United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
L. MAZZANT, UNITED STATES DISTRICT JUDGE.
for consideration the report of the United States Magistrate
Judge in this action, this matter having been heretofore
referred to the Magistrate Judge pursuant to 28 U.S.C. §
636. On August 7, 2019, the report of the Magistrate Judge
(Dkt. #15) was entered containing proposed findings of fact
and recommendations that the final decision of the
Commissioner of Social Security Administration be affirmed.
Having received the report of the Magistrate Judge, having
considered Plaintiff’s Objections (Dkt. #16), and
Defendant’s Response (Dkt. #19), and having conducted a
de novo review, the Court is of the opinion that the
Magistrate Judge’s report should be adopted.
TO REPORT AND RECOMMENDATION
who files timely written objections to a magistrate
judge’s report and recommendation is entitled to a de
novo review of those findings or recommendations to which the
party specifically objects. 28 U.S.C. § 636(b)(1)(C);
Fed.R.Civ.P. 72(b)(2)-(3). Objections to a report must
specifically identify portions of the report and the basis
for those objections. Fed.R.Civ.P. 72(b); see also Battle
v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir.
1987) (explaining that if the party fails to properly object
because the objections lack the requisite specificity, then
de novo review by the court is not required.). In other
words, a party objecting to a magistrate judge’s report
must specifically identify those findings to which he or she
objects. Moreover, the District Court need not consider
frivolous, conclusory, or general objections. Nettles v.
Wainwright, 677 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)
broadly argues that the Magistrate Judge erred in analyzing
the arguments related to Plaintiff’s mental impairments
and in rejecting Plaintiff’s challenge to the
Dictionary of Occupational Titles
(“DOT”). The Court considers Plaintiff’s
specific assertions as to these general arguments in turn.
Paragraph B Criteria
first objects that the paragraph B criteria were revised in,
2016, with an effective date of January 17, 2017, and thus at
the State Agency level, there was no medical evaluation of
Plaintiff’s functional limitations pursuant to the
revised criteria (Dkt. #16 at p. 3). Plaintiff further
alleges it is clear the Magistrate Judge did not address her
concerns regarding the paragraph B criteria, as the
Magistrate Judge incorrectly referenced in the report the
categorizations of the four broad functional areas used prior
to the effective date (Dkt. #16 at p. 3). Plaintiff is
correct the Magistrate Judge in one instance referenced the
prior categories (but further cited 20 C.F.R. §
404.1520a(c)(3) which identifies the current four broad
functional areas); however, notwithstanding, Plaintiff
ignores that the ALJ used the proper standard that was in
effect at the time of the ALJ’s decision. See Young
v. Berryhill, 689 Fed.Appx. 819, 821, n.3 (5th Cir.
2017) (indicating that the regulations that applied at the
time of the ALJ’s determination control). Moreover, the
Magistrate Judge specifically addressed and discussed
Plaintiff’s moderate limitation in her ability to
“understand, remember, and apply information”-one
of the categories effective as of 2017-at length, as such
limitation was the basis for many of Plaintiff’s
arguments in her brief to the Court (Dkt. #15 at pp.
14–21). Additionally, the ALJ clearly employs the
correct paragraph B categories-identifying them each by
name-in his decision (TR pp. 20–21). Thus, to the
extent Plaintiff argues the Magistrate Judge did not address
her concerns regarding the “paragraph B” finding
or that the ALJ did not properly evaluate Plaintiff’s
functional limitations using the correct criteria, such
objection is overruled.
to the VE-Fair Ability
relates to the hypothetical presented to the VE, Plaintiff
again objects to the use of the term “fair
ability” (Dkt. # 16 at pp. 3–4). The ALJ’s
hypothetical to the VE did not merely ask the VE to evaluate
a “fair ability, ” instead the ALJ’s
hypothetical requested that the VE consider an individual
at least moderate difficulties, or a fair ability to
function independently, appropriately, effectively, and on a
sustained basis; to understand, remember, and apply
information to concentrate, persist or maintain pace, to
interact with others such that they were limited to
simple, routine tasks both consistent with unskilled
work, with simple instructions learned by rote with few
workplace changes, little judgment required; few work-related
decisions, and simple direct supervision, and no more than
incidental contact with the general public, and occasional
contact with coworkers and supervisors.
(TR p. 98). Plaintiff’s suggestion that the mere use of
the word fair rendered the hypothetical void of any
functional limitations is disingenuous and ignores the
totality of the hypothetical posed. Plaintiff’s
objection is overruled.
or 2 Step Oral Instructions
objects that the ALJ’s assessment of Plaintiff’s
functional limitations is deficient because the ALJ’s
decision does not address Plaintiff’s ability to carry
out one or two step oral instructions, which-as asserted by
Plaintiff-is part of the definition for the category of
understanding, remembering, and applying information (Dkt.
#16 at p. 4). The Commissioner responds that “the
ability to carry out one- or two-step oral instructions is
included as one of the examples in the broad, general
category of understanding, remembering, and applying
information….However, there is no principle that a
moderate limitation affects all of the examples listed in the
description of a broad functional area” (Dkt. #19 at p.
4). The Court agrees with the Commissioner. Nothing in the
regulations indicate ...