MUSTAFA T. KASUBHAI, Magistrate Judge.
Scott S. ("Plaintiff") seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act (Act). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3). For the reasons set forth below, that decision should be AFFIRMED.
Plaintiff protectively filed for SSI on March 12, 2014, alleging disability beginning January 1, 2002. Tr. 18. His application was denied initially, and upon reconsideration. Tr. 18. A hearing was held before an administrative law judge ("ALJ") on October 18, 2016. Plaintiff testified, as did a vocational expert ("VE"), and Charles Cooke, M.D., an impartial medical expert. Id. On December 17, 2016, the ALJ issued an unfavorable decision, finding Plaintiff not disabled. Tr. 15. On December 28, 2017, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision, the final decision of the Commissioner. Tr. 1. Plaintiff timely filed this request for district court review.
Born on April 2, 1963, Plaintiff was 50 years old when he filed for SSI and 53 years old at the time of his hearing before the ALJ. Tr. 67. He completed his GED in 1982. Tr. 198. Over the past 15 years, Plaintiff worked sporadically, doing odd jobs like landscaping, collecting cans, and metal scrapping. Tr. 43-45, 198, 204. Plaintiff alleged disability due to back injury, degenerative disc disease, high blood pressure, and bursitis in his left shoulder. Tr. 67, 79, 233.
Standard of Review
The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(a)(4)(i). If so, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 416.920(c). If the claimant does not have a medically determinable, severe impairment, he is not disabled.
At step three, the Commissioner determines whether the claimant's impairments, either singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 416.920(d). If so, the claimant is presumptively disabled. Yuckert, 482 U.S. at 141.
If the claimant's impairments are not equivalent to one of the enumerated impairments, between the third and fourth steps the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all the relevant medical and other evidence in the claimant's record. See 20 C.F.R § 416.920(e). The RFC is an estimate of the claimant's capacity to perform sustained, work-related physical and/or mental activities on a regular and continuing basis, despite limitations imposed by the claimant's impairments. See § 416.945; see also SSR 96-8p, 1996 WL 374184.
At step four, the Commissioner resolves whether the claimant can still perform "past relevant work." 20 C.F.R. § 416.920(f). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner.
At step five, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 416.920(g). If the Commissioner meets this burden, the claimant is not disabled.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since March 12, 2014, the date of his application. Tr. 20.
At step two, the ALJ found Plaintiff had severe impairments of degenerative disc disease and bursitis of the left shoulder. Id. The ALJ also found Plaintiff's medically determinable conditions of hypertension and shingles to be non-severe because they did not cause more than minimal functional limitations. Tr. 20-21.
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("The Listing"). Tr. 21.
Next, the ALJ found that Plaintiff had the RFC to perform light work, except that Plaintiff could occasionally balance, stop, crouch, kneel, and crawl. Id. Plaintiff could never climb ladders, ropes, or scaffolding, and could only occasionally reach overhead with the upper left extremity. Additionally, Plaintiff could not tolerate any exposure to hazards such as machinery, and unprotected heights. Tr. 21-22.
At step four, the ALJ determined Plaintiff had no past relevant work. Tr. 25. At step five, based on the VE's testimony, the ALJ determined that Plaintiff would be able to perform the jobs of cashier II, small products assembler, and electronics worker, all of which existed in significant numbers in the national economy. Tr. 26.
Plaintiff alleges the ALJ erred by: (1) improperly discrediting Plaintiff's subjective symptom testimony; (2) failing to properly develop the record; (3) erroneously crediting Dr. Cooke's opinion to find Plaintiff did not meet or equal a Listing; and (4) erroneously crediting Dr. Cooke's opinion to formulate the RFC.
Plaintiff argues that the ALJ improperly discredited Plaintiff's subjective symptom testimony. The Commissioner argues that the ALJ provided clear and convincing reasons supported by substantial evidence to reject Plaintiff's claims of disabling pain. Specifically, the Commissioner argues that the ALJ properly considered Plaintiff's ability to continue hauling and recycling scrap metal, conservative medical treatment, mild objective examinations, and the opinions of consulting physicians, including Dr. Cooke.
There is a two-step process for evaluating a claimant's testimony about the severity and limiting effect of the claimant's symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment `which could reasonably be expected to produce the pain or other symptoms alleged.'" Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, "the claimant need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom." Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
"Second, if the claimant meets this first test, and there is no evidence of malingering, `the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'" Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281). It is "not sufficient for the ALJ to make only general findings; he must state which pain testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell, 947 F.2d at 345-46).
Examples of clear-and-convincing reasons include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies either in the claimant's testimony or between his testimony and his conduct, daily activities inconsistent with the alleged symptoms, a sparse work history, testimony that is vague or less than candid, and testimony about the nature, severity, and effect of the symptoms complained of from physicians and third parties. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Lingenfelter, 504 F.3d at 1040; Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
Effective March 16, 2016, the Commissioner superseded Social Security Rule ("SSR") 96-7p governing the assessment of a claimant's "credibility" and replaced it with a new rule, SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to "credibility," clarifies that "subjective symptom evaluation is not an examination of an individual's character," and requires the ALJ to consider of all of the evidence in an individual's record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The Commissioner recommends that the ALJ examine "the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Id. at *4. The Commissioner recommends assessing: (1) the claimant's statements made to the Commissioner, medical providers, and others regarding the claimant's location, frequency and duration of symptoms, the impact of the symptoms on daily living activities, factors that precipitate and aggravate symptoms, medications and treatments used, and other methods used to alleviate symptoms; (2) medical source opinions, statements, and medical reports regarding the claimant's history, treatment, responses to treatment, prior work record, efforts to work, daily activities, and other information concerning the intensity, persistence, and limiting effects of an individual's symptoms; and (3) non-medical source statements, considering how consistent those statements are with the claimant's statements about his or her symptoms and other evidence in the file. See id. at *6-7.
The ALJ's credibility decision may be upheld overall even if not all of the ALJ's reasons for rejecting the claimant's testimony are upheld. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). The ALJ may not, however, make a negative credibility finding "solely because" the claimant's symptom testimony "is not substantiated affirmatively by objective medical evidence." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).
Plaintiff testified that he had pain in his lower back and sometimes his mid-back. Tr. 49. He said that he experienced shooting pains down his left leg and his toes go numb. Tr. 49. Plaintiff testified that due to back pain, he was unable to sit for more than an hour at a time. Tr. 48. He said that he could probably stand for 10 to 15 minutes before needing to sit down, and noted that just a few days before, he needed to sit down twice while doing the dishes. Id. Plaintiff testified that he had difficulty lifting a 10-pound bag of potatoes. Id.
Plaintiff said that in a typical day, he would make breakfast for himself and his roommate, and then try to go for walk. Tr. 50. Plaintiff indicated, however, that he could not walk very far, recounting that he tried to walk to a nearby market two blocks away from his house, but had to stop twice to sit down. Id. Plaintiff said he spent most of his day watching movies, reading, and playing video games, and that he needed to lie down to relieve pressure from his back three times a day for about 45 minutes each time. Tr. 50.
Plaintiff testified that he worked for a friend as a scrapper two to five times a week, depending on the availability of work. Tr. 43, 46. The work involved tearing apart refrigerators, microwaves, and dishwashers and hauling scrap metals for recycling. Tr. 43, 46. Plaintiff stated that he stopped doing the work about two years ago because there was no work available. Tr. 46. He also indicated that he thought his back pain would prevent him from doing the work. Tr. 47.
Plaintiff testified that his medication, cyclobenzaprine, made him "loopy," and that he takes it once a day for back spasms. Tr. 51. Plaintiff testified that his doctor never mentioned surgery as a treatment option for his back pain. Tr. 48.
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that Plaintiff's "statements concerning the intensity, persistence and limiting effects of the symptoms were not entirely consistent" with the record. Tr. 22. In support of this finding, the ALJ noted that the treatment notes did not support Plaintiff's claims of disabling pain. Indeed, in October 2014, Plaintiff's spine was nontender on exam, but with "much muscle spasm." Tr. 326. He exhibited 5/5 strength and normal patellar reflexes. Id. In June 2016, a physical exam showed Plaintiff's joints had good range of motion and he denied any numbness tingling, or weakness, showed a 5/5 motor strength, and normal deep tendon reflexes throughout. Tr. 398-99. The ALJ could reasonably find that these normal to mild clinical findings were inconsistent with Plaintiff's claims of disabling pain. See SSR 16-3p at *5.
The ALJ also discredited Plaintiff's back pain allegations because, in April 2015, Plaintiff reported his pain was adequately controlled with his current medication regimen. Tr. 23, 382. Plaintiff argues this was error because Plaintiff's pain was not "completely controlled" and points to treatment records indicating Plaintiff reported varying pain at a 5/10 or 4/10.
Effective treatment with medication is a clear and convincing reason to discredit symptom allegations. Tommasetti, 533 F.3d at 1040. Where more than one interpretation of the record is possible, the court must uphold the ALJ's interpretation if it is reasonable. Batson, 359 F.3d at 1193. Here the ALJ could reasonably conclude, based upon on Plaintiff's statement to his physician, that Plaintiff's pain was controlled with his current medication regime. Additionally, the ALJ noted that Plaintiff declined alternative treatment, specifically epidural injections or surgery. Tr. 23, 402. Combined with Plaintiff's mild physical exams, the ALJ could reasonably find that Plaintiff's pain was controlled with medication and therefore not as disabling as alleged. Tommasetti, 533 F.3d at 1040.
The ALJ also discredited Plaintiff's impairment allegations because they conflicted with Plaintiff's activities of daily living ("ADLs"). Tr. 23-24. The ALJ noted that Plaintiff was able to prepare breakfast for himself and his roommate every morning, and go for a short walk. More significantly, Plaintiff continued to collect scrap metal. In April 2015, Plaintiff's physician noted that Plaintiff was "retired[,] although he works scrap iron when available." Tr. 381. Likewise, Plaintiff testified that he stopped metal scrapping due to lack of work, not due to his pain. Tr. 46. Minimal activities that do not reach the "threshold for transferable work skills" may not be used to discredit a plaintiff's symptom allegations. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Plaintiff's metal recycling activity, however, was not minimal. As Plaintiff testified, this work consisted of disassembling large appliances to remove the valuable metals, placing the metals in a truck, and hauling them to a recycler. Tr. 43, 46. The ALJ could reasonably conclude that Plaintiff's ability to perform these tasks conflicted with his claimed limitations. See Molina v. Astrue, 674 F.3d 1104, 113 (9th Cir, 2012) (Even where a claimants' ADLs suggested "some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of totally debilitating impairment.").
Citing findings from Plaintiff's November 2014 MRI, the ALJ also found that the "objective imaging" failed to support plaintiff's pain allegations. Plaintiff argues that the ALJ failed to explain how objective imaging could indicate functional limitations. Indeed, it appears that the ALJ conflated Dr. Cooke's testimony regarding whether or not the objective evidence shows Plaintiff meets a Listing, with the analysis of whether the objective evidence supports his subjective claims. Moreover, this portion of the ALJ's opinion appears to be internally inconsistent with her earlier finding at step one of the subjective symptom analysis: Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms. Tr. 22.
The ALJ also discredited Plaintiff's symptom allegations because Plaintiff "refused physical therapy, indicating that his impairments were not as disabling as he alleged." Tr. 24. The record indicates, however, that Plaintiff had no transportation and that was the reason he declined physical therapy treatment. Tr. 316-17, 402. While an unexplained failure to seek medical treatment may be a basis for discrediting a plaintiff's symptom allegations, "[d]isability benefits may not be denied because of the claimant's failure to obtain treatment he cannot obtain for lack of funds." Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). Other chart notes indicate that Plaintiff had been chronically homeless for a period of time, and was receiving housing assistance. Tr. 271, 325. Thus, the evidence indicates that Plaintiff's failure to seek physical therapy treatment stemmed from his financial situation.
Plaintiff argues the ALJ erred by discrediting Plaintiff's testimony because there was "no indication that surgery or any invasive procedures were recommended." Tr. 24. Although Plaintiff testified that his doctor never recommended surgery, treatment notes from October 2015 indicate that Plaintiff's physician "discussed the options of surgery vs epidural injections" with Plaintiff, but that Plaintiff did not want "shots or surgery" at that time. Tr. 402. The doctor recommended follow-up in one year. Id. Assuming without deciding that this "discussion" was a recommendation for surgical intervention, the ALJ made a factual error. However, Plaintiff rejected the idea and apparently did not even remember the conversation. This appears to be the only instance that any type of surgery was discussed, and the one-year follow-up indicates that the ALJ's general point — that Plaintiff's impairment was not so severe as to warrant invasive intervention — is, therefore, supported by the record.
Accordingly, to the extent the ALJ discredited Plaintiff's claims based on "objective imaging," "refusal" to attend physical therapy, or the lack of recommendation for additional interventions, this was error. These errors, however, were harmless because the ALJ properly discredited Plaintiff's symptom allegations based on mild clinical findings and ADLs inconsistent with Plaintiff's claims of disabling impairment, and effective pain control with medication; these were clear and convincing reasons supported by substantial evidence in the record. See Batson, 359 F.3d at 1197 (overall symptom determination may be upheld even if not all of the ALJ's reasons for rejecting a claimant's testimony are upheld).
Plaintiff argues the ALJ erred by finding that there was no evidence in the record to support Plaintiff's alleged standing and lifting limitations. In support of this argument, Plaintiff points to objective evidence of nerve root impingement that he argues supports his alleged limitations. After pointing to this evidence in the record, however, Plaintiff argues that the ALJ's finding that Plaintiff's impairment allegations were not supported by the record, triggered the ALJ's duty to develop the record and that the ALJ should have ordered a consultative exam.
The ALJ has an independent duty to fully and fairly develop the record, whether or not the claimant is represented by counsel. Smolen, F.3d at 1283. That duty is only triggered, however, where "there is ambiguous evidence or when the record is inadequate to allow for the proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001). In other words, the ALJ is not tasked with finding evidence to support a plaintiff's claims, only to supplement the record if the record is insufficient to make a disability determination. Id. Here, Plaintiff does not point to an ambiguity or inadequacy, but rather to a difference in interpretation of the record. Plaintiff argues the record supports his limitations, the ALJ found that it did not. Absent ambiguity or inadequacy, the ALJ had no duty to develop the record. Accordingly, the ALJ did not err by failing to order a consultative exam.
Plaintiff argues the ALJ erred by relying on Dr. Cooke's opinion to find that Plaintiff did not meet a Listing at step three. Specifically, Plaintiff argues that Dr. Cooke's opinion that Plaintiff's nerve root compression did not cause radicular pain had no basis in the record and, consequently, the ALJ erred by relying on this opinion to find Plaintiff did not meet a Listing. In support of this argument, Plaintiff points to other areas in the record where Plaintiff's pain was described as or diagnosed as radiculopathy.
The Listing "describes for each of the major body systems," impairments considered "severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience." 20 C.F.R. § 416.925. Each listing contains specific objective medical and other findings necessary to satisfy the criteria of that listing. 20 C.F.R. 416.925(c)(3).
Tacket v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (italics in original) (internal quotations and citations omitted). While the ALJ must consider medical opinion evidence regarding whether or not a claimant meets a Listing, the ultimate determination is reserved to the ALJ. 20 C.F.R. § 416.927(d)(2).
As an initial matter, it is important to note that Plaintiff presented his interpretation of the medical evidence to Dr. Cooke at the hearing and Dr. Cooke rejected it with explanation. Dr. Cooke testified that Plaintiff's November 2014 and April 2015 MRIs revealed Plaintiff had a disc protrusion but not a herniation, and that the record showed no "localized radiculopathy;" Dr. Cooke noted that the November MRI showed no foraminal or spinal stenosis, that the record indicated Plaintiff's pain was controlled with medication, and physical exams showed no weakness or loss of sensation. Tr. 53-54. Based on this evidence, Dr. Cooke opined that Plaintiff did not meet a Listing. Tr. 54.
Subsequently, Plaintiff's attorney asked Dr. Cooke whether Plaintiff's testimony regarding left leg pain and limited ability to walk very far, combined with the November 2014 MRI indicating "one of [Plaintiff's] discs abuts the left S1 nerve root" indicated radiculopathy. Tr. 56. Dr. Cooke explained that the Social Security Administration ("SSA"), neurosurgeons, and orthopedic surgeons define radicular pain based on objective changes, such as a showing of "a herniated disc with radiation of pain or loss of sensation in the appropriate anatomical division," and that the protrusion in Plaintiff's disc did not indicate a herniation. Tr. 54, 56-57. Dr. Cooke further explained an impingement on a foraminal level causes pain, but it is not radiculopathy as defined by the SSA. Tr. 57. Thus, Dr. Cooke explained that his opinion was based on the objective medical evidence in the record and the criteria set forth by the SSA. To the extent there were competing diagnoses of lumbar radiculopathy, the ALJ's decision to accept Dr. Cooke's well-defined use of the term as it pertained to disability determinations was supported by substantial evidence and the rules. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1; Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir, 2014) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)) (the ALJ is responsible for resolving conflicts in medical expert testimony).
Moreover, it is important to note that the ALJ cited reasons other than Dr. Cooke's opinion for finding Plaintiff's impairments did not meet or equal a Listing. For example, the ALJ observed that even though Plaintiff complained of difficulty walking, there were no indications he was unable to ambulate effectively as defined in the Listing
Plaintiff assigns error to the ALJ's consideration of Dr. Cooke's opinion in formulating the RFC.
The RFC is the most a person can do, despite his physical or mental impairments. 20 C.F.R. § 416.945. In formulating an RFC, the ALJ must consider all medically determinable impairments, including those that are not "severe," and evaluate "all of the relevant medical and other evidence," including the claimant's testimony. Id.; SSR 96-8p, 1996 WL 374184. In determining a claimant's RFC, the ALJ is responsible for resolving conflicts in the medical testimony and translating the claimant's impairments into concrete functional limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only limitations supported by substantial evidence must be incorporated into the RFC and, by extension, the dispositive hypothetical question posed to the VE. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). "The RFC must always consider and address medical source opinions." SSR 96-8p at *7.
Plaintiff's challenge to the RFC appears to be based upon his overall disagreement with Dr. Cooke's assessment of the MRI evidence. While Plaintiff offers another interpretation of the medical evidence, he fails to explain how his interpretation of the evidence supports greater limitations than the RFC. In contrast, the ALJ found that Dr. Cooke "evidenced a good understanding of the record and was able to adequately explain his reasoning." Tr. 24. Furthermore, the ALJ noted that Dr. Cooke's opinion was consistent with the opinion of the state agency consultant, the objective medical evidence, and to some extent, Plaintiff's testimony. Id. Accordingly, the to the extent the ALJ relied upon Dr. Cooke's opinion in formulating the RFC, there was no error.
The ALJ's decision is supported by substantial evidence and any error is harmless. For the reasons discussed above, the Commissioner's decision should be AFFIRMED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within fourteen (14) days from the date of service of a copy of this recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date. If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement. See Fed. R. Civ. P. 72, 6. Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
