Rodriguez v. Bowen

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: Before CLARK, Chief Judge, JOHNSON, and JOLLY; JOHNSON
• Citation: Rodriguez v. Bowen, 857 F.2d 275 (5th Cir. 1988)
• Decision Date: 14 October 1988
• Docket Number: No. 88-1070,88-1070
• Parties: , Unempl.Ins.Rep. CCH 14215A Benito RODRIGUEZ, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar.

Page 275

857 F.2d 275

23 Soc.Sec.Rep.Ser. 54, Unempl.Ins.Rep. CCH 14215A

Benito RODRIGUEZ, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services Defendant-Appellee.

No. 88-1070

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 14, 1988.

Mary Ellen Felps, Austin, Tex., for plaintiff-appellant.

Nathan K. Kobin, Atty., Dept. of Health and Human Services, Baltimore, Md., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, JOHNSON, and JOLLY, Circuit Judges.

JOHNSON, Circuit Judge:

Plaintiff Benito Rodriguez appeals an order by the district court granting the Secretary of Health and Human Services' motion for summary judgment and affirming the Secretary's denial of Rodriguez's claim for disability benefits. We find that the Secretary's decision to deny benefits to Rodriguez was supported by substantial evidence and consequently, we affirm.

I. FACTS AND PROCEDURAL HISTORY

Rodriguez filed an application for disability insurance benefits on September 27, 1984, because of recurring back problems. When Rodriguez's claim was disapproved, he pursued and exhausted his administrative remedies. Seeking further relief, Rodriguez complained to the district court whereupon the case was referred for findings and recommendations by the magistrate. The magistrate's report endorsed the conclusions reached by the administrative law judge (ALJ) that Rodriguez's impairments did not meet or equal the criteria of 20 C.F.R. Sec. 404, Subpart P, Appendix 1, Sec. 1.05(C). The magistrate's report also advised Rodriguez that pursuant to 28 U.S.C. Sec. 636(b)(1), any objections to the findings contained in the report would need to be filed with the district court in writing within ten days of the receipt of the report.

Approximately thirty days after Rodriguez's counsel received the report, objections to the report by Rodriguez were filed. Noting the late objections, the district court nonetheless conducted a de novo review of the case and concluded that the magistrate's recommendations were on target. The court approved and adopted those findings and granted the Secretary's motion for summary judgment. Rodriguez's subsequent motion for rehearing was denied and he now appeals the order granting the Secretary's motion for summary judgment.

II. DISCUSSION

It is the rule in this Circuit that a party is not entitled to de novo review of a magistrate's finding and recommendations if objections are not raised in writing by the aggrieved party within ten days after being served with a copy of the magistrate's report. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir.1982) (en banc). Similarly, the failure by the aggrieved party to file written objections to proposed findings and recommendations of a magistrate shall bar appellate review of the magistrate's factual findings accepted or adopted by the district court except on grounds of plain error or manifest injustice. To invoke the bar, the magistrate's report must specifically advise the parties that objections must be so filed. Id.

Efficient judicial administration is encouraged by this rule. A party cannot raise for the first time on appeal challenges to factual findings not previously raised. This Court in Nettles expressed the rationale accordingly, "[w]e will not sit idly by and observe the 'sandbagging' of district judges when an appellant fails to object to a magistrate's report in the district court and then undertakes to raise his objections for the first time in this court." Id. at 410.

In the instant case, Rodriguez does not challenge the magistrate's report for the first time on appeal. His objections, albeit somewhat belated, were otherwise properly filed in the district court and were taken into account by that court in its de novo review. Since we find nothing in the record to the contrary, we assume that the district court exercised its discretion and allowed the filing of Rodriguez's objection after the ten day period.

A claimant of disability benefits under the Social Security Act bears the burden of showing that he or she is unable to engage in "any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to ... last for a continuous period of not less than twelve months." 42 U.S.C. Sec. 423(d)(1)(A). Upon a showing by the claimant that he or she is no longer able to continue prior employment, the burden shifts to the Secretary to show that the claimant can engage in some other type of substantial gainful activity. Jones v. Heckler, 702 F.2d 616, 620 (5th Cir.1983); Western v. Harris, 633 F.2d 1204, 1206 (5th Cir.1981). Review by this Court of the Secretary's decision is limited to the determination of whether there was substantial evidence in the record to support the decision. 42 U.S.C. Sec. 405(g); Cook v. Heckler, 750 F.2d 391, 392 (5th Cir.1985); Jones, 702 F.2d at 620. Substantial evidence has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Marcello v. Bowen, 803 F.2d 851, 853 (5th Cir.1986).

It is undisputed that Rodriguez suffers from physical impairments. Indeed, those impairments may prevent Rodriguez from engaging in certain activity. The ALJ, however, properly found that the impairments were not disabling per se since they did not conform to the requisite criteria set forth in the applicable regulations. ¹ The ALJ further found that Rodriguez has no non-exertional limitations and is capable of performing a full range of sedentary work. Moreover, the ALJ noted that Section 404.1569 of Regulation No. 4, and Rule 201.23, Table No. 1 of Appendix 2, Subpart P, Regulation No. 4, as applied to Rodriguez's circumstances direct a conclusion that he is not disabled.

Turning now to Rodriguez's specific allegations that the ALJ's findings are not supported by substantial evidence, this Court perceives four complaints. Rodriguez alleges that the ALJ erred in finding that there was no evidence of muscle spasm of sufficient duration. ² Rodriguez also argues that the record contains no evidence that he is capable of engaging in sedentary work. Further, Rodriguez contends that the magistrate's report did not reflect the method by which the determination was made that such jobs exist in the workplace. Lastly, Rodriguez complains that the magistrate failed to take into account Rodriguez's purported chronic pain. We now address each of his contentions.

Rodriguez insists that the magistrate's finding that there was no evidence of muscle spasm occurring after August 1984 was clearly erroneous. In support of his contention, Rodriguez points to a medical report prepared by his treating physician dated October 3, 1984, and insists that because the report references muscle spasm and carries an October date, it confirms the existence of muscle spasm in October. We do not agree. A careful reading of the treating physician's report reveals that although the report is dated October 3, 1984, it describes the results of a medical examination conducted the previous July. Since this report is the only basis for Rodriguez's claim that muscle spasms continued into October, the argument fails.

Rodriguez next complains that there is no evidence in the record to support the finding that he was capable of performing alternative gainful activity, namely sedentary work. A report by a consulting physician retained by the Secretary, however, indicates otherwise. That report states in unequivocal language that Rodriguez's physical condition allows him to "sit" several hours a day. Additionally, the report indicates that Rodriguez is capable of standing or walking between four and six hours without interruption in an eight hour day and that he is capable of lifting between five and fifteen pounds of weight periodically. Thus, the magistrate's finding that Rodriguez is capable...