Opinion
Civil Action No. SA-03-CA-0783 OG (NN).
August 2, 2004
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Orlando Garcia United States District Judge
I. Introduction
Plaintiff Jesus Vinton seeks review and reversal of the administrative denial of his application for Supplemental Security Income ("SSI") by the Administrative Law Judge ("ALJ") on May 30, 2003. Plaintiff contends that ALJ Bernard McKay's conclusion that plaintiff retained the residual functional capacity ("RFC") to perform work available in the local and national economies is not supported by the substantial evidence of the record. For this reason, plaintiff requests that the court reverse, remand and order the entry of a finding of disability, or, in the alternative, remand the case for proper development.After considering plaintiff's brief in support of his complaint, defendant's brief in support of the Commissioner's decision, plaintiff's reply brief, the transcript of the Social Security Administration (hereinafter "SSA") proceedings, the pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, and the entire record in this matter, it is my recommendation that plaintiff's complaint be DISMISSED and the Commissioner's decision AFFIRMED.
Docket Entry 14.
Docket Entry 17.
Docket Entry 18.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. § 1383.
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted his administrative remedies prior to filing this action in federal court. Plaintiff filed an application for SSI on February 14, 2001. The SSA denied plaintiff's application both initially, on July 11, 2001, and on reconsideration, August 15, 2001.
Transcript, at 111-117. Notably, plaintiff filed a previous application for SSI on December 22, 1995, which was denied by final decision of the Appeals Council on May 5, 1999. The previous application for benefits is not properly before this court because plaintiff's request for review of the decision on said application was untimely. Consequently, the only issue before this court is whether plaintiff is entitled to a period of benefits beginning on February 14, 2001. See Transcript, at 16.
Transcript, at 90-95.
Transcript, at 97-99.
On August 20, 2001, plaintiff requested a hearing before an ALJ. The hearing was held on October 17, 2002. Plaintiff was represented by counsel at the hearing. Plaintiff's attorney was able to examine and question plaintiff and the vocational expert, Dr. Don Marth, Ph.D., during the hearing.
Transcript, at 100.
Transcript, at 31-67.
Id.
The plaintiff, who was forty eight (48) years old at the October 2002 hearing, testified that he had an eighth grade education and was unable to read or write. Plaintiff told the ALJ that he lived in a house with his wife, his daughters (then-aged eighteen, eleven and nine) and his grandson (then-aged twelve months old).
Transcript, at 23.
Transcript, at 36.
Transcript, at 41, 42, 43, 45.
When asked about his daily and routine activities, plaintiff testified that he watched television during the day. Plaintiff also told the ALJ that he played dominoes once or twice a week. Plaintiff stated that he played dominoes at his friend's bar and usually stayed there for two to four hours. The games themselves, however, last approximately sixty to ninety minutes, and plaintiff testified that he sat during the games. Plaintiff also testified that he drank during the games, and generally consumed between three and ten beers per sitting. At the time of the administrative hearing, plaintiff had started to decrease his alcohol consumption out of a concern that the alcohol was not mixing well with his medications. In addition, plaintiff testified that his doctor advised him to curb his alcohol consumption because he suffered a heart attack.
Transcript, at 47.
Transcript, at 47-48.
Id.
Transcript, at 56.
Transcript, at 56.
Transcript, at 59.
When asked why he was unable to work, plaintiff testified that the following impairments precluded him from working: "My back, my neck, my short ( sic) of breath, and all my — I can't get something. Sometimes — I get trapped, and fall down from my hands, can't hold them." Plaintiff also testified that he was unable to work because he could not sit for long periods of time and would also be unable to alternate between sitting and standing at work. Plaintiff told the ALJ that he suffered from frequent pain in his stomach, back, and neck. He also stated that he had headaches often.
Transcript, at 53.
Transcript, at 55.
Transcript, at 55.
When the ALJ directly asked plaintiff if his medications made him sick or caused him any problems, plaintiff answered, "No, sir." Later in the hearing, however, plaintiff stated that he was prevented from looking for work because his medications made him drowsy.
Transcript, at 54.
Transcript, at 54.
Vocational expert, Dr. Don Marth, Ph.D., also testified at the administrative hearing. Dr. Marth identified the following jobs that plaintiff retained the RFC to perform, based on the hypothetical proffered by the ALJ: parking lot attendant, ticket taker, hardware assembler, and assembler of small products. Dr. Marth testified that the aforementioned jobs were available with a sit/stand option. Dr. Marth also stated that the aforementioned jobs could be performed so long as the individual performing them could concentrate for at least one hour at a time.
Transcript, at 60-67.
Transcript, at 61.
Transcript, at 62.
Transcript, at 63.
On May 30, 2003, the ALJ issued his decision in which he concluded that plaintiff was not under a "disability," as defined by the Social Security Act ("the Act"), at any time through the date of the decision. Specifically, ALJ McKay found that plaintiff retained the RFC to perform work available in the local and national economies.
Transcript, at 13-25.
After receiving the ALJ's unfavorable decision dated May 30, 2003, plaintiff requested review of the hearing and decision on June 20, 2003. On July 11, 2003, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiff's request. Plaintiff commenced the instant action in this court on August 18, 2003.
Transcript, at 10.
Transcript, at 7-9.
Docket Entry 1.
IV. Issue Presented
Whether the ALJ's decision is supported by substantial evidence and comports with relevant legal standards?V. Analysis
A. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, I am limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'"
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 1383(c)(3) (2002).
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames, 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In my review of the Commissioner's findings, I must carefully examine the entire record, but refrain from re-weighing the evidence or substituting my judgment for that of the Commissioner. Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve. Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez, 64 F.3d at 173.
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995); Villa, 895 F.2d at 1021 ("The court is not to reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez, 64 F.3d at 174.
Id.
1. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
Id. § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
2. Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is disabled or not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20 C.F.R. §§ 404.1520 and 416.920 (2002).
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If so, the claimant will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past work. If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. If he cannot do other work, he will be found disabled. The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of time. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
20 C.F.R. §§ 404.1520 and 416.920.
Id.
Id.
Id.
Id.
Leggett, 67 F.3d at 564.
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989).
In the instant case, the ALJ reached his decision at step five of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since the date of his application for SSI. ALJ McKay then concluded at steps two and three that plaintiff had an impairment or combination of impairments (fibromyalgia and depression) which were severe, but did not meet or medically equal a listed impairment as of the date the plaintiff was last insured. At step four, the ALJ found that, although there was no history of past work in the instant case, plaintiff retained the residual functional capacity to
Transcript, at 13-25.
Transcript, at 18; ¶ 1, at 24.
Transcript, at 20; ¶ 2, at 24.
Transcript, at 20.
Transcript, at 23; ¶ 6, at 24.
perform medium work or work which involves occasionally lifting and carrying 50 pounds, frequently lifting and carrying 25 pounds, can stand and walk for 6 hours out of an 8-hour day, and would have moderate limitations with abilities to carry out detailed instructions and to maintain attention and concentration for extended periods.
Transcript, at 21; ¶¶ 5, 8, at 24.
At step five, the ALJ held that given plaintiff's age (defined as a younger individual) and education (a limited education), plaintiff could perform work as a "parking lot attendant . . . a ticket taker . . . and as an assembler . . ." Based on the foregoing, ALJ McKay concluded that plaintiff was not under a disability. B. Is the ALJ's May 30, 2003 Decision Supported by Substantial Evidence?
Transcript, at 23; ¶ 7, at 24.
Transcript, at 23; ¶ 7, at 24.
Transcript, at 23-24; ¶ 9, at 24-25.
Transcript, at 17, 24; ¶ 10, at 25.
Plaintiff challenges the ALJ's decision, asserting that the ALJ improperly assessed plaintiff's RFC because he erroneously disregarded treating source opinion, as well as plaintiff's subjective complaints of pain. Plaintiff argues that these mistakes constitute reversible error and that substantial evidence does not support the ALJ's decision. In my opinion, plaintiff's grounds for reversal are not meritorious. For that reason, I recommend that plaintiff's complaint be DISMISSED and the decision of the Commissioner AFFIRMED.
See Docket Entries 14, 18.
1. Was ALJ McKay's assessment of plaintiff's RFC supported by the substantial evidence of the record?
Plaintiff asserts that the ALJ's findings as to plaintiff's RFC were not supported by the substantial evidence of the record. In particular, plaintiff contends that the ALJ ignored important medical evidence of record, notably the reports of Drs. Schmidt, Mosbacker and Hood, which substantiated plaintiff's claims regarding the severity of his impairments; and erroneously concluded that plaintiff was capable of performing work activities when, at the same time, he also found that plaintiff's fibromyalgia constituted a severe impairment. Plaintiff averred:
Docket Entry 14.
The ALJ noted that the medical opinions of the examining doctors were inconsistent with the medical evidence. Tr. 22. The ALJ's decision is improper because the opinion was from a treating source, whose medical opinion was based on medically acceptable clinical and laboratory diagnostic techniques, and was consistent with the other substantial evidence of record. Therefore, the ALJ's finding that Mr. Vinton can perform medium work is not supported by the opinions of any examining physician, warranting reversal.
Docket Entry 14, at 6. Importantly, plaintiff also criticized the ALJ's decision on the basis that ALJ McKay failed to specifically set forth claimant's limitations, both physical and mental, when he determined that plaintiff was able to return to his past work. Docket Entry 14, at 6-7. However, ALJ McKay found that there was "no evidence of past work in this case," and, therefore, did not make a finding that plaintiff could perform past work. See Transcript, at 23.
When the ALJ assesses the oral and written evidence provided by the various medical professionals, he must ordinarily give "substantial weight . . . to the opinion, diagnosis and medical evidence of the claimant's treating physician." However, the ALJ can "`reject the opinion of any physician if the evidence supports a contrary conclusion'" provided the ALJ has good cause for so doing.
[W]hen good cause is shown, less weight, little weight, or even no weight may be given to the physician's testimony. The good cause exceptions we have recognized include disregarding statements that are brief and conclusory, not supported by medically acceptable clinical laboratory diagnostic techniques, or otherwise unsupported by the evidence.
Dorsey v. Heckler, 702 F.2d 597, 603 (5th Cir. 1983).
Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987), citing Oldham v. Schweiker, 660 F.2d 1078, 1084 (Former 5th Cir. Unit B 1981).
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994).
Greenspan, 38 F.3d, at 237, citing Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985).
Despite the weight given to the treating source's opinion, the ALJ must evaluate every medical opinion received. When the ALJ does not give the treating source's opinion controlling weight, he must consider various factors in deciding the weight given to each opinion. Those factors are: (1) the examining relationship (the ALJ should generally give more weight to a source who examined the claimant); (2) the treatment relationship (the ALJ should generally give more weight to a source who treated claimant), including the length, nature and extent of the treatment relationship, as well as the frequency of the examination(s); (3) the supportability of the opinion (the ALJ should give greater weight to the source who provides more relevant evidence to support the opinion); (4) consistency (the ALJ should give greater weight to opinions which are consistent with the record as a whole); (5) specialization (the ALJ should generally give greater weight to the opinion of a specialist); and (6) any other factors which "tend to support or contradict the opinion."
Id.
20 C.F.R. § 404.1527(d) (2(i)-(ii)).
20 C.F.R. § 404.1527(d)(5). See also Moore, 919 F.2d at 905.
In the instant case, the ALJ properly assessed the three medical reports cited by plaintiff and accorded them appropriate weight. The first record to which plaintiff refers is a two page report authored by Daniel Schmidt, D.O. Dr. Schmidt's conclusion, which is cited by plaintiff in his brief and reply before this court, was: "My opinion is that he [plaintiff] has difficulty with sitting, standing, moving about, lifting, carrying and handling objects." Importantly, it appears from the report that Dr. Schmidt examined plaintiff but was not one of his treating professionals.
Transcript, at 176.
In the decision, ALJ McKay devoted almost half a page to reciting Dr. Schmidt's findings and conclusions. ALJ McKay extensively noted Dr. Schmidt's objective findings, such as plaintiff's blood pressure, vision, the absence of muscle spasms or atrophies, the regularity of plaintiff's heart beat, and the like. In addition, the decision specifically referenced the passage plaintiff argues the ALJ ignored. ALJ McKay wrote:
Transcript, at 19.
Id.
Dr. Schmidt noted that both x-rays of the cervical and lumbar spine were essentially normal, but noted that claimant would have some difficulties with sitting, standing, moving about, lifting, carrying and handling objects.
Transcript, at 19.
Thus, ALJ McKay thoroughly documented Dr. Schmidt's findings and included them in his assessment of plaintiff's RFC.
Transcript, at 19, 21.
Plaintiff also challenges the ALJ's assessment of Dr. Mosbacker's opinions, arguing that the ALJ lent short-shrift to Dr. Mosbacker's reports and erroneously accorded them little weight. Yet, a review of the ALJ's decision reveals otherwise.
See Docket Entry 14, at 5-6.
On September 30, 2002, Dr. Mosbacker, plaintiff's treating physician, wrote a "To whom it may concern" letter which was sent to plaintiff's attorney. In that letter, Dr. Mosbacker, who is a specialist in rheumatology, wrote, in pertinent part:
Transcript, at 215.
Because of his [plaintiff's] current medications and his current medical conditions I feel like he is unable to be gainfully employed and do not anticipate that he will ever be able to be gainfully employed due to his conditions.
Id.
ALJ McKay referred to this report in several places in the decision, and accorded it very careful consideration. For example, ALJ McKay devoted a substantial paragraph to recounting the circumstances under which the Mosbacker letter was written, the findings contained therein, and Dr. Mosbacker's opinions regarding plaintiff's permanent inability to perform work-related activity.
Transcript, at 20.
Slightly later in the decision, ALJ McKay noted that plaintiff "provided a treating source opinions ( sic) about the severity of his impairments and the effect on his ability to function." The ALJ then reviewed the relevant legal standards to be utilized in assessing such treating source opinion. ALJ McKay then noted that Dr. Mosbacker's opinion was:
Transcript, at 22.
Transcript, at 22.
not well supported by medically acceptable clinical and laboratory diagnostic techniques and [was] inconsistent with other substantial evidence of record. For example, Dr. Mosbacker treated the claimant in the past and his letter dated August 20, 1998, (Ex. R35), is almost identical to his recent letter dated September 30, 2002. However, there is no evidence that Dr. Mosbacker has treated the claimant since August 1998.
Transcript, at 22.
For these reasons, ALJ McKay concluded that Dr. Mosbacker's letter was not supported by the substantial evidence of the record and was, therefore, "accorded no substantial weight." In so finding, ALJ McKay thoroughly assessed Dr. Mosbacker's letter and accorded it appropriate weight according to the applicable legal authorities.
Transcript, at 23.
Similarly, ALJ McKay properly assessed the letter written by Dr. Richard Hood. Dr. Hood wrote a "To whom it may concern" letter which stated, in nearly complete part:
Mr. Vinton has severe arthritis, coronary artery disease and hepatocellular liver disease. He is unable to work secondary to arthritis and heart disease. This disability is considered permanent.
Transcript, at 214.
ALJ McKay cited the body of Dr. Hood's letter in his decision. The ALJ then explained that Dr. Hood's opinion that plaintiff was unable to work, as with Dr. Mosbacker's opinion regarding the same, was not a "strictly medical opinion." ALJ McKay further noted that Dr. Hood's opinions were not "well supported by medically acceptable clinical and laboratory diagnostic techniques and are inconsistent with other substantial evidence of record." The ALJ explained:
Transcript, at 20.
Transcript, at 22.
Transcript, at 22.
Dr. Hood's opinion noted diagnosis of coronary artery disease for the reason that the claimant was unable to work, and the claimant had just completed significant heart evaluation in June 2002 and was diagnosed with normal coronary anatomy and left ventricular systolic function (Ex R117).
Transcript, at 22.
Thus, ALJ McKay properly evaluated Dr. Hood's opinions and appropriately accorded them less weight in compliance with the applicable regulations and rulings.
Finally, plaintiff's assertion that the ALJ's finding that plaintiff's fibromyalgia constituted a severe impairment is inconsistent with a finding that plaintiff was capable of performing work activities is unavailing.
The severity regulation is merely "a screening device to eliminate claims which are totally groundless from a medical point of view." Although the regulation requires that a claimant's physical and/or mental abilities be significantly limited, "the history of the regulation indicates that the Secretary intended a broad reading of `significant.'" In other words,
1 BARBARA SAMUELS, SOCIAL SECURITY DISABILITY CLAIMS: PRACTICE AND PROCEDURE § 22:61 (1994). See also Bowen v. Yuckert, 482 U.S. 137, 153 (1987) ("The severity regulation increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account.").
Moore v. Heckler, 575 F.Supp. 180, 184 (D. Maine 1983).
`[A]n impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience.
Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985), quoting Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984). See also 20 C.F.R. § 404.1521(a) ("An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities."); Roberts v. Callahan, 971 F.Supp. 498, 500 (D. New Mexico 1997) ("An impairment is not severe if it is only a slight abnormality with a minimal effect on the ability to work.").
While a finding that an impairment is not severe can be based on medical factors alone, the combined effect of all the impairments must be considered
Stone, 752 F. 2d. 1101, fn. 4.
without regard to whether any such impairment, if considered separately, would be of such severity.
Bowen v. Yuckert, 482 U.S. 137, 150 (1987).
Importantly, the ALJ can end his inquiry at Step 2 "only in cases where there is `no more than a minimal effect on the claimant's ability to work.'" When the adjudicator determines that the symptoms cause a limitation or restriction with
Richmond v. Callahan, 998 F.Supp. 1007, 1011 (W.D. Arkansas 1997), quoting Hudson v. Bowen, 870 F.2d 1392, 1396 (8th Cir. 1989).
more than a minimal effect on an individual's ability to do basic work activities, the adjudicator must find that the impairment(s) is severe and proceed to the next step in the process even if the objective medical evidence would not in itself establish that the impairment(s) is severe.
Social Security Ruling 96-3p: Policy interpretation ruling Titles II and XVI: Considering allegations of pain and other symptoms in determining whether a medically determinable impairment is severe, SSR 96-3p, 1996 WL 374181 (July 2, 1996).
Thus, a finding that an impairment is severe does not constitute a finding that an impairment precludes work activity. As such, there is no inconsistency in ALJ McKay's findings that plaintiff's fibromyalgia constituted a severe impairment and that plaintiff was capable of performing work activities.
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's complaint (docket entry 1) be DISMISSED and the Commissioner's decision AFFIRMED. Plaintiff has failed to meet his burden of establishing that the ALJ committed prejudicial, i.e. reversible, error.
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).