IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________

CYNTHIA L.,

Plaintiff, v. Civil Action No. 3:20-CV-0617 (DEP)

KILOLO KIJAKAZI, Acting Commissioner of Social Security,1

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LACKMAN GORTON LAW FIRM PETER A. GORTON, ESQ. P.O. Box 89 1500 East Main St. Endicott, NY 13761-0089

FOR DEFENDANT

SOCIAL SECURITY ADMIN. HEATHER M. LaCOUNT, ESQ. 625 JFK Building 15 New Sudbury St Boston, MA 02203

1 Plaintiff's complaint named Andrew M. Saul, in his official capacity as the Commissioner of Social Security, as the defendant. On July 12, 2021, Kilolo Kijakazi took office as the Acting Social Security Commissioner. She has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See

(g). DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security (“Commissioner”), pursuant to

(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.2 Oral argument was heard in connection with those motions on September 22, 2021, during a telephone conference conducted on the

record. At the close of argument, I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner=s determination resulted from the application of proper legal

principles and is supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by the plaintiff in this appeal. After due deliberation, and based upon the court=s oral bench

2 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. decision, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is hereby ORDERED, as follows: 1) | Defendant’s motion for judgment on the pleadings is GRANTED. 2) |The Commissioner’s determination that the plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. 3) The clerk is respectfully directed to enter judgment, based

upon this determination, DISMISSING plaintiff's complaint in its entirety.

U.S. Magistrate Judge Dated: September 29, 2021 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------x CYNTHIA L.,

Plaintiff,

vs. 3:20-CV-617

KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant. -------------------------------------------------------x DECISION - September 22, 2021 the HONORABLE DAVID E. PEEBLES United States Magistrate-Judge, Presiding

APPEARANCES (by telephone) For Plaintiff: LACHMAN, GORTON LAW FIRM Attorneys at Law 1500 East Main Street Endicott, NY 13761 BY: PETER A. GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION 15 New Sudbury Street Boston, MA 02203 BY: HEATHER MARY LaCOUNT, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: Let me begin by thanking counsel for 2 excellent, as usual, presentations, and it was very 3 informative, both the briefs and the oral arguments. 4 Plaintiff has commenced this proceeding pursuant to 5

(g) and 1383(c)(3) to 6 challenge a determination by the Acting Commissioner of 7 Social Security concluding that plaintiff was not disabled at 8 the relevant times and, therefore, is ineligible for the 9 benefits that she sought. The background is as follows. 10 Plaintiff was born in February of 1974. She is 11 currently 47 years of age. Plaintiff was 42 years old at the 12 time of the alleged onset of disability on December 15, 2016. 13 Plaintiff stands approximately 5-foot 2-inches in height, and 14 has weighed at various times approximately 224 to 235 pounds. 15 Plaintiff has a GED. While in school she attended 16 regular classes. She also has an EMS certification, and took 17 some college classes aiming to be a medical assistant. That 18 appears at page 283 of the Administrative Transcript. 19 Plaintiff lives in Port Crane, New York. It's 20 unclear whether she still lives with her husband; there is an 21 indication they were separated in March of 2017. That 22 appears at 592 of the Administrative Transcript. She also 23 has a son age 20, and the son's girlfriend lives with her as 24 well as the son. The girlfriend is 19 years old. 25 Plaintiff is left-handed. Plaintiff drives but on 1 a limited basis; she does not drive at night and she always 2 has someone with her in the event that she experiences an 3 episode. 4 Plaintiff stopped working in January of 2017. She 5 worked as a volunteer bookkeeper in December of 2017 for a 6 family friend. She also worked in April and May of 2018 part 7 time driving a box truck and in an office setting. Plaintiff 8 in the past has also worked as a customer service 9 representative in the cable business, a home health aide, a 10 gas station and grocery store cashier and customer service, a 11 recycle center clerk, a bus driver, a school bus driver, a 12 nursing home aide, a phlebotomist, and a tax preparer. The 13 latter one was seasonal and some of those positions were part 14 time, others full time. 15 Physically, plaintiff suffers from fibromyalgia, at 16 least it has been diagnosed as such, although the 17 Administrative Law Judge noted that the diagnosis was not 18 supported by the requisite findings under the Commissioner's 19 regulations and ruling concerning fibromyalgia. She suffers 20 from back and hip pain, vestibular disorder with migraine 21 headaches, which were described as cluster headaches, which 22 she experiences two to seven times a week. She also suffers 23 from Mal de Debarquement Syndrome, which I understand from 24 one source is a rare and poorly understood disorder of the 25 vestibular system that results in phantom perception of 1 self-motion typically described as rocking, bobbing or 2 swaying. That source indicates that the symptoms tend to be 3 exacerbated when a patient is not moving, for example, when 4 sleeping or standing still. The primary symptom of I'm going 5 to call it MDD is the persistence of a sense of motion and 6 rocking. It is noted that some MDD patients may experience 7 fatigue, mood changes and confusion. It is also noted that 8 imbalance is a common complaint. The plaintiff also suffers 9 from mild carpal tunnel syndrome, obesity, high blood 10 pressure, and hyperlipidemia. 11 Mentally, plaintiff experiences anxiety and 12 depression. She has undergone regular counseling for her 13 condition and is prescribed medication. She does not see a 14 psychiatrist, however. She was hospitalized, according to 15 her, for three days for depression in 2013. There are no 16 records of that hospitalization contained in the 17 Administrative Transcript. 18 Plaintiff has seen Dr. Amhed Alwan, a neurologist, 19 since October of 2016; and Dr. Joy Burke, a neurologist, 20 since December of 2018. Her primary care provider is 21 Physician Assistant Thomas Jones, who she has seen at least 22 since January 2016. 23 Plaintiff has been prescribed various medications 24 including Inderal; Lexapro for her depression; Meclizine; 25 Zebeta; Amitriptyline; Cymbalta; Topamax; Zoloft; Valium; 1 Motrin 800 milligrams. She has also tried Imitrex and 2 Fioricet. 3 In terms of activities of daily living, plaintiff 4 can cook, do dishes, clean, shop, does some driving as 5 indicated previously. She can shower with help getting in 6 and out of the tub. She dresses. Her son does the laundry 7 for her. She likes to crochet. She goes to bingo. She 8 engages in child care. She has a one-year-old foster child. 9 It's unclear whether that still exists and for how long it 10 did. She reads, watches television, goes out to dinner, 11 cares for her pets. She can swim. She attended a 12 recreational vehicle show. Plaintiff is a former smoker, but 13 according to the record, quit several years ago. 14 Procedurally, plaintiff applied for Title II and 15 Title XVI benefits under the Act on January 11, 2017. The 16 Commissioner notes that this was the seventh such 17 application, and that appears to be true from 254 to 255 of 18 the Administrative Transcript. 19 Plaintiff alleged an onset date of December 15, 20 2016, and at 283 claims disability based on vertigo, 21 fibromyalgia, anxiety, depression and palpitations. A 22 hearing was conducted by Administrative Law Judge Paul D. 23 Barker, Jr. on February 22, 2019, to address plaintiff's 24 application for benefits. On April 8, 2019, the 25 Administrative Law Judge issued an unfavorable decision, 1 which became a final determination of the Agency on April 7, 2 2020, when the Social Security Administration Appeals Council 3 denied plaintiff's request for review. In doing so, it 4 rejected a medical source statement from Dr. Joy Burke dated 5 June 13, 2019, stating that it did not relate to the period 6 at issue. That appears at page 2 of the Administrative 7 Transcript. This action was commenced on June 3, 2020 and is 8 timely. In his decision, ALJ Barker applied the familiar 9 five-step sequential test for determining disability. 10 He first noted that plaintiff was last insured on 11 December 31, 2020. He then concluded that while plaintiff 12 had engaged in additional work since that date, she had not 13 engaged in anything that would be considered substantial 14 gainful activity, or SGA, since December 15, 2016. 15 At step two, the ALJ concluded that plaintiff 16 suffers from severe impairments that impose more than minimal 17 limitations on her ability to perform work-related functions, 18 including vestibular disorder with migraine headaches, MDD 19 Syndrome, anxiety disorder, and depression. And when I say 20 MDD, it's not major depressive disorder, in this case it's 21 Mal de Debarquement Syndrome. 22 In doing so, the Administrative Law Judge rejected 23 other conditions as nothing severe enough to meet the 24 regulations, including obesity; carpal tunnel syndrome; right 25 cubital tunnel syndrome; high blood pressure; hyperlipidemia; 1 and fibromyalgia, which was rejected, as I indicated 2 previously, under SSR 12-2p. He did note, however, that he 3 has considered the reported symptoms underlying the 4 fibromyalgia diagnosis. 5 At step three, Administrative Law Judge Barker 6 concluded that plaintiff's condition does not meet or 7 medically equal any of the listed presumptively disabling 8 conditions, specifically considering listings 2.07 related to 9 vestibular impairments, 11.00 and 11.02 related to migraines, 10 and 12.04 and 12.06 related to plaintiff's mental conditions. 11 The Administrative Law Judge next concluded that 12 plaintiff retains the residual functional capacity, or RFC, 13 notwithstanding her impairments to perform sedentary work 14 with additional limitations both addressing her physical 15 impairments and also her mental impairments. 16 With regard to the latter, the RFC provides that 17 plaintiff can understand, remember, and carry out simple 18 tasks but not at an assembly line rate. She must not operate 19 motor vehicles and must never be exposed to unprotected 20 heights or moving unprotected machinery. 21 Applying that residual functional capacity at step 22 four, Administrative Law Judge Barker concluded that 23 plaintiff is incapable of performing her past relevant work. 24 Based on the testimony of a vocational expert, he detailed 25 all of the positions that plaintiff previously held. 1 At step five, the Administrative Law Judge first 2 concluded that if plaintiff was capable of performing a full 3 range of sedentary work, a finding of no disability would be 4 directed by the Medical-Vocational Guidelines, or the Grids, 5 and specifically Grid Rules 201.28 and 201.21. Based on the 6 testimony of the vocational expert who was presented with the 7 hypothetical that parallelled the residual functional 8 capacity finding, the vocational expert opined and the ALJ 9 found that plaintiff could perform available work in the 10 national economy, citing representative jobs, including a 11 document addresser, a call-out operator, and a surveillance 12 system monitor. 13 The Court's function in this case, as you know, is 14 extremely limited and the standard which I apply is very 15 deferential. In Brault versus Social Security Commissioner, 16

(2012), the Second Circuit noted that it is 17 extremely deferential, more so than the clearly erroneous 18 standard that we as lawyers understand. In Brault the 19 Circuit made the observation that under this standard when a 20 fact is found by the Agency, it can be rejected only if a 21 reasonable factfinder would have to conclude otherwise. 22 And, of course, the standard which I apply is that, 23 A, correct legal principles must be applied, and B, the 24 resulting determination must be supported by substantial 25 evidence, defined as such relevant evidence as a reasonable 1 mind would find sufficient to support a conclusion. 2 In this case, plaintiff raises several contentions. 3 First, she challenges the refusal of the Appeals Council to 4 consider Dr. Burke's medical source statement. Secondly, she 5 claims that the residual functional capacity finding does not 6 account for her limitations in work pace and attendance, and 7 that in finding to the contrary of the medical opinions, the 8 Administrative Law Judge substituted his lay opinion for 9 uncontested medical opinions and improperly interpreted their 10 medical evidence. The third point is that there was improper 11 weight given to various medical opinions in the record, 12 including from Dr. Burke, Dr. Alwan, Physician Assistant 13 Jones, Dr. Jenouri, Dr. Slowik and Dr. Harding. Fourth, the 14 plaintiff cites improper reliance on activities of daily 15 living and work attempts. And fifth, argues that the RFC 16 does not accommodate plaintiff's propensity to dizziness. 17 First addressing the Appeals Council's decision 18 with regard to the medical source statement from Dr. Joy 19 Burke, that statement was given on June 13, 2019, shortly 20 after the Administrative Law Judge's decision in this case. 21 It is new evidence. Under the regulations, and specifically 22 20 CFR Section 404.970(a)(5), to be considered evidence must 23 be material and new, must relate to the period on or before 24 the date of the Administrative Law Judge's decision, and 25 plaintiff must show a reasonable probability that the new 1 evidence would change the outcome. And when I give citations 2 to the part 404, I will just note that there are parallel 3 provisions in the section governing the Title XVI claim, but 4 I won't give you both cites. 5 The Appeals Council opinion is at page 2 of the 6 Administrative Transcript. And essentially -- not 7 essentially, verbatim, states as follows: "You submitted 8 medical evidence from Dr. Joy Burke dated June 13, 2019 (3 9 pages). The Administrative Law Judge decided your case 10 through April 8, 2018. This additional evidence does not 11 relate to the period at issue. Therefore, it does not affect 12 the decision about whether you were disabled beginning on or 13 before April 8, 2019." Clearly, as I think the Commissioner 14 might concede, that is factually incorrect. It's not 15 specifically stated in Dr. Burke's opinion what period it 16 relates to, but it by definition must relate to the period 17 prior to the ALJ's decision. 18 The larger question then is whether that error is 19 harmless or harmful. In addressing that I focus on prong 20 three of the relevant test, whether there is a reasonable 21 probability that new evidence would change the outcome, and I 22 believe the answer is no. Clearly Dr. Burke is a treating 23 source but her opinion is a check-box form, which the 24 Commissioner has argued is traditionally viewed as very weak 25 evidence. There is really no discussion to support the 1 conclusions reached by Dr. Burke, and her conclusions are 2 consistent with those offered by Physician's Assistant Thomas 3 Jones, which were rejected by the ALJ. The ALJ did consider 4 Dr. Burke's records and relied on Dr. Jenouri and 5 Dr. Harding. I find, therefore, that while there was error, 6 it is not harmful error. 7 The second argument raised in connection with the 8 Social Security Appeals Council by the plaintiff is whether 9 there was an obligation for the Appeals Council to apply the 10 treating source rule and explain why Dr. Burke's opinion is 11 not being given controlling weight or explained what weight 12 was given, if any. I had the same argument before me in 13 Jessica W. versus Saul,

, from March of this 14 year, 2021. In that case I acknowledged the many cases that 15 require the Appeals Council even when it denies review to 16 apply the treating source rule and explain why I believe 17 those were misguided. There was no appeal in the Jessica W. 18 case. It is unfortunate, but given the circumstances, the 19 Commissioner limited appeals and plaintiff didn't appeal my 20 ruling, probably for good reasons. 21 So I'm not sure we'll get any guidance from the 22 Circuit on that question any time soon, but in any event, I'm 23 going to follow Jessica W. and say, and for the reasons 24 stated therein, the Appeals Council review does not have 25 obligation to apply the treating source rule to 1 after-acquired or after-submitted medical evidence from the 2 treating source. 3 Turning to the weight of the medical evidence and 4 focus, of course, on work pace and attendance. This relates, 5 of course, to the residual functional capacity finding, or 6 RFC, represents a finding for the range of tasks a plaintiff 7 is capable of performing notwithstanding her impairments. 8 Ordinarily an RFC represents the claimant's maximum ability 9 to perform sustained work activities in an ordinary setting 10 on a regular and continuing basis, meaning eight hours a day 11 for five days a week, or an equivalent schedule. Of course, 12 an RFC determination is informed by consideration of all of 13 the relevant medical and other evidence and must be supported 14 by substantial evidence. 15 In this case there are two opinions given by 16 Dr. Burke, who I believe is properly regarded as a treating 17 source. On December 18, 2015, Dr. Burke stated, "I think 18 she," meaning the plaintiff, "is able to return to work, 19 sedentary job would be best, and perhaps with flexible hours 20 or working from home ideally." That appears at 604 and I 21 think it also appears at 822 of the Administrative 22 Transcript. 23 That opinion partially supports the residual 24 functional capacity finding. It certainly doesn't state that 25 it is medically necessary that the plaintiff would have 1 flexible hours and/or work from home. The more difficult 2 question concerns, and the Administrative Law Judge discussed 3 this on page 22 and 23, and found that it generally supports 4 the conclusion that the plaintiff could sustain full-time 5 employment at the sedentary exertional level. 6 The second opinion given by Dr. Burke, as I 7 previously indicated, came on June 13, 2019. It appears at 8 pages 36 and 37 of the Administrative Transcript. It is a 9 check-box form. It contends the plaintiff would be off task 10 more than 33 percent of the day and absent more than four 11 days a month. 12 Dr. Burke, of course, is a treating source. This 13 case is governed by the former regulations. Under those 14 regulations the treating physician's opinion regarding the 15 nature and severity of an impairment is entitled to 16 considerable deference provided it is supported by medically 17 acceptable clinical and laboratory diagnostic techniques and 18 is not inconsistent with other substantial evidence. The 19 treating source opinion is not controlling, however, if it is 20 contrary to other substantial evidence in the record, 21 including the opinions of other medical experts. 22 And, of course, where there are conflicts in the 23 form of contradictory medical evidence, the resolution is 24 properly entrusted to the Commissioner. Veino verses 25 Barnhart,

(2d Cir. 2002). Dr. Burke's 1 opinion, of course, as I indicated, it came after the 2 Administrative Law Judge's decision. It was not addressed, 3 therefore, in the ALJ's decision. And I've already concluded 4 that it is weak evidence and would likely not change the 5 outcome in this case. 6 The second medical opinion of record comes from 7 Dr. Alwan, and that is from January 2, 2019, at pages 334 and 8 335 of the Administrative Transcript. Again, a check-box 9 form, finding that plaintiff would be off task more than 10 10 but less than 15 percent, and absent two days per month. 11 That was discussed at page 23 of the Administrative Law 12 Judge's decision. The opinion was given limited weight. The 13 reasons cited were, one, the neurology records do not 14 indicate she had any significant attention or concentration 15 issues; two, she reported notable improvement in dizziness 16 and migraine symptoms at her neurology visits with some 17 medication adjustments and vestibular therapy; and third, 18 although she reported she could not sustain part-time work, 19 she also reported caring for a one-month-old baby. Being a 20 check-box form, this is entitled to very little weight. 21 The Administrative Law Judge did recognize 22 Dr. Alwan as a neurologist and explained the weight being 23 given. I believe the explanation is proper and no reasonable 24 factfinder -- I cannot say a reasonable factfinder would have 25 to credit Dr. Alwan's opinions. 1 The third opinion is given by the Physician 2 Assistant Thomas Jones from March 22, 2019. It appears at 3 883 and 844 of the record, check-box form. Plaintiff would 4 be, according to Physician Assistant Jones, off task more 5 than 33 percent of the day and absent more than four days per 6 month. Again, check-box form, weak. It is discussed at 7 page 23 of the Administrative Law Judge's decision. First of 8 all, as a Physician's Assistant, Mr. Jones' opinions are not 9 entitled to controlling weight as he is not an acceptable -- 10 under the former regulations not an acceptable medical 11 source. The reasons cited are explained in the second full 12 paragraph at page 23, and I'm unable to conclude that a 13 reasonable factfinder would have to credit PA Jones' 14 opinions. 15 Next opinion in the record is from Examining 16 Physician Dr. Gilbert Jenouri from March 16, 2017. It 17 appears at 583 through 586 of the Administrative Transcript. 18 In his opinion Dr. Jenouri concluded that plaintiff has mild 19 to moderate restriction with walking, standing long periods, 20 bending and stair climbing. Also the claimant is restricted 21 from driving and operating heavy machinery. This is 22 consistent with the RFC finding. Dr. Jenouri's opinion is 23 discussed at page 22 of the Administrative Transcript and 24 given significant weight. Dr. Jenouri did not opine one way 25 or the other on the question of off task or absence. 1 The next opinion of record is Dr. Amanda Slowik, an 2 examining psychologist. It's from March, 16, 2017. It 3 appears at 589 to 593 of the Administrative Transcript. In 4 the medical source statement, significantly Dr. Slowik 5 concludes that the claimant's ability to sustain an ordinary 6 routine is moderately to markedly limited. That's at 7 page 592. Dr. Slowik's opinion is discussed at page 23 of 8 the Administrative Law Judge's decision. The opinion is 9 given partial weight based on the fact that according to the 10 ALJ, the examination and other evidence do not support more 11 than moderate limitations in any area of medical functioning. 12 He cites claimant's ability to attend medical appointments 13 and therapy, perform household chores, drive at times, care 14 for children, perform some work activity, and foster a 15 one-month-old baby. Again, I think this is an appropriate 16 explanation and I am not able to say that a reasonable 17 factfinder would have to conclude otherwise. 18 The last opinion comes from Dr. T. Harding, a state 19 agency consultant who did not examine the plaintiff but did 20 review records that were available at the time. It was given 21 on March 28, 2017 by Dr. T. Harding, and it appears at 2A and 22 4A of the Administrative Transcript. The mental health 23 residual functional capacity concludes by stating, "Based on 24 the objective evidence, the claimant retains the ability to 25 perform the four basic demands of unskilled work on a 1 sustained basis and disability is therefore denied." That's 2 at page 115. 3 In the worksheet, which of course under the POMS is 4 not necessarily controlling, Dr. Harding concluded that 5 plaintiff is moderately limited in the ability to perform 6 activities within a schedule, maintain regular attendance, 7 and be punctual within customary tolerances. That's at 8 page 114. I believe the discussion of Dr. Harding's opinion, 9 which appears at page 24, where he gives the opinion 10 significant weight, is proper. I would have liked to have 11 seen a little more fulsome discussion but, nonetheless, I 12 believe that it generally supports and provides substantial 13 evidence necessary to support the residual functional 14 capacity finding. 15 As I reiterate, it is for the Administrative Law 16 Judge to weigh conflicting opinions under Veino. And I also 17 note, as the Commissioner correctly argues, the RFC doesn't 18 exactly coincide with any one medical opinion, but that is 19 not a basis to conclude that is erroneous, under Matta versus 20 Astrue,

(2d Cir. 2013.) 21 I don't believe that the conclusion that plaintiff 22 cannot sustain work being on task and not absent more than 23 one time per week is uncontradicted. If it is 24 uncontradicted, I appreciate the Commissioner's invitation 25 for me to explain for the Second Circuit why they're wrong; 1 however, since the Second Circuit appears to continue to 2 apply the overwhelmingly compelling standard, I am going to 3 defer and decline, respectfully, the invitation by the 4 Commissioner to educate the Circuit. 5 But I find that even if, even if the opinions 6 regarding absenteeism and off task, off-task-ness, if that's 7 a word, are uncontradicted, I find that the explanation given 8 is overwhelmingly compelling for discounting those opinions. 9 So, in conclusion, I find that correct legal 10 principles were applied, substantial evidence supports the 11 Administrative Law Judge's decision. I will grant judgment 12 on the pleadings to the defendant and will order dismissal of 13 plaintiff's complaint. 14 Thank you both. Have a good afternoon. 15 * * * 16 17 18 19 20 21 22 23 24 25 Decision - 20-cv-617 - 9/22/2021 19

1 2 CERTIFICATION 3 4 I, EILEEN MCDONOUGH, RPR, CRR, Federal Official 5 Realtime Court Reporter, in and for the United States 6 District Court for the Northern District of New York, 7 do hereby certify that pursuant to Section 753, Title 28, 8 United States Code, that the foregoing is a true and correct 9 transcript of the stenographically reported proceedings held 10 in the above-entitled matter and that the transcript page 11 format is in conformance with the regulations of the 12 Judicial Conference of the United States. 13 14 15 16 Leen McDonough 17 EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter 18 19 20 21 22 23 24 25