Anderson v. Astrue

Filing 26

ORDER ADOPTING 24 REPORT AND RECOMMENDATIONS. Plaintiff's objections are OVERRULED. The decision of the Commissioner is AFFIRMED and the complaint is hereby DISMISSED WITH PREJUDICE. Any motion not previously ruled on is DENIED. Signed by Judge Michael H. Schneider on 08/08/13. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
ROBERT EARL ANDERSON

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v.

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COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION

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CIVIL ACTION NO. 6:12-CV-105

ORDER OF DISMISSAL
The Report and Recommendation of the Magistrate Judge, which contains her findings,
conclusions, and recommendation for the disposition of this action, has been presented for
consideration. The Report and Recommendation recommends that the decision of the Commissioner
be affirmed and the complaint be dismissed. Plaintiff has filed written objections.
Having made a de novo review of the objections filed by Plaintiff, the Court finds that the
findings, conclusions and recommendation of the Magistrate Judge are correct. Plaintiff first repeats
his contention that the Administrative Law Judge (“ALJ”) failed to “specifically question the medical
expert” at the administrative hearing as to the date during the pertinent time period upon which
Plaintiff was first limited to sedentary work. Objections at 2. However, as the Magistrate Judge
pointed out, the medical expert testified that in his opinion, Plaintiff was capable of performing
medium level work throughout the period from March 26, 1996, to May 4, 2002, which was the time
period in question. See Report and Recommendation at 9 (citing Tr. at 773). It would have been
pointless to simply ask the medical expert again whether Plaintiff was reduced to sedentary work
during the same time period.
Next, Plaintiff contends that the ALJ failed to include a proviso that Plaintiff was illiterate
in his hypothetical question to the vocational expert during the administrative hearing. Objections
at 3 (citing hypothetical question as stated at Tr. at 777). However, that single question was limited

in two particular ways. First, the scope of the question was limited to determining whether Plaintiff
could perform his past relevant work (which had been performed at the heavy exertional level) when
he could only perform light level work with various other limitations; second, that specific question
indeed did not address the issue of literacy, Tr. at 777, but it was added in subsequent questions. In
response to that first question, the vocational expert testified that Plaintiff could not perform his past
relevant work. The ALJ then added the assumption that Plaintiff is illiterate, which Plaintiff has not
addressed, and confirmed that Plaintiff could not perform past relevant work. Tr. at 777-78. The
ALJ then went on to ask another hypothetical question “with that same residual functional capacity”
without eliminating the qualification of illiteracy. Tr. at 778. He asked whether there are other jobs
that the Plaintiff could perform. Id. The vocational expert responded that there were and identified
bakery worker, conveyor line, small products assembler and street cleaner, and specifically stated
that each job included a language or reading level of “one.”

Clearly, the vocational expert

considered that Plaintiff was capable of performing a job with that requirement, and stated that his
answers were consistent with the Dictionary of Occupational Titles (“DOT”). Tr. at 778, 781. Given
that Plaintiff testified that he had some minimal ability to read and to write, even if he needed his
brother’s help to interpret form questionnaires and sought help when he had questions, Tr. at 766-68,
the Court will defer to the ALJ’s decision. Furthermore, a finding of illiteracy does not necessarily
require a finding of disabled for individuals whose residual functional capacity otherwise permits
them to perform light or sedentary work. Perez v. Barnhart, 415 F.3d 457, 463-64 & n.6. Finally,
although Plaintiff did challenge the ALJ’s consideration of his borderline intellectual functioning
in his briefs, he only raised the issue of the DOT reading criteria for the jobs the vocational expert
identified for the first time in his objections.

Therefore, the analysis above notwithstanding, the

Court is within its discretion to withhold consideration of the issue. Hurndon v. Apfel, 232 F.3d 208,
2000 WL 1272757, at *2 (5th Cir. Aug. 21, 2000); Rodriguez v. Apfel, 139 F.3d 898, Cupit v.
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Whitley, 28 F.3d 532, 535 n.5 (5th Cir. 1994) (a party’s entitlement to de novo review before the
district court upon filing objections to the Report and Recommendation of the Magistrate Judge does
not entitle it to raise issues at that stage that were not adequately presented to the Magistrate Judge),
cert. denied, 513 U.S. 1163, 115 S. Ct. 1128, 130 L. Ed. 2d 1091 (1995).
Having conducted a de novo review, this Court finds the Report and Recommendation to be
correct. Therefore, Plaintiff’s objections are without merit and will be overruled. The findings and
conclusions of the Magistrate Judge are therefore adopted as those of the Court.
.
In light of the foregoing, it is
ORDERED that Plaintiff’s objections are hereby OVERRULED. It is further
ORDERED that the decision of the Commissioner is AFFIRMED and the complaint is
hereby DISMISSED WITH PREJUDICE. It is further
ORDERED that any motion not previously ruled on is DENIED.
It is SO ORDERED.
SIGNED this 8th day of August, 2013.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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