McBride v. Commissioner, SSA

Filing 18

MEMORANDUM ADOPTING 16 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. Plaintiff's Objections, (Dkt. # 17 ), are OVERRULED and the Magistrate Judge's Report, (Dkt. # 16 ), is ADOPTED as the findings and conclusions of the Court. It is therefore ORDERED that the decision of the Commissioner is AFFIRMED. Signed by District Judge Sean D. Jordan on 3/26/2024. (JMB)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
CAROLYN D. MCBRIDE
v.
MARTIN O’MALLEY,
Commissioner of Social Security

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CIVIL NO. 4:22-CV-985-SDJ

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in
this action, this matter having been referred to the Magistrate Judge pursuant to
28 U.S.C. § 636. On March 6, 2024, the report of the Magistrate Judge (the “Report”),
(Dkt. #16), was entered containing proposed findings of fact and recommendations
that the final decision of the Commissioner of Social Security Administration be
affirmed. On March 20, 2024, Plaintiff filed Objections, (Dkt. #17), to the Report. The
Court has conducted a de novo review of the Objections and is of the opinion that the
findings and conclusions of the Magistrate Judge are correct, and the Objections are
without merit as to the ultimate findings of the Magistrate Judge.
I.
A district court reviews the findings and conclusions of a magistrate judge de
novo only if a party objects within fourteen days of the report and recommendation.
28 U.S.C. § 636(b)(1). To challenge a magistrate judge’s report, a party must
specifically identify those findings to which she objects. See id. Frivolous, conclusory,
or general objections need not be considered by the district judge. Nettles v.
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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). And objections that simply rehash or mirror the underlying claims addressed
in the report are not sufficient to entitle the party to de novo review. See Mark v.
Spears, No. 6:18-CV-309, 2022 WL 363586, at *1 (E.D. Tex. Feb. 7, 2022); see also
Nickelson v. Warden, No. 1:11-CV-334, 2012 WL 700827, at *4 (S.D. Ohio Mar. 1,
2012) (“[O]bjections to magistrate judges’ reports and recommendations are not
meant to be simply a vehicle to rehash arguments set forth in the petition.”); United
States v. Morales-Castro, 947 F.Supp.2d 166, 171 (D.P.R. 2013) (“Even though timely
objections to a report and recommendation entitle the objecting party to de novo
review of the findings, the district court should be spared the chore of traversing
ground already plowed by the Magistrate.” (quotation omitted)).
II.
In her objections, McBride largely rehashes arguments considered and rejected
by the Magistrate Judge in the Report. First, McBride reasserts her argument that
the residual functional capacity (“RFC”) determination is “incomplete” because it does
not correctly address her hand tremors. (Dkt. #17 at 2–5). McBride argues that “[t]he
ALJ may rely upon other evidence . . . to modify an RFC opinion from a treating or
examining source. However, without such medical opinion to begin with, the ALJ is
not permitted to ‘play doctor’ and substitute his own medical opinion.” (Dkt. #17 at 4).
McBride further asserts that there is no evidence cited by the ALJ supporting his
finding that McBride can frequently perform handling and fingering. (Dkt. #17 at 4).

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This is simply not true. As provided in the Report,“[t]he Fifth Circuit has held
that ‘the absence of a medical source statement about a plaintiff’s ability to work does
not, by itself, make the record incomplete.’” (Dkt. #16 at 8) (citing Gutierrez v.
Barnhart, No. 4-11025, 2005 WL 1994289, at *7 (5th Cir. Aug. 19, 2005)). The Report
identifies the medical evidence and testimony from McBride that is cited by the ALJ
in his RFC determination and supports his conclusion that McBride can “no more
than frequently perform handling and fingering.” (Dkt. #16 at 9–11). Accordingly, the
Report correctly concluded that “[a]lthough there was no medical opinion evidence in
the record regarding the effect of the tremors on Ms. McBride’s ability to perform
work . . . the ALJ’s determination is supported by substantial evidence.” (Dkt. #16
at 11).
Next, McBride again asks the Court to reweigh the evidence and substitute its
own judgment for that of the ALJ’s. (Dkt. #17 at 5–8). McBride again identifies
limitations that she believes the ALJ should have adopted into his RFC
determination. (Dkt. #17 at 5–8). Nonetheless, as explained in the Report, “ALJ
Morgan was not required to state the RFC limitations in terms that McBride prefers
‘so long as the decision shows that the ALJ considered those limitations in reaching
the RFC determination.’” (Dkt. #16 at 19) (citing McBride v. Comm’r, SSA, No. 22-cv290, 2023 WL 6367712, at *11 (E.D. Tex. Sept. 13, 2023)). The Report identifies each
of the medical opinions discussed in the RFC determination and finds that the ALJ’s
persuasiveness determination as to each opinion was supported and consistent.
(Dkt. #16 at 15–19). Further, as provided in the Report, the limitations that the ALJ

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incorporated into the RFC determination were supported by the medical opinion
evidence that he found persuasive. (Dkt. #16 at 18–19).
McBride also reasserts her argument that, because the ALJ identified only
sedentary jobs in step five, the Court was required to find McBride disabled due to
her age under the Medical-Vocational Guidelines found in Appendix 2 to Subpart P
of Part 404. (Dkt. #17 at 8). As explained in the Report, McBride misunderstands how
Appendix 2 is applied. (Dkt. #16 at 20). The ALJ’s RFC determination did not limit
McBride to sedentary work. (Dkt. #16 at 5). Rather, the RFC determination found
that McBride could perform a full range of work at all exertional levels with a
limitation for hand tremors. (Dkt. #16 at 5). Thus, as stated in the Report, “the ALJ
did not err by not applying limitations exceeding those found in the RFC
determination when applying the guidelines.” (Dkt. #16 at 20).
Further, McBride again takes issue with the ALJ’s identification of a
significant number of jobs. (Dkt. #17 at 9). McBride reasserts her argument that the
vocational expert used the “equal distribution” method and that the vocational
expert’s testimony is inconsistent with the source material which she claimed to rely
upon. (Dkt. #17 at 9–10). However, as explained in the Report, the vocational expert
did not use the equal distribution method. (Dkt. #16 at 21–22). The Report also
addressed McBride’s argument regarding the Job Browser Pro material and stated
that “an ALJ does not have a duty to investigate and resolve apparent conflicts in the
data of Job Browser Pro.” (Dkt. #16 at 22) (citing Hariman v. Comm’r, SSA, No. 18cv-377, 2019 WL 4727417, at *3 (E.D. Tex. Sept. 27, 2019) (“SSR 00-4p imposes an

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affirmative duty on ALJs to investigate and resolve apparent conflicts with the DOT,
not other sources of job information.”)). Thus, as the Magistrate Judge concluded, the
vocational expert explained her methodology which provided the ALJ an adequate
basis for his reliance on her testimony. (Dkt. #16 at 22).
Finally, McBride argues for the first time in her objection that “[t]he
Commissioner has further determined that skills cannot be transferred to unskilled
work (Social Security Ruling 82-41).” (Dkt. #17 at 8). McBride did not make this
argument, nor cite the Social Security Ruling 82-41 (“SSR 82-41”), in her brief. “New
claims and issues may not . . . be raised for the first time in objections to a Report and
Recommendation.” Andrews v. United States, No. 4:10-CR-152(05), 2019 WL 913873,
at *1 (E.D. Tex. Feb. 22, 2019) (citing United States v. Armstrong, 951 F.2d 626, 630
(5th Cir. 1992)). Accordingly, this argument is not properly before the Court.
Yet, even if this argument was properly before the Court, it would still fail.
SSR 82-41 is designed to explain “the concepts of ‘skills’ and ‘transferability of skills’
and to clarify how these concepts are used in disability evaluation.” SSR 82-41, 1982
WL 31389, at *1 (Jan. 1, 1982). However, as determined by the ALJ and the
Magistrate, the table rules in Appendix 2 are not applicable to McBride as her RFC
does not include a limitation in her exertional level. Therefore, McBride’s reliance on
the discussion of the transferability of skills in SSR 82-41 is similarly misplaced.
Further, the concept of unskilled work necessarily does not require a finding that
there be transferrable skills because the skills required to do the job “can be learned
in 30 days or less” and, thus, an individual need not have any skills before beginning

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the job. See 20 C.F.R. §§ 404.1568(a), 416.968(a); SSR 82-41, 1982 WL 31389, at *2
(Jan. 1, 1982); Mann v. Kijakazi, No. 4:21-CV-489-ALM-KPJ, 2022 WL 4477335 (E.D.
Tex. Aug. 30, 2022), report and recommendation adopted, No. 421CV00489ALMKPJ,
2022 WL 4474145 (E.D. Tex. Sept. 26, 2022) (“A person does not gain work skills by
doing unskilled jobs.”).
Therefore, the Court, reviewing de novo, concludes that the Magistrate Judge’s

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Report is correct and that McBride’s objections are without merit.
III.
For these reasons, Plaintiff’s Objections, (Dkt. #17), are OVERRULED and
the Magistrate Judge’s Report, (Dkt. #16), is ADOPTED as the findings and
conclusions of the Court.
It is therefore ORDERED that the decision of the Commissioner is
AFFIRMED.
So ORDERED and SIGNED this 26th day of March, 2024.

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SEAN D. JORDAN
UNITED STATES DISTRICT JUDGE

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