Sears v. Social Security Administration

Filing 26

REPORT AND RECOMMENDATIONS by Magistrate Judge Karen B. Molzen. Objections to R&R due by 3/7/2018. 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
TINA MARIE SEARS,
Plaintiff,
v.

CIV 17-0391 JB/KBM

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

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Plaintiff’s Motion to Reverse or Remand
Administrative Agency Decision and Memorandum Brief (Doc. 16) filed on August 22,
2017. Having carefully reviewed the parties’ positions and the material portions of the
record, the Court recommends that Plaintiff’s motion be denied and the decision of the
Agency affirmed.1
I.

Procedural History
Ms. Tina Marie Sears (Plaintiff) filed an application with the Social Security

Administration for Disability Insurance Benefits (DIB) under Title II of the Social Security
Act on March 26, 2015. Administrative Record2 (AR) at 98. Plaintiff alleged a disability

1

District Judge Browning entered an Order of Reference Relating to Social Security Appeals on
August 9, 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. 14.
2

Document 9-1 comprises the sealed Administrative Record. See Doc. 9-1. The Court cites the
Administrative Record’s internal pagination, rather than the CM/ECF document number and
page.

onset date of December 17, 2013.3 See AR at 95-96, 99. Because Plaintiff’s earning
record showed that she had “acquired sufficient quarters of coverage to remain insured
through March 31, 2015[,]” Plaintiff was required to “establish disability on or before that
date in order to be entitled to a period of disability and [DIB].” AR at 15.
Disability Determination Services determined that Plaintiff was not disabled both
initially (AR at 98-109) and on reconsideration (AR at 110-21). Plaintiff requested a
hearing with an Administrative Law Judge (ALJ) on the merits of her application. AR at
131. Both Plaintiff and a vocational expert (VE) testified during the de novo hearing. See
AR at 32-97. ALJ Lillian Richter issued an unfavorable decision on November 4, 2016.
AR at 12-31. Plaintiff submitted a Request for Review of Hearing Decision/Order to the
Appeals Council (AR at 6), which the Council denied on February 28, 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 she 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. § 404.1505(a). The Commissioner must use a
five-step sequential evaluation process to determine eligibility for benefits. 20 C.F.R.
§ 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009).

3

Plaintiff originally alleged an onset date of September 1, 2012, in her application, but amended
the alleged onset date to December 17, 2013, at the hearing. AR at 95-96, 99.

2

The claimant has the burden at the first four steps of the process to show: (1) she
is not engaged in “substantial gainful activity”; (2) she 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) her 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), she is unable to
perform her past relevant work. 20 C.F.R § 404.1520(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
her medical impairments.” Ryan v. Colvin, Civ. 15-0740 KBM, 2016 WL 8230660, at *2
(D.N.M. Sept. 29, 2016) (citing 20 C.F.R. § 404, Subpt. P, App. 1 § 12.00(B); 20 C.F.R.
§ 404.1545(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
[her] 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. § 404.1520(a)(4)(v).
At Step One of the process, ALJ Richter found that Plaintiff “did not engage in
substantial gainful activity during the period from her alleged onset date of December
17, 2013[,] through her date last insured of March 31, 2015.” AR at 18 (citing 20 C.F.R.
§§ 404.1571-1576). At Step Two, the ALJ concluded that “[t]hrough the date last
insured, [Plaintiff] had the following severe impairments: degenerative disc disease of
the lumbar/cervical spine, chronic pain syndrome, COPD, patellofemoral

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chondromalacia of the right knee, lateral condyle contusion of the right knee, obesity,
depression, vertigo, and insomnia.” AR at 18 (citing 20 C.F.R. § 404.1520(c)). ALJ
Richter also noted the following nonsevere impairments: “hypertension, hypothyroid,
Reynaud’s disease, right-shoulder pain[,] and gout.” AR at 18.
At Step Three, the ALJ found that “[t]hrough the date last insured, [Plaintiff] did
not have an impairment or combination of impairments that met or medically equaled
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. §§ 404.1520(d), 404.1525, 404.1526). At Step
Four, the ALJ considered the evidence of record, including records from David Liscow,
M.D., South Haven Family Physicians, Gila Regional Medical Center, Joanne Cardinal,
M.D., Michelle Pahl, M.D., Sravanthi Reddy, M.D., Roberto Carreon, M.D., Eliza Cain,
M.A., LPCC, function reports from Plaintiff and her husband, and testimony from
Plaintiff. AR at 20-24.
ALJ Richter found that “[t]hrough the date last insured, [Plaintiff] was unable to
perform any past relevant work.” AR at 24 (citing 20 C.F.R. § 404.1565). Ultimately, the
ALJ found that through the date last insured, Plaintiff
has the [RFC] to occasionally lift 20 pounds and . . . frequently lift or carry
up to 10 pounds. [She] is able to stand and walk for approximately six
hours in an eight-hour workday and sit for six hours in an eight-hour
workday. She can occasionally stoop, kneel, crouch, crawl and climb
ramps or stairs but can never balance or climb ladders, ropes or scaffolds.
[She] cannot be exposed to unprotected heights, moving mechanical
parts, dust, odors, fumes or pulmonary irritants. She is limited to work
performed primarily at the work station in a routine environment with few
changes in the routine work setting. She can have occasional interaction
with supervisors, coworkers and members of the public. . . . [T]his is a
limited range of work contained in the light exertional level as defined by
20 [C.F.R. §§] 404.1567 [and] 416.967 and SSR 83-10.

4

AR at 20, 24. The ALJ determined that, through the date last insured, Plaintiff could
have performed the jobs of Hand Presser and Conveyor-line Bakery Worker. AR at 2425. Relying on testimony of the VE, the ALJ concluded that “considering [Plaintiff’s] age,
education, work experience, and [RFC], [Plaintiff] was capable of making a successful
adjustment to other work that existed in significant numbers in the national economy.”
AR at 25. Ultimately, ALJ Richter found that Plaintiff “was not under a disability, as
defined in the Social Security Act, at any time from December 17, 2013, the alleged
onset date, through March 31, 2015, the date last insured.” AR at 25 (citing 20 C.F.R.
§ 404.1520(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

5

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 [C]ourt 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 contends that the following three issues require reversal of the ALJ’s

decision: (1) the ALJ erroneously believed that Plaintiff’s right knee pain arose only after
the date last insured; (2) “the ALJ ignored, misrepresented, or minimized significant
medical evidence” that she rejected; and (3) the ALJ failed to obtain an explanation from
the VE regarding the listed occupations. Doc. 16 at 1-2.
A.

The ALJ adequately accounted for the limiting effects of Plaintiff’s
right knee pain.
1.

The ALJ’s error regarding Plaintiff’s right knee pain.

Plaintiff alleged a variety of impairments on her application for benefits, but the
only impairment relevant to this issue involves Plaintiff’s right knee pain. Plaintiff
originally alleged an onset date of September 1, 2012. AR at 99. During the hearing with
ALJ Richter, however, Plaintiff asked to amend the onset date to December 17, 2013,
and the ALJ granted her request. Doc. 16 at 12; AR at 15, 95-96. Plaintiff attributes the

6

amendment to her knee injury, which she first reported in early 2014 after a preChristmas 2013 fall. Doc. 16 at 12-13; AR at 95-96.
ALJ Richter outlined the evidence of Plaintiff’s right knee pain throughout her
decision. At the conclusion of her decision, however, ALJ Richter made the following
statement:
Regarding knee pain, the record contains a specific time period of onset,
December 2013, which falls after the date last insured. Prior to that, x-rays
and ultrasounds of the lower-right extremity were normal. . . . However,
because there is a slim possibility that the bone-marrow edema identified
on a later MRI existed into the insured period, the [ALJ] has also limited
[Plaintiff’s] stooping, kneeling, crouching and crawling.
AR at 24. Thus, the ALJ misstated the onset date of Plaintiff’s right knee pain as
occurring “after the date last insured.” AR at 24 (emphasis added).
Plaintiff argues that the ALJ’s misstatement has made judicial review impossible
and rendered the resulting RFC invalid. Doc. 16 at 12-14. The Commissioner contends
that a thorough reading of ALJ Richter’s entire opinion demonstrates that she
adequately examined the relevant evidence, and the RFC correctly reflects Plaintiff’s
right knee limitations. Doc. 23 at 10-12. The Court agrees with the Commissioner – it is
clear from the opinion that ALJ Richter examined the relevant evidence regarding
Plaintiff’s knee pain. Moreover, Plaintiff has not shown that the ALJ’s error has resulted
in any prejudice, because Plaintiff has not demonstrated that the ALJ should have
included further limitations due to her right knee pain. See, e.g., Keyes-Zachary, 695
F.3d at 1162-63 (finding that an “alleged error in the ALJ’s decision did not . . . prejudice
[plaintiff], because giving greater weight to [a physician’s] opinion would not have
helped her”).

7

2.

Record evidence of Plaintiff’s right knee pain.

The Court has located five relevant medical records, including four office visits
and one MRI, that are relevant to Plaintiff’s knee pain for the dates in question: (1) the
initial January 3, 2014 appointment with Joanne Cardinal, M.D., to assess the knee
injury after Plaintiff’s pre-Christmas injury (AR at 394-96); (2) a January 8, 2014
appointment with Sravanthi Reddy, M.D. at Southwest Bone & Joint Institute (AR at
433-35); (3) the January 10, 2014 MRI with Tan M. Nguyen, M.D. (AR at 436); (4) a
January 13, 2014 follow-up appointment after the MRI with Roberto Carreon, M.D. (AR
at 437); and (5) a June 20, 2014 appointment with Michelle T. Pahl, M.D. (AR at 399402). Notably, ALJ Richter examined each one of these medical records in her opinion.
See AR at 22-23.
At her January 3, 2014 appointment, Dr. Cardinal’s notes reflect that Plaintiff’s
“right knee locked up on her before Christmas” resulting in a “jarring impact to [her]
knee . . . .” AR at 394; see also AR at 22. Plaintiff complained of pain, swelling, locking
and catching, and a giving way sensation. AR at 394; see also AR at 22. Dr. Cardinal
noted “no dependent edema[,]”a “limited range of motion[,] tenderness[,] and swelling,”
but was “unable to check [her] ligaments due to pain.” AR at 394; see also AR at 22. Dr.
Cardinal observed that Plaintiff was “leaning on [her] left side” and was “almost manic
[and] demanding about her knee and the possibility her knee pain is from her back even
though she has had a recent knee injury with swelling [and] effusion.” AR at 394-95; see
also AR at 22. Dr. Cardinal advised Plaintiff to obtain an MRI. AR at 395.
Plaintiff next visited Sravanthi Reddy, M.D. on January 8, 2014, for her knee
pain. AR at 433-35. Plaintiff complained of popping, catching, and pain with walking. AR

8

at 433. On examining Plaintiff’s right leg, Dr. Reddy noted no atrophy and no effusion in
the right knee, but observed “tenderness to palpation in the lateral joint line.” AR at 434;
see also AR at 22. Dr. Reddy assessed a negative Lachman’s test, a knee range of
motion of 3-120 degrees of flexion, a positive McMurray’s test laterally, and a negative
straight leg raising test. AR at 434; see also AR at 23. Dr. Reddy noted that “[t]esting for
ligamentous laxity with valgus and varus stress testing [was] negative.” AR at 434. The
examination notes reflect that an x-ray (AP/Lat) of the right knee showed normal
findings. AR at 434; see also AR at 22. Dr. Reddy suspected that Plaintiff may have
sustained a left lateral meniscus tear and ordered an MRI. AR at 434; see also AR at
23.
Plaintiff underwent an MRI of her right knee on January 10, 2014, with Tan M.
Nguyen, M.D. AR at 436; see also AR at 23. Dr. Nguyen found “[b]one marrow edema
centered in the lateral femoral condyle most compatible with contusion” but “[n]o
evidence of [a] meniscal tear or ligamentous injury[,]” and patellar chondrosis. AR at
436; see also AR at 23.
On January 13, 2014, Plaintiff attended a follow-up appointment with Roberto
Carreon, M.D. at Southwest Bone & Joint Institute. AR at 437; see also AR at 23. Dr.
Carreon noted Plaintiff’s report “that the pain that she was having at the knee has now
improved a great deal.” AR at 437. Plaintiff did complain of some “pain mostly on the
medial side . . . [,] but it is improved.” AR at 437. Dr. Carreon observed intact motor
function bilaterally, “some tenderness to palpation along the lateral side of the knee . . .
at the condyle region” and “extending all the way down to the tibia . . . .” AR at 437.
Plaintiff’s “range of motion is from 0 degrees of extension to about 120 degrees of

9

flexion.” AR at 437. Plaintiff had a negative Lachman’s test and “some mild generalized
edema on the right knee.” AR at 437. Dr. Carreon assessed “a contusion of the lateral
condyle” and advised Plaintiff “that it could produce some long-term problems if this
collapses and leaves her with some irregularity of the joint line . . . .” AR at 437. Dr.
Carreon advised Plaintiff to follow up with x-rays, continued use of a knee brace, ice,
elevation, and anti-inflammatory medication while advancing her activities slowly. AR at
437. Dr. Carreon noted that he would see Plaintiff in six weeks to follow up and repeat
x-rays of her right knee, but the only other record of a visit relevant to Plaintiff’s right
knee is with Dr. Michelle Pahl on June 20, 2014, more than 22 weeks past this visit with
Dr. Carreon.4 See AR at 399.
Finally, that visit with Dr. Pahl, M.D. was to establish care, obtain a medication
refill, and have a spot on her chest examined. AR at 399-402. Dr. Pahl noted that
Plaintiff takes Diclofenac as an anti-inflammatory for her knee as needed. AR at 399.
Dr. Pahl advised Plaintiff that she was unwilling to prescribe her narcotic medication for
any chronic pain. AR at 401. There are no notes from this appointment to show that
Plaintiff specifically complained of knee pain. See AR at 399-402.
3.

The Court finds no legal error in the ALJ’s decision regarding
Plaintiff’s right knee pain.

ALJ Richter adequately examined the evidence of Plaintiff’s right knee pain. The
ALJ discussed both Plaintiff’s testimony and all five medical records directly related to

4

The Court notes an April 13, 2016 visit with Dr. Carreon, in which he notes a “full range of
motion” in both of Plaintiff’s knees (AR at 529) and “knees, ankles and feet stable and no
subluxation, dislocation” (AR at 530).

10

Plaintiff’s knee pain and related the findings of each physician.5 See AR at 22-24. The
ALJ’s RFC findings are supported both by substantial evidence and by the opinions of
state agency physicians Claire Horn, M.D. and Michael Slager, M.D., who reviewed the
evidence at both the initial and reconsideration levels and found Plaintiff could perform
light work with occasional limitations on her ability to stoop, kneel, crouch, and crawl.
See AR at 105-08, 116-17.
Plaintiff argues that the ALJ’s misstatement regarding the onset date constitutes
legal error, but the Court disagrees – the ALJ’s misstatement was a simple factual error
and was “not a substantive failure to consider all the relevant evidence.” See Jackson v.
Colvin, No. 11-cv-02455-PAB, 2014 WL 718059, at *2 (D. Colo. Feb. 24, 2014); see
also Doc. 24 at 2. More importantly, because ALJ Richter explicitly took Plaintiff’s knee
pain into account in formulating the RFC by limiting her to only occasional stooping,
kneeling, crouching and crawling, Plaintiff has failed to show that she was prejudiced by
the ALJ’s misstatement regarding the onset date. AR at 20, 24. “Where, as here, [the
Court] can follow the adjudicator’s reasoning in conducting [its] review, and can
determine that correct legal standards have been applied, merely technical omissions in
the ALJ’s reasoning do not dictate reversal.” Keyes-Zachary, 695 F.3d at 1166.
Accordingly, the Court recommends rejecting Plaintiff’s Motion on this issue.

5

Plaintiff contends that the ALJ failed “to consider the January 2014 right knee MRI . . . .”
Doc. 16 at 14. The Court disagrees. ALJ Richter mentioned that Dr. “Reddy suspected a tear of
[Plaintiff’s] left lateral meniscus[,]” but the January 2014 “MRI proved no tear existed while
simultaneously finding bone-marrow edema and cartilage thinning of the lateral patellar facet.”
AR at 23 (citing AR at 436 (Jan. 10, 2014 MRI)).

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B.

The ALJ adequately discussed the record evidence in Plaintiff’s
favor.

Plaintiff contends that ALJ Richter “ignored, misrepresented, or minimized
significant medical evidence” in Plaintiff’s favor. Doc. 16 at 16. Specifically, Plaintiff
argues that the ALJ: (1) entirely ignored Plaintiff’s treatment with John A. Flores, M.D.,
(2) misrepresented the December 2014 cervical spine x-rays findings, and (3)
minimized findings from a December 2012 MRI of Plaintiff’s lumbar spine. Id. at 16-17.
1.

The ALJ adequately examined the records from Dr. Flores.

Plaintiff saw Dr. Flores seven times for chronic pain management between
September 17, 2014, and March 30, 2016. Thereafter, she had to find a new provider
because Dr. Flores’s license was suspended. See AR at 68, 467-80, 547-55. Dr. Flores
assessed a history of fatigue, polyarthralgia, neuropathy, and chronic back pain on
September 17, 2014 (AR at 478), and added polyglandular dysfunction on September
29, 2014 (AR at 475). Dr. Flores treated Plaintiff for her chronic pain complaints and
other diagnoses with a number of medications. See AR at 303 (listing medications
prescribed by Dr. Flores for pain, blood pressure and edema, dizziness and nausea,
angina and blood pressure, depression, and hypothyroidism), 312-13 (listing
medications prescribed by Dr. Flores for Reynaud’s Syndrome, hypertension/edema,
pain, cramps, hypertension/angina, nerve pain, COPD, hypothyroidism, and insomnia).
Plaintiff contends that ALJ Richter “ignored, entirely, [Plaintiff’s] treatment with”
Dr. Flores. Doc. 16 at 16. Yet the ALJ specifically cited to Dr. Flores’s records in at least
three places. First, ALJ Richter noted that the cervical spine imaging Dr. Flores ordered
was “unremarkable” (AR at 22) in that the findings revealed “[c]ervical vertebral body

12

heights and disc spaces are preserved and alignment is satisfactory[, s]mall
osteophytes of the endplates and mild facet hypertrophy at multiple levels[,]” and “no
soft tissue swelling” (AR at 490). Second, the ALJ discussed notes from Plaintiff’s visit
with Dr. Flores on April 8, 2015, in which she stated that she had “increased pain in the
low back after gardening.” AR at 24, 467. Finally, the ALJ cited to a March 30, 2016 visit
with Dr. Flores and discussed Plaintiff’s ability to control her pain with medications,
allowing her to maintain her activities of daily living. AR at 21, 24 (citing AR at 549).
To the extent that the ALJ did not explicitly discuss the remaining visits with Dr.
Flores, the Court finds no reversible error. “While ‘[t]he record must demonstrate that
the ALJ considered all of the evidence,’ there is no requirement that an ALJ ‘discuss
every piece of evidence.’” Bales v. Colvin, 576 F. App’x 792, 797 (10th Cir. 2014)
(quoting Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014) (internal quotation
omitted)). Plaintiff “points to evidence that she claims the ALJ failed to discuss, but for
the most part she does not say why it was significantly probative . . . .” See Mays, 739
F.3d at 576. At most, Plaintiff contends that Plaintiff’s treatment from Dr. Flores is
significant to bolster her complaints of pain and its disabling effects. Doc. 16 at 16-17.
While Plaintiff did not initially argue that the ALJ erred in her credibility
assessment, the Commissioner included an analysis of the ALJ’s credibility assessment
in her Response, and Plaintiff responded at length in her Reply. See Docs. 23 at 8-9; 24
at 5-10. Plaintiff argues that the ALJ’s credibility assessment contains the following legal
errors: (1) the ALJ ignored “significant limitations” in Plaintiff’s function report “that
contradict the ALJ’s findings that [Plaintiff] ‘remains able to perform her activities of daily
living in additional [sic] to other activities such as gardening and exercise’” (Doc. 24 at 7

13

(quoting AR at 24)); (2) the ALJ ignored Plaintiff’s hearing testimony (id. at 8-9); (3) the
ALJ failed to consider why Plaintiff was unable to obtain more extensive treatment (id. at
9); (4) the ALJ “misrepresented the reasons that [Plaintiff] stopped working” (id.); and
(5) the ALJ and the Commissioner erroneously relied on medical evidence from before
Plaintiff’s 2013 fall to “refute the assertion that [Plaintiff’s] right knee pain caused
significant limitations” (id. at 10 (citing Doc. 23 at 11; AR at 23-24)). The Court will
examine each of these arguments in turn.
a.

The ALJ adequately assessed Plaintiff’s function report.

Plaintiff argues that her statements on the function report support a finding that
she has significant limitations that contradict the ALJ’s decision. Doc. 24 at 7-8 (citing
AR at 282, 285, 288). Plaintiff specifically disagrees with the ALJ’s statement that
Plaintiff is able to garden and exercise. Doc. 24 at 7; see also AR at 24. The Court
agrees that Plaintiff’s testimony about gardening was in reference to a period after her
date last insured (see AR at 467-69 (notes from April 8, 2015 visit in which Plaintiff
complains of lower back pain after gardening)), but the Court disagrees that the ALJ so
strayed from Plaintiff’s function report as to constitute legal error.
As the ALJ pointed out, there is ample evidence to support the finding that
Plaintiff’s limitations were controlled with medication and she was able to perform her
activities of daily living. See AR at 85, citing 430 (notes from Nov. 29, 2012 discharge
summary stating that “[p]ain is much better[,]” “able to get up and walk around with
minimal discomfort”), 467 (notes from April 8, 2015 visit with Dr. Flores, who noted
“[p]ersistent but tolerable discomfort on medication[, c]ontinue on current medication
without dosing change”), 549 (notes from March 30, 2016 visit with Dr. Flores, who

14

noted that “Patient is able to pursue normal daily activities of daily living without
restriction”); see also, e.g., AR at 85 (Plaintiff testified at hearing that her medications
“help with the level of functioning that you would have for” activities of daily living), 389
(June 18, 2013 visit with Dr. Cardinal, who noted that Plaintiff is “[a]ble to perform
household duties, [p]erforms” activities of daily living).
Plaintiff contends that her responses to “the function report also contradict the
ALJ’s finding that [she] goes outside on a daily basis.” Id. (quoting AR at 21 (internal
quotation marks and brackets omitted). The Court observes that on her function report,
under Section B, “Information about daily activities,” Plaintiff recited that she “walk[s]
outside for a few minutes.” AR at 281. Thus, the Court disagrees with Plaintiff’s
contention that the function report contradicts ALJ Richter’s finding that Plaintiff goes
outside on a daily basis.
Finally, Plaintiff argues that the ALJ overstated her social activities, which do not
“approach the exertional requirements of light work.” Doc. 24 at 8 (citing AR at 21);
Doc. 23 at 10. Plaintiff fails to provide any further explanation about what part of the
ALJ’s decision she refers to here, and it is not clear to the Court where the ALJ
overstated Plaintiff’s social activities. On the page to which Plaintiff cites, the ALJ found
that Plaintiff has “difficulty trusting people and overall poor social interaction.” AR at 21.
The ALJ noted several observations from Plaintiff’s husband’s function report, including
that “on good days, [Plaintiff] can go shopping, take care of pets and do chores around
the house[,]” and she “interacts with friends via phone and e-mail.” AR at 21. The Court
finds no other mention of social activities, nor does Plaintiff point to any. Plaintiff’s
argument on this point is without merit.

15

b.

The ALJ did not ignore the Plaintiff’s hearing testimony.

Plaintiff next argues that the ALJ failed to acknowledge Plaintiff’s testimony at the
hearing. Doc. 24 at 8-9. Again, the Court disagrees. ALJ Richter explicitly discussed
Plaintiff’s hearing testimony in her decision. AR at 21. The record is clear that the ALJ
considered all of the hearing testimony, even though she may not have discussed every
moment of the hearing. See Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).
c.

The ALJ considered Plaintiff’s inability to obtain further
treatment.

As the Commissioner points out, “the ALJ observed [Plaintiff’s] treatment notes
were sparse and showed a lack of consistent complaints of symptoms over time,
particularly in the relevant period.” Doc. 23 at 9 (citing AR at 22-24). The Commissioner
further notes that “an ALJ may consider ‘the extensiveness of the attempts (medical or
nonmedical) to obtain relief . . . .’” Id. (quoting Huston v. Bowen, 838 F.2d 1125, 1132
(10th Cir. 1988) (internal citations omitted)). Plaintiff contends that the ALJ’s observation
ignored Plaintiff’s testimony at her hearing, where she explained that part of the reason
she has not received all necessary treatment is because she lives in a small town
without the necessary providers, and that she would need to go out of state for a back
surgery that was discussed as an option. See Doc. 24 at 9; AR at 77-79, 84.
However, the ALJ also observed that “[p]rior to the date last insured, the primary
evidentiary weaknesses are the fleeting nature of most complaints and a dearth of
clinical signs that doctors could observe.” AR at 23. Thus, the ALJ was not just basing
her determination on the number of visits, but also on the clinical signs that doctors
observed when Plaintiff was able to visit a doctor. The ALJ specifically noted that

16

Plaintiff’s complaints were “episodic in nature, focused on one symptom at a time and,
apparently, the other complaints were not coexistent.” AR at 23. Thus, the ALJ
considered Plaintiff’s complaints to doctors when she visited, not only the fact that her
visits were sporadic. Accordingly, the Court finds no legal error that requires reversal.
d.

The ALJ did not misrepresent the reasons Plaintiff
stopped working.

Plaintiff next argues that she gave the ALJ a variety of reasons to explain why
she stopped working, yet the ALJ only mentioned her move to New Mexico in the
decision. Doc. 24 at 9; see also AR at 41-43. Plaintiff maintains this was error.
At the hearing, Plaintiff reported that she worked from July through September
2012, as a home care LPN, first for a baby and later for a paralyzed man. AR at 40-43.
Plaintiff explained that she quit the job with the baby due to the job’s physical demands,
and because her drive to that work took her past the site where her daughter was killed
in a fatal car accident. See AR at 40-42. She quit the position with the paralyzed man
after only two to three weeks because it was difficult for her to pull and lift the man. AR
at 42-43. Plaintiff testified later at the hearing that she left a job with a private nursing
service in Michigan when her husband accepted a job in Lubbock. AR at 81 (ALJ asked:
“And your last job was Advantage Private Nursing. Is that right?” Plaintiff: “Yes.”
(emphasis added)). It is unclear when this particular job ended, but her medical records
through September 2012 show that she was in Michigan. It is possible that the job she
referenced with respect to her move is the same job with the paralyzed man that she
quit due to physical demands. Plaintiff failed to make this clear either at the hearing or in

17

her brief, however, and the Court finds no legal error in the ALJ’s finding that she left
her job in Michigan due to her husband’s own relocation to Lubbock.
e.

The Court finds no reversible error in the ALJ’s reliance
on medical evidence that pre-dates Plaintiff’s right knee
injury.

Finally, Plaintiff argues that the ALJ and Commissioner used medical records
prior to Plaintiff’s right knee injury to “refute the assertion that [Plaintiff’s] right knee pain
caused significant limitations.” Doc. 24 at 10 (citing Doc. 23 at 11; AR at 22, 23).
Specifically, Plaintiff refers to the ALJ’s and Commissioner’s reliance on a November
2012 x-ray of Plaintiff’s right hip “performed to rule out deep vein thrombosis,” a chest
CT, and evidence that Plaintiff’s “complaints had a ‘fleeting nature.’” Id. (citing AR at 22,
24, 95-96, 347-50, 355, 359-60, 365, 389-93).
Plaintiff reads the ALJ’s decision on this issue too narrowly. First, ALJ Richter’s
comment regarding the “fleeting nature” of Plaintiff’s complaint referred to all of her
limitations, not only to her right knee pain. See AR at 23. ALJ Richter explained why
Plaintiff’s complaints were transient by summarizing Plaintiff’s visits with Drs. Liscow
and Cardinal, noting that Plaintiff’s complaints were “episodic in nature, focused on one
symptom at a time and, apparently, the other complaints were not coexistent.” AR at 23.
The ALJ did cite to the range of records from Gila Regional Medical Center dated
November 30, 2012, through June 4, 2014, in reference to Plaintiff’s complaints of right
knee pain. See AR at 24 (citing AR at 356-78). ALJ Richter observed that prior to
Plaintiff’s fall in December 2013, “x-rays and ultrasounds of the lower-right extremity
were normal.” AR at 24 (citing AR at 356-78). Plaintiff points to November 29, 2012
records of an x-ray of her right hip and an ultrasound of her right leg, both of which fall

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within the page range the ALJ cited. Doc. 24 at 10 (citing AR at 359-60). Plaintiff
contends that the “ultrasound was only performed to rule out deep vein thrombosis, not
to evaluate [her] right knee[,]” which is true, but the findings did apply to her “right lower
extremity” and were “normal,” as the ALJ mentioned. See id.; AR at 360. At any rate,
Plaintiff fails to establish that the ALJ’s comments resulted in any prejudice, as
substantial evidence supports the ALJ’s decision about Plaintiff’s right knee limitations.
For the foregoing reasons, the Court declines to find reversible error in the ALJ’s
credibility determination.
2.

Cervical spine x-rays.

Plaintiff argues that “the ALJ misrepresented the findings on [Plaintiff’s] cervical
spine x-rays, taken December 4, 2014 . . . .” Doc. 16 at 17 (citations omitted); see also
AR at 22. The ALJ stated that these findings were “unremarkable.” AR at 22. Plaintiff
contends it was error for ALJ Richter to fail to explain why she rejected the findings.
Doc. 16 at 17 (citing Clifton, 79 F.3d at 1010).
Plaintiff saw Dr. Flores on December 4, 2014, for a follow-up visit due to chronic
back pain. See AR at 470-73. Dr. Flores apparently ordered the cervical spine x-rays,
but there are no comments regarding the x-rays in his treatment notes. See AR at 47073, 490. The findings from the cervical spine x-rays showed “[c]ervical vertebral body
heights and disc spaces are preserved and alignment is satisfactory. Small osteophytes
of the endplates and mild facet hypertrophy at multiple levels are seen. There is no soft
tissue swelling.” AR at 490. Ultimately, the doctor who provided these findings
concluded that there were “[m]ild degenerative changes . . . .” AR at 490.

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It is noteworthy that Plaintiff did not return to Dr. Flores for over four months. See
AR at 467-69 (notes from April 8, 2015 visit). While Dr. Flores mentioned the findings
from the cervical spine x-rays, it does not appear that Dr. Flores saw cause for any
additional medication or therapy due to those findings. See AR at 467 (Plaintiff is to
“[c]ontinue on current medication without dosing change”). Dr. Flores did recommend a
tai chi program, but it was for “pelvic stabilization.” AR at 467. Dr. Flores also
“[e]ncourage[d] conservative treatment[,]” but it was in response to Plaintiff’s complaints
of “[m]ild exacerbation after gardening.” AR at 467.
Plaintiff has failed to demonstrate that the findings of her cervical spine x-rays
require a more limited RFC finding.
3.

MRI of lumbar spine

Plaintiff underwent two MRIs of her lower spine in 2012: the first was limited,
because Plaintiff stopped the procedure due to claustrophobia. See AR at 361. The
second revealed the following findings:
Slight levoconvex curvature may be present. There is no evidence of
fracture or ligamentous disruption. Conus medullaris is unremarkable. The
visualized thoracic spine is normal.
L1-2: Unremarkable.
L2-3: Degenerative disc disease with some reactive endplate change.
Small right paracentral disc extrusion effaces the right lateral recess and
extends into the right sided neural foramen creating moderate right-sided
neural foraminal narrowing.
L3-4: Unremarkable.
L4-5: Unremarkable.
L5-S1: Right greater than left sided facet arthrosis. Tiny central disc
protrusion may be seen. No appreciable central canal or neural foraminal
narrowing.
AR at 410. Plaintiff contends that the ALJ’s analysis of these MRIs requires reversal.
Doc. 16 at 17 (citing AR at 22-23).

20

The ALJ discussed findings from both MRIs, noting the disc protrusion, “a broadbased right paracentral and neural foraminal extrusion” at L2-3, which created “some
neural-foraminal narrowing.” AR at 22 (citing AR at 410). Plaintiff argues that the ALJ’s
reference to “some” as opposed to “moderate’” neural-foraminal narrowing “minimized
the significant findings . . . .” Doc. 16 at 17-18. The Court finds this argument is a
stretch. The ALJ adequately discussed these findings, the evidence of Plaintiff’s back
pain as a whole, and her reasons for formulating Plaintiff’s RFC. Moreover, Plaintiff fails
to develop an argument to establish that these MRI findings support a more limited RFC
than the one ALJ Richter assessed. It appears that Plaintiff simply asks the Court to
reweigh the evidence; this the Court may not do.
C.

The Court finds no reversible error at Step Five.

Finally, Plaintiff argues that the ALJ “committed reversible error at step five of the
sequential analysis by adopting testimony of the [VE] that directly conflicted with the
DOT and SCO without obtaining a reasonable explanation for the conflict.” Doc. 16 at
18. Specifically, Plaintiff contends: (1) the Dictionary of Occupational Titles (DOT) and
Selected Characteristics of Occupations Defined in the Revised Dictionary of
Occupational Titles (SCO) “description[s] for ‘Bakery Worker’ requires exposure to
moving mechanical machinery, which is inconsistent with the ALJ’s hypothetical
question to the VE and the RFC”; and (2) “[t]he DOT and SCO description[s] for
‘Presser, hand’ requires exposure to dust, odors[,] fumes, or pulmonary irritants, which
is inconsistent with the [ALJ’s] hypothetical question to the VE and the RFC.” Doc. 16 at
21, 23. Plaintiff maintains that the ALJ erred in failing to obtain an explanation for these
discrepancies.

21

1.

It was error for the ALJ to accept the Bakery Worker position
without asking the VE for further explanation.

Plaintiff first argues that the job of Bakery Worker includes an environmental
condition for which Plaintiff’s RFC contains limitations. Doc. 16 at 21-23. The Court
agrees. The DOT explains that a Bakery Worker will have “occasional” exposure to
moving mechanical parts. See SCO at 486, Part B, available at
https://www.nosscr.org/sco/sco-ocr.pdf (last visited Feb. 2, 2018). “Occasional”
exposure means up to one-third of the time. SCO, App’x C at C-3 (defining
“Occasionally” to mean “Activity or condition exists up to 1/3 of the time”). Occasional
exposure to moving mechanical parts conflicts with Plaintiff’s RFC, which states that
she “cannot be exposed to . . . moving mechanical parts . . . .” AR at 20. The
Commissioner admits that “the job of ‘conveyor-line bakery worker’ may be inconsistent
with the Plaintiff’s RFC if it requires occasional exposure to moving mechanical
machinery.” See Doc. 23 at 14 n.5. Because the ALJ did not “investigate and elicit a
reasonable explanation for [this] conflict between the Dictionary and [the VE’s]
testimony[,]” it was legal error for the ALJ to accept this position to support a
determination of nondisability. See Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir.
1999). The Court finds this error does not in itself mandate reversal, however, because
the ALJ identified other jobs that exist in significant numbers in the national economy
that Plaintiff could perform.
2.

The Court finds that significant jobs exist in the
economy for the remaining job identified.

Plaintiff’s final, two-pronged argument relates to the second job the VE identified
– that of Hand Presser. First, Plaintiff asserts that while the VE stated the second job as

22

Hand Presser, the VE gave a DOT number for another position – Hat Blocker – which
does not conform with Plaintiff’s RFC. Doc. 16 at 23-24. Plaintiff argues that it was
reversible error for the ALJ to accept this position. The Commissioner maintains, and
the Court agrees, that the VE’s misidentification of the DOT number (Presser, Hand is
363.684-018; Hat Blocker is 363.684-014) is a technical error, and it was clear from the
remainder of the VE’s testimony regarding the level of work (light, unskilled) that the VE
intended to identify the Hand Presser position. See Doc. 23 at 14-15; see also AR at 93.
Plaintiff next posits that because the VE identified only 50,000 jobs nationally for
the Hand Presser position, this case requires remand so that the ALJ may perform an
analysis of the Trimiar factors to determine whether the number of positions rises to the
significant level as defined in 42 U.S.C. § 423(d)(2)(A). See Doc. 24 at 11-12; Trimiar v.
Sullivan, 966 F.2d 1326 (10th Cir. 1992). The Commissioner argues that 50,000 jobs
nationally represents a significant number and remand is unnecessary. See Doc. 23 at
15. The Court agrees, because it finds Trimiar is inapposite to this case.
In Trimiar v. Sullivan, the Tenth Circuit noted a number of factors courts may
consider in evaluating whether the number of regional jobs is significant, “including:
(1) the level of claimant’s disability; (2) the reliability of the vocational expert’s testimony;
(3) the distance claimant is capable of traveling to engage in the assigned work; (4) the
isolated nature of the jobs; and, (5) the types and availability of such work.” Padilla v.
Berryhill, No. 16-106 KK, 2017 WL 3412089, at *11 (D.N.M. Mar. 28, 2017) (citing
Trimiar, 966 F.2d at 1330). The “multi-factorial analysis” required by Trimiar focuses on
factors relevant in analyzing the true “availability” of local job opportunities on a more
particularized inquiry as to the specific claimant under consideration. That seems quite

23

logical in the context of assessing truly “available” jobs regionally. Where the focus is on
national availability of jobs, however, the particularized Trimiar inquiry would confuse
the issues.
Moreover, as the post-Trimiar Tenth Circuit has explained, “the controlling
statutes, federal regulations, and case law all indicate that the proper focus generally
must be on jobs in the national, not regional, economy.”6 Raymond, 621 F.3d at 1274.
“In fact, the Sixth Circuit in Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir.1999), explicitly
stated that ‘[t]he Commissioner is not required to show that job opportunities exist within
the local area.’” Id. Thus, the Raymond court found “no reasoned basis” for reaching a
different result even where a VE had identified only 385 jobs available statewide. Id.
Here, the ALJ did not have occasion to comment on whether 50,000 jobs
represents a significant number in the national economy, because the ALJ mistakenly
concluded that there were 450,000 jobs available to Plaintiff. “The question for the court
is whether, on the facts of this case, the ALJ’s error regarding the number of jobs that
plaintiff can perform given the RFC limitations established by the ALJ constitutes
harmless error.” See Pemberton v. Berryhill, No. 16-2501-SAC, 2017 WL 1492934, at

6

The Raymond court further detailed its rationale:
In 42 U.S.C. § 423(d)(2)(A), for example, Congress prescribed that “[a]n
individual shall be determined to be under a disability only if . . . [he cannot]
engage in any other kind of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the immediate area. . . .
‘[W]ork which exists in the national economy’ means work which exists in
significant numbers either in the region where such individual lives or in several
regions of the country.” Id. (emphasis added).

Raymond, 621 F.3d at 1274.

24

*3 (D. Kan. Apr. 26, 2017); see also Ferguson v. Berryhill, No. 16-1348-SAC, 2017 WL
2536436, at *4-*6 (D. Kan. June 21, 2017).
To answer this question, the Court looks to other persuasive authorities that have
addressed the question of when one can find that a certain number of jobs in the
national economy can qualify as a “significant number.” The Ninth Circuit specifically
found that “25,000 jobs meets the statutory standard” as a nationally significant number
if the jobs are available in several regions of the country. Gutierrez v. Comm’r of Soc.
Sec., 740 F.3d 519, 528-29 (9th Cir. 2014). The Eighth Circuit expressly upheld an
ALJ’s determination that 30,000 jobs constitute a significant number in the national
economy. Long v. Chater, 108 F.3d 185, 188 (8th Cir. 1997). The District of Colorado
has held that 26,000 jobs nationally is a significant number. Jackson v. Colvin, No. 13cv-01927-KLM, 2014 WL 5504755, at *9 (D. Colo. Oct. 31, 2014) (gathering cases
where courts have held that, as a matter of law, a significant number of jobs exist in the
national economy). I very recently found that 47,500 jobs was a significant number. See
King v. Berryhill, 16-cv-01147-KBM, Mem. Op. & Order at 25-29 (D.N.M. Feb. 12,
2018). I also agree with Magistrate Judge Khalsa from this District that the Tenth Circuit
implicitly found 11,000 nationally available jobs to be a significant number in the Rogers
case.7 See Padilla, 2017 WL 3412089, at *12 (discussing Rogers v. Astrue, 312 F.
App’x 138, 142 (10th Cir. 2009)).

7

The VE in Rogers explained an apparent conflict between the DOT and the VE’s testimony by
detailing that “in his professional experience, 11,000 sedentary hand packer jobs existed in the
national economy . . . .” Rogers, 312 F. App’x at *140. The Tenth Circuit held that “the ALJ could
rely on that testimony as substantial evidence to support her determination of nondisability.” Id.
(emphasis added). It appears, therefore, that the Rogers Court implicitly found 11,000 jobs a
significant number. Indeed, the Tenth Circuit so noted in an unpublished 2016 decision. Evans v.

25

In making these observations, I am fully cognizant of the often-quoted words of
caution given by the Tenth Circuit to its lower courts:
This court has made it clear that judicial line-drawing in this context is
inappropriate, that the issue of numerical significance entails many factspecific considerations requiring individualized evaluation, and, most
importantly, that the evaluation “should ultimately be left to the ALJ's
common sense in weighing the statutory language as applied to a
particular claimant's factual situation.”
Allen v. Barnhart, 357 F.3d 1140, 1144 (10th Cir. 2004) (citing Trimiar, 966 F.2d at
1330). That powerful warning, however, came in the context of evaluating only whether
100 statewide jobs constitute a significant number in the local economy. Id. Because
the ALJ in Allen had failed to perform the more searching Trimiar assessment as to
those regional jobs, the lower court appropriately remanded. Of significance here, the
availability of jobs in the national economy played no role in the Allen analysis.
The Court is also aware that it “should apply the harmless error analysis
cautiously in the administrative review setting.” Id. (citing Fischer-Ross v. Barnhart, 431
F.3d 729, 733 (10th Cir. 2005)). It finds, however, that where there are 50,000 jobs
available in the national economy, the Court can “confidently say that no reasonable
factfinder, following the correct analysis, could have resolved the factual matter in any

Colvin, 640 F. App’x 731, 735 (10th Cir. 2016) (“we implied [in Rogers] that 11,000 national jobs
was a significant number”).
Of course, as an unpublished Order and Judgment, the Rogers decision is not precedential
even though it can be appropriately cited for its persuasive value. See Fed. R. App. P. 32.1(A);
10th Cir. R 32.1(A). In Evans, the Tenth Circuit panel affirmed the lower court’s finding that
Rogers was unpersuasive because “the figure [at issue in Rogers] was stated in dictum and
harmless error was not at issue.” Id. The Tenth Circuit did not dispute this assertion by the
district court.

26

other way.” Pemberton, 2017 WL 1492934, at *3 (citing Fischer-Ross, 431 F.3d at 73334; Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004)).8
In summary, the Court finds that the Trimiar analysis does not extend to the
question of whether there are significant numbers of nationally available jobs that a
claimant can perform. See Padilla, 2017 WL 3412089, at *12 (citing Raymond v. Astrue,
356 F. App’x 173 (10th Cir. 2009); Botello v. Astrue, 376 F. App’x 847 (10th Cir. 2010)).
And, based on persuasive authority, the Court finds that the 50,000 remaining jobs
represent a significant number in the national economy.
V.

Conclusion and Recommendation

The Court recommends that the ALJ’s decision be affirmed.
IT IS HEREBY RECOMMENDED that Plaintiff’s Motion to Reverse or Remand
Administrative Agency Decision and Memorandum Brief (Doc. 16) be denied.

________________________________________
UNITED STATES MAGISTRATE JUDGE

8

The Court notes the irony of citing to Pemberton and Ferguson, both of which were decided by
the Honorable Sam A. Crow, United States District Senior Judge, where in each the court found
the opposite of what I am recommending – that is, of the remaining jobs that the ALJ
considered, the court was not comfortable finding harmless error and remanded the case for the
ALJ to determine whether the remaining number of jobs was “significant.” See Ferguson, 2017
WL 2536436, at *4-*6 (declining to find 30,000 nationally available jobs significant); Pemberton,
2017 WL 1492934, at *5 (same, 12,000 jobs). The Court takes pains to point out, however, that
while the court’s analysis in both cases is reasoned and thoughtful, both relied heavily on
Trimiar. As I noted in King, I believe the Pemberton and Ferguson “analysis conflates the
situations in which the Trimiar analysis is not only required, but helpful.” King, No. 16-cv-1147KBM, Mem. Op. & Order, at 26 (D.N.M. Feb. 12, 2018).

27

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.

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