Opinion
Civil Action No. SA-04-CA-0104 FB (NN).
February 10, 2005
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Fred Biery United States District Judge
I. Introduction
Plaintiff Elizabeth Reyna seeks review and reversal of the administrative denial of her application for Supplemental Security Income ("SSI") by the Administrative Law Judge ("ALJ") on September 18, 2003. Plaintiff contends that ALJ Karen McCoy's conclusion that plaintiff retained the residual functional capacity ("RFC") to perform her past work is not supported by the substantial evidence of the record. For this reason, plaintiff requests that the court remand the case for proper development.After considering plaintiff's complaint and brief in support thereof, defendant's brief in support of the Commissioner's decision, the transcript of the Social Security Administration (hereinafter "SSA") proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiff's request for relief be DENIED.
Docket Entries 1, 10.
Docket Entry 17.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. § 1383.
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted her administrative remedies prior to filing this action in federal court. Plaintiff filed an application for SSI on June 7, 2001. The SSA denied plaintiff's application both initially, on September 25, 2001, and on reconsideration, January 15, 2002.
Transcript, at 14, 15, 72-76.
Transcript, at 49-54.
Transcript, at 57-59.
On March 15, 2002, plaintiff requested a hearing before an ALJ. The hearing was held on April 1, 2003. Plaintiff was represented by a non-attorney representative at the hearing. Plaintiff's representative was able to examine and question plaintiff and the vocational expert, Dr. Patricia Collins, Ph.D., during the hearing.
Transcript, at 60.
Transcript, at 24-53.
At the administrative hearing, plaintiff testified that she had a ninth grade education and a GED. Plaintiff told the ALJ that she was married and had four children, then-aged twenty, sixteen, eleven and eleven months. Plaintiff stated that she lived with her husband, her children, her daughter-in-law and her grandchild, then-aged three. Plaintiff testified that she had past work experience as a teacher's aide and that the majority of her work experience was in childcare.
Transcript, at 27, 28.
Transcript, at 29.
Transcript, at 29.
Transcript, at 30, 31.
When asked why she was unable to work, plaintiff told the ALJ that her anxiety and depression prevented her from working. Plaintiff testified that she had been under the care of psychiatrist Hugo Hernandez since January 2001. Plaintiff told the ALJ that she saw Dr. Hernandez once every two months. At the time of the hearing, plaintiff had also begun seeing Gloria de Heina, a therapist. Plaintiff further testified that she took Zoloft and Atavan for her depression and anxiety. She stated that she had tremors and insomnia as side effects from the Zoloft.
Transcript, at 33.
Transcript, at 33.
Transcript, at 33.
Transcript, at 35-36.
Transcript, at 34.
Transcript, at 34.
When asked about her ability to perform housework and routine activities, plaintiff stated that she was able to do the dishes, sweep, make up the beds, cook once daily, and do the grocery shopping. However, plaintiff testified that she received assistance with some of the housework from members of her family. Plaintiff also stated that she exercised by walking in a nearby park approximately thirty minutes per day. Plaintiff further told the ALJ that she went to Church approximately three to four times per week, and socialized with friends there.
Transcript, at 34, 35.
Transcript, at 34.
Transcript, at 37.
Transcript, at 39.
Plaintiff told ALJ McCoy that she had memory problems. Plaintiff further stated that she suffered from other impairments, including sweating, crying, dizziness, depression, rapid heartbeat, muscle tension and fatigue.
Transcript, at 36.
Transcript, at 36, 38.
ALJ McCoy also heard testimony from vocational expert Patricia Collins. VE Collins testified that plaintiff's past work as a teaching assistant was classified as light, semi-skilled; her work as a child care provider was medium, semi-skilled; and her work as a kitchen helper was medium, unskilled.
Transcript, at 40-53.
Transcript, at 40.
ALJ McCoy asked the vocational expert to assume a hypothetical individual
who had no limitations on their ability to lift and carry, stand, walk, bend, stoop, kneel, climb . . . And a person who has a good ability, good being define ( sic) as satisfactory to follow work rules, relate to co-workers, and deal with the public, cooperate with supervisors. And a fair ability to deal with work stress and change, fair being defined as somewhat affected or below average and to understand and remember to carry out complex job instructions, but a good ability to understand, remember, and carry out simple job instructions. A fair ability to maintain attention and concentration for extended periods.
Transcript, at 43.
ALJ McCoy then asked the vocational expert whether such a hypothetical individual would be able to do "any of the work that's been performed by" the plaintiff. VE Collins testified that a hypothetical individual with such an RFC would be able to perform all of plaintiff's past relevant work.
Transcript, at 43.
VE Collins further identified the following other jobs available in the local and national economies which an individual with plaintiff's RFC would be able to perform: unskilled machine operator, cashiering, kitchen helper, janitorial, products assembler, and general laborer.
Transcript, at 44-45.
On September 18, 2003, the ALJ issued her decision in which she concluded that plaintiff was not under a "disability," as defined by the Social Security Act ("the Act"), at any time through the date of the decision. Specifically, ALJ McCoy found that plaintiff retained the RFC to perform her past work as a teaching assistant, as a child care worker and as a kitchen helper. ALJ McCoy further found, "in the alternative to the finding that the claimant can perform her past relevant work, a finding of `not disabled' would still be reached within the framework of Medical-Vocational Rule 204.00."
Transcript, at 11-22.
Transcript, ¶ 9, at 22.
After receiving the ALJ's unfavorable decision dated September 18, 2003, plaintiff requested review of the hearing and decision on October 13, 2003. On January 2, 2004, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the instant action in this court on February 2, 2004.
Transcript, at 10.
Transcript, at 6-8.
Docket Entry 1.
IV. Issue Presented
Whether the ALJ's decision is supported by substantial evidence and comports with relevant legal standards?V. Analysis
A. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, I am limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'"
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 1383(c)(3) (2002).
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames, 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In my review of the Commissioner's findings, I must carefully examine the entire record, but refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez, 64 F.3d at 173.
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Villa, 895 F.2d at 1021 ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez, 64 F.3d at 174.
Id.
1. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
Id. § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
2. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. §§ 404.1520 and 416.920 (2002).
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past work. If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. If he cannot do other work, he will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
Id.
Leggett, 67 F.3d at 564.
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).
In the instant case, the ALJ reached her decision at step four of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since the date of her application for SSI. ALJ McCoy then concluded at steps two and three that plaintiff had an impairment or combination of impairments (dysthmic disorder and dependent personality disorder) which were severe, but did not meet or medically equal a listed impairment as of the date the plaintiff was last insured. At step four, the ALJ found that plaintiff retained the following residual functional capacity:
Transcript, at 15; ¶ 1, at 21.
Transcript, at 17; ¶ 2, at 21.
Transcript, at 18; ¶ 3, at 21.
The claimant has no physical limitations on lifting, carrying, standing, walking, bending, stooping, crouching and crawling and no limitations in climbing ramps or stairs. The claimant has the ability to read at the high school level, complete mathematic problems at the 6th grade level with good abilities to follow work rules, relate to co-workers, deal with the public, co-operate with supervisors, and understand, remember, and carry out simple job instructions, and has fair abilities to deal with work stress or change, maintain attention and concentration, and understand, remember and carry out complex job instructions.
Transcript, at 19; ¶ 6, at 21.
ALJ McCoy concluded that the performance of plaintiff's past "work as a teaching assistant (preschool), as a child care worker, and as a kitchen helper did not require the performance of work-related activities precluded by her residual functional capacity. In the alternative, ALJ McCoy held that there were other jobs available in the local and national economies which plaintiff retained the RFC to perform. Based on the foregoing, ALJ McCoy concluded that plaintiff was not under a disability. B. Is the ALJ's September 2003 Decision Supported by Substantial Evidence?
Transcript, ¶ 7, at 21; Transcript, at 20.
Transcript, at 20-21; ¶ 9, at 22.
Transcript, at 14, 21; ¶ 10, at 22.
Plaintiff challenges the ALJ's decision, asserting that the ALJ's decision was not based on a credible medical opinion, nor was it based on reasonable inferences from the substantial evidence of the record. Plaintiff argues that these mistakes constitute reversible error and that this action should be remanded for proper development. In my opinion, plaintiff has failed to establish prejudicial, i.e. reversible, error. For this reason, I recommend that plaintiff's request for relief be DENIED and the decision of the Commissioner AFFIRMED.
See Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000), "This Court will not reverse the decision of an ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure . . . To establish prejudice, a claimant must demonstrate that he or she `could and would have adduced evidence that might have altered the result (internal citations omitted).'"
In her brief in support of her complaint, plaintiff asserts that the ALJ's assessment of plaintiff's RFC is neither supported by a credible medical opinion, nor based on reasonable inferences drawn from other evidence in the record establishing the limiting effects of the impairments. Plaintiff asserts that the ALJ improperly rejected the opinions of treating physician Dr. Hernandez without recontacting him. Plaintiff contends that the ALJ was required to recontact plaintiff's treating physician as part of her duty to develop the record fully. Plaintiff avers that the ALJ's failure to substantiate her ultimate conclusions with treating source opinion and/or reasonable inferences from the evidence of record necessitates remand. The focus of plaintiff's brief is the ALJ's failure to re-contact treating physician Hugo Hernandez thus resulting, according to plaintiff, in the ALJ's failure to base her assessment of plaintiff's RFC on treating or examining source opinion.
Docket Entry 10, at 5-9. Importantly, plaintiff's brief also included the argument that the ALJ failed to ascertain plaintiff's ability to maintain, as well as obtain, employment, Docket Entry 10, at 7 ("A finding that the plaintiff is able to maintain employment is relevant to the determination of disability under the Social Security Act.") However, plaintiff did not cite any evidence in the record which raised the issue of her ability to maintain employment. When a plaintiff's ability to maintain employment is questioned during the administrative hearing process, the ALJ is required to engage in an analysis of the same. See, e.g. Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002); Wingo v. Bowen, 852 F.2d 827 (5th Cir. 1988). However, the ALJ is not obligated to make "separate findings on `obtaining' and `maintaining' a job in every case, even cases in which the applicant does not suggest that there is any difference between the issue of his ability to work and his ability to sustain work." Frank v. Barnhart, 326 F.3d 618, 621 (5th Cir. 2003). Rather, the ALJ is required to assess the plaintiff's ability to maintain employment only when the plaintiff's "intermittently recurring symptoms . . . [are] of sufficient frequency or severity to prevent the claimant from holding a job for a significant period of time. Id. , 326 F.3d, at 619. See also Dunbar v. Barnhart, 330 F.3d 670, 671 (5th Cir. 2003). Plaintiff has failed to cite evidence in the record which raised the issue of her ability to maintain employment. Consequently, this issue need not be addressed further.
See Docket Entry 10, at 9, "The clarification of Dr. Hernandez's statement that the plaintiff has a poor prognosis for gainful employment, therefore, is a material fact issue to be resolved." Because plaintiff's brief is concerned with the ALJ's analysis of Dr. Hernandez's opinions of plaintiff's psychological/psychiatric impairments and/or limitations, this Memorandum and Recommendation will focus on solely on plaintiff's alleged non-exertional impairments.
When the ALJ assesses the oral and written evidence provided by the various medical professionals, he must ordinarily give "substantial weight . . . to the opinion, diagnosis and medical evidence of the claimant's treating physician." However, the ALJ can "`reject the opinion of any physician if the evidence supports a contrary conclusion'" provided the ALJ has good cause for so doing.
[W]hen good cause is shown, less weight, little weight, or even no weight may be given to the physician's testimony. The good cause exceptions we have recognized include disregarding statements that are brief and conclusory, not supported by medically acceptable clinical laboratory diagnostic techniques, or otherwise unsupported by the evidence.
Dorsey v. Heckler, 702 F.2d 597, 603 (5th Cir. 1983).
Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987), citing Oldham v. Schweiker, 660 F.2d 1078, 1084 (Former 5th Cir. Unit B 1981).
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994).
Greenspan, 38 F.3d, at 237, citing Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985).
Despite the weight given to the treating source's opinion, the ALJ must evaluate every medical opinion received. When the ALJ does not give the treating source's opinion controlling weight, he must consider various factors in deciding the weight given to each opinion. Those factors are: (1) the examining relationship (the ALJ should generally give more weight to a source who examined the claimant); (2) the treatment relationship (the ALJ should generally give more weight to a source who treated claimant), including the length, nature and extent of the treatment relationship, as well as the frequency of the examination(s); (3) the supportability of the opinion (the ALJ should give greater weight to the source who provides more relevant evidence to support the opinion); (4) consistency (the ALJ should give greater weight to opinions which are consistent with the record as a whole); (5) specialization (the ALJ should generally give greater weight to the opinion of a specialist); and (6) any other factors which "tend to support or contradict the opinion."
Id.
20 C.F.R. § 404.1527(d) (2(i)-(ii)).
20 C.F.R. § 404.1527(d)(5). See also Moore, 919 F.2d, at 905.
When a medical opinion is incomplete or inconsistent, the ALJ is obligated to resolve the inconsistencies or inadequacies. One of the primary social security rulings on medical source opinions directs the ALJ to re-contact a medical source, when possible, to resolve any inconsistencies in the evidence provided by that source. Specifically, the ruling states
Policy Interpretation Ruling Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner, SSR 96-5p (July 2, 1986).
Because treating source evidence (including opinion evidence) is important, if the evidence does not support a treating source's opinion on any issue reserved to the Commissioner and the adjudicator cannot ascertain the basis of the opinion from the case record, the adjudicator must make `every reasonable effort' to recontact the source for clarification of the reasons for the opinion.
Id., at *6.
Thus, even though the ALJ and SSA retain the "final responsibility for deciding certain issues, such as whether an individual is disabled under the Act," and, similarly, the responsibility for resolving all conflicts in the evidence, the ALJ is still required, at a minimum, to attempt to obtain clarification when the record contains inconsistencies. Moreover, time and again, the various circuits have warned that it is not the province of the ALJ to play doctor.
`But judges, including administrative law judges of the Social Security Administration, must be careful not to succumb to the temptation to play doctor . . . Common sense can mislead; lay intuitions about medical phenomena are often wrong."
Id., at *1.
Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003), quoting Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990).
In the instant case, the ALJ thoroughly assessed Dr. Hernandez's reports in two portions of the opinion. The ALJ first noted:
Hugo Hernandez, M.D. began to treat the claimant for mental problems and the record reveals on January 25, 2001, the doctor diagnosed the claimant with depression and a panic disorder. Dr. Hernandez tried the claimant on many different medications throughout treatment. The claimant reported that she was doing okay on August 23, 2001 (Ex 1F/58), and feeling quite well in September 2001 (Ex 1F/59). . . .
Progress note dated November 27, 2002 from Dr. Hernandez revealed that the claimant was doing fairly well, but was still having some marital problems (Ex R1). Consequently, the record shows that the claimant missed her appointment in December 2002. Dr. Hernandez reported when the claimant returned on March 3, 2003 that she was continuing to do well, taking her medication, and should return for follow-up in two months (Ex R2). Dr. Hernandez completed a Medical Release/Physician's Statement on May 1, 2003 to assist the claimant in applying for food stamps. The doctor opined that the claimant could not work due to her mental problems. Dr. Hernandez diagnosed the claimant with a major depressive disorder, recurrent and a panic disorder, and opined she would have a poor prognosis for gainful employment (Ex 4F/85).
Transcript, at 17.
Later in the decision, ALJ McCoy wrote:
The Administrative Law Judge notes that Dr. Hernandez completed a Physicians Statement designed to assist individuals applying for food stamps (Ex. 4F/85). Dr. Hernandez noted that the claimant was permanently disabled and could not work due to mental factors, but reported that this condition would last approximately 12 months or more. The undersigned notes that this opinion is a finding of fact reserved to the Commissioner (SSR 96-5p). Opinions on issues reserved to the Commissioner, such as that of Dr. Hernandez, can never be entitled to controlling weight, but must be carefully considered to determine the extent to which they are supported by the record as a whole or contradicted by persuasive evidence ( 20 C.F.R. § 416.927(d)(2); SSR 96-5p). As stated previously, Dr. Hernandez statement ( sic) is an opinion more to assist the claimant in obtaining food stamps than it is a medical statement. In addition, Dr. Hernandez' statement is not `well supported' by any medically acceptable clinical and laboratory diagnostic findings and is `not consistent' with the other substantial evidence of record (SSR 96-2p). The claimant's impairments as documented in the record do not preclude all work activity. Therefore, for the foregoing reasons this opinion is not accorded substantial weight.
Transcript, at 20.
The ALJ also thoroughly assessed the findings of Dr. Diaz, a psychologist who examined plaintiff in the summer of 2001. ALJ McCoy noted plaintiff's self-account of her daily activities which suggested that plaintiff "retain[ed] abilities to perform exertional activities such as standing, walking, sitting, lifting, and carrying." In addition, the ALJ documented plaintiff's testimony at the administrative hearing that she was able to attend Church on a frequent basis and visit with friends. Finally, the ALJ reported the State Agency Medical Consultant's findings that plaintiff "did not have any severe mental or physical impairments."
Transcript, at 17.
Transcript, at 18.
Id.
Transcript, at 19.
Thus, the ALJ's analysis of plaintiff's non-exertional impairments complied with all the relevant legal standards and was supported by the substantial evidence of the record. The ALJ rejected Dr. Hernandez' disability finding on the basis that it was not supported by the other medical and non-medical evidence of record and was prepared solely for plaintiff to obtain benefits. Similarly, the ALJ noted all the other medical evidence of record — Dr. Hernandez' reports, Dr. Diaz' report, the reports of the State Agency Medical Consultants — which established that plaintiff's alleged mental impairments were the result of situational depression, and not a long-term, disabling affective disorder. Finally, ALJ McCoy documented, and relied on, plaintiff's own account of her daily and routine activities which showed that plaintiff was not limited by her purported non-exertional impairments.
See Transcript, at 205. Although plaintiff had a relationship with Dr. Hernandez before he prepared her food stamps form, his form in support of plaintiff's application for benefits is not entitled to controlling weight because of the circumstances under which it was created. See, generally 20 C.F.R. § 404.1502:
We will not consider an acceptable medical source to be your treating source if your relationship with the source is not based on your medical need for treatment or evaluation, but solely on your need to obtain a report in support of your claim for disability. In such a case, we will consider the acceptable medical source to be a nontreating source.See also Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985), citing Whitney v. Schweiker, 695 F.2d 784, 789 (7th Cir. 1982) (holding that an ALJ may properly reject the treating source opinion when it appears the treating physician is "`leaning over backwards to support the application for disability benefits.'")
Transcript, at 138, 140-152, 205.
Transcript, at 198-201.
Transcript, at 121-134, 153-166.
Above all, the plaintiff retains the responsibility of establishing a disabling impairment and prejudicial error. In this case, the substantial evidence of the record establishes that plaintiff's mental impairments were not disabling. Plaintiff has failed to prove that had the ALJ re-contacted Dr. Hernandez she could and would have adduced evidence that might have altered the result. Similarly, plaintiff has failed to establish that the substantial evidence of record proves that plaintiff had a disabling impairment. Consequently, plaintiff has not established grounds for reversal.
Carey v. Apfel, 230 F.3d, at 142.
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's request for relief (docket entries 1, 10) be DENIED. Plaintiff has failed to establish reversible error.
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).