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 30, 2019, the report of the Magistrate Judge
(Dkt. #18) 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. #19), and
Defendant’s Response (Dkt. #21), 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)
argues that the Magistrate Judge erred in finding that the
ALJ properly (1) considered the functional limitations of
psychological consultative examiner, Dr. Levi Armstrong
(“Dr. Armstrong”); and (2) determined that
Plaintiff can perform other work in the national economy
(Dkt. #19 at p. 5).
of Dr. Armstrong
first objects that, although the Magistrate Judge
acknowledged the findings of Dr. Armstrong, she failed to
note their significance and the conflict between Dr.
Armstrong’s findings and the opinion of State Agency
Medical Consultant (“SAMC”) Dr. James B. Murphy,
Ph.D. (“Dr. Murphy”) (Dkt. #19 at pp. 3–4).
Dr. Armstrong completed a consultative examination of
Plaintiff on November 24, 2015 (TR pp. 375–83), and
opined as to Plaintiff’s functional limitations:
[Plaintiff’s] variable memory abilities and processing
speed impairment may interfere with his ability to
sustain attention for extended periods of time, as well as
learn, remember, and carry out instructions. He appears to
have more neurobehavioral impairment, possibly pseudobulbar
affect and executive dysfunction. These deficits may
interfere with his ability to tolerate the normal
pressures of competitive work environments. He may also
be exhibiting dysautonomia secondary to his stroke,
which may interfere with his ability to consistently
tolerate stress or certain physical work environments.
However, this should be confirmed by a physician. He
does not appear to have any significant communication
deficits. He appears fully capable of managing his own
finances. Physical capacity is deferred to medical judgment.
(TR p. 381) (emphasis added). Dr. Armstrong did not opine on
or otherwise determine the applicability of any specific
functional limitations, finding only that Plaintiff’s
impairments may interfere with his functioning (TR p. 381).
Thereafter, on December 28, 2015, Dr. Murphy reviewed
Plaintiff’s medical records-including the examination
of Dr. Armstrong-in assisting in the reconsideration-level
agency determination of Plaintiff’s mental conditions
and functional limitations (TR pp. 82–84). Importantly,
Dr. Murphy concluded that Plaintiff “can understand,
remember, and carry out only simple instructions, make simple
decisions, attend and concentrate for extended periods,
interact adequately with co-workers and supervisors, and
respond appropriately to changes in routine work
setting” (TR p. 84).
Plaintiff posits that a conflict exists between the findings
of Dr. Armstrong and Dr. Murphy. In support of such argument,
Plaintiff avers that the hypotheticals posed to the
Vocational Expert (“VE”) illustrate the conflict
between Dr. Armstrong and Dr. Murphy because a hypothetical
posed by Plaintiff’s counsel on cross examination,
which included portions of the language from Dr.
Armstrong’s opinion, yielded a response that no jobs
could be performed in the national economy (Dkt. #19 at p. 4;
TR pp. 60–61). Plaintiff’s argument is flawed. To
reiterate, contrary to Plaintiff’s repeated assertions,
Dr. Armstrong made no definitive conclusions as to
Plaintiff’s functional limitations; instead Dr.
Armstrong indicated that Plaintiff’s deficits
“may interfere” with the mental demands of
competitive employment (TR p. 381). Moreover, the
hypotheticals posed by Plaintiff’s counsel presuppose
Dr. Armstrong’s limitations will interfere
with Plaintiff’s abilities, rather than potentially
interfere, as the VE was instructed to assume “if we
have an individual who has the following circumstances”
and/or “has deficits which interfere” (TR 61).
Plaintiff attempts to interpret Dr. Armstrong’s
findings into specific vocational limitations; but Dr.
Armstrong fell short of doing so. As explained in the report:
Although Plaintiff perceives a conflict between Dr.
Murphy’s findings and Dr. Armstrong’s findings,
it is clear the ALJ expressly did not consider such opinions
to be in conflict…. Rather than showing a significant
conflict between Dr. Murphy and Dr. Armstrong, the ALJ
indicates that he considered both opinions and found such
determinations to be consistent and/or support Dr.
(Dkt. #18 at pp. 15–16) (internal quotations and
citations omitted). Plaintiff’s objection is overruled.
of Jobs in the National Economy Consistent ...