United States District Court, S.D. Mississippi, Southern Division
ORDER OVERRULING PLAINTIFF RODNEY NECAISSE'S
OBJECTION , ADOPTING THE MAGISTRATE JUDGE'S REPORT
AND RECOMMENDATION , DENYING PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT , AND AFFIRMING THE DECISION OF THE
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is the Objection  filed by Plaintiff Rodney
Necaisse (“Plaintiff”) to the Report and
Recommendation  of United States Magistrate Judge John C.
Gargiulo. After reviewing the record and relevant legal
authority, the Court finds that Plaintiff's Objection
 should be overruled, that the Magistrate Judge's
Report and Recommendation  should be adopted in its
entirety as the finding of the Court, that Plaintiff's
Motion for Summary Judgment  should be denied, and that
the decision of Defendant,  Acting Commissioner of Social
Security (“Defendant” or
“Commissioner”), denying disability benefits
should be affirmed.
was born in 1963, and stopped working in 2005 due to neck and
back problems for which he underwent spinal surgeries in
2000, 2005, and 2007. R.  at 75. Plaintiff also suffers
from depression. Id. On October 3, 2010, Plaintiff
filed an application for Social Security disability insurance
benefits, claiming that his disability began on October 9,
2008. Pl.'s Mem. Supp. Mot.  at 1. Plaintiff alleges
disability due to “back pain, neck pain, leg and foot
cramps, anxiety, and depression.” Id.
Social Security Administration initially denied
Plaintiff's application on January 27, 2011, and
thereafter upheld the decision upon reconsideration on March
14, 2011. Id. After a hearing before Administrative
Law Judge James Barter (“ALJ Barter”) on March
19, 2012, the ALJ issued a decision on April 27, 2012,
concluding that Plaintiff has the residual functional
capacity (“RFC”) to perform unskilled sedentary
work and is not disabled. Id.
sought review of ALJ Barter's decision before the Appeals
Council, which vacated the decision and remanded the case
with instructions to provide a “more comprehensive
discussion of the impact of claimant's mental
limitations” on Plaintiff's RFC. R.  at 233. The
Appeals Council instructed the ALJ to give further
consideration to the opinions of treating physician Dr.
Gosey, including a December 2011 opinion rendered after the
date last insured, because earlier treating notes from the
relevant period reflected findings similar to those in the
December 2011 opinion. Id. at 233-34. Lastly, the
Appeals Council ordered the ALJ to obtain supplemental
evidence from a vocational expert, if warranted by the
expanded record on remand, to clarify the effect of
Plaintiff's assessed limitations on his occupational
base. Id. at 234.
remand, Administrative Law Judge Wallace Weakley (“ALJ
Weakley”) conducted a video hearing on November 20,
2013, with testimony from Plaintiff and an impartial
vocational expert. R.  at 70. ALJ Weakley subsequently
issued a decision on February 7, 2014, finding that Plaintiff
is not disabled. Id. at 70-81. The Appeals Council
denied Plaintiff's request to review ALJ Weakley's
decision. Id. at 5-8.
filed this civil action on July 8, 2015, seeking a reversal
of the Commissioner's decision to deny disability
benefits, or, alternatively, remand of the case for further
hearing, and an award of attorneys' fees. Compl.  at
1-2. On February 15, 2016, Plaintiff filed a Motion for
Summary Judgment  seeking the same relief.
briefing by the parties, the Magistrate Judge issued a Report
and Recommendation  that Plaintiff's Motion for
Summary Judgment  be denied and that the decision of the
Commissioner be affirmed. Plaintiff filed an Objection ,
and Defendant filed a Notice  that she would not file a
response to the Objection , but urged the Court to adopt
the Magistrate Judge's Report and Recommendation  and
affirm the denial of benefits. Def.'s Not.  at 1.
Standard of Review
Plaintiff has filed an Objection  to the Magistrate
Judge's Report and Recommendation , the Court is
required to “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1); see also Longmire v. Gust, 921
F.2d 620, 623 (5th Cir. 1991) (a party filing a written
objection is “entitled to a de novo review by an
Article III Judge as to those issues to which an objection is
made”). In reviewing the decision, the Court
“considers only whether the Commissioner applied the
proper legal standards and whether substantial evidence in
the record supports [the] decision.” Jones v.
Astrue, 691 F.3d 730, 733 (5th Cir. 2012).
evidence is that which is relevant and sufficient for a
reasonable mind to accept as adequate to support a
conclusion; it must be more than a scintilla, but it need not
be a preponderance.” Anthony v. Sullivan, 954
F.2d 289, 295 (5th Cir. 1992). “A finding of no
substantial evidence is appropriate only if no credible
evidentiary choices or medical findings support the
decision.” Harris v. Apfel, 209 F.3d 413, 417
(5th Cir. 2000). Under this standard, a court cannot
“re-weigh the evidence or substitute [its] judgment for
that of the Commissioner.” Id.
extent that a party does not object to portions of a
magistrate judge's report and recommendation, the Court
need not conduct a de novo review of the recommendation.
See 28 U.S.C. § 636(b)(1). In such cases, the
Court need only review the report and recommendation and
determine whether it is either clearly erroneous or contrary
to law. United States v. Wilson, 864 F.2d 1219, 1221
(5th Cir. 1989).
Standard for Entitlement to Social Security Benefits
United States Court of Appeals for the Fifth Circuit has
to qualify for disability insurance benefits . . . a claimant
must suffer from a disability. See 42 U.S.C. §
423(d)(1)(A). The Social Security Act defines a disability as
a “medically determinable physical or mental impairment
lasting at least twelve months that prevents the claimant
from engaging in substantial gainful activity.”
Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir.
2002); see also 42 U.S.C. § 423(d)(1)(A). The
Commissioner typically uses a sequential five-step process to
determine whether a claimant is disabled within the meaning
of the Social Security Act. 20 C.F.R. § 404.1520;
see also Waters v. Barnhart, 276 F.3d 716, 718 (5th
Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir.
2014). The Fifth Circuit has described the five-step analysis