IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHARNETTA RANKINS o/b/o :

CABRIA B. RANKINS,

:

Plaintiff,

vs. : CA 05-0704-WS-C

JO ANNE B. BARNHART, :

Commissioner of Social Security,

:

Defendant.

REPORT AND RECOMMENDATION

The plaintiff, Charnetta Rankins, brings this action on behalf of her

daughter, Cabria Rankins, pursuant to 42 U.S.C. § 1383(c)(3), seeking judicial

review of a final decision of the Commissioner of Social Security denying

Cabria’s application for child’s insurance benefits. This action has been

referred to the Magistrate Judge for entry of a report and recommendation

pursuant to 28 U.S.C. § 636(b)(1)(B). Upon consideration of the administrative

record, plaintiff's proposed report and recommendation, and the

Commissioner's proposed report and recommendation, the undersigned

recommends that the Commissioner's decision denying child’s insurance

Case 1:05-cv-00704-WS-C Document 17 Filed 08/04/06 Page 1 of 21
1 The parties filed a joint motion to waive oral argument in this matter on August 1,

2006. (Doc. 15) This motion was granted by order dated August 2, 2006. (Doc. 16)

2

benefits be affirmed.1

The Administrative Law Judge (ALJ) made the following findings:

1. The claimant was born on September 14, 1987, and is a

child under the age of 18, currently 16 years old.

2. At the age of 16, there is no evidence that the claimant

has ever performed substantial gainful activity.

3. The claimant has had episodic tremulousness, possible

complex partial epilepsy, an impairment which is deemed

“severe” within the meaning of 20 C.F.R. § 416.924(c).

4. The claimant’s severe impairment has not been of a

severity to medically meet or equal the severity of any

impairment listed in Part B of Appendix 1 to Subpart P, 20

C.F.R. Part 404 (“Listing of Impairments”). Neither has the

claimant’s impairment been functionally equivalent to the level

of severity contemplated by the listings.

5. The claimant has not had “extreme” limitation in any

areas of functioning or “marked” limitation in two areas of

functioning.

6. Subjective complaints were considered credible only to

the extent that they were supported by the weight of the medical

and non-medical evidence of record as summarized and

discussed in the text of this decision.

7. The claimant has not been under a “disability,” as defined

in the Social Security Act and derivative regulations. 

(Tr. 27-28) The Appeals Council affirmed the ALJ's decision (Tr. 5-7) and

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3

thus, the hearing decision became the final decision of the Commissioner of

Social Security.

DISCUSSION

Prior to February 20, 1990, a child claimant would be found eligible for

benefits under the Commissioner's regulations only if he was not performing

substantial gainful activity, if his impairment met the duration requirement,

and if his impairment was medically equivalent to a listed impairment.

Sullivan v. Zebley, 493 U.S. 521, 526, 110 S.Ct. 885, 889, 107 L.Ed.2d 967

(1990). The Commissioner's regulations made no inquiries corresponding to

the fourth and fifth steps of the adult analysis. Id. In Zebley, the Supreme

Court stated in plain words that "a child is entitled to benefits if his impairment

is as severe as one that would prevent an adult from working." Id. at 529, 110

S.Ct. at 890. The High Court rejected the Commissioner's argument that

analysis of child disability claims of the type performed at steps four and five

of the adult analysis is not feasible. See id. at 539, 110 S.Ct. at 896.

The fact that a vocational analysis is inapplicable

to children does not mean that a functional

analysis cannot be applied to them. An inquiry

into the impact of an impairment on the normal

daily activities of a child of the claimant's age --

speaking, walking, washing, dressing, feeding

oneself, going to school, playing, etc. -- is, in our

view, no more amorphous or unmanageable than

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4

an inquiry into the impact of an adult's

impairment on his ability to perform "any other

kind of substantial gainful work which exists in

the national economy[.]"

Id. at 539-540, 110 S.Ct. at 896 (citation omitted).

Following the Zebley decision, the Commissioner made wholesale

revisions in the regulations addressing child disability claims. The

Commissioner began employing a four-step sequential analysis for

determining whether a child is disabled. See 20 C.F.R. § 416.924(c)-(f). The

four steps were as follows: (1) If the child is working and that work is

substantial gainful activity, he will be found not disabled regardless of his

medical condition or age, education, or work experience; (2) If the child does

not have any severe impairment(s) he will be found to be not disabled; (3) If

the child has an impairment(s) which meets the duration requirement and is

listed in appendix 1, or is equal to a listed impairment, he will be found to be

disabled; and (4) If the child has a severe impairment(s) but that impairment(s)

does not meet or equal in severity a listed impairment, the impact of the child's

impairment(s) on his overall ability to function independently, appropriately,

and effectively in an age-appropriate manner is assessed and this

individualized functional assessment will be used to decide whether the child

has an impairment(s) that would prevent an adult from engaging in substantial

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5

gainful activity and, thus, to determine whether or not the child is disabled. Id.

The comparable severity standard was eliminated with passage of the

Personal Responsibility and Work Opportunity Act of 1996. See Pub.L. No.

104-193, 110 Stat. 2105 § 211(b)(2) (1996) (directing the Commissioner to

eliminate the individual functional assessment set forth in the regulations at 20

C.F.R. §§ 416.924d and 416.924e). This act, which was signed into law on

August 22, 1996, wrought another change in the disability determination

process for children. The 1996 Act provides that “[a]n individual under the

age of 18 shall be considered disabled for the purposes of this subchapter if

that individual has a medically determinable physical or mental impairment,

which results in marked and severe functional limitations, and which can be

expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(I).

The regulations implementing this definition of disability provide a three-step

process for determining eligibility for benefits which is identical to the first

three steps of the post-Zebley analysis, save with respect to the third step. The

first step still requires the ALJ to determine whether the child is engaged in

substantial gainful activity and the second step still requires the ALJ to

determine whether the child has a severe impairment or combination of

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6

impairments. At the third step, the ALJ must determine whether the severe

impairments “meet, medically equal, or functionally equal the listings. An

impairment(s) causes marked and severe functional limitations if it meets or

medically equals the severity of a set of criteria for an impairment in the

listings, or if it functionally equals the listings.” 20 C.F.R. § 416.924(d)

(2004) (emphasis in original). 

A child’s impairment is recognized as causing “marked and

severe functional limitations” if those limitations “meet[],

medically equal[], or functionally equal[] the [L]istings.” A

child’s limitations “meet” the limitations in the Listings if the

child actually suffers from the limitations specified in the

Listings for that child’s severe impairment. A child’s limitations

“medically equal” the limitations in the Listings if the child’s

limitations “are at least of equal medical significance to those of

a listed impairment.”

Finally, even if the limitations resulting from a child’s particular

impairment are not comparable to those specified in the Listings,

the ALJ can still conclude that those limitations are

“functionally equivalent” to those in the Listings. In making this

determination, the ALJ assesses the degree to which the child’s

limitations interfere with the child’s normal life activities. The

C.F.R. specifies six major domains of life:

(i) Acquiring and using information;

(ii) Attending and completing tasks;

(iii) Interacting and relating with others;

(iv) Moving about and manipulating objects;

(v) Caring for [one]self; and 

(vi) Health and physical well-being.

The C.F.R. contains various “benchmarks” that children should

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7

have achieved by certain ages in each of these life domains. A

child’s impairment is “of listing-level severity,” and so

“functionally equals the listings,” if as a result of the limitations

stemming from that impairment the child has ‘marked’

limitations in two of the domains [above], or an ‘extreme’

limitation in one domain.”

Shinn ex rel. Shinn v. Commissioner of Social Security, 391 F.3d 1276, 1279

(11th Cir. 2004) (internal citations omitted). 

The new standard clearly is more stringent given Congress’s decision,

as stated in the House conference report, to confine the definition of childhood

disability to the first three steps of the sequential evaluation process. Hart ex

rel. Thomas v. Chater, 963 F.Supp. 835, 839 (W.D.Mo. 1997). The report

reads in pertinent part as follows:

“The conferees intend that only needy children with severe

disabilities be eligible for SSI, and the Listing of Impairments

and other current disability determination regulations as

modified by these provisions properly reflect the severity of

disability contemplated by the new statutory definition. . . . The

conferees are also aware that SSA uses the term ‘severe’ to often

mean ‘other than minor’ in an initial screening procedure for

disability determination and in other places. The conferees,

however, use the term ‘severe’ in its common sense meaning.”

Id. (quoting 142 Cong. Rec. H8829-92, 8913 (1996 WL 428614), H.R. Conf.

Rep. No. 104-725 (July 30, 1996)); see also 20 C.F.R. § 416.924(a) (2004)

(“We follow a set order to determine whether you are disabled. If you are

doing substantial gainful activity, we will determine that you are not disabled

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8

and not review your claim further. If you are not doing substantial gainful

activity, we will consider your physical or mental impairment(s) first to see if

you have an impairment or combination of impairments that is severe. If your

impairment(s) is not severe, we will determine that you are not disabled and

not review your claim further. If your impairment(s) is severe, we will review

your claim further to see if you have an impairment(s) that meets, medically

equals, or functionally equals the listings. If you have such an impairment(s),

and it meets the duration requirement, we will find that you are disabled. If

you do not have such an impairment(s), or if it does not meet the duration

requirement, we will find that you are not disabled.”). 

Plaintiff contends that the ALJ committed the following errors: (1) he

failed to properly develop the record; (2) he failed to properly consider the

opinion of plaintiff’s treating physician; and (3) he failed to properly consider

the medical evidence of record. The first and third errors will be discussed

together as explained below.

A. Failure to Develop the Record. In her first assignment of

error, it is plaintiff’s contention that in absence of the completion of a child’s

residual functional capacity (RFC) by a treating or consultative physician the

ALJ did not have a fully and fairly developed record upon which to evaluate

Case 1:05-cv-00704-WS-C Document 17 Filed 08/04/06 Page 8 of 21
2 Although plaintiff entitles her third assignment of error as the ALJ’s failure to

consider the medical evidence of record, a review of same reveals that what plaintiff is really

arguing is that the ALJ’s decision denying benefits in this case is not based upon substantial

evidence because the ALJ failed to obtain a child’s RFC from either a treating or consultative

medical source. (Doc. 12, at 8-10) Therefore, these issues are considered together.

3 The plaintiff’s report and recommendation cannot be read as making any

argument that Cabria’s possible complex partial epilepsy meets or equals a listed impairment.

9

plaintiff’s “ability to function under the criteria described for the award of

child’s benefits under Social Security rules and regulations.” (Doc. 12, at 6;

see also id. at 7)2

 In other words, what plaintiff is contending is that for an

ALJ’s functional equivalence analysis to be sustainable the ALJ must obtain

a child’s RFC from a treating or consultative source.3

 The undersigned

disagrees. 

The Commissioner’s regulations provide that in a child disability case

all relevant information will be considered, whether from medical sources or

non-medical sources, such as teachers. 20 C.F.R. § 416.924a(a) (2006).

Teachers, in particular, are an important source of information about the

effects of a child’s impairments on her activities and how she functions “on a

day-to-day basis.” 20 CF.R. § 416.924a(a)(2)(iii). In this case, the ALJ’s

comprehensive functional equivalence analysis (Tr. 23-27) is supported not

only by the lengthy teacher questionnaire completed by Cabria’s English

teacher (Tr. 71-79) but, as well, by the sequential evaluation form completed

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by a non-examining reviewing physician (Tr. 119-124), school records (Tr. 91-

92), and the medical evidence of record (Tr. 97-118 & 126-137). The

foregoing constitutes substantial evidence that plaintiff’s possible complex

partial epilepsy is not functionally equivalent to a listed impairment and

because plaintiff has not cited the undersigned to a regulation, ruling or case

recognizing that an ALJ’s functional equivalence analysis is only sustainable

if based upon an RFC assessment completed by a treating or consultative

source, her argument that the ALJ failed to properly develop the record need

be rejected.

B. Treating Physician’s Opinion. Plaintiff’s only other

contention is that it was improper for the ALJ to find that plaintiff either had

“no limitation” of functioning or a “less than marked” limitation of functioning

in each of the six domains evaluated in light of the fact that Cabria’s treating

neurologist warned her about the potential side effects of her prescribed

medication (Tr. 134) and advised her to avoid driving or operating any

dangerous motorized vehicles or machinery, to avoid heights and water when

unsupervised and to obtain adequate sleep (Tr. 134 & 137). (Doc. 12, at 7-8)

“Certainly, these limitations should translate to an impairment in Plaintiff’s

ability to move and manipulate objects, care for self, and health and physical

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well being, as well as possibly impacting her acquisition and use of

information, ability to tend to and complete tasks, and ability to interact and

relate with others.” (Id. at 8) 

The Commissioner’s regulations set forth six major domains of life:

(i) Acquiring and using information;

(ii) Attending and completing tasks;

(iii) Interacting and relating with others;

(iv) Moving about and manipulating objects;

(v) Caring for [one]self; and 

(vi) Health and physical well-being.

20 C.F.R. § 416.926a(b)(1) (2006). A child’s impairments will be found to

functionally equal the listings if they result in “‘marked’ limitations in two

domains of functioning or an ‘extreme’ limitation in one domain[.]” 20 C .F.R.

§ 416.926a(a). 

(g) Acquiring and using information. In this domain,

we consider how well you acquire or learn information, and how

well you use the information you have learned.

...

(2) Age group descriptors

...

(v) Adolescents (age 12 to attainment of age 18). In

middle and high school, you should continue to demonstrate

what you have learned in academic assignments (e.g.,

composition, classroom discussion, and laboratory experiments).

You should also be able to use what you have learned in daily

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living situations without assistance (e.g., going to the store,

using the library, and using public transportation). You should

be able to comprehend and express both simple and complex

ideas, using increasingly complex language (vocabulary and

grammar) in learning and daily living situations (e.g., to obtain

and convey information and ideas). You should also learn to

apply these skills in practical ways that will help you enter the

workplace after you finish school (e.g., carrying out instructions,

preparing a job application, or being interviewed by a potential

employer).

(3) Examples of limited functioning in acquiring and

using information. The following examples describe some

limitations we may consider in this domain. Your limitations

may be different from the ones listed here. Also, the examples

do not necessarily describe a “marked” or “extreme” limitation.

Whether an example applies in your case may depend on your

age and developmental stage; e.g., an example below may

describe a limitation in an older child, but not a limitation in a

younger one. As in any case, your limitations must result from

your medically determinable impairment(s). However, we will

consider all of the relevant information in your case record when

we decide whether your medically determinable impairment(s)

results in a “marked” or “extreme” limitation in this domain.

(i) You do not demonstrate understanding of words

about space, size, or time; e.g., in/under, big/little,

morning/night.

(ii) You cannot rhyme words or the sounds in words.

(iii) You have difficulty recalling important things you

learned in school yesterday.

(iv) You have difficulty solving mathematics questions

or computing arithmetic answers.

(v) You talk only in short, simple sentences and have

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difficulty explaining what you mean.

(h) Attending and completing tasks. In this domain,

we consider how well you are able to focus and maintain your

attention, and how well you begin, carry through, and finish

your activities, including the pace at which you perform

activities and the ease with which you change them.

...

(2) Age group descriptors

...

(v) Adolescents (age 12 to attainment of age 18). In

your later years of school, you should be able to pay attention to

increasingly longer presentations and discussions, maintain your

concentration while reading textbooks, and independently plan

and complete long-range academic projects. You should also be

able to organize your materials and to plan your time in order to

complete school tasks and assignments. In anticipation of

entering the workplace, you should be able to maintain your

attention on a task for extended periods of time, and not be

unduly distracted by your peers or unduly distracting to them in

a school or work setting.

(3) Examples of limited functioning in attending and

completing tasks. The following examples describe some

limitations we may consider in this domain. . . . 

(i) You are easily startled, distracted, or overreactive

to sounds, sights, movements, or touch.

(ii) You are slow to focus on, or fail to complete

activities of interest to you, e.g., games or art projects.

(iii) You repeatedly become sidetracked from your

activities or you frequently interrupt others.

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14

(iv) You are easily frustrated and give up on tasks,

including ones you are capable of completing.

(v) You require extra supervision to keep you engaged

in an activity.

(i) Interacting and relating with others. In this

domain, we consider how well you initiate and sustain

emotional connections with others, develop and use the

language of your community, cooperate with others, comply

with rules, respond to criticism, and respect and take care of the

possessions of others.

...

(2) Age group descriptors

...

(v) Adolescents (age 12 to attainment of age 18). By

the time you reach adolescence, you should be able to initiate

and develop friendships with children who are your age and to

relate appropriately to other children and adults, both

individually and in groups. You should begin to be able to solve

conflicts between yourself and peers or family members or

adults outside your family. You should recognize that there are

different social rules for you and your friends and for

acquaintances or adults. You should be able to intelligibly

express your feelings, ask for assistance in getting your needs

met, seek information, describe events, and tell stories, in all

kinds of environments (e.g., home, classroom, sports, extracurricular activities, or part-time job), and with all types of

people (e.g., parents, siblings, friends, classmates, teachers,

employers, and strangers). 

(3) Examples of limited functioning in interacting and

relating with others. The following examples describe some

limitations we may consider in this domain. . . .

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(i) You do not reach out to be picked up and held by

your caregiver. 

(ii) You have no close friends, or your friends are all

older or younger than you.

(iii) You avoid or withdraw from people you know, or

you are overly anxious or fearful of meeting new people or

trying new experiences.

(iv) You have difficulty playing games or sports with

rules.

(v) You have difficulty communicating with others;

e.g., in using verbal and nonverbal skills to express yourself,

carrying on a conversation, or in asking others for assistance.

(vi) You have difficulty speaking intelligibly or with

adequate fluency.

(j) Moving about and manipulating objects. In this

domain, we consider how you move your body from one place

to another and how you move and manipulate things. These are

called gross and fine motor skills.

...

(2) Age group descriptors

(v) Adolescents (age 12 to attainment of age 18). As

an adolescent, you should be able to use your motor skills freely

and easily to get about your school, the neighborhood, and the

community. You should be able to participate in a full range of

individual and group physical fitness activities. You should

show mature skills in activities requiring eye-hand coordination,

and should have the fine motor skills needed to write efficiently

or type on a keyboard.

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(3) Examples of limited functioning in moving about

and manipulating objects. The following examples describe

some limitations we may consider in this domain. . . .

(i) You experience muscle weakness, joint stiffness,

or sensory loss (e.g., spasticity, hypotonia, neuropathy, or

paresthesia) that interferes with your motor activities (e.g., you

unintentionally drop things).

(ii) You have trouble climbing up and down stairs, or

have jerky or disorganized locomotion or difficulty with your

balance.

(iii) You have difficulty coordinating gross motor

movements (e.g., bending, kneeling, crawling, running, jumping

rope, or riding a bike).

(iv) You have difficulty with sequencing hand or

finger movements.

(v) You have difficulty with fine motor movement

(e.g., gripping or grasping objects).

(vi) You have poor eye-hand coordination when using

a pencil or scissors.

(k) Caring for yourself. In this domain, we consider

how well you maintain a healthy emotional and physical state,

including how well you get your physical and emotional wants

and needs met in appropriate ways; how you cope with stress

and changes in your environment; and whether you take care of

your own health, possessions, and living area.

...

(2) Age group descriptors

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...

(v) Adolescents (age 12 to attainment of age 18). You

should feel more independent from others and should be

increasingly independent in all of your day-to-day activities.

You may sometimes experience confusion in the way you feel

about yourself. You should begin to notice significant changes

in your body’s development, and this can result in anxiety or

worrying about yourself and your body. Sometimes these

worries can make you feel angry or frustrated. You should begin

to discover appropriate ways to express your feelings, both good

and bad (e.g., keeping a diary to sort out angry feelings or

listening to music to calm yourself down). You should begin to

think seriously about your future plans, and what you will do

when you finish school.

(3) Examples of limited functioning in caring for

yourself. The following examples describe some limitations we

may consider in this domain. . . .

(i) You continue to place non-nutritive or inedible

objects in your mouth.

(ii) You often use self-soothing activities showing

developmental regression (e.g., thumbsucking, re-chewing

food), or you have restrictive or stereotyped mannerisms (e.g.,

body rocking, head banging). 

(iii) You do not dress or bathe yourself appropriately

for your age because you have an impairment(s) that affects this

domain.

(iv) You engage in self-injurious behavior (e.g.,

suicidal thoughts or actions, self-inflicted injury, or refusal to

take your medication), or you ignore safety rules.

(v) You do not spontaneously pursue enjoyable

activities or interests.

Case 1:05-cv-00704-WS-C Document 17 Filed 08/04/06 Page 17 of 21
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(vi) You have disturbance in eating or sleeping

patterns.

(l) Health and physical well-being. In this domain,

we consider the cumulative physical effects of physical or

mental impairments and their associated treatments or therapies

on your functioning that we did not consider in paragraph (j) of

this section. When your physical impairment(s), your mental

impairment(s), or your combination of physical and mental

impairments has physical effects that cause “extreme” limitation

in your functioning, you will generally have an impairment(s)

that “meets” or “medically equals” a listing.

...

(4) Examples of limitations in health and physical

well-being. The following examples describe some limitations

we may consider in this domain. . . .

(i) You have generalized symptoms such as

weakness, dizziness, agitation (e.g., excitability), lethargy (e.g.,

fatigue or loss of energy or stamina) or psychomotor retardation

because of your impairment(s).

(ii) You have somatic complaints related to your

impairments (e.g., seizure or convulsive activity, headaches,

incontinence, recurrent infections, allergies, changes in weight

or eating habits, stomach discomfort, nausea, headaches, or

insomnia).

(iii) You have limitations in your physical functioning

because of your treatment (e.g., chemotherapy, multiple

surgeries, chelation, pulmonary cleansing, or nebulizer

treatments).

(iv) You have exacerbations from one impairment or

a combination of impairments that interfere with your physical

Case 1:05-cv-00704-WS-C Document 17 Filed 08/04/06 Page 18 of 21
4 Specifically, a comparison of the contents of the regulations, supra, to Dr.

Hamilton’s limitations does not establish an “extreme” limitation in any one domain or a

“marked” limitation in any two domains so as to establish functional equivalence.

19

functioning.

(v) You are medically fragile and need intensive

medical care to maintain your level of health and physical wellbeing.

20 C.F.R § 416.926a(g)-(l).

The undersigned has quoted at length from the Commissioner’s

regulations regarding the six domains because a comparison of same to the

limitations noted by plaintiff’s treating neurologist, which were specifically

considered by the ALJ when analyzing the “moving and manipulating objects”

domain (Tr. 25), clearly establishes that the instructions given by Dr. Hamilton

(to avoid driving, etc.) do not translate into limited functioning in any one

domain or several domains sufficient to establish functional equivalence.4

 In

particular, even if this Court was to find that the ALJ erred in finding that

Cabria had no limitation of functioning in the domain of moving and

manipulating objects such error would be harmless as the limitations noted by

Dr. Hamilton are clearly “less than marked” when compared to the examples

of limited functioning recognized in the Commissioner’s regulations, see 20

C.F.R. § 416.926a(j)(3)(i)-(vi). Accordingly, the undersigned finds that any

Case 1:05-cv-00704-WS-C Document 17 Filed 08/04/06 Page 19 of 21
20

error committed by the ALJ in his functional equivalence analysis was mere

harmless error.

CONCLUSION

Based upon the foregoing, it is recommended that the Commissioner's

decision denying the application made on behalf of Cabria Rankins for child’s

insurance benefits be affirmed. 

The attached sheet contains important information regarding objections

to the report and recommendation of the Magistrate Judge.

DONE this the 4th day of August, 2006.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:05-cv-00704-WS-C Document 17 Filed 08/04/06 Page 20 of 21
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MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must,

within ten days of the date of service of this document, file specific written objections with

the Clerk of this court. Failure to do so will bar a de novo determination by the district

judge of anything in the recommendation and will bar an attack, on appeal, of the factual

findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d

736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en

banc). The procedure for challenging the findings and recommendations of the Magistrate

Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a magistrate judge in

a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A),

by filing a ‘Statement of Objection to Magistrate Judge’s Recommendation’

within ten days after being served with a copy of the recommendation,

unless a different time is established by order. The statement of objection

shall specify those portions of the recommendation to which objection is

made and the basis for the objection. The objecting party shall submit to

the district judge, at the time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient to

submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure to submit a

brief in support of the objection may be deemed an abandonment of the

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals;

only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C.

§ 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original

records in this case are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the

cost of the transcript.

s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:05-cv-00704-WS-C Document 17 Filed 08/04/06 Page 21 of 21