Opinion
CV-20-00442-TUC-RM (BGM)
01-26-2022
Lydia Trinidad, Plaintiff, v. Kilolo Kijakazi, [1]Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
HONORABLE BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE
Currently pending before the Court is Plaintiff Lydia Trinidad's Opening Brief (Doc. 22). Defendant filed her Answering Brief (“Response”) (Doc. 23), and Plaintiff replied (“Reply”) (Doc. 24). Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Compl. (Doc. 1).
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. Based upon the pleadings of the parties and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court deny Plaintiff's Opening Brief (Doc. 22).
Rules of Practice of the United States District Court for the District of Arizona.
I. BACKGROUND
A. Procedural History
On July 14, 2017, Plaintiff protectively filed a Title XVI application for Supplemental Security Income (“SSI”) alleging disability as of February 1, 2015, due to temporomandibular joint dysfunction, back problems, depression, anxiety, joint tenderness, and post-traumatic stress disorder. See Administrative Record (“AR”) at 13, 16, 71, 73-74, 88, 90-91, 204, 226, 237, 250, 291, 310, 313. The Administrative Law Judge (“ALJ”) acknowledged “[t]he presumption of continuing non-disability” and determined that a change in “the criteria for evaluating mental disorders . . . effective January 17, 2017[, ] . . . constitute[d] a change in the applicable law since the 2015 decision” sufficient to rebut the presumption. Id. at 13, 32. The Social Security Administration (“SSA”) denied this application on January 23, 2018. Id. at 13, 71-87, 109-13. On February 22, 2018, Plaintiff filed a request for reconsideration, and on April 30, 2018, SSA denied Plaintiff's application upon reconsideration. Id. at 13, 88-103, 114-15, 122-25. On August 27, 2018, Plaintiff filed her request for hearing. Id. at 13, 137-40. On December 2, 2019, a hearing was held before ALJ Peter J. Baum. AR at 13, 29-47. On December 19, 2019, the ALJ issued an unfavorable decision. Id. at 10-22. On February 17, 2020, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on August 21, 2020, review was denied. Id. at 1-6, 198-201. On October 16, 2020, Plaintiff filed this cause of action. Compl. (Doc. 1). . . .
This is Plaintiff's second application for SSI benefits, her initial application was on June 20, 2012. AR at 13; see also Trinidad v. Berryhill, No. CV-16-0653-TUC-BGM, Order (Doc. 19) (D. Ariz. Sept. 27, 2018). On February 2, 2015, the Administrative Law Judge (“ALJ”) “concluded that the claimant had no severe medically determinable impairment” and on September 27, 2018, the district court affirmed the denial. Id. This decision was not appealed. See Trinidad v. Berryhill, No. CV-16-0653-TUC-BGM, Docket.
“Once a decision becomes administratively final, the Secretary's decision to reopen a claim is purely discretionary.” Davis v. Schweiker, 665 F.2d 934, 935 (9th Cir. 1982).
B. Factual History
Plaintiff was thirty-three (33) years old at the time of the alleged onset of her disability and thirty-seven (37) years old at the time of the administrative hearing. AR at 13, 29, 34, 71, 73-74, 90-91, 203, 237, 291, 310. Plaintiff is a high school graduate, who has taken some college courses. Id. at 34-37, 71, 227, 251. Prior to her alleged disability, Plaintiff worked at a call center, as a chile packer, and as a cook. Id. at 227, 240-43, 251-52.
1. Plaintiff's Testimony
a. Administrative Hearing
At the administrative hearing, Plaintiff testified that she had not worked since July 2017, nor had she looked for work. AR at 35. Plaintiff indicated that she had tried to apply for school at Cochise College. Id. Plaintiff was unclear regarding her previous college education and what classes she intended to take this time. Id. at 34, 36-37. Plaintiff further testified that Dr. Gill had noted that she would be able to work ten (10) hours per week so that she could be eligible for food stamps. Id. at 37. Plaintiff denied any income other than food stamps and family assistance which terminated when her son graduated from high school. Id. at 38. Plaintiff reported that her cousin drove her from Douglas, Arizona to Tucson for the hearing, and her son gave her money for gas. AR at 34-35, 37-38.
Plaintiff testified that her failure to follow-up with physician referrals is due to her forgetfulness, adding that she had no excuse. Id. at 38-40. Plaintiff reported “one instance where the doctor actually did the scheduling for [her] and set up the ride, and that's when [she] made it . . . to the doctors.” Id. at 39. Plaintiff further testified that her pain is so draining that she cannot manage to follow-up. Id. at 39-40. Plaintiff also testified that she sees Dr. Gill occasionally but admitted that she does not follow-up as Dr. Gill recommends. Id. at 39. Plaintiff claimed that she wants to get better, and her failures to pursue further treatment was not because she does not care. AR at 40.
Plaintiff testified that she is no longer taking opiates. Id. Plaintiff further testified that she takes Tylenol, Naproxen alternated with Meloxicam, and Magnesium. Id. at 40-41, 43. Plaintiff reported that her doctor switches her medications in an attempt to find the best combination. Id. at 41. Plaintiff also noted that her son put a pill reminder app on her cellular phone to remind her to take all her medications. Id. Plaintiff denied having a medical marijuana card, stating that she did not renew it. AR at 43. Plaintiff testified that her February positive drug screen for amphetamines was due to a prescription for Phentermine from Dr. Cayce, and that she is no longer taking it. Id. at 44-45.
Plaintiff estimated that she had stopped taking opiates in 2014 or 2015, but was unsure of precisely when she stopped taking the drugs. AR at 40. Plaintiff's Disability Report-Adult, submitted as part of the current 2017 application, lists Oxycodone as one of her prescribed medications. Id. at 229, 253. Oxycodone continued to be listed as a current medication in her February 22, 2018, and August 27, 2018, Disability Report-Appeal forms. Id. at 280, 287, 299, 307, 316.
Plaintiff further testified that she has good days and bad days but can brush her teeth and fix herself a sandwich. Id. at 41-42. Plaintiff also testified that she cannot cook food on a stove because she will forget to turn it off and burn the food. Id. at 42. Plaintiff acknowledged that her mental health symptoms improved after she stopped using opiates and marijuana. Id. at 43-44. Plaintiff testified that despite the improvement in her mental health, her hands still hurt constantly and are swollen, and she has sharp pains in her ankles. AR at 44.
Finally, Plaintiff testified that she is fearful and living alone, except for her son. Id. at 45.
b. Administrative Forms
i. Work History Report
Plaintiff completed a Work History Report. AR at 240-48. Plaintiff listed her work prior to the alleged onset of her disability to include call center customer service representative, cook at a fast-food restaurant, and chile plant worker. Id. at 240. Plaintiff described the chile packer position as full-time, where she stood and sorted damaged chiles from the good ones as they were coming down the conveyor belt. Id. at 241. Plaintiff noted that she “only lasted 2 days on the job and [] had to quit because [she] couldn't stand long doing the job.” Id. Plaintiff did not provide any further details about this position. Id.
Plaintiff reported that as a fast-food worker she made food and cleaned the lobby and bathrooms. AR at 242. Plaintiff described working in this position approximately four (4) hours per day, five (5) days per week. Id. Plaintiff did not provide any further details regarding this position. Id.
Plaintiff reported that she worked eight (8) hours per day, five (5) days per week, at the customer service job. Id. at 243. Plaintiff did not provide any further details regarding this position. Id.
ii. Function Report-Adult
On September 16, 2017, Plaintiff completed a Function Report-Adult. AR at 265-73. Plaintiff reported that she lived in a shelter with family. Id. at 265. Plaintiff described the limitations of her medical conditions as follows:
My hands hurt when gripping objects, feel soreness, pain in kness [sic] back arms and shoulders, intensafies [sic] when trying to do daily routines, intenifies [sic] the next day, memeroy [sic] loss, fog memory, fitiuge [sic], nerves system, twitch, constant muscle spasams [sic].Id. Plaintiff described her usual day to include waking up with stiff arms and hands and a sore jaw, then after approximately fifteen (15) minutes she is able to straighten her arms and tries to do household chores, but generally “limit[s] [her]self on daily activities.” Id. at 266. Plaintiff reported caring for her seventeen (17) year old son. Id. Plaintiff noted that her son and wife provide assistance to her. AR at 266. Plaintiff stated that prior to the onset of her conditions she could do “everything” including sports, daily chores, walking, running, and reading. Id. Plaintiff indicated that her sleep varies from too much to not enough and noted that she constantly twitches when sleeping. Id.
Plaintiff reported that she cannot lift her arms to reach hanging clothes, requires assistance putting on her bra, as well as getting in and out of the bathtub, and that her hair falls out, but does not otherwise have any problems with personal care. Id. at 267. Plaintiff noted that she relies on daily alarms to remind her to take her medication. Id. Plaintiff indicated that standing and brain fog prevent her from preparing her own meals. AR at 267.
Plaintiff reported that she tries to do household chores, such as sweeping, but “cannot move for a week following.” Id. at 268. Plaintiff further reported needing help or encouragement with everything and that she does not perform such tasks because everything hurts. Id. Plaintiff indicated that she goes outside daily and can ride in a car or use public transportation. Id. Plaintiff noted, without explanation, that she does not go out alone. Id. Plaintiff stated that she does not drive because “[her] hands often hurt[, ] reaction time is bad, fuzzy brain, [and] [her] kness [sic] often lock.” AR at 268. Plaintiff also reported that she does not shop. Id.
Plaintiff indicated that she can count change but cannot pay bills, handle a savings account, or use a checkbook/money orders. Id. at 269. Plaintiff explained that her “brain cant [sic] pick up small objects” and that she has “fog brain” since her conditions began. Id. Plaintiff listed her hobbies and interests to include music, noting that her ability to perform this activity was “good” and indicating her inability to concentrate was a change since her conditions began. Id. Plaintiff reported that she does not spend time with others and requires reminders to attend her doctor's appointments. AR at 269. Plaintiff described having anxiety when dealing with others. Id. at 270.
Plaintiff stated that she “hurts” and this condition affects her ability to lift, squat, bend, stand, reach, walk, sit, kneel, talk, hear, climb stairs, see, remember, complete tasks, concentrate, understand, follow instructions, use her hands, and get along with others. Id. Plaintiff estimated that she could walk approximately one (1) block before needing to rest for five (5) to eight (8) minutes. Id. Plaintiff also reported that she could pay attention for one (1) minute and does not finish what she starts. Id.
Plaintiff indicated that she has to re-read everything when trying to follow written instruction and because she is forgetful, she is “not good” at following spoken instructions. AR at 270. Plaintiff reported that she gets along with authority figures and has never been fired because she cannot get along with other people. Id. at 271. Plaintiff further reported that she does not handle stress or changes in routine well, and she has noticed unusual behavior or fears with her thoughts, speech, and movements. Id. Plaintiff indicated that two of her medications cause side effects-methocarbamol and hydroxychloroquine. Id. at 272.
2. Plaintiff's Medical Records a. Treatment records
Although the Court has reviewed the entirety of Plaintiff's medical records, its summary is generally limited to records from Plaintiff's alleged onset date of February 1, 2015, forward. Additionally, Plaintiff's treatment records from 2009 through 2014 were summarized in the Court's September 27, 2018, Order in Plaintiff's previous case. Trinidad v. Berryhill, No. CV-16-0653, Order (D. Ariz. Sept. 27, 2018). The Court's review of the same records confirmed the previous summary.
On April 27, 2017, Plaintiff was seen at the Bisbee Clinic of the Chiricahua Community Health Centers, Inc. by Tonya L. Johnson FNP-C for an evaluation. AR 542-47. Plaintiff's chart reflects that she had “not been in the office since 12/2015.” Id. at 542. Plaintiff indicated that she had “been off her thyroid medication for six months because she ha[d] not followed up with her pcp.” Id. Plaintiff also complained of “[m]uscle spasm for years on ‘legs, feet, hands, arms[]' . . . at different times of the day . . . for over 20 years.” Id. Plaintiff further reported that she had “been on baclofen in the past but . . . ha[d] run out . . . [and] takes ‘2 percocet' from [] old prescriptions sometimes when she needs it.” Id. Plaintiff described her pain as a three (3) out of ten (10). AR at 546. NP Johnson's physical examination of Plaintiff was unremarkable. Id. NP Johnson further noted that Plaintiff had never had an ultrasound of her thyroid despite prior indications. Id. NP Johnson also referred Plaintiff to a dietician. Id. at 546, 934.
On May 24, 2017, Plaintiff underwent a thyroid ultrasound due to acquired hypothyroidism. Id. at 509, 707. George Wilson, M.D. found “[b]oth lobes of thyroid are heterogeneous in appearance[, ] [but] [n]o definite solid nodule is identified.” AR at 509.
On June 4, 2017, Plaintiff was seen at the Emergency Department of Copper Queen Community Hospital complaining of swelling and stiffness of her muscles. Id. at 511-16, 596-612, 750-55, 787-95, 839-40. Plaintiff informed ED staff that “this ha[d] occurred before and her doctor [] felt that it [had] been a flareup of her lupus and ha[d] put her on short courses of steroids which generally resolve[d] the issues fairly rapidly.” Id. at 511, 596, 751. Plaintiff's examination was unremarkable. Id. at 512-13, 596-97, 751-52. Plaintiff was given intravenous fluids with Solu-Medrol (methylprednisolone) and Benadryl which resulted in “excellent improvement in her symptoms[.]” Id. at 513- 14, 598, 753. Calvin A. Schuler, M.D.'s clinical impression was “[s]welling and myalgias of the extremities secondary to flare of [Plaintiff's] lupus erythematosus.” AR at 514, 598, 753. Plaintiff was discharged home with a five (5) day course of steroids and told to follow-up with her primary care physician in two (2) to three (3) days. Id. On June 15, 2017, Plaintiff returned to the Copper Queen Emergency Department complaining of fever, hot flashes, and dizziness. Id. at 517-22, 568-95, 614-25, 723-29, 745-50, 779-87, 815, 838, 910-32. Bethzaida Perez Kyles, NP noted Plaintiff's June 4th visit and her subsequent failure to follow-up with her primary care provider. Id. at 517, 576, 746. Plaintiff presented with a Lupus flare, and NP Perez Kyles's examination of Plaintiff was otherwise unremarkable. Id. at 517-18, 520, 576-78, 746-47. Plaintiff was given a triamcinolone injection and Toradol which provided “adequate releaf [sic] of symptoms.” AR at 520, 578, 748. Plaintiff was discharged home with prescriptions for Percocet, cyclobenzaprine, and triamcinolone cream. Id. at 520, 588, 621-24, 787, 825, 914, 926. On June 28, 2017, Plaintiff again returned to the Copper Queen Emergency Department complaining of a “hissing noise” in her left ear and facial movements. Id. at 523-30, 548-67, 715-21, 740-45, 771-79, 813, 837. Plaintiff indicated that the sensation of facial movements had been present for the previous year and a half, but the symptoms had gotten worse over the last three (3) days. Id. at 523, 548-49, 740. Michael E. Jackson, M.D.'s examination of Plaintiff was unremarkable. Id. at 523-25, 549, 740-41. A computerized tomography (“CT”) scan of Plaintiff's brain was also unremarkable. AR at 567, 853-54. Dr. Jackson noted that Plaintiff had “been comfortable lying supine in bed good spirits no acute distress.” Id. at 526, 551. Dr. Jackson assessed lupus and discharged Plaintiff to home with instructions to follow-up with her primary care physician. Id. at 527, 551, 563, 823.
On July 5, 2017, Plaintiff saw Maryslenni Gil, M.D. at the Jennifer “Ginger” Ryan Clinic of Chiricahua Community Health Centers, Inc. to establish care and for a hospital follow-up. Id. at 534-41. Dr. Gil noted that Plaintiff has a moderate activity level, exercising daily and including walking. Id. at 536. Dr. Gil's physical examination of Plaintiff was generally unremarkable. AR at 538. Plaintiff reported last seeing a rheumatologist in 2015. Id. Dr. Gil gave Plaintiff referrals to Rheumatology and Ophthalmology. Id. at 539. Plaintiff described her pain as an eight (8) out of ten (10). Id. at 540.
On August 2, 2017, Plaintiff returned to the Jennifer “Ginger” Ryan Clinic for a follow-up with Dr. Gil. Id. at 658-64. Dr. Gil noted that Plaintiff's Systemic Lupus Erythematosus (“SLE”) was moderate-severe but improved. AR at 658. Dr. Gil further noted that Plaintiff's symptoms were “aggravated by non-compliance to regimen and stress.” Id. Plaintiff indicated that over the prior two (2) weeks she had trouble falling or staying asleep, or sleeping too much; feeling tired or having little energy; feeling bad about herself - or that she is a failure or have let herself or her family down; and trouble concentrating on things, such as reading the newspaper or watching television. Id. Plaintiff further indicated that none of these problems made it difficult to do her work, take care of things at home, or get along with people. Id. Plaintiff reported a moderate activity level with daily exercise including walking. Id. at 660. Dr. Gil's review of systems was generally negative, but Plaintiff was positive for fatigue, malaise, and arthralgias. AR at 661. Dr. Gil's physical examination indicated “tenderness in different points” and poor judgment but was otherwise unremarkable. Id. at 662. Dr. Gil noted that Plaintiff had not seen a rheumatologist since 2015 and that although she was still complaining of symptoms, they had improved compared to her last visit. Id.
On September 12, 2017, Plaintiff sought emergency transport to the hospital complaining of a headache with dizziness since the previous evening. Id. at 666, 709. Medics noted that Plaintiff did not exhibit any life-threatening signs or symptoms and did not require any intervention en route. Id. Plaintiff was taken to Copper Queen Community Hospital and complained of shortness of breath and left upper chest and neck tightness. AR at 671, 735, 764-71, 836. Calvin A. Schuler, M.D. reviewed Plaintiff's systems which were negative except for moderate shortness of breath without a cough and left upper chest tightness involving the left anterior neck and anterior shoulder region without palpitations or syncope. Id. at 671-72, 735-36. Dr. Schuler's physical examination was unremarkable. Id. at 672, 736. Plaintiff's electrocardiogram, chest x-ray, computed tomography (“CT”) scan of the brain and soft tissues of the neck were all normal. Id. at 673, 683-86, 690-92, 737, 803, 850-53. Plaintiff also had a normal hemogram, normal cardiac isoenzymes, and a normal comprehensive metabolic panel. Id. at 673, 689, 695-99, 737. Plaintiff was discharged home and given a prescription of Percocet. AR at 674, 738, 821.
On October 6, 2017, Plaintiff was seen by Elizabeth Fabry, ANP-C at the Jennifer “Ginger” Ryan clinic for thyroid problems. Id. at 652-57. NP Fabry noted the problem was moderate and symptoms included fatigue and insomnia. Id. at 652. NP Fabry further noted Plaintiff had a moderate activity level with exercise including walking. Id. at 654. Plaintiff rated her pain as an eight (8) on a scale of one (1) to ten (10). Id. at 655. NP Fabry's physical examination of Plaintiff was unremarkable except for pain in her left Temporomandibular joint. AR at 656. Plaintiff sought “some higher potentcy [sic] pain medications” for her TMJ pain. Id. NP Fabry referred Plaintiff to a dietician and directed her to follow-up with Dr. Gil regarding her thyroid. Id. On October 25, 2017, Plaintiff saw Diego H. Calonje, M.D. for a retinal evaluation of both eyes. Id. at 702-04, 1011-13. Dr. Calonje noted the need to observe Plaintiff's long term drug therapy and SLE, and counseled Plaintiff regarding the signs and symptoms of retinal detachment. Id. at 703. On October 29, 2017, Plaintiff returned to the Copper Queen Community Hospital Emergency Department complaining of anxiety, facial pain, headache, and neck pain. AR at 730-34, 755-64, 829-35. John Waytuk, D.O. reviewed Plaintiff's systems which were negative aside from her initial complaints. Id. at 730. Dr. Waytuk's physical examination of Plaintiff was generally unremarkable but noted tenderness in Plaintiff's cervical spine, as well as anxiety. Id. at 731. CT scans of Plaintiff's head and neck were unremarkable, her chest x-ray and EKG were normal, and her CBC, CMP, and troponin were unremarkable. Id. at 732, 801, 848-50. Plaintiff was given Ativan which alleviated her anxiety and most of her symptoms, as well as a steroid at her request. Id. at 732. Plaintiff was directed to follow-up with her primary care physician in two (2) to three (3) days. AR at 732. A discharge note from this visit indicated that “[d]uring [discharge] process prior to IV being [disconnected] [Plaintiff] requested IV pain medication[, ] [w]hen request denied [Plaintiff] left prior to receiving [discharge] instructions.” Id. at 708, 819.
On January 6, 2018, Plaintiff was seen at the Copper Queen Community Hospital Emergency Department complaining of generalized body pain. Id. at 875-90. Adolben Montesclaros, M.D.'s review of Plaintiff's systems and physical examination were unremarkable. Id. at 876. Plaintiff was given a Valium and a Flexeril and discharged home without prescriptions and instructed to follow-up with her primary care physician. Id. at 878. On January 10, 2018, Plaintiff followed up with Dr. Gil regarding her ED visit. AR at 891-99. Plaintiff complained of whole-body pain, as well as worsening jaw pain. Id. at 891. Plaintiff continued to report a moderate activity level with daily exercise including walking. Id. at 893. Dr. Gil's review of Plaintiff's systems noted fatigue and joint pain and swelling but was otherwise unremarkable. Id. at 895. Plaintiff's physical examination was also unremarkable except for tenderness in multiple points. Id. at 896. Dr. Gil noted that Plaintiff did not go to her December rheumatology appointment. AR at 897. Dr. Gil further noted referrals to rheumatology, physical therapy, and a maxillofacial specialist which remained open. Id. at 896-97.
On February 25, 2018, Plaintiff again returned to the Copper Queen Community Hospital Emergency Department complaining of an intermittent spasm around her neck and shoulders, developing intermittent tunnel vision and nausea, tightness in her throat, and jaw popping. Id. at 858-74. Dr. Montesclaros's review of Plaintiff's systems and physical examination were again unremarkable. Id. at 858-59. Dr. Montesclaros noted that “[t]here [we]re no physical findings of emergent need for intervention.” Id. at 861. Plaintiff was discharged home with instructions to follow-up with her primary care physician and given a neurology consult. Id.
On April 4, 2018, Plaintiff followed-up with Dr. Gil. AR at 900-908. Plaintiff complained of musculoskeletal pain and neuropathy in her legs. Id. at 900. Dr. Gil noted that Plaintiff had a normal gait. Id. Records also note Plaintiff's non-compliant behavior. Id. at 901. Dr. Gil continued to note Plaintiff's moderate activity level with daily exercise including walking. Id. at 903. Plaintiff reported nocturnal pain, restlessness, tingling in her legs, difficulty initiating sleep, swelling, decreased mobility, joint tenderness, and myalgia. AR at 904. Dr. Gil's physical examination noted that Plaintiff was crying and depressed with poor insight and poor judgment, Plaintiff was tender in multiple points including her cervical and lumbar spine and both elbows and hands, and her heart rate showed tachycardia. Id. at 905. Plaintiff described her pain as a ten (10) out of ten (10). Id. Dr. Gil observed that Plaintiff had not followed-up with rheumatology as directed and although she reported swelling of multiple joints, this was not appreciated on examination. Id. at 906.
These records appear to combine visits from April 4, 2018, and April 29, 2018.
On September 13, 2018, Plaintiff followed-up with Dr. Gil regarding her TMJ and laboratory results. Id. at 979-87. Plaintiff's lifestyle continued to note a moderate activity level with daily exercise including walking. AR at 981. Plaintiff complained of fatigue, jaw pain and joint pain and swelling. Id. at 983. Dr. Gil's physical examination was generally unremarkable except for redness in Plaintiff's ear canals and swollen tonsils. Id. at 984. Dr. Gil noted that Plaintiff exhibited poor insight and judgment, although Plaintiff's psychiatric state was otherwise normal. Id. Dr. Gil further noted that there were several active referrals because Plaintiff failed to follow-up. Id. at 984-86.
On January 29, 2019, Plaintiff returned to Dr. Gil for a follow-up. AR at 966-78. Plaintiff's screening indicated moderately severe depression. Id. at 967. Plaintiff reported fatigue, malaise, painless mouth ulcers, neuropathy, anxiety, depression, rash, photosensitivity, arthralgias, joint pain and swelling, muscle weakness, and body pain. Id. at 972. Dr. Gil's review of Plaintiff's systems was otherwise negative. Id. Plaintiff's lifestyle continued to include a moderate activity level with daily exercise including walking. Id. at 970. Plaintiff reported her pain at a three (3) out of ten (10). AR at 973. Dr. Gil's physical examination noted that Plaintiff's neck was thick, her abdomen protuberant, an antalgic gait, tenderness in her thoracic spine and scoliosis in her lumbar spine, joint pain, and anxiety with inappropriate mood and affect, poor insight, and poor judgment. Id. at 973-74. Dr. Gil observed that Plaintiff was “extremely non compliant” and that despite numerous referrals to specialists in the prior two (2) years Plaintiff failed to be evaluated further. Id. at 974-75.
On February 25, 2019, Plaintiff saw Dr. Gil for a follow-up. Id. at 954-65. Plaintiff's screening questionnaire indicated moderate depression. Id. at 955. Dr. Gil's review of Plaintiff's systems indicated that Plaintiff reported fatigue, malaise, painless mouth ulcers, heartburn, cold intolerance, neuropathy, anxiety, stress, brittle hair, photosensitivity, arthralgias, back pain, joint pain, and muscle weakness. AR at 960. Plaintiff described her pain as a three (3) out of ten (10). Id. at 961, 964. Plaintiff continued to report a moderate activity level with daily exercise including walking. Id. at 958. Dr. Gil noted that Plaintiff had a thick neck, abdominal protuberance, and eighteen (18) out of eighteen (18) tender points on physical examination. Id. at 961. Plaintiff's physical examination was otherwise normal. Id. Dr. Gil also reported that Plaintiff's behavior was inappropriate for her age, and she was fearful with poor insight and poor judgment. AR at 961. On February 28, 2019, Plaintiff saw Edwin M. Aquino, M.D. for a Rheumatology consult. Id. at 988-93. Plaintiff reported that her pain was a seven (7) out of ten (10) and feeling tired most of the time but denied oral ulcers, alopecia, chest pain, and cough. Id. at 988. Dr. Aquino noted that Plaintiff had multiple tender points above and below waist, but no synovitis and all joints cool. Id. The remainder of Dr. Aquino's physical examination was also unremarkable. Id. Dr. Aquino assessed Plaintiff's pain scale at a two (2). AR at 989.
On May 23, 2019, Plaintiff returned to Dr. Gil for a follow-up. Id. at 943-53. In her review of systems Dr. Gil noted Plaintiff complained of fatigue, malaise, weight gain, apnea, cold intolerance, gait disturbance, photosensitivity, rash, arthralgias, back pain, joint pain, and joint swelling. Id. at 947-48. Dr. Gil's physical examination of Plaintiff was unremarkable. Id. at 948-49. Plaintiff's lifestyle continued to indicate a moderate activity level with daily exercise including walking. Id. at 946. Plaintiff reported her pain as a two (2) out of ten (10). AR at 948. Dr. Gil noted that Plaintiff “never makes it” to her obstructive sleep apnea studies. Id. at 949. Dr. Gil further noted Plaintiff's non-compliance observing that she “[u]sually comes in crying stating that her pain does not let her function; but she rarely [follows-up] as advice [sic][;] [i]t has been 3 years and she just made it to rheumatology in Feb despite multiple referrals.” Id. at 950. Dr. Gil also observed that Plaintiff's last emergency department visit was in June of 2018. Id.
b. Examining physician records
The ALJ indicated that he “reviewed and considered opinion evidence that was provided for the claimant's prior application for disability.” AR at 21. The ALJ found “[t]his evidence is five years old and does not provide a persuasive account of the claimant's ongoing functioning.” Id. The Court provides a brief outline here and confirmed the accuracy of the prior summary from Plaintiff's previous social security appeal. Trinidad v. Berryhill, No. CV-16-0653, Order (D. Ariz. Sept. 27, 2018).
i. Huntley V. Hoffman, Ph.D.
On December 12, 2012, Plaintiff was seen by Huntley V. Hoffman, Ph.D. for a psychiatric consultation upon referral from the Arizona Department of Economic Security (“AZDES”) Phoenix Disability Determination Service. AR at 409. Dr. Hoffman described Plaintiff's mood as euthymic, with her affect “congruent with both mood and thought content.” Id. at 410-11. Dr. Hoffman further described Plaintiff as “unremarkable for both stream and content of thought[, ]” with fair to good insight and judgment, and “no indications of a cognitive deficit.” Id. at 411. Dr. Hoffman diagnosed no mental impairments. Id.
ii. Walter R. Cayce, M.D.
On November 19, 2014, Walter R. Cayce, M.D. submitted a Medical Source Statement. AR at 489-495, 638-39. This statement was based upon Plaintiff's lupus, hypothyroidism, and obesity. Id. at 638. Dr. Cayce mentions a “mental health diagnosis” but does not provide any further indication regarding what that diagnosis might be. Id. at 639. Additionally, Dr. Cayce's opinion is inconsistent. See Id. at 491 (opinion that Plaintiff could sit, stand, or walk for a total of thirty (30) minutes without interruption, but could only sit, stand, or walk a total of six (6), four (4), and two (2) minutes respectively in an eight hour work day).
iii. John S. Martin, M.D.
On November 26, 2014, John S. Martin, M.D. submitted a Medical Source Statement. AR at 496-506, 627-37. This statement appears to be a combination of two statements. See id. Moreover, Dr. Martin's opinion is inconsistent. See Id. at 496-97, 501-03, 627-28, 632-33 (e.g., opinion suggesting that Plaintiff could lift and carry up to ten (10) pounds occasionally but never more than that versus the ability to lift and carry up to ten (10) pounds continuously, between eleven (11) and twenty (20) pounds occasionally, and never anything more than twenty (20) pounds).
c. Reviewing physicians
i. Martha A. Goodrich, M.D.
On December 12, 2017, Martha A. Goodrich, M.D. reviewed Plaintiff's medical records for the initial determination and found that the medical evidence of record “does not support a severe somatic [medically determinable impairment] that would result in more than minimal limitations for this [Plaintiff].” AR at 83. As such, Dr. Goodrich found Plaintiff to be non-severe. Id.
ii. Maria G. Soto, M.D.
On January 22, 2018, Maria G. Soto, M.D. reviewed Plaintiff's medical records for the initial determination, noting that the medical evidence of record was limited, Plaintiff failed to cooperate with a consultative examination. AR at 79. On January 23, 2018, Dr. Soto “determined that [Plaintiff's] somatic condition is nonsevere and no psych [medically determinable impairment] is present[, ]” then concluded that Plaintiff is not disabled. Id. at 81.
iii. Ralph Mertens, Ph.D.
On January 23, 2018, Ralph Mertens, Ph.D. reviewed Plaintiff's medical records and provided an assessment from a psychological perspective. AR at 84. Dr. Mertens commented that Plaintiff had been scheduled twice for a consultative examination but failed to attend on both occasions. Id. Dr. Mertens concluded that “[f]rom a longitudinal perspective [Plaintiff] has presented as unremarkable psychologically, which basically continues the pattern originally observed by the ALJ decision 02/15 and [Plaintiff's] current function appears consistent with that assessment.” Id.
iv. Reconsideration
On April 26, 2018, Ronald G. Nathan, M.D. confirmed the initial psychological findings. AR at 99-100. Similarly, on April 30, 2018, Melvin Roberts, M.D. confirmed the prior medical findings. Id. at 98-99.
II.STANDARD OF REVIEW
The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may “set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see also Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
Substantial evidence is “‘more than a mere scintilla[, ] but not necessarily a preponderance.'” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). Further, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). Moreover, the court may not focus on an isolated piece of supporting evidence, rather it must consider the entirety of the record weighing both evidence that supports as well as that which detracts from the Secretary's conclusion. Tackett, 180 F.3d at 1098 (citations omitted).
III.ANALYSIS
A. The Five-Step Evaluation
The Commissioner follows a five-step sequential evaluation process to assess whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as follows: Step One asks is the claimant “doing substantial gainful activity[?]” 20 C.F.R. § 404.1520(a)(4)(i). If yes, the claimant is not disabled. Step Two considers if the claimant has a “severe medically determinable physical or mental impairment[.]” 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled. Step Three determines whether the claimant's impairments or combination thereof meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the claimant is not disabled. Step Four considers the claimant's residual functional capacity and past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If claimant can still do past relevant work, then he or she is not disabled. Step Five assesses the claimant's residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If it is determined that the claimant can make an adjustment to other work, then he or she is not disabled. Id.
In the instant case, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her application date of July 14, 2017. AR at 15. At step two of the sequential evaluation, the ALJ found that “[t]he claimant has the following medically determinable impairments: obesity, hypothyroidism, systemic lupus erythematosus (SLE), fibromyalgia, temporomandibular joint (TMJ) dysfunction, depression, anxiety (20 CFR 416.921 et seq.).” Id. at 16. At step three, the ALJ further found that “[t]he claimant does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant does not have a severe impairment or combination of impairments (20 CFR 416.921 et seq.).” Id. As such, the ALJ determined that Plaintiff was not disabled. Id. at 22.
B. Plaintiff's Symptoms
Plaintiff asserts that “[t]he ALJ has not identified any clear and convincing reasons to discount Ms. Trinidad's symptom testimony.” Opening Br. (Doc. 22) at 13. Defendant counters that “the ALJ provided valid reasons for discounting Plaintiff's subjective complaints, including the lack of supporting objective medical evidence and Plaintiff's failure to follow or seek treatment.” Response (Doc. 23) at 13. The Court agrees with Respondent.
1. Legal Standard
An ALJ must engage in a two-step analysis to evaluate a claimant's subjective symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, “a claimant who alleges disability based on subjective symptoms ‘must produce objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged[.]'” Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotations omitted)); see also Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). Further, “the claimant need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Smolen, 80 F.3d at 1282 (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “Nor must a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the severity thereof.'” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1282). “[I]f the claimant meets this first test, and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'” Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281); see also Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (rejecting the contention that the “clear and convincing” requirement had been excised by prior Ninth Circuit case law). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
2. ALJ findings
The ALJ acknowledged the two-step process for assessing Plaintiff's symptom testimony. AR at 16-17. The ALJ then found “[a]fter considering the evidence of record, I find that the claimant's medically determinable impairments could reasonably be expected to produce the above alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent for the reasons explained in this decision.” Id. at 17. The ALJ went on to review the medical records, contemplate Plaintiff's noncompliance, and weigh the opinion testimony of certain medical professionals. See Id. at 17-21.
The ALJ is allowed to consider whether a “claimant's statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence in the record.” Mitchell v. Saul, 2021 WL 3032667, at *8 (D. Nev. July 16, 2021) (alteration in original). “[T]he ALJ is not ‘required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012), superseded by regulation on other grounds (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “A claimant's subjective symptom testimony may be undermined by ‘an unexplained, or inadequately explained, failure to . . . follow a prescribed course of treatment. While there are any number of good reasons for not doing so, a claimant's failure to assert one, or a finding by the ALJ that the profferred [sic] reason is not believable, can cast doubt on the sincerity of the claimant's pain testimony.'” Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (alteration in original) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
Here, the ALJ provided a rational interpretation of the objective medical evidence and notes of treatment providers, which were inconsistent with Plaintiff's subjective complaints. See Mitchell, 2021 WL 3032667, at *8. Plaintiff “bears the burden of proving that an impairment is disabling.” Miller v. Heckler, 779 F.2d 845, 849 (9th Cir. 1985) (citations omitted). The ALJ noted that in February 2019, “[t]he claimant was reported to be walking daily for exercise[.]” AR at 17 (citation omitted). Plaintiff consistently reported a moderate activity level with daily exercise to her providers. See Id. at 536, 654, 660, 893, 903, 946, 958, 970, 981. Regarding her hypothyroidism, the ALJ noted that April 2017 treatment records indicate that she had not been seen in the office since December 2015 and her May 2017 records note that she had not been taking her thyroid medication for six months. Id. at 17-18 (citations omitted). The ALJ also observed Plaintiff's failure to follow-up on referrals, including to an oral and maxillofacial surgeon and rheumatology, despite complaints of severe or worsening pain. Id. at 18-19. The ALJ further observed that Plaintiff often complained of a high level of pain but was assessed as exhibiting minimal pain. Id. at 19-20. The ALJ also found that the medical records did not support a finding of severe mental impairment and twice Plaintiff failed to appear for a psychological consultative examination. AR at 19-21.
Plaintiff asserts that her treatment non-compliance was explained, but the ALJ ignored the explanation. Reply (Doc. 24) at 4-5. At the Administrative Hearing, Plaintiff testified that her failure to follow-up with physician referrals is due to her forgetfulness, adding that she had no excuse. AR at 38-40. Plaintiff reported that the “one instance where the doctor actually did the scheduling for [her] and set up the ride and that's when [she] made it . . . to the doctors.” Id. at 39. This statement contrasts with Dr. Mertens's observation that Plaintiff had been scheduled twice for a consultative examination but failed to attend on both occasions. Id. at 84. The ALJ characterized Plaintiff's “inability or choice not to continue with medical care” as “unexplained.” This is consistent with Plaintiff's contention that she had no excuse for not pursuing recommended care, as well as the divide between the level of pain she complained of and that which was assessed during treatment. The record does not contain any medical evidence that Plaintiff's “resistance to treatment was attributable to her mental [or physical] impairment[s] rather than her own personal preference[.]” Molina, 674 F.3d at 1114; see also Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, *9 (“if the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record.”). The Court finds the ALJ did not err in discounting Plaintiff's symptom testimony. See Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (quoting Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (“[I]f a claimant complains about disabling pain but fails to seek treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use such failure as a basis for finding the complaint unjustified or exaggerated[.]”)
C. Non-Severity Finding
Plaintiff argues that the ALJ “cherry-picked” evidence in finding that Plaintiff's diagnoses of obesity, hypothyroidism, SLE, fibromyalgia, TMJ dysfunction, depression, and anxiety were medically determinable impairments but were non-severe. Opening Br. (Doc. 22) at 6.
“To establish whether [s]he qualifies for benefits, [Plaintiff] has the burden of proving an ‘inability 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 12 months.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004) (quoting 42 U.S.C. § 423(d)(1)(A)). “A severe impairment is one that affects an individual's ability to perform basic work-related activities[.]” SSR 16-3p, 2017 WL 5180304, at *11. “At step 2 of the sequential evaluation process, [SSA] determine[s] whether an individual has a severe medically determinable physical or mental impairment or combination of impairments that has lasted or can be expected to last for a continuous period of at least 12 months[.]” Id. “The mere existence of an impairment is insufficient proof of a disability.” Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993).
The ALJ noted that although “[t]he claimant ha[d] been seen multiple times in the emergency room, . . . as of September 2018, she had not seen a rheumatologist as advised . . . [and] had not seen rheumatology since 2015.” AR at 18. The ALJ further noted that “[f]lares reported in prior treatment notes indicate complaints were managed with steroids and fluids.” Id. at 19. The ALJ also observed Dr. Aquino, a rheumatologist, reported that Plaintiff's “main symptoms considered to be related to possible SLE included myalgias, arthralgias, fatigue, and photosensitivity.” Id. Dr. Aquino's physical examination of Plaintiff indicated multiple tender points above and below the waist but was otherwise unremarkable. Id. at 988-89. The ALJ also noted inconsistencies between Plaintiff's complaints and her doctor's observed findings. Id. at 19. Additionally, the ALJ considered Plaintiff's treatment noncompliance, which her primary care physician also commented upon. Id.; see also Section III.B.2., supra. Plaintiff argues that “[a]t least three lupus flares in the latter half of 2017 (or two, depending on whether the two emergency department visits in close temporal proxmity [sic] in June 2017 may be considered part of the same flare) severe enough to visit an emergency department are significant.” Reply (Doc. 24) at 2. During the June 4, 2017, emergency department visit, Plaintiff was given intravenous fluids with Solu-Medrol (methylprednisolone) and Benadryl which resulted in “excellent improvement in her symptoms[.]” AR at 513-14, 598, 753. Plaintiff was discharged home with a five (5) day course of steroids and told to follow-up with her primary care physician in two (2) to three (3) days, which she did not do. Id. at 514, 517, 576, 598, 746, 753. On October 29, 2017, Plaintiff's physical examination was generally unremarkable, but Dr. Waytuk noted tenderness in her cervical spine, as well as anxiety. Id. at 713. Following a dose of Ativan which alleviated her anxiety and most of her symptoms, as well as a steroid at her request, Plaintiff left prior to receiving discharge instructions because her request for IV pain medication was denied. Id. at 708, 731-32, 801, 819, 848-50. Reviewing the record as a whole, the Court finds substantial evidence supports the ALJ's finding that Plaintiff's SLE was durationally non-severe.
In finding that Plaintiff did not have a severe mental impairment, the ALJ noted the absence of behavioral health treatment or psychiatric hospitalizations. AR at 19. The ALJ also reviewed Plaintiff's medical records which were regularly unremarkable regarding Plaintiff's mental health conditions. Id. at 20. The ALJ observed notes indicating that insight and judgment were poor but “found no explanation in the appointment notes for these assessments.” Id. Considering “the four broad functional areas, set out in the disability regulations for evaluating mental disorders” the ALJ found that “claimant's medically determinable mental impairments cause no more than ‘mild' limitation in any of the functional areas and, the evidence does not otherwise indicate that there is more than a minimal limitation in the claimant's ability to do basic work activities, they are nonsevere[.]” Id. at 20-21 (emphasis in original) (citing 20 C.F.R. 416.920a(d)(1)). Plaintiff argues that the ALJ's observation regarding a lack of explanation is “vague to the point of being meaningless . . . or an argument that the ALJ should have further developed the record.” Reply (Doc. 24) at 5. Plaintiff had the opportunity to attend a consultative psychological examination to demonstrate the severity of her mental impairment, but twice chose not to. Plaintiff further posits that “a variety of positive psychiatric findings . . . evidence symptoms that suggest reasons for Ms. Trinidad's unreliability and difficulty following through on appointments.” Pl.'s Opening Br. (Doc. 22) at 11. Plaintiff's suggestion that her treatment non-compliance was due to a lack of insight and poor judgment is merely speculative and unsupported by her own testimony. As discussed in the previous section, the record does not contain any medical evidence that Plaintiff's “resistance to treatment was attributable to her mental [or physical] impairment[s] rather than her own personal preference[.]” Molina, 674 F.3d at 1114. Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). The ALJ properly evaluated the medical findings describing Plaintiff's lack of mental health treatment or diagnoses to determine that her medically determinable impairments were non-severe.
IV. CONCLUSION
Based on the foregoing, the Court finds the ALJ did not err, Plaintiff failed to meet her burden to demonstrate that she had severe mental and physical impairments sufficient to qualify her for disability. As such, the ALJ's decision should be affirmed.
V. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DENYING Plaintiff's Opening Brief (Doc. 22) and AFFIRMING the Commissioner's decision.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No. replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-20-0442-TUC-RM
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review. Dated this 26th day of January, 2022.