United States District Court, D. New Mexico
ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
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
“Motion”). 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
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.
STANDARD OF REVIEW
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).
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.
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.
Plaintiff's First Objection Is Foreclosed
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.
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”)).
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. ...