Smith v. Commissioner, SSA

          Nowak, Judge.

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE.

         Came on 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.

         OBJECTIONS TO REPORT AND RECOMMENDATION

         A party 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) (en banc).

         Plaintiff 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.

         Revised Paragraph B Criteria

         Plaintiff 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.

         Hypothetical to the VE-Fair Ability

         As it 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 with:

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.

         RFC-1 or 2 Step Oral Instructions

         Plaintiff 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 ...