Johnson v. Social Security Administration

Filing 27

REPORT AND RECOMMENDATIONS by Magistrate Judge Karen B. Molzen. Objections to R&R due by 6/19/2018. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SCOTT WILLIAM JOHNSON,
Plaintiff,
v.

CIV 17-0510 MCA/KBM

NANCY A. BERRYHILL,
Acting Commissioner of Social
Security Administration,
Defendant.

PROPOSED FINDINGS & RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse or Remand
Administrative Agecny [sic] Decision (Doc. 22) filed on October 30, 2017. Having
considered the record, submissions of counsel, and relevant law, the Court
recommends that Plaintiff’s motion be DENIED.1
I.

Procedural History
On September 12, 2013, Mr. Scott Johnson (Plaintiff) protectively filed an

application with the Social Security Administration for Supplemental Security Income
(SSI) under Title XVI of the Social Security Act. See Administrative Record2 (AR) at 13,
57. Plaintiff alleged a disability onset date of January 1, 2008, but later amended his
alleged onset date to September 12, 2013. See AR at 135, 145. Disability Determination
1

Judge Armijo entered an Order of Reference Relating to Social Security Appeals on August
15, 2017, referring this case to the undersigned Magistrate Judge “to conduct hearings, if
warranted, including evidentiary hearings, and to perform any legal analysis required to
recommend to the Court an ultimate disposition of the case.” Doc. 15.
2

Document 18-1 contains the sealed Administrative Record. See Doc. 18-1. The Court cites
the Administrative Record’s internal pagination, rather than the CM/ECF document number and
page.

Services (DDS) determined that Plaintiff was not disabled both initially (AR at 57-66)
and on reconsideration (AR at 67-76). Plaintiff requested a hearing with an
Administrative Law Judge (ALJ) on the merits of his SSI application. AR at 90.
Both Plaintiff and a vocational expert (VE) testified during the de novo hearing.
See AR at 29-56. ALJ Barry O’Melinn issued an unfavorable decision on March 8, 2016.
AR at 10-28. Plaintiff submitted a Request for Review of Hearing Decision/Order to the
Appeals Council (AR at 9), which the council denied on March 7, 2017 (AR at 1-5).
Consequently, the ALJ’s decision became the final decision of the Commissioner. Doyal
v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).
II.

Applicable Law and the ALJ’s Findings
A claimant seeking disability benefits must establish that he is unable “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 12 months.” 42 U.S.C.
§ 423(d)(1)(A); see also 20 C.F.R. § 416.905(a). The Commissioner must use a fivestep sequential evaluation process to determine eligibility for benefits. 20 C.F.R.
§ 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).
The claimant has the burden at the first four steps of the process to show: (1) he
is not engaged in “substantial gainful activity”; (2) he has a “severe medically
determinable . . . impairment . . . or a combination of impairments” that has lasted or is
expected to last for at least one year; and (3) his impairment(s) meet or equal one of the
listings in Appendix 1, Subpart P of 20 C.F.R. Pt. 404; or (4) pursuant to the
assessment of the claimant’s residual functional capacity (RFC), he is unable to perform

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his past relevant work. 20 C.F.R § 416.920(a)(4)(i-iv); see also Grogan v. Barnhart, 399
F.3d 1257, 1261 (10th Cir. 2005) (citations omitted). “RFC is a multidimensional
description of the work-related abilities [a claimant] retain[s] in spite of [his] medical
impairments.” 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); see also 20 C.F.R. §
416.945(a)(1). If the claimant meets “the burden of establishing a prima facie case of
disability[,] . . . the burden of proof shifts to the Commissioner at step five to show that
the claimant retains sufficient . . . RFC to perform work in the national economy, given
his age, education, and work experience.” Grogan, 399 F.3d at 1261 (citing Williams v.
Bowen, 844 F.2d 748, 751 & n.2 (10th Cir. 1988) (internal citation omitted)); see also 20
C.F.R. § 416.920(a)(4)(v).
At Step One of the process, ALJ O’Melinn found that Plaintiff “has not engaged in
substantial gainful activity since September 12, 2013, the application date.” AR at 15
(citing 20 C.F.R. §§ 416.971-.976). At Step Two, the ALJ concluded that Plaintiff “has
the following severe impairments: scoliosis of the spine and history of Wilms’ tumor.” AR
at 15 (citing 20 C.F.R. § 416.920(c)). The ALJ found the following impairments are nonsevere: hypertension, fatigue, depression, and anxiety. AR at 15-18.
At Step Three, the ALJ found that Plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 [C.F.R.] Part 404, Subpart P, Appendix 1 . . . .” AR at 18 (citing
20 C.F.R. §§ 416.920(d), 416.925, 416.926). At Step Four, the ALJ thoroughly
considered the evidence of record and found that Plaintiff
has the residual functional capacity to perform medium work as defined in
20 [C.F.R. §] 416.967(c)[,] except [he] can understand, carry out, and
remember simple instructions and make commensurate work related

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decisions, and respond appropriately to supervision, coworkers and work
situations. [Plaintiff] can deal with routine changes in work setting,
maintain concentration[,] persistence and pace for up to and including two
hours at a time with normal breaks throughout the workday and is suitable
for jobs involving work primarily with things and not people.
AR at 18-19.
ALJ O’Melinn concluded that Plaintiff has no past relevant work (AR at 21 (citing
20 C.F.R. § 416.965)), but he is able to perform work as a Cleaner (Hospital Setting),
Dining Room Attendant/Busser, and Hand Packager. AR at 22. The ALJ ultimately
determined that Plaintiff “has not been under a disability, as defined in the Social
Security Act, since September 12, 2013 . . . .” AR at 23 (citing 20 C.F.R. § 416.920(g)).
III.

Legal Standard
The Court must “review the Commissioner’s decision to determine whether the

factual findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.
2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005) (internal
citation omitted)). A deficiency in either area is grounds for remand. Keyes-Zachary v.
Astrue, 695 F.3d 1156, 1161, 1166 (citation omitted). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Lax, 489 F.3d at 1084 (quoting Hackett, 395 F.3d at 1172 (internal
quotation omitted)). “It requires more than a scintilla, but less than a preponderance.” Id.
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004) (internal quotation
omitted) (alteration in original)). The Court will “consider whether the ALJ followed the
specific rules of law that must be followed in weighing particular types of evidence in
disability cases, but [it] will not reweigh the evidence or substitute [its] judgment for the

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Commissioner’s.” Id. (quoting Hackett, 395 F.3d at 1172 (internal quotation marks and
quotations omitted)).
“The possibility of drawing two inconsistent conclusions from the evidence does
not prevent an administrative agency’s findings from being supported by substantial
evidence.” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)). The
Court “may not ‘displace the agenc[y’s] choice between two fairly conflicting views, even
though the court would justifiably have made a different choice had the matter been
before it de novo.’” Id. (quoting Zoltanski, 372 F.3d at 1200 (internal quotation omitted)).
IV.

Discussion
Plaintiff asserts three issues in his Memorandum Brief in Support of Motion to

Reverse or Remand Administrative Agency Decision. Doc. 23. First, Plaintiff argues that
the ALJ failed to consider the opinion of Dr. Yeolekar-Dasari, a treating physician. Id. at
6-7. Second, Plaintiff contends the ALJ improperly dismissed Dr. Koewler’s medical
opinion. Id. at 7-9. Third, Plaintiff alleges that the RFC does not encompass his
nonexertional impairments. Id. at 9-11.
A.

Plaintiff fails to cite to any treating source medical opinion that the
ALJ ignored.

Plaintiff complains that the ALJ “gives almost no acknowledgement to the
treatment records and opinions of treating psychiatrist, Anjali Yeolekar-Dasari, M.D.”
Doc. 23 at 6 (citing AR at 13-23). Plaintiff asserts that “Dr. Yeolekar-Dasari is a licensed
Medical Doctor and Psychiatrist who . . . specializes in Psychiatry and Neurology[,]” and
it was error for the ALJ to not analyze Dr. Yeolekar-Dasari’s medical opinion under the

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“treating source” rule. Doc. 23 at 6-7 (citing AR at 310-22, 238; 20 C.F.R.
§ 416.927(c)(2)).
Plaintiff saw Dr. Yeolekar-Dasari six times, all in 2015: January 15, February 11,
March 4, May 27, June 17, and September 9. See AR at 311-22. Plaintiff cites to the
treatment notes from these six visits, but he fails to cite to a specific medical opinion
allegedly authored by Dr. Yeolekar-Dasari or evaluated by the ALJ. See Doc. 23 at 6-7.
The ALJ need not weigh every treatment record, only medical opinions. “Medical
opinions are statements from acceptable medical sources that reflect judgments about
the nature and severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your physical or mental
restrictions.” 20 C.F.R. § 416.927(a)(1). Dr. Yeolekar-Dasari’s treatment records contain
notes regarding Plaintiff’s mental status at each of his visits, but they do not “contain a
single medical opinion regarding plaintiff’s ability to mentally or physically perform the
normal tasks associated with working.” See Mayberry v. Astrue, 461 F. App’x 705, 710
(10th Cir. 2012).
Plaintiff first presented to Dr. Yeolekar-Dasari in January 2015, with complaints
that he had become a very unproductive, isolated recluse. AR at 321. The provider also
noted that Plaintiff “seem[ed] to be experiencing some psychomotor retardation.”
Plaintiff admitted that the symptoms started after he stopped taking Klonopin (also
known as Clonazepam), a medication prescribed to treat anxiety and panic disorder,
“because of an inability to follow-up with” another physician. AR at 321; see also
Clonazepam, PubMed Health,
https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0009677/?report=details. Over the

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next nine months, Plaintiff consistently reported that his condition was improving. See,
e.g., AR at 319 (February 11, 2015 treatment note: “Plaintiff believes the clonazepam
has really helped him get his anxiety under control.”); 317 (March 4, 2015 treatment
note: “Patient reports . . . decrease in anxiety . . . [and] believes that he is doing quite
well. . . . Patient denies depression.”); 315 (May 27, 2015 treatment note: “Patient
reports decrease in anxiety and denies depression.”); 313, 314 (June 17, 2015
treatment note: “Patient reports okay sleep and appetite and denies anxiety or
depression. . . . There is no psychomotor agitation or retardation noted.”); 311, 312
(September 9, 2015 treatment note: Patient states that he is “doing better.” “Patient
reports mood stability and significant decrease in anxiety. . . . There is no psychomotor
agitation or retardation noted.”).
ALJ O’Melinn acknowledged these treatment records when he noted Plaintiff’s
history of taking “himself off the anxiety medication in late 2014 with increased
symptoms and then reported ‘I’m doing better’ once he again started taking the
medication.” AR at 18 (citing AR at 311-22). The ALJ further acknowledged Dr.
Yeolekar-Dasari’s records in that Plaintiff “described his mood as good and affect was
bright with linear and goal-directed thought process when taking the anxiety
medication.” AR at 18 (citing AR at 311-22). The Court notes Dr. Yeolekar-Dasari’s
specific observation that Plaintiff’s “anxiety disorder [is] stable on Klonopin.” AR at 312.
Dr. Yeolekar-Dasari’s records do not contain a “medical opinion” as defined by
20 C.F.R. § 416.927(a)(1). There is no assessment of Plaintiff’s abilities despite his
impairments. Moreover, the provider’s prescription and manipulation of Plaintiff’s
medications “does not indicate any specific mental functioning related to Plaintiff’s ability

7

to work . . . .” See Martinez v. Colvin, No. 12-cv-003066-LTB, 2014 WL 717192, at *5
(D. Colo. Feb. 25, 2014). Because Dr. Yeolekar-Dasari did not provide a medical
opinion, Plaintiff’s argument is misguided: the ALJ did not err in failing to evaluate a
nonexistent opinion. I recommend denying Plaintiff’s Motion on this issue.
B.

ALJ O’Melinn adequately evaluated Dr. Koewler’s medical opinion.

Dr. John H. Koewler, Ph.D., performed a one-time psychological evaluation of
Plaintiff on December 16, 2014, on the referral of Plaintiff’s attorney. See AR at 295-99.
Plaintiff contends that ALJ O’Melinn failed to properly weigh Dr. Koewler’s report.
Doc. 23 at 7-9.
Dr. Koewler performed a record review, a clinical interview, and a mental status
examination. AR at 295. Dr. Koewler noted that Plaintiff had “‘weaned’ himself off of”
Klonopin only a couple of weeks before his December 2014 examination, and Plaintiff’s
anxiety symptoms had returned. AR at 295-96. “About a week after [Plaintiff] completely
discontinued the medication he had severe panic symptoms[,] . . . insomnia[,]” and
worried “excessively about the inability to sleep.” AR at 296. At the time of his interview
with Dr. Koewler, Plaintiff had an appointment to renew his prescription. AR at 296.
Plaintiff also expressed feelings of depression at the interview. AR at 296. Dr. Koewler
concluded that Plaintiff
has a chronic anxiety disorder involving panic, generalized worry,
obsessive thinking and insomnia. He avoids many activities. He has a
moderate degree of depression. He has personality disorder features,
being generally untrusting. He is socially isolated. He has chronic pain. It
is likely that the early history of medical problems contributes to the
chronic psychiatric problems.
The combination of these problems would markedly limit occupational
functioning. The panic symptoms will interfere with many activities. The
panic, and depression cause social isolation and reduced motivation for

8

normal goal directed activity. He is likely to have difficulty interacting with
people in a work setting.
AR at 298. Dr. Koewler noted diagnostic impressions of panic disorder, generalized
anxiety disorder with obsessive thinking, major depression, insomnia, somatic symptom
disorder (pain), and paranoid and avoidant personality features. AR at 299. Dr. Koewler
further assessed that Plaintiff would have no limitations in his ability to be aware of
normal hazards and give appropriate responses; mild limitations in his abilities to
understand and remember both simple and complex instructions, work without
supervision, and adapt to changes in the workplace; moderate limitations in his abilities
to attend and concentrate and interact with public, coworkers and supervisors; and
marked limitations in his abilities to carry out instructions and use public transportation.
AR at 298-99.
“When considering the weight of non-treating sources, the ALJ must consider”
the factors as laid out in 20 C.F.R. § 404.1527(c) and § 416.927(c). See Gallegos v.
Berryhill, CIV 16-1193 KBM, 2017 WL 6375613, at *4 (citing Dingman v. Astrue, No. 08cv-02175-PAB, 2010 WL 5464301, at *4 (D. Colo. Dec. 29, 2010) (internal citation
omitted)). The factors include:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician’s opinion is supported
by relevant evidence; (4) consistency between the opinion and the
record as a whole; (5) whether or not the physician is a specialist in the
area upon which an opinion is rendered; and (6) other factors brought
to the ALJ’s attention which tend to support or contradict the opinion.
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (quotations omitted).

9

With respect to the first and fifth factors, ALJ O’Melinn noted that Plaintiff “was
referred to Dr. John Koewler, Ph.D., consultative examiner, by” Plaintiff’s attorney for a
one-time examination. AR at 17 (citing AR at 295-99). With respect to the second factor,
the ALJ mentioned the types of testing Dr. Koewler performed. AR at 18. The ALJ also
emphasized the fact that Plaintiff “underwent the examination by Dr. Koewler not in an
attempt to seek treatment for symptoms, but rather through attorney referral in an effort
to generate evidence for the hearing. Furthermore, Dr. Koewler was presumably paid
for the report.” AR at 18.
Regarding the third factor, the ALJ noted that despite the diagnoses Dr. Koewler
made, the psychologist also found Plaintiff “was cooperative, calm, alert, serious, and
related in a pleasant manner.” AR at 17; see also AR at 298.
With respect to the fourth factor, ALJ O’Melinn discussed why he found Dr.
Koewler’s opinion inconsistent with the record as a whole. The ALJ observed that
Plaintiff “was treated at Christius [sic] St. Vincent Behavioral Health in the Medication
Management Clinic and in January [2014]3 it was noted [that he] reported his panic
attacks appear to be under control with the clonazepam.” AR at 18 (citing AR at 286). In
another part of his opinion, the ALJ referred to Plaintiff’s hearing testimony, noting that
“the anxiety medication has reduced the amount of panic attacks.” AR at 16; see also
AR at 39-40. This is inconsistent with Dr. Koewler’s opinion that Plaintiff’s “panic
symptoms will interfere with many activities.” AR at 298. The ALJ explained that Plaintiff

3

The ALJ actually recorded this date as 2009, but that appears to be a typographical error. AR
at 18. The record the ALJ cites is dated January 7, 2014, and the information on the record
matches the information the ALJ mentions. AR at 286 (“It was after [08/2009] that the patient
began experiencing panic attacks. . . . The patient has been treated with clonazepam and that
seems to have worked well for him over the past several years.”).

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had “taken himself off the anxiety medication in late 2014 with increased symptoms and
then reported ‘I’m doing better’ once he again started taking the medication.” AR at 18;
see also AR at 311. ALJ O’Melinn also observed Plaintiff’s description of his mood as
“good” and Dr. Yeolekar-Dasari’s treatment notes, which described Plaintiff as having a
“bright” affect “with linear and goal-directed thought process when taking the anxiety
medication.” AR at 18; see also AR at 312. These notes, made months after Plaintiff
became compliant with his medication again, show that Dr. Koewler’s opinion is
inconsistent with later observations made by Plaintiff’s treating psychiatrist.
Plaintiff takes particular issue with the fact that the ALJ discounted Dr. Koewler’s
opinion because he was a paid consultative examiner. See Doc. 23 at 8. If this were
ALJ O’Melinn’s sole reason for discounting Dr. Koewler’s opinion, that might pose a
problem. That it was a consideration among many was not inappropriate. See, e.g.,
Doyal v. Barnhart, 331 F.3d 758, 764 (10th Cir. 2003) (noting that an acceptable
medical source is not considered to be a “treating source if [the] relationship with the
source is [based] solely on [the claimant’s] need to obtain a report in support of [a] claim
for disability”) (quoting 20 C.F.R. § 416.927(a)(2)). The ALJ offered several valid
reasons for discounting Dr. Koewler’s opinion. Moreover, as the Commissioner points
out, Plaintiff’s RFC ultimately incorporates several of Dr. Koewler’s less extreme
findings. See Doc. 25 at 12-13. For example, Dr. Koewler’s opinions on Plaintiff’s mild
limitations in his abilities to understand and remember simple or complex instructions,
work without supervision, and adapt to workplace changes, as well as Plaintiff’s
moderate limitation in his ability to attend and concentrate are consistent with the
abilities needed for unskilled work. See id. (citing SSR 96-9p, 1996 WL 374185, at *9

11

(July 2, 1996); SSR 82-41, 1982 WL 31389, at *2 (Jan. 1, 1982); Bales v. Colvin, 576 F.
App’x 792, 798 (10th Cir. 2014)).
Because ALJ O’Melinn’s analysis complied with 20 C.F.R. § 416.927(c), I
recommend denying Plaintiff’s motion on this issue.
C.

Plaintiff has not demonstrated that the ALJ inadequately determined
Plaintiff’s RFC.

Finally, Plaintiff contends that ALJ O’Melinn failed to incorporate several
nonexertional impairments into Plaintiff’s RFC. Doc. 23 at 9. Plaintiff bases his
argument on Dr. Koewler’s diagnoses of “panic disorder, generalized anxiety disorder
with obsessive thinking, major depression, insomnia, somatic symptom disorder, and
paranoid and avoidant personality features.” Id. (citing AR at 299). Plaintiff emphasizes
Dr. Koewler’s opinion that “the combination of these problems would markedly limit
occupational functioning . . . .” Id. Plaintiff cites to treatment records from Dr. Armstrong
(AR at 245-50), Dr. Holzgang (AR at 286,-87), Dr. Daly (AR at 306), and Dr. YeolekarDasari (AR at 312, 314, 316, 318-20, 322), and asserts that their records support Dr.
Koewler’s findings. Id. at 10.
Dr. Armstrong, a psychiatrist with Christus St. Vincent Regional Medical Center,
saw Plaintiff from November 10, 2011, through June 11, 2013. See AR at 245-50. She
noted his diagnosis as generalized anxiety disorder and observed that he was taking
clonazepam. AR at 245-50. On May 29, 2012, Dr. Armstrong recorded that Plaintiff “has
plenty of work lined up for the summer[,]” and on June 11, 2013, she noted that plaintiff
is “working some now, considering going back to school, would like to study geology.”
AR at 248, 245.

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Dr. Holzgang, another provider at Christus St. Vincent, saw Plaintiff on January
7, 2014. AR at 286-87. He noted a diagnostic impression of “panic disorder without
agoraphobia” but stated that Plaintiff “notes that with the clonazepam, the way he is
taking it now, his panic attacks appear to be under control. He feels good about how he
is doing generally.” AR at 287.
Dr. Daly saw Plaintiff on an emergent basis on December 15, 2014. AR at 306.
As discussed above, this is the time period wherein Plaintiff had suddenly stopped
taking his Klonopin and realized his mood was worsening. See AR at 306. Dr. Daly
renewed Plaintiff’s clonazepam prescription. AR at 306.
There is nothing in these cited records that shows the ALJ’s decision is not
supported by substantial evidence. If anything, Plaintiff is asking the Court to reweigh
the evidence, which would be inappropriate. See Hamlin v. Barnhart, 365 F.3d 1208,
1214 (10th Cir. 2004) (noting that the court “may neither reweigh the evidence nor
substitute” its opinion for that of the Commissioner’s) (quotation omitted). I recommend
denying Plaintiff’s motion on this issue.
D.

Plaintiff waived any remaining issues.

In his reply brief, Plaintiff argues for the first time that the ALJ failed to consider a
Third Party Function Report submitted by Plaintiff’s mother, as well as Plaintiff’s “poor
earning’s record.” Doc. 26 at 3-4. Plaintiff is incorrect, as the ALJ considered both the
mother’s Third Party Function Report (AR at 21) as well as Plaintiff’s poor earning’s
record (AR at 19). Regardless, the Court need not consider arguments raised for the
first time in a reply brief. See Mehaffey v. Berryhill, Civ. No. 16-78 MV/GJF, 2017 WL
3190656, at *5 (D.N.M. Apr. 25, 2017) (citing Guidry v. Astrue, Civ. No. 08-1846, 2009

13

WL 4884282, at *5 n.8 (D. Colo. Dec. 10, 2009) (citing M. D. Mark, Inc. v. Kerr-McGee
Corp., 565 F.3d 753, 768 n.7 (10th Cir. 2009) (noting that “the general rule in this circuit
is that a party waives issues and arguments raised for the first time in a reply brief”))).
Therefore, I recommend the Court find Plaintiff has waived this issue.
V.

Conclusion and Recommendation
I recommend the Court find that the ALJ followed the rules of law and sufficiently

considered the treatment records of Dr. Yeolekar-Dasari and the medical opinion of Dr.
Koewler, and adequately assessed Plaintiff’s RFC. I further recommend the Court find
that the ALJ’s findings are supported by substantial evidence.
IT IS HEREBY RECOMMENDED that Plaintiff’s Motion to Remand be denied.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A
party must file any objections with the Clerk of the District Court within the
fourteen-day period if that party wants to have appellate review of the proposed
findings and recommended disposition. If no objections are filed, no appellate
review will be allowed.

________________________________________
UNITED STATES MAGISTRATE JUDGE

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