NANCY NOWAK, Magistrate Judge
TO: Hon. Orlando Garcia United States District Judge.
I. Introduction
Plaintiff Patricia Leggett moves for summary judgment, seeking review of the administrative denial of her applications for Disability Insurance benefits ("DIB") and Supplemental Security Income ("SSI") by the Administrative Law Judge ("ALJ") on May 31, 2002. Plaintiff contends that ALJ Karen McCoy's conclusion that plaintiff retained the residual functional capacity to perform work available in the national and local economies is not supported by the substantial evidence of the record. Specifically, plaintiff urges that the ALJ: (1) improperly accorded little or no weight to the opinions of plaintiff's treating physician; and (2) erroneously concluded that plaintiff's allegations of pain and limitations were not credible. For these reasons, 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.
Docket Entry 13.
Id.
After considering plaintiff's motion for summary judgment, defendant's brief in support of the Commissioner's decision, plaintiff's reply to the defendant's 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 motion be DENIED.
Id.
Docket Entry 16.
Docket Entry 17.
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. § 405(g) and 1383.
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted her administrative remedies prior to filing this action in federal court. Plaintiff filed applications for DIB and SSI on May 25, 2000; alleging a disability beginning April 28, 2000. The SSA denied plaintiff's applications both initially, on October 10, 2000, and on reconsideration, February 9, 2001. Plaintiff requested a hearing before an ALJ on March 5, 2001.
Administrative Transcript ("Transcript"), at 45A-47, 289-292.
Transcript, at 23-28, 294-299.
Transcript, at 31-33, 302-303.
Transcript, at 35.
The administrative hearing was held on March 12, 2002. At the hearing, plaintiff was represented by counsel. Plaintiff's attorney was able to examine and question fully plaintiff and the vocational expert, Lloyd Fatzinger.
Transcript, at 309-332.
Id.
The plaintiff, who was forty five (45) years old at the March 2002 hearing, testified that she completed high school and had an Associate of Arts degree. She stated that she had work experience as a licensed vocational nurse (LVN) and as a janitor. Plaintiff further testified that she was divorced and her two daughters lived with their father. At the time of the hearing, plaintiff was living with her parents in their home.
Transcript, at 329.
Transcript, at 313.
Transcript, at 313, 315.
Transcript, at 314.
Transcript, at 319.
When asked about her daily activities, plaintiff testified that she watched television. Plaintiff stated that she cleaned the house approximately one or two times per week, and cooked her own meals approximately twice a week. Plaintiff further testified that she drove approximately five times a week.
Transcript, at 320.
Transcript, at 319.
Transcript, at 314.
Plaintiff told the ALJ that she suffered from severe tension headaches every day. She stated that she also suffers from migraine headaches about once a month. When she has a migraine, plaintiff is affected for three or four days. Plaintiff testified that she has had migraine headaches since the 1980s and that she has taken Butalbital, Tylenol Number 3, Maxol, Gabitentin, Florinal and Imitrex at various times to try and control the migraines.
Transcript, at 321.
Transcript, at 321.
Id.
Transcript, at 317-318.
On May 31, 2002, ALJ Karen McCoy issued her decision in which she 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, the ALJ found that plaintiff's only severe impairments — depression and migraine headaches — did not prevent plaintiff from performing work available in the local and national economies, even though it did prevent plaintiff from performing her past relevant work.
Transcript, at 8-19.
Transcript, at 8-19.
After receiving the ALJ's unfavorable decision dated May 31, 2002, plaintiff requested review of the hearing and decision on June 17, 2002. On August 16, 2002, 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 then commenced the instant action in this court on October 10, 2002.
Transcript, at 7.
Transcript, at 4-5.
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.
42 U.S.C. § 423(a)(1).
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, ALJ McCoy reached her decision at step five of the evaluation process. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful employment since her alleged onset of disability. The ALJ then concluded at steps two and three that the plaintiff had an impairment or combination of impairments (depression and migraine headaches) 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, while plaintiff was unable to return to her past relevant work, she retained the following residual functional capacity ("RFC"):
Transcript, at 8-19.
Transcript, at 13; ¶ 2, at 18.
Transcript, at 15; ¶ 3, at 18.
Transcript, at 15; ¶ 4, at 18.
Transcript, at 16; ¶ 8, at 18.
no limitations in lifting and/or carrying, standing, walking, sitting, bending, kneeling or crouching; fair ability to mainatin (
sic) concentration and persistence for extended periods; fair ability to interact appropriately with general public; fair ability to respond appropriately to changes in the workplace; and fair ability to complete normal work week and complete activities in a normal schedule. ["Fair' (
sic) is defined as somewhat affected, i.e.; (
sic) below average].
At step five, the ALJ held that given plaintiff's age (defined as a younger individual), education (more than a high school or high school equivalent education), and vocational experience (transferable job skills from skilled work previously performed), plaintiff could perform work as a
Transcript, ¶ 9, at 18.
Transcript, ¶ 10, at 19.
Transcript, ¶ 11, at 19.
school or industrial nurse, cashier (ticket office/parking lot), counter clerk and assembler (electronic equipment, plastics, etc, (
sic)).
Based on the foregoing, ALJ McCoy concluded that plaintiff was not under a disability. B. Is the ALJ's May 31, 2002 Decision Supported by Substantial Evidence?
Transcript, at 11, 18; ¶ 13, at 19.
Plaintiff challenges the ALJ's decision, asserting that the ALJ: (1) failed to accord the appropriate weight to the opinion of plaintiff's treating psychologist; and (2) neglected to assess plaintiff's credibility according to the applicable regulations and rulings. 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 motion be DENIED.
1. Did the ALJ fail to accord the appropriate weight to the opinion of plaintiff's treating psychologist?
In her first point of error, plaintiff argues that the ALJ failed to accord the appropriate weight to the opinion of plaintiff's treating psychologist, Dr. Stephen Getsinger, written in the report dated January 23, 2002. Plaintiff further asserts that the ALJ had a duty to re-contact Dr. Getsinger, as plaintiff's treating psychologist, to resolve any conflicts in the record between his opinions and the remaining evidence of record.
Docket Entry 13, at 8.
Docket Entry 13, at 9, citing Policy Interpretation Ruling Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner, SSR 96-5p (July 2, 1986).
In opposition, defendant asserts that Dr. Getsinger cannot be "fairly characterized" as a treating source, and, therefore, the ALJ committed no error in according Dr. Getsinger's opinions the little, if any, weight. Notably, plaintiff made no arguments in support of her first point of error in her reply brief, seemingly indicating that defendant's arguments regarding the same had merit.
Docket Entry 16, at 7.
See Docket Entry 17.
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." A treating physician or psychologist, also known as a "treating source," is defined by the regulations in the following way:
Dorsey v. Heckler, 702 F.2d 597, 603 (5th Cir. 1983).
Treating source means your own physician, psychologist or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you. Generally, we will consider that you have an ongoing treatment relationship with an acceptable medical source when the medical evidence establishes that you see, or have seen, the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s). We may consider an acceptable medical source who has treated or evaluated you only a few times or only after long intervals (e.g., twice a year) to be your treating source if the nature and frequency of the treatment or evaluation is typical for your condition(s).
We will
not consider an acceptable medical source to be your treating source if your relationship with the source is not based on your medical need for treatment or evaluation, but solely on your need to obtain a report in support of your claim for disability. In such a case, we will consider the acceptable medical source to be a nontreating source.
In the instant case, the document to which plaintiff refers — Dr. Getsinger's January 2002 "report" — is actually a form completed by the psychologist to assist plaintiff in obtaining food stamps. The form states that plaintiff was unable to work, and that said inability would be temporary but would likely last twelve months. Notably, the form surmises that the onset of plaintiff's disability was December 29, 2001.
Transcript, at 286.
Id.
Although certain of the treatment notes in the record indicate that plaintiff might have seen Dr. Getsinger once or twice before this appointment, plaintiff was clearly not in an ongoing treatment relationship with Dr. Getsinger at the time he filled out the January 2002 food stamp report. The status and duration of Dr. Getsinger's relationship with plaintiff is apparent in the fact that he had to take plaintiff's case history at the January 23, 2002 appointment. Thus, at the time Dr. Getsinger wrote his January 2002 "report," plaintiff's relationship with him was based on her "need to obtain a report in support of [her] claim for disability." Said report, then, qualifies as a non-treating source opinion and is not entitled to controlling weight. For these reasons, the ALJ's failure to discuss Dr. Getsinger's January 23, 2002 report does not constitute prejudicial error.
See Transcript, at 280, 281.
Transcript, at 276.
See 20 C.F.R. § 404.1502.
Even though the ALJ failed to acknowledge or discuss Dr. Getsinger's January 2002 form or notes, said error is not prejudicial. Because the ALJ was not required to give controlling weight to his opinions, plaintiff has failed to meet her burden of proving that the outcome would have been different had the ALJ considered Dr. Getsinger's report. Plaintiff has, therefore, failed to meet her burden of establishing prejudicial error regarding her first point of error. See Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000), "This Court will not reverse the decision of an ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure . . . To establish prejudice, a claimant must demonstrate that he or she `could and would have adduced evidence that might have altered the result (internal citations omitted).'" Notably, while the ALJ neglected to mention Dr. Getsinger's January 23, 2002 form or progress notes, she did acknowledge the January 16, 2002 report filled out by Dr. Holliday — a practitioner associated with Dr. Getsinger. See Transcript, at 280.
2. Did the ALJ fail to assess plaintiff's credibility properly?
In her second, and final, point of error, plaintiff asserts that the ALJ's evaluation of plaintiff's credibility was insufficient and did not comply with Social Security Ruling 96-7p. In particular, plaintiff asserts
Docket Entry 13, at 9-12.
The development of plaintiff's activities of daily living by the ALJ was cursory, and did not include an evaluation of the degree of pain which the Plaintiff experiences in conducting her daily activities. Aside from a brief review of the Plaintiff's activities of daily living, the ALJ did not address any of the other six (6) factors enumberated (
sic) in SSR 96-7p. The ALJ did not perform the two (2) part procedure as required by SSR 96-7p, but instead collapsed the entire procedure into one part.
Social Security Ruling 96-7p was written to clarify the procedure to be used in assessing the credibility of a Social Security claimant's statements about symptoms and pain. The Ruling requires the ALJ to engage in a two-step process. In the first step,
Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims — Assessing the Credibility of an Individual's Statements, SSR 96-7p, at * 1.
the adjudicator must consider whether there is an underlying
medically determinable physical or mental impairment(s) . . . that could reasonably be expected to produce the individual's pain or other symptoms.
If an underlying physical or mental impairment that could reasonably be expected to produce the individual's pain has been established, the adjudicator
must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities.
When the adjudicator needs additional information to assess the plaintiff's credibility, he should assess the following kinds of factors:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
In the instant case, the ALJ stated, in making her assessment regarding plaintiff's RFC,
the undersigned must consider all symptoms, including pain and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other
evidence . . . The undersigned must also consider any medical opinions, which are statements from acceptable medical sources, which reflect judgments about the nature and severity of the impairments and resulting limitations . . . Since the medical evidence shows that the claimant has migraine headaches that could reasonably cause some intermittent decline in functioning, the undersigned must determine the extent to which her symptoms limit her ability to do basic work activities. The record indicates in 1999, the claimant had a negative CT scan of the head in 1999 (Exhibit 1F/61). A consultative medical report dated August 25, 2000 (
sic) stated that there was no weakness or sensory deficits in her extremities. The claimant did not have any vertigo symptoms. Motor function was within normal limits. The claimant was able to walk without difficulty (Exhibit 1F/8-9). Progress notes on September 15, 2000 indicated that the claimant was not to take more than 6 tablets of Fiorceit per headache (Exhibit 56), but claimant testified that she took 6 pills a day. In regard to her activities of daily living, the claimant testified that he (
sic) drove a vehicle 5 times a week; cooked twice a week for herself; and did housecleaning one (
sic) or twice a week.
The claimant's subjective complaints regarding pain and physical limitations from her headaches appear to be exaggerated and are not fully supported by the medical evidence or activities of daily living.
Although, as defendant notes, the ALJ's assessment of plaintiff's credibility was a bit conclusory, it does not constitute prejudicial, i.e. reversible, error for two reasons. First, Social Security Ruling 96-7p does not require the ALJ to assess each and every one of the aforementioned factors. Rather, it outlines the aforementioned as examples of the types of factors the ALJ should consider in order to analyze fully a plaintiff's credibility. In this case, the ALJ properly determined, in step one of the 96-7p analysis, that there were medically determinable impairments which could reasonably cause the pain of which plaintiff complained. And, in step two, the ALJ assessed several factors, including plaintiff's daily activities and migraine medications, in determining that plaintiff's allegations of pain were not wholly credible. Thus, the ALJ adequately analyzed the factors set forth in 96-7p.
See Docket Entry 16, at 8-9.
Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims — Assessing the Credibility of an Individual's Statements, SSR 96-7p, at * 3, "20 C.F.R. ( sic) § 404.1529(c) and 416.929(c) describe the kinds of evidence, including the factors below, that the adjudicator must consider in addition to the objective medical evidence when assessing the credibility of an individual's statements . . . (emphasis added)."
Second, Plaintiff's second point of error discusses the consistency of the documentation supporting plaintiff's migraine headaches. In this case, the ALJ explicitly discussed the objective medical evidence regarding plaintiff's migraines, as cited, supra, in finding that plaintiff's allegations of pain were not wholly supported by the substantial evidence of the record. Because plaintiff's point of error focuses on the ALJ's discussion of the subjective evidence of record as it relates to the objective evidence of record, I find it unavailing. Here, the ALJ did
on an articulated basis weigh the objective medical evidence in assigning reasons for discrediting the claimant's subjective complaints of pain.
Additionally, the ALJ incorporated some limitations from plaintiff's headaches in her assessment of plaintiff's RFC. Notably, the ALJ held that plaintiff had only a fair ability to maintain concentration and persistence for an extended period of time and to complete a normal work week and activities in a normal schedule. Thus, the ALJ did not completely discredit plaintiff or wholly ignore her subjective complaints.
Transcript, at 16.
In reviewing the decision, the court is authorized only to explore whether the ALJ's conclusions are supported by the substantial evidence of the record.
In evaluating the evidence, `[t]he Court may not substitute its own judgment for that of the Secretary, even if it night justifiably have reached a different result upon a de novo review.'
Moreover, even if the evidence preponderates against the ALJ's findings, the decision must be affirmed if it is supported by substantial evidence. Bearing the aforementioned standards of review in mind, the ALJ's decision regarding plaintiff's credibility is supported by the substantial evidence of the record.
See Smith v. Chater, 962 F. Supp. 980, 982 (N.D. Tex. 1997), "Even if the court should determine that the evidence preponderates in the claimant's favor, the court must still affirm the Commissioner's findings if there is substantial evidence to support these findings."
In one of the final paragraphs of her motion, plaintiff argues that the ALJ improperly failed to analyze plaintiff's ability to maintain employment. Although not averred as a formal point of error, plaintiff asserts
The ALJ failed to discuss the consistency of documentation for the Plaintiff's migraines and what residual effect they would have on the Plaintiff's not only obtaining, but maintaining any employment.
When a plaintiff's ability to maintain employment is questioned during the administrative hearing process, the ALJ is required to engage in an analysis of the same. However, the ALJ is not obligated to make
See, e.g. Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002); Wingo v. Bowen, 852 F.2d 827 (5th Cir. 1988).
separate findings on `obtaining' and `maintaining' a job in every case, even cases in which the applicant does not suggest that there is any difference
between the issue of his ability to work and his ability to sustain work.
Rather, the ALJ is required to assess the plaintiff's ability to maintain employment only when the plaintiff's
intermittently recurring symptoms . . . [are] of sufficient frequency or severity to prevent the claimant from holding a job for a significant period of time.
In this case, plaintiff's ability to maintain employment was never questioned during the administrative hearing process and, therefore, the ALJ's failure to address the same does not constitute prejudicial error.
See Carey v. Apfel, 230 F.3d 131.
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's complaint be DISMISSED, and the Commissioner's decision AFFIRMED. The ALJ's decision, and particularly her treatment of Dr. Getsinger's January 2002 report and assessment of plaintiff's credibility, was supported by the substantial evidence of the record and was made according to the correct legal standards. Plaintiff has failed to establish that the ALJ committed prejudicial error. Accordingly, I recommend that plaintiff's motion seeking reversal of the Commissioner's final decision (Docket Entry 13) be DENIED in all respects.
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).