Opinion
Case No. 3:00CV7020.
September 6, 2001
William E Higley, II, Higley Law Firm, Toledo, OH., for Plaintiff, Charles Ross.
Lawrence J. Kiroff, Office of the United States Attorney Toledo, OH., for Defendant, Kenneth Apfel, Commissioner of Social Security.
ORDER
This is a social security case in which plaintiff Charles Ross objects to the Magistrate Judge's Report and Recommendation affirming the decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1381 (1988). For the following reasons, plaintiff's motion to remand the case is denied and the Magistrate Judge's order is affirmed.
PROCEDURAL BACKGROUND
On June 18, 1992, plaintiff filed an application for SSI alleging that he was disabled due to chronic ischemic heart with/without angina, chronic liver disease, cirrhosis and a substance addition disorder. (Tr. 67-72). Plaintiff's application was denied initially and he requested reconsideration. (Tr. 73-76). On July 18, 1994, plaintiff was awarded SSI, effective June 18, 1992, based on alcohol dependence. (Tr. 227-228). In the interim, PUB.LAW 104-121 was enacted disallowing benefits to drug addicts and alcoholics. 42 U.S.C. § 423(d)(2) (1996). A disability hearing officer reviewed plaintiff's award of benefits, advising him that his benefits would cease as of January 1, 1997, because drug addiction and alcoholism were contributing factors material to the determination of disability. (Tr. 236). Such decision was affirmed on reconsideration. (Tr. 261). Plaintiff requested a hearing. (Tr. 263).
On July 17, 1997, Administrative Law Judge ("ALJ") Wiebe conducted a hearing at which, plaintiff, represented by counsel, appeared and testified. (Tr. 45). In October 1997, the ALJ issued an unfavorable decision which the Appeals Council initially affirmed. (Tr. 21-27, 12-13). While the appeal was pending, the Appeals Council received a request from plaintiff's counsel for a transcript. (Tr. 10). The Appeals Council vacated its prior denial in light of the request for transcript and granted plaintiff leave to submit additional arguments. (Tr. 6,9). The Appeals Council ultimately denied the request for review, thereby rendering the ALJ's decision the final decision of the Commissioner. Plaintiff filed a timely request for judicial review.
Magistrate Judge Vernelis K. Armstrong issued a Report and Recommendation affirming the decision of the Commissioner. Plaintiff filed objections to the Report and Recommendation, arguing that the Magistrate Judge erred by: (1) finding the new evidence insufficient to warrant remand; (2) improperly analyzing plaintiff's alcohol use; and (3) finding that plaintiff did not have a severe mental impairment.
FACTUAL BACKGROUND
At the July 17, 1997, hearing, plaintiff was forty-nine years old. (Tr. 48). Plaintiff testified that he was 5'10 ½" tall and weighed 289 pounds. (Tr. 62). Plaintiff claimed that he had been diagnosed with cardiomyopathy which was characterized by chest pains and shortness of breath. (Tr. 50, 62). The chest pains were treated with Nitrostat which gave him a headache. (Tr. 50, 51). Three to four times a month, plaintiff claimed he experienced an episode described as "whooping and hollering." Sometimes he even experienced dizziness. (Tr. 51).
At the hearing, plaintiff's attorney noted that plaintiff's ankles were swollen. (Tr. 52). Plaintiff admitted that he had gout in one leg and a bruise and ruptured muscle in the heel of his left foot. (Tr. 52). Plaintiff further claimed that he suffered from arthritis in his shoulder joints. (Tr. 53). Cramps in his right hand made it difficult to use. (Tr. 54). Plaintiff testified that he suffered from arrhythmia accompanied by shortness of breath. (Tr. 59). Such conditions impaired his ability to stand more than twenty minutes. (Tr. 54-55).
Plaintiff testified that he had been sober for three years. (Tr. 55, 56). He attended a support group every Sunday and AA meetings on Monday, Wednesday, Friday and Saturday mornings. (Tr. 58). Plaintiff planned to attend school during the upcoming fall to train for a position as an alcohol and drug counselor. While attending school, he testified that he planned to work as a counseling monitor. (Tr. 59).
Plaintiff worked at various jobs including as a laborer and custodian. (Tr. 80-5). From August 1987 to September 1990, plaintiff was a custodian at O'Hare airport. (Tr. 80). At this job, plaintiff would stand and walk for a total of about seven or eight hours per workday and sit one hour. (Tr. 84). Plaintiff lifted as much as fifty pounds and frequently lifted as much as twenty-five pounds. (Tr. 84). Plaintiff mopped floors, swept floors, and dumped garbage. (Tr. 84). As a custodian, he had to write reports or perform similar duties; he also had to bend constantly. (Tr. 84).
There was no testimony as to plaintiff's daily activities; however, in the disability questionnaire, plaintiff claimed that he listened to the radio for two hours at a time, watched television 36 hours per week, fished for four hours weekly in the summer, visited family four to six hours twice per month, listened to music and played cards. (Tr. 104). He attributed his significant weight gain to stress-related eating, increased consumption of fried foods due to his inoperative oven and the inability to sleep due to hypertension. (Tr. 105).
MEDICAL EVIDENCE
In April 1992, plaintiff underwent chest and right and left hand X-rays which were unremarkable. (Tr. 108). At that time, he was drinking two six-packs daily. (Tr. 109).
In May 1992, a physician noted that plaintiff had +1 to +2 edema. (Tr. 111). During an examination in July 1992, plaintiff had +2 pitting edema. (Tr. 111).
On July 2, 1992, ankle swelling and liver damage were noted during an examination. (Tr. 112). On July 21, 1992, an ECG was taken and showed evidence of marked sinus bradycaria. (Tr. 114). On November 3, 1992, Dr. Paul H. Dillahunt assessed plaintiff's residual functional capacity (RFC) finding that plaintiff could occasionally lift fifty pounds, frequently lift twenty-five pounds, sit or stand and/or walk about six hours in an eight-hour workday and engage in unlimited pushing and pulling. (Tr. 174). No other postural, communicative, environmental, manipulative or visual limitations were noted. (Tr. 175-177).
In March 1993, plaintiff was treated for a two-week bout of excessive pain in the shoulder area, profuse sweating, numbness in the right hand, nausea, dizziness and diarrhea. (Tr. 124). The treadmill test taken on April 8, 1993, was limited by dyspnea; no ischemia was detected. (Tr. 127). The disability assessment prepared by Dr. Jerome Zake on July 9, 1993, showed alcohol dependence, adult antisocial behavior, and a Global Assessment Function (GAF) of 50. (Tr. 148).
In October 1993, Dr. Alice L. Chambly diagnosed plaintiff with substance abuse disorder and inflexible and maladaptive personality traits which impaired significantly his social and occupational functioning. (Tr. 154, 155). Dr. Chambly also found that plaintiff suffered from moderate limitations in the ability to understand and remember detailed instructions, carry out detailed instructions, complete a normal work-day, interact appropriately with the public, accept instructions and respond to criticism from supervisors and get along with co-workers and peers. (Tr. 158-159). Plaintiff was treated and released on October 7, 1993, for cough, fever and chills. (Tr. 162).
In January 1994, plaintiff was admitted for approximately one week to the Comprehensive Addiction Service Systems for chemical dependency treatment services. (Tr. 197). No active chest disease was observed during the radiological evaluation administered on January 4, 1994. (Tr. 201). Emergency room treatment was administered on several occasions for flu, cold, congestion, coughing, fever, chills, itchy eyes and sore throat. The persistent cold/flu-like symptoms were ultimately attributed to rhinitis. (Tr. 270). Although plaintiff continued to drink alcohol, his lungs were clear. (Tr. 219). Examination of plaintiff's left foot showed no evidence of fracture, dislocation or radiopaque foreign bodies. (Tr. 287).
In April 1994, plaintiff saw Dr. Rowan for a follow-up for his hypertension, obesity, and alcoholism. (Tr. 219). No edema was observed. (Tr. 219).
In August 1994, plaintiff told Dr. Rowan that there was less edema in his ankles. (Tr. 349).
Dr. Charles Rowan affirmed the diagnosis of cardiomyopathy as a result of the EKG and a lipid profile administered on December 14, 1994. (Tr. 346).
On January 16, 1995, Dr. Rowan found + 1 edema in plaintiff's extremities. (Tr. 340).
Dr. Rowan noted that plaintiff had ankle edema during a visit on May 1, 1995. (Tr. 331).
On May 10, 1995, plaintiff completed remedial education required of driving under the influence offenders. (Tr. 357). Dr. Rowan prepared outpatient prescription orders on May 10, 1995, in which he opined that plaintiff could not walk two hundred feet without stopping for rest and that plaintiff was severely limited in the ability to walk due to arthritic, neurological, or orthopedic conditions. (Tr. 334).
Plaintiff was diagnosed with bronchitis on March 15, 1996. (Tr. 325). At that time he had no pedal edema or calf tenderness. (Tr. 325).
In April 1996, plaintiff was diagnosed with hypertension and cardiomyopathy as a result of laboratory studies. (Tr. 323, 339). On July 16, 1996, plaintiff underwent umbilical hernia repair. (Tr. 315). Plaintiff was treated on July 24, 1996, for swelling in his right middle finger which was diagnosed with right long finger paronychia on July 26, 1996. (Tr. 296, 314). His right middle finger was deemed essentially normal when X-rayed on July 24, 1996. (Tr. 297). On October 1, 1996, Dr. K.B. Gupta performed a psychiatric evaluation in which he diagnosed plaintiff with alcohol dependence, polysubstance dependence in total sustained remission, antisocial personality disorder, heart problems and a GAF of 70-80. (Tr. 300).
Dr. Carolyn T. Lewin performed a psychiatric evaluation in 1996 which showed that plaintiff suffered from personality disorders and substance addition disorders characterized by inflexible and maladaptive personality traits and oddity of thought, perception, speech and behavior. (Tr. 243, 248). The effect of such impairments on his functional limitations was slight. (Tr. 250). In September 1996, Dr. Anton Freihofner opined that plaintiff could occasionally lift up to fifty pounds, frequently life twenty-five pounds, sit or stand and/or walk approximately six hours in an eight-hour workday and engage in unlimited pushing and pulling. (Tr. 254). He noted no other limitations. (Tr. 255-257).
Also in September 1996, plaintiff underwent outpatient counseling and individual therapy completing both on October 16, 1996. (Tr.359). LaMarr Norwood, Executive Director of Fresh Attitude, claimed that plaintiff maintained a sober lifestyle. (Tr 356).
On October 9, 1996, plaintiff complained to Dr. Rowan of easily becoming out of breath. (Tr. 312). At that time, Dr. Rowan noted a trace of edema. (Tr. 312).
On May 19, 1997, plaintiff reported to Dr. Rowan that he had swelling in his ankles and legs. (Tr. 367). Upon examination, Dr. Rowan did not find any edema. (Tr. 367).
In June 1997, X-rays of plaintiff's left heel confirmed the presence of plantar fasciitis, deformity associated with the great toe bilaterally and a plantar calcaneal spur. (Tr. 363). X-rays revealed no evidence of fracture or dislocation. (Tr. 363). During July 1997, plaintiff was treated for left heel pain. (Tr. 363).
Plantar fasciitis is inflamation of the sole of the foot, associated with eosinophilaia, edema, and swelling. DORLAND'S Illustrated Medical Dictionary 611 (27th ed. 1994).
STANDARD OF DISABILITY
This court reviews a Magistrate Judge's Report and Recommendation de novo. 28 U.S.C. § 636(b)(1)(c); Smith v. Detroit Fed'n of Teachers, 829 F.2d 1370, 1373 (6th Cir. 1987).
Pursuant to 42 U.S.C. § 405(g) (1988), this court reviews the final decision of the Secretary for compliance with applicable legal criteria and to decide whether the record contains substantial evidence to support each necessary finding. Abbot v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990) (citing Blankenship v. Bowen, 874 F.2d 1116, 1120 (6th Cir. 1989)). Substantial evidence is described as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Abbot, 905 F.2d at 922. A substantial evidence finding should be supported by "the record as a whole" and "take into account whatever in the record fairly detracts from its weight." Maziarz v. Secretary of Health Human Serv., 837 F.2d 240, 243 (6th Cir. 1987).
After the Appeals Council reviews the ALJ decision, the determination of the Council becomes the final decision of the Secretary and is subject to review by this court. Abbot, 905 F.2d at 922, (citing Mullen v. Bowen, 800 F.2d 535, 538 (6th Cir. 1986) (en banc)). If supported by substantial evidence, the Commissioner's decision must be affirmed, even if a reviewing court would decide the matter differently. 42 U.S.C. § 405(g) (1998); Kinsella v. Schweiker, 708 F.2d 1058 (6th Cir. 1983).
ANALYSIS
The Social Security Act requires the Secretary to follow a "five-step sequential process" for claims of disability. Abbot v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, plaintiff must demonstrate that she is not currently engaged in "substantial gainful activity" at the time she seeks disability benefits. Id. (citing 20 C.F.R. § 404.1520(b) and 416.920(b) (2000)). Second, plaintiff must show that she suffers from a "severe impairment" in order to warrant a finding of disability. A "severe impairment" is one which "significantly limits . . . physical or mental ability to do basic work activities." Id. (citing 20 C.F.R. § 404.1520(c) and 416.920(c) (2000)). Third, if plaintiff is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the impairment meets a listed impairment, plaintiff is presumed to be disabled regardless of age, education or work experience. 20 C.F.R. § 404.1520(d) and 416.920(d) (2000). Fourth, if the plaintiff's impairment does not prevent him from doing his past relevant work, plaintiff is not disabled. For the fifth and final step, even if the plaintiff's impairment does prevent him from doing his past relevant work, if other work exists in the national economy that plaintiff can perform, plaintiff is not disabled. Abbot, 905 F.2d at 923.
Medical-Vocational Guidelines ("grids") are utilized by the Secretary during the final step of the disability decision. Id. After the Secretary determines that the plaintiff is incapable of performing past relevant work, these grids are used to determine whether plaintiff can perform other jobs in the national economy. The grid allows the Secretary to take "administrative notice" that plaintiff has met the requirements to perform certain jobs in the economy. Id.
1. Plaintiff Is Not Entitled to A Remand
Sentence four of 42 U.S.C. § 405(g) states: "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision on the Commissioner of Social Security, with or without remanding the cause for a rehearing." Sentence six of 42 U.S.C. § 405(g) provides: "The court may . . . order additional evidence . . . but only upon a showing that there is new evidence which is material and that there is good cause . . . to incorporate such evidence into the record in a prior proceeding."
Before the Magistrate Judge, plaintiff argued that the ALJ's failure to consider evidence present in the record required a remand under sentence four of 42 U.S.C. § 405(g). In the alternative, plaintiff argued that the evidence was erroneously excluded from the record, and thus remand under sentence six of 42 U.S.C. § 405(g) was warranted. (Doc. 19 at 7). In addition, the plaintiff argued that, to warrant a remand, a finding that the evidence is material was required only under sentence six, and not sentence four, of 42 U.S.C. § 405(g).
The Magistrate Judge recommended that the evidence was immaterial, and therefore, remand was not warranted.
The Sixth Circuit clarified that, where the ALJ did not properly rely on evidence in the record, a remand is warranted only when such evidence is "material." Young v. Secretary of Health and Human Serv., 925 F.2d 146, 149 (6th Cir. 1990). In Young, plaintiff argued that the Magistrate Judge failed to consider a psychiatric report present in the record. The Sixth Circuit held, however, that because the evidence was not "material," a remand was not warranted. Id.
Similarly, the Sixth Circuit held that remand is warranted for consideration of new evidence, not present in the record, only when the evidence is "material." Oliver v. Secretary of Health Human Serv., 804 F.2d 964, 966 (6th Cir. 1986).
Thus, plaintiff must demonstrate that the evidence, whether new evidence or evidence erroneously excluded, is material to warrant a remand.
Plaintiff points to the following evidence, concerning the treatment of his alcoholism, to warrant remand to the Commissioner: (1) letters from LaMarr Norwood and Larry Brown, directors of community-based addition programs, indicating that plaintiff attended meetings and maintained his sobriety; (2) a letter from Martu Fleishmen describing plaintiff's involvement in a community-based addition program; and (3) a character reference from plaintiff's friend stating plaintiff was committed to his family and community. (Doc. 19 at Ex. A).
In his decision, the ALJ noted that "the claimant was still drinking in October 1996, which is contradictory to his testimony that he stopped drinking three years ago." (Tr. 24). According to the ALJ, "the discrepancy between the claimant's testimony and Dr. Gupta's report is relevant to the issue of credibility." (Tr. 24). Finally, the ALJ included in his findings that: "[t]he claimant's statements concerning his impairment and its impact on his ability to work are not entirely credible." (Tr. 26).
Plaintiff argues that the evidence bolsters plaintiff's credibility and is, therefore, material. I disagree.
To prove materiality, the plaintiff "must demonstrate that there was a reasonable probability that the Secretary would have reached a different disposition of the disability claim if presented with the new evidence."Sizemore v. Secretary of Health and Human Serv., 865 F.2d 709, 711 (6th Cir. 1988).
Although the ALJ stated that contradictory testimony concerning plaintiff's drinking was relevant to plaintiff's credibility, he noted that "the primary reason that the claimant's subjective complaints are not credible is due to the fact that they are not supported by medical evidence of record." (Tr. 24). The ALJ noted that plaintiff's chest x-rays and EKG's were normal, he had clear lungs, his heart symptoms were controlled with medication and plaintiff suffered from edema on an intermittent basis which was treated with conservative measures. The ALJ, therefore, found that the primary reason plaintiff's statement concerning his impairment were not credible was because there was insufficient medical evidence to establish his disability. Plaintiff has failed to demonstrate a "reasonable probability" that the evidence concerning his sobriety would have caused the ALJ to find that he was disabled.
Plaintiff also alleges that a remand is warranted based on the following medical evidence from Dr. Bruce Saferin: (1) a report dated June 30, 1997, stating that plaintiff's x-ray revealed "plantar fasciitis, hallux interphalangeus deformity bilateral and a plantar calcaneal spur"; (2) notes from an examination on July 30, 1997, finding that plaintiff had "quite a bit of pitting edema in both LE's"; and (3) reports from examinations on February 12, May 19, June 24, and July 22, 1997, noting that plaintiff's feet were swollen and aching.
I find that this evidence concerning plaintiff's intermittent edema and swollen feet is not material and thus reversal of the Commissioner's decision is not warranted.
As noted by the Magistrate Judge, plantar fasciitis is inflamation of the sole of the foot, associated with edema. (Doc. 18 at n. 5).
According to the Sixth Circuit, evidence which is "cumulative," or present in the record, is not material. Young, 925 F.2d at 149.
The transcript relied on by the ALJ contains numerous documents, from a several year period, demonstrating that plaintiff had intermittent edema and swelling of the feet associated with edema. (Tr. 52, 111, 112, 312, 340, and 349). Other documents in the record demonstrated that, at other times, plaintiff's edema had improved. (Tr. 219 and 325). Evidence in the transcript also stated that plaintiff suffered from a small inferior calcaneal spur. (Tr. 23). The ALJ found that "[a]lthough the record shows that the claimant experienced edema, it was only an intermittent basis and treated only with conservative measures . . . ." (Tr. 25).
The new evidence also demonstrates that plaintiff suffered from intermittent edema, a plantar calcaneal spur, and swelling of his feet. Dr. Saferin continued to treat plaintiff's symptoms with conservative measures, such as suggesting that plaintiff use Dr. Scholl's back guards and good, supportive shoes. (Doc. 19 at Ex. B). The new medical evidence is cumulative, and therefore, not material.
Because plaintiff failed to establish that the evidence not included in the record was material, I will not address plaintiff's contention that the ALJ failed to keep the record open for a reasonable time or specify a date certain when the record would be closed.
II. The Magistrate Judge Properly Analyzed Plaintiff's Substance Abuse
Before the Magistrate Judge, plaintiff argued that the ALJ's findings about alcohol use were legally inadequate. The Magistrate Judge recommended that the court find that "whether Plaintiff continued to drink is no longer dispositive of his ability to receive benefits." I agree with the Magistrate Judge's decision.
The ALJ stated that "[t]he medical evidence supports a finding that if the claimant stopped using alcohol, he would not be disabled." (Tr. 26). According to the plaintiff, the ALJ failed to explicitly distinguish the effect of alcohol from plaintiff's impairments and failed to explain how plaintiff was not disabled at step three or step five of the sequential analysis.
The ALJ discussed each of plaintiff's medical problems (heart problems, shortness of breath, dizziness, edema, and dyspena) and determined that these "symptoms were intermittent in nature and treated only with conservative measures." (Tr. 23). The ALJ determined that the plaintiff "retains the residual functional capacity to perform the exertional demands" of his former employment. The ALJ made this determination without considering the effect of alcohol on these symptoms.
The ALJ, therefore, determined that plaintiff was not disabled, based solely on his alleged medical problems without considering whether plaintiff's alcohol intake exasperated any of these conditions. Plaintiff's contention, therefore, is without merit.
III. The Magistrate Judge Did Not Erroneously Analyze Plaintiff's Mental Limitations
Plaintiff argued to the Magistrate Judge that the ALJ's findings about plaintiff's mental limitations were inadequate. The Magistrate Judge found that "substantial evidence supports the ALJ's finding that Plaintiff did not have a severe impairment." I agree.
First, plaintiff argues that the ALJ failed to consider plaintiff's mental limitations during his analysis of plaintiff's RFC.
Plaintiff argues that, under Social Security Ruling 96-8p, 1996 WL 374184 (S.S.A), the ALJ must consider non-severe mental limitations when considering whether plaintiff can do his former job. SSR 96-8p provides:
In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not "severe." While a "not severe" impairment(s) standing alone may not significantly limit an individual's ability to do basic work activities, it may — when considered with limitations or restrictions due to other impairments — be critical to the outcome of a claim. For example, in combination with limitations imposed by an individual's other impairments, the limitations due to such a "not severe" impairment may prevent an individual from performing past relevant work or may narrow the range of other work that the individual may still be able to do.
The ALJ, however, did consider whether plaintiff had any mental limitations, severe or non-severe, which would preclude him from returning to his former job. The ALJ included an in-depth discussion of plaintiff's mental state, relying on Dr. Gupta's evaluation and other evidence in the record. (Tr. 25). The ALJ discussed plaintiff's memory, judgment, thought processes, social functioning, concentration, ability to maintain an independent household, attention, and emotional problems. (Tr. 25). The ALJ noted that plaintiff did not have any significant limitation or abnormalities with any of these functions. (Tr. 25). Plaintiff's contention, therefore, is without merit.
Second, plaintiff argues that the ALJ should have obtained a vocational reference or evidence from a vocational witness to determine whether plaintiff could return to his former job.
The ALJ relied on Dr. Gupta's mental status evaluation of plaintiff: "[he has] no impairment in his ability to understand and follow simple menial instructions. He has the ability to maintain attention to do a simple repetitive kind of job . . . and has the ability to withstand minimal pressures and stresses associated with a low stress job." (Tr. 300).
Plaintiff argues that this evaluation determined that plaintiff had a "personality disorder" because he could only perform jobs that were "low stress." (Doc. 19 at 10).
I disagree with plaintiff's characterization of Dr. Gupta's evaluation. (Tr. 300). Dr. Gupta did not find that plaintiff had a personality disorder, but instead reported that plaintiff could do any normal task associated with a "low stress job." (Tr. 300).
Plaintiff's own description of his job duties contains no indication that his former job was highly stressful. Plaintiff described his duties for his former job as a custodian as: "sweep, mop and use of buffing machine in and all locations of the airport, such as bathrooms in each terminals of the airport, dumping of all garbage disposals, mop and wax and buff all floor surfaces, fill out time cards." (Tr. 84). Plaintiff also reported that his job did not require supervisory responsibilities or technical knowledge or skill. Plaintiff reported that he did have to write and complete reports, such as "fill[ing] out time cards." (Tr. 84).
Furthermore, because Dr. Gupta determined that plaintiff did not suffer from any mental limitations, the ALJ did not need to obtain vocational evidence.
I find that substantial evidence supports the ALJ's decision that plaintiff did not suffer from any mental limitations prohibiting his return to his former job.
CONCLUSION
For the following reasons,
Plaintiff's objections to the Magistrate Judge's Report and Recommendation are overruled.
So ordered.