Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

MELODY M. BUTCHER, §

PLAINTIFF, §

§

VS. § CIVIL ACTION NO. 4:04-CV-250-Y

§

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL SECURITY, §

DEFENDANT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND

NOTICE AND ORDER

This case was referred to the United States Magistrate Judge pursuant to the provisions of

Title 28, United States Code, Section 636(b). The Findings, Conclusions and Recommendation of

the United States Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS

A. STATEMENT OF THE CASE

Plaintiff Melody M. Butcher brings this action pursuant to Section 405(g) of the Social

Security Act, Title 42 of the United States Code, for judicial review of a final decision of the

Commissioner of Social Security denying her claim for disability insurance benefits under Title II

of the Social Security Act. Butcher applied for disability benefits on April 22, 2002, alleging she

has been disabled since May 13, 1999. (Tr. 15, 48). She meets the insured status requirements

through 2007. (Tr. 194). 

The Social Security Administration denied Butcher’s application for benefits both initially

 

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and on reconsideration. Butcher requested a hearing before an administrative law judge (the "ALJ"),

and ALJ William Helsper held a hearing on July 30, 2003 in Fort Worth, Texas. (Tr. 216-39).

Thibodeau was assisted by a non-attorney representative. On August 27, 2003, the ALJ issued a

decision that Butcher was not disabled because she retained the residual functional capacity (RFC)

for a modified range of sedentary work activity during the period under consideration. (Tr. 15-24).

The Appeals Council denied Butcher’s request for review of her case, leaving the ALJ’s decision

to stand as the final decision of the Commissioner. (Tr. 3).

B. STANDARD OF REVIEW

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. 42 U.S.C. § 423(d)(1)(A); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999).

To determine whether a claimant is disabled, and thus entitled to disability benefits, a five-step

analysis is employed. 20 C.F.R. § 404.1520. First, the claimant must not be presently working at

any substantial gainful activity. Substantial gainful activity is defined as work activity involving the

use of significant physical or mental abilities for pay or profit. 20 C.F.R. § 404.1527. Second, the

claimant must have an impairment or combination of impairments that is severe. 20 C.F.R. §

404.1520(c). At the third step, disability will be found if claimant’s impairment or combination of

impairments meets or equals an impairment listed in the appendix to the regulations. Id. §

404.1520(d). Fourth, if disability cannot be found on the basis of claimant’s medical status alone,

the impairment or impairments must prevent the claimant from returning to his past relevant work.

Id. § 404.1520(e). And fifth, the impairment must prevent the claimant from doing any work,

 

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considering the claimant's residual functional capacity, age, education, and past work experience.

Id. § 404.1520(f); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir.1999). 

At steps one through four, the burden of proof rests upon the claimant to show he is disabled.

If the claimant satisfies this responsibility, the burden shifts to the Commissioner at step five of the

process to show that there is other gainful employment the claimant is capable of performing in spite

of his existing impairments. Crowley, 197 F.3d at 198. If the Commissioner meets this burden, the

claimant must then prove that he cannot in fact perform the work suggested. Waters v. Barnhart, 276

F.3d 716, 718 (5th Cir. 2002). A finding at any point in the five-step process that a claimant is

disabled or not disabled is conclusive and terminates the analysis. Masterson v. Barnhart, 309 F.3d

267, 272 (5th Cir. 2002).

A denial of disability benefits is reviewed only to determine whether the Commissioner

applied the correct legal standards and whether the decision is supported by substantial evidence in

the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837

F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is such relevant evidence as a responsible

mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is

more than a mere scintilla, but less than a preponderance. Id. A finding of no substantial evidence

is appropriate only if no credible evidentiary choices or medical findings support the decision. Id.

Conflicts in the evidence are for the Commissioner and not the court to resolve. Masterson, 309

F.3d at 272. The court will not re-weigh the evidence, try the questions de novo, or substitute its

judgment for the Commissioner's. Id.; Harris v. Apfel, 209 F.3d 413, 417 (5th Cir.2000); Hollis, 837

F.2d at 1383.

 

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1

 Radiculitis is an inflammation of the root of a spinal nerve. DORLAND’S ILLUSTRATED MEDICAL

DICTIONARY 1511 (29th ed. 2000).

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C. ISSUE

Whether the ALJ gave appropriate weight to opinions from a treating source.

D. ADMINISTRATIVE RECORD

1. Medical History

Butcher worked as a flight attendant for twenty-three years. She initially injured her back

while working in March 1995. She returned to work, but re-injured her back in May 1999 while

trying to close an airplane coat closet that had jammed. 

Butcher first saw Manish Suthar, M.D., at the Texas Back Institute. (Tr. 89-93). Suthar

diagnosed S1 radiculitis1

 and prescribed anti-inflammatory medication and physical therapy.

Magnetic resonance imaging (an MRI) in June 1999 showed a herniated disc at L5-S1 that impinged

on the nerve root. The film also showed degenerative disc disease at L4-L5 and L5-S1. (Tr. 93).

On October 6, 1999, Butcher sought treatment from neurosurgeon Gary Hutchinson, MD.,

because she continued to have back pain and pain in her right leg that was unimproved with

conservative treatment. (Tr. 126). Hutchinson ordered a myelogram and post-myelogram

computed tomography (CT) study that confirmed a right-sided disc herniation at L5-S1 with

compression of the S1 nerve root. Hutchinson recommended surgery. (Tr. 124). 

Butcher saw David Barnett, M.D., in January 2000 to obtain a second opinion as required

by her worker’s compensation insurance. (Tr. 115). Barnett reviewed the myelogram and CT

results, and also performed a physical examination. Barnett concurred with Hutchinson’s surgical

 

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2

 Microdiskectomy is a debulking of the herniated disc using an operating micropscope or loupe for

magnification. Id. at 1110. Debulking refers to the removal of a major portion of the material that composes a

lesion. Id. at 461.

3 Radiculopathy refers to disease of the nerve roots. Id. at 1511.

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recommendation, (Tr. 115-16), and upon being given the choice, Butcher selected Barnett to perform

the surgery. (Tr. 122).

Barnett performed a right L5-S1 microdiskectomy2

 and nerve root decompression on April

17, 2000. (Tr. 98). Butcher was discharged from the hospital the following day. (Tr. 95). She

initially reported improvement and was approved to return to work, but within six months after

surgery, she complained of a marked recurrence of radicular symptoms in her right leg. (Tr. 110-

13). 

Barnett ordered a new MRI scan in October 2000. The MRI showed a possible calcified disc

protrusion at L4-L5 consistent with right-sided L5 radiculopathy;3

 L4-L5 disc dessication and loss

of disc space height at this level; and granulation tissue at the L5-S1 surgical site. (Tr. 108-09).

Barnett reviewed the studies and noted that there was no recurrent disc herniation and no evidence

of significant stenosis or neural compression. He advised Butcher that he had no additional

treatment to recommend. (Tr. 106). On May 15, 2001, Hutchinson also reviewed the new MRI

films and Barnett’s treatment notes. He opined that Butcher had achieved true maximum medical

improvement with a ten percent permanent partial impairment rating. (Tr. 119-20).

On July 2, 2002, Butcher underwent a consultative examination with Alberto Flores, M.D.

 (Tr. 129). She reported persistent low back pain with tingling in her right leg. Flores performed

a physical examination and observed a reduced range of motion in Butcher’s lumbar spine. (Tr.

 

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4

 The ALJ noted that Butcher went a lengthy period of time, from November 2000 to May 2001, without

evidence of treatment. (Tr. 20). And after visiting with Hutchinson in May 2001, Butcher had no documented 

treatment until April 2002 when she reported that she had established a treating relationship with physician Gregg

Diamond. (Tr. 20). The first treatment notes from Diamond, however, are dated July 2002.

5

 Denervation is the denial of a nerve supply. DORLAND’S at 472.

6

 Arthropathy refers to any joint disease. Id. at 152.

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130). Butcher was able to stand, sit, stand, reach, lift and carry without difficulty. (Tr. 130). Flores

diagnosed chronic back pain, status post microdiskectomy. 

Butcher saw Gregg Diamond, M.D., on July 24, 2002.4

 (Tr. 165). She complained of

intermittent moderate to severe pain located predominately in her right buttock and right calf.

Standing, bending activities, and sneezing aggravated her pain. Walking, manipulation, pain pills,

and Advil helped to reduce the pain. (Tr. 165). Diamond performed an EMG study, which

confirmed right-sided L4 and L5 radicular irritation and acute denervation.5

 (Tr. 167). He ordered

a new MRI study to investigate whether scar tissue might be the cause of Butcher’s symptoms.

Insurance approval was delayed, but the MRI was ultimately approved and was performed on

January 29, 2003. The MRI showed mild epidural scar formation along the right S1 nerve root;

severe degenerative disc disease, facet arthropathy,6 and focal disc herniation at L4-L5; and severe

degenerative disc disease at L5-S1. (Tr. 154-55). 

After reviewing the new studies, Diamond diagnosed spinal stenosis, an L4-L5 disc

abnormality, severe degenerative spine disease at L5-S1, and ongoing acute radiculopathy in the L4

and L5 nerve root patterns. (Tr. 148). Diamond recommended that Butcher see anesthesiologist

Renaud Rodrigue, M.D., for evaluation and possible epidural lysis or epidural steroid injections.

 

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7

 Epidurography is the radiography of the spine after a radiopaque medium has been injected into the

epidural space. Id. at 607.

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(Tr. 148). Diamond expected a short program of therapy, and anticipated that Butcher would be

released for work in four to six weeks. (Tr. 147, 148).

 Butcher was evaluated at Rodrigue’s office on April 8, 2003. She complained of constant

pain in the right side of her low back with a tingling sensation radiating into her right leg. (Tr. 176).

She reported a recent and significant increase in her pain that had not been alleviated by physical

therapy. (Tr. 181). On examination, Butcher was tender in her low back and sacroiliac joint, but

range of motion was normal throughout. Motor, reflex, and sensory examinations also yielded

normal results. (Tr. 176, 181-82). 

Rodrigue performed an epidurogram7

 study on April 22, 2003 and administered a lumbar

epidural steroid injection with a reported 25% improvement in Butcher’s pain level. (Tr. 174).

During a follow-up visit on May 1, 2003, Butcher reported a measurable reduction in pain, but also

complained of a gradual return of discomfort and requested additional injections. (Tr. 174).

Rodrigue agreed that additional injections would be beneficial.

Butcher saw Diamond again on May 5, 2003. She had undergone epidural lysis of adhesions

with Rodrigue and experienced a decrease in her back pain, but no improvement in her radicular

symptoms. (Tr. 172). Butcher demonstrated excellent range of motion, although she complained

of pain at the end range of testing. (Tr. 172). Because Rodrigue advised that repeating the

procedure would not be helpful, Diamond planned to proceed with a functional capacity evaluation

and the assessment of permanent work restrictions. (Tr. 172). 

 

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Butcher underwent a functional capacity evaluation with occupational therapist John Durkin

in May 2003. (Tr. 191). Durkin reported that Butcher gave maximum, consistent effort during

testing. Muscle strength and range of motion testing was within normal limits, but Butcher exhibited

pain behaviors consistent with her diagnosis. Areas in which she had significant ability included

good hand coordination, pushing/pulling 300 pounds (on wheels), crawling, kneeling, crouching,

squatting, walking, standing, and sitting. Areas in which she demonstrated significant defects

included lifting twenty-five pounds (from floor to waist or overhead), two-handed carrying of a

thirty-five pound weight, and repeated flexion of the trunk in a standing position. (Tr. 192). Durkin

found that Butcher’s current capabilities were incompatible with the duties of a flight attendant. (Tr.

192).

Diamond completed a written physical capacity evaluation on June 30, 2003. He opined that

Butcher could sit for a total of four hours and stand or walk for a total of one hour during an eighthour workday. (Tr. 189). Diamond also found that Butcher needed the opportunity to sit or stand

at will during the day. No impairments were noted in Butcher’s ability to use her upper extremities.

Diamond opined that Butcher could lift up to twenty pounds occasionally. He also indicated that

she could occasionally climb, balance, and reach above shoulder level, but should never stoop,

kneel, crouch, or crawl. (Tr. 190). He assessed her pain level as moderate. The evaluation form

defined moderate pain as a significant handicap in the ability to sustain attention and concentration

that would eliminate skilled work tasks. (Tr. 190). 

 

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2. Administrative Hearing

Butcher was fifty years old at the time of the hearing. She testified that she had attended one

and a half years of college, and began her career as a flight attendant in 1976. (Tr. 219). She tried

conservative treatment measures after injuring her back in 1999, but physical therapy only increased

her pain. The surgery helped for a month or two, but the tingling and pain returned when she tried

to resume normal activities. (Tr. 221). Butcher testified that Diamond, her current physician, was

trying to obtain insurance approval for a new form of physical therapy that focused on releasing the

affected nerve. (Tr. 223). None of her physicians had recommended additional surgery.

Butcher testified that she spent most of the day watching television, but she did some laundry

and grocery shopping because she lived alone. She had a maid service that did the heavier cleaning.

Butcher took Advil and Vicodin for pain, but found that Vicodin made her sleepy and did not help

the pain. (Tr. 225). She had also tried nerve blocks and injections, which were discontinued

because they had not helped her. (Tr. 228). She described the pain as a constant tinging and burn

that radiated into her right leg. Standing or sitting for too long caused a stabbing pain. (Tr. 224-26).

Butcher testified that she had good days and bad days. She estimated that she could stand

for about twenty minutes and walk for twenty or twenty-five minutes. She could also sit for twenty

or twenty-five minutes before needing to change positions. (Tr. 228-29). Butcher testified that she

could lift ten or fifteen pounds, but any heavier weight caused too much pain. Butcher estimated

that she spent about three hours a day reclining because a reclining position relieved the pressure

on her back. (Tr. 230). 

Vocational expert Carol Bennett testified at the administrative hearing. Bennett classified

 

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the job of flight attendant as semi-skilled work requiring medium exertion. (Tr. 234-35). The ALJ

asked Bennett to consider an individual of Butcher’s age, education and work history who was

limited to sedentary work with the ability to occasionally change positions from sitting to standing.

Bennett testified that such a person would have some basic customer service and communication

skills that would transfer to work as a telephone salesperson, which was a sedentary job with 4,500

jobs in Texas and 150,000 such jobs available nationally. (Tr. 235).

Bennett conceded that an individual who missed one or two days of work each week would

be unable to maintain competitive employment. (Tr. 236). A person who could sit for no more than

four hours and stand or walk for one hour per day also did not qualify for competitive employment.

(Tr. 236-37). Bennett testified that a telephone sales job would generally allow a person to stand

while performing the work, although sitting might be necessary at times to record information. (Tr.

237). 

3. ALJ Decision

The ALJ found that Butcher had not engaged in substantial gainful activity since her alleged

onset date and had a severe back impairment; however, the ALJ found that Butcher’s condition did

not meet or equal the severity of any listed impairment. (Tr. 16-17). The ALJ then considered

whether Butcher was capable of any level of work activity during the period any question.

After reviewing the medical evidence, the ALJ concluded that Butcher’s residual functional

capacity had fluctuated over the years. (Tr .21). He determined that the medical consensus through

at least April 2002 was that Butcher retained the capability for a modified range of medium work

 

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8 Medium work involves lifting no more than fifty pounds at a time with frequent lifting or carrying of

objects weighing up to twenty-five pounds. 20 C.F.R. § 404.1567(c).

9 Sedentary work involves lifting no more than ten pounds at a time and occasionally lifting or carrying

articles like docket files, ledgers and small tools. Although a sedentary job is defined as one which involves sitting,

a certain amount of walking and standing is often necessary in carrying out job duties. 20 C.F.R. § 404.1567(a).

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 11

activity.8

 (Tr. 20-21). The ALJ found that Butcher thereafter was restricted to sedentary work with

the option to sit or stand at will.9

 (Tr. 21). Based on the vocational expert’s testimony, the ALJ

found that Butcher was capable of making a successful adjustment to other work existing in the

national economy and was therefore not disabled. (Tr. 22).

D. DISCUSSION

Butcher contends that the ALJ erred in rejecting Diamond’s opinions about her sitting and

standing capabilities. Butcher complains that Diamond is the only examining medical source to

render opinions about her abilities, yet the ALJ effectively gave Diamond’s assessment of her sitting

and standing tolerances no weight at all. Butcher requests a remand so that her residual functional

capacity (RFC) on and after July 24, 2002 (which was her first recorded treatment date with

Diamond) can be reassessed. (Plf. Brief at 18).

 When a treating physician’s opinion is well-supported by medically acceptable clinical or

laboratory diagnostic techniques and is not inconsistent with other substantial evidence of record,

it is entitled to controlling weight. 20 C.F.R. § 404.1527(d)(2). The ALJ can decrease the weight

assigned to a treating physician’s opinion for good cause, which includes disregarding statements

that are brief and conclusory, unsupported by acceptable diagnostic techniques, or otherwise

unsupported by the evidence. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). 

 

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Even if a treating source opinion is not entitled to controlling weight under the regulations,

that does not mean the opinion should be completely rejected. In many cases, the opinion may be

entitled to the greatest weight and should be adopted even if it does not satisfy the test for

controlling weight. SOCIAL SECURITY RULING 96-2p. An ALJ may not arbitrarily reject

uncontroverted medical opinion evidence. Strickland v. Harris, 615 F.2d 1103, 1110 (5th Cir.1980).

But the determination of disability always remains the province of the ALJ. See id. § 404.1527(e).

The ALJ acknowledged that Diamond’s functional capacity evaluation indicated that Butcher

was unable to work on a sustained full-time basis, but the ALJ provided the following reasons for

disagreeing with Diamond on this point:

He indicated she was capable of sitting for a maximum of only four hours and of

standing for a maximum of one hour. This opinion appears to be based on the MRI

report dated January 29, 2003 and an EMG report dated July 24, 2002. Yet, in a

report dated March 21, 2003 he indicated he intended to return the claimant to full

duty within four to six weeks. At the time of this report Dr. Diamond was in

possession of both the MRI and EMG results. Additionally, the claimant reported

to Dr. Rodrigue there had been a measurable reduction in pain following the last

injection May 1, 2003. The pain was gradually returning and Dr. Rodrigue was

addressing this. Dr. Diamond, in the functional capacity evaluation report, also felt

the claimant had moderate restrictions as a result of pain which would constitute a

significant handicap with sustained attention and concentration and would eliminate

skilled tasks. This again conflicts with the treatment notes of Dr. Rodrigue and the

claimant’s self report. The undersigned further notes the claimant was referred by

Dr. Diamond to Dr. Rodrigue, which is indicative of confidence in the opinion and

skill of Dr. Rodrigue. Therefore, the undersigned affords the opinion of Dr.

Diamond significant weight with regard to the claimant’s ability to lift and carry and

push and pull but discounts the opinion offered with regard to her ability to sit and

stand as well as attend and concentrate. The claimant was referred to Dr. Rodrigue

for pain management by Dr. Diamond, therefore Dr. Rodrigue is considered by the

undersigned the preferred source for evaluating the claimant’s limitations resulting

from pain. Dr. Rodrigue’s treatment notes did not indicate that the claimant’s pain

 

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was unmanageable. Quite the converse is supported by his treatment notes.

(Tr. 20-21). Butcher contends that the ALJ’s explanation does not constitute good cause for

rejecting Diamond’s restrictions on Butcher’s ability to sit, stand and walk.

More specifically, Butcher complains that the ALJ would have assigned controlling weight

to Diamond’s opinions if he had considered the factors outlined in Section 404.1527(d) of the

administrative regulations. Before rejecting a treating source opinion, the ALJ is directed to

consider a litany of factors, including the length of the treatment relationship, frequency of

examination, nature and extent of the treating relationship, evidence supporting the opinions, the

consistency of those opinions, and medical specialization. See 20 C.F.R. §404.1527; Newton v.

Apfel, 209 F.3d 448, 456 (5th Cir. 2000). See also SOCIAL SECURITY RULING 96-2p, 96-5p. 

The ALJ did not reject Diamond’s assessment in its entirety, but only discounted those

portions of the assessment that he found were otherwise inconsistent with the record–including

firsthand reports from another treating source. Citing Section 404.1527, the ALJ also stated that he

had considered all of the medical opinions about the severity of Butcher’s impairment. (Tr. 23).

Moreover, the ALJ addressed the requisite factors in substance throughout his written decision and

in his identification of the reasons he chose to discount some of Diamond’s opinions.

Butcher disagrees with the ALJ’s observation that Diamond prepared the evaluation based

on the same studies available in March 2003 when Diamond indicated that he intended to return

Butcher to full duty within a few weeks. Butcher asserts that lofty goals and optimism should not

be penalized. The ALJ’s decision as a whole does not suggest that the ALJ was penalizing

Diamond for being an optimist about his patient’s progress, but reflects that the ALJ was concerned

 

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10 Butcher initially challenged the ALJ’s reliance on her statements to Rodrigue that her pain had improved

notwithstanding her qualification that the pain was already returning just days after the injection was administered. 

In her reply brief, Butcher agrees with the Commissioner that the ALJ was citing her reported reduction in pain as

grounds for rejecting Diamond’s opinion that Butcher had a limited ability for sustained attention and concentration. 

Butcher does not challenge the ALJ’s rejection of Diamond’s opinions about her attention and concentration.

Findings, Conclusions and Recommendation of

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about the divergence between Diamond’s expectations about his patient in March 2003 and his

assessment six months later based on the same diagnostic tools and findings. 

Butcher contends that Diamond actually had additional findings to support his later

assessment, particularly the functional capacity evaluation performed by occupational therapist John

Durkin in May 2003. She criticizes the ALJ for failing to include Durkin’s report in his discussion

of the medical record. 

The ALJ provided an adequate, if not comprehensive, discussion of Butcher’s treatment

history, and despite his failure to specifically mention Durkin’s findings, the ALJ arrived at the same

conclusion: Butcher could not return to her previous work as a flight attendant. Moreover, Durkin

does not include sitting, walking or standing in his list of Butcher’s areas of significant deficiency,

nor does Durkin’s report purport to determine Butcher’s specific limitations with respect to her

walking, standing or sitting tolerances. (Tr. 192).

Butcher also asserts that the ALJ erred in relying on Rodrigue’s reports that indicated that

Butcher’s pain was manageable with treatment.10 Butcher notes that, unlike Diamond, Rodrigue

offered no specific opinions about Butcher’s ability to perform work-related activities, and she

criticizes the ALJ for equating Rodrigue’s reports of manageable pain with the ability to work on

a sustained basis. She contends that the ALJ’s decision to elevate Rodrigue’s observations over

Diamond’s findings has no support in the record and is not compatible with the regulations.

 

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The ALJ found that Rodrigue’s records deserved weight because Diamond had enough

confidence in Rodrigue as a pain management specialist to refer patients to him. Although Butcher

does not agree with this reasoning, she has not demonstrated that the ALJ had no basis for making

such an assumption or identifying Rodrigue as a specialist in matters of back pain. The ALJ was

persuaded that Rodrigue’s reports contradicted the limitations that Diamond imposed. (Tr. 20-21).

Pain in particular is a disabling condition only when constant, unremitting and wholly unresponsive

to therapeutic treatment. Harrell v. Bowen, 862 F.2d 471, 480 (5th Cir. 1988). 

Butcher’s assertion that Rodrigue only treated her on three occasions during a one-month

period, while Diamond saw her on at least seven occasions over the course of a year likewise does

not warrant disturbing the ALJ’s decision. Both physicians are treating sources whose findings were

considered by the ALJ in his evaluation of Butcher’s disability claim, and the credence to be given

those opinions is the province of the ALJ. Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.1994).

The reasons outlined in the ALJ’s decision reflect careful consideration of the record and

constitute good cause for not adopting Diamond’s opinions about Butcher’s ability to sit, stand and

walk during a standard workday. Butcher has not demonstrated that the Commissioner’s decision

is unsupported by substantial evidence or a product of legal error.

RECOMMENDATION

It is recommended that the decision of the Commissioner be affirmed. 

 

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NOTICE OF RIGHT TO OBJECT TO PROPOSED

 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is hereby extending the deadline within which to

file specific written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation until October 5, 2005. The United States District Judge need only

make a de novo determination of those portions of the United States Magistrate Judge’s proposed

findings, conclusions and recommendation to which specific objection is timely made. See 28

U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed

factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest

injustice, from attacking on appeal any such proposed factual findings and legal conclusions

accepted by the United States District Judge. See Douglass v. United Services Auto Ass'n, 79 F.3d

1415, 1428-29 (5th Cir. 1996)(en banc).

ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until October 5,

2005 to serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, the response shall be filed within seven (7) days of the

filing date of the objections.

 

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It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby

is returned to the docket of the United States District Judge.

SIGNED SEPTEMBER 14, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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