Opinion
CIVIL ACTION NO. 4:02CV-602-A
November 21, 2003
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), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
A. STATEMENT OF THE CASE
Plaintiff Helen Lirley 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 the Social Security Administration denying her claim for disability insurance benefits under Title II of the Social Security Act. Lirley applied for disability benefits on March 5, 1990, alleging she has been disabled since November 1, 1984. Her insured status expired December 31, 1988. (Tr. 11-19).
Her application is not included in the administrative record.
After the Social Security Administration denied her application for benefits initially and on reconsideration, Lirley requested a hearing before an administrative law judge (the "ALJ"). An ALJ in Missouri, where Lirley was residing at the time, held a hearing in June 1991 and issued an unfavorable decision on August 21, 1991. (Tr. 23-31). The Appeals Council refused Lirley's request for review in November 1991, but Lirley was not notified of that decision until 1997. The Appeals Council granted Lirley's request for an extension of time to commence a civil action, which she timely filed in the United States District Court for the Western District of Missouri. Her case was subsequently remanded (pursuant to sentence six of 42 U.S.C. § 405(g)) to the Commissioner after the administrative transcript could not be found. The Appeals Council vacated the 1991 administrative decision and returned the case to the ALJ for a new hearing.
In the meantime, Lirley had moved to Texas. Her case was transferred to the Office of Hearings and Appeals in Fort Worth, Texas, where ALJ Herbert J. Green held a hearing on April 10, 2001. (Tr. 80). Lirley was represented by counsel. On April 26, 2001, the ALJ issued a decision in which he found Lirley was not disabled because she had the residual functional capacity (RFC) to perform a modified range of sedentary work activity. (Tr. 11-19). The Appeals Council denied Lirley's request for review of her case, leaving the ALJ's decision to stand as the final decision of the Commissioner. (Tr. 4). After the parties returned to the district court in Missouri, the case was transferred to the United States District Court for the Northern District of Texas.
Lirley filed another application in 1995 covering the same alleged period of disability, and that application was incorporated into the ALJ's decision.
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. An impairment or combination of impairments is severe if it significantly limits a claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c).
At the third step, disability will be found if the 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, 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. Chafer, 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, even if the court believes the evidence weighs against the Commissioner's decision. Id.; Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Hollis, 837 F.2d at 1383.
C. ISSUES
1. The ALJ's decision is unsupported by reliable vocational evidence.
2. The ALJ failed to give appropriate consideration to Lirley's obesity at each step of the sequential evaluation process.
D. ADMINISTRATIVE RECORD
1. Medical History
Lirley injured her neck in a car accident in 1966, and underwent two surgical fusions at C4-C6 to repair the damage. (Tr. 113). There are no additional medical records for Lirley until November 4, 1984, when she was hospitalized in Graham, Texas for severe left shoulder pain with marked swelling and discoloration of her upper left arm. (Tr. 102). Lirley's physicians initially thought she had venous thrombosis in her left arm and placed her on blood thinners, but a venogram was normal. Her physicians diagnosed bleeding into the left biceps, and discontinued use of the blood thinners. Lirley failed to improve and was discharged from the hospital on November 10, 1984. (Tr. 102). Her family physician subsequently found the source of her shoulder pain: a beginning asceptic necrosis and a chip fracture of the left humerus. Lirley reported no history of trauma to that area. (Tr. 102). Lirley was transferred to the care of an orthopedic surgeon, but no records from that office are included in the administrative record.
Asceptic necrosis generally refers to increasing sclerosis and cystic changes in the head of the femur that sometimes follows the traumatic dislocation of a hip, but a similar condition can develop in the head of the humerus after a shoulder dislocation. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1181 (29thled. 2000).
On December 19, 1984, Lirley was hospitalized in Dallas, Texas. Physician Vert Mooney ordered further studies of Lirley's left shoulder. An x-ray showed total destruction of the head of the humerus. (Tr. 118). A venogram showed distortion of the main axillary vein in Lirley's left shoulder, but no true obstruction. (Tr. 118).
Mooney performed a biopsy on Lirley's left shoulder, and found that the humeral head had separated from the proximal humerus with considerable fragmentation and instability of the joint. (Tr. 110). A biopsy showed no malignancy. Mooney diagnosed a neuropathic left shoulder joint. (Tr. 118). He opined that a total joint replacement was not possible because of the ongoing process, which would destroy the bone abutting any prosthesis. (Tr. 118). He recommended using anti-inflammatory medications and a sling to immobilize the arm until the process could be reduced.
Lirley moved to Missouri with her family in 1986. She obtained refills of her anti-inflammatory medication in 1986 and January 1987, (Tr. 124), but no records of further treatment appear until April 1988 when Lirley saw physician T. L. Swain. She had problems with the range of motion in her shoulder. She reported no discomfort, but had some weakness and swelling in her arm. (Tr. 125). Swain noted an oddly passive range of motion in Lirley's left shoulder, which did not appear to have an axis around the joint. An x-ray disclosed a Charcot-type joint. Swain prescribed anti-inflammatory medication and also gave Lirley a prescription for an anti-anxiety medication to be used as needed. (Tr. 125). Lirley's condition was unchanged at her next visit the following month. In July 1988, Lirley complained of left shoulder discomfort. (Tr. 125). She had not had any specific injury to the area, but had recently driven a long distance before developing ecchymosis and swelling in her left shoulder. Swain diagnosed mild bleeding into the soft tissues. He renewed Lirley's prescriptions.
Charcot's arthropathy or neuropathic arthropathy is a chronic progressive degeneration of the stress-bearing portion of a joint, with bizarre hypertrophic changes at the periphery. Id. at 152.
Lirley also sought surgical treatment for her shoulder. She consulted orthopedic surgeon Gregory Hummel on December 29, 1988. (Tr. 129). Hummel examined Lirley, but advised her that a total joint replacement would not improve her condition because her rotator cuff had not been functional for four years. The area was too scarred and retracted to provide stabilization for a prosthetic joint. (Tr. 129).
December 31, 1988 was the date Lirley was last insured for disability insurance benefits.
Lirley consulted with another surgeon, Gottfried Kaestner, in Houston, Texas. Kaestner was willing to attempt joint replacement surgery. After x-rays, a computed tomography (CT) scan, and electromyography tests were performed, Kaestner scheduled surgery for June 5, 1989. (Tr. 133, 138). During the surgery, Kaestner found it was not possible to use a prosthetic joint. He instead detached a bone fragment, sutured the musculature, and reattached the rotator cuff to the remaining humerus to gain some shoulder stability. (Tr. 134). Lirley was discharged after a six-day hospital stay.
2. Administrative Hearing
Lirley was born December 7, 1941. She is a high school graduate. She gave her height as 5'4" and weight as about 250 pounds. She is right handed. (Tr. 84). She last worked in 1983 as a word processor, but stopped working when her family moved to Graham, Texas for her husband's new job. (Tr. 85).
Lirley went to the hospital in November 1984 because her left arm was swollen. After she was released, she noticed that her arm felt "creaky" and made noise, so she went to the emergency room where an x-ray showed that her shoulder was fractured. (Tr. 86). Following surgery in December 1984, Lirley continued to be in pain, and she was unable to move her left arm independently. (Tr. 87). She also had no feeling in that arm. Lirley testified that her physicians had told her that she must have had a pinched or cupped nerve after her neck surgery that caused her shoulder joint to disintegrate. (Tr. 85).
Lirley had not returned to work after surgery. She testified that she was able to cook. She dressed herself, but it was painful. She no longer drove. (Tr. 88). She attempted to do some housework, but had to stop after fifteen or twenty minutes due to the pain. She used to garden, but stopped after her operation. She spent the day watching television or reading the newspaper and magazines. (Tr. 89).
She testified that she could sit for thirty or forty minutes or stand for thirty or forty minutes before the pain required her to lie down, which she did three or four times a day for an hour each time. (Tr. 95-97). She did not use a sling because her doctors told her it would cause further atrophy of the muscles that she had left in her shoulder. (Tr. 95). Her adult son helped her with the house and also provided her with transportation. (Tr. 96).
Vocational expert Carol Bennett testified that Lirley would have been forty-seven years of age as of December 1988 and considered a younger individual. Lirley's previous work was sedentary and semi-skilled work activity. (Tr. 98). The ALJ asked Bennett to consider
an individual of the claimant's age, education and work experience. I want you to assume further that the individual be limited to the exertional level of sedentary work; that this individual could sit or stand at their option; they have no use of the non-dominant arm. And the individual would have a less than moderate concentration deficit. Are there any jobs in the national economy such an individual could perform?
(Tr. 98). Bennett identified work as a surveillance system monitor, which is unskilled work that would provide a worker with the option to sit or stand. Over 50,000 such jobs were available in the United States. (Tr. 98). Bennett also identified unskilled work as an inspector. She testified that there were 50,000 of these jobs nationwide. (Tr. 98). The ALJ asked Bennett if her testimony conflicted with the Dictionary of Occupational Titles (DOT), which Bennett denied. (Tr. 99).
3. ALJ Decision
The ALJ found that Lirley met the disability insured status requirements from her alleged onset date through December 31, 1988, but not thereafter. As of the date she was last insured, Lirley had a severe left shoulder impairment secondary to neuropathic joint destruction, but had no impairment or impairments that met or equaled the severity of any listed impairment. (Tr. 17). The ALJ found that Lirley retained the residual functional capacity (RFC) for sedentary work activity with a sit/stand option, further limited by her inability to use her non-dominant left arm and her less than moderate concentration deficit. (Tr. 18). The ALJ found that Lirley had no past relevant work, but based on the vocational expert's testimony, Lirley was able to perform other work available in significant numbers in the national economy. (Tr. 18). The ALJ concluded that Lirley was not under a disability at any time through December 31, 1988,'and was not entitled to disability insurance benefits. (Tr. 19).
E. DISCUSSION
1. Vocational Evidence
Lirley asserts that the vocational expert testimony is unreliable and does not support the ALJ's decision at Step Five of the sequential evaluation process.
Lirley complains that the vocational expert's testimony about work as an inspector conflicts with the descriptions of that occupation in theDictionary of Occupational Titles (DOT), and no substantial reason has been given to explain this deviation. The Social Security Administration issued Ruling 00-4p, effective December 4, 2000, to clarify the use of vocational experts and other occupational information in the disability determination process. See generally SOCIAL SECURITY RULING 00-4p. The ruling places an affirmative duty on the adjudicator to inquire into possible conflicts between vocational expert evidence and the DOT. See id. Neither the DOT nor the vocational expert evidence is per se controlling, and when faced with a conflict between the vocational expert and the DOT, the ALJ may rely upon the vocational expert's testimony provided that the record reflects an adequate basis to do so. Carey v. Apfel, 230 F.3d 131, 146-47 (5th Cir. 2000).
Where the rights of individuals are affected, an agency must follow its own procedures, even where the internal procedures are more rigorous than otherwise would be required." Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000) (citing Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. 1981) (per curiam)). Should prejudice result from a violation of the agency's internal rules, then the result cannot stand. Newton, 209 F.3d at 459.
The court's opinion in Casey comports with previous Fifth Circuit case law recognizing that a vocational expert is consulted because of a familiarity with job requirements and working conditions of particular occupations. Vaughan v. Shalala, 58 F.3d 129, 132 (5th Cir. 1995) (per curiam). In fact, the Fifth Circuit has consistently assigned significant value to the education and experience of a vocational expert as compared to the DOT. See, e.g., Vaughn, 58 F.3d at 132; Fields v. Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986) (per curiam).
Vocational expert Carol Bennett testified that work as an inspector was sedentary, unskilled work suitable for someone with Lirley's given RFC. During Lirley's hearing, the ALJ specifically asked Bennett if her testimony conflicted with the DOT, but Bennett stated that it did not. (Tr. 98-99). Lirley asserts that the vocational expert erred because there are twenty-two inspection jobs listed in the DOT, but twenty-one of these require light exertion and the remaining job is classified as semi-skilled. (Plf. Br. at 12-13). A vocational expert's erroneous characterization of the exertion level or skills required of a particular job calls into question both the probative value and reliability of the vocational expert's testimony. Id. at 147.
It is significant that the Commissioner does not challenge this aspect of Lirley's argument or identify any inspection jobs in the DOT that would be consistent with Lirley's RFC for a modified range of sedentary work activity. The vocational expert did not identify any specific inspection job by its DOT classification number, nor did the ALJ ask her to do so, but she did describe how an inspector would be expected to lift small objects, such as potato chips or small toys. (Tr. 100). The DOT contains a listing for Potato-Chip Sorter, but describes it as unskilled light work. DICTIONARY OF OCCUPATIONAL TITLES § 526.686-010 (rev. 4th ed. 1991). There is a listing for toy assembler, which includes a duty of inspecting toys, but it too is identified as unskilled light work. Id. § 731.687-034. There is also a listing for toy inspector, but it is light work and is semiskilled. Id. § 731.687-022. The vocational expert said that the jobs she had identified were sedentary and unskilled in nature. (Tr. 99).
The Commissioner criticizes Lirley for failing to question the vocational expert about this conflict during the hearing. The Fifth Circuit has cautioned against allowing a claimant to scan the record for implied or unexplained conflicts between expert witness testimony and the voluminous provisions of the DOT and then present the conflict as reversible error when the conflict was not considered sufficient to merit adversarial testing during the administrative hearing. Carey, 230 F.3d at 146-47. However, the situation here is distinguishable in that the vocational expert's testimony was misleading. The vocational expert affirmed that she was relying on the DOT as the basis for her opinion, but apparently misstated the actual DOT requirements for an inspector's job. In turn, the ALJ's decision based on such testimony is not supported by substantial evidence.
The vocational expert, however, also identified the occupation of surveillance system monitor as work that would be suitable for someone with Lirley's RFC. Lirley does not dispute that this job is sedentary, unskilled work. DICTIONARY OF OCCUPATIONAL TITLES § 379.367-010 (rev. 4th ed. 1991). Instead, she asserts that the number of jobs for surveillance system monitors in this region of the country is unknown and thus the Commissioner failed to carry her burden of proof at Step Five of the sequential evaluation process.
The vocational expert testified that there were some 50,000 jobs for surveillance system monitors available nationally, (Tr. 98), but Lirley contends that the pivotal inquiry is the number of jobs available in the geographical region of her residence. The vocational expert did not give the number of regional jobs available for surveillance system monitors.
Lirley's contention is unsupported by the governing law. Any work that the claimant is able to do must exist in significant numbers in the national economy, either in the region where the claimant lives or in several other regions of the country. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1566(a). It is not necessary that the work exist in the immediate area where the claimant lives, that a specific job vacancy exists, or that the claimant would be hired if she applied for the job, 20 C.F.R. § 404.1566(a)(1)-(3); however, isolated jobs existing in only very limited numbers in relatively few locations outside of the region where the claimant lives are not sufficient. 20 C.F.R. § 404.1566(b).
Lirley contends that the region of a claimant's residence determines the expanse of the "national economy" for purposes of determining whether a significant number of jobs exist. See Mericle v. Shalala, 892 F. Supp. 843 (E.D. Tex. 1995). But her interpretation of "national economy" as being limited to her own area of the country is inconsistent with the statutory and regulatory definitions, which each contain language indicating that a much broader geographic scope can be used to satisfy the Commissioner's burden. The existence of 50,000 jobs nationally is statistically sufficient to meet the "significant number" requirement, regardless of the number of jobs available for surveillance system monitors in the region in which Lirley resides.
Lirley also cites to an unpublished opinion, Walker v. Shalala, 1994 WL 171209 (S.D. Tex. 1994), in which District Judge Hittner found that 1,800 surveillance system jobs available in the Texas area and 18,000 such jobs available nationally did not constitute a significant number of other jobs that Walker could perform. The court is not required to accept the findings of an unpublished opinion from another district. In addition, other courts have found that far fewer jobs than 18,000 or even 1,800 can suffice to carry the Commissioner's burden. See, e.g., Lee v. Sullivan, 988 F.2d 789 (7th Cir. 1993)(1,400 jobs); Trimiar v. Sullivan, 966 F.2d 1326, 1330-32 (10th Cir. 1992)(650-900 jobs); Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988) (500 jobs); Alien v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987) (174 jobs). In the court's decision in Mericle, a total of 870 jobs were available in Texas, a number that the court found to be insignificant; however, it is not clear that the vocational expert in that case had provided the ALJ with any national figures. Mericle v. Shalala, 892 F. Supp. 843 (E.D. Tex. 1995).
2. Obesity
Lirley also contends that the ALJ failed to include a proper evaluation of her obesity in his disability determination. The Social Security Administration will find that an individual with obesity meets the requirements of a listing if he or she has another impairment that, by itself or in combination with obesity, meets the requirements of a listing. SOCIAL SECURITY RULING 02-01p (superseding Ruling 00-3p). Obesity may increase the severity of coexisting or related impairments, especially musculoskeletal, respiratory, and cardiovascular impairments, to the extent that the combination of impairments meets the requirements of a listing. Obesity is also a relevant consideration during the later steps of the evaluation process because obesity can cause limitation of function and can affect a person's ability to sustain a function over time. Id. However, the Commissioner does not make any assumptions about the severity or functional effects of obesity combined with other impairments, and each case must be decided on its own record. Id.
Until 1999, the Listing of Impairments included a category for obesity, Listing 9.09, but that listing was deleted effective October 25, 1999. The ALJ's decision was rendered in April 2001, and Lirley's request for review was denied in March 2002, therefore the revised listings apply.
The medical records and Lirley's testimony reflect that she was morbidly obese during the relevant time period. Although the ALJ asked Lirley about her height and weight during the hearing, he did not discuss obesity in his written decision. Lirley complains that her obesity was a medically determinable impairment or severe impairment, and asserts that the ALJ should have considered whether she met or medically equaled Listing 1.02B:
1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). With: . . .
B. Involvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1.00B2c.20 C.F.R. Part 404, Subpart P, App. 1, § 1.02B (emphasis added).
The ALJ found that Lirley lacked the use of her left arm, but Lirley urges that the function of her right arm could have been affected to the extent that fatty tissue affected her ability to use her right hand and fingers. See generally SOCIAL SECURITY RULING 02-1p. Lirley is asking the court to speculate and cites no affirmative evidence that her obesity caused an extreme loss of function in her right hand or arm during the 1984-1988 time period.
The listings define an inability to perform fine and gross movements effectively as the
[inability] to perform fine and gross movements effectively means an extreme loss of function of both upper extremities; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. To use their upper extremities effectively, individuals must be capable of sustaining such functions as reaching, pushing, pulling, grasping, and fingering to be able to carry out activities of daily living. Therefore, examples of inability to perform fine and gross movements effectively include, but are not limited to, the inability to prepare a simple meal and feed oneself, the inability to take care of personal hygiene, the inability to sort and handle papers or files, and the inability to place files in a file cabinet at or above waist level.20 C.F.R. Part 404, Subpart P, App. 1, § 1.00B(2)(c).
Lirley also complains of the ALJ's failure to address her obesity in assessing her RFC, but Lirley has presented no objective evidence regarding the effect of her weight on her ability to engage in work activities. The only references to her weight in the record are stray remarks by physicians noting her weight or overweight appearance. None of her treating physicians have commented on the effect of her weight on her medical condition. Lirley did not present obesity as an impairment at the administrative level, and when given the opportunity, counsel did not question the vocational expert about any functional restrictions allegedly caused by Lirley's weight. The ALJ assessed a RFC for sedentary work with a sit/stand option, no use of the left hand, and accommodation of a concentration deficit. Lirley does not identify any additional obesity-related restrictions that should have been included in this assessment.
Although the ALJ failed to address Lirley's obesity in his decision, the court will not vacate an administrative decision unless the claimant's substantial rights have been affected. See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). Here, there is no indication that Lirley's weight further restricted her RFC or rendered her disabled when considered in combination with her other impairments. Accordingly, there is no basis for disturbing the Commissioner's decision.
RECOMMENDATION
It is recommended that the decision of the Commissioner be affirmed.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 December 15, 2003. 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 December 15, 2003 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.
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.