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Edwards v. Commissioner, SSA

United States District Court, E.D. Texas, Sherman Division

September 20, 2019

WESLEY EDWARDS
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 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.

         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 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).

         Findings of Dr. Armstrong

         Plaintiff 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).

         Notwithstanding, 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. Murphy’s conclusion.

(Dkt. #18 at pp. 15–16) (internal quotations and citations omitted). Plaintiff’s objection is overruled.

         Identification of Jobs in the National Economy Consistent ...


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