Antal
v.
Berryhill

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIAJul 26, 2018
CIVIL NO. 3:17-CV-2097 (M.D. Pa. Jul. 26, 2018)

CIVIL NO. 3:17-CV-2097

07-26-2018

ADAM WAYNE ANTAL, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.


(Judge Mannion)

( ) REPORT AND RECOMMENDATION

I. Introduction

Social Security appeals involve a disability calculus which entails an assessment of three critical components: (1) a claimant's impairments; (2) the claimant's age; and (3) the ability of the claimant to transfer job skills to new and different positions. Nowhere is this calculus set forth in a more explicit fashion than in the Medical Vocational Guidelines, or grids, that evaluate a claimant's ability to work by matching the claimant's age, education, and work experience with his work capability. 20 C.F.R. pt. 404, subpt. P, app'x 2. These guidelines provide that when certain older workers with significant impairments and limited transferable job skills reach a specific age they are deemed disabled.

On occasion, however, disability claimants may meet the impairment and limited job transferability benchmarks prescribed by the Medical Vocational Guidelines, but fall a few days, weeks, or months short of the age thresholds set by these grids. While a strict application of the grids to these borderline cases would result in a claim denial, for these borderline situations the Commissioner has adopted a borderline rule, allowing Administrative Law Judges ("ALJs") to treat someone who otherwise satisfied the grid impairment and job skill requirements but whose age is on the borderline of the age threshold defined by the grids to have a disability claim considered under the grids.

This borderline rule was designed to allow favorable consideration of cases which would otherwise fail under a strict application of the Medical Vocational Guidelines. In the instant appeal, however, the plaintiff seeks to extend this rule to a very different setting. Adam Antal's Social Security appeal raises a novel issue. Antal is appealing a partially favorable decision by an ALJ who found that Antal qualified for disability benefits under the Medical Vocational Guidelines. Antal appeals this favorable disability determination, seeking an additional six months of benefits, by arguing that the borderline rule, which was designed to allow consideration of what are otherwise barred claims under these grids, also implicitly allows successful claimants a right to additional benefits beyond those prescribed by the grids.

For the reasons set forth below, we conclude that Antal's proposed interpretation of these Medical Vocational Guidelines, while imaginative, is ultimately unpersuasive. Instead, we conclude that the ALJ properly applied the grids to grant Antal benefits once he attained the age of 50, but also correctly concluded that prior to age 50 Antal was not entitled to these benefits because he retained some limited capacity to work.

II. Statement of Facts

Adam Antal was born on October 17, 1966. (Tr. 31.) On January 16, 2015, Antal applied for disability benefits pursuant to Title II of the Social Security Act, alleging an onset of disability beginning on or about July 11, 2014. (Tr. 19.) Antal was thus 48 years, 3 months old at the time of his application and 47 years and 8 months old at the time of the alleged onset of his disability. Antal had a high school education, and past employment as a sheet metal worker, a job which entailed very heavy physical exertion as performed by Antal. (Tr. 31.)

After his claim was denied administratively, Antal requested a hearing, which was conducted on March 9, 2017. (Tr. 38-81.) By the time of this hearing, Antal was 50 years old. Following this hearing, on April 20, 2017, the ALJ issued a partially favorable ruling in Antal's case. (Tr. 14-33.)

In this decision, the ALJ first found that Antal met the insured requirements of the Act through December of 2020. (Tr. 21.) At Step 2 of the sequential analysis which applies to Social Security cases, the ALJ concluded that Antral had a series of severe impairments, including right shoulder impairment, carpel tunnel syndrome, a right hip impairment, a right wrist impairment, other right arm impairments, spinal impairments, and a left hip impairment. (Tr. 21-2.) While the ALJ concluded at Step 3 of this analysis that none of these individual impairments were per se disabling, the ALJ also found that given these multiple impairments to his wrists, arms, shoulder, hips, and back, Antal could no longer return to his former heavy job duties as a sheet metal worker. (Tr. 24-8.)

Instead, the ALJ concluded that Antal retained the residual functional capacity to perform a very limited range of sedentary work. (Tr. 24-5.) Prior to when Antal attained the age of 50, the ALJ found based upon the evidence presented that there were a number of sedentary jobs in the regional and national economy that the plaintiff could perform. (Tr. 32.) However, upon reaching the age of 50 in October of 2016, the ALJ concluded that Antal's case was governed by the Medical Vocational Guideline grids, and given Antal's age, the severity of his impairments, and the limited transferability of his job skills, he was deemed disabled as of that date. (Id.)

Antal has now appealed this partially favorable ruling by the ALJ. (Doc. 1.) Antal's appeal presents a single, narrow legal claim. Noting that the Commissioner's regulations contain a borderline rule, allowing ALJs to treat someone who otherwise satisfied the Medical Vocational Guideline grid impairment and job skill requirements but whose age is on the borderline of the age threshold defined by the grids, Antal invites us to apply this borderline rule in a new and different factual setting. In essence, Antal argues that the borderline rule, which allows consideration of what are otherwise barred claims under these grids for claimants who do not meet the grid age requirements, also permits successful claimants who have met the gird requirements to secure additional benefits for up to 6 months prior to the time when they satisfied the age standards set by the grids. This appeal is fully briefed by the parties and is therefore ripe for resolution.

For the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.

III. Discussion

A. The Borderline Exception to The Medical Vocational Guidelines Does Not Apply to This Case , Which Involved a Successful Disability Claim under Those Guidelines.

The principal issue in this appeal relates to the interpretation of the Medical Vocational Guidelines, and the borderline exception to those guidelines recognized by the Commissioner. As we have noted, these guidelines evaluate a claimant's ability to work by matching the claimant's age, education, and work experience with his work capability and provide that when certain older workers with significant impairments, and limited transferable job skills reach a specific age they are deemed disabled. 20 C.F.R. pt. 404, subpt. P, app'x 2.

Some claimants have severe impairments and limited job skills but do not quite satisfy the age requirements set by the Medical Vocational Guideline grids. For these applicants, the Commissioner has adopted a borderline age rule. BORDERLINE AGE, HALLEX I-2-2-42 2016 WL 1167001, at *1 (2016). The parties are now embroiled in a dispute over the proper interpretation of this rule. The Commissioner takes the view that the rule serves a specific narrow purpose, solely allowing consideration of claims that otherwise might meet the Medical Vocational Guideline grid criteria by claimants whose chronological age falls just below the thresholds prescribed by these guidelines. Antal, on the other hand, argues that the borderline exception to these Medical Vocational Guidelines confers a broader benefit upon claimants like the plaintiff, who are found to be disabled at a specific age under these guidelines. As Antal interprets this borderline age rule, it would confer upon him the right to receive benefits for the 6 months prior to the date upon which, by virtue of his age, impairments and limited vocational skills, the ALJ found him to be disabled under the Medical Vocational Guideline grids.

Presented with these two contrasting views regarding the proper interpretation of the agency's borderline age regulations and rules, we begin with the familiar proposition that:

We must give substantial deference to an agency's interpretation of its own regulations. Martin v. Occupational Safety and Health Review Comm'n, 499 U.S. 144, 150-151, 111 S.Ct. 1171, 1175-1176, 113 L.Ed.2d 117 (1991); Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 2341, 90 L.Ed.2d 921 (1986); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Our task is not to decide which among several competing interpretations best serves the regulatory purpose. Rather, the agency's interpretation must be given " 'controlling weight unless it is plainly erroneous or inconsistent with the regulation.' " Ibid. (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945)). In other words, we must defer to the Secretary's interpretation unless an "alternative reading is compelled by the regulation's plain language or by other indications of the Secretary's intent at the time of the regulation's promulgation." Gardebring v. Jenkins, 485 U.S. 415, 430, 108 S.Ct. 1306, 1314, 99 L.Ed.2d 515 (1988).

Thomas Jefferson Univ
. v. Shalala, 512 U.S. 504, 512, 114 S. Ct. 2381, 2386-87, 129 L. Ed. 2d 405 (1994) (construing Social Security rules).

For its part, the Social Security Administration has offered several forms of interpretive guidance which shed light on the question of whether this borderline age rule should apply, as Antral suggests, to cases where the claimant's chronological age entitles him to benefits under the Medical Vocational Guideline grids. At the outset, the Commissioner's Office of Hearings and Appeals guidance (HALLEX), speaks to this issue. This HALLEX guidance is relevant to issues of regulatory interpretation raised in this appeal because:

Through HALLEX, the Associate Commissioner of Hearings and Appeals conveys guiding principles, procedural guidance and information to the Office of Hearings and Appeals ("OHA") staff. HALLEX includes policy statements resulting from an Appeals Council en banc meeting under the authority of the Appeals Council Chair. It also defines procedures for carrying out policy and provides guidance for processing and adjudicating claims at the Hearing, Appeals Council, and Civil Action levels.

Bordes v
. Comm'r of Soc. Sec., 235 F. App'x 853, 857, n. 7 (3d Cir. 2007).

With respect to borderline age claim analysis this HALLEX guidance provides as follows:

A. General
When determining disability, the Social Security Administration (SSA) will use each of the age categories applicable to a claimant during the period for which SSA is determining whether the claimant is disabled. SSA will not apply the age categories mechanically in a borderline age situation. If a claimant is within a few days to a few months of reaching an older age category (hereinafter "higher age category"), and using the higher age category would result in a determination of decision that the claimant is disabled, SSA will consider whether to use the higher age category after evaluating the overall impact of all the factors of the case. See 20 CFR 404.1563 and 416.963.
NOTE:

If using the claimant's chronological age will result in a favorable decision, an administrative law judge (ALJ) will not use the higher age category solely because it will result in a more favorable onset date, determination, or decision for the claimant.
B. Identifying a Borderline Age Situation

If application of a claimant's chronological age results in a decision that the claimant is not disabled, an ALJ will identify whether the

claim may involve a borderline age situation by applying a two-part test:
• Is the claimant's age within a few days or a few months of the next higher age category?
• Will the higher age category result in a decision of "disabled" instead of "not disabled"?
If the answer to one or both parts of the test is "no," a borderline age situation either does not exist or would not affect the outcome of the decision. The ALJ will then use the claimant's chronological age. If the answer to both parts of the test is "yes," a borderline age situation exists, and the ALJ must decide whether it is more appropriate to use the claimant's chronological age or the higher age category.

BORDERLINE AGE, HALLEX I-2-2-42 2016 WL 1167001, at *1 (2016).

By its terms this administrative guidance suggests that the borderline age rules are applicable only when the claimant's chronological age does not permit that claimant to be considered for disability under the Medical Vocational Guidelines. Indeed, this regulatory guidance says as much, stating that: "If using the claimant's chronological age will result in a favorable decision, an administrative law judge (ALJ) will not [apply this borderline age rule and] use the higher age category solely because it will result in a more favorable onset date, determination, or decision for the claimant." Id.

The implications of this administrative guidance are then made even more explicit by the Social Security Administration, Program Operations Manual System ("POMS") DI 25015.006, Borderline Age. "[T]he Social Security Administration's Program Operations Manual System ['POMS'], [are] 'the publicly available operating instructions for processing Social Security claims.' 'While these administrative interpretations are not products of formal rulemaking, they nevertheless warrant respect.'" Artz v. Barnhart, 330 F.3d 170, 176 (3d Cir. 2003) (quoting Wash. Dept. of Social Servs. v. Keffeler, 537 U.S. 371, 385 (2003)). With respect to assessment of borderline age claims, the POMS provides guidance which explicitly addresses Antal's argument regarding the proper interpretation of this rule, and is fatal to Antal's claim. In clear and precise terms, POMS states that: "If using the claimant's chronological age results in a partially or fully favorable determination, only consider the claimant's chronological age. This is not a borderline age situation." SSA, Program Operations Manual (POMS) DI 25015.006, Borderline Age, https://secure.ssa.gov/poms.nsf/lnx/0425015006 (July 2017) (emphasis added).

https://secure.ssa.gov/poms.nsf/lnx/0425015006 (July 2017). --------

Given this regulatory guidance, which rejects the notion that the borderline age rules apply to a case like Antal's where the claimant's chronological age has resulted in a partially favorable ruling under the Medical Vocational Guidelines, those few courts that have considered this precise issue have held that the borderline age analysis does not permit a claimant like Antal, who has received benefits under the Medical Vocational Guidelines, to rely upon the borderline rule to secure "a more favorable onset date and expand the number of months for which [ ]he can receive retroactive benefits." Wells v. Colvin, No. 2:15-CV-64-SPM, 2016 WL 5390935, at *5 (E.D. Mo. Sept. 27, 2016). As one court has observed in rejecting a claim identical to that advanced here by Antal:

Here, Plaintiff is not seeking to use the borderline age policy to avoid a complete denial of benefits, but instead to permit her to have a more favorable onset date and expand the number of months for which she can receive retroactive benefits. HALLEX I-2-2-42(A) indicates provides that the borderline age policy may not be used for that purpose. See HALLEX I-2-2-42(A), 2016 WL 1167001, at *1 (last updated March 25, 2016) ("NOTE: If using the claimant's chronological age will result in a favorable decision, an administrative law judge (ALJ) will not use the higher age category solely because it will result in a more favorable onset date, determination, or decision for the claimant."). See also SSA Program Operations Manual System ("POMS") DI 25015.006, Borderline Age, https://secure.ssa.gov/poms.nsf/lnx/0425015006 (last visited September 27, 2016) ("IMPORTANT: If using the claimant's chronological age would result in a partially or fully favorable determination, only consider the claimant's chronological age. This is not a borderline age situation.").

Wells
, 2016 WL 5390935, at *5; see, e.g., Kumanchik v. Astrue, No. CIV.A. 11-141, 2012 WL 875448, at *2 (W.D. Pa. Mar. 14, 2012); Williams v. Comm'r of Soc. Sec. Admin., No. CIV A 07-3234(SRC), 2008 WL 5075549, at *11 (D.N.J. Nov. 25, 2008) ("Plaintiff does not show that the law provides for a mandatory six month allowance of disability before Plaintiff is eligible for disability.")

We find this rationale, which is derived from the agency's own administrative guidance, to be persuasive here. Accordingly, we recommend that the district court decline Antal's invitation to extend the borderline age rule into this setting, a setting where the Commissioner's own internal guidance plainly did not believe this rule should go. Therefore, we recommend that the Court should not extend this borderline age rule to cases in which reliance upon the claimant's chronological age has led to a partially favorable outcome since: "This is not a borderline age situation." SSA, Program Operations Manual (POMS) DI 25015.006, Borderline Age, https://secure.ssa.gov/poms.nsf/lnx/0425015006 (July 2017).

While this recommendation addresses the principal legal issue raised in this appeal, we have also considered whether the ALJ's factual conclusion that Antal retained the ability to perform a limited range of sedentary work prior to attaining the age of 50 was supported by substantial evidence. We find that it was and therefore recommend that this decision be affirmed.

B. Substantial Evidence Supported the ALJ's Finding that Antal Retained the Residual Functional Capacity to Perform a Limited Range of Sedentary Work Prior to Age 50.

To receive disability benefits, a claimant like Antal must present evidence that demonstrates that the claimant has an inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §423(d)(1)(A); 42 U.S.C. §1382c(a)(3)(A); see also 20 C.F.R. §§404.1505(a), 416.905(a). In making this disability determination the ALJ employs a five-step evaluation process to determine if a person is eligible for disability benefits. See 20 C.F.R. §§ 404.1520, 416.920; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). If the ALJ finds that a claimant is disabled or not disabled at any point in the sequence, review does not proceed any further. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). As part of this analysis the ALJ must sequentially determine: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; and (3) whether the claimant's impairment meets or equals a listed impairment.

Once the ALJ completes this Step 3 analysis, at Steps 4 and 5 of this sequential analysis the ALJ must determine whether the claimant's impairment prevents the claimant from doing past relevant work; and whether the claimant's impairment prevents the claimant from doing any other work. Id. Before considering Step 4 in this process, the ALJ must also determine the claimant's residual functional capacity, or RFC. 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is defined as "that which an individual is still able to do despite the limitations caused by his or her impairment(s)." Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. §§ 404.1545, 416.945. In making this assessment, the ALJ considers all of the claimant's impairments, including any medically determinable nonsevere impairments. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2).

At Steps 1 through 4, the claimant bears the initial burden of demonstrating the existence of a medically determinable impairment that prevents him or her from engaging in any of his or her past relevant work. 42 U.S.C. §1382c(a)(3)(H)(i)(incorporating 42 U.S.C. §423(d)(5) by reference); 20 C.F.R. §416.912; Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). Once the claimant has met this burden, the burden then shifts to the Commissioner at Step 5 to show that jobs exist in significant number in the national economy that the claimant could perform that are consistent with the claimant's age, education, work experience and RFC. 20 C.F.R. §416.912(f); Mason, 994 F.2d at 1064.

The ALJ's disability determination must also meet certain basic procedural and substantive requirements. Most significant among these legal benchmarks is a requirement that the ALJ adequately explain the legal and factual basis for this disability determination. Thus, in order to facilitate review of the decision under the substantial evidence standard, the ALJ's decision must be accompanied by "a clear and satisfactory explication of the basis on which it rests." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). Conflicts in the evidence must be resolved and the ALJ must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Id. at 706-707. In addition, "[t]he ALJ must indicate in his decision which evidence he [or she] has rejected and which he [or she] is relying on as the basis for his [or her] finding." Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999). In short, an ALJ's disability determination must also adequately explain the legal and factual basis for this disability determination. This burden of articulation applies with particular force to all aspects of an ALJ's assessment and evaluation of what is often conflicting evidence. Thus, "[w]hen a conflict in the evidence exists, the ALJ may choose whom to credit but 'cannot reject evidence for no reason or for the wrong reason.'" Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)).

Once the ALJ has made a disability determination, it is then the responsibility of this Court to independently review that finding. In undertaking this task, this Court applies a specific, well-settled and carefully articulated standard of review. In an action under 42 U.S.C. § 405(g) or 42 U.S.C. §1383(c)(3) to review the decision of the Commissioner of Social Security denying a claim for disability benefits, the "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive[.]" 42 U.S.C. § 405(g).

The "substantial evidence" standard of review prescribed by statute is a deferential standard of review. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). When reviewing the denial of disability benefits, we must simply determine whether the denial is supported by substantial evidence. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); see also Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 565 (1988). It is less than a preponderance of the evidence but more than a mere scintilla of proof. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Plummer, 186 F.3d at 427 (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)).

A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason, 994 F.2d at 1064. However, in an adequately developed factual record, substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the decision] from being supported by substantial evidence." Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966). In determining if the ALJ's decision is supported by substantial evidence the court may not parse the record but rather must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981); Leslie v. Barnhart, 304 F. Supp. 2d 623, 627 (M.D. Pa. 2003). The question before this Court, therefore, is not whether a claimant is disabled, but whether the Commissioner's finding that he was not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 U.S. Dist. LEXIS 31292, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) ("[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.") (alterations omitted); Burton v. Schweiker, 512 F. Supp. 913, 914 (W.D. Pa. 1981) ("The Secretary's determination as to the status of a claim requires the correct application of the law to the facts."); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012) ("[T]he court has plenary review of all legal issues . . . .").

Guided by these legal benchmarks we find that substantial evidence supported the ALJ's findings in this case that prior to reaching the age of 50 Antal could only perform a limited range of sedentary work due to his combined wrist, arm, shoulder, hip and back impairments. Moreover, consistent with the testimony of the vocational expert, this residual functional capacity assessment yielded a conclusion that there were jobs in substantial numbers in the regional and national economy which Antal could have performed prior to his 50th birthday. On this score, the ALJ's decision carefully canvassed the treatment and opinion evidence, and the residual functional capacity assessment ultimately arrived at by the ALJ drew upon this medical evidence to establish a factually well-grounded evaluation of the limited scope of work Antal could still perform. Moreover, in our view, this analysis met the burden of articulation demanded by the courts. Thus, the ALJ's decision specifically identified what evidence the ALJ found to be not credible and explained why this evidence lacked credibility. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (citing Stewart v. Sec'y of Health, Education and Welfare, 714 F.2d 287, 290 (3d Cir. 1983)).

In sum, the ALJ's assessment of the evidence in this case relating to Antal's ability to perform a limited range of sedentary work prior to attaining the age of 50 complied with the dictates of the law and was supported by substantial evidence. This is all that the law requires, and all that a claimant like Antal can demand in a disability proceeding. Therefore, we are obliged to affirm this ruling once we find that it is "supported by substantial evidence, 'even [where] this court acting de novo might have reached a different conclusion.'" Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986) (quoting Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986)). Accordingly, under the deferential standard of review that applies to appeals of Social Security disability determinations we conclude that substantial evidence supported the ALJ's evaluation of this case. Therefore, we recommend that the district court affirm this partially favorable decision, direct that judgment be entered in favor of the defendant, and instruct the clerk to close this case.

IV. Recommendation

For the foregoing reasons, the partially favorable decision of the Commissioner should be affirmed and the plaintiff's appeal denied.

The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive

further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.


Submitted this 26th day of July, 2018.

/s/ Martin C . Carlson


Martin C. Carlson


United States Magistrate Judge