Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JULIE A. OSBORN, §

PLAINTIFF, §

§

VS. § CIVIL ACTION NO. 4:06-CV-080-A

§

MICHAEL J. ASTRUE, §

COMMISSIONER OF SOCIAL SECURITY, §

DEFENDANT. §

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). The Findings, Conclusions and Recommendation of

the United States Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS

A. STATEMENT OF THE CASE

Plaintiff Julie A. Osborn 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 Social Security denying her claim for disability insurance benefits under Title II of the Social

Security Act. Osborn applied for disability benefits on March 24, 2003, with an alleged disability

onset date of September 1, 2002. (Tr. 67). She met the insured status requirements at all times

relevant to the administrative decision. 

The Social Security Administration denied Osborn’s application for benefits both initially

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 1 of 15 PageID 77
1

 Sedentary work involves lifting no more than ten pounds at a time and occasionally lifting or carrying

articles like docket files, ledgers and small tools. Although a sedentary job is defined as one which involves sitting,

a certain amount of walking and standing is often necessary in carrying out job duties. 20 C.F.R. § 404.1567(a).

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 2

and on reconsideration. Osborn requested a hearing before an administrative law judge (the "ALJ"),

and ALJ James A. Wendland held a hearing on May 27, 2004 in Fort Worth, Texas. (Tr. 259-96).

Osborn was represented by counsel. On July 30, 2004, the ALJ issued a decision that Osborn was

not disabled because she had the residual functional capacity (RFC) to perform a modified range

of sedentary work.1

 (Tr.11-19). The Appeals Council denied Osborn’s request for review of her

case, leaving the ALJ’s decision to stand as the final decision of the Commissioner. (Tr. 3). 

B. 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. § 423(d)(1)(A); 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. First, the claimant must not be presently working at

any substantial gainful activity. 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. Second, the

claimant must have an impairment or combination of impairments that is severe. 20 C.F.R. §

404.1520(c). At the third step, disability will be found if claimant’s impairment or combination of

impairments meets or equals an impairment listed in the appendix to the regulations. Id. §

404.1520(d). Fourth, if disability cannot be found on the basis of claimant’s medical status alone,

the impairment or impairments must prevent the claimant from returning to his past relevant work.

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 2 of 15 PageID 78
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 3

Id. § 404.1520(e). And fifth, the impairment must prevent the claimant from doing any work,

considering the claimant's residual functional capacity, 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 he is disabled.

If the claimant satisfies this responsibility, the burden shifts to the Commissioner at step five of the

process to show that there is other gainful employment the claimant is capable of performing in spite

of his existing impairments. Crowley, 197 F.3d at 198. If the Commissioner meets this burden, the

claimant must then prove that he cannot in fact perform the work suggested. Waters v. Barnhart, 276

F.3d 716, 718 (5th Cir. 2002). A finding at any point in the five-step process that a claimant is

disabled or not disabled is conclusive and terminates the analysis. Masterson v. Barnhart, 309 F.3d

267, 272 (5th Cir. 2002).

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. Leggett v. Chater, 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. Id. A finding of no substantial evidence

is appropriate only if no credible evidentiary choices or medical findings support the decision. Id.

Conflicts in the evidence are for the Commissioner and not the court to resolve. Masterson, 309

F.3d at 272. The court will not re-weigh the evidence, try the questions de novo, or substitute its

judgment for the Commissioner's, even if the court believes the evidence weighs against the

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 3 of 15 PageID 79
2

 Fibromyalgia is a group of common nonarticular disorders characterized by achy pain, tenderness, and

stiffness of muscles, areas of tendon insertions, and adjacent soft tissue structures. MERCK MANUAL OF DIAGNOSIS

AND THERAPY 481-82 (17th ed. 1999).

3 Arthropathy refers to any joint disease. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 152 (29th ed.

2000).

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 4

Commissioner's decision. Id.; Harris v. Apfel, 209 F.3d 413, 417 (5th Cir.2000); Hollis, 837 F.2d

at 1383.

C. ISSUES

1. Whether the Commissioner complied with the applicable regulations and rulings in

assessing Osborn’s residual functional capacity, and whether that assessment is

supported by substantial evidence.

2. Whether the determination that Osborn could perform other work existing in

significant numbers in the national economy is supported by substantial evidence.

D. ADMINISTRATIVE RECORD

1. Medical History

The administrative transcript provides the following information about Osborn’s medical

condition and treatment history: Osborn was seen by rheumatologist Iman Ali, M.D., in 2002. (Tr.

161-63). She complained of joint pain, back pain, and increasing fatigue. Ali diagnosed Osborn

with fibromyalgia2

 after finding fourteen tender points on physical examination. (Tr. 162). He

referred her for physical therapy and rehabilitation services. (Tr. 141-53). X-rays of both knees

were taken on November 8, 2002 and showed mild changes, while x-rays of both hands were

normal. (Tr. 125). An x-ray of her cervical spine showed moderate degenerative changes at C5-C6

and bilateral facet arthropathy3

 in the upper- to mid-cervical spine. (Tr. 126).

Neurologist Kevin Connor, M.D., has treated Osborn for a seizure disorder. (Tr. 168-74).

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 4 of 15 PageID 80
4

 Interstitial cystitis is a bladder condition occurring predominately in women, with an inflammatory lesion

that is notoriously difficult to detect, and typically involves urinary frequency and pain. Id. at 450. See also SOCIAL

SECURITY RULING 02-2p.

5

 Pyelography refers to a radiographic study of the kidney and ureter after the structures have been filled

with a contrast solution. Id. at 1498.

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 5

On February 25, 2002, Osborn reported two breakthrough spells that occurred during periods when

she was sleep-deprived. She was taking her medication as prescribed, but was suffering insomnia

as a result of bladder difficulties. (Tr. 171). During a check-up on July 29, 2002, Osborn reported

no spells since her last visit, but she had developed a hand tremor. (Tr. 170). Conner noted that

some of the medications Osborn used could be expected to increase hand tremors. He assessed her

seizure disorder as currently controlled, but noted that Osborn had reduced her seizure medication

without seeking a physician’s advice. (Tr. 170). At a follow-up visit with Conner in January 2003,

Osborn reported two recent spells. She was not taking her medication as directed. (Tr. 168). She

also reported being sleep deprived because of the holidays. Conner assessed complex partial

seizures, and opined that he wanted Osborn to take her medication as recommended, but had been

unable to accomplish this for several years. (Tr. 168).

Osborn also suffers from interstitial cystitis.4

 A February 2002 intravenous pyelogram5

(IVP) ordered by physician Patrick Collini, M.D., was normal, as was a computed tomography (CT)

scan. (Tr. 121, 193). Collini referred Osborn to urologist Marie-Blanche Tchetgen, M.D., for

evaluation of her complaints of urinary urgency, pelvic pain, and bladder pain. (Tr. 191). Tchetgen

prescribed medication, and scheduled a follow-up visit in three months. (Tr. 121). 

By August 2002, Osborn was reporting significant improvement on her current treatment

regimen, but her symptoms returned after she tapered off her medications due to their side-effects.

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 5 of 15 PageID 81
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 6

(Tr. 187-88). At a follow-up visit with Tchetgen on March 12, 2003, Osborn complained of the

increasing severity of her symptoms, with urinary frequency and increasing fatigue. (Tr. 185). In

July 2003, after conservative treatment measures failed, Osborn underwent surgery to place an

implantable pulse generator (IPG) for management of her interstitial cystitis. (Tr. 178, 221).

Osborn reported doing well when she saw Tchetgen in October, but she still described good

days and bad days. (Tr. 215). The IPG was readjusted in November 2003 to address Osborn’s

reports of pelvic pressure, pain, urgency, and frequency. (Tr. 213). On January 12, 2004, Osborn

described her problems as mild and was reportedly doing well with no recent urinary tract infections.

(Tr. 211). The IPG was in correct position and the site was not tender. (Tr. 211). Osborn’s IPG

was still functional during a follow-up visit on March 5, 2004. She reported that her interstitial

cystitis was somewhat improved, and she had experienced remarkable improvement within the last

two days, which she attributed to her new anti-seizure medication. (Tr. 209).

Tchetgen completed a written assessment of Osborn’s functioning on April 22, 2004.

Tchetgen opined that Osborn experienced pain that would distract her from the adequate

performance of daily activities or work. (Tr. 247-48). Tchetgen also opined that Osborn could sit

for a maximum continuous period of fifteen minutes, for a cumulative time of two hours per eighthour workday, and stand for up to thirty minutes at a time for a total of two hours per eight-hour

workday. Tchetgen stated that Osborn, in addition to lunch and regular work breaks, would need

to rest for up to four hours during the workday depending on her pain level on any given day. (Tr.

249-51). Tchetgen opined that Osborn could lift up to five pounds frequently and up to twenty

pounds occasionally. Tchetgen found no restriction in Osborn’s ability to use her hands on a

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 6 of 15 PageID 82
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 7

repetitive basis, but opined that Osborn should be restricted to only occasional stooping. (Tr. 252).

2. Administrative Hearing

Osborn testified that she had been employed as a salesman in the printing industry, but

eventually stopped working because of her health. Osborn testified that she was on two seizure

medications and her most recent seizure had occurred two weeks before the hearing. (Tr. 264). She

was exhausted after having a seizure and had no memory of the event. She had noticed that she was

more susceptible to seizures when she was tired, but she was frequently tired because pain and other

symptoms of her interstitial cystitis prevented her from sleeping well. (Tr. 267).

In addition to her seizures, Osborn suffered from back pain. She used Tylenol for the pain

because her physicians had been unable to find another medication that worked well for her. (Tr.

266). Her fibromyalgia also caused low back pain and hip pain, but the most intense pain was the

abdominal pain caused by her bladder problems. (Tr. 269). She limited her lifting because of the

pain. Osborn testified that the surgery to implant the IPG had provided temporary relief, but now

her symptoms were as bad as ever if not worse. (Tr. 270). 

Osborn testified that she did not drive because of her seizure disorder. Her adult daughter

had moved in with her and did the grocery shopping, housecleaning, and laundry. (Tr. 276). Osborn

had recently moved to a one-story home because she was unable to climb the stairs in her old house.

(Tr. 276). Osborn also described problems with concentration, which she attributed to pain and the

medications she was taking. (Tr. 279).

Vocational expert Carol Bennett testified that Osborn’s previous job as a printing sales

representative was considered skilled work requiring light exertion. (Tr. 286). The ALJ asked

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 7 of 15 PageID 83
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 8

Bennett to consider a person of Osborn’s age and education who was limited to sedentary work, but

not required to stoop, crouch, crawl, kneel, or climb stairs or ramps more than occasionally; not

required to climb scaffolds, ladders, and ropes, or balance; not required to sit without the opportunity

to stand occasionally; and not required to work at unguarded heights or near unguarded hazardous

equipment. (Tr. 286-87, 289). Bennett testified that a person with these limitations could perform

unskilled work as an assembler (with 4,400 jobs in Texas and 80,000 jobs nationwide) or production

inspector (with at least 1,500 jobs in Texas and 25,000 jobs nationwide). (Tr. 290). She noted that

a need for frequent bathroom breaks would have less impact on sedentary jobs than other jobs. (Tr.

292). Bennett conceded that pain or medication side-effects that rose to a level that distracted a

worker from performing her work could result in an inability to sustain employment. (Tr. 293).

3. ALJ Decision

The ALJ found that Osborn had not engaged in substantial gainful activity since her alleged

onset date, and further found that her fibromyalgia, interstitial cystitis, and seizures constituted

severe impairments; however, he found that these impairments did not meet or medically any listed

impairment. (Tr. 18). In considering Osborn’s residual functional capacity, the ALJ limited her to

sedentary work that did not require her to stoop, crouch, crawl, kneel, or climb stairs and ramps

more than occasionally; did not require her to balance or climb scaffolds, ladders and ropes; did not

require her to sit without an opportunity to occasionally stand; and did not require her to work at

unguarded heights or near unguarded hazardous mechanical equipment. (Tr. 18). Based on the

vocational expert testimony, the ALJ found a significant number of jobs available for Osborn in the

national economy, and therefore, the ALJ concluded that Osborn was not disabled or entitled to

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 8 of 15 PageID 84
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 9

disability insurance benefits. (Tr. 18-19).

E. DISCUSSION

1. Residual Functional Capacity

Osborn contends that substantial evidence does not support the residual functional capacity

(RFC) assessment, and further asserts that the Commissioner failed to follow his own rules in

making that assessment. More specifically, Osborn contends that the ALJ did not address all of the

functional limitations noted by her treating physician or explain his decision that Osborn could

perform a modified range of sedentary work.

RFC is what an individual can still do despite her limitations. SOCIAL SECURITY RULING 96-

8p. It reflects the individual’s maximum remaining ability to do sustained work activity in an

ordinary work setting on a regular and continuing basis. Id.; Myers v. Apfel, 238 F.3d 617, 620 (5th

Cir. 2001). A regular and continuing basis is an eight-hour day, five days a week, or an equivalent

schedule. SOCIAL SECURITY RULING 96-8p. RFC is not the least an individual can do, but the most.

Id. The RFC assessment is a function-by-function assessment, with both exertional and

nonexertional factors to be considered. Id. The ALJ is permitted to draw reasonable inferences

from the evidence in making his decision, but presumptions, speculation, and supposition do not

constitute evidence. SOCIAL SECURITY RULING 86-8. 

Tchetgen provided a medical opinion about Osborn’s impairments and her functional

abilities that, if adopted, would establish an inability to work on a regular and continuing basis.

Opinions, diagnoses, and medical evidence from a treating physician who is familiar with the

claimant’s impairments, treatment, and response should be given great weight in determining

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 9 of 15 PageID 85
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 10

disability. See Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d

232, 237 (5th Cir. 1994). The Commissioner assigns controlling weight to the opinion of a treating

physician if well-supported by medically acceptable clinical and laboratory diagnostic techniques

and not inconsistent with other substantial evidence in the record. 20 C.F.R. § 404.1527; Martinez

v. Chater, 64 F.3d 172, 176 (5th Cir. 1995). Even if a treating source opinion is not entitled to

controlling weight under the regulations, that does not mean the opinion should be completely

rejected. In many cases, the opinion may be entitled to the greatest weight and should be adopted

even if it does not satisfy the test for controlling weight. SOCIAL SECURITY RULING 96-2p.

However, the determination of disability always remains the province of the ALJ, and the ALJ can

decrease the weight assigned to a treating physician’s opinion for good cause, which includes

disregarding statements that are brief and conclusory, unsupported by acceptable diagnostic

techniques, or otherwise unsupported by the evidence. See 20 C.F.R. § 404.1527(e); Leggett, 67

F.3d at 564; Greenspan, 38 F.3d at 237. 

Osborn contends that the ALJ failed to consider the relevant factors outlined in the

regulations before rejecting Tchetgen’s opinion and did not identify good reason for disagreeing

with Tchetgen’s assessment. 20 C.F.R. § 404.1527(d)(2). Before rejecting a treating source

opinion, the ALJ must consider the factors outlined in the administrative regulations, which include:

the length of the treatment relationship, frequency of examination, nature and extent of the treating

relationship, evidence supporting the opinions, the consistency of those opinions, and medical

specialization. See 20 C.F.R. § 404.1527(d); Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000).

See also SOCIAL SECURITY RULING 96-5p, 96-2p. 

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 10 of 15 PageID 86
6

 In her reply brief, Osborn suggests that the ALJ erred in accepting only parts of Tchegen’s opinion and

rejecting those that did not fit with his determination; however, she also acknowledges that Ruling 96-5p recognizes

that a medical source statement may be comprised of separate medical opinions addressing diverse physical and

mental functions and that it may be necessary for the adjudicator to decide whether to adopt or not adopt each

opinion individually. SOCIAL SECURITY RULING 96-5p. 

7

 Osborn concedes that her symptoms after surgery showed initial improvement, but asserts that her

symptoms have returned and there has not been sustained improvement. The ALJ, however, reviewed Osborn’s preand post-surgical symptoms and progress notes from treating sources that indicate she maintained at least some

improvement in her condition after the IPG was implanted. 

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 11

The ALJ reviewed Tchetgen’s opinions about Osborn’s pain and functional abilities and

agreed with Tchetgen’s opinion that Osborn could perform sedentary work with occasional stooping

and the opportunity to alternate between sitting and standing; however, he disagreed with Tchetgen’s

determination that Osborn would need to rest for four hours during the workday to relieve the pain

caused by her impairment.6

 (Tr. 15). In particular, he found such a limitation was unsupported by

the record and contradicted by Osborn’s post-surgical records.7

 (Tr. 15-16). Osborn complains that

the ALJ did not specifically address Tchetgen’s opinion that Osborn’s pain was of a level that would

distract her from her work; however, the ALJ implicitly rejected this claim in finding Osborn’s pain

level did not warrant excessive rest periods. In assessing Osborn’s credibility, the ALJ likewise

found her subjective complaints exaggerated and noted that a treating source opinion based on the

truth of such subjective complaints would not be conclusive evidence of a person’s residual

functional capacity. (Tr. 16). Although Osborn might prefer more specificity in the administrative

decision, the ALJ complied with the relevant administrative regulations and rulings in weighing

Tchetgen’s treating source opinion. 

Osborn also contends that the ALJ did not comply with the administrative rulings that require

the adjudicator to engage in a narrative discussion of the evidence and how it supports the RFC

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 11 of 15 PageID 87
8

 The state agency medical physicians found Osborn was capable of performing light work if she took

seizure precautions. (Tr. 200-06).

Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 12

determination. See SOCIAL SECURITY RULING 96-8p. The adjudicator must also explain how any

material inconsistencies or ambiguities in the evidence in the case record were considered and

resolved. Id. Osborn complains that the ALJ rejected the state agency medical consultant’s opinion

in favor of a more restrictive RFC, but then failed to explain how he decided that Osborn retained

the RFC for a modified range of sedentary work.8

 

In his decision, the ALJ outlined the relevant evidence and the reasons underlying his RFC

assessment. The ALJ agreed with Tchetgen’s opinion that Osborn could perform the exertional

requirements of sedentary work. His restrictions on Osborn’s ability to stoop, crouch, crawl, kneel,

or climb and his determination that she needed an opportunity to alternate between sitting and

standing are also supported by Tchetgen’s opinion, the x-rays and other diagnostic studies, and

Osborn’s own statements about her daily activities and limitations. (Tr. 15-16). The ALJ also

restricted Osborn from work in hazardous situations because of her documented seizure history. (Tr.

16). The ALJ sufficiently articulated the basis for his RFC determination.

The administrative record reflects that the ALJ considered the evidence and presented

reliable reasons for his decision in a manner that allows for meaningful judicial review. The ALJ

provided an adequate narrative discussion throughout the sequential evaluation process, including

the assessment of Osborn’s RFC, and Osborn has failed to demonstrate a lack of substantial

evidence to support the ALJ’s assessment of her RFC.

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 12 of 15 PageID 88
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 13

 2. Vocational Evidence

Osborn contends that substantial evidence does not support the ALJ’s determination at Step

Five that she can perform other work available in significant numbers in the national economy.

More specifically, she asserts that Tchetgen’s opinion establishes that she is unable to perform any

of the work identified by the vocational expert on a regular and continuing basis.

Osborn’s argument is a restatement of her contention that the ALJ erred in his assessment

of her RFC, thus causing the ALJ to present the vocational expert with a flawed hypothetical

question. See generally Boyd v. Apfel, 239 F.3d 698, 707 (5th Cir. 2001); Bowling v. Shalala, 36

F.3d 431, 436 (5th Cir. 1994). But as addressed supra, no error in the assessment of Osborn’s’

residual functional capacity or a lack of supporting substantial evidence has been established.

During the hearing, the ALJ asked the vocational expert to consider whether there was suitable work

available in the national economy for a person of Osborn’s age, education, work experience, with

the RFC as found by the ALJ. In response, the vocational expert was able to identify several jobs

available in significant numbers in the national economy. Osborn has not demonstrated a basis for

discrediting this testimony.

The ALJ’s determination that there were a significant number of jobs in existence that

Osborn could perform is supported by substantial evidence and has not been shown to be a product

of legal error. Accordingly, the Commissioner’s determination that Osborn was not disabled on or

before the expiration of her insured status for purposes of benefits under Title II of the Social

Security Act should be affirmed.

RECOMMENDATION

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 13 of 15 PageID 89
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 14

It is recommended that the decision of the Commissioner be affirmed. 

NOTICE OF RIGHT TO OBJECT TO PROPOSED

 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States 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 April 11, 2007. The United States District Judge need only

make a de novo determination of those portions of the United States Magistrate Judge’s proposed

findings, conclusions and recommendation to which specific objection is timely made. See 28

U.S.C. § 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 Services Auto Ass'n, 79 F.3d

1415, 1428-29 (5th Cir. 1996)(en banc).

ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until April 11,

2007 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

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 14 of 15 PageID 90
Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 15

filing date 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.

SIGNED MARCH 20, 2007.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

 Case 4:06-cv-00080-A Document 20 Filed 03/20/07 Page 15 of 15 PageID 91