Schluter v. O'Malley ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 MICHAEL S., Case No. 2:24-cv-00204-NJK 7 Plaintiff, Order 8 v. 9 MARTIN O’MALLEY, 10 Defendant. 11 This case involves judicial review of administrative action by the Commissioner of Social 12 Security (“Commissioner”) denying Plaintiff’s application for disability insurance benefits 13 pursuant to Title II of the Social Security Act. Currently before the Court is Plaintiff’s motion to 14 reverse and remand. Docket No. 11. The Commissioner filed a responsive brief. Docket No. 13. 15 No reply was filed. See Docket. The parties consent to resolution of this matter by the undersigned 16 magistrate judge. Docket No. 3; see also Gen. Order. 2019-08. 17 I. STANDARDS 18 A. Judicial Standard of Review 19 The Court's review of administrative decisions in social security disability benefits cases 20 is governed by 42 U.S.C. § 405(g). Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). 21 Section 405(g) provides that, “[a]ny individual, after any final decision of the Commissioner of 22 Social Security made after a hearing to which he was a party, irrespective of the amount in 23 controversy, may obtain a review of such decision by a civil action...brought in the district court 24 of the United States for the judicial district in which the plaintiff resides.” The Court may enter, 25 “upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing 26 the decision of the Commissioner of Social Security, with or without remanding the cause for a 27 rehearing.” Id. 28 1 The Commissioner's findings of fact are deemed conclusive if supported by substantial 2 evidence. Id. To that end, the Court must uphold the Commissioner's decision denying benefits 3 if the Commissioner applied the proper legal standard and there is substantial evidence in the 4 record as a whole to support the decision. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). 5 Substantial evidence is “more than a mere scintilla,” which equates to “such relevant evidence as 6 a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 7 U.S. 97, 139 S. Ct. 1148, 1154 (2019). “[T]he threshold for such evidentiary sufficiency is not 8 high.” Id. In determining whether the Commissioner's findings are supported by substantial 9 evidence, the Court reviews the administrative record as a whole, weighing both the evidence that 10 supports and the evidence that detracts from the Commissioner's conclusion. Reddick v. Chater, 11 157 F.3d 715, 720 (9th Cir. 1998). 12 Under the substantial evidence test, the Commissioner's findings must be upheld if 13 supported by inferences reasonably drawn from the record. Batson v. Comm'r, Soc. Sec. Admin., 14 359 F.3d 1190, 1193 (9th Cir. 2004). When the evidence will support more than one rational 15 interpretation, the Court must defer to the Commissioner's interpretation. Burch v. Barnhart, 400 16 F.3d 676, 679 (9th Cir. 2005). Consequently, the issue before this Court is not whether the 17 Commissioner could reasonably have reached a different conclusion, but whether the final decision 18 is supported by substantial evidence. 19 It is incumbent on the Administrative Law Judge (“ALJ”) to make specific findings so that 20 the Court does not speculate as to the basis of the findings when determining if the Commissioner's 21 decision is supported by substantial evidence. The ALJ's findings should be as comprehensive and 22 analytical as feasible and, where appropriate, should include a statement of subordinate factual 23 foundations on which the ultimate factual conclusions are based, so that a reviewing court may 24 know the basis for the decision. See, e.g., Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 25 1990). 26 B. Disability Evaluation Process 27 The individual seeking disability benefits bears the initial burden of proving disability. 28 Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, the individual must 1 demonstrate the “inability to engage in any substantial gainful activity by reason of any medically 2 determinable physical or mental impairment which can be expected...to last for a continuous period 3 of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). More specifically, the individual must 4 provide “specific medical evidence” in support of his claim for disability. See, e.g., 20 C.F.R. § 5 404.1514. If the individual establishes an inability to perform his prior work, then the burden 6 shifts to the Commissioner to show that the individual can perform other substantial gainful work 7 that exists in the national economy. Reddick, 157 F.3d at 721. 8 The ALJ follows a five-step sequential evaluation process in determining whether an 9 individual is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (citing 20 C.F.R. §§ 404.1520, 10 416.920). If at any step the ALJ determines that he can make a finding of disability or 11 nondisability, a determination will be made and no further evaluation is required. See Barnhart v. 12 Thomas, 540 U.S. 20, 24 (2003); see also 20 C.F.R. § 404.1520(a)(4). The first step requires the 13 ALJ to determine whether the individual is currently engaging in substantial gainful activity 14 (“SGA”). 20 C.F.R. § 404.1520(b). SGA is defined as work activity that is both substantial and 15 gainful; it involves doing significant physical or mental activities usually for pay or profit. 20 16 C.F.R. § 404.1572(a)-(b). If the individual is currently engaging in SGA, then a finding of not 17 disabled is made. If the individual is not engaging in SGA, then the analysis proceeds to the second 18 step. 19 The second step addresses whether the individual has a medically determinable impairment 20 that is severe or a combination of impairments that significantly limits him from performing basic 21 work activities. 20 C.F.R. § 404.1520(c). An impairment or combination of impairments is not 22 severe when medical and other evidence does not establish a significant limitation of an 23 individual's ability to work. See 20 C.F.R. §§ 404.1521, 404.1522. If the individual does not have 24 a severe medically determinable impairment or combination of impairments, then a finding of not 25 disabled is made. If the individual has a severe medically determinable impairment or combination 26 of impairments, then the analysis proceeds to the third step. 27 The third step requires the ALJ to determine whether the individual's impairments or 28 combination of impairments meet or medically equal the criteria of an impairment listed in 20 1 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. If the 2 individual's impairment or combination of impairments meet or equal the criteria of a listing and 3 meet the duration requirement (20 C.F.R. § 404.1509), then a finding of disabled is made. 20 4 C.F.R. § 404.1520(d). If the individual's impairment or combination of impairments does not meet 5 or equal the criteria of a listing or meet the duration requirement, then the analysis proceeds to the 6 next step. 7 Before considering step four of the sequential evaluation process, the ALJ must first 8 determine the individual's residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). The 9 residual functional capacity is a function-by-function assessment of the individual's ability to do 10 physical and mental work-related activities on a sustained basis despite limitations from 11 impairments. Social Security Rulings (“SSRs”) 96-8p. In making this finding, the ALJ must 12 consider all of the symptoms, including pain, and the extent to which the symptoms can reasonably 13 be accepted as consistent with the objective medical evidence and other evidence. 20 C.F.R. § 14 404.1529. To the extent that statements about the intensity, persistence, or functionally-limiting 15 effects of pain or other symptoms are not substantiated by objective medical evidence, the ALJ 16 must evaluate the individual's statements based on a consideration of the entire case record. SSR 17 16-3p. The ALJ must also consider opinion evidence in accordance with the requirements of 20 18 C.F.R. § 404.1527. 19 The fourth step requires the ALJ to determine whether the individual has the residual 20 functional capacity to perform his past relevant work (“PRW”). 20 C.F.R. § 404.1520(f). PRW 21 means work performed either as the individual actually performed it or as it is generally performed 22 in the national economy within the last 15 years or 15 years prior to the date that disability must 23 be established. In addition, the work must have lasted long enough for the individual to learn the 24 job and performed at SGA. 20 C.F.R. §§ 404.1560(b), 404.1565. If the individual has the residual 25 functional capacity to perform his past work, then a finding of not disabled is made. If the 26 individual is unable to perform any PRW or does not have any PRW, then the analysis proceeds 27 to the fifth and last step. 28 1 The fifth and final step requires the ALJ to determine whether the individual is able to do 2 any other work considering his residual functional capacity, age, education, and work experience. 3 20 C.F.R. § 404.1520(g). If the individual is able to do other work, then a finding of not disabled 4 is made. Although the individual generally continues to have the burden of proving disability at 5 this step, a limited burden of going forward with the evidence shifts to the Commissioner. The 6 Commissioner is responsible for providing evidence that demonstrates that other work exists in 7 significant numbers in the national economy that the individual can do. Lockwood v. Comm'r, Soc. 8 Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 9 II. BACKGROUND 10 A. Procedural History 11 On December 17, 2019, Plaintiff filed an application for a period of disability and disability 12 insurance benefits with an alleged onset date of January 17, 2017. See, e.g., Administrative Record 13 (“A.R.”) 38, 380-381. Plaintiff’s application was denied initially and again on reconsideration. 14 A.R. 185, 187-194. Plaintiff filed a request for a hearing before an administrative law judge. A.R. 15 218-219. On November 29, 2021, Plaintiff appeared for a hearing before ALJ Barry Jenkins. See 16 A.R. 77-86. Plaintiff opted to postpone the hearing to obtain an attorney representative. A.R. 83- 17 85. 18 On June 17, 2022, and October 27, 2022, Plaintiff, Plaintiff’s representative, and a 19 vocational expert appeared for a hearing before ALJ Kathleen Kadlec. See A.R. 87-173. On 20 December 9, 2022, the ALJ issued an unfavorable decision finding that Plaintiff had not been 21 under a disability through the date of the decision. A.R. 38-55. The Appeals Council denied 22 Plaintiff’s request for review. A.R. 1-4. On February 1, 2024, Plaintiff commenced suit seeking 23 judicial review. Docket No. 6. 24 B. The Decision Below 25 The ALJ’s decision followed the five-step sequential evaluation process set forth in 20 26 C.F.R. § 404.1520(a). A.R. 39-54. At step one, the ALJ found that Plaintiff met the insured status 27 requirement through December 31, 2022, and had not engaged in substantial gainful activity since 28 the alleged onset date. A.R. 40. At step two, the ALJ found that Plaintiff had the following severe 1 impairments: rotator cuff repair of the right upper extremity with labral tear; left lower extremity 2 meniscal tear, bursitis, and Baker’s cyst; degenerative disc disease of the cervical and lumbar 3 spine; postoperative changes of the cervical spine; and left shoulder supraspinatus tendinopathy 4 with tendon rupture. A.R. 40-44. At step three, the ALJ found that Plaintiff did not have an 5 impairment or combination of impairments that meets or medically equals the severity of one of 6 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. A.R. 44. The ALJ found that 7 Plaintiff has the residual functional capacity 8 to perform light work as defined in 20 CFR 404.1567(b) except [Plaintiff] can lift and/or carry 20 pounds occasionally and 10 9 pounds frequently. [Plaintiff] is able to stand for six hours, walk for six hours, and sit for six hours. He can push/pull as much as he can 10 lift/carry. He can operate foot controls with the bilateral feet frequently. He can operate hand controls with the bilateral hands 11 frequently. He is limited to occasionally reaching overhead with the bilateral upper extremities, yet is able to frequently reach in all other 12 directions with the bilateral upper extremities. He can handle items frequently with the bilateral hands, can finger frequently with the 13 bilateral hands, and can frequently feel with the bilateral hands. The [Plaintiff] can climb ramps and stairs occasionally, but can never 14 climb ladders, ropes, or scaffolds. [Plaintiff] can occasionally stoop, kneel, crouch, and crawl. [Plaintiff] can never work at unprotected 15 heights. He can occasionally work around moving mechanical parties, as well as occasionally operate a motor vehicle. He can 16 occasionally tolerate extreme cold, extreme heat, and vibrations. 17 A.R. 44-52. At step four, the ALJ found that Plaintiff is capable of performing past relevant work 18 as a money counter as generally performed, and that such work does not require the performance 19 of work-related activities precluded by Plaintiff’s residual functional capacity. A.R. 52-54. The 20 ALJ, further found that, even if Plaintiff could not perform any of his past relevant work, there are 21 other jobs that exist in significant numbers in the national economy that Plaintiff can also perform 22 based on his age, education, work experience, and residual functional capacity. A.R. 53. Based 23 on all of these findings, the ALJ found Plaintiff not disabled from the alleged onset date through 24 the date of her decision. A.R. 54 -55. 25 III. ANALYSIS 26 Plaintiff submits that the ALJ’s determination is not supported by any medical opinion. 27 Docket No. 11 at 11. Notably, Plaintiff does not challenge the ALJ’s evaluation of the medical 28 opinions in the record; rather, he argues that the ALJ’s RFC determination did not have the support 1 of substantial evidence because it did not match one of the medical opinions. Docket No. 11 at 2 11. Plaintiff submits that, by finding all medical opinions of record unpersuasive, the ALJ’s RFC 3 assessment “represents nothing but her own lay medical opinion.” Id. Specifically, Plaintiff 4 submits that the ALJ’s findings are not reasonable because they are “untethered to any medical 5 opinion.” Id. The Commissioner responds that the ALJ properly evaluated the medical opinions 6 and prior administrative medical findings (“PAMF”) and reasonably assessed Plaintiff’s RFC 7 based on all the evidence in the record. Docket No. 13 at 5. 8 “[R]esidual functional capacity is the most [Plaintiff] can still do despite [his] limitations.” 9 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The RFC determination considers all medically 10 determinable impairments, including those that are not severe. Id. at §§ 404.1545(a), 416.945(a). 11 The RFC assessment must consider all evidence in the record and “contain a thorough discussion 12 of the objective medical and other evidence.” Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 13 2017) (citing Social Security Ruling 96-8p, 61 Fed. Reg 34474, 34478 (July 2, 1996)). “The RFC 14 is an administrative assessment of the extent to which an individual's medically determinable 15 impairments...may affect his or her capacity to do work-related physical and mental activities.” Id. 16 (quoting SSR 96-8p, 61 Fed. Reg at 34475). “[A]t the administrative law judge hearing level...the 17 administrative law judge...is responsible for assessing [Plaintiff's] residual functional capacity.” 18 20 C.F.R. §§ 404.1546(c), 416.946(c). The residual functional capacity determination does not 19 need to copy the exact opinion of any particular doctor, but “the ALJ is responsible for translating 20 and incorporating clinical findings into a succinct” residual functional capacity. Rounds v. 21 Commissioner, 795 F.3d 1177, 1185-86 (9th Cir. 2015), as amended, 807 F.3d 996, 1005-06 (9th 22 Cir. 2015). 23 When evaluating medical evidence, an ALJ cannot “defer or give any specific evidentiary 24 weight, including controlling weight, to any medical opinion(s) or prior administrative medical 25 finding(s).” 20 C.F.R § 404.1520c(a). The ALJ must “articulate how [she] considered the medical 26 opinions and prior administrative medical findings” based on certain specified factors. Id. The 27 most important factors are supportability and consistency, which the ALJ must address. 20 C.F.R. 28 § 404.1520c(b). “Supportability means the extent to which a medical source supports the medical 1 opinion by explaining the ‘relevant...objective medical evidence.’ Consistency means the extent 2 to which a medical opinion is ‘consistent...with the evidence from other medical sources and 3 nonmedical sources in the claim.’” Woods v. Kijakazi, 32 F.4th 785, 791-92 (9th Cir. 2022) 4 (quoting 20 C.F.R. §§ 404.1520c(c)(1) & (c)(2)). 5 A. Medical Opinions 6 Plaintiff submits that the ALJ’s RFC finding is not supported by substantial evidence. 7 Docket No. 11 at 10. Defendant responds that the ALJ’s RFC assessment includes “a thorough 8 analysis of all the relevant evidence, including Plaintiff’s subjective allegations, the objective 9 medical evidence, Plaintiff’s response to treatment, Plaintiff’s reported activities, and the medical 10 opinions and PAMFs in the record.” Docket No. 13 at 5. Defendant further submits that the ALJ 11 reasonably found the opinions to be not persuasive because they lacked supportability and 12 consistency. Id. 13 Plaintiff provides no case law in support of his contention that an ALJ’s determination 14 must be tethered to a medical opinion. Instead, the regulations simply state that the RFC is based 15 on all the relevant evidence in the case record. 20 C.F.R. § 404.1545(a). The regulations instruct 16 the ALJ to consider the persuasiveness of the medical opinions based on the supportability and 17 consistency of the opinions. 20 C.F.R. § 404.1545c(b-c). The ALJ does not need to “accept the 18 opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and 19 inadequately supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 20 2002). As explained below, the Court finds no error in the ALJ’s RFC determination. 21 a. Dr. Amarjit Singh 22 The ALJ summarized the findings of Dr. Singh and concluded that Dr. Singh’s opinion 23 was not persuasive. A.R. 50. Specifically, the ALJ found that Dr. Singh’s opinion limiting 24 Plaintiff to a reduced range of sedentary work was not supported by the results of his own 25 examination. A.R. 50. For example, Dr. Singh’s examination showed that Plaintiff displayed “5/5 26 strength in the bilateral upper and lower extremities, normal grip strength, intact sensation, normal 27 reflexes, an ability to get up and down from the examination table without difficulty, an ability to 28 tandem walk and walk on his toes without difficulty, an ability to squat and rise with ease, a normal 1 gait without the use of an assistive device, and a normal range of motion other than a slightly 2 decreased range of motion regarding bilateral shoulder abduction.” A.R. 50.; see also A.R. 749- 3 754. 4 Second, the ALJ found that Dr. Singh’s findings were internally inconsistent. A.R. 50. For 5 example, Dr. Singh noted that, while Plaintiff can frequently lift and carry 10 pounds, he can 6 occasionally carry less than 10 pounds. A.R. 50; see also A.R. 751. This opinion was also 7 inconsistent with other examinations that show no reduction in Plaintiff’s extremity strength. A.R. 8 50; see also A.R. 962-963, 1056-1059. The ALJ also noted that Dr. Singh’s examination occurred 9 prior to Plaintiff’s surgery on his left upper extremity that was largely successful. A.R. 50; see 10 also A.R. 1051-1054. Further, the ALJ noted that, in 2021, Plaintiff reported that after his left 11 shoulder surgery, he was able to reduce his pain medication due to decreased pain and was looking 12 for work. A.R. 50; see also A.R. 811. The ALJ further noted that even the last record in the file 13 indicated Plaintiff was awaiting physical therapy for his neck and back complaints rather than 14 shoulder/hand complaints, which were the focus of Plaintiff’s symptoms at Dr. Singh’s 15 consultative examination. A.R. 50; see also A.R. 1056. The Court finds that the ALJ’s discounting 16 of Dr. Singh’s opinion is supported by substantial evidence. 17 b. Kelly Hawkins Physical Therapy 18 The ALJ summarized the findings of the treatment providers at Kelly Hawkins Physical 19 Therapy and concluded that their opinion was not persuasive. A.R. 50. Specifically, the ALJ 20 found that the evaluation from Kelly Hawkins Physical Therapy that Plaintiff can perform work at 21 a medium exertional level is inconsistent with their finding of a significant decrease in Plaintiff’s 22 safe lifting capabilities when lifting above the waist level, which indicates that Plaintiff has 23 stability issues when lifting objects that are consistent with medium exertional demands. A.R. 50; 24 see A.R. 671-674. 25 Additionally, the ALJ found that the treatment providers’ opinion was inconsistent with 26 later records, which showed Plaintiff developed additional musculoskeletal symptoms and 27 impairments that could not have been noted or addressed in the treatment providers’ opinion. A.R. 28 50. For example, the opinion only focuses on Plaintiff’s decreased mobility of his shoulders, but 1 later medical records show impairments involving Plaintiff’s left knee and spine. A.R. 673; see 2 also A.R. 950-951, 962. The Court finds that the ALJ’s discounting of the opinion from treatment 3 providers at Kelly Hawkins Physical Therapy is supported by substantial evidence. 4 c. Dr. Samuel Pak and Dr. Gurpreet Chahal 5 The ALJ summarized the findings of state agency medical consultants Dr. Pak and Dr. 6 Chahal and concluded that their opinions were not persuasive. A.R. 50. Specifically, the ALJ 7 found that the opinion that Plaintiff can lift and/or carry up to 50 pounds occasionally is 8 inconsistent with a previous finding of a significant decrease in Plaintiff’s safe lifting capabilities 9 when lifting objects that makes this finding inconsistent with medium exertional demands. A.R. 10 50. For example, Dr. Pak and Dr. Chahal both concluded that Plaintiff can occasionally lift and 11 carry 50 pounds occasionally and 25 pounds frequently. A.R. 181, 192. However, that is 12 inconsistent with the report from Kelly Hawkins Physical Therapy, which Dr. Chahal took into 13 account for his evaluation, A.R. 189, that found Plaintiff had a significant decrease in safe lifting 14 capabilities when performed above the waist level (i.e. lifting safely only up to 35 pounds to 15 shoulder level and only 25 pounds overhead). A.R. 673. 16 Additionally, the ALJ found that Dr. Pak’s and Dr. Chahal’s opinions were inconsistent 17 with later medical records, which show that Plaintiff developed additional symptoms and 18 impairments that could not have been noted or addressed in their opinions. A.R. 50. The Court 19 finds that the ALJ’s discounting of opinions from Dr. Pal and Dr. Chahal is supported by 20 substantial evidence. 21 B. Radiological Imagining 22 Plaintiff submits that “the ALJ’s lay opinion fails to explain how radiological imaging and 23 examinations support [Plaintiff’s] allegations of knee pain, back pain and bicep/arm pain.” Docket 24 No. 11 at 12. Plaintiff submits that the ALJ is “not qualified to interpret the raw medical data.” 25 Id. at 13. Plaintiff argues that “the ALJ could have ordered a consultative examination…could 26 have adduced testimony from a medical expert at the hearing.” Id. Plaintiff submits that “Plaintiff 27 identified that he cannot lift greater than 10 pounds…Plaintiff explained to Dr. Wu that 28 he…continued to have pain…Plaintiff complained that he cannot lift left arm where has had 1} surgery.” /d. at 13. Plaintiff then submits that this alleged “inconsistency identified along with 2|| the fact that no medical doctor reviewed the raw medical data established the ALJ’s failure to not have ordered clarification from [Plaintiffs] medical doctors...ALJ’s decision to simply assess a 4] limitation to light work without the support of any substantial evidence was error.” Id. 5 The Court finds that the ALJ did not substitute her lay opinion in place of medical evidence 6] in the record. Instead, the ALJ considered the evidence provided by Plaintiff’s medical providers 7| in determining Plaintiff's RFC. This was not “raw data,” but instead information that Plaintiff's 8] medical providers interpreted and recorded in Plaintiff's medical records and the ALJ considered. For example, Plaintiff asserts that “no medical doctor actually reviewed the MRI of the left knee 10} on January 5, 2022,” Docket No. 11 at 12, yet the January 20, 2022 report from Nevada Orthopedic 11} & Spine Center analyzes the MRI. A.R. 962. ALJs do not need to seek the opinion of a medical 12] expert every time they review new medical evidence and make an RFC determination. Bufkin v. Saul, 836 F. App'x 578, 579 (9th Cir. 2021) (citing Vertigan v. Halter, 260 F.3d 1044, 1049 (9th 14} Cir. 2001) (determining RFC “is the responsibility of the ALJ, not the claimant's physician”) 15} (citing 20 C.F.R. § 404.1545). There is a presumption that ALJs are capable of independently 16] reviewing and forming conclusions about medical evidence to discharge their statutory duty to 17} determine whether a claimant is disabled. Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022). 18] Here, the ALJ acknowledged what the MRI showed, and then interpreted the data to determine the 19} Plaintiff's RFC. Docket No. 48. The Court therefore finds that the ALJ’s RFC determination is supported by substantial evidence. CONCLUSION 22 For the reasons discussed above, the Court DENIES Plaintiff’s motion to reverse and 23] remand. Docket No. 11. The decision below is AFFIRMED. The Clerk’s Office is INSTRUCTED to ENTER FINAL JUDGMENT accordingly and to CLOSE this case. 25 Pom 26 Dated: September 27, 2024 A QR 27 ~ \ Nancy J. Koppe 28 United States Magistrate Judge 1]