Opinion
No. SA-04-CA-0778-RF.
May 17, 2005
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is the Memorandum and Recommendation of the United States Magistrate Judge (Docket No. 17), filed in the above-styled and numbered cause on March 4, 2005. The Magistrate Judge recommended that the decision of the Commissioner denying Plaintiff's application for disability benefits and supplemental security income benefits be affirmed. Plaintiff filed her objections to the Memorandum and Recommendation on March 9, 2005. After due consideration, the Court is of the opinion that the Magistrate Judge's Memorandum and Recommendation should be ADOPTED IN ITS ENTIRETY.
BACKGROUND
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) seeking review of Commissioner Barnhart's determination that Plaintiff is not disabled and therefore not entitled to receive disability benefits and supplemental security income benefits. Plaintiff filed an application for benefits on June 6, 2002 alleging disability beginning July 1, 2001. The Social Security Administration denied the application both initially and upon reconsideration. After a hearing on May 17, 2004, an administrative law judge ("ALJ") determined that Plaintiff is not disabled. The Appeals Council denied Plaintiff's request for review, thus making the determination of the ALJ the final decision of the Commissioner. United States Magistrate Judge John Primomo reviewed the Commissioner's decision denying Plaintiff's disability benefits and recommended that it be affirmed.
The Court hereby adopts by reference the summary of the ALJ's Findings and Plaintiff's Contentions provided in the Memorandum and Recommendation from pages 4 to 6. The record reflects that the ALJ considered Plaintiff's history of atrial fibrillation post-pacemaker-implantation, hypertension, obesity, lumbar spine degenerative disc disease, mild degenerative changes in the joints of the left upper extremity, and asthma, but the ALJ determined that Plaintiff retained the residual functional capacity to perform a limited range of sedentary work.
STANDARD OF REVIEW
The Court reviews de novo a Magistrate Judge's Memorandum and Recommendation if a party files specific objections within ten days of service. The Court need not consider objections that are frivolous, conclusive, or general in nature. If there are no specific objections to a Magistrate Judge's Memorandum and Recommendation, the District Court is to review it for findings and conclusions that are either clearly erroneous or contrary to law. In the instant case, Plaintiff timely filed specific objections to the Magistrate Judge's Memorandum and Recommendation. The Court thus reviews the Memorandum and Recommendation de novo. The Court hereby adopts by reference the Evaluation Process and Burden of Proof as well as the Standard of Review for assessing the Commissioner's decision denying disability or supplemental security income benefits that is set forth in the Memorandum and Recommendation on pages 3 and 4.
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
See United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
ANALYSIS
Plaintiff makes two main objections to the Magistrate Judge's Memorandum and Recommendation. First, Plaintiff objects that the ALJ and Magistrate Judge improperly assessed Plaintiff's past relevant work experience that she performed years ago in her native country to determine if she is capable of working in the United States today. The record reflects that the vocational expert interpreted Plaintiff's job duties in her native Moldova as indicating that she had worked as an assistant manager/scheduling coordinator. Plaintiff contends that the "bookkeeping" and "sewing machine operator" tasks she performed in Moldova, a Socialist planned economy of the former USSR, are vastly different than the tasks she would be expected to perform in today's workplace. The ALJ noted that the physical and mental demands of Plaintiff's relevant past work are no different from the demands of such work in the United States. A number of cases cited in the Memorandum and Recommendation indicate that when a claimant's past work was performed in a foreign country, the Commissioner is to determine whether the claimant can return to her previous work on the basis of medical considerations. Consideration of a claimant's ability to speak English to determine whether one can perform past relevant work is not required or relevant. The Court, thus, upholds the ALJ's finding and the Magistrate Judge's Memorandum and Recommendation that Plaintiff is capable of performing her past relevant work.
See In Garcia v. Secretary of Health and Human Services, 46 F.3d 552 (6th Cir. 1995); see Marinez v. Bowen, 685 F.Supp. 70, 71 (S.D.N.Y 1988); see Bussi v. Barnhart, 2003 WL 21283448 *6 (S.D.N.Y. 2003) (unpublished opinion); see Nudel v. Bowen, 876 F.2d 897, 1989 WL 63617 **5 (9th Cir. 1989) (unpublished opinion).
Id.
Second, Plaintiff objects to the analysis applied to Plaintiff's English language skills. Plaintiff complains that because the ALJ mentioned that Plaintiff's language skills are adequate for the workplace, the ALJ committed reversible error by taking language into consideration as a vocational factor. Language skills are relevant to considering a claimant's education and ability to perform other substantial gainful work at the fifth step in evaluating disability claims. However, the ALJ determined at the fourth step that Plaintiff is not disabled because she is capable of performing past relevant work. The ALJ's mention of Plaintiff's language abilities does not change that determination, and after de novo review, the Court upholds the ALJ's finding on this issue.
See id.
The Court hereby adopts the Magistrate Judge's Memorandum and Recommendation.
CONCLUSION
Accordingly, the Court ORDERS that the Memorandum and Recommendation (Docket No., 17) be ADOPTED IN ITS ENTIRETY.
FINAL JUDGMENT
On this day the Court entered an order adopting the Memorandum and Recommendation of the United States Magistrate Judge and dismissing Plaintiff's Complaint. The Court now enters its Final Judgment in accordance with Rule 58 of the Federal Rules of Civil Procedure.It is ORDERED that the Memorandum and Recommendation of the Magistrate Judge be ADOPTED IN ITS ENTIRETY (Docket No. 17).
It is ORDERED that all of Plaintiff's claims be DISMISSED WITH PREJUDICE.
It is ORDERED that each party bear its own costs.