Garza v. Astrue

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 25 Report and Recommendations; and the decision of the Commissioner denying benefits is AFFIRMED. Signed by Judge Xavier Rodriguez. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
CAROLINE M. GARZA,
Plaintiff,
VS.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Civil Action No. SA-13-CA-44-XR(HJB)

ORDER
On this date, the Court considered the Report and Recommendation filed
by the Magistrate Judge concerning Plaintiff’s appeal of the Commissioner’s
decision to deny her disability insurance benefits. After careful consideration,
the Court accepts the Magistrate Judge’s recommendation to affirm the
Commissioner’s denial of benefits.
I. Background
Plaintiff Caroline M. Garza seeks review and reversal of the
administrative denial of her application for benefits.

Plaintiff filed an

application for disability insurance benefits on July 28, 2010. Plaintiff claims
that she has been diagnosed with major depressive disorder and bipolar
disorder, which prevent her from working and engaging in substantial gainful

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activity. The Administrative Law Judge (“ALJ”) held a hearing on March 22,
2012. On June 29, 2012, the ALJ issued a decision concluding that Plaintiff is
not disabled within the meaning of the Social Security Act. The SSA Appeals
Council denied review of the ALJ’s decision, and the ALJ’s decision became the
final decision of the Commissioner for the purpose of the Court’s review
pursuant to 42 U.S.C. § 405(g).
Plaintiff filed her complaint on January 17, 2013. Defendant filed an
answer, and the case was referred to Magistrate Judge Henry Bemporad for a
report and recommendation. Both parties filed briefs.
On July 31, 2013, Magistrate Judge Bemporad issued a report and
recommendation to this Court recommending the decision be affirmed. Docket
no. 25. The report and recommendation was served on Plaintiff’s counsel on July
31 by CM/ECF. No objections have been filed, and the time for doing so has
expired. Because the Report and Recommendation has not been objected to, the
Court need not conduct a de novo review, but will review the Magistrate Judge’s
report and recommended disposition to determine whether it is clearly
erroneous.
II. Analysis
A.

Plaintiff’s Claims
The ALJ found that Plaintiff has the following severe impairments:

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affective disorder alternatively diagnosed as major depressive disorder and
bipolar disorder, and a personality disorder. The ALJ also found that Plaintiff
could not do her past work. However, the ALJ found that Plaintiff was not
disabled because there was work that she could perform.
Plaintiff alleges that (1) the ALJ erred in finding that Plaintiff’s RFC
would allow her to perform work on a “regular and continuing” or sustained
basis or that she could make a successful adjustment to other work despite
limitations from her mental impairments and uncontroverted vocational expert
testimony that opined that she could not; (2) the ALJ erred in failing to
determine that the occupational basis was not substantially eroded considering
Plaintiff’s severe mental impairments and advanced age; (3) the ALJ failed to
give proper weight and due consideration to Licensed Professional Counselor
Intern Mary Kinard, who provided the longest, most recent and consistent
health care treatment to Plaintiff than any other health care provider; and (4)
the ALJ erred as a matter of law in evaluating Plaintiff’s subjective complaints
in failing to apply the regulatory factors set forth in SSR 96-7p and 20 C.F.R. §
404.1529.
B.

The Magistrate Judge’s Report and Recommendation
Magistrate Judge Bemporad thoroughly reviewed the parties’ arguments

regarding the Commission’s decision. In his report, Magistrate Judge Bemporad

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concluded: that the ALJ followed SSR 06-03p and properly weighed and
considered Mary Kinard’s opinion given the other objective medical evidence in
the case; the ALJ’s determination of Plaintiff’s RFC was appropriate and was
consistent with the vocational expert’s testimony to the extent the ALJ had
discretion to reject the expert’s opinion based on Kinard’s evaluation and accept
the opinion based on the hypothetical he posed, which was consistent with the
objective medical evidence in the record; the ALJ appropriately complied with
SSR 85-15 and substantial evidence supports the decision regarding Plaintiff’s
occupational basis; and the ALJ appropriately evaluated Plaintiff’s subjective
complaints and his credibility determination is supported by substantial
evidence.
C.

Review
The Court has reviewed the file and the report and recommendation, and

finds Magistrate Judge Bemporad’s recommendation to be neither clearly
erroneous nor contrary to law. The ALJ followed the proper legal standards and
the decision is supported by substantial evidence. Accordingly, the Court accepts
the recommendation, and affirms the Commissioner’s decision denying benefits.
Conclusion
For the foregoing reasons, the recommendation of the Magistrate Judge
to affirm is ACCEPTED and the decision of the Commissioner denying benefits

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is AFFIRMED. The Clerk is instructed to issue a final judgment and to close
this case.
It is so ORDERED.
SIGNED this 2nd day of October, 2013.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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