Anderson v. Astrue (CONSENT)
MEMORANDUM OPINION AND ORDER affirming the Commissioner's decision. Signed by Honorable Wallace Capel, Jr on 11/22/2010. (br, )
Anderson v. Astrue (CONSENT)
IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION J A C K IE E. ANDERSON, P la in tiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) )
CIVIL ACTION NO. 3:09cv1119-WC
M E M O R A N D U M OPINION AND ORDER I. INTRODUCTION P la in tiff Jackie E. Anderson applied for disability insurance benefits under Title II of th e Social Security Act ("the Act"), 42 U.S.C. §§ 401 et seq., and supplemental security in c o m e under Title XVI of the Act, 42 U.S.C. § 1381 et seq. Her applications were denied a t the initial administrative level. Plaintiff then requested and received a hearing before an A d m in is tra tiv e Law Judge (ALJ). Following the hearing, the ALJ issued a decision in which h e found Plaintiff not disabled from the alleged onset date of December 14, 2006, through th e date of the decision. Tr. 21. The Appeals Council rejected Plaintiff's request for review o f the ALJ's decision. The ALJ's decision consequently became the final decision of the C o m m is s io n e r of Social Security (Commissioner).1 See Chester v. Bowen, 792 F.2d 129, 131 (1 1 th Cir. 1986). The case is now before the Court for review under 42 U.S.C. § 405(g). Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were transferred to the Commissioner of Social Security.
Pursuant to 28 U.S.C. § 636(c), both parties have consented to the conduct of all proceedings a n d entry of a final judgment by the undersigned United States Magistrate Judge. Pl.'s C o n s e n t to Jurisdiction (Doc. #7); Def.'s Consent to Jurisdiction (Doc. #8). Based on the C o u rt's review of the record and the briefs of the parties, the Court AFFIRMS the decision o f the Commissioner. II. STANDARD OF REVIEW U n d e r 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the p e rs o n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e te rm in a b le physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period o f not less than 12 months. 4 2 U.S.C. § 423(d)(1)(A).2 T o make this determination, the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920 (2006). (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? (3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? [the Listing of Im p a irm e n ts] (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy? A n affirmative answer to any of the above questions leads either to the next
A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 2
question, or, on steps three and five, to a finding of disability. A negative a n s w e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3 T h e burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart, 357 F .3 d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of qualifying d is a b ility once they have carried the burden of proof from Step 1 through Step 4. At Step 5 , the burden shifts to the Commissioner, who must then show there are a significant number o f jobs in the national economy the claimant can perform. Id. To perform the fourth and fifth steps, the ALJ must determine the claimant's Residual F u n c tio n a l Capacity (RFC). Id. at 1238-39. RFC is what the claimant is still able to do d e s p ite his impairments and is based on all relevant medical and other evidence. Id. It also c a n contain both exertional and nonexertional limitations. Id. at 1242-43. At the fifth step, th e ALJ considers the claimant's RFC, age, education, and work experience to determine if th e re are jobs available in the national economy the claimant can perform. Id. at 1239. To d o this, the ALJ can either use the Medical Vocational Guidelines4 (grids) or call a vocational e x p e rt (VE). Id. at 1239-40. T h e grids allow the ALJ to consider factors such as age, confinement to sedentary or
McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in Title XVI cases. See, e.g., Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981).
See 20 C.F.R. pt. 404 subpt. P, app. 2. 3
light work, inability to speak English, educational deficiencies, and lack of job experience. Each factor can independently limit the number of jobs realistically available to an in d iv id u a l. Phillips, 357 F.3d at 1240. Combinations of these factors yield a statutorilyre q u ire d finding of "Disabled" or "Not Disabled." Id. The Court's review of the Commissioner's decision is a limited one. This Court must fin d the Commissioner's decision conclusive if it is supported by substantial evidence. 42 U .S .C . § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s , 402 U.S. 389, 401 (1971). See also Crawford v. Comm'r of Soc. Sec., 363 F.3d 1 1 5 5 , 1158 (11th Cir. 2004) ("Even if the evidence preponderates against the C o m m is s io n e r's findings, [a reviewing court] must affirm if the decision reached is s u p p o rte d by substantial evidence."). A reviewing court may not look only to those parts of th e record which support the decision of the ALJ, but instead must view the record in its e n tire ty and take account of evidence which detracts from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986). [The court must] . . . scrutinize the record in its entirety to determine the re a s o n a b le n e s s of the [Commissioner's] . . . factual findings. . . . No similar p re s u m p tio n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). 4
ADMINISTRATIVE PROCEEDINGS P la in tiff was forty-three years old at the time of the hearing before the ALJ. Tr. 25-
2 6 . Plaintiff completed the tenth grade. Tr. 26. Plaintiff's past relevant work experience w a s as a nurse's aide and "kitchen helper." Tr. 19, 28, 38. Following the administrative h e a rin g , and employing the five-step process, the ALJ found Plaintiff had not engaged in s u b s ta n tia l gainful activity since the alleged onset date of December 14, 2006 (Step 1). Tr. 1 3 . At Step 2, the ALJ found that Plaintiff suffers from the following severe impairments: " m o rb id obesity; status post fracture left ankle and stress fracture left talus; small umbilical h e rn ia ; arthritis; and anemia." Tr. 13. The ALJ then found that "[t]he claimant does not have a n impairment or combination of impairments that meets or medically equals one of the listed im p a irm e n ts . . . ." (Step 3) Tr. 14. Next, the ALJ articulated Plaintiff's RFC as follows: the claimant has the residual functional capacity to perform light work as d e f in e d in 20 CFR 404.1567(b) except the claimant can sit up to one hour w ith o u t interruption and up to six hours total within an eight hour workday. The claimant can stand and/or walk up to 30 minutes uninterrupted, and up to a total of six hours during an eight hour workday. The claimant can lift, carry, p u s h and/or pull up to 10 lbs frequently, and up to 20 lbs occasionally. The c la im a n t can frequently use her hands for simple grasping and/or fine m a n ip u la tio n s . The claimant can frequently use her right foot for repetitive m o v e m e n ts such as operating foot controls or pushing and pulling. The c la im a n t can occasionally use her left foot for repetitive movements such as o p e ra tin g foot controls or pushing and pulling. The claimant can occasionally b e n d , stoop, crawl, crouch, and balance. The claimant cannot kneel. The c la im a n t can climb stairs. The claimant cannot climb ladders, ropes, or s c a ffo ld s . The claimant cannot work at unprotected heights. The claimant c a n n o t work with or near hazardous machinery. The claimant cannot operate a commercial vehicle. The claimant cannot work in environments involving c o n c e n tra te d or excessive exposure to pulmonary irritants such as dust, odors, fu m e s , extremes in temperature, or humidity. The claimant experiences 5
occasional mild to moderate pain which occasionally interferes with c o n c e n tra tio n , persistence, and pace. T r. 14. The ALJ then found that Plaintiff is unable to perform her past relevant work. (Step 4 ) Tr. 19-20. Next, the ALJ found that, given Plaintiff's age, education, work experience, a n d RFC, and after having consulted with a vocational expert, "there are jobs that exist in s ig n ific a n t numbers in the national economy that Plaintiff can perform." (Step 5) Tr. 20. The ALJ found that such representative occupations include: "assembler electronics," " c o n v e n ie n c e store clerk," and "sales clerk." Tr. 20, 40. Accordingly, the ALJ determined th a t Plaintiff "has not been under a disability . . . from December 14, 2006, through the date o f this decision." Tr. 21. IV . P L A I N T I F F 'S CLAIMS P la in tiff presents three issues for this Court's consideration in review of the ALJ's d e c is io n : (1) whether the "ALJ erred in failing to properly consider the Claimant's obesity a s required by Social Security Ruling 02-01p[;]" (2) whether the "ALJ erred in finding that th e Claimant does not have an impairment or combination of impairments that meets or e q u a ls one of the listed impairments[;]" and (3) whether the "ALJ erred in finding that the C la im a n t has the residual functional capacity to perform light work . . . ." Pl.'s Brief (Doc. # 1 1 ) at 7. V. DISCUSSION A. T h e ALJ's consideration of Plaintiff's obesity.
Plaintiff claims that the ALJ erred in "failing to properly consider the claimant's o b e s ity as required by" SSR 02-1p. Pl.'s Brief (Doc. #11) at 8. After generally discussing s o m e aspects of SSR 02-1p and the significance of Body Mass Index ("BMI"), Plaintiff c o n c lu d e s that "the ALJ has failed to properly consider and evaluate the affects [sic] of the C la im a n t's obesity as well as the impact it may have on her remaining severe impairments. The ALJ has also failed to properly consider and evaluate the affects [sic] of the Claimant's o b e s ity on her residual functional capacity." Id. at 9. Plaintiff does not point to any specific d e fic ie n c y in the ALJ's consideration of these issues or cite to medical evidence which c o n tra d ic ts the ALJ's decision. Nor does Plaintiff cite to any case law which demonstrates th a t the ALJ's consideration was inadequate. Defendant asserts that the ALJ adequately c o n s id e re d Plaintiff's obesity, and that his findings with respect to her obesity are supported b y substantial evidence. Def.'s Brief (Doc. #12) at 5. The ALJ determined that Plaintiff suffers from "morbid obesity," and that such im p a irm e n t is severe. Tr. 13. The ALJ also noted that Plaintiff is "5'6" and 374 lbs, m o rb id ly obese." Tr. 15. At the hearing, the ALJ heard testimony about Plaintiff's BMI. Tr. 36-37. Finally, in his opinion, the ALJ, citing to the applicable SSR, explained that he " d id consider the affects [sic] of the claimant's obesity as well as the impact it may have on h e r remaining severe impairments. [The ALJ's] assessment of her residual functional c a p a c ity reflects [his] consideration of her obesity and its impacts (SSR 020-1p) thereto." Tr. 19. Indeed, as recounted above, the ALJ found Plaintiff's RFC very limited, including
that she is limited to light work, with additional limitations including that she may only sit fo r up to one hour at a time, may only walk for up to thirty minutes at a time, the she may o n ly occasionally "bend, stoop, crawl, crouch, and balance," and that she cannot kneel. Tr. 1 4 . Thus, it is evident that the ALJ was both aware of and did consider Plaintiff's obesity in rendering his decision. A g a in s t this backdrop, Plaintiff's conclusory claim that the ALJ failed to properly c o n s id e r her obesity fails. See Castel v. Comm'r of Soc. Sec., 355 F. App'x 260, 263-64 (1 1 th Cir. 2009) (rejecting claim that ALJ violated SSR 02-1p where the "record reflects that th e ALJ considered [the claimant's] obesity[,] . . . the ALJ made specific reference to SSR 0 2 -1 p in his ruling[,] . . . the ALJ determined that [the claimant's] obesity was a severe im p a irm e n t[,]" but that medical evidence did not support "specific functional limitations" a ttrib u ta b le to obesity). As discussed in Castel, SSR 02-1p states, in relevant part, as f o llo w s : " A n assessment should also be made of the effect obesity has upon the in d iv id u a l's ability to perform routine movement and necessary physical a c tiv ity within the work environment . . . As explained in SSR 96-8p . . . our R F C assessments must consider an individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and c o n tin u in g basis . . . . .... T h e combined effects of obesity with other impairments may be greater th a n might be expected without obesity . . . . .... . . . When we identify obesity as a medically determinable impairment . . ., we will consider any functional limitations resulting from the obesity in th e RFC assessment, in addition to any limitations resulting from any other 8
physical or mental impairments we identify." Id . at 264 n.6 (quoting 67 Fed. Reg. 57859, 57862-63 (Sep. 12, 2002)). Here, as in Castel, th e record reflects that the ALJ considered Plaintiff's obesity, made reference to SSR 02-1p, a n d determined that Plaintiff's obesity is a severe impairment. Additionally, the ALJ a rtic u la te d significant functional limitations in Plaintiff's RFC. To the extent Plaintiff
a p p e a rs to assert that her sleep apnea, in combination with her obesity, was not adequately c o n s id e re d , see Pl.'s Brief (Doc. #11) at 9, it is apparent that the ALJ considered evidence o f Plaintiff's sleep apnea, but that he did not find the impairment severe given that Plaintiff fa ile d to present any evidence that she underwent a recommended "sleep test" or otherwise p re s e n te d evidence of any limitations due to sleep apnea. Tr. 13. T h e record reflects that the ALJ adequately considered Plaintiff's obesity when d e te rm in in g Plaintiff's RFC. Furthermore, substantial evidence, including the testimony of th e medical expert, Tr. 34-35, and the Physical RFC Assessment, Tr. 163-170, support the A L J 's findings with respect to Plaintiff's functional limitations due to her obesity. Because P la in tiff has failed to demonstrate any particular flaw in the ALJ's treatment or consideration o f her obesity, her claim that the ALJ failed to properly consider her obesity or otherwise c o m p ly with SSR 02-1p is without merit and due to be denied. B. T h e ALJ's finding that Plaintiff does not have an impairment of listing le v e l severity.
Plaintiff claims that the ALJ erred in finding that her musculoskeletal impairment
related to her ankle is not of listing level severity. Specifically, she claims "[w]hen the C laim an t's morbid obesity is combined with the Claimant's musculoskeletal impairment, she m e e ts the criteria of Listing 1.02A." Pl.'s Brief (Doc. #11) at 10. While Plaintiff cites to a p o rtio n of the relevant listing which generally discusses the effects of obesity on m u s c u lo s k e le ta l impairments, she does not cite to any medical evidence in the record which c o n tra d ic ts the ALJ's findings. Defendant asserts that the ALJ properly determined that P la in tiff does not suffer from a listing level impairment, and that such decision is supported b y substantial evidence. Def.'s Brief (Doc. #12) at 6-7. P la in tiff appears to assert that the ALJ failed to comply with the portion of Listing 1 .0 0 which recognizes the effects that obesity may have on musculoskeletal impairments and h o w adjudicators will "consider any additional and cumulative effects of obesity" on such im p a irm e n ts. See Listing 1.00(Q). As discussed above, the ALJ determined that Plaintiff's im p a irm e n t of "status post fracture left ankle and stress fracture left talus" is severe. Tr. 13. The ALJ also "consider[ed] the affects [sic] of the claimant's obesity as well as the impact it may have on her remaining severe impairments." Tr. 19. Plaintiff cites to no evidence that th e ALJ did not actually consider the effect of Plaintiff's obesity on her musculoskeletal im p a irm e n t. Thus, it is apparent that the ALJ complied with Listing 1.00(Q). P la in tiff also claims that, when combined with her obesity, her musculoskeletal im p a irm e n t "meets the criteria of Listing 1.02A." Pl.'s Brief (Doc. #11) at 10. Plaintiff cites
to no evidence in the record in support of this conclusion.5 Nor does Plaintiff demonstrate th a t the evidence considered by the ALJ, including the testimony of the medical expert (see T r. 34-35), does not support the conclusion reached by the ALJ. Listing 1.02 covers "Major d y s fu n c tio n of a joint(s)" and requires, inter alia, that the joint be "[c]haracterized by gross a n a to m ic a l deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability)," w h ic h involves of "one major peripheral weight-bearing joint . . ., resulting in inability to a m b u la te effectively."6 Plaintiff cites to no evidence in the record that her ankle is
Indeed, Plaintiff does not even discuss the requirements of Listing 1.02A. Listing 1.00 provides what is meant by "ambulate effectively" as follows:
b. What we mean by inability to ambulate effectively. 2. (1) Definition. Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning (see 1.00J) to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. (Listing 1.05C is an exception to this general definition because the individual has the use of only one upper extremity due to amputation of a hand.) (2) To ambulate effectively, individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school. Therefore, examples of ineffective ambulation include, but are not limited to, the inability to walk without the use of a walker, two crutches or two canes, the inability to walk a block at a reasonable pace on rough or uneven surfaces, the inability to use standard public transportation, the inability to carry out routine ambulatory activities, such as shopping and banking, and the inability to climb a few steps at a reasonable pace with the use of a single hand rail. The ability to walk independently about one's home without the use of assistive devices does not, in and of itself, constitute effective ambulation.
"[c]haracterized by gross anatomical deformity," or that she is unable to ambulate effectively. Indeed, the evidence only reflects that Plaintiff previously fractured her left ankle and has a stress fracture in her left talus. Furthermore, in her responses to the Physical Activities Q u e s tio n n a ire , Plaintiff specifically denied using assistive devices for ambulation. Tr. 104. Finally, the ALJ considered the testimony of the medical expert that Plaintiff's ankle and foot re la te d impairments do not meet or equal the relevant listing. Tr. 34-35. It is the claimant's re s p o n s ib ility to prove that she is disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1 9 9 9 ). This obligation requires that the claimant "prove that her impairment or
c o m b in a tio n of impairments meets or equals a listed impairment . . . ." Id. Plaintiff's failure to either present specific evidence that she satisfies the express requirements of Listing 1.02 o r diminish the reliability of the evidence considered by the ALJ defeats her claim that she m e e ts or equals the listing. Accordingly, Plaintiff's claim that the ALJ erred in finding that h e r impairments are not of listing-level severity is due to be denied. C. T h e ALJ's finding that Plaintiff retains the RFC for light work.
P la in tif f asserts that the "ALJ erred in finding that the claimant has the residual fu n c tio n a l capacity to perform light work . . . ." Pl.'s Brief (Doc. #11) at 11. In support, P la in tiff recounts the definition of light work and alludes to the ALJ's findings that Plaintiff is severely impaired by her obesity and left ankle conditions. Plaintiff also states that the v o c a tio n a l expert testified that, "based on the Claimant's description of her limitations and c a p a b ilitie s , she would not be able to perform any of her past work or other work." Id.
Plaintiff then concludes that "the ALJ's finding that the Claimant has the residual functional c a p a c ity to perform light work is not supported by substantial evidence." Id. Thus, it a p p e a rs that Plaintiff attributes error to the ALJ's RFC determination because Plaintiff s u ffe rs severe impairments, she gave testimony about her limitations, and the vocational e x p e rt testified that, if Plaintiff's testimony were fully credited, Plaintiff would not be able to work. Defendant contends that the ALJ's decision, both as to Plaintiff's credibility about h e r limitations and the ultimate findings as to Plaintiff's RFC, are supported by substantial e v id e n c e . Def.'s Brief (Doc. #12) at 10. Plaintiff cites to no evidence in record, other than the implications of her own te s tim o n y , that contrasts with the ALJ's findings as to her limitations or RFC. Plaintiff's tre a tin g physician cleared her to return to work on May 1, 2007. Tr. 172. The Physical R e sid u a l Functional Capacity indicates that Plaintiff is able to perform light work with a d d itio n a l restrictions largely adopted by the ALJ. Tr. 163-70. The medical expert also o p in e d that Plaintiff's RFC "would be light" with additional restrictions that, again, the ALJ la rg e ly adopted. Tr. 35. While it is true that the VE testified that, "based on [Plaintiff's] d e s c rip tio n of her limitations and capabilities," she would not be able to work, the VE also te s tifie d that a hypothetical person with Plaintiff's RFC - as determined by the ALJ - would b e able to perform jobs that exist in significant numbers in the national economy. Tr. 39-40. Thus, the VE's testimony does not support Plaintiff's argument. T o the extent Plaintiff's claim concerns the ALJ's finding that Plaintiff's testimony
is not fully credible to the extent to which it is inconsistent with Plaintiff's RFC, Plaintiff has fa ile d to cite to any evidence in the record which contrasts with the medical evidence d is c u s se d above and relied upon by the ALJ. Plaintiff also does not specifically challenge th e ALJ's finding that her actions render her testimony partially incredible. In particular, the A L J noted the conservative nature of treatment Plaintiff received following her ankle s u rg e ry , that Plaintiff never complained of pain of a disabling nature, that Plaintiff did not d is a g re e with her physician's decision to return her to work in May of 2007, that Plaintiff had n o t sought further medical care concerning her ankle and/or foot since May of 2007, and that P la in tiff did not complain of such disabling pain during the two emergency room visits she m a d e after May of 2007. Tr. 18. The Court of Appeals for the Eleventh Circuit has e s ta b lis h e d a test for evaluating a disability claimant's allegations of disabling pain: If a claimant testifies regarding subjective complaints of disabling pain and o th e r symptoms, the ALJ must clearly articulate explicit and adequate reasons fo r discrediting the claimant's allegations. In order for a claimant to s u ffic ie n tly establish disabling pain through testimony, she must show: (1) e v id e n c e of an underlying medical condition and either (2) objective medical e v id e n c e that confirms the severity of the alleged pain arising from that c o n d itio n or (3) that the objectively determined medical condition is of such a severity that it can be reasonably expected to give rise to the alleged pain. M a jk u t v. Comm'r of Soc. Sec., 2010 WL 3394474 at *2-*3 (11th Cir. Aug. 30, 2010) (in te rn a l quotations and citations omitted). In this case, the ALJ determined that Plaintiff's " m e d ic a lly determinable impairments could reasonably be expected to cause the alleged s y m p to m s ," but that, for the reasons discussed above, Plaintiff's testimony about her pain a n d alleged resulting limitations was not credible to the extent it was inconsistent with her 14
given RFC. Tr. 18. As set forth above, the ALJ articulated numerous "explicit and adequate re a s o n s " for his decision to discredit Plaintiff's testimony. These reasons include the medical e v id e n c e in the record which supports the RFC determination, the lack of any medical e v id e n c e conflicting with the RFC determination, and Plaintiff's own actions. All of these re a s o n s are supported by substantial evidence. Accordingly, the ALJ did not err in
d is c re d itin g Plaintiff's testimony about disabling pain, and Plaintiff's claim that the ALJ e rre d in finding her capable of light work is due to be denied. VI. C O N C L U S IO N T h e Court has carefully and independently reviewed the record and concludes that, f o r the reasons given above, the decision of the Commissioner is supported by substantial e v id e n c e and is therefore AFFIRMED. A separate judgment will issue. D O N E this 22nd day of November, 2010.
/s/ Wallace Capel, Jr. WALLACE CAPEL, JR. U N IT E D STATES MAGISTRATE JUDGE
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