UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Brenda Corson

v. Civil No. 04-cv-357-SM

Social Security Administration,

Commissioner

REPORT AND RECOMMENDATION

Pursuant to 42 U.S.C. § 405(g), Plaintiff Brenda Corson

moves to reverse the Commissioner of Social Security’s decision

denying her application for disability insurance benefits (“DIB”)

under Title II of the Social Security Act (the “Act”). The

Commissioner cross moves for an order affirming her decision. 

This matter was referred to me to prepare a report and

recommendation in accordance with this court’s standing

administrative order (document no. 2). For the reasons set forth

below, I recommend that the Commissioner’s decision be reversed,

and that this matter be remanded for further proceedings.

Factual Background

I. Procedural History

Plaintiff applied for DIB on August 5, 2002. Tr. 125-127. 

She claimed that she had been unable to work since July 22, 1994

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because of back pain and anxiety. Tr. 125, 135. When Plaintiff

submitted her application, she was 52 years old and had past work

experience as a housekeeper and laundry worker. Tr. 125, 136.

Plaintiff’s claim was denied initially. Tr. 93-96. She was

permitted to request a hearing without seeking reconsideration,

which she did. Tr. 94, 97. A hearing was convened on May 14,

2003 before Administrative Law Judge (“ALJ”) Ruth Kleinfeld. Tr.

33. The hearing was continued to allow Plaintiff to secure legal

representation. Tr. 40-50. On September 18, 2003, the hearing

re-convened with Plaintiff represented by counsel. Tr. 51-52.

In a decision dated April 30, 2004, the ALJ determined that

Plaintiff was not disabled within the meaning of the Act. Tr.

12-23. Plaintiff sought Appeals Council review of the decision,

Tr. 9-11, but the Appeals Council affirmed the decision rendering

the ALJ’s decision the final agency determination. Tr. 6-8. 

Plaintiff then filed her complaint seeking judicial review.

II. Background Facts

Pursuant to Local Rule 9.1(d), the parties have submitted a

Joint Statement of Material Facts, which are part of the court’s

record (document no. 9) and adopted herein. The facts that are

relevant to this report and recommendation are cited in the body

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of the discussion.

Standard of Review

I. Properly Supported Findings Entitled to Deference

After a final decision by the Commissioner denying a

claimant’s application for benefits, and upon a claimant’s timely

request, a district court is authorized to review the

administrative record and enter a judgment affirming, modifying,

or reversing the Commissioner’s decision. See 42 U.S.C. §

405(g). The court’s review is limited in scope, however, and the

Commissioner’s factual findings are conclusive if they are

supported by substantial evidence. See id.; Irlanda Ortiz v.

Sec’y of HHS, 955 F.2d 765, 769 (1st Cir. 1991). The

Commissioner is responsible for determining credibility issues,

drawing inferences from the record evidence, and resolving

conflicting evidence. Irlanda Ortiz, 955 F.2d at 769; Frustaglia

v. Sec’y of HHS, 829 F.2d 192, 195 (1st Cir. 1987). Therefore,

the court must “‘uphold the [Commissioner’s] findings . . . if a

reasonable mind, reviewing the evidence in the record as a whole,

could accept it as adequate to support [the Commissioner’s]

conclusion.’” Irlanda Ortiz, 955 F.2d at 769 (quoting Rodriguez

v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)); see also,

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Tsarelka v. Sec’y of HHS, 842 F.2d 529, 535 (1st Cir. 1988)

(“[W]e must uphold the [Commissioner’s] conclusion, even if the

record arguably could justify a different conclusion, so long as

it is supported by substantial evidence.”).

The ALJ’s findings of fact are conclusive when supported by

substantial evidence, but not if they are “derived by ignoring

evidence, misapplying the law, or judging matters entrusted to

experts.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999)

(citations omitted). If the Commissioner has misapplied the law

or has failed to provide a fair hearing, deference to the

Commissioner’s decision is not appropriate, and remand for

further development of the record may be necessary. See Carroll

v. Sec’y of HHS, 705 F.2d 638, 644 (2d Cir. 1983); see also,

Slessinger v. Sec’y of HHS, 835 F.2d 937, 939 (1st Cir. 1987)

(“The [Commissioner’s] conclusions of law are reviewable by this

court.”).

II. Parties’ Respective Burdens

An individual seeking DIB is disabled within the meaning of

the Act if he or she is unable “to engage in any substantial

gainful activity by reason of any medically determinable physical

or mental impairment which can reasonably be expected to last for

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a continuous period of not less than 12 months.” 42 U.S.C. §

416(i)(1)(A; 42 U.S.C. § 1382c(a)(3). The claimant has the

initial burden to establish the existence of a disabling

impairment. See Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987);

Santiago v. Sec’y of HHS, 944 F.2d 1, 5 (1st Cir. 1991). To

satisfy that burden, the claimant must prove that his impairment

prevents him from performing his previous type of work. See Gray

v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985).

In assessing a disability claim, the Commissioner considers

objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective assertions of pain

and disability, as supported by the testimony of the claimant and

other witnesses; and (3) the claimant’s educational background,

age, and work experience. Mandziej v. Chater, 944 F. Supp. 121,

129 (D.N.H. 1996) (citing Avery v. Sec’y of HHS, 797 F.2d 19, 23

(1st Cir. 1986)). The Commissioner applies a five-step

sequential evaluation process to determine whether a claimant is

disabled. Where a claimant has shown an inability to perform his

previous work, the burden shifts to the Commissioner to show that

there are other jobs in the national economy that he can perform. 

See Vazquez v. Sec’y of HHS, 683 F.2d 1, 2 (1st Cir. 1982). If

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the Commissioner shows that considering the claimant’s age,

education, work experience, and impairments there are jobs that

the claimant can perform, the overall burden to demonstrate

disability remains with the claimant. Hernandez v. Weinberger,

493 F.2d 1120, 1123 (1st Cir. 1974); Benko v. Schweiker, 551 F.

Supp. 698, 701 (D.N.H. 1982). 

Applying these principles, I review the Plaintiff’s motion

to reverse and the Commissioner’s motion to affirm the

determination that the Plaintiff is not disabled.

Discussion

I. The ALJ’s Findings

The ALJ found that Plaintiff met the earning requirements

for eligibility for DIB through September 1998. Tr. 23, Finding

No. 1. She was found to have not engaged in substantial gainful

employment since July 22, 1994. Id., Finding No. 2. The ALJ

found that “[t]he medical evidence establishes that the claimant

has a medically determinable impairment of anxiety (20 CFR

404.1508).” Id., Finding No. 3. But the ALJ found that “[t]he

medical evidence establishes that the claimant’s anxiety is not a

severe impairment (20 CFR 404.1521).” Id., Finding No. 4. The

ALJ found that “claimant’s testimony and allegations regarding

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subjective complaints, including pain, are not credible.” Id.,

Finding No. 5. Consequently, the ALJ held that “the claimant has

not been under a ‘disability’” as defined in the Act at any time

through the date of her decision. Id., Finding No. 6.

II. Plaintiff’s Arguments for Reversal

A. The ALJ Misapplied The Law In Finding That

Plaintiff Did Not Have Any Severe Impairment

Plaintiff argues that the ALJ erred as a matter of law in

failing to apply the severity standard recognized by the First

Circuit. She argues that had the ALJ properly applied that

standard, the ALJ would have found that Plaintiff’s anxiety and

back impairment were more than “slight abnormalities” when her

insured status for DIB expired. In response to this argument,

the Commissioner neither contests that Plaintiff had only a de

minimis burden at Step 2, nor that the ALJ used the regulatory

language of “significant limitations” in the discussion of

impairment severity in her decision. The Commissioner argues,

however, that the Plaintiff simply failed to meet her burden.

In concluding that Plaintiff was not disabled under the Act,

the ALJ was required to employ the mandatory five-step sequential

evaluation process. That evaluation requires the SSA to

determine: (1) whether the claimant is presently engaged in

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substantial gainful activity; (2) whether the claimant has a

severe impairment; (3) whether the impairment meets or equals a

listed impairment; (4) whether the impairment prevents the

claimant from performing past relevant work; and (5) whether the

impairment prevents the claimant from doing any other work. See

20 C.F.R. § 404.1520. 

At Step 2 of the five-step sequential inquiry, the SSA must

determine whether the claimant has a medically severe impairment

or combination of impairments. See 20 C.F.R. §

404.1520(a)(4)(ii). In McDonald v. Sec’y of HHS, 795 F.2d 1118,

1124 (1st Cir. 1986), the court noted that the Step 2 severity

requirement placed only a de minimis burden on the claimant, and

is designed to screen out groundless claims. The court found

that:

a finding of “non-severe” is only to be made where

“medical evidence establishes only a slight abnormality

or combination of slight abnormalities which would have

no more than a minimal effect on an individual’s

ability to work even if the individual’s age,

education, or work experience were specifically

considered . . . .” The impairment must be such that a

finding of non-disability would necessarily result even

if the vocational factors were considered.

Id. at 1124-25 (quoting Social Security Ruling (“SSR”) 85-28). 

The court found that the agency’s interpretation of the Step 2

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requirement in SSR 85-28 put the agency’s regulation in accord

with the court decisions that had considered the validity of the

regulation. Id. at 1125. The court further found that it was

absolutely clear that the severity regulation is interpreted as

“no more than a de minimis policy that will not result in the

denial of benefits to an applicant who either cannot perform his

or her own past work, or cannot perform other substantial gainful

activity.” Id. 

The SSA restated its policy for determining whether a

medically determinable impairment is severe in SSR 96-3P,

available at 1996 WL 374181 (S.S.A.). That regulation provides

that:

At step 2 of the sequential evaluation process, an

impairment or combination of impairments is considered

“severe” if it significantly limits an individual’s

physical or mental abilities to do basic work

activities; an impairment(s) that is “not severe” must

be a slight abnormality (or combination of slight

abnormalities) that has not more than a minimal effect

on the ability to do basic work activities.

SSR 96-3P, 1996 WL 374181 at *1 (emphasis added).

In the instant case, the ALJ defined a severe impairment as

an impairment that “must significantly limit the ability to

perform basic work activities.” Tr. 16. But it appears that in

evaluating the evidence the ALJ did not consider whether

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claimant’s alleged impairments were only “slight abnormalities”

that had no more than “a minimal effect” on her ability to do

basic work activities. See Tr. 18, 20. Specifically, in

evaluating the evidence pertaining to Plaintiff’s anxiety, the

ALJ stated that during the period from July 1994 through July

2002, she “did not have complaints . . . of such significant

signs or symptoms and the medical evidence of record does not

support the existence of a severe impairment.” Tr. 18. With

regard to Plaintiff’s alleged back impairment, the ALJ found that

while her “allegation of back pain is credible,” and existed

prior to her alleged onset date, “there are no corroborative

objective findings to support significant limitations of one or

more basic work activities.” Tr. 20. At no point in her

decision did the ALJ find that Plaintiff’s alleged impairments

were merely “a slight abnormality (or combination of

abnormalities)” that had no more than a minimal effect on the

ability to do basic work activities, as required by McDonald and

SSR 96-3P.

The First Circuit found appropriate for remand a case where

it was unclear whether the agency used the proper standard for

determining that a claimant’s impairments were “not severe.” See

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Fernandez v. Sec’y of HHS, 826 F.2d 164, 167 (1st Cir. 1987)

(finding that a denial of benefits was not supported by

substantial evidence where it was not clear that the ALJ and

consulting physicians used the words “not severe” to mean that

the claimant’s liver disease was “slight” with no more than a

“minimal effect” on ability to do basic work activities); see

also Loza v. Apfel, 219 F.3d 378, 392 (5th Cir. 2000) (ordering a

remand in a case where the court found that an ALJ erred as a

matter of law in determining that a claimant’s mental impairment

was not severe because the ALJ did not apply the correct standard

to the severity requirement). 

Furthermore, in finding that the Plaintiff’s mental

impairment was not severe, the ALJ relied heavily on the

Plaintiff’s lack of medical treatment while ignoring the evidence

in the record that explained the lack of treatment. This

contradicts SSR 96-7p, available at 1996 WL 374186 *7 (S.S.A.),

which states that “the adjudicator must not draw any inferences

about an individual’s symptoms and their functional effects from

a failure to seek or pursue regular medical treatment without

first considering any explanations that the individual may

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Drawing adverse inferences from a claimant’s failure to 1

seek medical treatment has also been criticized by the courts

particularly with regard to claimants whose claims are based on 

mental disorders. Regennitter v. Comm’r of SSA, 166 F.3d 1294,

1299-1300 (9th Cir. 1999); see also Van Nguyen v. Chater, 100

F.3d 1462, 1465 (9th Cir. 1996) (finding that “the fact that

claimant may be one of millions of people who did not seek

treatment for a mental disorder until late in the day is not a

substantial basis on which to conclude that” an assessment of the

claimant’s condition was inaccurate); Blankenship v. Bowen, 874

F.2d 1116, 1124 (6th Cir. 1989) (finding that the appellant “may

have failed to seek psychiatric treatment for his mental

condition, but it is a questionable practice to chastise one with

a mental impairment for the exercise of poor judgment in seeking

rehabilitation”).

12

provide, or other information in the case record.” While the 1

ALJ found that the Plaintiff did not make complaints of

significant signs or symptoms of a severe mental impairment to

her treating sources from July 1994 to July 2002, she did not

address Plaintiff’s testimony at the administrative hearing that

she felt “very scared to tell” her treating physician about her

mental illness. Tr. 69. That testimony was consistent with the

note from Plaintiff’s visit to her treating source on July 9,

2002. The record indicates that on that date:

Patient is seen today in routine follow-up of her

chronic depression and anxiety. Patient does report

she has been having some paranoid episodes. Feels that

somebody is hurting her. Is also admitting auditory

hallucinations. Feels that she is afraid to be in the

dark, afraid to put on the light. She has had these

symptoms for a very long time, but has been afraid to

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tell anybody about it. She is willing to seek

psychiatric help. Feels that Paxil is not covering the

level of anxiety she is experiencing.

Tr. 210 (emphasis added).

Similarly, the ALJ did not address the evidence in the

record that Plaintiff resisted attempts from her family members

to get her to seek treatment for her mental illness before the

expiration of her insured period. Teresa Corson, Plaintiff’s

daughter-in-law, testified at the hearing that she had known

Plaintiff for 16 years and had observed her abnormal behavior

during the relevant time period. Tr. 77-85. She testified that

Plaintiff would call saying “the aliens are back” and that there

were people in the yard watching her. Tr. 78. She added that

Plaintiff was afraid of people outside of the family, and that

during visits to her place, she would talk about the “aliens.” 

Tr. 78, 84. Teresa Corson explained that Plaintiff would get

angry if anyone mentioned to her that she needed help with these

problems. Tr. 79. 

Ms. Tracy McAllister, Plaintiff’s friend of 20 years,

described the marked change in Plaintiff’s behavior starting in

1988 in a written statement. Tr. 170. Ms. McAllister stated

that at that time:

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I started to notice a change in Brenda, the way she

spoke to me made me feel like I was a bad person and

she stopped looking at me when she spoke, always

looking around or peeking out the window blinds like

she was trying to catch the person that she says was

spying on her and snooping around the house.

Tr. 170. Ms. McAllister further reported that two years later,

in 1990, Plaintiff started claiming, among other things, that

certain people were out to get her, that she had seen UFOs, and

that aliens were giving her a hard time about how she kept her

house. Tr. 171. Ms. McAllister relates that when she asked

Plaintiff’s husband about her actions, he responded “I know but

she won’t go to the doctor’s.” Id.

John Corson, Plaintiff’s brother in law, wrote a sworn

statement on June 11, 2003, discussing a 1994 incident:

In June of 1994, my brother Peter brought his wife

Brenda over to my house. Peter said Brenda was upset. 

I asked her what was wrong and she told me that she had

been shot twice in the neck. I asked her who had shot

her and she said a motorcycle gang had done it.

I finally convinced her to go to the hospital. But

first she wanted some water and then she couldn’t

swallow it because it had poison in it. Peter and I

finally got her in the truck and took her to the

hospital, but she wouldn’t stay once we got inside.

She has had these problems of seeing and hearing things

that are just not real. As you drive by Pete &

Brenda’s home the lights are usually off and the

curtains drawn so no one can spy. Brenda has had these

problems for a good many years.

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Tr. 174. John Corson’s wife, Lorraine Corson, corroborated this

story in her statement of June 10, 2003. Tr. 175. Lorraine

Corson elaborated that the only person Plaintiff trusted that

night was her husband, John, and that he was able to convince her

that she needed to go to the hospital for help. Id. But

Plaintiff refused treatment at the hospital. Id. 

The Court finds, based on the evidence discussed above, that

the ALJ should have considered the Plaintiff’s explanation for

failing to seek or pursue medical treatment, pursuant to SSR 96-

7p, before drawing inferences about the severity of Plaintiff’s

symptoms and their functional effects. 

It further appears to the Court that the ALJ may have

misapprehended relevant evidence from Plaintiff’s treating

psychiatrist, Dr. Joyce Blood. The ALJ found the evidence from

Dr. Blood to be “not fully material to the issues herein” because

she first saw Plaintiff four years after her insured status

expired. Tr. 16. The ALJ did not expressly acknowledge in her

decision, however, that Dr. Blood’s September 3, 2003 assessment

purported to relate to Plaintiff’s present condition and as she

was prior to September 1998. Tr. 257. It is well recognized

that a “[r]etrospective diagnosis of an impairment, even if

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uncorroborated by contemporaneous medical records, but

corroborated by lay evidence relating back to the claimed period

of disability, can support a finding of past impairment.” Newell

v. Comm’r of SSA, 347 F.3d 541, 547 (3d Cir. 2003) (citing Loza,

219 F.3d at 396; Likes v. Callahan, 112 F.3d 189, 191 (5th Cir.

1997)); see also Jones v. Chater, 65 F.3d 102, 104 (8th Cir.

1995) (finding that an ALJ may consider and reject retrospective

diagnoses and evidence proffered by lay witnesses, but must do so

for valid reasons). Here, multiple lay witnesses provided

evidence regarding the Plaintiff’s mental illness with one

witness dating the first signs as far back as 1988. 

The Court recognizes that the ALJ found that the statements

of Plaintiff’s sister-in-law, brother-in-law and friend were not

reflective of signs and symptoms of an impairment significantly

limiting her ability to perform one or more basic work activities

for a consecutive period of 12 or more months, Tr. 22, and that

Plaintiff had “only recently exhibited severe signs of mental

disease.” Tr. 21. There is no medical evidence in the record,

however, that clarifies the point at which Plaintiff’s signs of

mental impairment could be considered more than a slight

abnormality. The parties dispute whether the ALJ should have

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consulted a medical advisor in accordance with SSR 83-20,

available at 1983 WL 31249 (S.S.A.). Plaintiff argues that a

medical advisor’s opinion was necessary because the evidence

regarding Plaintiff’s anxiety was ambiguous. The Commissioner

responds that SSR 83-20 is not applicable here because the

predicate to the application of the regulation is a finding of

disability. The Court is persuaded by the Plaintiff’s argument,

however, that courts have not found the application of SSR 83-20

to be so limited, and that the ALJ should have obtained the

assistance of a medical advisor in this case. See e.g., Newell,

347 F.3d at 548 (finding that the ALJ should have applied SSR 83-

20 to determine when, if ever, the Plaintiff’s liver disease,

diabetes, and neuropathy became disabling); Mason v. Apfel, 2 F.

Supp. 2d 142, 150 (D. Mass. 1998) (finding that where the onset

date must be inferred from the medical and other evidence

describing the history and symptomatology of the disease process,

the ALJ is required to retain the assistance of a medical advisor

pursuant to SSR 83-20).

The Court further notes that the ALJ misstated the evidence

in finding that Plaintiff’s report of being very fearful of going

into public places was not corroborated by reports to Dr. Blood

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or her counselor. Tr. 22. This finding is plainly contradicted

by Dr. Blood’s July 31, 2002 report that:

She is very nervous being around people. She cannot

stay in a restaurant for fear that others are talking

about her. She feels very paranoid. She has ideas of

reference, seeing people on the street and in some way

feeling like they are there for a specific reason and

want to hurt her.

Tr. 225. Dr. Blood later found, as the ALJ noted in her

decision, that Plaintiff had high anxiety and a condition of

agoraphobia.

An ALJ’s findings of fact are not conclusive if they are

“derived by ignoring evidence, misapplying the law, or judging

matters entrusted to experts.” Nguyen v. Chater, 172 F.3d at 35. 

Here, the ALJ misapplied the law for determining the severity of

Plaintiff’s mental impairments at Step 2 of the sequential

evaluation by not using the proper standard, and ignored evidence

that could be found to meet the Plaintiff’s burden to show that

her mental impairments were more than a slight abnormality with

more than a minimal effect on her ability to do basic work

activities. The Court finds that a remand for a reconsideration

of the severity of Plaintiff’s mental impairments is warranted.

B. The ALJ’s Finding That The Plaintiff Does Not Have

A Medically Determinable Back Impairment Is Not 

Supported By Substantial Evidence

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The ALJ found that “the record does not show neurological

abnormalities in connection with her complaints of back pain and

does not show examinations where she has any signs indicative of

a musculoskeletal or other disorder of the spine.” Tr. 21. In

so finding, the ALJ disregarded the opinion of consulting

physician, Dr. Patrician Skidmore. As Dr. Skidmore recognized,

Plaintiff has a tethered spinal cord, a small defect at L3-4, and

absent Soleus H reflexes suggestive of early pathology at some

point along the course of the S1 nerve roots bilaterally. Tr.

234. Dr. Skidmore found that in light of these abnormalities

Plaintiff’s complaints of pain were credible. The ALJ stated

that she did not give Dr. Skidmore’s opinion “much weight” since

the medical evidence of record did not support a medically

determinable impairment of the back. However, the ALJ did not

cite any contrary medical opinion. It appears that the ALJ

substituted her own lay opinion of the medical evidence.

The ALJ found, based on her review of the results of

Plaintiff’s March 22, 1994 electromyogram report, that Plaintiff

was able to do basic work activities, and further found that

Plaintiff’s symptoms “were not so constant so as to significantly

interfere with her performance of basic work activities.” Tr.

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19. As discussed with regard to the determination of the

severity of Plaintiff’s mental impairments, however, this finding

appears to reflect the use of the wrong standard for determining

whether Plaintiff’s physical impairments were severe. The ALJ

did not reference the requirement that in order to be found “not

severe” the claimant’s impairment(s) must be no more than a

slight abnormality that has only a minimal affect of the ability

to do basic work activities.

 The Court finds that the ALJ’s finding regarding the

Plaintiff’s alleged back impairments is not conclusive because

she improperly judged a matter that should have been entrusted to

a medical expert. In addition, this case should be remanded for

reconsideration of whether Plaintiff met her de minimis burden to

show severity at Step 2 of the sequential evaluation particularly

since Dr. Skidmore’s opinion supports a finding that Plaintiff

could not perform her past relevant work. See McDonald, 795 F.2d

at 1125 (finding that denial of benefits is not appropriate at

the severe stage if evidence shows that a claimant cannot perform

his or her past relevant work).

In sum, the Court finds that the ALJ improperly relied upon

her own lay opinion in determining that Plaintiff did not have a

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medically determinable impairment of the back. The Court further

finds that the ALJ did not properly follow the sequential

evaluation for deciding Plaintiff’s disability claim because the

ALJ misapplied the law at Step 2 of the sequential evaluation

with regard to consideration of Plaintiff’s physical impairments. 

A remand for further consideration of Plaintiff’s physical

impairments is warranted.

Conclusion

While it is certainly possible that after reconsideration

the Plaintiff will again be found to not be disabled within the

meaning of the Act, the Court cannot find that the Commissioner’s

decision is supported by substantial evidence at this juncture. 

Accordingly, for the reasons set forth above, I recommend that

the Plaintiff’s Motion for Order Reversing the Decision of the

Commissioner (document no. 7) be granted. I further recommend

that the Commissioner’s Motion for Order Affirming the Decision

of the Commissioner (document no. 8) be denied. I recommend that

this matter be remanded for further proceedings.

Any objections to this Report and Recommendation must be

filed within ten (10) days of receipt of this notice. Failure to

file objections within the specified time waives the right to

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appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 27, 2005

cc: Raymond J. Kelly, Esq.

David L. Broderick, Esq.

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