(SS) Anderson v. Commissioner of Social Security ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC WESLEY ANDERSON, Case No. 1:23-cv-01161-HBK 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, DENYING 13 v. DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT, AND 14 MARTIN O’MALLEY, REMANDING CASE TO COMMISSIONER COMMISSIONER OF SOCIAL OF SOCIAL SECURITY2 15 SECURITY,1 (Doc. Nos. 15, 17) 16 Defendant. 17 18 19 Eric Wesley Anderson (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 21 supplemental security income under the Social Security Act. (Doc. No. 1). The matter is 22 currently before the Court on the parties’ briefs, which were submitted without oral argument. 23 (Doc. Nos. 15, 17-18). For the reasons stated, the Court grants Plaintiff’s motion for summary 24 judgment, denies Defendant’s motion for summary judgment, and orders this matter remanded to 25 26 1 The Court has substituted Martin O’Malley, who has been appointed the Acting Commissioner of Social Security, as the defendant in this suit. See Fed. R. Civ. P. 25(d). 27 2 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. §636(c)(1). (Doc. No. 10). 28 1 the Commissioner of Social Security for further administrative proceedings. 2 I. JURISDICTION 3 Plaintiff filed for supplemental security income on May 29, 2020, alleging an onset date 4 of February 20, 2017. (AR 231-40). At the hearing, Plaintiff amended the alleged onset date to 5 May 29, 2020. (AR 47). Benefits were denied initially (AR 73-85, 107-12), and upon 6 reconsideration (AR 86-101, 114-19). Plaintiff appeared telephonically before an Administrative 7 Law Judge (“ALJ”) on September 1, 2022. (AR 42-72). Plaintiff was represented by counsel and 8 testified at the hearing. (Id.). The ALJ issued an unfavorable decision (AR 24-41), and the 9 Appeals Council denied review (AR 11-16). The matter is now before this Court pursuant to 42 10 U.S.C. § 1383(c)(3). 11 II. BACKGROUND 12 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 13 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 14 summarized here. 15 Plaintiff was 45 years old at the time of the hearing. (See AR 50). He graduated from 16 high school. (AR 50). He lives alone. (AR 48). Plaintiff has past relevant work history as a 17 newspaper delivery driver. (AR 51, 63). Plaintiff testified that he has “extreme breathing 18 problems” after having 20% of his lung removed, especially when the weather gets very hot or 19 cold, and he has chest pain. (AR 54-55, 57). He reported lower back pain that radiates into his 20 legs and hip, and throbbing pain in his hip. (AR 55-56, 61). He can stand in one place for 35 21 minutes to 1 hour before he needs to take a break for two hours, he can sit for 30 minutes at a 22 time, he spends 4 hours every day laying down for 1 hour at a time, and he can lift and carry ten 23 pounds at the most. (AR 56-58). Plaintiff testified that he can do something like wash the dishes 24 for 15 to 20 minutes before he must stop for 5 to 10 minutes. (AR 59). He reported he has seen a 25 mental health counselor once a month for three months, and he has panic attacks. (AR 60, 69). 26 III. STANDARD OF REVIEW 27 A district court’s review of a final decision of the Commissioner of Social Security is 28 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 1 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 2 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 3 evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a 4 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence 5 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 6 citation omitted). In determining whether the standard has been satisfied, a reviewing court must 7 consider the entire record as a whole rather than searching for supporting evidence in isolation. 8 Id. 9 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 10 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 11 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 12 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 13 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 14 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 15 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 16 U.S. 396, 409-10 (2009). 17 IV. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 18 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 19 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 20 activity by reason of any medically determinable physical or mental impairment which can be 21 expected to result in death or which has lasted or can be expected to last for a continuous period 22 of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment 23 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 24 considering his age, education, and work experience, engage in any other kind of substantial 25 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 26 The Commissioner has established a five-step sequential analysis to determine whether a 27 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 28 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the 1 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 2 claimant is not disabled. 20 C.F.R. § 416.920(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 4 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 5 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of 6 impairments which significantly limits [his or her] physical or mental ability to do basic work 7 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s 8 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 9 claimant is not disabled. 20 C.F.R. § 416.920(c). 10 At step three, the Commissioner compares the claimant’s impairment to severe 11 impairments recognized by the Commissioner to be so severe as to preclude a person from 12 engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as 13 severe or more severe than one of the enumerated impairments, the Commissioner must find the 14 claimant disabled and award benefits. 20 C.F.R. § 416.920(d). 15 If the severity of the claimant’s impairment does not meet or exceed the severity of the 16 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 17 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 18 ability to perform physical and mental work activities on a sustained basis despite his or her 19 limitations, 20 C.F.R. § 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 20 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 21 claimant is capable of performing work that he or she has performed in the past (past relevant 22 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant 23 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If 24 the claimant is incapable of performing such work, the analysis proceeds to step five. 25 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 26 claimant is capable of performing other work in the national economy. 20 C.F.R. § 27 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational 28 factors such as the claimant’s age, education, and past work experience. 20 C.F.R. § 1 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must 2 find that the claimant is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of 3 adjusting to other work, analysis concludes with a finding that the claimant is disabled and is 4 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 5 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 6 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 7 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 8 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 9 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 10 V. ALJ’S FINDINGS 11 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 12 since May 29, 2020, the application date. (AR 29). At step two, the ALJ found that Plaintiff has 13 the following severe impairments: hypertension; residuals from pulmonary mycobacterium 14 infection; status post partial lobectomy of lung; status post chest tube due to mycobacterium 15 avium complex (“MAC”) cavitary lesion; arthritis of the lumbar spine with spondylosis; and 16 primary osteoarthritis of left hip. (AR 29). At step three, the ALJ found that Plaintiff does not 17 have an impairment or combination of impairments that meets or medically equals the severity of 18 a listed impairment. (AR 31). The ALJ then found that Plaintiff has the RFC: 19 to perform sedentary work as defined in 20 CFR 416.967(a) except he can occasionally climb ladders, ramps, and stairs, but cannot 20 climb ropes or scaffolds; can occasionally stoop, kneel, crouch, and crawl; and can no more than occasionally be exposed to work outside 21 (in weather), in extreme heat or extreme cold, and around dust, odors, fumes and pulmonary irritants. 22 23 (AR 32). At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. 24 (AR 35). At step five, the ALJ found that considering Plaintiff’s age, education, work 25 experience, and RFC, there are jobs that exist in significant numbers in the national economy that 26 Plaintiff can perform, including: document preparer, order clerk, food and beverage, and escort 27 vehicle driver. (AR 36). On that basis, the ALJ concluded that Plaintiff has not been under a 28 disability, as defined in the Social Security Act, since May 29, 2020, the date the application was 1 filed. (AR 37). 2 VI. ISSUES 3 Plaintiff seeks judicial review of the Commissioner’s final decision denying him 4 supplemental security income benefits under Title XVI of the Social Security Act. (Doc. No. 1). 5 Plaintiff identifies these issues for this Court’s review: 6 1. Whether the ALJ properly considered Plaintiff’s symptom claims; and 7 2. Whether the ALJ’s RFC determination is supported by substantial evidence because 8 the ALJ failed in his duty to complete the record and obtain an opinion of Plaintiff’s 9 RFC from an examining physician. 10 (Doc. No. 15 at 7-11). 11 VII. DISCUSSION 12 A. Symptom Claims 13 An ALJ engages in a two-step analysis when evaluating a claimant’s testimony regarding 14 subjective pain or symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 15 The ALJ first must determine whether there is “objective medical evidence of an underlying 16 impairment which could reasonably be expected to produce the pain or other symptoms alleged.” 17 Id. (internal quotation marks omitted). “The claimant is not required to show that his impairment 18 could reasonably be expected to cause the severity of the symptom he has alleged; he need only 19 show that it could reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 20 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 21 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the 22 ALJ can only reject the claimant’s testimony about the severity of the symptoms if [the ALJ] 23 gives ‘specific, clear and convincing reasons’ for the rejection.” Ghanim v. Colvin, 763 F.3d 24 1154, 1163 (9th Cir. 2014) (internal citations and quotations omitted). “General findings are 25 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 26 undermines the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 27 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a 28 credibility determination with findings sufficiently specific to permit the court to conclude that 1 the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and convincing 2 [evidence] standard is the most demanding required in Social Security cases.” Garrison v. 3 Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 4 F.3d 920, 924 (9th Cir. 2002)). 5 Here, the ALJ found Plaintiff’s medically determinable impairments could reasonably be 6 expected to cause some of the alleged symptoms; however, Plaintiff’s “statements concerning the 7 intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the 8 medical evidence and other evidence in the record for the reasons explained in this decision. 9 Accordingly, these statements have been found to affect the claimant’s ability to work only to the 10 extent they can reasonably be accepted as consistent with the objective medical and other 11 evidence.” (AR 33). Plaintiff argues the ALJ failed to provide specific, clear, and convincing 12 reasons to reject his pain testimony. (Doc. No. 15 at 10-11). The Court agrees. 13 As an initial matter, the ALJ briefly summarized the medical evidence of Plaintiff’s 14 physical impairments as follows: complaints of shortness of breath due to surgical intervention 15 for a MAC cavitary lesion (AR 949), one denial of shortness of breath (AR 605), one report of 16 intermittent episodes of shortness of breath (AR 872), treatment for hypertension (AR 605), 17 diagnosis of arthritis of the lumbar spine (AR 812), unremarkable MRI imagine in July 2021 (AR 18 665), steroid injection to treat lumbar spine (AR 677), diagnosis of primary osteoarthritis of the 19 left hip (AR 665), steroid injections to treat the left hip (AR 812), and Plaintiff’s single report in 20 February 2022 that his lumbar arthritis and hip osteoarthritis were doing well with treatment (AR 21 774).3 (AR 34). Based on this summary, the ALJ found that “[o]verall, the claimant’s treatment 22 records, including the objective medical evidence, are not entirely consistent with the medically 23 determinable impairments and subjective reports of disabling symptoms.” (AR 34). First, 24 Plaintiff notes that the ALJ may not discredit a claimant’s pain testimony and deny benefits solely 25 because the degree of pain alleged is not supported by objective medical evidence. (Doc. No. 15 26 3 The ALJ also generally noted Plaintiff “has not required surgical intervention,” but the supporting 27 citation is to the “operative report” for the bilateral lumbar 3, 4 and 5 medial branch block steroid injections administered in October 2021. (AR 34, 677). The report does not include any statement as to 28 the necessity, or lack thereof, for surgical intervention. 1 at 11); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 2 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). Defendant 3 contends the ALJ properly considered objective medical evidence as a reason to discount 4 Plaintiff’s symptom claims, along with positive response to conservative treatment and pain 5 medication, “inconsistent statements to health providers in assessing his allegations of disabling 6 symptoms,” inconsistency with the medical opinion evidence, and inconsistency with Plaintiff’s 7 daily activities. (Doc. No. 17 at 11-14). However, Defendant’s argument appears partially based 8 on the ALJ’s ultimate conclusion, after evaluating the medical opinion evidence, that 9 “[c]onsideration of the record as a whole, including the claimant’s reported activities of daily 10 living, conservative/routine treatment modalities, the longitudinal medical record, and the opinion 11 evidence shows the claimant’s allegations of disabling symptoms and limitations are not entirely 12 consistent with and supported by the medical evidence and other evidence in the record.” (AR 13 35); Rollins, 261 F.3d at 857 (ALJ may consider a claimant’s activities that undermine reported 14 symptoms). Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (evidence of “conservative 15 treatment” may be sufficient to discount a claimant's testimony regarding the severity of an 16 impairment); 20 C.F.R. § 416.929(c)(4). 17 Regardless, as additionally argued by Plaintiff, “[a]n ALJ does not provide specific, clear, 18 and convincing reasons for rejecting a claimant's testimony by simply reciting the medical 19 evidence in support of his or her residual functional capacity determination.” (Doc. No. 15 at 11 20 (citing Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015)). Defendant is correct that 21 Ninth Circuit does “not require ALJs to perform a line-by-line exegesis of the claimant’s 22 testimony, nor do they require ALJs to draft dissertations when denying benefits.” (Doc. No. 17 23 at 9-10 (citing Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020); Smartt v. Kijakazi, 53 F. 4th 24 489, 499 (9th Cir. 2022) (“The standard isn’t whether our court is convinced, but instead whether 25 the ALJ’s rationale is clear enough that it has the power to convince.”)). However, “the ALJ 26 must specifically identify the testimony she or he finds not to be credible and must explain what 27 evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195 (9th Cir. 2001); 28 Brown-Hunter, 806 F.3d at 494 (“To ensure that our review of the ALJ’s credibility 1 determination is meaningful, and that the claimant’s testimony is not rejected arbitrarily, we 2 require the ALJ to specify which testimony she finds not credible, and then provide clear and 3 convincing reasons, supported by the evidence in the record, to support that credibility 4 determination.”). Here, while the ALJ properly referenced factors relevant to his assessment of 5 Plaintiff’s subjective allegations pursuant to Social Security Rule (SSR) 16-3p and 20 C.F.R. § 6 416.929(c)(3) (AR 33), he did not identify the specific testimony that he found not to be credible, 7 nor did he offer explanations for how Plaintiff’s “reported activities of daily living, 8 conservative/routine treatment modalities, the longitudinal medical record, and the opinion 9 evidence” (AR 35) undermines Plaintiff’s specific symptom claims. Thus, these are not clear and 10 convincing reasons, supported by substantial evidence, to discount his symptom claims. 11 Finally, even were the Court to consider the “reasons” given by the ALJ as part of the 12 summary of medical evidence, as argued by Defendant, it is unclear that they are supported by 13 substantial evidence. The ALJ noted that Plaintiff complained of shortness of breath but denied 14 shortness of breath and reported only intermittent shortness of breath on two occasions, 15 respectively; and the ALJ cited a single self-report of improvement in his hip osteoarthritis and 16 lumbar arthritis at a single treatment visit in February 2022. (AR 605, 774, 872); See Tommasetti, 17 533 F.3d at 1040 (favorable response to treatment can undermine a claimant's complaints of 18 debilitating pain or other severe limitations); 20 C.F.R. § 416.929(c)(4) (ALJ may consider 19 inconsistencies in the evidence and “the extent to which there are any conflicts between” 20 plaintiff’s statements and statements by medical sources about how symptoms affect plaintiff). 21 However, singular discrepancies fail to justify the wholesale dismissal of a claimant's testimony. 22 See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883–84 (9th Cir. 2006). Moreover, as argued by 23 Plaintiff, to the extent the ALJ relied on the medical summary of objective evidence and 24 treatment notes to discount Plaintiff’s right upper extremity symptom claims, it is well-settled in 25 the Ninth Circuit that an ALJ may not discredit a claimant’s pain testimony and deny benefits 26 solely because the degree of pain alleged is not supported by objective medical evidence. Rollins, 27 261 F.3d at 857; Bunnell, 947 F.2d at 346-47; Brown-Hunter, 806 F.3d at 489. As discussed 28 above, the additional “reasons” given by the ALJ for discounting Plaintiff’s symptom claims were 1 not supported by substantial evidence. Because lack of corroboration by the objective evidence 2 cannot stand alone as a basis for rejecting Plaintiff’s symptom claims, the ALJ’s finding is 3 inadequate. 4 The Court concludes that the ALJ did not provide clear and convincing reasons, supported 5 by substantial evidence, for rejecting Plaintiff’s symptom claims. On remand, the ALJ must 6 reconsider Plaintiff’s symptom claims. 7 B. Duty to Develop 8 Plaintiff also argues the RFC determination is not supported by substantial evidence 9 because he failed in his duty to complete the record and obtain an opinion of Plaintiff’s physical 10 RFC from an examining physician. Doc. No. 15 at 7-10). The Court finds it unnecessary to 11 consider whether the ALJ had a duty to develop the record in light of the need for the ALJ to 12 reconsider Plaintiff’s symptom claims and conduct a new sequential analysis on remand. 13 C. Remedy 14 The decision whether to remand for further proceedings or reverse and award benefits is 15 within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 16 1989). An immediate award of benefits is appropriate where “no useful purpose would be served 17 by further administrative proceedings, or where the record has been thoroughly developed,” 18 Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the 19 delay caused by remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 20 1280 (9th Cir. 1990); see also Garrison, 759 F.3d at 1021 (noting that a district court may abuse 21 its discretion not to remand for benefits when all of these conditions are met). This policy is 22 based on the “need to expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 23 outstanding issues that must be resolved before a determination can be made, and it is not clear 24 from the record that the ALJ would be required to find a claimant disabled if all the evidence 25 were properly evaluated, remand is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 26 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 27 The Court finds that further administrative proceedings are appropriate. See Treichler v. 28 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) (remand for benefits is not 1 | appropriate when further administrative proceedings would serve a useful purpose). Here, the 2 | ALJ improperly considered Plaintiff's symptom claims, which calls into question whether the 3 | assessed REC, and resulting hypothetical propounded to the vocational expert, are supported by 4 | substantial evidence. “Where,” as here, “there is conflicting evidence, and not all essential 5 || factual issues have been resolved, a remand for an award of benefits is inappropriate.” Treichler, 6 | 775 F.3d at 1101. On remand, the ALJ should reevaluate Plaintiff's symptom claims, as well as 7 | all relevant medical evidence, including medical opinions. The ALJ should order additional 8 | consultative examinations and, if appropriate, take additional testimony from medical experts. 9 | The ALJ should conduct a new sequential analysis, reassess Plaintiff’s RFC and, if necessary, 10 | take additional testimony from a vocational expert which includes all of the limitations credited 11 | by the ALJ. 12 Accordingly, it is ORDERED: 13 1. Plaintiff's Motion for Summary Judgment (Doc. No. 15) is GRANTED. 14 2. Defendant’s Cross Motion for Summary Judgment (Doc. No. 17) is DENIED. 15 3. Pursuant to sentence four of 42 U.S.C.§ 405(g), the Court REVERSES the 16 Commissioner’s decision and REMANDS this case back to the Commissioner of 17 Social Security for further proceedings consistent with this Order. 18 4. An application for attorney fees may be filed by separate motion within thirty (30) 19 days. 20 5. The Clerk shall enter judgment in favor of Plaintiff, terminate any motions and 21 deadlines, and close this case. 22 23 Dated: _ September 19, 2024 oe Zh. Sareh Back 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE 26 27 28 11