United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
C. GUADERRAMA UNITED STATES DISTRICT JUDGE.
before the Court is United States Magistrate Judge Leon
Schydlower's "Report and Recommendation of the
Magistrate Judge" (ECF No. 17) ("R&R")
issued. Therein, Judge Schydlower recommends that the
decision of the Commissioner of the Social Security
Administration ("Commissioner") be affirmed.
Plaintiff Teresa Margaret Geske Garcia filed her
"Objections to Magistrate Judge's Report and
Recommendations" (ECF No. 18) ("Objections to the
R&R"), wherein she objects to Judge Schydlower's
findings and recommendation.
conducting an independent (de novo) review of the
record and having considered the Administrative Law
Judge's ("ALJ") decision, Judge
Schydlower's R&R, Garcia's objections thereto,
the Court, for the reasons that follow, OVERRULES
Garcia's objections and ACCEPTS Judge Schydlower's
December 2013, Garcia applied for disability insurance
benefits under Title II of the Social Security Act, alleging
disability since October 31, 2013, because of rheumatoid
arthritis, knee problems, pulmonary problems, stomach
problems, high blood pressure, and depression. After the
Commissioner denied her initial application and then her
request for reconsideration, the ALJ held a hearing in
January 2016. The ALJ heard testimony from Garcia, who
appeared with a non-attorney representative, a vocational
expert (Ms. Nicole B. King) and a medical expert (Sharon L.
Rogers, Ph.D.). In an opinion dated January 26, 2016, the
ALJ determined that Garcia was not disabled within the
meaning of the Social Security Act. The Appeals Council denied
her request for review, rendering the ALJ's decision the
final decision of the Commissioner.
13, 2016, pursuant to 42 U.S.C. § 405(g), Garcia brought
this lawsuit, seeking judicial review of the
Commissioner's decision. Pursuant to 28 U.S.C. § 636,
and Appendix C to the Local Court Rules of the Western
District or Texas, the Court referred the case to Judge
Schydlower for findings and recommendations. Before Judge
Schydlower, Garcia argued that the ALJ's decision should
be reversed and remanded because it is not supported by
substantial evidence and is contrary to law. The Commissioner
submitted a responsive brief. Judge Schydlower conducted a
telephonic hearing on November 8, 2016, and issued his
R&R on March 7, 2017. Garcia timely filed her objections
to the R&R. See Objs. to R&R, ECF No. 18.
Objections to Magistrates Report and Recommendation
is entitled to "a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made." 28
U.S.C. § 636(b)(1)(C); See also Longmire v.
Guste, 921 F.2d 620, 624 (5th Cir. 1991) ("Longmire
filed written objections to the magistrate's report and
was entitled to a de novo review by an Article III judge as
to those issues to which an objection is made.");
Fed.R.Civ.P. 72(b) ("The district judge must determine
de novo any part of the magistrate judge's
disposition that has been properly objected to.").
"Litigants may not, however, use the magistrate judge as
a mere sounding-board." Freeman v. Cty. of
Bexar, 142 F.3d 848, 852 (5th Cir. 1998).
objecting party must specifically identify the findings or
recommendations it wants the Court to consider. See
28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2). The
Court will not consider "frivolous, conclusive, or
general objections." Battle v. U.S. Parole
Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (per
curiam) (quoting Nettles v. Wainwright, 611
F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on
other grounds by Douglass v. United Servs. Auto.
Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc),
superseded by statute on other grounds, 28 U.S.C. §
636(b)(1)); see also Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995) ("[A] general objection to a
magistrate's report, which fails to specify the issues of
contention, does not satisfy the requirement that an
objection be filed. The objections must be clear enough to
enable the district court to discern those issues that are
dispositive and contentious.").
Judicial Review of the ALJ's Decision
review of the Commissioner's decision to deny benefits is
limited to two inquires: (1) whether the Commissioner used
the proper legal standards to evaluate the evidence and (2)
whether the decision is supported by substantial evidence.
Master son v. Barnhart, 309 F.3d 267, 272 (5th Cir.
2002); 42 U.S.C. § 405(g). "The Commissioner's
decision is granted great deference." Leggett v.
Chater, 61 F.3d 558, 564 (5th Cir. 1995). The Court
"must affirm the Commissioner's determination unless
[it] finds that 1) the ALJ applied an incorrect legal
standard, or 2) that the ALJ's determination is not
supported by substantial evidence." Boyd v.
Apfel, 239 F.3d 698, 704 (5th Cir. 2001); see also
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995)
(per curiam) ("If the Commissioner's
findings are supported by substantial evidence, then the
findings are conclusive and the Commissioner's decision
must be affirmed.").
evidence is 'such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'"
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.
1994) (quoting Richardson v. Perales, 402 U.S. 389,
401 (1971)). "'It is more than a mere scintilla and
less than a preponderance.'" Boyd, 239 F.3d
at704 (quoting Harris v. Apfel, 209 F.3d 413, 417
(5th Cir.2000)). The court must scrutinize the record to
determine whether such evidence is present, but it may
"not reweigh the evidence in the record, try the issues
de novo, or substitute its judgment for the
Commissioner's, even if the evidence weighs against the
Commissioner's decision." Newton v. Apfel,
209 F.3d 448, 452 (5th Cir. 2000) (citations omitted);
see also Arkansas v. Oklahoma, 503 U.S. 91, 113
(1992) ("A court reviewing an agency's adjudicative
action... should not supplant the agency's findings
merely by identifying alternative findings that could be
supported by substantial evidence." (citations
omitted)). A finding of no substantial evidence is
appropriate only "where there is a conspicuous absence
of credible choices or no contrary medical evidence."
Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.
1988) (per curiam) (internal quotation marks and
Garcia's Objections to the R&R
raises three objections to the R&R: the magistrate erred
in his findings that (1) the ALJ properly considered all the
Remicade Infusion side effects, Objs. to R&R at 1; (2)
the ALJ properly evaluated Dr. Karen Smith's opinions,
id. at 3; and (3) substantial evidence supports the
ALJ's determination about the vocational expert's
testimony, id at 4. The Court addresses each in
Court's Evaluation of Garcia's Objections
Side Effects of Remicade Infusion
Garcia generally objects that Judge Schydlower erred in
finding that ALJ properly considered the Remicade Infusion
side effects, she specifically objects on the ground that
"[t]he ALJ failed to consider Plaintiffs testimony at
the hearing that showed that after every infusion the
claimant slept for about 48 hours and bedridden for about 1
week." Id. at 2 (citing R.at51).
noted that testimony and a related testimony in his decision,
R. at 16 ("Claimant stated she receives Remicade
infusions from the Oncology clinic prescribed by Dr. Smith
every four weeks. Claimant stated that after an infusion she
sleeps 48 hours and she is in bed for a week."), but
concluded that her testimony was "not entirely credible
for the reasons explained in this decision, "
id. Judge Schydlower scrutinized the ALJ's
reasoning for that conclusion and the evidence the ALJ cited
in support thereof, and cited other record evidence that
further supports the ALJ's conclusion. R&R at 4-5.
Judge Schydlower then concluded that ...