Opinion
No. 4:99 CV 1233 CEJ, DDN
August 30, 2000
Dennis W. Fox, [COR LD NTC] St. Louis, MO, for Plaintiff.
Wesley D. Wedemeyer, [COR LD NTC], OFFICE OF U.S. ATTORNEY, St. Louis, MO
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This action is before the court for judicial review of the final decision of the defendant Commissioner of Social Security denying plaintiff's applications for disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. § 401 et seq., and for supplemental security income benefits under Title XVI of the Act, 42 U.S.C. § 1381 et seq. The action was referred to the undersigned United States Magistrate Judge under 28 U.S.C. § 636(b) for a recommended disposition.
Application filed August 29, 1996. (Tr. 79)
Application filed November 25, 1996. (Tr. 88)
Plaintiff James R. Mack alleged in his applications that he became disabled, beginning on August 5, 1996, on account of depression and migraine headaches. (Tr. 79, 88). The applications were denied after initial consideration and after reconsideration. Following an evidentiary hearing an Administrative Law Judge (ALJ) denied the claims on May 13, 1997. The Appeals Council denied plaintiff's request for review and the decision of the ALJ became the final decision of the Commissioner of Social Security.
Under the Act, plaintiff must prove that he is unable to perform any substantial gainful activity due to any medically determinable physical or mental impairment which would either result in death or which has lasted or could be expected to last for a continuous period of at least twelve months. See 42 U.S.C. § 423(a), 1382c(a)(3)(A). In the 5-step analysis required by the Commissioner's regulations, see 20 C.F.R. § 404.1520 and 416.920, plaintiff must first prove that one or more medically determinable impairments prevents him from performing his past relevant work. See Pickner v. Sullivan, 985 F.2d 401, 403 (8th Cir. 1993)
The court must affirm findings of the ALJ that are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is evidence of sufficient quality that a reasonable person would accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Sinqh v. Apfel, 2000 WL 1191031 at *3 (8th Cir. Aug. 21, 2000). In reviewing the record, the court may not make its own findings of fact or substitute its judgment for that of the Commissioner. Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992). Nevertheless, when the court reviews the record for substantial evidence, it must review the entire record and consider whatever detracts from the weight of the evidence invoked by the ALJ Singh, supra; Piercy v. Bowen, 835 F.2d 190, 191 (8th Cir. 1987); see also Wilcutts v. Apfel, 143 F.3d 1134, 1136-37 (8th Cir. 1998)
The ALJ's decision.
Following the evidentiary hearing, the ALJ made the following relevant findings of fact and conclusions of law:
1) plaintiff met the disability insurance status requirements on the alleged onset date and through the date of the ALJ's opinion;
2) he has not performed substantial gainful employment since August 5, 1996;
3) plaintiff suffers from severe depression and migraine headaches;
4) plaintiff has no impairment which, whether considered individually or in conjunction with another impairment, is listed in, or is the medical equivalent of an impairment listed in, the Commissioner's List of Disabling Impairments;
5) plaintiff has no exertional limitation and has the residual functional capacity for the nonexertional requirements of work, except for work involving extreme heat, bright lights, more than occasional public contact, extended concentration, or detailed instructions;
6) plaintiff is able to perform his past work as a maintenance man or housekeeper which is not prevented by the limitations described in ¶ 5, above;
7) in consequence, plaintiff is not disabled under the Act. (Tr. 19)
The administrative record.
As early as August 22, 1994, plaintiff was diagnosed as having vascular headaches, which would wake him early in the morning; when the headaches ended, he was painfree. (Tr. 127-28)On September 6, 1994, plaintiff was treated for headaches by Dr. Carlos Pizzimbono. The doctor noted that there were no neurological deficits. (Tr. 135). On September 27, 1994, plaintiff had a normal brain MRI. (Tr. 117). On October 7, 1994, James Goldring, M.D., examined plaintiff and diagnosed migraines. Plaintiff complained that they occurred every other day, which rendered him unable to work or drive. (Tr. 152). On October 24, 1994, Dr. Goldring reported that medication gave plaintiff relief from the migraines, but that they returned when he stopped taking the medication. (Tr. 151)
On April 27, 1995, plaintiff complained of right-sided headaches and stress, of being unemployed, and of not sleeping. (Tr. 150). On May 4, 1995, plaintiff complained of hand discomfort, but no pathology was found. A neurological examination was normal. (Tr. 134). In June 1995, plaintiff reported that he was getting relief from the headaches. They were "slowing down." (Tr. 149)
On September 1, 1995, plaintiff was examined for numbness in his left arm and migraines. Possible neurologic symptoms associated with migraine headaches and left carpal tunnel syndrome were considered. (Tr. 126)
On September 20, 1995, plaintiff again complained of headaches. (Tr. 148). Dr. Goldring reported in a letter that the short length of plaintiff's headaches indicated that he possibly suffered from "cluster headaches." Plaintiff had high blood pressure and Dr. Goldring thought that plaintiff's headaches might be relieved if his blood pressure was better controlled. (Tr.
On September 27, 1995, plaintiff was examined by Robert Corday, M.D. Plaintiff complained about being fired from his job for lying on his job application. (Tr. 122-24). Also on September 27, 1995, plaintiff saw Dr. Pizzimbono who diagnosed migraine headache and hypertension controlled with medication. (Tr. 133)
In November 1995, plaintiff was still having headaches, but was sleeping better. (Tr. 146). In December 1995, plaintiff said that he had no improvement in his headaches and that they lasted 20 to 25 minutes. He had just been laid off from work. (Tr. 145)
On May 8, 1996, plaintiff was hospitalized with a report that he had "cut [himself] bad" on May 7. Plaintiff stated that he had been depressed because he had been fired from his job for lying on his application. Plaintiff said he had thoughts of suicide, but had no plan or intent. After ingesting a "large amount of alcohol" and smoking marijuana, plaintiff "believed that he saw an air bubble moving up his arm. He therefore decided that he needed to get the air bubble out before it hit his heart." So, he cut his armpit area severely. Plaintiff had an extensive drug and alcohol abuse history and stated that for the past two years, he had been smoking one to two joints of marijuana every day. Plaintiff said that he enjoyed movies and dinner out and had "quite a few close friends." (Tr. 108).
During this hospitalization, Dr. Jay Englehart noted that plaintiff was in no apparent distress, was cooperative, and had a normal mental examination. Dr. Englehart suspected that plaintiff might not be telling the truth. Plaintiff denied having thoughts of suicide. Dr. Englehart diagnosed: drug-induced psychosis; a first moderate episode of major depression; a history of marijuana abuse; probable personality disorder with antisocial traits; an history of migraine headaches; and severe work problems. He was discharged from the hospital on May 9, 1996, after a night of observation. Dr. Englehart opined that plaintiff did not pose a danger to himself or others. (Tr. 108-09) Upon discharge, plaintiff was bright and pleasant and told a nurse that he would never try suicide again, that he was bitter from losing his job, but that he wanted to go on with life. (Tr. 113)
Before he was discharged from the hospital, on May 9, 1996, plaintiff was examined by Irwin Plisco, M.D. in the psychiatric service. Plaintiff advised that he was not suicidal or homicidal and did not usually hallucinate. He stated he cut his armpits after drinking and taking drugs to treat a headache. Plaintiff's physical examination was normal, except for his lacerations. He tested positive for cocaine and marijuana. Dr. Plisco diagnosed acute psychosis; no substance abuse; lacerations to the shoulder; chronic migraine headaches; a prior gunshot wound to the groin and thigh; a left thumb laceration; and no hypertension. (Tr. 110-12)
On May 30, 1996, Dr. Englehart reported that plaintiff was feeling well, his work was going well, his mood was good, and plaintiff slept better. (Tr. 164)
On June 28, 1996, Dr. Pizzimbono examined plaintiff. He diagnosed migraine headache and depression which was controlled by medication with no suicidal or homicidal thoughts. (Tr. 130)
In July 1996, Dr. Goldring noted that plaintiff's headaches responded very well to Prednisone. (Tr. 144). On July 7, 1996, Dr. Englehart noted that plaintiff was taking steroids for his cluster headaches, had a "great" mood, had ceased using alcohol or drugs which contributed to his migraines, and was in better shape financially because he had acquired a maintenance job. (Tr. 163)
In August 1996, plaintiff was laid off from his temporary job at Hope House.
On August 26, 1996, plaintiff reported that he had fewer chronic cluster headaches, had a decreased libido, was now finished with counseling, was out of work, and was out of money. (Tr. 143)
In a Disability Report, dated August 29, 1996, plaintiff stated that he could not work because his migraine medication made him so drowsy that he would fall asleep at work. He said that he had migraines that lasted between an hour and one week in duration. (Tr. 178)
On September 9, 1996, Dr. Englehart completed a written questionnaire in which he stated that plaintiff had a history of alcohol abuse and severe depression. Plaintiff's diagnosis was major depression in partial remission — currently much improved on Zoloft with very few side effects. (Tr. 162)
On September 30, 1996, plaintiff was examined by psychologist Sherman Sklar, P.C. Plaintiff told Dr. Sklar that he was having trouble controlling his anger, especially when he had migraines as often as three times per week. He said he mostly watched television and slept. When he felt good, he visited his mother and sister and played cards. Plaintiff talked about his work experience with anger. He felt that he was treated unfairly when he last worked. Plaintiff was able to understand and remember simple tasks. Dr. Sklar opined that plaintiff would have problems with concentration, persistence, and relationships because of his anger and pain. He believed that plaintiff's ability to adapt to his environment was severely impaired. He diagnosed major recurrent depressive disorder, alcohol abuse, migraine headaches and occupational dysfunction. (Tr. 153-56)
On October 9, 1996, Dr. Englehart reported that plaintiff's mood was good, he had headaches "off and on," he slept "ok" most nights, his energy was "ok," but he had little motivation. Plaintiff was receiving unemployment benefits and had been doing maintenance work on a temporary basis. (Tr. 161)
On December 11, 1996, Dr. Englehart also completed a written questionnaire. He stated that plaintiff's medication for depression caused chronic low energy and lack of motivation. Plaintiff continued to have concentration problems. He suffered from mild major depression and alcohol abuse in remission. (Tr. 160)
At the administrative hearing before the ALJ, plaintiff testified that he last worked in August 1996. He could not work because of headaches, which come without warning two to four times a week, and because he could not concentrate. (Tr. 31-32)
Plaintiff said that he drove twice a week and visited his sister once a month. (Tr. 35-36). He could not concentrate enough to read and that the television was too bright to watch. He did no household chores, outdoor hobbies, or shopping. (Tr. 36)
Plaintiff denied using any drugs or alcohol at the time of the hearing. (Tr. 37)
Discussion.
Plaintiff alleges he was disabled on and after August 5, 1996, because of migraines and depression. He argues that when the ALJ evaluated his residual functional capacity (RFC), he failed to properly assess the opinions of the treating physicians as well as the opinions of the examining consultative psychologist. As plaintiff argues, the ALJ credited the findings of the nonexamining consultative physicians (the "DDS medical reviewers") over the examining physicians. See Tr. 18, 47-59, 66-78.
The law on this issue was recently restated:
A treating physician's opinion should not ordinarily be disregarded and is entitled to substantial weight. See Ghant v. Bowen, 930 F.2d 633, 639 (8th Cir. 1991) A treating physician's opinion regarding an applicant impairment will be granted controlling weight, provided the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record. See Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). By contrast, "[t]he opinion of a consulting physician who examines a claimant once or not at all does not generally constitute substantial evidence." Id. Likewise, the testimony of a vocational expert who responds to a hypothetical based on such evidence is not substantial evidence upon which to base a denial of benefits. See [Nevland v. Apfel, 204 F.3d 853, at 858 (8th Cir. 2000)]Singh, 2000 WL 1191031 at *3 However, a treating physician's opinion may be discredited when it is heavily based on subjective complaints of the claimant which the ALJ lawfully discredited and when it is contrary to the weight of the objective evidence. Rankin v. Apfel, 195 F.3d 427, 430 (8th Cir. 1999)
The ALJ credited the opinions of the non-examining DDS medical reviewers because they were "consistent with the evidence." (Tr. 18). The ALJ found that the opinions of the treating doctors either did not support the existence of a disabling condition or were based on plaintiff's subjective complaints. The ALJ found that plaintiff's subjective complaints were not credible, because, when they were "weighed against objective medical evidence and other relevant information bearing on the issue of credibility," he found them to be "exaggerated" as to the severity of his impairments. (Tr. 17)
It was the duty of the ALJ to assess the credibility of plaintiff's subjective complaints and to determine their severity according to factors which include plaintiff's prior work record; the observations of third parties, including physicians; his daily activities; the characteristics of any pain he actually experiences; any precipitating and aggravating factors; the dosage, effectiveness and side effects of his medication; and any functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984), vacated, 476 U.S. 1167 (1986), adhered to on remand, 804 F.2d 456 (8th Cir. 1986), cert. denied, 482 U.S. 927 (1987). The ALJ may lawfully discredit testimony about subjective complaints, based upon inconsistencies in the evidence as a whole. Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995)
Regarding his allegations of disabling migraine headaches, plaintiff stated that he had migraines two to four times a day (Tr. 32), lasting from one hour to one week. (Tr. 178). Against these subjective statements is evidence that MRI and CT scans of plaintiff's head were negative. (Tr. 116, 117). In 1994, plaintiff told Dr. Frazer that his headaches woke him at three or four in the morning. (Tr. 127-28). In 1994, Dr. Goldring reported good results with migraine medication. (Tr. 151). In June 1995, plaintiff's headaches were slowing down. (Tr. 149)
In September 1995, Dr. Goldring stated that plaintiff's headaches were very brief and could be related to his high blood pressure. (Tr. 147). In November 1995, plaintiff was still having headaches, but was sleeping better. (Tr. 146). In December 1995, plaintiff reported that his headaches lasted 20 to 25 minutes. (Tr. 145). In May 1996, plaintiff said that he was feeling well and that work was going well. (Tr. 164). In July 1996, Dr. Goldring said that plaintiff's headaches responded well to Prednisone. (Tr. 144). In July 1996, plaintiff told Dr. Englehart that he had stopped using drugs or alcohol which contributed to his headaches. His mood was "great." (Tr. 163). On August 26, 1996, plaintiff reported that his headaches were less frequent. In October 1996, plaintiff told Dr. Englehart that he had headaches "off and on." (Tr. 161).
Also, during the period 1994 through 1996, plaintiff worked off and on as a maintenance man and housekeeper. (Tr. 94)
The ALJ properly considered that plaintiff worked during the time he said his headaches occurred. (Tr. 14-15). When a claimant has been able to work with an impairment, he is not later disabled under the Social Security Act by that impairment, unless he can prove that the impairment significantly worsened. See Orrick v. Sullivan, 966 F.2d 368, 370-71 (8th Cir. 1992). Plaintiff has failed to make such a showing.
The record indicates that plaintiff's headaches improved through 1996. While plaintiff reported to the state disability agency that his migraine medication caused him to sleep on the job (Tr. 178), he never reported this to his doctors and no doctor warned that the medication could cause such drowsiness. Also, while working, plaintiff reported that his symptoms lessened. (Tr. 163). When plaintiff was not working, during the period from April to December 1995, he reported disabling symptoms. (Tr. 145, 150) When he first started suffering from migraines, he had been fired from a 10-year job for lying on an application. When plaintiff found another job his symptoms lessened. (Tr. 149). When plaintiff cut himself and could not work, his symptoms returned. (Tr. 147). The undersigned finds that the record contains substantial evidence that supports the ALJ's finding that plaintiff has exaggerated the severity of his headaches.
The record also supports the ALJ's finding that plaintiff's subjective complaints about his mental condition were exaggerated. Plaintiff first saw a psychiatrist in September 1995. He described his anger over being treated unfairly at work and about being fired from his job. (Tr. 123-24). He did not seek more psychological treatment until he was admitted to the hospital in May 1996 for cutting his armpit with a steak knife after consuming cocaine, marijuana, and alcohol. (Tr. 108-09). Plaintiff later characterized this incident as a suicide attempt caused by depression. The record indicates that plaintiff was intoxicated, thought he saw an "air bubble" moving up his arm, and tried to release the air bubble before it reached his heart. The ALJ commented that this "incident sounds more like an accident than a suicide attempt." (Tr. 16). This comment by the ALJ is consistent with Dr. Englehart's description of the incident as a "drug-induced psychosis" which is not repeated in the record. Plaintiff's acts were not medically diagnosed by a doctor as a suicide attempt. (Tr. 109)
When discharged from the hospital on May 9, 1996, he was bright and pleasant and told a nurse that he wanted to go on with life. (Tr. 113). Dr. Englehart opined that plaintiff did not pose a danger to himself or to others. (Tr. 108-09). Also, on May 9, 1996, Dr. Plisco did not diagnose plaintiff with depression, but with "acute psychosis, rule out substance abuse." (Tr. 111-12).
Also, on May 30, 1996, Dr. Englehart noted that plaintiff was feeling well, his work was going well, his mood was good, and his sleep was better. (Tr. 164). In June 1996, Dr. Pizzimbono said that plaintiff's depression was controlled by medication. (Tr. 130). In July 1996, Dr. Englehart reported that plaintiff's mood was great, and that he was financially better because of his work. (Tr. 163). On September 9, 1996, Dr. Englehart diagnosed plaintiff with major depression in partial remission "currently much improved with Zoloft with very few side effects." (Tr. 162). In October 1996, Dr. Englehart said plaintiff's mood was good, but that he had little motivation. He had just been laid off. (Tr. 161). In December 1996, Dr. Englehart diagnosed plaintiff with mild major depression and alcohol abuse in remission. (Tr. 160)
A treating physician's opinion is generally afforded great weight, if it is supported by medical data. See 20 C.F.R. § 416.927(d)(2). Greater weight is afforded the opinions of treating physicians because these sources "are likely to be the medical professionals most able to provide a detailed, longitudinal picture" of a claimant's medical impairments and "may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone." Id. Dr. Englehart's findings do not indicate disabling depression.
Plaintiff has put great store in the report of Dr. Sklar, the psychologist, who found that he was more restricted in his functioning than did Dr. Englehart. The ALJ lawfully found that Dr. Sklar's opinions were not controlling as to plaintiff's alleged mental condition, because Dr. Sklar appeared to rely on plaintiff's subjective complaints which the ALJ found were not fully credible. (Tr. 17)
As the ALJ found, the record indicates that plaintiff's depression was mild and a reaction to specific adverse circumstances. Whenever plaintiff was out of work, he was more depressed and had more headaches. In his hearing, plaintiff did not describe how depression prevented him from working. (Tr. 33-34). The record indicates that plaintiff's depression was controlled by medication and, therefore, it is not disabling.Kisling, 105 F.3d at 1257.
The record of plaintiff's daily activities, as well other evidence in the record, supports the ALJ's finding that plaintiff can function despite his alleged mental impairments. Metz v. Shalala, 49 F.3d 374, 377 (8th Cir. 1995). Dr. Englehart's reports do not show the functional limitations plaintiff alleges. Without more, the mere existence of a mental impairment is not disabling. Dunlap v. Harris, 649 F.2d 637, 638 (8th Cir. 1981)
The record supports the ALJ's finding that plaintiff would not be precluded from performing his past relevant work on the basis of any mental impairment indicated by the record.
The ALJ found that plaintiff's testimony and statements about being limited in his activities were not credible. The record shows that plaintiff could care for his personal needs, visit with others, play cards, and work. Inconsistently, he testified that he did no household chores and could not work. The ALJ may discount a claimant's subjective complaints because of his motivation for seeking disability benefits. SeeGaddis v. Chater, 76 F.3d 893, 896 (8th Cir. 1996)
Plaintiff argues that the ALJ improperly disregarded evidence of the pain that he suffers. The relevant question is not whether or not plaintiff suffers pain, but whether plaintiff's subjective complaints and testimony about the amount of pain he suffers is sufficiently credible to prove that his pain prevents him from working. Pickner v. Sullivan, 985 F.2d 401, 404 (8th Cir. 1993) The ALJ in this case discredited plaintiff's testimony about the severity of his condition and gave legally sufficient reasons for doing so. Russell v. Sullivan, 950 F.2d 542, 545 (8th Cir. 1991)
It was the duty of the ALJ to determine plaintiff's residual functional capacity (RFC). 20 C.F.R. § 404.1546. RFC is "what [a claimant] can still do despite limitations," based on the entire record. See 20 C.F.R. § 404.1545 (a) and 416.945(a). Relevant evidence may include a claimant's description of his limitations, the observations of treating and examining physicians or psychologists, family, neighbors, or friends, and medical records. 20 C.F.R. § 404.1545 (a)-(c) and 416.945(a)-(c). The ALJ is to consider the total limiting effect of the claimant's impairments and related symptoms. 20 C.F.R. § 404.1545(e) and 416.945(e).
After considering all of the medical and nonmedical evidence in the record, the ALJ lawfully found that plaintiff had no exertional limitations and had the residual functional capacity to perform the nonexertional requirements of work except for work involving exposure to extreme heat or bright lights, or more than occasional public contact, extended periods of concentration, or detailed instructions. Plaintiff could understand, carry out, and remember simple instructions; respond appropriately to supervision, co-workers, and usual work situations; and deal with changes in a routine work setting. (Tr. 19)
The ALJ found that plaintiff's past relevant work as a maintenance man or housekeeper did not require the performance of work-related activities which would be precluded by the limitations in the RFC. (Tr. 19). A claimant who can return to his past relevant work is not disabled.Gaddis, 76 F.3d at 895.
Plaintiff now argues he cannot do his past relevant work, because, according to the Dictionary of Occupational Titles (DOT) this work required more than simple, repetitive tasks and the ALJ restricted plaintiff to performing only simple, repetitive tasks. However, the ALJ did not rely on the DOT or any other factual, evidentiary source for his findings about plaintiff's ability to perform his past work. The ALJ merely stated:
Based on the residual functional capacity described above, and the occupationally significant characteristics of a maintenance man and housekeeper, the undersigned finds that the claimant can perform work similar to his past relevant work.
* * *
6. The claimant's past relevant work as a maintenance man or housekeeper, do[es] not require the performance of work-related activities precluded by the above limitations. ( 20 C.F.R. § 404.1565 and 416.965)
(Tr. 18, 19). The record is without substantial evidence that supports the ALJ's finding that plaintiff, with his limitations, can perform his past relevant work.
In 20 C.F.R. § 404.1565 and 416.965, cited by the ALJ, the Commissioner's regulations indicate that information about the claimant's past relevant work can be obtained from the claimant and any other knowledgeable source. In his Vocational Report, plaintiff described his past work as involving responsibility for repairs and maintenance throughout the employer's facility, relating to carpentry, painting, plumbing, electrical, and HVAC (heating, ventilation, and air conditioning equipment) activities. He operated hand-power tools and gauges for all building trades. He performed floor care which involved stripping and buffing. The work involved keeping the whole plant operating and making journal-type reports of daily activities. (Tr. 94-102). Plaintiff testified at the hearing not at all about the work requirements of his past employment. (Tr. 30-38). In fact, the undersigned can find no evidentiary, factual basis for the ALJ's finding that plaintiff's past relevant work could be performed without the limitations he applied to plaintiff: exposure to extreme heat or bright lights, more than occasional public contact, extended periods of concentration, and detailed instructions. (Tr. 19)
For these reasons, the undersigned concludes that the findings of the ALJ that plaintiff, with his residual functional capacity and his limitations, can perform his past relevant work. The action should be remanded to the Commissioner for further hearing and findings either on the nature of plaintiff's past relevant work and plaintiff's ability to perform it or on plaintiff's ability to perform any other substantial gainful activity in the national economy, in which case the testimony of a vocational expert would likely be needed.
RECOMMENDATION
For these reasons, it is the recommendation of the undersigned United States Magistrate Judge that the appeal of plaintiff James R. Mack from the denial of benefits under the Social Security Act be sustained. The final decision of the defendant Commissioner of Social Security should be reversed and the case remanded under Sentence 4 of 42 U.S.C. § 405(g) for further hearing.
The parties are advised that they have ten days in which to file written objections to this Report and Recommendation. The failure to file timely, written objections may waive the right to appeal issues of fact.