18, 2018. ECF No. 25.

         II. STANDARD OF REVIEW

         After a party objects to a magistrate judge's proposed findings and recommendations, the Court “shall make a de novo determination of those portions . . . to which objection is made.” 28 U.S.C. § 636(b). Objections must be made with specificity; general or conclusory objections are insufficient. See United States v. 2121 E. 30th St., 73 F.3d 1057, 1060-61 (10th Cir. 1996) (“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.”). “[A]n objection must be sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute[.]” Id. at 1060. “Issues 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).

         III. ANALYSIS

         Plaintiff's objections to the PFRD are two-fold. First, he argues that the SSA's Appeals Council erred by failing to explain why it did not find the U.S. Department of Veterans Affairs' (“VA's”) determination that Thompson was unemployable persuasive and failed to explain what if any weight was assigned to the VA decision. See Pl.'s Objs. 1-4, ECF No. 24. Additionally, he contends that the VA's unemployability determination should not have been weighed by Judge Fouratt alongside the administrative law judge's (“ALJ's”) decision as part of a substantial evidence review, but rather should have been remanded to the ALJ for findings of fact. See Id. 4-5.

         The Commissioner responds that “Plaintiff's Objection[s] largely reiterate[ ] - in some places almost verbatim - the unpersuasive arguments from his opening brief.” Def.'s Resp. 1, ECF No. 25. As to Plaintiff's first objection, the Commissioner explains that “Judge Fouratt thoroughly and persuasively explained in his [PFRD] that ‘neither regulations nor precedent require[d] the Appeals Council to do anything more than consider Plaintiff's VA disability rating,' which it did.” Id. at 2 (quoting PFRD 18). And to Plaintiff's second objection, she directs this Court to the Martinez and Vallejo cases to reinforce that Judge Fouratt “correctly applied agency policy and Tenth Circuit case law” during his substantial evidence review of the ALJ's decision. Id. at 3-4 (citing Vallejo v. Berryhill, 849 F.3d 951 (10th Cir. 2017); Martinez v. Barnhart, 444 F.3d 1201 (10th Cir. 2006)). The Commissioner closes by declaring that “Plaintiff's objections largely retread his unpersuasive arguments from his opening brief and should be rejected.” Id. at 4.

         A. Plaintiff's First Objection Is Foreclosed

         The Commissioner fittingly detects the familiarity of Plaintiff's first objection. See Id. at 1. In truth, the objection reasserts the argument made before Judge Fouratt. Compare Pl.'s Mot. 8-12, ECF No. 15 with Pl.'s Objs. 1-4. As such, the objection neither identifies weaknesses in Judge Fouratt's reasoning, nor does it provide any authority or persuasive argument that would allow this Court to ignore controlling Tenth Circuit precedent. This the Court cannot do, just as it cannot overlook the sound reasoning and ultimate conclusions set forth in Judge Fouratt's PFRD.

         Judge Fouratt's PFRD examined in detail the regulations and administrative rulings that govern the review of additional evidence by the Appeals Council. See PFRD 15-16. To summarize, where the Appeals Council accepts new evidence into the record - as it did here - it “shall consider the additional evidence” and “evaluate the entire record.” 20 C.F.R. § 404.970(b) (2016). Nevertheless, the Appeals Council will only grant review “if it finds that the [ALJ's] action, findings, or conclusion is contrary to the weight of the evidence currently of record.” Id. And, in those instances where the Appeals Council is called upon to review another agency's disability determination (including the VA), the pre-March 2017 text of Social Security Ruling (“SSR”) 06-03 required that the Appeals Council consider, rather than ignore, the other agency's decision. See PFRD 16 (citing SSR 06-03p, 2006 WL 2329939 at *6 (Aug. 9, 2006), rescinded Mar. 27, 2017 (“evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered”)).

         Judge Fouratt's PFRD also devoted significant effort to examining the precedential cases of Martinez and Vallejo, see PFRD 16-18, which he correctly observed “eviscerate Plaintiff's argument.” Id. at 18. The PFRD concluded, in relevant part:

Neither regulations nor precedent required the Appeals Council to do anything more than consider Plaintiff's VA disability rating. See Martinez, 444 F.3d at 1207-08; Vallejo, 849 F.3d at 955-56. The Appeals Council did so, and it declined review. Because it declined review, no express analysis was required, see Vallejo, 849 F.3d at 956, and none was given.

Id. Nothing in Plaintiff's first objection contravenes Judge Fouratt's rationale. To the contrary, this objection's attempts to distinguish Vallejo and Martinez but in reality Plaintiff is rearguing the same argument made unsuccessfully before Judge Fouratt. Compare Pl.'s Objs. 2-4 with Pl.'s Mot. 8-12. Here, Plaintiff again urges this Court to impose upon the Appeals Council a duty of express evaluation in those instances where it declines review, in spite of two published and precedential rulings from the Tenth Circuit that unequivocally recognize that no such duty exists. Plaintiff's first objection is foreclosed by controlling Tenth Circuit case law, and Judge Fouratt detailed precisely why that is so. ...


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