Ayala v. Commissioner of Social Security Administration
ORDER overruling plaintiff's objections and adopting the 18 Report and Recommendation. Signed by District Judge Marcia A. Crone on 3/5/2018. (bjc)
UNITED STATES DISTRICT COURT
NANCY A. BERRYHILL,
COMMISSIONER OF SOCIAL
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:16-CV-483
ORDER OVERRULING PLAINTIFF’S OBJECTIONS AND
ADOPTING REPORT AND RECOMMENDATION
The Plaintiff requests judicial review of a final decision of the Commissioner of Social
Security Administration with respect to his application for disability-based benefits. The court
referred this matter to the Honorable Zack Hawthorn, United States Magistrate Judge, at Beaumont,
Texas, for consideration pursuant to applicable laws and orders of this court. The magistrate judge
submitted a report recommending that the court affirm the Commissioner’s decision.
The court considered the report and recommendation filed on January 29, 2018 (Doc. No.
18) and the Plaintiff’s objections filed on February 20, 2018 (Doc. No. 20). A party who files timely
written objections to a magistrate judge’s report and recommendation is entitled to a de novo
determination of those findings or recommendations to which the party specifically objects. 28
U.S.C. § 636(b)(1)(c) (Supp. IV 2011); FED. R. CIV. P. 72(b)(2)-(3). “Parties filing objections must
specifically identify those findings [to which they object]. Frivolous, conclusive or general
objections need not be considered by the district court.” 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 1412 (5th Cir. 1996) (en banc).
In his objections, Ayala, proceeding pro se, asserts that the “papers that are being filed are
not updated,” because he had surgery and still experiences back pain, numbness in his feet, muscle
spasms, weakness in his feet, and lack of sleep. (Doc. No. 20.) He also states that his doctor is
suggesting that he have another surgery. (Id.)
Judge Hawthorn noted Ayala’s surgery in footnote five of his report and recommendation.
(Doc. No. 18, at 9.) Ayala had surgery on July 28, 2015, which was a few months after ALJ Dowd’s
decision and the end of the disability period. (Tr. 30-44.) It is important to note that prior to the
ALJ’s decision, Ayala refused to have surgery even though four different surgeons recommended
that he do so. (Tr. 18.) Ayala submitted his new medical records reflecting his recent surgery to the
Appeals Council. (Tr. 2.) The Appeals Council advised Ayala that the records “do not warrant a
change in the Administrative Law Judge’s evaluation of your residual functional capacity or his
evaluation of your disability status but they are sufficient to award you a potential protective filing
date for a subsequently filed application.” (Id.) The Council further explained to Ayala that he could
file a new claim for benefits within 6 months using his date of his request for review as the date of
his new claim. (Id.); see also 20 C.F.R. § 404.970 (2017). Because Ayala’s objection pertains to
information irrelevant to the disability period at issue in this case, the Court finds that this objection
is without merit.
The Court has conducted a de novo review of the purported objections in relation to the
pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful review, the Court
concludes that the Plaintiff’s objections are without merit. Accordingly, the Court ADOPTS the
magistrate judge’s recommendation, OVERRULES the Plaintiff’s objections, and AFFIRMS the
Commissioner’s denial of benefits. A final judgment will be entered in this case in accordance with
the magistrate. judge’s recommendation.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 5th day of March, 2018.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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