Johanna Marie Christensen v. Michael J. Astrue, No. 5:2009cv01257 - Document 19 (C.D. Cal. 2010)
Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is denied;and (2) the Commissioners decision is affirmed, and Judgment shall be entered in favor of defendant. See order for further details. (jy)
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Johanna Marie Christensen v. Michael J. Astrue Doc. 19 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 JOHANNA MARIE CHRISTENSEN, ) ) ) Petitioner, ) ) vs. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) ) ) ) Respondent. ) ___________________________________) No. EDCV 09-1257-RC OPINION AND ORDER 19 20 Plaintiff Johanna Marie Christensen filed a complaint on July 10, 21 2009, seeking review of the Commissioner’s decision denying her 22 application for disability benefits. 23 Commissioner answered the complaint, and the parties filed a joint 24 stipulation on February 10, 2010. On December 2, 2009, the 25 26 27 28 BACKGROUND On March 7, 2007, plaintiff, who was born on September 28, 1963, applied for disability benefits under the Supplemental Security Income Dockets.Justia.com 1 program of Title XVI of the Act, claiming an inability to work since 2 March 7, 2007, due to degenerative disc disease and a herniated disc. 3 A.R. 8, 24, 116. 4 July 5, 2007, and was again denied on October 19, 2007, following 5 reconsideration. 6 administrative hearing, which was held before Administrative Law Judge 7 Lowell Fortune (“the ALJ”) on December 2, 2008. 8 March 6, 2009, the ALJ issued a decision finding plaintiff is not 9 disabled. 10 The plaintiff’s application was initially denied on A.R. 52-62. A.R. 5-16. The plaintiff then requested an A.R. 17-49, 64. On The plaintiff appealed this decision to the Appeals Council, which denied review on May 14, 2009. A.R. 1-4, 107. 11 12 DISCUSSION 13 I The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 14 15 review the Commissioner’s decision denying plaintiff disability 16 benefits to determine whether his findings are supported by 17 substantial evidence and he used the proper legal standards in 18 reaching his decision. 19 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 20 claimant is “disabled” for the purpose of receiving benefits under the 21 Act if she is unable to engage in any substantial gainful activity due 22 to an impairment which has lasted, or is expected to last, for a 23 continuous period of at least twelve months. 24 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). 25 burden of establishing a prima facie case of disability.” 26 Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 27 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 28 // Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2 The 42 U.S.C. § “The claimant bears the Roberts v. 1 The Commissioner has promulgated regulations establishing a five- 2 step sequential evaluation process for the ALJ to follow in a 3 disability case. 4 must determine whether the claimant is currently engaged in 5 substantial gainful activity. 6 Second Step, the ALJ must determine whether the claimant has a severe 7 impairment or combination of impairments significantly limiting her 8 from performing basic work activities. 9 so, in the Third Step, the ALJ must determine whether the claimant has 20 C.F.R. § 416.920. In the First Step, the ALJ 20 C.F.R. § 416.920(b). If not, in the 20 C.F.R. § 416.920(c). If 10 an impairment or combination of impairments that meets or equals the 11 requirements of the Listing of Impairments (“Listing”), 20 C.F.R. 12 § 404, Subpart P, App. 1. 13 Fourth Step, the ALJ must determine whether the claimant has 14 sufficient residual functional capacity despite the impairment or 15 various limitations to perform her past work. 16 If not, in Step Five, the burden shifts to the Commissioner to show 17 the claimant can perform other work that exists in significant numbers 18 in the national economy. 20 C.F.R. § 416.920(d). If not, in the 20 C.F.R. § 416.920(f). 20 C.F.R. § 416.920(g). 19 20 Applying the five-step sequential evaluation process, the ALJ 21 found plaintiff has not engaged in substantial gainful activity since 22 March 7, 2007, her application date. 23 plaintiff has the severe impairment of “low back pain with lumbar 24 degenerative disc disease” (Step Two); however, she does not have an 25 impairment or combination of impairments that meets or equals a listed 26 impairment. 27 unable to perform her past relevant work. 28 ALJ found plaintiff can perform a significant number of jobs in the (Step Three). (Step One). The ALJ then found The ALJ next determined plaintiff is 3 (Step Four). Finally, the 1 national economy; therefore, she is not disabled. (Step Five). 2 II 3 4 A claimant’s residual functional capacity (“RFC”) is what she can 5 still do despite her physical, mental, nonexertional, and other 6 limitations. 7 see also Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th 8 Cir. 2009) (RFC is “a summary of what the claimant is capable of doing 9 (for example, how much weight he can lift).”). 10 Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Here, the ALJ found plaintiff has the following RFC: 11 12 [Plaintiff] is able to lift and/or carry twenty pounds 13 occasionally and ten pounds frequently, stand and/or walk 14 for two hours in an eight-hour day, and sit for six hours in 15 an eight-hour day. 16 ladders. She can occasionally bend and stoop but never 17 balance. She should not work around dangerous machinery or 18 unprotected heights. She can climb stairs but never climb 19 20 A.R. 13. However, plaintiff contends the ALJ’s decision is not 21 supported by substantial evidence because he failed to properly 22 consider the opinions of her treating orthopedist, Rajiv Puri, M.D., 23 and her physical therapy records, and the ALJ erroneously determined 24 she was not a credible witness. 25 26 A. 27 Dr. Puri initially examined plaintiff on November 6, 2006, and 28 Treating Physician’s Opinion: diagnosed her as having multilevel degenerative disc disease at L3-S1 4 1 with radicular pain to her legs. 2 had tenderness over her lumbar spine, limited flexion, and difficulty 3 extending her spine from a flexed position, although extension was 4 relatively pain free. 5 position, plaintiff had a mildly positive root tension sign in the 6 left leg; but neural examination of the left leg was otherwise 7 unremarkable, and plaintiff had normal reflexes, sensation and motor 8 power. 9 spaces at L4-L5 and L5-S1, but no obvious instability. Id. Id. A.R. 217. Dr. Puri found plaintiff Dr. Puri also noted that, in a sitting Lumbar spine x-rays revealed some narrowing of the disc A.R. 218. Dr. 10 Puri also stated that a lumbar spine MRI revealed the presence of 11 degenerative disc disease at L3-L4, L4-L5, and L5-S1, and a bulging 12 disc at L5-S1 causing some foraminal stenosis on the left side and, to 13 some extent, on the right side. 14 plaintiff had a discogram, which revealed severe concordant pain at 15 L3-L4, L4-L5, and L5-S1; however, it was also noted that plaintiff had 16 a low pain tolerance. A.R. 217. On December 28, 2006, A.R. 219. 17 18 Dr. Puri reexamined plaintiff on February 7, 2007, and noted her 19 symptoms had “somewhat settled, though she still has back pain and 20 left leg pain, which gets worse from time to time”; and Dr. Puri 21 advised plaintiff to take her usual pain medications and to avoid any 22 kind of work that would strain her back. 23 examined plaintiff on May 21, 2007, and noted she had no leg pain or 24 numbness; and Dr. Puri recommended plaintiff have home physical 25 therapy. 26 plaintiff’s low back pain and left leg pain were stable, plaintiff had 27 difficulty getting up from a sitting position because her back gets 28 stuck, and at times plaintiff’s left leg gives out, and she has a A.R. 215. A.R. 216. Dr. Puri next On September 17, 2007, Dr. Puri opined 5 1 tendency to drag her left leg; and Dr. Puri again advised plaintiff to 2 perform home physical therapy. 3 Puri opined plaintiff’s lower back pain was worse, with pain radiating 4 down both legs, and she was a surgical candidate. A.R. 214. On December 17, 2007, Dr. A.R. 243. 5 6 On January 16, 2008, Dr. Puri diagnosed plaintiff as having 7 degenerative disc disease at L4-L5 and L5-S1, and he opined plaintiff 8 was a candidate for posterior spinal decompression and fusion of L4-L5 9 and L5-S1. 10 A.R. 244. Dr. Puri’s diagnosis and opinion were based on the following: 11 12 On examination, [plaintiff] is very tender over the lower 13 lumbar area of L4-5 and L5-S1. 14 motion with range of motion being only 15 degrees and if she 15 goes beyond then she gets stuck and has difficulty in 16 straightening up. She also has limited extension and 17 lateral flexion. In a sitting position, she did have a 18 positive root tension sign in both lower extremities, left 19 more than right. 20 lower extremities. 21 significant degeneration of the discs at L4-5 and L5-S1. She has marked limitation of She also has hypoactive reflexes in the MRI of the lumbar spine revealed 22 23 Id. Lumbar spine x-rays revealed some disc space narrowing at L4-L5 24 and L5-S1. 25 plaintiff, performing a spinal decompression and fusion at L4-L5 and 26 L5-S1. 27 still had occasional radicular pain and numbness in the left leg and 28 some problem with her left knee giving way. A.R. 245. A.R. 246-48. On April 3, 2008, Dr. Puri operated on The plaintiff did well postoperatively, but 6 A.R. 250-53, 255. 1 Between June 3 and August 19, 2008, plaintiff had postoperative 2 physical therapy. 3 2008, “revealed excellent fixation with fusion in progress[,]” and 4 lumbar spine x-rays taken on October 6, 2008, showed stable fixation 5 with fusion in progress. A.R. 237-41. Lumbar spine x-rays taken on June 18, A.R. 254, 256. 6 7 The medical opinions of treating physicians are entitled to 8 special weight because the treating physician “is employed to cure and 9 has a greater opportunity to know and observe the patient as an 10 individual.”1 11 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 12 1999). 13 for rejecting the uncontroverted opinion of a treating physician, Ryan 14 v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick 15 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998), and “[e]ven if [a] 16 treating doctor’s opinion is contradicted by another doctor, the ALJ 17 may not reject this opinion without providing ‘specific and legitimate 18 reasons’ supported by substantial evidence in the record.” 19 157 F.3d at 725; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 20 2008). Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Therefore, the ALJ must provide clear and convincing reasons Reddick, 21 22 23 24 25 26 27 28 1 On the other hand, a physical therapist is not an acceptable medical source, 20 C.F.R. § 416.913(a), and the ALJ is permitted to accord the therapist’s opinion “less weight” than the opinions of an acceptable medical source. Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir.), cert. denied, 519 U.S. 881 (1996). Nevertheless, the ALJ should treat such evidence, at a minimum, as lay testimony, 20 C.F.R. § 416.913(d)(1); Bilby v. Schweiker, 762 F.2d 716, 719 n.3 (9th Cir. 1985) (per curiam), and the ALJ cannot discount such testimony without giving “reasons germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 7 In assessing a claimant’s application for disability benefits, 1 2 the ALJ need not set forth verbatim every statement a physician makes; 3 rather, the ALJ need only discuss evidence that is significant and 4 probative of a claimant’s disability claim. 5 F.3d 1006, 1012 (9th Cir. 2003); Best v. Astrue, 580 F. Supp. 2d 975, 6 981 (C.D. Cal. 2008). 7 treatment of plaintiff, A.R. 11, including plaintiff’s participation 8 in postoperative physical therapy, noted there were no medical source 9 statements from a treating physician imposing functional limitations, Howard v. Barnhart, 341 Here, the ALJ discussed in detail Dr. Puri’s 10 and adopted as plaintiff’s RFC assessment the opinions of medical 11 expert Samuel Landau, M.D.,2 who reviewed the medical evidence. 12 10, 14, 19-23. 13 opinion contrary to the ALJ’s RFC assessment, which is also consistent 14 with the opinions of examining physician Jeff Altman, M.D.,3 A.R. 202- 15 05, and nonexamining physicians J. Hartman, M.D., and Keith J. Wahl, 16 // A.R. Neither Dr. Puri nor any other physician offered an 17 18 19 2 The administrative hearing transcript erroneously identifies the medical expert as “Sam Ruletta [phonetic]” instead of Dr. Sam Landau. See A.R. 10, 14, 19, 102. 20 3 21 22 23 24 25 26 27 28 Dr. Altman examined plaintiff on June 9, 2007, before her surgery, and opined that plaintiff had the following RFC: Pushing, pulling, lifting, and carrying will be 50 pounds occasionally and 25 pounds frequently. Walking and standing would be done for six hours in an eighthour workday. Sitting would be done for six hours in an eight-hour workday. Postural activities would be done on a frequent basis. Agility activities would be on a frequent basis. Assistive device is not medically necessary. Gross and fine manipulative [actions] can be done without restrictions. A.R. 205. 8 1 M.D.4 2 claim that the ALJ’s decision is not supported by substantial evidence 3 because he failed to properly consider the opinions of her treating 4 orthopedist, Rajiv Puri, M.D., and her physical therapy records. 5 the contrary, the ALJ’s RFC assessment is supported by substantial 6 evidence in the record. 7 2007); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). A.R. 206-10. Accordingly, there is no merit to plaintiff’s To Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 8 9 10 B. Credibility: Once a claimant has presented objective evidence that she suffers 11 from an impairment that could cause pain or other nonexertional 12 limitations, the ALJ may not discredit the claimant’s testimony 13 “solely because the degree of pain alleged by the claimant is not 14 supported by objective medical evidence.” 15 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 16 882, 885 (9th Cir. 2004). 17 complaints are not credible, he “‘must provide specific, cogent 18 reasons for the disbelief.’” 19 (9th Cir. 2006) (citations omitted); Orn, 495 F.3d at 635. 20 more, if there is medical evidence establishing an objective basis for 21 some degree of pain and related symptoms, and no evidence 22 affirmatively suggesting the claimant is malingering, the ALJ’s 23 reasons for rejecting the claimant's testimony must be “clear and 24 convincing.” Bunnell v. Sullivan, 947 If the ALJ finds the claimant’s subjective Greger v. Barnhart, 464 F.3d 968, 972 Further- Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 25 26 4 27 28 Dr. Hartman reviewed plaintiff’s medical record on June 26, 2007, and essentially adopted the limitations Dr. Altman found. A.R. 206-10. Dr. Wahl reaffirmed Dr. Hartman’s opinion on October 18, 2007. A.R. 221. 9 1 599 (9th Cir. 1999); Vasquez, 572 F.3d at 591. 2 3 The plaintiff testified at the administrative hearing that she 4 cannot work due to back pain radiating down her legs, which requires 5 her to lie down after about an hour and a half. 6 She also stated her legs give out on her and she has almost fallen 7 quite a few times. 8 plaintiff also reported she cannot sit or stand for long, she cannot 9 lift things, and she cannot drive or walk long distances. A.R. 27, 38. A.R. 26-27, 31-34. In addition to her testimony, A.R. 116. 10 11 The ALJ found plaintiff’s testimony was not entirely credible and 12 rejected her testimony to the extent it was inconsistent with the RFC 13 assessment because it did not comport with the medical record and 14 other statements by plaintiff. 15 with the medical record is a sufficient basis for rejecting the 16 claimant’s subjective testimony[,]” Carmickle v. Comm’r, Soc. Sec. 17 Admin., 533 F.3d 1155, 1161 (9th Cir. 2008), and that factor is 18 certainly satisfied here. 19 is unable to work because of her condition, no physician has agreed 20 with plaintiff or found her to be disabled. 21 10 F.3d 678, 680 (9th Cir. 1995); see also Harper v. Sullivan, 887 22 F.2d 92, 96-97 (5th Cir. 1989) (substantial evidence supported ALJ’s 23 conclusion claimant’s complaints were not credible when “[n]o 24 physician stated that [claimant] was physically disabled”). 25 Dr. Altman specifically opined that plaintiff was able to walk 26 normally and an assistive device was not medically necessary, and, as 27 the ALJ noted, despite plaintiff’s complaints of disabling pain, leg 28 numbness and her leg giving way, no physician has prescribed an A.R. 13-14. First, “[c]ontradiction For instance, although plaintiff stated she 10 Matthews v. Shalala, Moreover, 1 assistive device to plaintiff. A.R. 14, 203, 205; Verduzco v. Apfel, 2 188 F.3d 1087, 1090 (9th Cir. 1999). 3 “even though the claimant alleges disabling pain, she does not exhibit 4 any atrophy[,]” which is also a proper factor for rejecting a 5 claimant’s excess pain testimony. 6 1157, 1166 (9th Cir. 2001); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th 7 Cir. 1999). 8 indicate the claimant suffers from debilitating side effects from her 9 medications.” Additionally, the ALJ found that Osenbrock v. Apfel, 240 F.3d Finally, the ALJ found that “the medical records do not A.R. 14; see Osenbrock, 240 F.3d at 1166. This, too, 10 is a factor the ALJ may properly consider in rejecting plaintiff’s 11 excess pain testimony. 12 13 Similarly, the ALJ may also properly rely on inconsistencies in a 14 claimant’s statements to determine she is not a credible witness. 15 Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th 16 Cir. 2004); Connett v. Barnhart, 340 F.3d 871, 873-74 (9th Cir. 2003). 17 Here, the ALJ found plaintiff’s testimony that she is unable to work 18 because of her pain was contradicted by statements she made to Dr. 19 Puri following her back surgery, when she told Dr. Puri she was doing 20 well postoperatively and had no back or leg pain and only occasional 21 numbness. 22 adverse credibility determination. 23 1227 (9th Cir. 2009). 24 and convincing’ reasons for rejecting [plaintiff’s] testimony as not 25 credible.” A.R. 253, 255. This, too, is a proper basis for the ALJ’s Bray v. Astrue, 554 F.3d 1219, For all these reasons, “the ALJ provided ‘clear Tommasetti, 533 F.3d at 1037; Greger, 464 F.3d at 972. 26 27 28 III At Step Five, the burden shifts to the Commissioner to show the 11 1 claimant can perform other jobs that exist in the national economy. 2 Bray, 554 F.3d at 1222; Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th 3 Cir. 2007). 4 specific jobs existing in substantial numbers in the national economy 5 that [the] claimant can perform despite her identified limitations.’” 6 Meanel, 172 F.3d at 1114 (quoting Johnson v. Shalala, 60 F.3d 1428, 7 1432 (9th Cir. 1995)). 8 meet this burden: “(1) by the testimony of a vocational expert, or (2) 9 by reference to the Medical Vocational Guidelines [“Grids”] at 20 To meet this burden, the Commissioner “must ‘identify There are two ways for the Commissioner to 10 C.F.R. pt. 404, subpt. P, app. 2.”5 11 1099 (9th Cir. 1999); Bray, 554 F.3d at 1223 n.4. 12 [the Grids] do not adequately take into account [a] claimant’s 13 abilities and limitations, the Grids are to be used only as a 14 framework, and a vocational expert must be consulted.” 15 F.3d at 960; Bray, 554 F.3d at 1223 n.4. Tackett v. Apfel, 180 F.3d 1094, However, “[w]hen Thomas, 278 16 17 Here, vocational expert Alan E. Cummings testified at the 18 administrative hearing. See A.R. 45-49. Hypothetical questions posed 19 to a vocational expert must consider all of the claimant’s 20 limitations, Valentine, 574 F.3d at 690; Thomas, 278 F.3d at 956, and 21 22 23 24 25 26 27 28 5 The Grids are guidelines setting forth “the types and number of jobs that exist in the national economy for different kinds of claimants. Each rule defines a vocational profile and determines whether sufficient work exists in the national economy. These rules represent the [Commissioner’s] determination, arrived at by taking administrative notice of relevant information, that a given number of unskilled jobs exist in the national economy that can be performed by persons with each level of residual functional capacity.” Chavez v. Dep’t of Health & Human Servs., 103 F.3d 849, 851 (9th Cir. 1996) (citations omitted). 12 1 “[t]he ALJ’s depiction of the claimant’s disability must be accurate, 2 detailed, and supported by the medical record.” 3 1101. 4 reflect all the claimant’s limitations, then the ‘expert’s testimony 5 has no evidentiary value to support a finding that the claimant can 6 perform jobs in the national economy.’” 7 (citation omitted); Lewis, 236 F.3d at 517. Tackett, 180 F.3d at However, “[i]f a vocational expert’s hypothetical does not Matthews, 10 F.3d at 681 8 9 10 The ALJ asked vocational expert Cummings the following hypothetical question: 11 12 [P]lease assume an individual of the same age, education and 13 the work experience of [plaintiff’s prior] jobs. . . . 14 [A]ssume the [RFC] as stated by the medical expert. . . . 15 Based on these circumstances, could this hypothetical person 16 . . . perform any other work in the regional or national 17 economy? 18 19 A.R. 46. In response, the vocational expert opined that the 20 individual could perform sedentary work6 as: 21 // 22 // an assembler, Dictionary 23 24 25 26 27 28 6 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 416.967(a). 13 1 of Occupational Titles (“DOT”)7 no. 739.687-066; an inspector, DOT no. 2 669.687-014; and a sorter, DOT no. 521.687-086. A.R. 46-47. 3 4 The plaintiff contends, however, that the hypothetical question 5 to the vocational expert was incomplete because it did not include 6 those limitations about which she testified. 7 Since the ALJ found plaintiff’s testimony was not credible to the 8 extent it conflicted with the RFC assessment, and that finding is 9 supported by substantial evidence, the hypothetical question to the The Court disagrees. 10 vocational expert did not have to include plaintiff’s subjective 11 limitations. 12 accept or reject restrictions in a hypothetical question that are not 13 supported by substantial evidence.’” (quoting Osenbrock, 240 F.3d at 14 1164-65); Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir. 1988) 15 (“[E]xclusion of some of a claimant’s subjective complaints in 16 questions to a vocational expert is not improper if the [Commissioner] 17 makes specific findings justifying his decision not to believe the 18 claimant’s testimony about claimed impairments such as pain.”). 19 Therefore, the vocational expert’s testimony provides substantial 20 evidence to support the ALJ’s Step Five determination that the 21 plaintiff can perform a significant number of jobs in the national 22 economy. See Greger, 464 F.3d at 973 (“The ALJ . . . ‘is free to Valentine, 574 F.3d at 694; Osenbrock, 240 F.3d at 1163. 23 24 25 ORDER IT IS ORDERED that: (1) plaintiff’s request for relief is denied; 26 27 28 7 The DOT is the Commissioner’s primary source of reliable vocational information. Johnson, 60 F.3d at 1434 n.6; Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). 14 1 and (2) the Commissioner’s decision is affirmed, and Judgment shall be 2 entered in favor of defendant. 3 4 DATE: October 29, 2010 5 6 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\09-1257.mdo 10/29/10 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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