Summary
In Hines v. Barnhart, 2003 WL 23323615, *5 (N.D. Tex. 2003), citing Ripley v. Chater, 67 F.3d 552, 557 n. 22 (5th Cir. 1995), the Court noted that prejudice results from an Appeals Council's violation of agency rules such as those set forth in HALLEX if the new or additional evidence presented to the Appeals Council might have led to a different decision.
Summary of this case from Speights v. BarnhartOpinion
NO. 4:02-CV-493-Y
June 5, 2003
Morgan Weisbrod, Gal Lahat, Dallas, Texas, for PLAINTIFF(S)
Howard Alan Borg, Assistant U.S. Attorney, Fort Worth, Texas, for DEFENDANT(S)
FINDINGS. CONCLUSIONS. AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This case was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendations of the United States Magistrate Judge are as follows:
FINDINGS, CONCLUSIONS
A. STATEMENT OF THE CASE
Plaintiff Burnest Hines brings this action pursuant to Section 405(g) of the Social Security Act, Title 42 of the United States Code, for judicial review of a final decision of the Commissioner of the Social Security Administration denying Hines's claim for a closed period of disability insurance benefits under Title II of the Social Security Act. Hines applied for disability benefits on April 8, 1999, claiming disability as of January 19, 1999 primarily due to back problems. (Tr. 39-41.) He met the insured status requirements at all times relevant to the administrative decision now at issue.
The Social Security Administration denied Hines's application for benefits both initially and on reconsideration. (Tr. 22, 28.) Hines requested a hearing before an administrative law judge (ALJ), and ALJ William H. Helsper held a hearing on October 31, 2000, in Fort Worth, Texas. (Tr. 250.) Hines was represented by counsel. (Tr. 19.) On December 21, 2000, the ALJ issued his decision that Hines was not disabled because he had the residual functional capacity (RFC) to perform work not exceeding the light exertional level. (Tr. 11-16.) The Appeals Council denied Hines's request for review of his case, leaving the ALJ's decision to stand as the final decision of the Commissioner. (Tr. 4.)
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b), 416.967(b) (2002).
B. ADMINISTRATIVE RECORD
1. Medical Records
Hines was born August 11, 1946. (Tr. 20.) He has a high school education and completed three years of junior college. (Tr. 62, 251.) His past relevant work experience consists of a contract job as a mail carrier for the United States Postal Service from 1993 through 1999, and assembly work with an air conditioner manufacturer from 1972 through 1991. (Tr. 57, 251.)
Hines has a history of back complaints. In 1997, magnetic resonance imaging (an MRI) of his lumbar spine showed a moderate diffuse posterior protruding disc at L4-L5 with some disc desiccation and mild encroachment of the L4-L5 exiting neuroforamen. (Tr. 154-55.) Hines told neurosurgeon Warren Wilson that he felt stiff in the mornings, but was still able to work a full eight-hour shift at the post office. (Tr. 170.) After discussing the matter, Hines decided that his symptoms did not require surgery, and Wilson agreed. (Tr. 170-71.)
In June 1998, the Postal Service sent Hines to Roger S. Blair, M.D., for a functional capacity evaluation. (Tr. 227.) Hines stated at that time that he did not have pain in his back or legs, and that he was able to perform his duties at work without difficulty. ( Id.) Blair observed Hines walking, sitting, bending, reaching, squatting and stair-climbing, and noted that Hines performed all of those activities well. (Tr. 229.) Sensation was intact, and there was no significant muscle spasm or tenderness in Hines's back. (Tr. 228.) Blair concluded that Hines could function in the "super-heavy work-lifting capacity," and could carry out all of the duties of a mail letter carrier with safety. (Tr. 229.) He responded to the Postal Service's question of whether Hines was at a higher risk level than other employees for back injuries by stating that Hines was generally stronger and more capable than most of the population, despite the protruding disc in his back. (Id)
Hines was also examined in June 1998 by J. John Stasikowski, M.D., P.A., during a pre-employment physical for the Postal Service. (Tr. 156.) Hines said he never had low back pain, but suffered from pain in his buttocks each morning. (Id.) Hines attributed his problems to an on-the-job injury. ( Id.) On examination, Hines exhibited good alignment in his lumbosacral spine, with no evidence of muscle spasm. (Tr. 157.) Motor strength was excellent, and there was no evidence of dermatomal sensory deficits. ( Id.) X-rays did show narrowing of the L4-L5 disc space, and Hines's 1997 MRI showed a significant disc protrusion. ( Id.) Stasikowski diagnosed spinal stenosis with L4-L5 disc protrusion, and opined that Hines was at greater risk of back injury than other employees without a back condition. ( Id.) Stasiklowski recommended very stringent limitations on Hines' activities, including a lifting limit of fifteen pounds, no bending, no twisting, no prolonged walking, no climbing, and no driving. (Id) Based on Blair's and Stasikowski's reports, James Kelley, a Postal Service Medical Officer, recommended that Mines be restricted to lifting no more than fifteen pounds, and that he avoid bending and twisting. (Tr. 219.)
Hines stopped working on January 19, 1999. (Tr. 56.) He reported to his doctor, James Steven Cole, in March 1999 that he had recently retired, and in June, complained that he was relieved of his duties at the post office because of Kelley's report. (Tr. 75.) Cole noted that Hines was obviously upset about this, but opined that Hines did not have a chronic condition that would prevent him from being gainfully employed. (Id) Cole encouraged Hines to seek out other work so long as it did not require repetitive lifting. (Id)
In June 1999, Hines was examined by Errol B. Bryce, M.D., on behalf of the Texas Rehabilitation Commission (TRC). (Tr. 102-05.) Hines complained of intermittent back and leg pain. (Tr. 102.) Bryce found that Hines had full range of motion throughout all joints, with no indication of pain or tenderness. (Tr. 104.) Hines was able to sit, stand, reach, squat, tandem walk, and heel and toe walk without difficulty. (Id) Bryce assessed a radiculopathy, but informed the TRC that he found no evidence of limitations pertaining to Hines. (Tr. 105.)
In October 1999, Hines saw surgeon Warren Wilson again for complaints of bilateral leg pain, especially on the left side. (Tr. 169.) Hines was still able to walk on a treadmill, and reported that the exercise actually improved his pain. (Id) Wilson ordered further diagnostic tests. (Id)
A lumbosacral myelogram was performed on January 13, 2000, and revealed severe central canal stenosis at L4-L5, most likely related to a large disc herniation. (Tr. 159.) A computed tomography (CT) scan performed that same day confirmed a large extruded disc herniation at L4-L5 with near complete obliteration of the thecal sac. (Tr. 160.) Wilson recommended surgery. (Tr. 168.) Mines underwent decompression surgery and a vertebral fusion at L4-L5 on March 22, 2000. (Tr. 173-80.) There were no significant complications, and he was discharged from the hospital after one week. (Tr. 173.)
On May 3, 2000, Hines's back surgeon, William Coleman, MD., indicated that Mines was doing extremely well six weeks after his surgery, with no back or leg pain. (Tr. 244.) Mines also reported walking two miles per day. (Tr. 244, 247.) On June 19, 2000, Coleman stated that Mines was doing quite well. (Tr. 241.) He reported a little back soreness at the end of the day, but no leg pain. (Id) Both in May and June, examinations showed that Hines had negative straight leg raising bilaterally, and both lower extremities were intact neurologically. (Tr. 241, 244).
2. Administrative Hearing
Hines was 54 years old on the date of the administrative hearing, and testified that he had completed three years of junior college. (Tr. 251.) He testified that he stopped working for the post office in January 1999 due to severe back and leg pain, but was currently employed as a full-time driver with the American Red Gross. (Tr. 251-52.) He transported patients to and from their treatments. (Tr. 252.) Hines had been working for about three weeks and was successfully performing the job with no accommodations. (Tr. 252-53, 259.)
Hines was unsure how he had originally injured his back, although he had worked for many years despite his back problems. (Tr. 41, 43, 57, 171, 255-56.) He began having problems with his legs in addition to the back pain he usually suffered, and he stated that by January 1999, his back and leg pain had progressed to the point that he could no longer perform his work at the Postal Service. (Tr. 252, 255, 256,) Hines's job with the Postal Service required moving mail from large trucks, delivering it to mail rooms on gurneys, walking a mail route while carrying a forty-pound bag, and collecting mail. (Tr 266-67.) Hines testified that his pain also precluded a return to his previous work as an air-conditioning assembler. (Tr. 57, 257.) After he stopped working, Hines stayed home most of the time, spending his days alternating between sitting, walking and lying down. (Tr. 253, 257.) He also tried chiropractic treatment and therapy. (Tr. 257.) During this time, he remained able to wash dishes, vacuum, drive, and attend church once a week. (Tr. 262-63.) He testified that walking had not been a problem for him, and that it even helped to loosen and relax his muscles, but that he was unable to go grocery shopping because walking and standing in the supermarket aggravated his back pain. (Tr. 261, 262.) The surgery he underwent in March 2000 had resolved his leg problems, but not his back pain. (Tr. 253.) He was released to return to work on June 20, 2000, with the restrictions of no bending, twisting, continuously stooping or lifting. (Tr. 258.)
In addition to his back problems, Hines has been on medication to control high blood pressure since he was twenty years old. (Tr. 254.) He also has heart problems, which are controlled with medication and do not interfere with his ability to work. (Tr. 259-60.)
Pursuant to S.S. Rule. 96-6p, the medical expert opinions of state agency medical consultants Dr. James Gorman and Dr. John Duffer were also introduced into the record. Both doctors found that Hines had no severe impairments. (Tr. 106, 240.)
3. ALJ Decision
The ALJ found that Mines had not engaged in substantial gainful activity after his alleged onset date and had a number of severe impairments: severe lumbar disc protrusion, spinal stenosis, hypertension, and chronic low back pain. (Tr. 17.) Although severe, none of his impairments or combination of impairments were found to medically equal any listed impairment. Instead, the ALJ found that Hines possessed the residual functional capacity (RFC) for light work activity requiring lifting or carrying no more than 20 pounds occasionally and 10 pounds frequently. ( Id.) The ALJ found that Hines could sit, stand or walk for six hours per workday, and push or pull without limitation, other than the limitations on his ability to lift and carry. ( Id.) Finally, the ALJ found that Hines' RFC was compatible with his past relevant work as an assembler, and accordingly, found that Hines was not disabled at Step Four of the sequential evaluation process. (Tr. 17-18.)
4. Appeals Council Evidence
Hines's attorney submitted a brief to the Appeals Council in support of a request for review of the ALJ's decision, and also provided a letter dated March 14, 2001, from Hines's back surgeon, William Coleman. (Tr. 7, 270-77.) In his letter, Coleman indicates that from January 1999 through July or August 2000, Hines's back problems would have caused a level of pain and discomfort that would have made it extremely difficult for Hines to perform even light duty work on a regular basis. (Tr. 275.) Coleman also recommended that Hines continue to avoid any strenuous work activity involving lifting, pushing or pulling of more than ten pounds, prolonged standing, or more than occasional bending or twisting. ( Id.)
C. STANDARD OF REVIEW
The Social Security Act defines a disability as a medically determinable physical or mental impairment lasting at least twelve months that prevents the claimant from engaging in substantial gainful activity. 42 U.S.C.A. § 423(d)(lXA) (West 2003); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999). To determine whether a claimant is disabled, and thus entitled to disability benefits, a five-step analysis is employed. 20 C.F.R. § 404.1520 (2002). First, the claimant must not be presently working at any substantial gainful activity. Id. § 404.1520(a). Substantial gainful activity is defined as work activity involving the use of significant physical or mental abilities for pay or profit. 20 C.F.R. § 404.1527 (2002). Second, the claimant must have an impairment or combination of impairments that is severe. 20 C.F.R. § 404.1520(a). An impairment or combination of impairments is severe if it significantly limits a claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). The third step requires the claimant's impairment or combination of impairments to meet or equal an impairment listed in the appendix to the regulations. Id § 404.1520(d). Fourth, if disability cannot be found on the basis of the claimant's medical status alone, the impairment or impairments must prevent the claimant from returning to his past relevant work. Id. § 404.1520(e). Finally, the impairment must prevent the claimant from doing any work, considering the claimant's RFC, age, education, and past work experience. Id. § 404.1520(f); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999).
At steps one through four, the burden of proof rests upon the claimant to show that he is disabled. Crowley, 197 F.3dat 198. If the claimant satisfies this responsibility, then the burden shifts to the Commissioner at step five to show that there is other gainful employment that the claimant is capable of performing in spite of his existing impairments. Id. If the Commissioner meets this burden, then the claimant must prove that he in fact cannot perform the alternate work. Id. A finding at any point in the five-step process that the claimant is disabled or not disabled is conclusive and terminates the analysis. Bowling v, Shalala, 36 F.3d 431, 435 (5th Cir. 1994).
A denial of disability benefits is reviewed only to determine whether the Commissioner applied the correct legal standards and whether the decision is supported by substantial evidence in the record as a whole. Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002); Leggett v. Chafer, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837 F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is such relevant evidence as a responsible mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is more than a mere scintilla, but less than a preponderance. Masterson, 309 F.3d at 272; Boyd, 293 F.3d at 704. A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision. Boyd, 293 F.3d at 704. This Court may neither reweigh the evidence in the record nor substitute its judgment for the Commissioner's, but will carefully scrutinize the record to determine if the evidence is present. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Hollis, 837 F.2d at 1383.
D. DISCUSSION
1. Appeals Council's Failure to Consider New Evidence
Hines contends that he was prejudiced by the Appeals Council's failure to consider additional evidence that he submitted, i.e., the March 2001 letter from his surgeon, or in the alternative, by the Appeals Council's failure to associate the new evidence and legal argument with his file. The letter was submitted for the first time to the Appeals Council as additional evidence on February 20, 2002, (PL Br. 6), and the Appeals Council refused review of the case on March 29, 2002. (Tr. 4-5). The Appeals Council issued a standard denial letter indicating that it had considered Hines request for review, but found no grounds for disturbing the ALJ's decision. (Tr. 4-5). The refusal does not specifically acknowledge receipt or consideration of the physician's statement. (Tr. 4-5).
The Hearings. Appeals and Litigation Law Manual (HALLEX) provides that the Appeals Council will specifically address additional evidence or legal arguments submitted to it in connection with a request for review. Hearings, Appeals and Litigation Law Manual § 1-3-501, available at 1993 WL 643141. Although HALLEX does not carry the authority of law, "where the rights of individuals are affected, an agency must follow its own procedures, even where the internal procedures are more rigorous than otherwise would be required." Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000) (citing Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. 1981) (per curiam)). Should prejudice result from a violation of the agency's internal rules, then the result cannot stand. Newton, 209 F.3d at 459. In failing to specifically address Hines' new evidence, the Appeals Council neglected to comply with its own procedures.
Prejudice results if the additional evidence might have led to a different decision. Cf. Ripley v. Chater, 67 F.3d 552, 557 n. 22 (5th Cir. 1995) (prejudice established by showing that if ALJ had fully developed the record, the additional evidence might have led to a different decision); Newton, 209 F.3d at 458 (citing Ripley). In Newton, the Fifth Circuit concluded that the failure to follow § 1-3-501 did not result in prejudice, because the plaintiff's new medical evidence consisted of opinions regarding her condition for a time period (1995 1996) outside of her claimed disability period (1989-1994). 209 F.3d at 459-60. Therefore, the court found that the new evidence was not relevant. Id. at 460.
That is not the case here. Hines applied for disability benefits on April 8, 1999, and he claimed disability as of January 19, 1999. Hines's new evidence consisted of a letter from Hines's back surgeon, Dr. William Coleman, in which he stated that from January 1999 through July or August 2000, Hines' back problems caused a level of pain and discomfort that would have made it extremely difficult for Hines to perform even light duty work on a regular basis, and that Coleman recommended that Hines avoid any strenuous work activity involving lifting, pushing or pulling of more than ten pounds, prolonged standing, or more than occasional bending or twisting. The Appeals Council decision fails to specifically address Coleman's letter. Because the new evidence was relevant and because consideration of it by the Appeals Council might have led to a different decision, Hines was prejudiced. Therefore, the case should be reversed and remanded for further consideration by the Commissioner.
2. Residual Functional Capacity Determination
Hines also challenges the ALJ's determination that Hines had the residual functional capacity (RFC) to perform the full range of light work activity during the period of January 1999 through June 2000. RFC describes the claimant's ability to work despite any impairments. 20C.F.R. § 4 04.1545(a) (2002). The ALJ determines a claimant's RFC by taking into consideration all relevant evidence, including medical records, observations of treating physicians and others, and testimony or statements of the claimant. 20 C.F.R. § 404.1545-46, 416.945-46 (2002); Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). The court's review is limited to determining whether the Secretary's decision is supported by substantial evidence in the record and whether proper legal standards were applied in reaching that decision. Ripley, 67 F.3d at 555. The court may not re-weigh the evidence nor may it substitute its judgment for that of the Commissioner. Masterson, 309 F.3d at 272. Conflicts in the evidence are for the Commissioner to resolve, not the courts. Masterson, 309 F.3d 272.
Hines challenges the ALJ's findings that he could lift and carry twenty pounds occasionally and ten pounds frequently; sit, stand, and walk for six hours out of an eight hour workday; and push or pull without limitations other than those imposed for lifting and carrying. To this end, Hines points to his own testimony that he was limited to lifting ten pounds; that he had difficulty standing and could stand for only about thirty minutes at a time; that he could not perform the required standing, bending, and twisting necessary to do the lifting required of his past assembly work; and that his prescribed muscle relaxants made him drowsy and he took naps during the day. (Tr. 256-58, 262, 264.) Hines also points to Dr. Kelley's written statement that Hines should be restricted to lifting no more than fifteen pounds and should avoid bending and twisting. (Tr. 219.)
Hines also points to Dr. Coleman's written statement that Hines should not return to any work activity that would involve lifting, pushing, or pulling of more than ten pounds, prolonged standing, or require more than occasional bending and twisting. (Tr. 275.) However, as noted earlier, this statement was presented as new evidence to the Appeals Council and was never put forward to or considered by the ALJ.
Beside Hines's own testimony and Dr. Kelley's written statement, the ALJ also considered the following evidence: (1) Dr. Cole's June 1999 report that Hines did not have a chronic condition that would keep him from being gainfully employed and Cole's advice that Hines should seek employment in a field not requiring repetitive lifting (Tr. 75.); (2) Dr. Bryce's report, following his June 1999 examination of Hines, that Hines had no limitations and that his physical and neurological examinations were essentially normal, except for some radiculopathy (Tr. 104-05.); (3) Dr. Coleman's May 2000 report that Hines's straight leg raising was negative and his lower extremities were intact with a good fusion at the L4-L5 level bilaterally (Tr. 244.); (4) Dr. Coleman's assessment, in June 2000, that Hines had significant improvement in his trunk strength, endurance and flexibility (Tr. 246.); (5) the medical expert opinions of Dr. Gorman and Dr. Durfor that Hines was not proved to have a severe impairment. (Tr. 106, 240.)
Given all this, the administrative record contains substantial evidence supporting the ALJ's determination Hines was not disabled because he had the residual functional capacity to perform work not exceeding the light exertional level.
3. Step Four Comparison of RFC and Past Relevant Work
Hines argues that the ALJ's Step Four analysis was improper because the ALJ failed to make legally required findings in determining that Hines could perform his past relevant work. Hines also argues the findings the ALJ did make are contrary to the Dictionary of Occupational Titles (DOT) and the record.
In determining whether a claimant can return to his past relevant work (i.e., step four of the five-step analysis), an ALJ must make three distinct determinations. In the first phase, he must evaluate a claimant's physical and mental RFC. Winfrey v. Chafer, 92 F.3d 1017, 1023 (10th Cir. 1996). In the second phase, he must determine the physical and mental demands of the claimant's past relevant work. Id. Finally, he must determine whether the claimant has the ability to meet the job demands found in the second phase, despite the mental and/or physical limitations found in phase one. Id At each phase, the ALJ must make specific findings. Id. When making a finding that an applicant can return to his past work, the ALJ must directly compare the claimant's remaining functional capacities with the physical and mental demands of his previous work. Latham v. Shalala, 36 F.3d 482, 484 (5th Cir. 1994).
On his Disability Report, Hines stated that his past work as an assembler required him to walk two hours per day, stand eight hours per day, stoop two hours per day, and handle large objects two hours per day. (Tr. 57). He stated that the heaviest weight he lifted at that job was ten pounds, and that he frequently lifted ten pounds. ( Id.) He stated that he used machines, tools or equipment, and that he used technical knowledge or skills. He also stated that he lifted electrical control boxes and carried them eight to ten feet. At the hearing, Hines stated that he was prevented from going back to assembly work because "[t]he pain had bec[o]me worse in my legs and back. At the time, I couldn't do anything."
Following his determination of Hines's RFC, the ALJ's determination of whether Hines could return to his past relevant work consists of the following:
The claimant's past relevant work was as a postal mail carrier and an assembler. The claimant's job as a postal mail carrier was performed at the heavy, semi-skilled level, and his job as an assembler was performed at the sedentary, unskilled level. Given that the claimant is 54 years old, which is considered a younger individual, has a 12th grade education, the above listed past work experience and residual functional capacity, the undersigned finds that the claimant can perform his past relevant work as an assembler.
(Tr. 16.) It is not sufficient for an ALJ to describe a claimant's job in a generic way (e.g., "sedentary") and conclude, on the basis of the claimant's RFC, that he can return to his previous work. Latham, 36 F.3d at 484; Nolen v. Sullivan, 939 F.2d 516, 518 (7th Cir. 1991). Instead, the ALJ must list the specific physical requirements of the previous job and assess the claimant's ability to perform that job. Latham, 36 F.3d at 484; Epps v. Harris, 624 F.2d 1267, 1274 (5th Cir. 1980); Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001).
In the present case, the ALJ did not follow proper procedure. He described Hines's previous assembler job genetically, as "sedentary" and "unskilled," and then summarily concluded that Hines could return to that work. There is no listing of the specific physical requirements of the assembler job, and no assessment of Hines's ability to perform that job. Therefore, the case should be remanded and reversed for further consideration by the Commissioner.
Hines also claims that the findings that the ALJ did make are contrary to the Dictionary of Occupational Titles (DOT). According to the DOT, the strength required for an appliance assembler is "medium work" and the "[p]hysical demand requirements are in excess of those for Light Work." Dictionary of Occupational Titles § 827.684-010, available at Westlaw, DICOT 827.684-010. However, the DOT is only one possible source to be used in determining a plaintiff's ability to meet the job demands of his past relevant work. S.S. Rul. 82-62. In other contexts, the Fifth Circuit has found that "the DOT is not comprehensive, in that it cannot and does not purport to include each and every specific skill or qualification for a particular job." Carey v. Apfel, 230 F.3d 131, 145 (5th Cir. 2000) (citing Fields v. Bowen, 805 F.2d 1168, 1171 (5th Cir. 1986)). Therefore, the fact that the ALJ's findings are contrary to the DOT is not, in and of itself, an indication that the findings are erroneous.
RECOMMENDATION
It is recommended that the decision of the Commissioner be reversed and the case remanded for further administrative proceedings.NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C.A. § 636(b)(1) (West Supp. 2003), each party to this action has the right to serve and file specific written objections in the United States District Court to the United State's Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is hereby extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until June 26, 2003. The United States District Judge need only make a de novo determination of those portions of the United State's Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C.A. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual findings and legal conclusions accepted by the United States District Judge. See Douglass v. United Svcs. Auto Ass X 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).ORDER
Under 28 U.S.C.A. § 636, it is hereby ordered that each party is granted until June 26, 2003, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.