The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
SARAH M. G., )
)
Plaintiff, )
)
v. ) Case No. CIV-25-1510-JD
)
FRANK BISIGNANO, )
COMMISSIONER )
OF SOCIAL SECURITY, )
)
Defendant. )
REPORT AND RECOMMENDATION
Sarah M. G.1 (Plaintiff) seeks judicial review of the Commissioner of
Social Security’s final decision that she was not “disabled” under the Social
Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). United States District Judge Jodi
W. Dishman referred the case to the undersigned Magistrate Judge for
submission of findings and recommendations consistent with 28 U.S.C. §
636(b)(1)(B), (C), and Federal Rule of Civil Procedure 72(b). Doc. 7.2
1 The Court refers to Plaintiff by first name and last initial only to protect
Plaintiff’s privacy because of the sensitive nature of medical and personal
information disclosed in Social Security cases.
2 Citations to the parties’ pleadings and attached exhibits will refer to this
Court’s CM/ECF pagination. Citations to the administrative record (AR) will
refer to its original pagination.
Plaintiff asks this Court to reverse the Commissioner’s decision and
remand the case for further proceedings, arguing that the Administrative Law
Judge (ALJ) failed to account for Plaintiff’s proliferative diabetic retinopathy,
failed to comply with SSR 19-2p in evaluating Plaintiff’s obesity, and failed to
make adequate findings about Plaintiff’s past relevant work at step four. Doc.
6, at 2-15. After careful review of the administrative record (AR), the parties’
briefs, and the relevant authority, the undersigned recommends that the Court
reverse the Commissioner’s decision. See 42 U.S.C. § 405(g). The undersigned
finds that the ALJ’s failure to consider Plaintiff’s proliferative diabetic
retinopathy at step four requires remand, see Doc. 6, at 3-10, and does not
address Plaintiff’s additional arguments.
I. Administrative determination.
A. Disability standard.
On January 3, 2023, Plaintiff filed a Title II application for disability
insurance benefits, alleging disability beginning November 1, 2021. AR 280;
see 42 U.S.C. §§ 401-434.
The Social Security Act defines “disability” as the 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
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than [twelve] months.” 42 U.S.C. § 423(d)(1)(A). “This twelve-month duration
requirement applies to the claimant’s inability to engage in any substantial
gainful activity, and not just [the claimant’s] underlying impairment.” Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535
U.S. 212, 218-19 (2002)).
B. Burden of proof.
Plaintiff “bears the burden of establishing a disability” and of “ma[king]
a prima facie showing that [s]he can no longer engage in h[er] prior work
activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff
makes that prima facie showing, the burden of proof then shifts to the
Commissioner to show Plaintiff “retains the capacity to perform” a different
type of work and that such a “specific type of job exists in the national
economy.” Id. (quoting Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984)).
C. Relevant findings.
1. ALJ’s findings.
The ALJ applied the standard regulatory analysis to decide whether
Plaintiff was disabled during the relevant timeframe. AR 27-39; see 20 C.F.R.
§ 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)
(describing the five-step framework). The ALJ found Plaintiff:
(1) had not engaged in substantial gainful activity since November 1,
2021, the alleged onset date;
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(2) had the severe medically determinable impairments of diabetes
mellitus with neuropathy; diabetic retinopathy; degenerative disc
disease; right shoulder disorder; hypertension; obstructive sleep
apnea; and obesity;
(3) had no impairment or combination of impairments that met or
medically equaled the severity of a listed impairment;
(4) had the residual functional capacity (“RFC”) to perform light work
as defined in 20 C.F.R. § 404.1567(b) with certain restrictions: she
can occasionally climb ramps and stairs, balance, stoop, crouch,
and crawl; cannot climb ladders, ropes or scaffolds; can frequently
reach in all directions with her right upper extremity; can
frequently reach with her left upper extremity; and should avoid
all exposure to hazards such as unprotected heights and heavy
machinery;3
(5) is capable of performing past relevant work as a general clerk; and
(6) had not been under a disability since November 1, 2021.
AR 29-39.
2. Appeals Council’s findings.
The Social Security Administration’s Appeals Council denied Plaintiff’s
request for review, see id. at 5-7, “making the ALJ’s decision the
Commissioner’s final decision for [judicial] review.” Krauser v. Astrue, 638 F.3d
1324, 1327 (10th Cir. 2011); see 20 C.F.R. § 404.981.
3 “[R]esidual functional capacity is the most [a claimant] can still do
despite [a claimant’s] limitations.” 20 C.F.R. § 404.1545(a).
4
II. Judicial review of the Commissioner’s decision.
A. Review standard.
The Court reviews the Commissioner’s final decision to determine
“whether substantial evidence supports the factual findings and whether the
ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326,
1330 (10th Cir. 2016). “An agency decision that either applies an incorrect legal
standard or is unsupported by substantial evidence is subject to reversal.”
Staheli v. Comm’r, SSA, 84 F.4th 901, 905 (10th Cir. 2023).
“Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (quoting Wilson v.
Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010)); see also Lax, 489 F.3d at 1084
(defining substantial evidence as “more than a scintilla, but less than a
preponderance”). “[T]he threshold . . . is not high.” Biestek v. Berryhill, 587 U.S.
97, 103 (2019). The Court “will not reweigh the evidence or substitute [its]
judgment for the Commissioner’s.” Lax, 489 F.3d at 1084 (quoting Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)). Thus, “[t]he possibility of
drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency’s findings from being supported by substantial
evidence.” Id. (quoting Zoltanski v. FAA, 372 F.3d 1195, 1200 (10th Cir. 2004)).
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“[T]he failure to apply proper legal standards, may under the
appropriate circumstances, be sufficient grounds for reversal independent of
the substantial evidence analysis.” Hendron v. Colvin, 767 F.3d 951, 954 (10th
Cir. 2014) (quotations omitted). This Court “consider[s] whether the ALJ
followed the specific rules of law that must be followed in weighing particular
types of evidence in disability cases, but we will not reweigh the evidence or
substitute our judgment for the Commissioner’s.” Lax, 489 F.3d at 1084
(quoting Hackett, 395 F.3d at 1172). But the failure to apply the proper legal
standard requires reversal only where the error was harmful. Cf. Shinseki v.
Sanders, 556 U.S. 396, 409 (2009) (placing the burden to show harmful error
on the party challenging an agency’s determination).
B. The administrative record.
Plaintiff argues that “[t]he ALJ’s hypothetical question and RFC are
fatally flawed and are not supported by substantial evidence as required.” Doc.
6, at 2. Plaintiff has proliferative diabetic retinopathy, including macular
edema, and has suffered vitreous and intraretinal hemorrhages. AR 534-64,
713-92, 933-92, 1018-44, 1088-1100. In December 2021, October 2023, January
2024, and June 2024, Plaintiff received intravitreal injections. AR 724, 1021,
1094-95.
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The ALJ convened an initial hearing on Plaintiff’s disability application
on May 2, 2024. Id. at 95. Upon hearing an opening statement by Plaintiff’s
attorney and Plaintiff’s testimony concerning her vision, the ALJ then
continued the hearing to obtain an ophthalmology medical expert. Id. at 105.
At the second hearing, on September 23, 2024, the ALJ heard the
testimony of impartial medical expert William Nevins, MD, a board-certified
ophthalmologist. AR 75-89. Dr. Nevins reviewed Plaintiff’s history of vision
issues and testified that Plaintiff
probably drives carefully. She does not do well at night, because a
little bit of her retinas have been destroyed by panretinal
coagulation, which makes her function poorly at night. She has
decreased stereopsis. She has some depth, but probably has
decreased stereopsis by the decrease in her visual acuity. Her color
vision may be variable because she’s had macular edema in the
past, and this might affect her in -- if she was, like, oh, working at
a furniture store, she had colors of couches and stuff like this, or a
rush job. Glare may well bother her because she’s had cataract
surgery, and she has posterior capsular opacifications beginning
and that can scatter light a little bit. She suffers from dry eyes.
She’s had punctal plugs. This would be a problem in windy and
dusty conditions, and perhaps on the computer for extended times
because we blink less frequently when we’re looking at the
computer.
Id. at 78. Dr. Nevins concluded that Plaintiff could look at a computer monitor
all day but would require frequent short breaks and “might be slow on task[]”
as a result. Id. at 85-87. Dr. Nevins noted that with Plaintiff’s history of
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vitreous hemorrhages and macular edema, Plaintiff may have to “work with
one eye . . . . [w]hich would probably slow her down even more.” Id. at 87-88.
The ALJ then continued the hearing a second time to “hav[e] another
hearing with . . . [an] internal medicine ME and have that doctor cover all the
impairments[.]” AR 89. The third hearing convened on October 21, 2024, and
the ALJ heard the testimony of impartial medical expert Subramaniam
Krishnamurthi, MD, who is board certified in internal medicine and
cardiology. Id. at 48, 51-56. Dr. Krishnamurthi listed Plaintiff’s diabetic
retinopathy as a severe impairment but did not impose any visual limitations,
and testified that Plaintiff could “look[] at a computer screen throughout an
eight-hour workday[]” without limitations. Id. at 54-56.
Plaintiff also testified. AR 57-64. When asked about looking at a
computer screen she indicated:
It’s variable. For example, I can look for a little while and then my
eyes start getting blurry, and then I can try it again. But one thing
that happens also – because I can adjust things for size. But the
contrast on most computer programs that are custom to the job,
you don’t have a lot of control over. And if, for example, their color
scheme is gray, like a light gray background, for example, with
black writing, I have a great deal of difficulty making that out, or
color letters. I – and now I’ve gotten to where I can’t even read
script in cursive because I just can’t make out the shapes as well.
And my reading has deteriorated greatly, because I will be looking
– I have to really look at it. And sometimes the letters will – some
of them will disappear until I study it for a while, and then they'll
kind of reappear. And that’s partly how my eye tests have been so
good is because whenever they do the test, my eye doctor, they just
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let you take as long as you need to and there’s no rush. And if I
study it long enough, then I can make out the letters without them
you know, get them all to appear eventually. But I’ll misread words
and have to reread and reread. And that slows me down in a way
that I feel like really impairs my ability to be accurate. I can’t
proofread like I used to be able to. And that was part of my value
as an employee is being accurate. And I can’t tell that I’m accurate
anymore.
****
I’ve gotten to where my most frequent implement to use to write is
a Sharpie. And then I even have to be careful in reading it back
because I get to where I can’t read my own handwriting. But I’ve
tried to use some of those Sharpie fine point ink pens, and they are
bold for an ink pen, but I – but, you know, I can’t really read that
either. And another thing I have found is, like, when I try to do
filing of my paperwork at home, I can’t see the level – I can’t see
the file tabs anymore to figure out where I need to put stuff.
Id. at 61-63. Plaintiff also testified that her ability to drive is extremely limited.
Id. at 59-60.
The ALJ then posed a hypothetical to a vocational expert:
My first hypothetical, please assume an individual born in 1962,
high school education, who could perform light work, as defined in
the regulations. Individual can occasionally climb ramps, stairs,
balance, stoop, kneel, crouch, and crawl. Individual cannot climb
ladders, ropes, or scaffolds. Individual can frequently reach in all
directions with her right upper extremity. Individual can
frequently reach with the left upper extremity. There are no
overhead restrictions regarding the left upper extremity.
Individual is to avoid all exposure to hazards such as unprotected
heights and heavy machinery. Based on the hypothetical, would
the Claimant’s past relevant work as a General Clerk be available?
A Yes, Your Honor.
Q If I add to any hypothetical that the individual can sit, stand,
and walk for a combined total of less than eight hours during an
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eight-hour workday, or the individual would be required to take
frequent unscheduled breaks in excess to normally allotted breaks,
or an individual missed two or more days of work per month due
to her impairments, or the individual would be off-task or off-pace
up to 20% of an eight-hour workday, how do those factors
individually affect all jobs?
A Any one of those factors, Your Honor, would eliminate all
competitive employment.
AR 65-66.
“State agency medical consultants Dr. Painton, in May 2023, and Dr.
Blalock, in September 2023, reviewed [Plaintiff]’s medical record.” AR 36. Both
doctors specialize in internal medicine. AR 110, 118. Both consultants did not
recommend any visual limitations, noting that Plaintiff’s “Exam reveals
[visual acuity] 20/40 bilat.” Id. at 111, 117. A consultative examiner who is also
an internist concluded that Plaintiff had 20/40 vision with glasses and a “[b]est
corrected vision” of 20/50. Id. at 843, 845.
The ALJ reviewed all the evidence in the record “based on the
requirements of 20 CFR 404.1529 and SSR 16-3p.” AR 33. Relevant to
Plaintiff’s retinopathy, the ALJ noted that Plaintiff
reported blurred vision, distortion and glare. At times, she had
vitreous hemorrhage[s]. In December 2021, October 2023[,] and
January 2024, the claimant had intravitreal injection. In June
2024, she had only hand motion in her left eye. The claimant had
intravitreal injection.
However, other evidence is inconsistent with the claimant’s
allegations of disabling symptoms . . . . [I]n October 2023, the
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claimant’s vision was 20/40 in her right eye and 20/50+2 in the left
eye. In January 2024, her vision was 20/40 in her right eye and
20/40+2 in her left eye. In July 2024, the claimant’s vision was
20/30 in her right eye and 20/50-2 in the left eye. During the
consultative examination, the claimant had . . . . had 20/40 vision,
with glasses, in her right and left eye. The claimant’s best
corrected vision was 20/50.
Id. at 35 (citations omitted).
C. The ALJ failed to comply with SSR 96-8p.
An ALJ considers prior administrative medical findings using five
factors: supportability; consistency; relationship with the claimant;
specialization; and other factors, such as “a medical source’s familiarity with
the other evidence in a claim.” 20 C.F.R. § 404.1520c(c). Supportability and
consistency are the most important factors. Id. § 404.1520c(a).
“Supportability” examines how closely a medical opinion tracks the
evidence and the medical source’s explanations: “The more
relevant the objective medical evidence and supporting
explanations presented by a medical source are to support his or
her medical opinion(s)[,] . . . the more persuasive the medical
opinions ... will be.” “Consistency,” on the other hand, compares a
medical opinion to the other evidence: “The more consistent a
medical opinion(s) . . . is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive
the medical opinion(s) . . . will be.”
Zhu v. Comm’r, 2021 WL 2794533, at *6 (10th Cir. July 6, 2021) (quoting 20
C.F.R. §§ 404.1520c(c)(1)-(2); 416.920c(c)(1)-(2)).
The ALJ must articulate how persuasive he finds a medical opinion or
prior administrative medical finding. 20 C.F.R. § 404.1520c(b). In doing so, the
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ALJ is required to “explain how [he] considered the supportability and
consistency factors for a medical source’s medical opinions or prior
administrative medical findings.” Id. § 404.1520c(b)(2).
The ALJ found “Dr. Painton’s and Dr. Blalock’s findings partially
persuasive as they are supported by a detailed analysis however the entirety
of the record is consistent with greater nonexertional limitations.” AR 36. The
ALJ rejected the opinion of Dr. Nevins on the grounds that he “was unable to
provide any specific functional limitations, as is consistent with the record.”
AR 37. Finally, the ALJ found Dr. Krishnamurthi’s opinion persuasive based
in part on Plaintiff’s visual acuity examinations. Id. Accordingly, the ALJ
concluded that Plaintiff “is able to perform within the above residual functional
capacity[,]” and “is capable of performing past relevant work as a general clerk
. . . . as generally and actually performed.” Id. at 38-39.
A general clerk must be able to
Write[], type[], or enter[] information into computer, using
keyboard, to prepare correspondence, bills, statements, receipts,
checks, or other documents, copying information from one record
to another. Proofread[] records or forms . . . . Sort[] and file[]
records . . . . Address[] envelopes or packages by hand or with
typewriter or addressograph machine.
Clerk, General, DICOT 209.562-010, 1991 WL 671792 (Jan. 1, 2016). As
another court has observed, this work requires “frequent[] . . . near visual
12
acuity.”4 Jenkins v. Saul, 2020 WL 7771142, at *9 (N.D. Ill. Dec. 29, 2020); cf.
Moore v. Berryhill, 2017 WL 3381341, at *3 (W.D.N.C. Aug. 4, 2017) (“The
ALJ’s decision to include a limitation on Plaintiff’s ability to see to the left or
to the right—peripherally—was consistent with the DOT, and therefore
consistent with the VE’s testimony that Plaintiff could still perform his past
relevant work[]” as a general clerk).
“[T]he ALJ’s RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion, citing specific medical
facts . . . and nonmedical evidence.” Wells v. Colvin, 727 F.3d 1061, 1065 (10th
Cir. 2013) (quoting SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996)). The
record evidence on which an ALJ must rely includes a claimant’s medical
history, medical signs, laboratory findings, the effects of treatment, reports of
daily activities, lay evidence, recorded observations, and effects of symptoms.
SSR 96-8p, 1996 WL 374184, at *5. When the ALJ fails to comply with SSR 96-
8p because he has not linked his RFC determination with specific evidence in
the record, the Court cannot adequately assess whether relevant evidence
supports the ALJ’s RFC determination.
4 Dr. Nevins testified that “[m]ost formal visual acuities do not have near
vision. Retina people don’t usually do near vision.” AR 78.
13
The RFC assessment must convey “what an individual can still do
despite his or her limitations.” SSR 96-8p, 1996 WL 374184, at *2. It is “an
administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms, such as pain,
may cause physical or mental limitations or restrictions that may affect his or
her capacity to do work-related physical and mental activities.” Id. This
includes a discussion of the “nature and extent of” a claimant’s physical
limitations including “sitting, standing, walking, lifting, carrying, pushing,
pulling, or other physical functions (including manipulative or postural
functions, such as reaching, handling, stooping, or crouching).” 20 C.F.R. §
404.1545(b). Further, this assessment requires the ALJ to make findings on
“an individual’s ability to do sustained work-related physical and mental
activities in a work setting on a regular and continuing basis[,]” and to
“describe the maximum amount of each work-related activity the individual
can perform based on the evidence available in the case record.” SSR 96-8p,
1996 WL 374184, at *1, 7.
Here, the ALJ erred in formulating the RFC where it is not apparent
from the ALJ’s decision that the postural and environmental limitations the
ALJ imposed “adequately considered and accounted for Plaintiff’s severe
impairment of diabetic retinopathy . . . and macular edema.” Clayton G. P. v.
14
Kijakazi, 2022 WL 1192779, at *4 (N.D. Okla. Feb. 1, 2022), report and
recommendation adopted, 2022 WL 945306 (N.D. Okla. Mar. 29, 2022); see
Berghauser v. Comm’r of Soc. Sec. Admin., 2019 WL 4678562, at *3 (E.D. Okla.
Sept. 3, 2019) (“Here, the ALJ has connected no evidence in the record to
instruct this Court as to how the stated RFC accounts [for] the claimant’s
severe and nonsevere impairments, including the documented vision
problems.”), report and recommendation adopted, 2019 WL 4674309 (E.D.
Okla. Sept. 24, 2019); Gutierrez v. Astrue, 2010 WL 11626781, at *16 (D.N.M.
Jan. 6, 2010) (remanding where “it is clear that objective medical evidence
supports Gutierrez’s allegations of some visual impairment(s) [but] . . . . the
ALJ provided no information of visual impairments to the VE”). “To the extent
the ALJ based his opinion on findings by SSA review doctors at the
reconsideration stage, it bears mention that those findings also defy logic: the
SSA review doctors stated that Plaintiff’s retinal disorders (including diabetic
retinopathy) were severe, yet determined without explanation that she lacked
any visual limitations.” Jenkins, 2020 WL 7771142, at *10 (also noting conflicts
of opinion between a doctor “who is not a retina specialist” and a doctor “who
is[]”). Dr. Nevins – a board-certified ophthalmologist – did (inartfully) offer
visual limitations, including the need to take frequent breaks when looking at
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a computer, which would cause Plaintiff to “be slow on task[]” as a result.5 AR
78, 85-87; cf. Marilyn C. v. Kijakazi, 2023 WL 4545190, at *8 (N.D. Ill. July 14,
2023) (“It’s unclear why a doctor performing consultative exams for the Social
Security Administration would fail to use the lingua franca of disability
cases.”). Notably, the vocational expert testified that an “individual [who]
would be required to take frequent unscheduled breaks in excess [of] normally
allotted breaks, or . . . missed two or more days of work per month due to her
impairments, or . . . would be off-task or off-pace up to 20% of an eight-hour
workday” would be unemployable. AR 66.
The ALJ justified his findings by observing that Plaintiff “testified she is
able to drive a car[]” without acknowledging Plaintiff’s testimony that her
driving is extremely limited. Compare AR 37 with id. 59-60, 91; cf. Neal v.
Kijakazi, 2023 WL 6035684, at *6 (E.D.N.C. June 2, 2023) (“Because of her
5 Here, the ALJ rejected the opinion of the sole ophthalmologist who
focused on Plaintiff’s vision issues in favor of three internists who focused on
Plaintiff’s physical limitations. Cf. Clayton G. P., 2022 WL 945306, at *4 (“The
Court finds that the ALJ improperly cherry-picked among medical reports,
using portions of evidence favorable to his position while ignoring other
evidence.” (internal quotations omitted, quoting and citing Hardman v.
Barnhart, 362 F.3d 676, 681 (10th Cir. 2004)); Montoya v. Astrue, 2009 WL
724057, at *8 (D. Colo. Mar. 19, 2009) (“the ALJ selectively picked what
evidence in the report supported her findings while improperly discounting
[other] findings”).
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vision, Neal could only see large print and had limited driving ability.”). The
ALJ noted that Plaintiff “does not use her [CPAP] machine” for her sleep apnea
without acknowledging Plaintiff’s statement that she does not use the CPAP
machine because she cannot see the settings on the screen. Compare AR 34
with id. at 469, 841.
The ALJ noted that Plaintiff is able to manage her finances without
acknowledging information in the record indicating that Plaintiff has difficulty
reading her bills, using a checkbook, and managing her personal filing because
of her vision. Compare AR 36 with id. at 63, 449, 457 (“[n]eighbors/family help
with mail by reviewing and reading [out loud]”). The ALJ noted that Plaintiff
“socializ[es] with others” without acknowledging Plaintiff’s statement that she
rarely uses written forms of communication, including email, texting, and mail.
Compare AR 36 with id. at 449. Accordingly, the ALJ’s RFC determination was
flawed and remand is required. See Jenkins, 2020 WL 7771142, at *11 (the
ALJ’s “decision to discount Plaintiff’s testimony about the severity of her blurry
vision was patently inconsistent with the overall record”).
Because the ALJ did not adequately explain how the RFC accounts for
Plaintiff’s severe diabetic retinopathy and related visual symptoms, and
because those limitations may affect her ability to perform her past relevant
work as a general clerk, remand is required. “On remand, the ALJ should . . .
17
include any additional limitations he finds appropriate in her RFC. The ALJ
should then re-determine what work the claimant can perform, if any, and
ultimately whether she is disabled.” Dewbre v. Astrue, 2010 WL 3855644, at *3
(E.D. Okla. Sept. 30, 2010).
D. Additional claims of error.
Because the above issue warrants remand, the Court need not address
Plaintiff’s other claims of error. See Watkins v. Barnhart, 350 F.3d 1297, 1299
(10th Cir. 2003) (“We will not reach the remaining issues raised by appellant
because they may be affected by the ALJ’s treatment of this case on remand.”).
III. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
reverse and remand the Commissioner’s decision for further administrative
proceedings.
The undersigned advises the parties of their right to file objections to
this report and recommendation with the Clerk of this Court on or before
September 29, 2026, in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ.
P. 72(b)(2). The undersigned further advises the parties that failure to make a
timely objection to this report and recommendation waives the right to
appellate review of both factual and legal questions contained herein. See
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
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This Report and Recommendation disposes of all issues referred to the
undersigned Magistrate Judge in this matter.
ENTERED this 15th day of September, 2026.
Aga Ler
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE
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