Case 3:09-cv-02110-MMA-WMC Document 27 Filed 02/25/11 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`EDNA F. LEWIS on behalf of RANDEL S.
`DAVIS (Deceased),
`
`vs.
`
`Plaintiff,
`
`MICHAEL ASTRUE, Commissioner of
`Social Security Administration
`
`Defendant.
`
`CASE NO. 09-CV-2110-MMA-WMC
`REPORT AND
`RECOMMENDATION: (1) TO
`GRANT IN PART PLAINTIFF’S
`MOTION FOR SUMMARY
`JUDGMENT; (2) TO DENY
`DEFENDANT’S CROSS-MOTION
`FOR SUMMARY JUDGMENT;
`AND (3) REMAND FOR FURTHER
`PROCEEDINGS
`
`I. INTRODUCTION
`Edna F. Lewis (“Plaintiff”)1 brings this action on behalf of Randel S. Davis, deceased,
`pursuant to section 405(g) of the Social Security Act, 42 U.S.C. § 1383(c)(3), to obtain judicial
`review of a final decision of the Commissioner of Social Security (“Commissioner”) denying
`Plaintiff’s claim for Supplemental Security Income (“SSI”) under Title XVI of the Social Security
`Act (“Act”), 42 U.S.C §§ 1381, et seq. This matter was referred by Judge Michael M. Anello to
`Magistrate Judge William McCurine, Jr. for a Report and Recommendation pursuant to 28 U.S.C.
`§ 636(b)(2) of Title 28 of the United States Code and Federal Rule of Civil Procedure 72(b).
`
`1 All subsequent references to “Plaintiff” in this Order will refer to Randel S. Davis, the claimant. As
`such, even though Edna F. Lewis is the formal Plaintiff in this matter, “Plaintiff” will be referred to in the male
`gender. Further, “Ms. Lewis” will be used for all subsequent references to Edna F. Lewis not in her capacity
`on behalf of Randel S. Davis, e.g., as the author of non-medical witness statements.
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`Plaintiff has filed a motion for summary judgment. In the motion, Plaintiff argues he
`should have been found “disabled” under the Act beginning February 1, 2003. In addition,
`Plaintiff argues the Appeals Council’s decision adopting the January 25, 2007 decision of the
`Administrative Law Judge (“ALJ”), which determined Plaintiff was disabled beginning November
`22, 2006, should be reversed because the ALJ’s decision is not supported by substantial evidence
`and is based on legal error. The Commissioner has filed a cross-motion for summary judgment.
`In the motion, Commissioner argues the contrary, namely the ALJ’s decision is supported by
`substantial evidence and is not based on legal error.
`Pursuant to the Southern District of California Local Civil Rule 7.1(d)(1), the Court finds
`these motions may be decided on the papers precluding need for oral argument. After careful
`consideration of the papers, the administrative record and the applicable law, the Court
`recommends the Commissioner’s decision denying disability benefits be VACATED, Plaintiff’s
`motion for summary judgment on behalf of Plaintiff be GRANTED IN PART; Defendant’s cross
`motion to affirm the ALJ’s decision be DENIED and this action be REMANDED for further
`proceedings.
`II. FACTUAL BACKGROUND
`Plaintiff was 45-years-old on the alleged onset date of his disability of February 1, 2003.
`Plaintiff’s medical reports span the period of 2003 to 2006 and document Plaintiff’s conditions of,
`inter alia, post traumatic stress disorder (“PTSD”), depression, panic disorder,2 hepatitis C,
`cirrhosis, psoriasis, recalcitrant thrombocytopenia, hepatosplenomegaly, gingival bleeding,
`gastrointestinal bleeding, hypertension, and diabetic hyperglycemia.
`III. PROCEDURAL HISTORY
`On October 20, 2003, Plaintiff protectively filed an application for SSI under Title XVI of
`the Act, alleging disability beginning February 1, 2003. (Administrative Record (“A.R.”) at 22).
`On April 30, 2004, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”),
`which took place on January 18, 2005. (A.R. at 53).
`
`2 Plaintiff alleges his mental health issues arise from an assault in 2002. He was the victim of an alleged
`hate-crime related to his homosexual status.
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`At the January 18, 2005 hearing, Plaintiff testified he had not worked since February 2003
`and was unable to work due to PTSD, depression and other anxiety-related mental illnesses. (A.R.
`at 562-63). On March 8, 2005, the ALJ issued a decision denying the application. (A.R. at 32).
`Plaintiff appealed the denial to the Appeals Council. (A.R. at 70).
`On October 25, 2005, the Appeals Council vacated the ALJ’s decision and issued an Order
`of Remand stating the prior decision by the ALJ did not explain the weight given to the reports of
`Dr. Sean Ryan and Dr. Brian Miller, or provide the explanation for their rejection. (A.R. at 75-78).
`Accordingly, the Appeals Council directed the ALJ to: (1) offer an opportunity for a new hearing;
`(2) give consideration to Plaintiff’s treating and examining source opinions, and (3) explain the
`weight given to this evidence. (A.R. at 22).
`On January 9, 2007, Plaintiff appeared with counsel at a second administrative hearing and
`testified that he was unable to work due to PTSD, depression and other anxiety-related mental
`illnesses. Plaintiff also testified to physical symptoms resulting from several serious physical
`conditions, particularly hepatitis C. (A.R. at 588-90).
`On January 25, 2007, the ALJ issued a decision establishing Plaintiff has been disabled
`under section 1614(a)(3)(A) of the Act beginning on November 22, 2006. (A.R. at 18-29).
`On March 30, 2007, Plaintiff requested a review of the ALJ’s decision before the Appeals
`Council. (A.R. at 15-17). On April 28, 2009, the Appeals Council denied Plaintiff’s request for
`review. (A.R. at 7-10). Hence, the ALJ’s decision became the final decision of the Commissioner.
`On September 25, 2009, Plaintiff filed a Complaint initiating this action for judicial review.
`On February 22, 2010, Defendant filed an Answer.
`As previously mentioned in the Introduction, on June 7, 2010, Plaintiff filed a motion for
`summary judgment (“MSJ”) on several grounds requesting the case be remanded for further
`administrative proceedings.
`On July 7, 2010, Defendant filed a cross-motion for summary judgment (“Cross-Motion”)
`and opposition to Plaintiff’s MSJ requesting the Court grant Defendant’s cross-motion and deny
`Plaintiff’s MSJ.
`On July 9, 2010, Plaintiff filed a Reply to Defendant’s cross-motion.
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`Case 3:09-cv-02110-MMA-WMC Document 27 Filed 02/25/11 Page 4 of 11
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`IV. LEGAL STANDARD
`The supplemental security income program established by Title XVI of the Act provides
`benefits to disabled persons without substantial resources and little income. 42 U.S.C. § 1383. To
`qualify, a claimant must establish an inability to engage in “substantial gainful activity” because of
`a “medically determinable physical or mental impairment” that “has lasted or can be expected to
`last for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). The
`disabling impairment must be so severe that, considering age, education, and work experience, the
`claimant cannot engage in any kind of substantial gainful work that exists in the national economy.
`42 U.S.C. § 1382(a)(3)(B).
`V. DISCUSSION
`A. Evidence
`As previously noted herein, two administrative hearings were held in this case: one on
`January 18, 2005 (“2005 Hearing”), and another on January 9, 2007 (“2007 Hearing”). Medical
`evidence and/or testimony involving Plaintiff’s physical and mental health, particularly related to
`Plaintiff’s ability to engage in substantial gainful activity, was presented at each hearing.
`a. Medical Evidence Presented
`-June 2004: Brian Miller, M.D., completed a mental residual functional capacity (“RFC”)
`examination of Plaintiff and noted moderate and marked limitations in several functional areas
`including difficulties in maintaining social functioning and ability to perform simple, repetitive
`tasks. (A.R. at 291-92). Dr. Miller also noted Plaintiff would be required to be absent from work
`more than ten days per month due to Plaintiff’s psychological symptoms. (A.R. at 292). In a
`related examination, Dr. Miller concluded Plaintiff could not complete a regular workday or
`workweek without interruption from psychiatric symptoms. (A.R. at 292). Lastly, after conducting
`a mental assessment of Plaintiff, Dr. Miller determined Plaintiff suffers from PTSD, depression
`and anxiety. (A.R. at 295).
`-June 2004: Sean Ryan, M.D., completed a RFC examination of Plaintiff and noted
`moderate and marked limitations in several functional areas including difficulties in maintaining
`social functioning and ability to perform simple, repetitive tasks. (A.R. at 284-85). Dr. Ryan also
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`noted Plaintiff would be required to be absent from work more than ten days per month due to
`Plaintiff’s psychological symptoms. (A.R. at 285). In a related examination, Dr. Ryan concluded
`Plaintiff could not complete a regular workday or workweek without interruption from psychiatric
`symptoms. (A.R. at 285). Lastly, after conducting a mental assessment of Plaintiff, Dr. Ryan
`determined Plaintiff exhibited symptoms of PTSD, which “significantly impair Plaintiff’s ability
`to sustain meaningful work”. (A.R. at 288).
`-January 2007: Sidney Bolter, M.D., a board certified psychiatrist, testified as a medical
`expert at the 2007 Hearing after reviewing Plaintiff’s medical records. With respect to Plaintiff’s
`mental health, Dr. Bolter testified the medical records in section 3F of the Administrative Record,
`which contain, inter alia, the records of Plaintiff’s visits to Dr. Miller and Dr. Ryan, are
`“conclusory” statements unsupported by adequate “back-up notes” or “mental status
`examinations”. (A.R. at 601-02). In particular, Dr. Bolter testified there is nothing in Plaintiff’s
`medical records supporting a finding of depression or PTSD despite notations to the contrary in
`the reports of Dr. Miller and Dr. Ryan.3 (A.R. at 601-03). Dr. Bolter acknowledged, however,
`Plaintiff may have “some depression in reaction to...[the] Hepatitis C [diagnosis]” and such
`depression may be “hard to treat” because of the “real problems” associated with the “chemical
`interaction between interferon and anti-depressant[s]”. (A.R. at 602). As a result of the lack of
`supporting evidence in the reports, Dr. Bolter testified Petitioner did not have severe enough
`mental impairment to prevent him from performing “unskilled, low stress, no public, simple,
`repetitive task-type work” prior to November 2006. (A.R. at 603).
`With respect to Plaintiff’s physical health, Dr. Bolter acknowledged, as previously
`mentioned, Plaintiff’s hepatitis C diagnosis. (A.R. at 602). In addition, Dr. Bolter testified
`
`3 In his testimony, Dr. Bolter indicated the methods used by Dr. Miller and Dr. Ryan to determine
`Plaintiff’s mental health condition were inadequate and led to inaccurate results. In particular, with respect to
`diagnosing PTSD, Dr. Bolter contrasted the method of direct questioning with voluntary divulgence; the former
`being inadequate, the latter being more reliable. Dr. Bolter testified:
`When we make these [PTSD] diagnoses, we can squeeze a diagnosis out of a person. If you
`read, in a mental status, patient endorses these symptoms, it means he’s been asked
`directly. The patient admits to these symptoms when he’s asked directly. A patient
`volunteers these symptoms, that’s something else. We don’t expect the patient to
`understand all the technical aspects of any of these illnesses but there’s [sic] some
`symptoms that are so obvious in post-traumatic stress that anybody who has it is going to
`tell you about it and [Plaintiff] hasn’t said anything. So I can’t use [the reports of Dr. Miller
`or Dr. Ryan]. (A.R. at 603.) (Emphasis added.)
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`Plaintiff’s past and continuing alcohol consumption is not a material factor in Plaintiff’s inability
`to perform the aforementioned tasks. (A.R. at 605).
`b. Vocational Evidence Presented
`1. A vocational expert, Mark Remas (“VE Remas”), testified at the 2005 hearing. VE
`Remas testified to Plaintiff’s past employment record including wood machinist (skilled, medium
`work), student tutor (skilled, light work), and cashier (unskilled, light work). (A.R. at 569). VE
`Remas testified Plaintiff would be able to obtain employment as a laundry folder, machine
`operator,4 or small products assembler, all of which would be “light, unskilled” work. (A.R. at
`569-70).
`2. VE Remas testified to the number of positions available in the local and national
`economy for each type of job. For the laundry folder: “about 400 in San Diego, and 113,000
`nationally”; for the machine operator, “about 550 in San Diego, 151,000 nationally”; for the small
`products assembler, “about 4000 in San Diego, and 680,000 nationally.” (A.R. at 569-70).
`3. VE Remas testified Plaintiff would not be able to sustain employment if he would miss
`ten days per month due to his disability. (A.R. at 570).
`4. Another vocational expert, J. Kilcher (“VE Kilcher”), testified at the 2007 Hearing. VE
`Kilcher testified Plaintiff would not be able to perform his past relevant work as a cashier, tutor, or
`carpenter as a result of Plaintiff’s limited residual functional capacity, which was documented by
`several physicians including Dr. Miller and Dr. Ryan. (A.R. at 605).
`5. VE Kilcher also testified Plaintiff would be able to perform light, unskilled work as a
`small products assembler, for which there would be “approximately 96,000 [jobs] in the U.S. and
`550 in the San Diego region,”or light, unskilled work as a hand packager, e.g., a nut and bolt
`packer, for which there would be “approximately 1,200 in the [San Diego] region and
`approximately 208,000 nationally.” (A.R. at 604-05).
`c. ALJ’s Medical Evidence Evaluation
`The ALJ made the following findings based upon the evidence presented in the record:
`
`4 As to the type of machine operator, VE Remas testified, “He’d be able to work as a machine operator,
`particularly in production [sic] their packaging such as ampoule filler, or tape fastener machine operator, these
`are light, unskilled jobs.” (A.R. at 570).
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`1. The ALJ rejected as conclusory Dr. Miller’s and Dr. Ryan’s findings that Plaintiff
`cannot perform sustained work due to adverse mental conditions. (A.R. at 26). The ALJ rejected
`the doctors’ findings because the findings are unsupported by medical evidence in the record.
`(A.R. at 26). As such, the ALJ gave the “opinions” of Dr. Miller and Dr. Ryan “no weight”. (A.R.
`at 26).
`
`2. Dr. Bolter’s opinion regarding Plaintiff’s mental status during the period before
`November 22, 2006, is given “significant weight” because Dr. Bolter’s opinion is “consistent with
`the medical record as a whole.” (A.R. at 26).
`3. On June 24, 2004, Plaintiff refused therapy for his mental health symptoms even though
`it was recommended by Dr. Ryan. (A.R. at 26).
`4. In June 2005, Plaintiff was diagnosed with Hepatitis C. (A.R. at 25).
`5. Plaintiff could have depression as a result of the hepatitis C diagnosis. (A.R. at 26).
`6. On December 28, 2005, one of Plaintiff’s physicians, Elliot M. Alpert, M.D., stated
`Plaintiff had no symptoms from his hepatitis C. (A.R. at 26).
`7. Plaintiff did not have disabling symptoms from hepatitis C until he was hospitalized on
`November 22, 2006. (A.R. at 26).
`8. Plaintiff’s allegations of disabling limitations are not credible to the extent alleged
`because Plaintiff “is not taking the type of medication associated with severe disabling pain.”
`(A.R. at 26).
`9. Beginning on November 22, 2006, Plaintiff’s impairment was of the severity such that it
`met the criteria in section 7.06 of Appendix 1, and is supported by the objective medical record.
`(A.R. at 28).
`10. Thus, Plaintiff was not disabled prior to November 22, 2006, but Plaintiff became
`disabled on that date. (A.R. at 28).
`11. Plaintiff’s substance abuse disorder is not a contributing factor material to the
`determination of disability. (A.R. at 28).
`12. Plaintiff has no transferable skills. (A.R. at 27).
`13. Prior to November 22, 2006, “[Plaintiff] was capable of making a successful
`adjustment to work that existed in significant numbers in the national economy.” (A.R. at 28).
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`B. Plaintiff’s Claims on Appeal
`a. Plaintiff’s Contentions
`Plaintiff asserts six claims in his motion for summary judgment. First, Plaintiff argues the
`ALJ erred in “failing to consider [probative, non-medical] statements by Plaintiff’s mother”
`regarding the severity of Plaintiff’s mental and physical conditions. (Pl.’s MSJ at 9, 23). Second,
`Plaintiff contends the “ALJ’s determination of Plaintiff’s mental RFC was not supported by
`substantial evidence from the record”. (Pl.’s MSJ at 14). Third, Plaintiff asserts “[t]he ALJ erred in
`failing to evaluate Plaintiff’s severe impairments” including PTSD, anxiety disorder and chronic
`liver disease. (Pl.’s MSJ at 16). Fourth, Plaintiff claims the ALJ erred in rejecting “the opinions
`of treating physicians, Drs. Miller, Ryan, Rao and Kornberg regarding Plaintiff’s mental
`impairments with specific, legitimate reasons that are based on substantial evidence in the record”
`and “without making appropriate findings”5 (Pl.’s MSJ at 20-21, 28). Fifth, Plaintiff contends
`“[t]he ALJ’s reasons for discrediting Plaintiff’s allegations of disabling pain were legally
`insufficient” (Pl.’s MSJ at 23). Sixth, Plaintiff claims “[t]he ALJ’s decision failed to provide a
`valid opinion of Plaintiff’s residual functional capacity” (Pl.’s MSJ at 27). Because the Court is
`recommending the case be remanded based upon Plaintiff’s claim one, the merits of the remaining
`claims are not addressed.
`1. The ALJ Erred In Failing To Consider Lay Witness Testimony
`Plaintiff argues the ALJ erred in granting little to no weight to the statements of Edna
`Lewis (Plaintiff’s mother). Plaintiff states the ALJ may consider evidence from non-medical
`sources, such as relatives, to show the severity of the claimant’s impairment and how it affects his
`ability to work. See 20 C.F.R. § 404.1513(d). In this case, Ms. Lewis prepared and submitted a
`Function Report Adult–Third Party (form SSA-3380-BK). (A.R. at 177 ). This is a form offered
`by the Social Security Administration to allow lay persons to share their perceptions and opinions
`regarding a claimant’s disability.
`
`5 In section VI.D of Plaintiff’s MSJ, Plaintiff states, “The ALJ failed to reject the opinions of treating
`physicians...” (Pl.’s MSJ at 20) (Emphasis added.) The Court will construe this sentence as a typographical
`omission and mistake since the ALJ in his decision did in fact reject the doctors’ opinions, and instead the Court
`will presume Plaintiff intended to argue, as he did in the Conclusion section of his MSJ, (see Pl.’s MSJ at 28),
`the ALJ “failed to adequately reject the opinions of treating physicians”.
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`The Ninth Circuit has held,“[l]ay testimony as to a claimant’s symptoms is competent
`evidence that an ALJ must take into account, unless he or she expressly determines to disregard
`such testimony and gives reasons germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d
`503, 511 (9th Cir. 2001) ( internal citations omitted). More recently, in Stout v. Commissioner, 454
`F.3d 1050, 1053 (9th Cir. 2006), the Ninth Circuit reiterated its position that “‘lay testimony as to a
`claimant’s symptoms or how an impairment affects ability to work is competent evidence ... and
`therefore cannot be disregarded without comment.’” (internal citations omitted); see also, Greger
`v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (“The ALJ’s reasons for doubting [the lay witness’]
`credibility are germane to her; accordingly, it was not error for the ALJ to disregard her
`testimony.”)
`Defendant asserts “[i]t is not reversible error for an ALJ to fail to discuss the testimony of a
`lay witness when the testimony has little probative value or is in conflict with the available
`medical evidence.” (Def.’s Cross MSJ at 5.) (internal citations omitted). Defendant relies on
`Valentine v. Commissioner, Soc. Sec. Admin., 574 F. 3d 685 (9th Cir. 2009) for the proposition that
`“the ALJ was not required to provided (sic) detailed reasons for rejecting Ms. Lewis’ statements
`since her statements provided no additional information apart from the statements and testimony
`provided by Plaintiff. . . .” (Def.’s Cross MSJ at 5). However, Valentine differs from the instant
`case in one important aspect; in Valentine the ALJ addressed the third party testimony.
`Defendant also relies on Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984) arguing “it
`is not reversible error for an ALJ to fail to discuss the testimony of a lay witness when the
`testimony has little probative value or is in conflict with the available medical evidence.” (Def.’s
`Cross MSJ at 5). Here, Defendant’s reliance on Vincent is misplaced. Vincent had lay witnesses
`making medical diagnoses. For example, a lay witness in Vincent stated the plaintiff had a serious
`mental impairment as a result of a stroke. The Court in Vincent held such diagnoses are beyond
`the competence of lay witnesses and are not considered competent evidence. Id. at 139. Therefore,
`the Court found no error in the ALJ’s failure to address the lay witness testimony. Id. However, as
`noted herein, lay witness testimony as to a claimants’s symptoms or how an impairment affects
`ability to work is competent evidence and cannot be disregarded without comment. Stout v.
`Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006).
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`Lastly, Defendant asserts Ms. Lewis’ opinion evidence did not provide “an adequate basis
`from which to credibly report about Plaintiff’s limitations or condition” and “Ms. Lewis’
`statements . . . are not supported by the credited medical evidence.” ( Def.’s Cross MSJ at 5).
`Both these reasons are sufficiently germane for not crediting Ms. Lewis’ opinion evidence.
`However, these reasons are not a part of the ALJ’s decision. Here, the ALJ did not acknowledge
`Ms. Lewis’ third party function report. The ALJ could easily have satisfied his burden by
`providing a germane and concise reason why Ms. Lewis’ lay opinion evidence was not credited.
`Therefore, based on the applicable authority the ALJ’s failure to analyze Edna Lewis’ opinion was
`error.
`
` “Numerous regulations command the ALJ to consider throughout the sequential process,
`lay testimony as to how claimants’ impairments affect their ability to work. See e.g., 20 C.F.R. §§
`404.1513(d)(4) & (e), 404.1529(c), 404.1545, 416.913(d)(4) & (e), 416.929(c), 416.945.” Stout v.
`Commissioner, 454 F.3d 1050, 1056 (9th Cir. 2006). Moreover, “where the ALJ’s error lies in a
`failure to properly discuss competent lay testimony favorable to the claimant a reviewing court
`cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ,
`when fully crediting the testimony, could have reached a different disability determination.” Id.
`Here, the Court is unable to “confidently conclude no reasonable ALJ, when fully crediting
`the testimony, could have reached a different disability determination.” Id. Similar to the holding
`in Stout, this Court finds if the lay evidence were fully credited Plaintiff’s mental impairments
`would necessitate a special working environment “which a reasonable ALJ could find precludes
`[Plaintiff] from returning to gainful employment.” Id. at 1056. Therefore, the Court cannot find
`the ALJ’s error harmless when he failed to address the lay opinion evidence.
`b. Remand is Recommended to Remedy Procedural Error
`It is within the Court’s discretion to decide whether to reverse and remand for further
`administrative proceedings or to reverse and award benefits. McAlister v. Sullivan, 888 F.2d 599,
`603 (9th Cir. 1989). Remand is appropriate where additional proceedings would remedy defects in
`the ALJ’s decision, and where the record should be developed more fully. Marcia v. Sullivan, 900
`F.2d 172, 176 (9th Cir. 1990). Additionally, when “it is not ‘clear from the record that the ALJ
`would be required to find the claimant disabled were such evidence credited’ remanding for
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`immediate benefits is not an appropriate remedy.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.)
`cert denied, 531 U.S. 1038, 121 S.Ct. 628 (2000) (internal citations omitted). In the instant case,
`remand is appropriate. The ALJ erred in failing to comment upon Ms. Lewis’ lay opinion
`evidence. On remand, the ALJ must address Ms. Lewis’s lay opinion evidence and if the ALJ
`rejects her proffered evidence the ALJ must provide germane reasons in the record for doing so.
`See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).
`VI. CONCLUSION AND RECOMMENDATION
`For the reasons explained above, IT IS HEREBY RECOMMENDED the Court GRANT
`IN PART Plaintiff’s motion for summary judgment, DENY the Commissioner’s cross-motion for
`summary judgment and REMAND this action for further administrative proceedings.
`IT IS ORDERED that no later than March 18, 2011, any party to this action may file
`written objections with the Court and serve a copy on all parties. The document should be
`captioned “Objections to Report and Recommendation.”
`IT IS FURTHER ORDERED that any reply to the objections shall be filed with the court
`and served on all parties no later than March 25, 2011. The parties are advised that failure to file
`objections within the specified time may result in waiver of the right to raise those objections on
`appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); see also
`Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).
`IT IS SO ORDERED.
`DATED: February 25, 2011
`
`Hon. William McCurine, Jr.
`U.S. Magistrate Judge
`United States District Court
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`09cv2110-MMA-WMc