Claudia Shillingford v. Michael J Astrue, No. 2:2011cv07191 - Document 18 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED forfurther proceedings consistent with this Memorandum Opinion and Order. (mz)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CLAUDIA SHILLINGFORD, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 11-07191-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on September 6, 2011, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for a period of disability, disability insurance 21 benefits ( DIB ) and supplemental security income ( SSI ). 22 4, 2011, the parties consented, pursuant to 28 U.S.C. § 636(c), to 23 proceed before the undersigned United States Magistrate Judge. 24 parties filed a Joint Stipulation on July 6, 2012, in which: 25 seeks an order reversing the Commissioner s decision and awarding 26 benefits 27 proceedings; and the Commissioner requests that his decision be affirmed 28 or, alternatively, remanded for further administrative proceedings. or, alternatively, remanding for further On October The plaintiff administrative 1 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 2 3 On April 15, 2003 and August 11, 2004, it appears plaintiff filed 4 an application for a period of disability, DIB, and SSI, alleging an 5 inability to work since October 17, 2001 (Administrate Record ( A.R. ) 6 100-07, 640), due to [d]isorders of [m]uscle, [l]igament and [f]ascia 7 (A.R. 69). 8 assistant, caregiver, and nurse s assistant. Plaintiff has past relevant work experience as a activity (A.R. 847.) 9 10 The Commissioner denied plaintiff s application initially and upon reconsideration. 12 plaintiff, who was represented by counsel, appeared and testified at a 13 hearing before Administrative Law Judge Patti Hunter ( ALJ Hunter ). 14 (A.R. 973-1005.) 15 testified. 16 favorable decision, finding plaintiff disabled from February 22, 2002, 17 through December 8, 2004. 18 requested that the Appeals Council review ALJ Hunter s decision. 19 688-92.) 20 vacate[d] the hearing decision, including the part that is favorable to 21 [plaintiff], and remand[ed] this case for further proceedings. 22 686-87.) (Id.) (See A.R. 69-71, 72-75.)1 11 On April 19, 2005, Edward Bennett, a vocational expert ( VE ), also On June 29, 2005, ALJ Hunter issued a partially (A.R. 670-78.) Plaintiff appealed and (A.R. Pursuant to a November 9, 2006 Order, the Appeals Council (A.R. 23 24 On December 5, 2007, plaintiff, who was again represented by an 25 attorney, appeared and testified at a second administrative hearing 26 before ALJ Hunter. (A.R. 1006-38.) Medical expert Michael Gurvey and 27 1 28 These documents were not provided as part of the record. (See A.R. 5.) 2 1 VE Sharon Spaventa also testified. (Id.) On February 22, 2008, ALJ 2 Hunter again issued a partially favorable decision, finding plaintiff 3 disabled from February 22, 2004, through December 8, 2004. 4 21.) 5 22, 2008 decision. 6 the Appeals Council vacated the hearing decision, including the part 7 that [wa]s favorable to [plaintiff], and remand[]ed] the case to a new 8 ALJ.2 (A.R. 811- Plaintiff appealed and requested review of ALJ Hunter s February (A.R. 34-36.) Pursuant to a June 25, 2009 Order, (A.R. 823-25.) 9 10 On October 6, 2010, plaintiff, who was again represented by an 11 attorney, appeared and testified at a third administrative before ALJ 12 John Geb (the ALJ ). 13 Harvey L. Alpern, as well as VE Sharon Spaventa, also testified at the 14 hearing. 15 plaintiff s claim (A.R. 22-30), and the Appeals Council subsequently 16 denied plaintiff s request for review of the ALJ s decision (A.R. 13-15, 17 17). (Id.) (A.R. 1039-90.) Medical experts Diana Sharpe and On November 19, 2010, the ALJ issued a decision denying That decision is now at issue in this action. 18 19 SUMMARY OF ADMINISTRATIVE DECISION 20 21 In his November 19, 2010 decision, the ALJ incorporated by 22 reference the evaluation of evidence contained in ALJ Hunter s February 23 22, 2008 decision. 24 engaged in substantial gainful activity since October 17, 2001, her 25 alleged onset date. (A.R. 22.) (A.R. 24.) The ALJ found that plaintiff has not The ALJ determined that plaintiff has 26 27 28 2 As this case was previously remanded to the same [ALJ -- to wit, ALJ Hunter], the Appeals Council direct[ed] that, upon remand, this case be assigned to another [ALJ]. (A.R. 825.) 3 1 the severe impairments of: depressive disorder, NOS, rule out past 2 history of anxiety in 2004 [and] 1998; [and] right shoulder pain, and 3 left shoulder and knee pain, with no physical or x-ray findings. 4 25.) 5 medically equal the criteria of an impairment listed in 20 C.F.R. Part 6 404, Subpart P, Appendix 1, the Listing of Impairments. (A.R. He concluded that such impairments, however, did not meet or (A.R. 26.) 7 8 After reviewing the record, the ALJ determined that plaintiff has 9 the residual functional capacity ( RFC ) to perform light work as 10 defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). (A.R. 11 27.) Specifically, the ALJ found that plaintiff has the ability to: 12 13 lift and carry occasionally 20 pounds, and frequently 10 14 pounds, stand, walk and sit fo[]r at least 6 hours total in an 15 8-hour workday, moderate limitations in use of the right upper 16 extremity, moderate postural limitations, no overhead use of 17 the right upper extremity, no overhead lifting with both upper 18 extremities; 19 interacting with supervisors and coworkers, understanding, 20 remembering and carrying out an extensive variety of technical 21 and/or complex job instructions, dealing with the public, 22 maintaining concentration and attention for at least 2 hour 23 increments, and in withstanding the stress and pressures 24 associated with an 8-hour work day and day-to-day activity. and moderate limitation in relating and 25 26 (A.R. 27.) 27 28 The ALJ found that plaintiff s past relevant work ( PRW ) as a 4 1 recreation aide, as she actually performed it, does not require the 2 performance of work-related activities precluded by plaintiff s RFC. 3 (A.R. 29.) 4 under a disability, as defined in the Social Security Act, since October 5 17, 2001, her alleged onset date, through November 19, 2010, the date of 6 his decision. Accordingly, the ALJ concluded that plaintiff has not been (A.R. 30.) 7 8 STANDARD OF REVIEW 9 10 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 11 decision to determine whether it is free from legal error and supported 12 by substantial evidence. 13 2007). Substantial evidence is such relevant evidence as a reasonable 14 mind might accept as adequate to support a conclusion. 15 omitted). 16 necessarily a preponderance. 17 (9th Cir. 2003). 18 substantial evidence, only those reasonably drawn from the record will 19 suffice. 20 2006)(citation omitted). Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. Id. (citation The evidence must be more than a mere scintilla but not Connett v. Barnhart, 340 F.3d 871, 873 While inferences from the record can constitute Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 21 22 Although this Court cannot substitute its discretion for that of 23 the Commissioner, the Court nonetheless must review the record as a 24 whole, weighing both the evidence that supports and the evidence that 25 detracts from the [Commissioner s] conclusion. 26 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 27 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 28 responsible for determining credibility, resolving conflicts in medical 5 Desrosiers v. Sec y of The ALJ is 1 testimony, and for resolving ambiguities. 2 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 3 4 The Court will uphold the Commissioner s decision when the evidence 5 is susceptible to more than one rational interpretation. Burch v. 6 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 7 review only the reasons stated by the ALJ in his decision and may not 8 affirm the ALJ on a ground upon which he did not rely. 9 at 630; see also Connett, 340 F.3d at 874. However, the Court may Orn, 495 F.3d The Court will not reverse 10 the Commissioner s decision if it is based on harmless error, which 11 exists only when it is clear from the record that an ALJ s error was 12 inconsequential to the ultimate nondisability determination. Robbins 13 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 14 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 15 at 679. 16 17 DISCUSSION 18 19 Plaintiff claims that the ALJ did not consider properly whether she 20 could perform alternative work activity. 21 Stip. ) at 4.) 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 6 (Joint Stipulation ( Joint 1 I. The ALJ Did Not Sufficiently Ascertain The Demands Of 2 Plaintiff s PRW, And Thus, He Could Not Determine 3 Properly Whether Plaintiff Could Return To Her PRW As 4 Actually Performed. 5 6 At step four, a social security disability claimant bears the 7 burden of proving that she cannot perform either the actual functional 8 demands and job duties of a particular past relevant job or the 9 functional demands and job duties of the occupation as generally 10 required by employers throughout the national economy. 11 Massanari, 249 F.3d 840, 845 (9th Cir. 2001)(quoting Social Security 12 Ruling ( SSR ) 82-61); see also Burch, 400 F.3d at 679. 13 burden of proof lies with the claimant at step four, the ALJ still has 14 a 15 conclusion. 16 [RFC] and the physical and mental demands of the claimant s [PRW]. 17 Id. at 844-45 (quoting 20 C.F.R. §§ 404.1520(e) and 416.920(e)); see 18 also Villa v. Heckler, 797 F.2d 797-98 (9th Cir. 1986)( to determine 19 whether a claimant has the [RFC] to perform h[er PRW], the Secretary 20 must ascertain the demands of the claimant s former work and then 21 compare the demands with h[er] present capacity [RFC] ). duty to make the requisite factual Pinto, 249 F.3d at 844. findings to Pinto v. Although the support his This is done by looking at the 22 23 Plaintiff contends that the ALJ erred in determining that she could 24 perform her PRW 25 Dictionary 26 frequent reaching, which plaintiff contends is inconsistent with the 27 ALJ s RFC limiting her to [no] overhead use of the right upper 28 extremity and no overhead lifting with both upper extremities. of as a recreation Occupational Titles 7 aide, because ( DOT ), the according job would to the require (Joint 1 Stip. at 5-12.) Plaintiff contends the ALJ committed legal error, 2 because he failed to question the VE adequately regarding the apparent 3 deviation from the DOT requirements reflected in the VE s assessment 4 that plaintiff is able to perform her PRW. (Id.) 5 6 Defendant contends that there was no error, because the ALJ 7 determined that plaintiff could perform the recreation aide job, not as 8 it 9 plaintiff.3 is generally performed, but as it was actually (Joint Stip. at 13; see also A.R. 30.) performed by Defendant correctly 10 asserts that [p]laintiff s arguments based on the generalized DOT 11 descriptions [of plaintiff s PRW] are completely inapposite. 12 Stip. at 13; emphasis added.) 13 correct in his assertion that substantial evidence supports the ALJ s 14 finding that [p]laintiff could work as a recreational aide as actually 15 performed. (Joint However, it is not clear defendant is (Id.; emphasis in original.) 16 17 Pursuant to the June 25, 2009 Order from the Appeals Council, the 18 ALJ requested that VE Sharon Spaventa answer a number of interrogatories 19 to obtain supplemental evidence to clarify the effect of plaintiff s RFC 20 on her occupational base. 21 the 22 recreation ALJ s questions, aide the [citing (A.R. 824, 866-67, 870-73.) In response to VE DOT noted that 195367030] plaintiff and a had PRW geriatric as a nurse 23 3 24 25 26 27 28 The ALJ's written opinion states that he found plaintiff capable of returning to her past work as a recreation aide as actually performed. (A.R. 29-30.) This finding is not, in and of itself, insufficient to warrant a finding of non-disability at step four. Pinto, 249 F.3d at 845 ( We have never required explicit findings at step four regarding a claimant s [PRW] both as generally performed and as actually performed )(emphasis in original). To the extent plaintiff argues that the ALJ erred in finding that plaintiff could perform her PRW as a recreation aide as generally performed, that argument is misguided and does not reflect the ALJ s actual finding. 8 1 assistant [citing DOT 355674014]. (A.R. 871.) The VE further noted 2 that plaintiff s PRW as a recreation aide required frequent reach, 3 handle, talk, [and] hear, while a geriatric nurse position required 4 frequent reach, handle, finger, feel, talk, hear [illegible]. 5 872.) 6 same age, education, training, and work experience as plaintiff and with 7 plaintiff s limitations -- as described in the responses to Written 8 Questions to Medical Expert - Mental and Written Questions to Medical 9 Expert - Physical 4 -- could perform any of the [PRW] . . . as it was 10 performed by [plaintiff] or as it is done in the national economy. 11 (Id.) 12 jobs and whether [plaintiff] could perform [that work] as done in the 13 past or as the work is performed in the national economy, the VE wrote 14 recreation aide and the DOT number corresponding to that job. 15 The VE did not specify, however, whether plaintiff could perform her PRW 16 as it generally is performed or as actually performed by plaintiff. 17 (Id.) 18 information in the DOT. (A.R. The VE was also asked whether a hypothetical individual of the The VE responded yes. (Id.) When asked to indicate which (Id.) The VE also noted that her opinion did not conflict with the (A.R. 873.) 19 20 4 21 22 23 24 25 26 27 28 In response to questions regarding plaintiff s mental impairments, medical expert Diana Sharpe, M.D., opined that plaintiff was, inter alia, moderately limited in her ability to: relate to and interact with supervisors and coworkers; understand, remember, and carry out an extensive variety of technical and/or complex job instructions; deal with the public; maintain concentration and attention for at least two hour increments; and withstand the stress and pressures associated with an eight-hour work day and day-to-day activity. (A.R. 952-53.) In response to questions regarding plaintiff s physical impairments, medical expert Harvey L. Alpern, M.D., opined that plaintiff was, inter alia, limited to lifting up to 20 pounds occasionally and 10 pounds frequently, standing/walking for at least six hours out of an eight-hour workday, sitting continuously at least six hours out of an eight-hour workday, and no overhead [right upper extremity]. (A.R. 958-59.) 9 1 At the October 6, 2010 hearing, the ALJ asked the VE Spaventa 2 whether her answer to the above hypothetical would change if the 3 additional limitation of no overhead lifting bilaterally were added. 4 (A.R. 1068.) 5 that plaintiff could perform her PRW as a recreation aide, despite her 6 pain, as she is performing it now on a part-time basis. 5 7 1087.) The VE responded no. (Id.) The VE further testified (A.R. 1085, 8 9 In his decision, the ALJ states: 10 11 The [VE] . . . indicated that a hypothetical individual of 12 [plaintiff] s age, education and vocational background, with 13 the limitations identified . . ., could perform [plaintiff] s 14 [PRW] as a recreation aide as actually performed . . . . 15 16 At the hearing, the [VE] testified that her above-noted 17 response that [plaintiff] could perform her past [PRW] would 18 be the same even with the additional limitation of no overhead 19 lifting with the bilateral upper extremities. 20 21 After comparing the [plaintiff] s [RFC] with the physical and 22 mental 23 interrogatory . . . , the undersigned finds that [plaintiff] 24 is able to perform it as actually performed. demands of this work, consistent with the [VE] 25 26 27 28 5 Plaintiff testified that, at the time of the hearing, she was employed at a nursing facility as a recreation aide working Saturday and Sunday every other weekend for eight hours each day. (A.R. 1069, 1085.) She further testified that she was getting paid between $8.43 and $8.49 per hour. (Id.) 10 1 (A.R. 29-30; emphasis added, citations omitted.) 2 3 The Social Security Rulings identify two sources of information 4 that may be used to define a claimant's PRW as actually performed: 5 properly completed vocational report, SSR 82 61; and the claimant's own 6 testimony, 7 vocational documentation, and statements by the claimant regarding [PRW] 8 are generally sufficient for determining the skill level, exertional 9 demands[,] and nonexertional demands of such work. SSR 82 41. The claimant is the primary source a for SSR 82-62. 10 11 At the hearing, plaintiff testified that she was working as a 12 recreation aide every other weekend for two days straight. (A.R. 1069.) 13 Plaintiff 14 money. 15 performed the amount and extent of work she was able to do with her 16 limited capabilities.6 17 finishes her two days of work, she is in a lot of pain and needs to 18 stay 19 Notwithstanding this testimony by plaintiff, the ALJ failed to make the 20 appropriate findings to insure that the claimant really can perform 21 . . . her [PRW] on a full time basis. 22 the ALJ did not sufficiently delve into the demands of plaintiff s work, 23 either as she was actually performing it at the time of the hearing or 24 previously. testified that (A.R. 1085.) in bed and she had to go back to work for the From the record, it appears that plaintiff Indeed, plaintiff testified that, after she relax [her] shoulder. (A.R. 1070-71.) Pinto, 249 F.3d at 845. Indeed, 25 26 27 28 6 The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 11 1 The VE s relevant testimony is vague. It does not, for example, 2 specify what the VE deemed to be the demands of plaintiff s past work as 3 she actually performed it -- beyond the broad conclusion that plaintiff 4 performed the job as a recreation aide at the light level and she 5 deals with the residen[ts] a lot. 6 solicited from plaintiff or presented to the VE concerning the reaching 7 and/or lifting demands of her work as a recreation aide as plaintiff 8 actually performed that job. (A.R. 1086-87.) No testimony was 9 10 The ALJ also did not rely on a vocational report pursuant to SSR 11 82-61 as an additional source to determine the demands of plaintiff's 12 past work as a recreational aide, as actually performed, because the 13 record did not contain such a report. 14 Disability Report, which only described the demands of plaintiff's 15 past work as a nurse s assistant, not as a recreation aide. 16 847-48.) Instead, the record contained a (See A.R. 17 18 The ALJ thus had insufficient information to compare plaintiff s 19 RFC to the demands of plaintiff s PRW as a recreation aide as she 20 actually performed it.7 21 carefully to assure that the available facts support a conclusion 22 regarding the claimant s ability or inability to perform the functional Past work experience must be considered 23 7 24 25 26 27 28 To the extent the ALJ was of the view that VE Spaventa s interrogatory response and subsequent testimony at the October 6, 2010 hearing was consistent with his determination that plaintiff was capable of performing her PRW as actually performed on a full-time basis, that view was improper. Notably, while the ALJ is correct that VE Spaventa testified that plaintiff could perform her PRW as actually performed with the additional limitation of no overhead lifting with her bilateral upper extremities (A.R. 29-30), VE Spaventa only appeared to indicate, as noted supra, that plaintiff could perform her PRW as she is performing it now -- to wit, on a part-time basis (A.R. 1085-88). 12 1 activities of past work. SSR 82-62. The ALJ's decision must be 2 developed and explained fully in the disability decision. Id. 3 4 As the ALJ did not make the requisite specific findings with 5 respect to the demands of plaintiff's PRW as actually performed, and did 6 not make any findings with respect to the relationship of plaintiff's 7 RFC to that PRW as actually performed by plaintiff, the decision is 8 insufficient in terms of the step four analysis, because it does not 9 permit this Court to adequately determine the basis for the decision and 10 whether substantial evidence supports the Commissioner s decision. See 11 Lewin v. Schweiker, 654 F.2d 631, 634-35 (9th Cir. 1981); see also, 12 Pinto, 249 F.3d at 847 ( Because the ALJ made very few findings and 13 relied largely on the conclusions of the [VE], it is difficult for this 14 Court to review his decision. ). Accordingly, reversal is required. 15 16 II. Remand Is Required. 17 18 The decision whether to remand for further proceedings or order an 19 immediate award of benefits is within the district court s discretion. 20 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 21 useful purpose would be served by further administrative proceedings, or 22 where the record has been fully developed, it is appropriate to exercise 23 this discretion to direct an immediate award of benefits. 24 ( [T]he decision of whether to remand for further proceedings turns upon 25 the likely utility of such proceedings. ). 26 outstanding issues that must be resolved before a determination of 27 disability can be made, and it is not clear from the record that the ALJ 28 would be required to find the claimant disabled if all the evidence were 13 Where no Id. at 1179 However, where there are 1 properly evaluated, remand is appropriate. Id. at 1179-81. 2 3 Remand is the appropriate remedy to allow the ALJ the opportunity 4 to remedy the above-mentioned deficiencies and errors. 5 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.2004)(remand for further 6 proceedings 7 useful); 8 1989)(remand appropriate to remedy defects in the record). is appropriate McAllister v. if enhancement Sullivan, 888 of F.2d See, e.g., the record 599, 603 would be (9th Cir. 9 10 On remand, the ALJ should also carefully reconsider his tacit 11 finding that a period of disability from February 22, 2002, through 12 December 8, 2004, should not be granted. 13 incorporated the medical and non-medical evidence contained in the 14 prior decision issued on February 22, 2008 . . .[,] except to the extent 15 it 16 decision. 17 decision, following a March 2001 subacromial decompression surgery for 18 a torn left rotator cuff, plaintiff underwent right (dominant) shoulder 19 arthroscopic 20 impingement syndrome] on February 22, 2002. 21 unsuccessful in alleviating [plaintiff] s symptoms, and subsequently 22 bursitis 23 assessed. 8 24 recommended, specifically open decompression and repair of the right 25 rotator cuff tendon. [wa]s specifically (A.R. 22.) and modified supplemented by []his As noted in ALJ Hunter s February 22, 2008 subacromial decompression surgery full-thickness (A.R. or In his decision, the ALJ 817.) tear In (Id.) of the addition, [for right shoulder Right shoulder surgery was subacromial [a] second tendon was surgery was Further, the relevant evidence from 26 8 27 28 In his Operative Report for plaintiff s February 22, 2002 surgery, plaintiff s surgeon, William Gallivan, M.D., reported, inter alia, that plaintiff s rotator cuff showed some fraying but no significant tearing. (A.R. 233-34.) 14 1 February 22, 2002, through December 8, 2004 -- evidence which the ALJ 2 purportedly incorporated into his decision -- indicates that plaintiff 3 was assessed with increased limitations and restrictions during this 4 period. 5 that C. Clayton Welborn, M.D., who treated plaintiff from October 2002, 6 through March 2003, reported that [plaintiff] was unable to lift/carry 7 any 8 manipulation with the right upper extremity. 9 citation omitted.) For example, in her February 2008 decision, ALJ Hunter noted weight and was unable to repetitively reach or perform fine (A.R. 817; internal Notwithstanding these increased limitations and 10 restrictions, the ALJ does not offer any explanation as to why he, 11 unlike ALJ Hunter,9 did not find plaintiff to be disabled during the 12 period from February 22, 2002, through December 8, 2004. 13 on remand, the ALJ should revisit whether a period of disability should 14 be granted. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// Accordingly, 26 27 28 9 ALJ Hunter twice found plaintiff to be disabled during the period from February 22, 2002, through December 8, 2004. (A.R. 677, 817.) 15 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: August 30, 2012 14 15 16 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 16
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