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Garcia v. Colvin

United States District Court, W.D. Texas, El Paso Division

April 28, 2017

CAROLYN W COLVIN, Commissioner of the Social Security Administration, Defendant



         Presently 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.

         Upon 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 R&R.

         I. BACKGROUND

         In 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.[1] After the Commissioner denied her initial application and then her request for reconsideration, the ALJ held a hearing in January 2016.[2] 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.).[3] In an opinion dated January 26, 2016, the ALJ determined that Garcia was not disabled within the meaning of the Social Security Act.[4] The Appeals Council denied her request for review, rendering the ALJ's decision the final decision of the Commissioner.[5]

         On May 13, 2016, pursuant to 42 U.S.C. § 405(g), Garcia brought this lawsuit, seeking judicial review of the Commissioner's decision.[6] 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.[7] 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.[8] The Commissioner submitted a responsive brief.[9] 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.

         II. STANDARDS

         A. Objections to Magistrates Report and Recommendation

         A party 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).

         The 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.").

         B. Judicial Review of the ALJ's Decision

         Judicial 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.").

         "Substantial 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 citation omitted).


         A. Garcia's Objections to the R&R

         Garcia 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 turn.

         B. The Court's Evaluation of Garcia's Objections

         I. Side Effects of Remicade Infusion

         Although 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).

         The ALJ 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 ...

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