Opinion
CV-21-00576-PHX-DLR (JZB)
12-27-2022
Gina Marie Crisman, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
Plaintiff Gina Maria Crisman seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (“Commissioner”), denying her application for disability benefits under Title II the Social Security Act. (Doc. 1; Doc. 25.) The Court finds the Administrative Law Judge (“ALJ”) improperly weighed medical source evidence, and in so doing committed legal error and based the decision on less than substantial evidence. Accordingly, the Court recommends remanding for calculation of benefits.
I. Background.
On July 30, 2014, Plaintiff filed an application for disability benefits under Title II of the Social Security Act, asserting disability beginning on January 5, 2014. (AR 311-12.) Plaintiff's application was denied on October 17, 2014, (AR 144), and upon reconsideration on May 12, 2015. (AR 151.) Plaintiff requested a hearing with an Administrative Law Judge (“ALJ”), which was held on March 8, 2017. (AR 45-61.) In a written decision dated July 27, 2017, the ALJ found Plaintiff was not disabled. (AR 118131.) Plaintiff filed a request for review, which the Appeals Council granted. (AR 138143.) On June 14, 2019, the Appeals Council remanded for further proceedings. Id. A second hearing was held on February 26, 2020. (AR 62-89.) In a written decision dated May 18, 2020, the ALJ issued a decision finding Plaintiff not disabled. (AR 24-37.) The Appeals Council denied review and the ALJ's decision became final. (AR 1-3.)
II. Legal Standard.
The Court reviews only issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may affirm, modify, or reverse the decision of the Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C. §§ 405(g), 1383(c). The Court may set aside the decision only when it is not supported by “substantial evidence” or is based on legal error. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). “Substantial evidence means more than a mere scintilla, but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted). The ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Trevizo, 871 F.3d at at 674-75. The Court reviews the entire record and may not affirm “simply by isolating a specific quantum of supporting evidence.” Id. at 675. The Court reviews “only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which [the ALJ] did not rely.” Id.
Harmless error principles apply in the Social Security Act context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains substantial evidence supporting the ALJ's decision, and the error does not affect the ultimate nondisability determination. Id. The Court may also affirm “if the agency's path may reasonably be discerned, even if the agency explains its decision with less than ideal clarity.” Treichler v. Comm'r of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014) (citation and internal quotation marks omitted). The claimant usually bears the burden of showing that an error is harmful. Molina, 674 F.3d at 1111.
III. The ALJ's Five-Step Evaluation Process.
To be entitled to disability insurance benefits, an individual must be insured for disability insurance benefits, have not attained retirement age, have filed an application for benefits and be disabled as defined in the Social Security Act. 42 U.S.C. § 423(a)(1)(A)-(E). To determine whether a claimant is disabled, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but at step five, the burden shifts to the Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, before proceeding to step four, the ALJ assesses the claimant's residual functional capacity (“RFC”). § 404.1520(a)(4). At step four, the ALJ assesses whether the claimant is still capable of performing past relevant work based on the claimant's RFC. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the claimant can perform any other work based on the claimant's RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.
In the written opinion dated May 18, 2020, the ALJ found Plaintiff meets the insured status requirements of the Social Security Act through March 31, 2019, and that she has not engaged in substantial gainful activity since the alleged onset date of January 5, 2014. (AR 27.) At step two, the ALJ found that Plaintiff has the following severe impairments: “cervical and lumbar degenerative disc disease, fibromyalgia, and generalized osteoarthritis.” Id. At step three, the ALJ determined that claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Pt. 404. (AR 30.) At step four, the ALJ found that Plaintiff has the RFC to perform:
Medium work as defined in 20 CFR 404.1567(c) except: The claimant can lift and carry 50 pounds occasionally, 25 pounds frequently, stand and walk for 6 hours in an 8 hour day, and sit for 6 hours in an 8 hour day. The claimant can frequently climb ramps and stairs, never climb ladders or scaffolds, and frequently balance, stoop, kneel, crouch and occasionally crawl. The claimant can frequently reach overhead with both upper extremities.(AR 30.) The ALJ then found Plaintiff was capable of performing past relevant work as an accountant through the date last insured. (AR 36.) Thus, the ALJ found Plaintiff was not disabled as defined by the Social Security Act. (AR 37.)
IV. Analysis.
Plaintiff raises one argument in her opening brief, that “the ALJ's RFC is not supported by substantial evidence because he failed to properly weigh the opinions of FNP Noriega and LCSW Rubin.” (Doc. 25 at 17.)
A. Legal Standard for Assessing Medical Source Evidence
“Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity” of the claimant's impairments. 20 C.F.R. § 404.1527(a). “Acceptable medical source(s)” include licensed physicians, licensed or certified psychologists and other licensed specialists. 20 C.F.R. § 404.1502(a). Evidence from non-acceptable medical sources, which includes nurse practitioners and licensed clinical social workers, may also be considered to determine the severity of the claimant's impairments. SSR 06-03P (S.S.A.), 2006 WL 2329939; Garrison v. Colvin, 759 F.3d 995, 1013-14 (9th Cir. 2014). Non-acceptable medical source evidence is not considered a “medical opinion” that can be used to establish the existence of a medically determinable impairment or that may be entitled to controlling weight. SSR 06-03P. It may be appropriate, however, “to give more weight to the opinion of a medical source who is not an acceptable medical source if he or she has seen the individual more often than the treating source, has provided better supporting evidence and a better explanation for the opinion, and the opinion is more consistent with the evidence as a whole.” 20 C.F.R. § 404.1527(f)(1).
In January 2017, the Social Security Administration published “Revisions to Rules Regarding the Evaluation of Medical Evidence,” effective March 27, 2017. 82 Fed.Reg. 5844. As Plaintiff's claim was filed in July 2014, the revisions made applicable to claims filed on or after March 27, 2017, do not apply. See 20 C.F.R. §§ 404.1520c (stating how the agency considers medical opinions for claims filed on or after March 27, 2017). The Court will apply rules and regulations applicable to claims filed before March 27, 2017.
In evaluating either a medical opinion or evidence from non-acceptable medical sources the ALJ may consider: (1) length of the treatment relationship and frequency of examination, (2) the nature and extent of any treatment relationship, (3) the degree of support the opinion has, particularly from “medical signs and laboratory findings,” (4) the consistency of the opinion with the record as a whole, (5) the source's specialization, and (6) “other factors.” 20 C.F.R. § 404.1527(c)(1)-(6), (f)(1); Trevizo, 871 F.3d at 675. An ALJ may reject an opinion that is “conclusory, brief, and unsupported by the record as a whole or by objective medical findings.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); see also 20 C.F.R. § 404.1527(c)(3) (“The more a medical source presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more weight we will give that medical opinion. The better an explanation a source provides for a medical opinion, the more weight we will give that medical opinion.”).
Generally, medical opinions of treating sources are entitled to the greatest weight; opinions of examining, non-treating sources are entitled to lesser weight; and opinions of non-examining, non-treating sources are entitled to the least weight. Garrison, 759 F.3d at 1012. “If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.” Id. An ALJ may reject evidence from non-acceptable medical sources by providing “reasons germane to each witness for doing so” that are substantiated by the record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
B. Marian Rubin, LCSW.
Plaintiff argues the ALJ erred in assigning little weight to the assessment of Plaintiff's counselor, Marian Rubin, a licensed clinical social worker. In her mental capacity assessment dated January 24, 2017, Rubin assessed that Plaintiff would have extreme limitations in her ability to maintain attention and concentration for extended periods, perform within a schedule, maintain regular attendance, be punctual, work in proximity to others without being distracted, or complete a workweek without interruption from psychologically based symptoms. (AR 824-25.) Rubin also noted marked limitations in Plaintiff's ability to understand, remember or carry out detailed instructions, complete a workday without interruption from her symptoms, or perform at a consistent pace with standard rest periods, and listed other slight to moderate limitations including a limited ability to understand and remember short and simple instructions or sustain an ordinary routine without supervision. (AR 845-45.)
To support her assessment, Rubin stated Plaintiff attended weekly sessions since 2016, appearing disheveled, crying, and stressed with pressured speech and anxious mood. (AR 825.) Plaintiff reported to Rubin getting along with coworkers but feeling stress and anxiety from having to perform many tasks and verbal abuse from supervisors which interfered with her ability to work. (AR 825.)
The ALJ assigned little weight to Rubin's assessment, finding the record did not contain treatment notes supporting her opinion, and the medical evidence reflected normal mental status evaluations with the exception of depressed mood. (AR 35.) The ALJ concluded there was no record evidence to support the finding that Plaintiff had difficulty concentrating or with detailed tasks. (AR 35.)
Substantial evidence supports the ALJ's assignment of little weight to Rubin's medical assessment. The record does not show Plaintiff exhibited difficulty with concentration or with detailed tasks. Mental health treatment reflected Plaintiff suffered from depression and anxiety but had had normal memory and cognitive abilities. (AR 74656, 916-925, 953-54.) Further, Rubin's assessment conflicted with that of consultative examiner Jonna Krabbenhoft, Psy.D., who opined Plaintiff had no impairment in her ability to understand or carry out instructions and had only mild limitation in her ability to interact socially with coworkers and supervisors. (AR 930.) See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (stating when an examining physician provides “independent clinical findings” that differ from a treating source such findings are “substantial evidence.”).
Plaintiff argues the ALJ erred in discounting Rubin's assessment for failure to submit treatment records, arguing agency policy protects psychotherapy notes from admission into the administrative record. This argument is not persuasive. Rubin accompanied her assessment with treatment summaries, stating Plaintiff appeared distressed, disheveled, and anxious in her weekly sessions. (AR 850, 928.) The ALJ did not err in finding those treatment summaries did not support Plaintiff's cognitive limitations as stated in Rubin's report because the treatment summaries did not mention any cognitive deficiency or diminished concentration. Further, the ALJ was entitled to rely on other substantial evidence in the record suggesting Plaintiff possessed no cognitive disabilities. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (stating it is the ALJ's duty to resolve conflicts in the medical evidence.) The Court finds no error in the ALJ's determination that Rubin's assessment conflicted with the medical evidence.
C. Vincent Noriega, FNP.
1. Treatment History and Medical Assessment
Medical records show Noriega treated Plaintiff weekly between November 2016 and January 2020. (AR 1549-2476.) On February 21, 2017, Nurse Practitioner Vincent Noriega completed a physical assessment of Plaintiff. (AR 914-15.) Noriega assessed Plaintiff's symptoms would constantly interfere with her performance of work-related tasks, that Plaintiff would need to rest more often that typical workday breaks, and that Plaintiff could sit for three hours and stand and walk for two hours in an eight-hour workday. (AR 914.) Noriega concluded Plaintiff would require more than four absences from work in one month. (AR 915.)
2. The ALJ's Assessment of Noriega's Report is Not Supported by Substantial Evidence.
The ALJ assigned little weight to Noriega's assessment for two reasons: “[h]is treatment records at Exhibit 39F are very similar to the records from the claimant's other providers in that they show generally normal findings and normal gait. Further, there is no evidence in the record to support a restriction of her ability to sit or walk.” (AR 35.) The Court will address each reason in turn.
The ALJ's conclusion that Plaintiff's treatment history showed generally normal findings is not supported by substantial evidence. The ALJ concluded Noriega's treatment records, and indeed the entire medical record, showed generally normal findings and normal gait and cited only generally to Exhibit 39F, a 1,200-page exhibit of treatment records from Noriega and another provider. (AR 35.) The ALJ failed to cite any specific page or report from Noriega or another provider that demonstrated normal findings. Elsewhere in the decision, the ALJ cited and summarized objective findings from Plaintiff's other providers, which included a sampling of magnetic resonance imaging (MRI) scans and x-ray scans. (AR 33.) The ALJ concluded from the scans that “[w]hile the foregoing objective reports are consistent with some musculoskeletal abnormalities, there is no evidence of any nerve root impingement, severe stenosis, progressive neurologic deficits, infections, tumors, or fractures to cause the severity of pain and limitations alleged.” (AR 33.)
This conclusion is belied by the objective findings and Plaintiff's subjective reports of pain. MRI scans of the cervical spine (neck) from 2016 through 2018 demonstrated several herniated discs, interval progression of disc degeneration year to year, and moderate central spinal canal stenosis and “severe” foraminal stenosis on the left side. (AR 718-19, 1158, 1185.) Scans of Plaintiff's lumbar spine (lower back) from 2015 through 2018 showed disc herniation which impinged the L5 nerve root (AR 724, 956, 1187-88) and moderately severe spinal canal stenosis (AR 956). The ALJ cited the above scans and reached a conclusion not supported by the evidence.
The ALJ's assessment that Noriega's treatment records and records from Plaintiff's other providers showed generally normal findings is also unsupported by substantial evidence. Noriega's treatment records reflect that from late 2016 through 2018, Plaintiff reported severe burning or radiating neck and back pain. (AR 1550-2166.) She reported increased pain after car rides and caring for children or pets. (AR 1574, 1577, 1867, 2005, 2159.) Plaintiff stated the neck pain was aggravated by movement, and the back pain was aggravated with excessive standing, sitting, and bending. (AR 1550-2166.) Noriega found Plaintiff had pain in the cervical spine, decreased cervical range of motion with mild pain with left and right cervical rotation, and full lumbar range of motion with mild discomfort. (AR 1550-2166.) He cited the MRIs from 2016 and 2017 as reflecting interval exacerbation of disc herniation. (AR 1645.) Plaintiff was treated with physical therapy, medication, and trigger point injections. (AR 1551-2166). Noriega noted Plaintiff reported her neck and back pain were minimally relieved by injections, but only temporarily until the next injection. (AR 1647, 1653, 1752, 2005, 2151.) Absent from Noriega's treatment records are assessments of generally normal findings or of an improving condition. The record as a whole reflects Plaintiff consistently reported severe neck and back pain, which was aggravated by movement, and Plaintiff's providers concluded her pain was result of a combination of degenerative disc disease, osteoarthritis and fibromyalgia. (See, e.g, AR 541, 640, 643, 830-899, 1039-44, 1115, 1647, 1653, 1752, 2175, 2481-88, 2509, 2581, 2649-51.)
Importantly, the ALJ's assessment of the medical record does not account for Plaintiff's fibromyalgia impairment. The Ninth Circuit has held “[i]n evaluating whether a claimant's residual functional capacity renders them disabled because of fibromyalgia, the medical evidence must be construed in light of fibromyalgia's unique symptoms and diagnostic methods . . . The failure to do so is error.” Revels v. Berryhill, 874 F.3d 648, 662 (9th Cir. 2017) “A person with fibromyalgia may have muscle strength, sensory functions and reflexes that are normal.” Id. at 663. Thus, for a fibromyalgia claimant, an ALJ's citation to “normal muscle strength, tone, and stability, as well as a normal range of motion” is “erroneous.” Id. at 666. Unlike Plaintiff's osteoarthritis and degenerative disc disease impairments, Fibromyalgia is evaluated “entirely on the basis of patients' reports of pain and other symptoms.” Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). The Ninth Circuit has made clear that “mostly normal results” of objective tests “are perfectly consistent with debilitating fibromyalgia,” Revels, 874 F.3d at 666, and that an ALJ errs “by effectively requiring objective evidence for a disease that eludes such measurement,” Benecke, 379 F.3d at 594 (cleaned up).
Thus, while there is evidence in the record to support that Plaintiff had a “normal gait,” to assess Plaintiff's fibromyalgia impairment to be non-disabling solely based on a normal gait would be error. The ALJ erred by failing to cite to or consider Plaintiff's reports of subjective pain in assessing the medical record and the weight given to Noriega's report. Records dated from 2013 through early 2020 demonstrate Plaintiff reported to her physicians and physical therapists moderate to severe levels of back and neck pain and muscle spasms which fluctuated but without any trend toward significant improvement. (See, e.g, AR 541, 640, 643, 830-899, 1039-44, 1115, 1647, 1653, 1752, 2175, 2481-88, 2509, 2581, 2649-51.) The weight given to FNP Noriega's report is thus not supported by substantial evidence because the ALJ failed to properly analyze Plaintiff's reported levels of pain as evidence of fibromyalgia. See Revels, 874 F.3d at 662; See also Weiskopf v. Berryhill, No. 15-16008, 693 Fed. App'x. 539, 541-42 (9th Cir. 2017) (“[T]he ALJ did not properly analyze Weiskopf's evidence of fibromyalgia.”); Hamilton-Carneal v. Colvin, 670 Fed. App'x. 613, 613 (9th Cir. 2016) (same).
The ALJ's second reason for rejecting Noriega's report, that there is no evidence in the record to support a restriction on Plaintiff's ability to sit or walk, is similarly not supported by substantial evidence. The record does not demonstrate that Plaintiff could sit or walk without limitation. Plaintiff consistently reported to her physical therapists that she experienced significant pain while walking, standing, sitting or performing any activity requiring motion in her lower back. (AR 541, 640, 643, 830-899.) Plaintiff reported her pain increased with movement or with sitting for several hours as a time in long car rides. (AR 889-899, 1574, 1577, 1867, 2005, 2159.) Plaintiff's providers documented the worsening of her degenerative disc disease over time, which in combination with fibromyalgia caused severe levels of pain interfering with her activities of daily life. (AR 674-78, 718-24, 793, 798, 956, 1039-40, 1158, 1185-88.) Findings of normal gait do not equate with unrestricted ability to sit or walk without pain. See Revels, 874 F.3d at 666; Benecke, 379 F.3d at 594
Although Noriega is not an “acceptable medical source,” he is a treating source who examined Plaintiff weekly over at least four years. See 20 C.F.R. § 404.1527(c)(1)-(2), (f) (explaining that an opinion from a source who has examined the claimant and had a longer treatment relationship should generally be given greater weight); see also Revels, 874 F.3d at 665. Noriega had an overview of Plaintiff's medical history and received reports from specialists and any MRI scans. See 20 C.F.R. § 404.1527(c)(2)(ii) (in determining the weight that should be given to an opinion, the ALJ should look at “the treatment the source has provided and . . . the kinds and extent of examinations and testing the source has performed or ordered from specialists”). The ALJ's assessment of Noriega's report is not supported by substantial evidence and the ALJ erred by assigning it little weight.
D. Remand for Calculation and Award of Benefits.
“The decision whether to remand a case for additional evidence, or simply to award benefits[,] is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). “[I]f additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded” for further proceedings. Garrison, 759 F.3d at 1019 (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). Generally, however, where “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand,” id. at 1020, the Court will remand for an award of benefits. “In rare instances, though each of the credit-as-true factors is met, the record as a whole leaves serious doubt as to whether the claimant is actually disabled,” in which case the Court will remand for further development of the record. Revels, 874 F.3d at 668 (citing Garrison, 759 F.3d at 1021).
The credit-as-true factors are satisfied here. First, the record is fully developed, and includes treatment notes from multiple providers including physical therapists, nurse practitioners, and physicians, some of which treated Plaintiff on a weekly basis, from 2013 through early 2020. Plaintiff is no longer insured and was last insured on March 31, 2019. (AR 27.) There are no further proceedings or evidence that would be useful to making an eligibility determination.
Second, the ALJ failed to provide legally sufficient reasons for rejecting the report of Plaintiff's nurse practitioner Noriega. The ALJ's assessment of the medical treatment records from Noriega and Plaintiff's other providers was not supported by substantial evidence and did not account for Plaintiff's fibromyalgia impairment. Third, if credited as true, Noriega's report establishes that Plaintiff is disabled because a vocational expert testified a person with Plaintiff's limitations as described by Noriega would not be able to perform any “full-time competitive gainful employment.” (AR 87-89.) Finally, there is no serious doubt based on the record that Plaintiff is in fact disabled. Plaintiff's impairment of fibromyalgia has been repeatedly substantiated by tender-point examinations, which SSR 12-2P establishes as proper evidence of the condition. Plaintiff's osteoarthritis and degenerative disc disease were established by X-Rays and MRI Scans and physician examinations over five years of treatment. Function reports and the treatment notes from her doctors consistently show that she was suffering from severe pain from a combination of these impairments.
Accordingly, the Court recommends remanding to the ALJ for the calculation and award of benefits.
V. Conclusion.
The Court finds that the ALJ's assessment of medical source evidence and accompanying disability determination is not supported by substantial evidence and was the result of legal error. Because the record is fully developed and the other credit-as-true factors are satisfied, the Court will recommend remanding for calculation and award of benefits.
IT IS THEREFORE RECOMMENDED that the Commissioner's decision be reversed and that this action be remanded for calculation and award of disability benefits under Title II of the Social Security Act.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rules of Appellate Procedure, Fed. R. App. P. 4(a)(1), should not be filed until entry of the district court's judgment. Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure, objections to the Report and Recommendation may not exceed ten (10) pages. If objections are not timely filed, the party's right to de novo review by the District Judge is waived. See U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).