Barber v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Magistrate Judge T Michael Putnam on 3/25/15. (MRR )
2015 Mar-25 PM 01:36
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CYNTHIA DENISE BARBER,
CAROLYN W. COLVIN,
Commissioner of Social Security,
Case No. 5:13-cv-2240-TMP
The plaintiff, Cynthia Denise Barber, appeals from the decision of the
Commissioner of the Social Security Administration (ACommissioner@) denying her
application for Supplemental Security Income (ASSI@) and Disability Insurance
Benefits (ADIB@). Ms. Barber timely pursued and exhausted her administrative
remedies, and the decision of the Commissioner is ripe for review pursuant to 42
U.S.C. '' 405(g), 1383(c)(3). The parties have consented to the jurisdiction of the
undersigned magistrate judge pursuant to 28 U.S.C. ' 626(c).
Ms. Barber was 48 years old at the time of the Administrative Law Judge=s
(AALJ=s@) decision, and she has a high school equivalent education. (Tr. at 23).
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Her past work experiences are as a nurse=s aide and as a group home supervisor.
(Id.) Ms. Barber claims that she became disabled on March 1, 2009, due to
degenerative joint disease of the back and neck, fibromyalgia, and depression.
(Tr. at 137).
When evaluating the disability of individuals over the age of eighteen, the
regulations prescribe a five-step sequential evaluation process. See 20 C.F.R.
'' 404.1520, 416.920; see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir.
2001). The first step requires a determination of whether the claimant is Adoing
substantial gainful activity.@ 20 C.F.R. '' 404.1520(a)(4)(i), 416.920(a)(4)(i). If
she is, the claimant is not disabled and the evaluation stops. Id. If he or she is not,
the Commissioner next considers the effect of all of the physical and mental
impairments combined. 20 C.F.R. '' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). These
impairments must be severe and must meet the durational requirements before a
claimant will be found to be disabled. Id. The decision depends upon the medical
evidence in the record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971). If
the claimant=s impairments are not severe, the analysis stops.
'' 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Otherwise, the analysis continues to step
three, which is a determination of whether the claimant=s impairments meet or equal
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the severity of an impairment listed in 20 C.F.R. pt. 404, Subpart P, Appendix 1. 20
C.F.R. '' 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant=s impairments fall
within this category, he or she will be found disabled without further consideration.
Id. If she does not, a determination of the claimant=s residual functional capacity
(ARFC@) will be made and the analysis proceeds to the fourth step. 20 C.F.R. ''
404.1520(e), 416.920(e). Residual functional capacity is an assessment based on
all relevant evidence of a claimant=s remaining ability to do work despite his or her
impairments. 20 C.F.R. ' 404.1545(a).
The fourth step requires a determination of whether the claimant=s
impairments prevent her from returning to past relevant work. 20 C.F.R. ''
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant can still do her past relevant
work, the claimant is not disabled and the evaluation stops. Id. If the claimant
cannot do past relevant work, then the analysis proceeds to the fifth step. Id. Step
five requires the court to consider the claimant=s RFC, as well as the claimant=s age,
education, and past work experience, in order to determine if she can do other work.
20 C.F.R. '' 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can do other
work, the claimant is not disabled. Id. The burden of demonstrating that other
jobs exist which the claimant can perform is on the Commissioner; and, once that
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burden is met, the claimant must prove her inability to perform those jobs in order to
be found to be disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
Applying the sequential evaluation process, the ALJ found that Ms. Barber
has not been under a disability within the meaning of the Social Security Act from
the date of onset through the date of his decision. (Tr. at 26). He determined that
Ms. Barber has not engaged in substantial gainful activity since the alleged onset of
her disability. (Tr. at 13). According to the ALJ, Ms. Barber=s degenerative disc
disease of the lumbar spine, mild degenerative disc disease of the cervical spine,
obesity, and major depression are considered Asevere@ based on the requirements set
forth in the regulations.
He further determined that these impairments
neither meet nor medically equal any of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. at 14-16). The ALJ did not find Ms. Barber=s
allegations to be totally credible. (Tr. at 17). He determined that the plaintiff has
the residual functional capacity to perform unskilled sedentary work with the
following limitations: that she can frequently lift or carry 10 pounds, and 20 to 50
pounds occasionally; sit five hours in an eight-hour workday, but no more than four
hours at one time, without the ability to stand and change position; stand for two
hours in an eight-hour workday; walk for one hour in an eight-hour workday;
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frequently reach in all directions; handle, finger, feel, push, and pull with both
hands; frequently operate foot controls; frequently climb stairs, ramps, ladders or
scaffolds; frequently balance, stoop, kneel, crouch, and crawl; frequently work at
unprotected heights, around moving mechanical parts, and operate a motor vehicle;
frequently work in humidity, wetness, dust, odor, fumes, pulmonary irritants,
extreme cold and heat and vibratory jobs; understand and remember simple
instructions but not detailed instructions; and carry out simple instructions and
sustain attention to routine/familiar tasks for eight hours in two-hour increments
with all normal rest breaks. (Tr. at 16). He further determined that Ms. Barber
should have only occasional contact with the public and can adapt to infrequent,
well-explained changes. (Id.)
According to the ALJ, Ms. Barber is unable to perform any of her past
relevant work, she was a Ayounger individual@ at the date of alleged onset, and she
has a high school education and is able to communicate in English, as those terms
are defined by the regulations. (Tr. at 23). He determined that Atransferability of
skills is not material to the determination of disability@ in this case.
(Tr. at 24).
The ALJ found that Ms. Barber has the residual functional capacity to perform a
significant range of sedentary work. (Tr. at 25). Even though Plaintiff cannot
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perform the full range of sedentary work, the ALJ found that there are a significant
number of jobs in the national economy that she is capable of performing, such as
cutter and paster, final assembler, and assembler. (Tr. at 24).
The ALJ concluded
his findings by stating that Plaintiff is Anot disabled@ under the Social Security Act.
(Tr. at 24).
Standard of Review
This court=s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of its review is limited to determining (1) whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and (2) whether the correct legal standards were applied. See
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); Wilson v. Barnhart, 284 F.3d
1219, 1221 (11th Cir. 2002). The court approaches the factual findings of the
Commissioner with deference, but applies close scrutiny to the legal conclusions.
See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). The court may not
decide facts, weigh evidence, or substitute its judgment for that of the
Commissioner. Id. AThe substantial evidence standard permits administrative
decision makers to act with considerable latitude, and >the possibility of drawing two
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inconsistent conclusions from the evidence does not prevent an administrative
agency=s finding from being supported by substantial evidence.=@ Parker v. Bowen,
793 F.2d 1177, 1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v.
Fed. Mar. Comm=n, 383 U.S. 607, 620 (1966)). Indeed, even if this court finds that
the evidence preponderates against the Commissioner=s decision, the court must
affirm if the decision is supported by substantial evidence. Miles, 84 F.3d at 1400.
No decision is automatic, however, for Adespite this deferential standard [for review
of claims] it is imperative that the Court scrutinize the record in its entirety to
determine the reasonableness of the decision reached.@ Bridges v. Bowen, 815 F.2d
622, 624 (11th Cir. 1987). Moreover, failure to apply the correct legal standards is
grounds for reversal. See Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984).
Ms. Barber contends that the ALJ=s decision should be reversed and remanded
because, she asserts, the ALJ failed to give proper weight to the opinions of three
treating physicians. (Doc. 9, p. 9). Plaintiff contends that the ALJ failed to
properly weigh the opinion of Dr. Qi Wan, who opined that Ms. Barber Acould not
maintain full time employment at the sedentary level;@ the opinion of Dr. Luke
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Robinson that Ms. Barber Acould not maintain full time employment” due to
“lumbar spondylosis and sacroiliitis”; and the opinion of Dr. Anapuma Yedia that
Ms. Barber had Amarked@ impairment in Aattention, concentration or pace for periods
of at least two hours.” (Doc. 9, pp. 10-11). The Commissioner has responded that
the opinions of Drs. Wan, Robinson, and Yedia were properly assessed as being
inconsistent with other evidence in the record, including their own treatment notes.
(Doc. 11, pp. 10-12).
A. Treating Physician=s Assessment
Under prevailing law, a treating physician=s testimony is entitled to
Asubstantial or considerable weight unless >good cause= is shown to the contrary.@
Crawford v. Commissioner of Social Security, 363 F.3d 1155, 1159 (11th Cir.
1997)(internal quotations omitted). The weight to be afforded a medical opinion
regarding the nature and severity of a claimant=s impairments depends, among other
things, upon the examining and treating relationship the medical source had with the
claimant, the evidence the medical source presents to support the opinion, how
consistent the opinion is with the record as a whole, and the specialty of the medical
source. See 20 C.F.R. '' 404.1527(d), 416.927(d). AGood cause” exists for an
ALJ not to give a treating physician’s opinion substantial weight when the A(1)
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treating physician=s opinion was not bolstered by the evidence; (2) evidence
supported a contrary finding; or (3) . . . was conclusory or inconsistent with the
doctor=s own medical records.” Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir.
2004) citing Lewis, 125 F.3d at 1440; see also Edwards v. Sullivan, 937 F.2d 580,
583-84 (11th Cir. 1991) (holding that “good cause” exists where the opinion was
contradicted by other notations in the physician’s own record).
Opinions such as whether a claimant is disabled, the claimant=s residual
functional capacity, and the application of vocational factors Aare not medical
opinions, . . . but are, instead, opinions on issues reserved to the Commissioner;@
thus the court Amay not decide facts anew, reweigh the evidence, or substitute [its]
judgment for that of the Commissioner.@ Dyer v. Barnhart, 395 F.3d 1206, 1210
(11th Cir. 2005).
The court instead looks to the doctors= evaluations of the
claimant=s condition and the medical consequences thereof, not their opinions of the
legal consequences of his [or her] condition.” Lewis, 125 F.3d at 1440.
also 20 C.F.R. ' 404.1527(d)(1) (AA statement that by a medical source that you are
‘disabled’ or ‘unable to work’ does not mean that we will determine that you are
disabled.”). Such statements by a physician are relevant to the ALJ=s findings, but
they are not determinative, because it is the ALJ who bears the responsibility of
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assessing a claimant=s residual functional capacity.
See, e.g., 20 C.F.R.
The court addresses the ALJ=s consideration of the opinions of the treating
physicians in turn. Dr. Wan is an internist who referred Ms. Barber to a specialist in
spinal disorders and neurology, Dr. Robinson. Dr. Wan stated that Ms. Barber was
Aincreasingly more disabled,@ on May 25, 2011,1 (Tr. at p. 356), and further stated
that she was unable to Asustain full time employment at the sedentary level@ on
April 5, 2012. (Tr. at p. 413). The ALJ gave Alittle weight@ to Dr. Wan’s opinions,
based upon the fact that he did not Aset forth specific limitations regarding how long
the claimant can sit, stand, and walk, etc.,@ and because the doctor=s Arecords do not
support@ the opinion statements. Specifically, the ALJ pointed out that Dr. Wan=s
examination reports do not include any abnormal findings. (Tr. at p. 353-59). The
ALJ noted that Dr. Wan=s statements were Aconclusory opinions@ regarding the
ultimate question of her disability, an issue reserved to the Commissioner. (Tr. at
The notation that Ms. Barber was Aincreasingly more disabled@ is referred to by
plaintiff=s counsel as an opinion. However, the court notes that the statement is contained as part
of the medical record that is labelled AReason for Follow Up Visit,@ and it is unclear whether the
statement is an expression of the doctor=s opinion or is a notation of the patient=s own report of her
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The court also notes that Dr. Wan’s expressions of plaintiff’s disability appear
to be inconsistent with the physical findings made by the neurologist to whom
plaintiff was referred. For example, on June 30, 2011, just one month after Dr.
Wan’s statement that the plaintiff was “increasingly more disabled,” Dr. Jason Banks
of the Spine-Neuro Center examined plaintiff and found that, although she had
“some difficulty” walking on her heels and toes, plaintiff had “normal alignment” of
her back and “normal range of motion.” (Tr. at pp. 362-363). She had negative
straight-leg raising, negative Hoffman’s sign, negative Babinski sign, and normal
(Tr. at p. 363).
Although x-rays shown signs of chronic disc
degeneration at the L5-S1 level, Dr. Banks’ proposed treatment was to continue
spinal steroid injections.
Likewise, on July 25, 2011, Dr. Robinson of the
Spine-Neuro Center examined plaintiff and found that she “walks upright with no
problems on heel or toe walking.” She also had full range of motion in lumbar
flexion and extension, but she also had positive straight-leg raising test on the right
side. Dr. Robinson also recommended continued steroid injections for pain relief.
(Tr. at p. 366).
Dr. Robinson made similar findings on September 7, 2011.
Plaintiff walked upright with no problems walking on heels or toes, had no
misalignment or deformity of the spine, she was not “specifically tender over the
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low back,” and she had negative straight-leg raising tests. He noted that she has
limited lumbar extension, but no limitation in lumbar flexion. (Tr. at p. 373).
Finally, Dr. Robinson made similar findings on September 28, 2011.
Following a radiofrequency ablation procedure by Dr. Robinson in
November, 2011, the plaintiff had a follow-up examination by him on December 6,
2011, at which she report decreased use of pain medication, “feeling much better,”
and being “pleased with her progress,” although still experiencing some back pain.
Dr. Robinson’s findings upon physical examination remained that plaintiff walked
upright with no problem walking on heels and toes and had negative straight-leg
raising tests. (Tr. at pp. 406-407). Dr. Robinson did express the opinion that
plaintiff continued to suffer from sacroiliitis. 2
Similar findings were made
following examination on February 7, 2012. (Tr. at p. 410).
Despite these medical findings and treatment of plaintiff’s back problems by
Drs. Banks and Robinson, Dr. Wan wrote his note of April 5, 2012, that plaintiff
Sacroiliitis is defined as an inflammation of one or both of the sacroiliac joints, “the
places where your lower spine and pelvis connect.” The condition can cause pain in the buttocks,
extending down one or both legs, which can be aggravated by prolonged standing or stair
http://www.mayoclinic.org/diseases-conditions/sacroiliitis/basics/definition/con-20028653 (as of
March 24, 2015).
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could not maintain fulltime employment. There is no indication in the record that
Dr. Wan treated the plaintiff after September 2011, or at the time of the April 2012
note. Given the inconsistency of Dr. Wan’s opinion with the medical findings of
Drs. Banks and Robinson and the apparent absence of any basis on which Dr. Wan
could form the opinion that plaintiff could not work, the ALJ could properly
discount Dr. Wan’s opinion, even though he was or had been one of plaintiff’s
Because the ALJ articulated adequate reasons for giving little weight to this
treating physician=s opinion B stating that the opinions were conclusory and
inconsistent with the doctor=s own records B the ALJ=s decision is not in error due to
the limited weight he gave Dr. Wan’s opinion.
Plaintiff next asserts that the ALJ erred in giving little weight to the opinion of
Dr. Robinson, who opined on April 12, 2012, that the plaintiff could not maintain
full-time employment. (Tr. at 416). The ALJ noted that Dr. Robinson reported on
September 7, 2011, that Ms. Barber=s Amidline low back pain has completely
resolved@ after receiving epidural steroid injections. (Tr. at 371). Dr. Robinson
reported on February 7, 2012, that the lower back area in which Ms. Barber
Aunderwent radio frequency [ablation] is much improved@ and that she had Asome@
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pain; on the same date, he noted that she had full strength and no problems walking.
(Tr. at pp. 409-10).
On February 22, 2012, Dr. Robinson described Ms. Barber=s
chief complaint as Aquestionable cervical radiculopathy@ and noted that the MRI
showed Amild disk desiccation,@ Amild ligamentum flavum hypertrophy@ and Ano
significant neural foraminal or central canal stenosis.@ (Tr. at 411).
As with Dr.
Wan, the ALJ determined that Dr. Robinson=s ultimate opinion regarding disability
was inconsistent with his own treatment records and was conclusory. (Tr. at 22).
Accordingly, the ALJ=s weighing of the opinion evidence from Dr. Robinson is
supported by substantial evidence and is in accordance with prevailing law.
Finally, Ms. Barber urges that the ALJ erred in giving Dr. Yedia=s opinion
Alittle weight.@ (Tr. at 21). Dr. Yedia treated the plaintiff at the Madison County
Mental Health Center. Dr. Yedia saw the plaintiff only three times, each time for 15
minutes: on July 12, 2011, October 21, 2011, and November 18, 2011. On April 9,
2012, Dr. Yedia filled out a medical source opinion form which indicated that the
plaintiff had Amarked@ limitations in maintaining attention, concentration or pace for
periods of at least two hours. (Tr. at 415). The ALJ noted that Dr. Yedia=s
treatment notes made no mention of any difficulties relating to concentration. (Tr.
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at 21). 3 The ALJ further noted that this finding was not consistent with the record
as a whole. For example, in May 2011, just two months before Dr. Yedia saw the
plaintiff for the first time, Dr. Donna Scott recorded that plaintiff reported “that she’s
just moody.” (Tr. at p. 329). Also, although plaintiff reported in her October 2011
session with Dr. Yedia that she was having problems with depression and anxiety, by
the time of her November 2011 session she was “[d]oing better.” (Tr. at pp.
398-400). Accordingly, the ALJ properly addressed his rationale for according Dr.
Yedia=s opinion little weight.4
In sum, Ms. Barber argues that the ALJ committed egregious error by not
recontacting these three treating sources for clarification after finding the doctors=
The ALJ attributes to Dr. Scott, at Exhibit 13F, the statement that the Aclaimant had
no memory or concentration problems.@ (Tr. at 21). The court is unable to find that statement in
any of the records provided by Dr. Scott and attached as Exhibit 13F, but does note that Dr. Scott
does not make any reference to any observations or complaints relating to memory, concentration,
or more generally to Ms. Barber=s ability to pay attention to a task. To the contrary, Dr. Scott
reports that Ms. Barber stated in 2011 that she Ais not as depressed and . . . can deal with things
better,@ (Tr. at 324); Agenerally can handle things well,@ (Tr. at 327), and that she reported being
Ajust moody.@ (Tr. at 329).
The ALJ=s assessment of Dr. Yedia=s opinion, even if in error, was harmless error
because the opinion plaintiff asserts was entitled to controlling weight is Dr. Yedia=s opinion that
the plaintiff had Amarked difficulties in maintaining concentration, persistence, or pace.@ In order
to meet the listing for a mental disorder, the plaintiff=s depression would have to result in at least
two Amarked@ difficulties, or a finding that the plaintiff suffered Arepeated episodes of
decompensation, each of extended duration.@ 20 CFR Part 404, Subpart P, App. 1, 12.04.
Neither Dr. Yedia nor any other medical source opined that Ms. Barber had a second Amarked@
difficulty or had suffered any episodes of decompensation.
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opinions inconsistent. The plaintiff=s argument is not well founded in the relevant
law. The governing regulations provide that medical sources should be recontacted
when the evidence received is inadequate or incomplete. 20 C.F.R. '' 404.1512(e),
Social Security Ruling 96B5p further states that Aif the evidence does
not support a treating source=s opinion on any issue reserved to the Commissioner
and the adjudicator cannot ascertain the basis of the opinion from the case record,
the adjudicator must make >every reasonable effort= to recontact the source for
clarification of the reasons for the opinion.@ SSR 96B5p. Regarding whether the
ALJ=s failure to recontact a treating source warrants remand, the Eleventh Circuit
has stated that the court is guided by Awhether the record reveals evidentiary gaps
which result in unfairness or clear prejudice.@ Couch v. Astrue, 267 Fed. Appx. 853,
855 (11th Cir.2008) (quoting Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995)).
AThe likelihood of unfair prejudice may arise if there is an evidentiary gap that >the
claimant contends supports [her] allegations of disability.=@ Id. (quoting Shalala, 44
F.3d at 936 n. 9).
After careful review, the court concludes that the ALJ was not required to
contact Drs. Wan, Robinson, or Yedia for clarification.
supports the ALJ=s decision that Plaintiff was not disabled at the time of her hearing.
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Thus, there was no need for additional information or clarification. See Couch, 267
Fed. Appx. at 855B56 (finding that no duty to recontact existed where substantial
evidence supported the ALJ=s decision); Osborn v. Barnhart, 194 Fed. Appx. 654,
668B69 (11th Cir. 2006). The need to recontact a treating doctor arises when the
basis for the opinion is Anot clear.@ Where an ALJ finds not that the basis of the
opinion is Aunclear,@ but instead that the opinion is not supported by the record, there
is Ano need for the ALJ to recontact [the treating physician].@ Coleman v. Colvin,
2013 WL 3150465 *3 (N.D. Ala. June 18, 2013).
In this case, the opinions were not bolstered by the objective medical findings
and the determinations of other treating physicians, such as Dr. Scott. Additionally,
Dr. Jampala’s consultative assessment of plaintiff on January 24, 2012, found that
her gait was normal, she had no difficulty walking on heels or toes or standing on
one leg. Although he noted that plaintiff’s “L.S. spine [was] tender,” there was no
deformity and “range of motion [was] ok.” (Tr. at p. 385). Further, his Medical
Source Opinion of plaintiff reported very few limitations, such as never lifting more
than 50 pounds. (Tr. at pp. 388-393). Accordingly, the ALJ properly considered
the opinions plaintiff’s treating physicians and did not err in failing to recontact any
of the treating physicians for clarification of his or her opinions.
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Upon review of the administrative record, and considering all of Ms. Barber=s
arguments, the court concludes that the ALJ=s determination is supported by
substantial evidence and was both comprehensive and consistent with the applicable
The objective medical and other evidence supports the ALJ=s
conclusion that plaintiff=s conditions did not cause disabling limitations and instead
shows that she could perform some work. A separate order will be entered.
DATED the 25th day of March, 2015.
T. MICHAEL PUTNAM
UNITED STATES MAGISTRATE JUDGE
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