United States Court of Appeals

for the Fifth Circuit

No. 21-30160

Albert Charles, Jr., 

Plaintiff—Appellant,

versus

Kilolo Kijakazi, Acting Commissioner of Social Security, 

Defendant—Appellee.

Appeal from the United States District Court for the 

Eastern District of Louisiana 

USDC No. 2:20-cv-1424 

Before Southwick, Oldham, and Wilson, Circuit Judges.

Per Curiam:*

In 2017, Albert Charles, Jr. was shot and injured. He then applied for 

disability insurance benefits and supplemental security income. The Social 

Security Administration (“SSA”) denied both applications, and Charles 

requested and received a hearing before an Administrative Law Judge 

(“ALJ”). The ALJ denied the applications on the ground that Charles had 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 13, 2021

Lyle W. Cayce

Clerk

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no “disability” under the Social Security Act. See 42 U.S.C. §§ 416(i)(1),

423(d)(1)(A). The SSA Commissioner, by way of the SSA’s Appeals 

Council, subsequently adopted the ALJ’s decision.

Relevant here, the ALJ found there are “significant numbers” of three 

jobs that Charles could perform, despite his injury: “Belt Repairer” (22,000 

jobs nationwide), “Gas Meter Repairer” (16,000 jobs), and “Water Leak 

Repairer” (6,500 jobs). The ALJ partially based her no-disability 

determination on the existence of these jobs. See 20 C.F.R. 404.1520(a)

(describing “the five-step sequential evaluation process” the SSA uses “to 

decide whether [an applicant is] disabled,” step five of which explains that 

“[i]f you can make an adjustment to other work, we will find that you are not 

disabled”). 

Charles challenged the Commissioner’s decision in federal district

court. A magistrate judge recommended that the court reject all of Charles’s 

arguments and dismiss his suit. After Charles failed to object to that report 

and recommendation, the district court dismissed the suit. Charles appealed.

When a party fails to object to a magistrate’s report and 

recommendation, our review of the district court’s resulting decision is for 

plain error—so long as the party “has been served with notice that [this 

consequence] will result from a failure to object.” See Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded 

by statute on other grounds, 28 U.S.C. § 636(b)(1). Charles received just such 

notice: the magistrate’s report explicitly warned Charles of the Douglass rule. 

He nonetheless failed to object. Therefore, our review is for plain error. To 

prevail, Charles must show “(1) that the district court committed an error 

(2) that is plain and (3) affects his substantial rights and (4) that failure to 

correct the error would ‘seriously affect the fairness, integrity or public 

reputation of judicial proceedings.’” United States v. Sanchez-Hernandez, 931 

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F.3d 408, 410 (5th Cir. 2019) (quoting Johnson v. United States, 520 U.S. 461, 

466–67 (1997)).

Charles now makes two arguments. First, he argues the 

Commissioner (by way of the ALJ) in fact “made no determination” about 

the number of jobs—instead merely parroting a vocational expert’s 

testimony on the matter. Second, he argues that, if there was a job-numbers 

determination, the Commissioner (by way of the ALJ) didn’t consider 

enough factors when making it.

Even if we assume the district court erred, Charles has made no 

argument that any error was plain. And in any event, any error (even if plain) 

could not affect Charles’s substantial rights because he does not argue that 

the ALJ’s stated job numbers were in fact wrong. These failures doom his 

appeal. See, e.g., United States v. Delgado, 672 F.3d 320, 340 n.24 (5th Cir. 

2012) (“All four prongs of the test must be satisfied in order for us to correct 

an error.”).

AFFIRMED.

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