Opinion
No. CV-20-00235-TUC-JCH (DTF)
04-29-2021
Diana L Olney, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Diana Olney (Olney) brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner) that found she was not disabled. (Doc. 1.) The parties have fully briefed this issue. (Docs. 16, 17, 18.) This matter was referred to the undersigned United States Magistrate Judge for report and recommendation. (Doc. 12.) As more fully set forth below, based on the pleadings and the submitted administrative record (AR), the Court recommends that the district court, after its independent review, vacate the decision of the Commissioner and remand for further proceedings because the ALJ failed to evaluate the reasons for Olney's noncompliance with treatment.
I. BACKGROUND
Olney was born in 1969 (AR 46, 183.) She completed high school and some college. (AR 46.) She had no relevant work experience. (AR 54-56, 64.)
The record notes that Olney received a GED. (AR 225, 518.) This difference is irrelevant.
On February 14, 2017, Olney protectively filed a Title XVI application for Supplemental Security Income (SSI) alleging disability beginning April 9, 2015. (AR 183-91.) On June 14, 2017, Olney's claims were initially denied. (AR 75, 114.) On September 13, 2017, Olney's claims were denied on reconsideration. (AR 91, 125.) Olney filed a request for hearing. (AR 129.) On January 30, 2019, an administrative hearing was held before Administrative Law Judge (ALJ) Peter J. Baum. (AR 41.)
Olney alleged disability because of post-traumatic stress disorder (PTSD), depression, psychosis, panic attacks, and migraines. (AR 224.) In her appeal, Olney focuses on her mental health issues. (Doc. 16.)
From 2013 through 2018, Olney received mental health treatment for depression, suicidal ideations, anxiety, and bipolar disorders. (AR 493, 825, 1461.) During that time, she was hospitalized multiple times for suicidal ideations and depression. (AR 322, 355, 391, 401, 412, 1165, 1171, 1179, 1183, 1187, 1194, 1196.) She seemed to get worse after witnessing her boyfriend shoot himself, resulting in his death. (AR 418.) Olney received medication and other therapies during her treatments. (AR 420, 421, 425, 427, 1213, 1296.) However, at times she stopped taking her medications or adjusted the dosage. (AR 1097, 1179, 1185, 1240.)
In her adult function report completed on March 23, 2017, Olney reported that she felt "tired and sick most of the time" and that she was "in and out of the hospital every month with PTSD and depression and on medications that tranquilize [her] and make [her] confused." (AR 233.) She also reported that she would self-mutilate for an hour before getting out of bed. (AR 234.) She conveyed that most things were "a challenge" but that she still did them. (AR 234-35.)
On March 27, 2017, Marceline Waggoner filled out a third-party adult function report. (AR 242.) Waggoner had little insight to Olney, reporting "unknown" to many of the questions. (AR 244-48.) She only met with Olney once per month. (AR 242.)
On December 6, 2018, Robert Zitterman wrote a letter explaining that he had known Olney for three years and that he had seen her struggle with her disorders. (AR 287.) He stated that Olney had been "in and out" of the hospital "numerous times for suicide attempts and depression." Id.
On December 18, 2018, treating nurse practitioner Banchs, MSN, ASNP, filled out a checkbox form with her opinions on Olney's mental limitations. (AR 1324-25.) Banchs opined that Olney was limited in all twenty areas. Id. She did not provide an elaboration or explanation in the space provided. (AR 1325.)
At the hearing, Olney and a Vocational Expert (VE) John Komar testified. (AR 42-43.) Olney testified regarding her background and symptoms. (AR 46-63.) VE Komar testified that there were jobs available based on the ALJ's hypothetical limitations. (AR 65-66.) He provided the following examples: industrial cleaner, furnace cleaner, or automobile detailer. (AR 66-67.) The VE also noted that Olney would be unable to sustain a job if she were to be off task twenty percent of the time, as hypothesized by her treating nurse practitioner. (AR 67.) He also noted that with these types of jobs an employee would lose their job "if the person doesn't . . . learn how to do [it], and that if the person . . . does learn, but then wanders off with their own style . . . or their own way of accomplishing it which is different from the boss[']s," especially if this was "a repeated activity." (AR 70-71.)
On April 1, 2019, the ALJ issued his unfavorable decision denying Olney's claims. (AR 33.) At step one, the ALJ determined that Olney had not engaged in substantially gainful activity since February 14, 2017. (AR 17.) At step two, the ALJ determined Olney had the following severe impairments: anxiety disorder, depressive disorder, PTSD, and personality disorder. Id. He did not consider Olney's migraines, obesity, or chronic back and neck pain to be severe. (AR 18.) At step three, the ALJ found that Olney did not have an impairment or combinations of impairments that meets or is equal in severity to one listed in 20 C.F.R. Part 404, Subpart P, App. 1. Id.
After step three and before step four, the ALJ determined that Olney had the residual functional capacity (RFC) to "perform a full range of work at all exertional levels" with the following non-exertional limitations: can make simple decisions, maintain simple schedule, and complete simple tasks, will likely "put off coworkers and the general public," can have "incidental, superficial contact" if "direct ongoing collaboration with others is not involved" and "there is no expectation to resolve conflicts or persuade other to follow demands," "difficulty adhering to treatment plans and in a work setting, may have similar passive/aggressive resistance to following work procedures." (AR 22.) The ALJ stated that "a review of the overall objective evidence failed to support [Olney]'s allegations" related to the intensity, persistence, and limiting effects of her symptoms. (AR 23.) He also summarized Olney's medical record, including instances of noncompliance with treatment. (AR 23-28.)
Further, the ALJ considered the third-party statements by Robert Zitterman and Marceline Waggoner "to the extent that it shows [their] perception of [Olney]'s impairments." (AR 28-29.) He also assessed consulting opinion evidence from Glenn Marks, Ph.D. (AR 29) The ALJ gave this opinion some weight but believed other opinion evidence was more consistent with the objective evidence. Id. Next, the ALJ evaluated the opinion of treating nurse practitioner Patricia Banchs, which he gave "reduced" weight because Olney's history was extensive and she had a "poor history of treatment and compliance with medication." (AR 29-30.)
At step four, the ALJ concluded that Olney did not have any past relevant work. (AR 31.) At step five, the ALJ resolved that there were significant numbers of jobs in the national economy that Olney could perform. Id. To make this determination, the ALJ relied on the VE's testimony regarding number of jobs and that "as long as the individual was getting the job done that would be the determining factor." (AR 32.)
On April 24, 2020, the Appeals Council denied Olney's request for review thus making the ALJ's unfavorable decision the Commissioner's final decision for purposes of this Court's review under §§ 405(g) and 1383(c)(3). (AR 1-4.) On June 2, 2020, Olney filed a complaint challenging the ALJ's unfavorable decision. (Doc. 1.) This Court has jurisdiction pursuant to §§ 405(g) and 1383(c)(3).
II. ISSUES ON REVIEW
Olney raises four issues, which this Court shall review in the following order. First, she asserts that the ALJ did not properly evaluate her "purported non-compliance with treatment." (Doc. 16 at 1, 20-24.) Second, she contends that the ALJ failed to acknowledge that her psychiatric hospitalizations alone were "inconsistent with sustained, full-time work for at least one year." Id. at 1, 17-20. Third, she argues that there is not substantial evidence to support the ALJ's step-five finding because the jobs identified by VE's were inconsistent with the ALJ's RFC finding. Id. at 8-16. Finally, she maintains that the ALJ did not provide germane reasons to reject treating nurse practitioner Patricia Banchs's opinions. Id. at 2, 24-25.
III. STANDARD OF REVIEW
A person is disabled if their "physical or mental impairment or impairments are of such severity" that they are unable to do both their previous work and, considering their "age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists" in their immediate area, or whether a specific job vacancy exists for them, or whether they would be hired if they applied for work.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is "more than a mere scintilla but less than a preponderance." Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
The court may overturn the decision to deny benefits only "when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is because the ALJ "and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney ex rel. Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); see Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, "cannot be affirmed simply by isolating a specific quantum of supporting evidence." Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). Even if the ALJ made an error, courts may affirm if the error was harmless, in other words that it was "inconsequential to the ultimate nondisability determination." Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). Courts cannot "affirm the denial of benefits on a ground not invoked by the Commissioner in denying the benefits originally." Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (quoting Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001)); see Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015).
IV. DISCUSSION
Evaluation of Noncompliance with Treatment
Olney contends that the ALJ failed to make any finding regarding the reasons why she was purportedly noncompliant with medical treatment. (Doc. 16 at 20.) This Court agrees.
To receive benefits, claimants "must follow treatment prescribed by [their] medical source(s) if th[e] treatment is expected to restore [their] ability to work." 20 C.F.R. § 416.930(a). "Where a claimant provides evidence of a good reason for not taking medication for her symptoms, her symptom testimony cannot be rejected for not doing so." Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); see Trevizo v. Berryhill, 871 F.3d 664, 679-80 (9th Cir. 2017). An ALJ must consider why a claimant has rejected treatment. Sivilay v. Comm'r of Social Sec. Admin., 32 Fed. App'x 911, 914 (9th Cir. 2002). Acceptable reasons include mental impairment that cause an individual to not be aware that they had a disorder that requires treatment or that the medication causes side effects that are less tolerable than the symptoms. S.S.R. 16-3p.
Here, the ALJ noted that Olney "was not always complaint with her medications." (AR 28.) He also stated that when Olney was compliant with treatment "she was observed to be cooperative and calm during her appointments with improved stable mood." Id. He also acknowledged Olney had "exhibited symptoms related to anxiety, depression, PTSD and a personality disorder" and reasonably had "experienced some side effects as a result of her medication," but he stated that "any allegation of greater limitation simply cannot be supported by the overall objective evidence." Id. The record shows that Olney had rejected medication because she believed it was not for her but was instead meant for another patient in the hospital. (AR 484, 487.) Other times, she reported stopping medications because she did not "want to be on drugs," did not believe the medications were "helping," or was concerned about side effects. (AR 440, 669, 686, 995, 1179, 1213.) It is possible she was noncompliant with medication because of the side effects of the medication or her diagnoses. The ALJ did not expressly consider these reasons for Olney's noncompliance. As such, the ALJ erred. See Trevizo, 871 F.3d at 679-80; Smolen, 80 F.3d at 1284.
The Court must consider if the issue is harmless. See Ford, 950 F.3d at 1154. Olney's noncompliance with treatment was a significant factor in the ALJ's analysis. Because the ALJ used Olney's noncompliance as a basis for discounting her hospitalizations, Banchs's opinion, Olney's statements, and Dr. Marks's opinion (AR 23, 25-26, 28-30), it was not "inconsequential to the ultimate nondisability determination." See id. Thus, the error was not harmless.
Accordingly, this Court recommends remanding this issue back to the ALJ to consider if Olney had a good reason for her noncompliance with treatment. Because this issue requires remand, the district court could stop its analysis of the issues here and just consider the appropriate remedy.
Consideration of Frequent Hospitalizations
Olney had multiple hospitalizations for suicidal ideations. (AR 322, 355, 391, 401, 412, 1165, 1171, 1179, 1183, 1187, 1194, 1196.) These hospitalizations ranged from three to nine days, averaging approximately one day per week during 2017. Id. An RFC assesses an individual's ability to work on a regular and continuing basis. S.S.R. 96-8p. "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." Id. The Social Security Act provides that a person is disabled if they are "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A).
Olney argues that her hospitalizations alone were sufficient to show that she could not have sustained full-time work during 2017. (Doc. 16 at 19.) The Commissioner's sole argument rests on the ALJ's ability to discount these hospitalizations because Olney failed to comply with treatment. (Doc. 17 at 11-12.) Thus, the consideration of the noncompliance with treatment is dispositive here. The Court has already considered whether the ALJ appropriately considered Olney's noncompliance with treatment above and shall not repeat its conclusions. Accordingly, if the district court finds that the ALJ appropriately considered the noncompliance, then it should affirm the ALJ here. If it agrees that the ALJ erred in the consideration of noncompliance of treatment, then it should find the ALJ also erred here and continue to the appropriate remedy.
Vocational Expert's Testimony
Olney claims that the VE's testimony does not provide substantial evidence for the ALJ's determination that there are significant numbers of jobs that Olney can perform. (Doc. 16 at 11.) Specifically, Olney contends that, according to the VE, the ALJ's RFC finding that she may be resistant to work procedures precludes most jobs. Id. at 12-13.
ALJs may call a VE to testify as to what available jobs claimants may perform given their RFCs. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014) (quoting Tackett, 180 F.3d at 1101). Hypotheticals must be accurate, detailed, and supported by the medical record. Id.
Here, during the hearing, the ALJ questioned the VE regarding available employment for a person with the RFC he later adopted. (AR 64-65.) This included the limitation that the person "in a work setting, may have similar passive aggressive resistance to following work procedures." (AR 65.) The VE testified there were positions for a person with Olney's history and limitations. (AR 66.) Olney's attorney then cross-examined the VE about "how many times" someone could "choose" to not follow work procedures before they would be fired. (AR 69.) The VE later opined that there were "so many variables involved," but he acknowledged that if it was repeated "the person wouldn't be able to sustain employment." (AR 71.)
The ALJ found that Olney had an RFC to perform work at all exertion levels with non-exertional limitations. (AR 22.) The ALJ also noted that Olney "has difficulty adhering to treatment plans and in a work setting, may have similar passive/aggressive resistance to following work procedures." Id. He recognized the VE's testimony that willful resistance would likely result in termination, but that "it would be a matter of the type and attitude of the supervisor to make that determination." (AR 32.) The ALJ then concluded that there were significant numbers of work in the national economy, such that Olney was not disable at step five. (AR 32.)
The Court does not agree with either party's interpretation of the ALJ's finding and, as with many things, believes the truth is in the middle. The Commissioner characterizes the finding that Olney may be resistant as an acknowledgement. (Doc. 17 at 18.) Olney states that the ALJ found that "she would resist following work procedures generally." (Doc. 16 at 12.) Based on the paragraph and syntax, the ALJ was describing a limitation that Olney may be resistant to following work procedures without denoting frequency or perceived willfulness. (AR 22.) The Court finds that the ALJ properly relied on the VE's testimony regarding available employment when considering all the limitations he later adopted. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (finding that considering answer to hypothetical containing all limitations was proper). The ALJ relied on the VE's testimony, and his hypothetical was detailed, supported by medical records and accurate. See Garrison, 759 F.3d at 1011.
Olney also imputes this expansive finding to Drs. Foster-Valdez and Novak. (Doc. 16 at 10-11.) The Court finds similar issue with expanding the doctors' findings, especially as the ALJ used their language. (Compare AR 22 with AR 88, 106.)
The Court recommends that the district court find the ALJ did not err as to this issue. However, if the district court disagrees, it must consider whether the error was harmless or not. See Hernandez v. Berryhill, 707 Fed. App'x 456, 458 (9th Cir. 2017).
The Commissioner argues that if there were error it would be harmless because "it is obvious that the ALJ determined that [Olney] did not have an 'attitude problem' that would preclude work." (Doc. 17 at 20.) This is insufficient. If the ALJ did find that Olney would repeatedly and willfully resist work procedure, the hypothetical to the VE would be incomplete and would potentially change the ultimate determination. Thus, this Court would recommend remanding for a rehearing if the district court finds that the ALJ erred in its consideration the VE's testimony.
Rejection of Banchs's Opinion
Treating nurse practitioner Banchs filled out a checkbox form with her opinions on Olney's mental limitations. (AR 1324-25.) In response to each question, Banchs opined that Olney was limited in some way; she found that Olney could not perform the following actions: traveling in unfamiliar places or using public transit, working in coordination with or proximity to others without being distracted by them, carrying out detailed instructions, and understanding and remembering detailed instructions. Id. Banchs also noted that Olney would have noticeable difficulty at least twenty percent of the time in the following: remembering locations and work-like procedures, maintaining attention and concentration for extended periods of time, sustaining ordinary routine without special supervision, completing normal workday or week without interruptions from psychological-based symptoms, accepting instructions and responding appropriately to criticism from supervisors, getting along with peers without distracting them, being aware of normal hazards and taking appropriate precautions. Id. She failed to provide any elaboration in the space provided. (AR 1325.)
The ALJ gave treating nurse practitioner Banchs's opinion "reduced weight" because the opined limitations were "extreme" and inconsistent with the overall objective evidence. AR 30. Specifically, the ALJ pointed to Olney's extensive history of anxiety, depression, PTSD, and personality disorder and to Olney's success when compliant with treatment. Id.
Olney contends that the ALJ rejected Banchs's opinion absent sufficient germane reasons. (Doc. 16 at 24.) ALJs are required to provide germane reasons for rejecting a lay witness's testimony, such as a nurse practitioner. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). Merely being a lay witness or other source is not a germane reason for rejecting testimony. Cf. Smolen, 80 F.3d at 1289 (rejecting denial of lay witness testimony based on their status as family member as germane reason). "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [his] interpretation thereof, and making findings." Cf. Tommasetti, 533 F.3d at 1041 (quoting Magallanes, 881 F.2d at 751) (discussing higher standard of rejecting treating physician's opinion).
Olney renews her argument that the ALJ improperly considered compliance with treatment. (Doc. 16 at 24.) This argument is addressed above and as such will not be considered here. If the district court agrees that the ALJ failed to consider the reasons for noncompliance, then it must consider if the ALJ provided sufficient alternative grounds for his decision. See Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a). Thus, the determination would rest on whether the ALJ provided other sufficient germane reasons for discounting Banchs's opinion.
Olney also argues that an extensive history of anxiety, depression, PTSD, and personality disorder is not a logical basis for rejecting an opinion that she is limited by mental illness. Id. However, what the ALJ said is that Banchs's opinion was inconsistent with the overall objective evidence, then pointed to the extensive history that the ALJ found supported the RFC findings. (AR 30.) The ALJ first provided an extensive and detailed summary of the facts and his interpretation of them, which Olney has not attacked. Inconsistency with the objective medical record is a germane reason to discount an opinion. See Bayliss, 427 F.3d at 1218. As such, the ALJ provided a sufficient germane reason for reducing the weight of Banchs's opinion because it was inconsistent with the other objective evidence.
The Court recommends that the district court find the ALJ did not err. However, if the district court disagrees, it must consider whether the error was harmless or not. See Molina, 674 F.3d at 1121-22.
Olney argues that rejection of Banchs's opinion was harmful because "[m]any of those opinions are manifestly work-preclusive." (Doc. 16 at 25.) The Court is inclined to agree. If the ALJ were to credit Banchs's opinion, then Olney's RFC would need to be amended account for the limitations listed. (AR 1324-25.) Further, the VE's testimony would suggest that there would not have been sufficient jobs available for Olney. (AR 73.) Accordingly, this Court would recommend remanding for a rehearing if the district court finds that the ALJ erred in discounting Banchs's opinion.
V. REMEDY
Olney requests an award of benefits. (Doc. 16 at 25.) The Commissioner argues that, if there is reversible error, the appropriate course is to remand for further investigation or explanation. (Doc. 17 at 21.)
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). The proper course is generally to remand to the agency for additional investigation or explanation. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). Under a "rare exception" to this rule, the Court may remand for an immediate award of benefits after conducting a three-part inquiry, often labeled the "credit-as-true" rule:
First, [the Court] asks whether the ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion. Next, [the Court] determines whether there are outstanding issues that must be resolved before a disability determination can be made, and whether further administrative proceedings would be useful. When
these first two conditions are satisfied, [the Court] will then credit the discredited testimony as true for the purpose of determining whether, on the record taken as a whole, there is no doubt as to disability.Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017) (internal quotation marks and citations omitted). The Court has discretion to remand for further proceeding even if it reaches the third step. Id. "Where an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency." Id. (quotation marks and alterations omitted).
Here, the Court recommends that the district court find that the first step is satisfied. The ALJ failed to consider Olney's reasons for not complying with medical treatment.
Applying step two, the Court recommends that the district court find that there is an outstanding issue that must be resolved before a disability determination can be made. Accordingly, this matter should be remanded for the ALJ to consider the credibility of Olney's reasons for not complying with medical treatment. In all other respects, the ALJ's decision was thorough, detailed, and without error. However, because the noncompliance with treatment was significant to the ALJ's decision, specifically regarding consideration of Banchs's opinion, Olney's statements, Olney's hospitalizations, and the medical opinions, the ALJ must consider why she did not comply with treatment and the credibility of those reasons. Further administrative proceedings to consider only this issue would be useful.
VI. RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that the district court, after its independent review, enter an order vacating the Commissioner's final decision and remanding this matter for proceedings consistent with its opinion.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Fed. R. App. P., should not be filed until entry of the district court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a, d), 72(b). Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No reply briefs shall be filed unless the district court grants leave to do so. The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV 20-00235-TUC-JCH. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
Dated this 29th day of April, 2021.
/s/_________
Honorable D. Thomas Ferraro
United States Magistrate Judge