Younce v. Barnhart , 98 F. App'x 305 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS April 28, 2004
FIFTH CIRCUIT
_______________________ Charles R. Fulbruge III
Clerk
No. 03-30650
Summary Calendar
_______________________
HAROLD YOUNCE,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
______________________________________________________________________________
Appeal from United States District Court
for the Eastern District of Louisiana
USDC No. 02-CV-806-C
______________________________________________________________________________
Before JOLLY, WIENER, and PICKERING, Circuit Judges.
PER CURIAM:*
Harold Younce appeals from the decision of the district
court affirming the Commission of Social Security’s denial of
benefits. Younce contends that the district court erred by
considering the Commissioner’s untimely objections to the
magistrate’s report and recommendation. He argues, for the first
time on appeal, that his case should be remanded for the
Commissioner to consider evidence not contained in the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
administrative record. He argues that the Administrative Law
Judge (ALJ) failed to give due weight to his subjective
complaints of pain and that the ALJ improperly relied on the
testimony of the vocational expert (VE) at the administrative
hearing on Younce’s claim.
Younce argues that the district court erred by considering
the Commissioner’s objections to the magistrate’s report and
recommendation because those objections were filed untimely by
two days. This argument underestimates the plenary nature of a
district court’s supervisory authority over its magistrate
judges. While it is true that section 101 of the Federal
Magistrates Act, 28 U.S.C. § 636, does not require the judge to
review an issue de novo when no objections are filed, “it does
not preclude further review by the district judge, sua sponte, or
at the request of a party, under a de novo or any other
standard.” See Thomas v. Arn, 474 U.S. 140, 154 (1985); see also
Delgado v. Bowen, 782 F.2d 79 (7th Cir. 1985); WRIGHT, MILLER &
MARCUS, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 3070.1. Thus, the
district court was free to reject the magistrate’s report and
recommendation in absence of the filing of objections. Younce
therefore has no basis to complain of the district court’s
rejection of the report and recommendation even though objections
were untimely by two days. Moreover, if Younce felt aggrieved by
the district court’s acceptance of objections filed two days
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late, his proper course was to file a motion to strike, a motion
for an extension of time to file a counter written objection, or
a motion for reconsideration.
Younce argues that his case should be remanded for
consideration of new evidence under 42 U.S.C. §405(g). However,
Younce did not argue in the district court that his case should
be remanded for consideration of new evidence. This court should
not consider a contention raised for the first time on appeal.
See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th
Cir. 1999).
The ALJ sufficiently articulated his reasons for not fully
crediting Younce’s subjective complaints of pain, see Falco v.
Shalala, 27 F.3d 160, 163-64 (5th Cir. 1994), and the ALJ’s
determination is supported by substantial evidence in the record.
See Richardson v. Perales, 402 U.S. 389, 390 (1971); Harper v.
Sullivan, 887 F.2d 92, 96 (5th Cir. 1989). Finally, the weight
given to the VE’s testimony was a matter left to the ALJ. This
court will not reweigh the evidence. See Anthony v. Sullivan,
954 F.2d 289, 295 (5th Cir. 1992).
For the above reasons, the decision of the district court is
AFFIRMED.
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