United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION AND DISMISSING APPEAL
GUIROLA, JR. UNITED STATES DISTRICT JUDGE
THE COURT is the  Report and Recommendation of United
States Magistrate Judge John C. Gargiulo entered in this
cause on July 10, 2018. Magistrate Judge Gargiulo recommends
that the Court affirm the decision of the Commissioner to
deny Plaintiff Jackson's application for disability
benefits. Jackson has filed an objection to the
Recommendation, and the Commissioner filed a response. After
a thorough review of the administrative record, the pleadings
submitted by the parties, and the applicable law, the Court
adopts the Report and Recommendation and affirms the decision
of the Commissioner.
Jerome Jackson filed an application for Social Security
disability benefits in 2014, alleging he became disabled on
March 22, 2010 at the age of forty-two from the effects of
Post-Traumatic Stress Disorder (PTSD), depression, anxiety,
lower back pain, and diminished hearing in his right ear. His
claim was conclusively denied by the Commission on August 23,
served in the military during Operation Desert Storm. After
his military service ended in 2010, he worked at the VA
Medical Center in Biloxi, Mississippi as a material handler,
an escort, and a laundry worker. A vocational expert
testified that Jackson could still work as a laundry worker,
and further identified dish washer, salvage laborer, and
store laborer as other jobs available in the national economy
that Jackson could perform.
appeal from a decision by the Commissioner, the Court's
review is limited to (1) whether the Commissioner applied the
proper legal standard; and (2) whether the Commissioner's
decision is supported by substantial evidence. Waters v.
Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).
Substantial evidence is such relevant evidence as a
responsible mind might accept to support a conclusion. It is
more than a mere scintilla and less than a preponderance. A
finding of no substantial evidence is appropriate only if no
credible evidentiary choices or medical findings support the
decision. In applying this standard, we may not re-weigh the
evidence or substitute our judgment for that of the
Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001)
(quoting Harris v. Apfel, 209 F.3d 413, 417 (5th
Cir. 2000)). It is for the Commissioner to weigh the evidence
and to resolve any conflicts. Anthony v. Sullivan,
954 F.2d 289, 295 (5th Cir. 1992). If supported by
substantial evidence, the Commissioner's findings are
conclusive and must be affirmed. Richardson v.
Perales, 402 U.S. 389, 401 (1971).
Court referred the case to the Magistrate Judge for a report
and recommendation. 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b). Any party adversely affected by the
recommendation issued may file written objections within
fourteen (14) days of being served with the report and
recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b). A party that files a timely objection is entitled to a
de novo determination of those portions of the
report or specified proposed findings or recommendations to
which specific objection is made. United States v.
Raddatz, 447 U.S. 667, 673 (1980). The objections must
specifically identify those findings or recommendations to
which objections are being made. The district court need not
consider frivolous, conclusive, or general objections.
Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421
(5th Cir. 1987). Moreover, where the objections are
repetitive of the arguments already made to the Magistrate
Judge, a de novo review is unwarranted. Koetting
v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993). Instead,
the report and recommendation is reviewed by the district
judge for clear error. Diamond v. Colonial Life &
Acc. Ins. Co., 416 F.3d 310, 315-16 (4th Cir. 2005);
see also Camardo v. Gen. Motors Hourly Rate Emp.'s
Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y. 1992)
(“It is improper for an objecting party to . . .
submit[ ] papers to a district court which are nothing more
than a rehashing of the same arguments and positions taken in
the original papers submitted to the Magistrate Judge.
Clearly, parties are not to be afforded a second bite at the
apple when they file objections to a R & R.”). A
court is not required to make new findings of fact
independent of those made by the Magistrate Judge. Warren
v. Miles, 230 F.3d 688, 694-95 (5th Cir. 2000). Nor is a
court required to reiterate the findings and conclusions of
the Magistrate Judge. Koetting, 995 F.2d at 40.
The Commissioner's Review
evaluating a disability claim, the Commissioner conducts a
five-step sequential analysis to determine whether
(1) the claimant is presently working; (2) the claimant has a
severe impairment; (3) the impairment meets or equals an
impairment listed in appendix 1 of the social security
regulations; (4) the impairment prevents the claimant from
doing past relevant work; and (5) the impairment ...