Barnes v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Inge P Johnson on 5/22/12. (ASL)
2012 May-22 PM 03:19
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MARTHALYNN EZELLE BARNES, )
MICHAEL J. ASTRUE,
Commissioner of Social Security,
CASE NO. CV 11-J-1334-S
This matter is before the court on the record. This court has jurisdiction pursuant
to 42 U.S.C. § 405. The plaintiff is seeking reversal or remand of a final decision of
the Commissioner. All administrative remedies have been exhausted.1
Plaintiff applied for Disability Insurance benefits and Supplemental Security
Income benefits on July 23, 2007, alleging disability beginning March 23, 2007 (R. 60,
104-11) due to “a problem with her tail bone, the coccyx,” fibromyalgia, a cervical
bone spur, degenerative disc disease, and depression (R. 33-34, 48, 153). The
administrative law judge (“ALJ”) denied plaintiff’s application on July 15, 2009 (R.
Plaintiff filed a new concurrent claim on September 10, 2009, which was allowed at the
hearing level before a different Administrative Law Judge on May 26, 2011, with an amended
onset date of February 24, 2010. See Plaintiff’s Br. (doc. 9) at 3.
12-28). The Appeals Council denied her request for review on February 18, 2011 (R.
1-3). The ALJ’s decision thus became the final order of the Commissioner. See 42
U.S.C. § 405(g). This action for judicial review of the agency action followed (doc.
1). The court has considered the entire record and whether the decision of the ALJ is
supported by substantial evidence. For the reasons set forth below, the decision of the
Commissioner is due to be REVERSED.
Plaintiff is a 47-year old female with a high school education and a certificate
in cosmetology (R. 34-35). She has one adult son who lives in her home with her (R.
42, 43). Her most recent full-time job was at a hair salon, from January to March of
2007 (R. 145), and she testified that she subsequently worked one day a week at a
restaurant for a couple of months (R. 35-36, 39-40). Prior to these positions, in 2002
and 2003, plaintiff worked in a bank as a teller/microfilm mounter filming canceled
checks (R. 39, 50).
Plaintiff testified that she is unable to perform any of her old jobs because she
cannot sit or stand for long periods of time without pain in her back or extremities (R.
40-41). She also claims to have problems with depression, for which she requires
antidepressants (R. 41-42). Plaintiff claims that her son takes care of most of the
grocery-shopping and housework, and that she does not drive “unless [she] absolutely
ha[s] to” because her neck pain reduces her mobility and she has almost had multiple
accidents as a result (R. 43-44).
Plaintiff fell at work, injuring her coccyx (tailbone), in September of 2007 (R.
36-37). Plaintiff testified that her doctor told her she required surgery for her coccyx
injury because the bone was “totally broken” and “wasn’t going to heal” on its own,
but that neither insurance nor worker’s compensation would pay for the surgery (R. 44,
46). Despite the “very painful” nature of this injury, plaintiff avers that it is not the
principal reason for which she filed for disability (R. 48). Plaintiff also testified that
she suffers from back pain due to degenerative disk disease, that she feels pain “all the
time,” and that the pain has been getting “worse and worse” over the years (R. 46-47).
Plaintiff said that she gets uncomfortable if she is required to sit for more than a few
minutes at a time, and that accordingly she spends “[p]robably three or four hours” per
day laying down (R. 47-48). She testified that this pain is compounded by fibromyalgia
and depression (R. 48).
In her Daily Activities Questionnaire, filled out on August 14, 2007, plaintiff
wrote that she “seem[s] to be able to sleep no more than 45 minutes or an hour at a
time” and that she requires help with personal and financial needs (R. 132). She
laments that “[s]ince I don’t sleep good at night and because of medications I usually
nap for a bit [during the day] and this cycle continues all day” (R. 137). She is able to
prepare and cook meals “with . . . help” and is able to perform “light cleaning . . . most
of the time” (R. 133), though she says she cannot use a vacuum cleaner because of her
right arm pain (R. 139). She is unable to tend the garden (R. 140) or to lift groceries
(R. 141). She says her son must be present when she is cooking because of “concern
that I will forget and start a fire” (R. 139). Her mobility is limited because she “can’t
lift certain things or reach for or bend down for items, and she claims she is “very tired
and ache most of the time” (R. 133-34, 140). Plaintiff states she can perform a task or
chore for no longer than fifteen to twenty minutes before needing a break, that she
“can’t lift heavy objects or do strenuous activities,” and that she will “tire very easily”
and “loose [sic] [her] train of thought when trying to carry on a conversation” (R. 135).
She wrote that [s]ome days it hurts to even move,” and due to limited mobility “it is
hard to keep up some personal hygiene” (R. 137). Plaintiff is “scared” to drive because
of the medications she takes (R. 141).2 She claims she has been fired from recent jobs
cutting hair because she cut hair too slowly, and that she was fired from other jobs
because she “ache[d] so bad it is hard to get out of bed,” and she would miss work (R.
135). Because she cannot work she has no health insurance (R. 142).
Plaintiff listed the following daily medications on the Daily Activities Questionnaire:
Hydrocodone, 5 times/daily, for pain; Valium, 2-3 times/daily, for stress; Zanaflex, 3 times/daily,
for muscle spasms; and Lexapro, 2 times/daily, for depression (R. 142). On her Pain
Questionnaire, plaintiff wrote that she takes 10 mg of hydrocodone 5 times per day, and has done
so for “3-4 years” (R. 143-44).
Plaintiff has a long history of back, neck, and shoulder pain, as well as more
generalized complaints of joint pain. She also has a long history of depressive mood
or anxiety disorder. On her pain questionnaire, plaintiff wrote that her pain began in
1990 (see, e.g., R. at 372-79), “has gotten worse since then,” and has worsened
“considerably” since 2001 (R. 143-44). She wrote that “fibromyalgia makes me ache
all over but the pain from a bone spur is mainly in the neck and shoulders,” and is
slowly moving into her right arm and hand and “sometimes into the left shoulder and
arm” (R. 143). The pain is exacerbated by “activity,” and is “constant” (R. 143). She
says that “nothing relieves the pain totally but the medications help but cause other side
effects” (R. 144).
Unsigned medical records from July 2, 1999, state that plaintiff returned to the
the physician after a two year absence and had been “doing well,” but the author of the
records noted that plaintiff was “stressed out,” her heart was “racing,” she was crying,
and she “is having problems here” (R. 355). She was noted to be doing “better” at a
follow-up on July 16, 1999 (R. 354), and on August 25, 1999, it was noted that
plaintiff quit her job and since had “much more peace of mind [and is] feeling better”
On December 6, 1999, plaintiff visited her primary care physician, Dr. David
Kimbrell, complaining of a “panicky feeling” and “several episodes of fright mainly
associated with a group of people” (R. 351). She was diagnosed with chest pain
associated with hypertension, for which she was prescribed Zebeta,3 5 mg/day, and
anxiety, for which she was prescribed Klonopin,4 1 mg/twice daily, and Serzone,5
starting at 50mg/twice daily and slowly increasing to 100 mg/twice daily (R. 351).
On December 28, 1999, plaintiff returned to Dr. Kimbrell for Graded Exercise Testing
(“GXT”) (R. 349, 397-411). The GXT was “clinically [and] electrically negative” (R.
397). On January 18, 2000, Dr. Kimbrell noted during a subsequent follow-up that
plaintiff had “[s]ignificant anxiety disorder”; he increased both her Klonopin, to “1 mg
up to three times a day,” and her Serzone, to 150 mg/twice daily, and continued her
Zebeta as before (R. 347).
On March 17, 2000, Dr. Kimbrell expanded his diagnosis to include
“[s]ignificant generalized anxiety disorder with insomnia,” continued the Klonopin as
needed, and discontinued the Serzone, instead prescribing Trazodone,6 25 mg/daily to
Zebeta is a brand name of Bisoprolol, a generic drug used to treat hypertension. See
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000927/ (last visited May 16, 2012).
Klonopin is brand name of Clonazepam, a generic drug used to treat panic disorder. See
PHYSICIANS’ DESK REFERENCE 119 (PDR Network, LLC, 2011).
Serzone is a brand name of Nefazodone, a generic drug used to treat depression. See
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000956/ (last visited May 16, 2012).
Trazodone is a generic drug used to treat major depressive disorder. See PHYSICIANS’
DESK REFERENCE 127 (PDR Network, LLC, 2011).
“see how she tolerates it,” and Celexa,7 10 mg/daily for one week, thereafter 20 mg/day
(R. 346). He also noted that plaintiff had “[c]arpal tunnel syndrome on the right” and
recommended a wrist splint (R. 346).
Plaintiff first visited a Dr. Jeffrey Wade on June 14, 2000, having been referred
by Dr. Kimbrell after complaining of chronic left elbow pain (R. 345). She was
diagnosed with lateral epicondylitis and given an injection to aid inflammation, pain
medication, and was prescribed a strap to wear (R. 345). She followed up several times
over the subsequent couple of months (R. 342-44). On one of these occasions, Dr.
Wade noted that plaintiff reported having missed a month and a half of work (R. 343).
On March 19, 2001, plaintiff reported to Dr. Kimbrell that she was diagnosed
with fibromyalgia by a physician in Columbus, Georgia (R. 341). On that date, plaintiff
“became tearful . . . , admitted that she had been on . . . Prozac and it had helped in the
past but the sexual dysfunction is intolerable.” Id. Dr. Kimbrell noted plaintiff was
“tender in multiple sites for fibromyalgia.” Id. The medication for her anxiety disorder
was modified; plaintiff was now taking 1 mg of Klonopin up to three times daily, and
Dr. Kimbrell reported both that he would “[g]et [plaintiff] on Prozac or Sarafen 20 mg
Celexa is a brand name of Citalopram Hydrobromide, a generic drug used to treat
depression. See Physicians’ Desk Reference 119 (PDR Network, LLC, 2011).
a day”8 and that he gave her samples of Zanaflex,9 4 mg to take daily at bedtime.
On November 9, 2001, plaintiff saw Dr. Kimbrell complaining of numbness in
the right hand and arm pain; a nerve conduction study revealed findings “compatible
with but not indicative of a minimal right carpal tunnel syndrome” (R. 391). An MRI
of the cervical spine taken on October 8, 2003, and reviewed by Dr. Bunker revealed
degenerative changes at C6-7 and no other abnormalities (R. 384).
On February 7, 2003, plaintiff first saw Dr. Timothy Bunker at the Birmingham
Pain Center, complaining of “constant ongoing aches [and] pains throughout [her]
body” (R. 328, 323-330). She had follow-up visits on February 10 and 27, when she
complained about neck and shoulder pain, and examination revealed cervical
crepitation (R. 321-22). On March 12, 2003, and May 6, 2003, she again visited Dr.
Bunker complaining of fibromyalgia and neck and shoulder pain (R. 312-20). She was
noted to be working at Regions Bank (R. 319) and her sleep had improved (R. 312).
Dr. Bunker formally diagnosed plaintiff with fibromyalgia during these visits (R. 312,
The records do not indicate which, if either, of these drugs Dr. Kimbrell prescribed on
Zanaflex is a brand name of Tizanidine, a generic drug used to treat muscle spasm. See
PHYSICIANS’ DESK REFERENCE 127 (PDR Network, LLC, 2011).
Plaintiff’s medication regimen changed frequently during this time; she was prescribed
various medications in response to her complaints of pain. See R. at 312, 317-19.
On June 11, 2003, Dr. Bunker reported that plaintiff was “tolerat[ing] more
activity” and “doing better overall” (R. 310). On August 11, 2003, plaintiff visited Dr.
Bunker with complaints of fibromyalgia, neck, and shoulder pain, elbow and hand
discomfort, and low back pain (R. 308-09). Carpal tunnel syndrome was listed as a
possible cause (R. 308). On October 6, 2003, plaintiff returned with the same
complaints (R. 306-07). An MRI was scheduled for her cervical spine (R. 304, 307),
which revealed mild degenerative changes at C6-7 (R. 301).
On December 1, 2003, plaintiff followed up with Dr. Bunker for cervical pain
and fibromyalgia with a reported pain level of six on a ten-point scale (R. 301-02). Dr.
Bunker identified myofascial syndrome and cervical spondylosis without myelopathy
(R. 536). On January 6, 2004, Dr. Bunker performed a series of ten medial branch
blocks on both sides of discs C3 through C7 (R. 296-300, 534).
Plaintiff saw Dr. Bunker on March 21, 2004, and complained of fibromyalgia,
neck and shoulder pain and myofascial syndrome after experiencing muscle flare-ups
while preparing to move out of her residence (R. 294). On May 25, 2004, plaintiff
reported pain ranging from four to nine on a ten-point scale, and an increase in stress
(R. 292). Plaintiff called Dr. Bunker’s office on June 2, 2004, seeking work excuses
both for time already missed and for the next two weeks (R. 291). She returned to Dr.
Bunker with complaints of fibromyalgia, neck and shoulder pain on July 22, 2004 (R.
289-90), September 21, 2004 (R. 287-88), November 16, 2004 (R. 285-86), January
11, 2005 (R. 283-84), and March 1, 2005 (R. 281-82), and each time was prescribed
Lortab, 10 mg/daily,11 Zanaflex, 10 mg/1-3 times daily, Lexapro,12 and Flexeril, 10
mg/daily as needed for muscle spasm.13 Plaintiff would continue to take some
combination of these medications off and on for the next several years.14 On the March
visit, plaintiff noted she had been working seven days per week and taking care of her
mother and children (R. 281) Dr. Bunker also prescribed Seroquel (R. 281-82),15 and
his treatment notes note a diagnosis of localized osteoarthrosis in the shoulder region
On January 18, 2005, plaintiff was seen at Brookwood Internists with
complaints of depression, fibromyalgia, and insomnia (R. 192-93). No change in her
Lortab is a brand name of an acetaminophen/hydrocodone bitartrate mixture, a generic
drug used to treat pain. See PHYSICIANS’ DESK REFERENCE 117 (PDR Network, LLC, 2011).
Lexepro is a brand name of Escitalopram, a generic drug used to treat syptoms of
depression and anxiety disorder. See http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000214/
(last visited May 16, 2012).
Flexeril is a brand name of Cyclobenzaprine, a generic drug used to treat muscle spasm
and pain. See Physicians’ Desk Reference 120 (PDR Network, LLC, 2011).
An extensive partial catalog of her medication schedule is included in the treatment
records. See R. at 213-17, 233-64, 540-42.
Seroquel is a brand name of Quetiapine, a generic drug used to treat symptoms of
schizophrenia, bipolar disorder, and depression. See
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001030/ (last visited May 16, 2012).
condition was noted in a follow-up on August 2, 2005 (R. 190-91).
Treatment notes from May 3, 2005, and June 1, 2005, note that Dr. Bunker
added Valium, 5 mg/daily, to plaintiff’s treatment regimen due to stress over a custody
battle with her ex-husband (R. 279-80).
Plaintiff was seen by Dr. Bunker on July 26, 2005, again with complaints of
fibromyalgia, neck, and shoulder pain (R. 275-76, 524). She reported good days and
bad days, and an increase in stress due to court battles with her ex-husband and her
mother’s cancer (R. 275-76). Treatment notes include a diagnosis of myofascial
syndrome and osteoarthrosis, localized primarily in the shoulder region (R. 524).
Plaintiff was seen again on September 27, 2005 (R. 272), and November 29, 2005 (R.
271, 522). On the latter of these two visits, plaintiff reported pain mostly in the neck
and shoulders which had increased due to working long holiday hours, and interrupted
sleep (R. 271).
Plaintiff was seen again at Brookwood Internists on October 28, 2005,
complaining of pain after injuring her knee in a car accident (R. 187-89). An x-ray of
the knee taken on that day revealed “no abnormality” (R. 187). An MRI taken on
November 7, 2005, showed a small bone effusion and “[a] moderate sized fluid
collection . . . anteriorly and medially in the soft tissues of the knee external to the knee
joint” (R. 184). By December 6, 2005, the knee had improved and plaintiff had
returned to work, though she reported having been more depressed of late (R. 182-83).
On January 31, 2006, Dr. Bunker recorded plaintiff stating that her pain was
mostly controlled and that her work was “going better” and she was able to work a
five-hour shift (R. 269-70). A change in this status was reflected in treatment notes
from April 4, 2006, when plaintiff again complained of fibromyalgia, neck and
shoulder pain that was exacerbated by “consistent activity” and “stress” and described
as a dull ache (R. 267-68). Dr. Bunker noted that plaintiff “need[ed] to find a way to
make more time for herself” (R. 268).
On April 30, 2006, plaintiff visited the UAB-West emergency room complaining
of moderate left elbow pain following a fall (R. 716-21). X-rays revealed a
“nondisplaced fracture of the radial head with small joint effusion,” with a “[f]racture
line [that] extends to the articular surface” (R. 721). Plaintiff was discharged after
having been outfitted in a splint, with instructions to carry her arm in a sling (R. 714,
719-20). Records from a June 19, 2006, follow-up show that the fracture was “well
healed” with “no signs of displacement” and “no pain” (R. 705).
On June 6, 2006, plaintiff reported no significant change in her level of pain, and
that it “waxes and wanes” (R. 265-66, 519). Dr. Bunker noted that the chronic neck
and shoulder pain could be myofascial syndrome (R. 266). On August 8, 2006,
plaintiff’s pain was noted to be about the same, but the intensity was a “little worse”
(R. 517). Plaintiff also reported feeling more depressed in the last month due to the
death of her mother (R. 516-17). Records indicate her dosage of Valium had increased
to 10 mg/daily at bedtime (R. 514).
On October 19, 2006, plaintiff reported that she was completely out of her pain
medications, which were refilled, and that she had been fired from her job for missing
too much work (R. 209, 511). On December 14, 2006, she reported that her pain
manifested itself as “aches, tightness, [and] pops [and] catches” and that it was
exacerbated by stress and “insomnia” (R. 210). Her pain level without medicine was
noted to be 8-9 on a 10-point scale, and 2-3 on her medication (R. 210). She also
reported that her husband had died and that she could not afford counseling (R. 211).
On February 13, 2007, plaintiff reported “ache with sharp pain occasionally,”
with arm pain that included numbness in her thumb, that was exacerbated by “lifting,”
and noted that though she had returned to work, she was having problems there (R.
197-98). Treatment notes include observation of “degeneration of cervical
intervertebral disc” (R. 496).
On February 26, 2007, plaintiff noted that both her pain level and her level of
activity were “worse” since her February 13 doctor visit (R. 203). On that date, Dr.
Bunker performed a fluoroscopically guided cervical epidural steroid injection at C7T1 as treatment for cervical degenerative disc disease and spondylosis with radicular
symptoms (R. 199-203, 485, 491-92).
On April 10, 2007, plaintiff reported that she felt pain “all of the time,” that her
pain level without medicine was 7-10 on a 10-point scale, and that her pain level with
medicine had increased to 4-5 on a 10-point scale (R. 204). Dr. Bunker observed that
Lortab was no longer adequately controlling her pain, and that she was “quite
depressed” (R. 205). Plaintiff’s medication regimen was augmented with methadone,
10 mg/daily, to help treat her pain (R. 205).
By June 5, 2007, plaintiff reported feeling pain most in her collarbone, as well
as continuing numbness in her right thumb (R. 206-07). She also reported losing
another job (R. 207). Dr. Bunker believed the pain in the thumb to be radicular, and
the clavicle mechanical pain (R. 207).
In a letter dated August 2, 2007, Dr. Bunker stated
[Plaintiff] is a patient whom I’ve been treating for chronic
intractable pain in the neck and shoulders. She has been
diagnosed with Cervical Degenerative Disc Disease with
radicular symptoms. She also has a secondary myofascial
syndrome. This condition is very debilitating and makes it
difficult for her to tolerate work as a hairdresser.
R. at 465, 625.
On August 8, 2007, plaintiff reported a pain level without medicine of 10 on a
10-point scale (R. 461). Dr. Bunker noted that plaintiff was not tolerating the
Methadone well (R. 462). On August 13, 2007, Dr. Bunker performed a
fluoroscopically guided diagnostic block to the medial brach of C3-C7 on both sides
as treatment for “Neck Pain of facetogenic origin presumptively of the C3/4, C4/5,
C5/6 and C6/7 zygoapophyseal joints bilaterally” (R. 194-96). Plaintiff reported “relief
of the facetogenic neck pain immediately after the procedure” (R. 196).
In a Physical Capacities Evaluation (R. 628-32) dated September 10, 2007, Dr.
Bunker opined that plaintiff could be expected to lift ten pounds occasionally or less
frequently; could sit four hours and stand or walk two to three hours in an eight-hour
workday, that she should never push or pull, only occasionally climb stairs or ladders,
balance, bend, stoop, or reach; and never work around hazardous machinery or
pulmonary irritants (R. 628). He also rated plaintiff’s pain level as distracting to the
adequate performance of daily activities or work and noted that physical activity would
“[g]reatly increase pain and to such a degree as to cause distraction from tasks or total
abandonment of tasks” (R. 629). He drew the same conclusion with respect to
plaintiff’s fatigue and weakness (R. 631). He further stated that plaintiff would have
negative effects in her performance of daily activities or work due to her pain, fatigue,
and weakness, and that her symptoms were consistent with her underlying medical
condition (R. 630-32).
Plaintiff was seen at the UAB-West emergency room on September 8, 2007,
with complaints of pain radiating down her right leg following a fall at work (R. 72430). An X-ray revealed “age-indeterminate fracture of the coccygeal tip with anterior
override of the fracture fragment” (R. 729). In a follow-up with a Dr. Dory Curtis on
September 10, 2007, Dr. Curtis noted that plaintiff “look[ed] uncomfortable” and
“walk[ed] hesitantly,” with bruising and tenderness surrounding her coccyx (R. 641).
Dr. Curtis advised patient not to work for a week, noted plaintiff may need to miss
more than a week of work, and prescribed pain medication and “some therapy”(R.
641). A week later, on September 17, 2007, plaintiff had less pain and was walking
better, but was still able to stand only for a few minutes and had to shift positions
frequently (R. 640). Dr. Curtis noted that it seemed “unlikely” that plaintiff could work
at that time due to her pain (R. 640).
On September 29, 2007, a consultative examination report was issued by Dr.
Raveendran Meleth (R. 593-96). Plaintiff was noted to get up “stiffly” and walk
slowly, and could squat up to 50 degrees but complained of back spasm (R. 595). She
exhibited mild tenderness on the right side of the neck, with spastic neck and lumbar
spine movements, and restricted shoulder motion on both sides (R. 595-96). Plaintiff
was diagnosed with (i) chronic body and joint pains, (ii) a history of fibromyalgia, (iii)
neck pain due to mild degenerative joint disease with no signs of radiculopathy, (iv)
arthralgia of both shoulders, (v) a limited range of motion of her lumbar spine with no
sciatica, and (vi) anxiety and depression (R. 596). Dr. Meleth noted that plaintiff had
been “very tearful” throughout the clinical examination (R. 596).
On October 1, 2007, plaintiff followed up with Dr. Curtis, who noted that
plaintiff’s pain had decreased, but that she still could not sit well and tended “to lean
off to the side” (R. 639). Her impression was to “keep [plaintiff] on the same
restrictions she was on previously but apparently that prevents her from working” (R.
639). On October 8, 2007, Dr. Curtis noted that plaintiff was walking comfortably but
sat without placing weight on her coccyx region (R. 638). Dr. Curtis opined that
plaintiff “could perform some sort of work,” but because it was “difficult to put an
exact time limit on sitting, standing, or walking,” wrote that “these be restricted to
tolerance because there is no clear objective way to measure pain” (R. 638). Dr. Curtis
opined that plaintiff should not drive because she “has to take a fair amount of
narcotics” and noted that “it sounds like she is not planning to work” (R. 638). X-rays
taken October 18, 2007, showed no indications that the coccyx was healing (R. 637).
Plaintiff followed up again with Dr. Curtis on October 29, 2007, complaining
that she still had “constant pain that prevent[ed] her from standing or walking more
than about ten or fifteen minutes” (R. 636). Dr. Curtis opined that plaintiff looked
“very uncomfortable” and was “still exquisitely tender over the coccyx” (R. 636). Dr.
Curtis’s impression was that plaintiff’s pain was “much worse than I would expect
with this problem but sometimes patients have severe pain” (R. 636). Dr. Curtis opined
that plaintiff would be “helped best” by a coccygectomy (R. 636).
On November 26, 2007, plaintiff again followed up with Dr. Curtis (R. 635).
Plaintiff complained of “burning stinging pains down the right leg” which “radiate all
the way down to her foot” (R. 635). She was noted to walk well but lean to the left,
with a positive straight leg raise on the right causing burning pain that goes into the
calf (R. 635). An X-ray revealed “some calcification indicative of healing around the
coccyx but it is sitting in a fairly displaced position anterior to its normal attachment”
(R. 635). Dr. Curtis noted weakness consistent with an L4-5 herniation and pain down
the leg consistent with a radiculopathy (R. 635). Dr. Curtis observed that plaintiff had
been denied a coccygectomy (R. 635). See R. at 690-91, 694-95.
Plaintiff was again seen by Dr. Curtis on December 10, 2007, still complaining
of severe pain (R. 655). X-rays and physical examination were inconclusive (R. 655).
Dr. Curtis opined that plaintiff should have undergone a coccygectomy “weeks ago”
On April 22, 2009, plaintiff was seen for an examination by rheumatologist
Bryan Dewees (R. 731-40). His report notes that plaintiff began having neck and
shoulder pain in approximately 1995, for which she had numerous treatments over time
which were not particularly helpful (R. 731). The pain became gradually worse until
plaintiff began visiting Dr. Bunker at the Birmingham Pain Center in 2003 and was
diagnosed with cervical degenerative disc disease with radicular symptoms (R. 731).
Dr. Bunker’s letter of August 2, 2007, confirms this (R. 625, 731). Plaintiff reported
having been treated with numerous nerve blocks which helped her, and also required
numerous pain medications (R. 731). Plaintiff reported pain in the posterior neck that
goes to the right shoulder and down to her lower back, and stated that if she sits in one
position for a long period of time she has flares of pain in her neck, shoulders, lower
back, and legs (R. 731). She said that if she lifts anything with her right hand it is very
painful, and that she can only lift her purse, which is three pounds (R. 731). She is not
able to bend over, stoop, crawl, or climb, and said she has to lie down most of the day
because of the pain in her neck, shoulders, and right arm (R. 731).
Dr. Dewees diagnosed plaintiff with (i) neck pain related to degenerative disc
disease of the cervical spine; (ii) right radicular arm pain related to this disease; (iii)
lower back pain; (iv) fatigue related to her disease; and (v) depression (R. 732). He
concluded his report by noting that plaintiff has severe neck pain, right arm pain, and
suffers from constant chronic plain, that these symptoms are confirmed by her medical
records, and that he did “not feel that she could work at any job eight hours a day, forty
hours a week, fifty weeks a year even if such a job were of a light or sedentary nature.
In other words . . . she is totally and permanently disabled by her above outlined
medical problems” (R. 732).
On that same date, Dr. Dewees also opined that plaintiff could be expected to
sit one hour and stand or walk one hour in an eight-hour workday; that she should
never push or pull, climb stairs or ladders, balance, bend, or perform fine or gross
manipulation; that she could only occasionally stoop or reach; and that she could never
work around hazardous machinery or pulmonary irritants (R. 736). He also rated
plaintiff’s pain level as distracting to adequate performance of daily activities or work,
and that such activity would increase pain upon exertion (R. 737). He further stated
that plaintiff would have negative effects in her performance of daily activities or work
due to fatigue or weakness, and that these symptoms were consistent with her
underlying medical condition (R. 738).
Plaintiff has a history of anxiety and panic attacks dating at least to 1996 (R.
359), and was taking Klonopin to treat panic disorder as early as 1994 (R. 365). On
April 22, 2002, plaintiff reported to her primary care physician, a Dr. Kimbrell, that
she had stopped visiting her psychiatrist for financial reasons (R. 333).
On January 18, 2005, plaintiff was seen at Brookwood Internists with
complaints of depression, fibromyalgia, and insomnia (R. 192-93). Her depression was
noted to be improving with medication, but that significant stressors in her life were
present (R. 193). No change in her condition was noted in a follow-up on August 2,
2005 (R. 190-91).By December 6, 2005, plaintiff reported having been more depressed
of late (R. 182-83). Records from an August 1, 2006, follow-up note that plaintiff’s
mother had died and that her depression had worsened as a result (R. 178-79).
John Neville, Ph.D., performed a psychological evaluation on plaintiff on
September 27, 2007 (R. 589-92). He concluded that her panic attacks were too
infrequent to warrant a Panic Disorder diagnosis, and that though plaintiff has some
anxiety, “overall a diagnosis of Major Depressive Disorder appeared most suitable for
her” (R. 591). He also recommended psychiatric treatment and psychotherapy, and
opined that her psychological prognosis over the next six to twelve months if she is in
treatment is considered fair to good (R. 591). Notably, he opined that plaintiff’s ability
to respond appropriately to coworkers was “mildly impaired” and that her ability to
cope with ordinary work pressures appeared “mildly to moderately impaired” (R. 591).
At the hearing before the ALJ, the Vocational Expert (“VE”) was presented with
numerous hypothetical situations involving an individual with symptoms similar to the
plaintiff’s. First, the VE testified that plaintiff’s work as a bank teller would transfer
into “sedentary clerical-type activities” including (but not limited to) billing clerk,
route clerk, or order clerk (R. 51-52). He then testified that these jobs would still be
available to a hypothetical individual who is “capable of occasional work postures to
include climbing ramps or stairs, balancing, stooping, kneeling, crouching or crawling,
and never climbing ladders[,] ropes or scaffolds” (R. 52). None of these jobs would
require overheard reaching, exposure to any “hazards such as unprotected heights,” or
exposure to extreme cold or heat (R. 52-53).They would also allow a change in
position such that the hypothetical individual would not “be sitting in a prolonged
posture for 25 minutes or more without the opportunity to stand and take a short
stretch” (R. 53). The VE testified that these jobs would involve casual and informal
contact with the general public, coworkers and supervisors that is not “intensive,
prolonged or constant” (R. 54). Finally, in response to the ALJ’s hypothetical of an
individual who is “not able to complete an eight-hour workday, 40 hours a week or an
equivalent schedule on a regular and continuous basis,” the VE testified that such
individual “would not be able to meet the production requirements of work and would
not be able to perform any of [the plaintiff’s] past work, would not be able to perform
any of the [hypothetical] jobs . . . listed, . . . and would not be able to perform any work
at any exertional level” (R. 55-56).
Standard of Review
In a Social Security case, the initial burden of establishing disability is on the
claimant, who must prove that due to a mental or physical impairment he is unable to
perform his previous work. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). If
the claimant is successful, the burden shifts to the Commissioner to prove that the
claimant can perform some other type of work existing in the national economy. See
This court’s review of the factual findings in disability cases is limited to
determining whether the record contains substantial evidence to support the ALJ’s
findings and whether the correct legal standards were applied. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401 (1971); Martin v. Sullivan, 894 F.2d 1520,
1529 (11th Cir. 1990). “Substantial evidence” is generally defined as “such relevant
evidence as a reasonable mind would accept as adequate to support a conclusion.”
Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)); see also Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996);
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
This court also must be satisfied that the decision of the Commissioner is
grounded in the proper application of the appropriate legal standards. McRoberts v.
Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988); Bridges v. Bowen, 815 F.2d 622, 624
(11th Cir. 1987); Davis v. Shalala, 985 F.2d 528 (11th Cir. 1993). No presumption of
correctness applies to the Commissioner’s conclusions of law, including the
determination of the proper standard to be applied in reviewing claims. Bridges, 815
F.2d at 624; Corneliuis v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991).
Furthermore, the Commissioner’s “failure to . . . provide the reviewing court with
sufficient reasoning for determining that the proper legal analysis has been conducted
mandates reversal.” Cornelius, 936 F.2d at 1145-46. When making a disability
determination, the Commissioner must, absent good cause to the contrary, accord
substantial or considerable weight to the treating physician’s opinion as against the
opinions of other physicians. Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988);
Walker, 826 F.2d at 1000.
In this case, the ALJ found that plaintiff has the severe impairments of
osteoarthritis of the shoulders, cervical degenerative disc disease, myofascial
syndrome, and mood disorder (R. 23). He then denied the plaintiff benefits, finding
that her mental impairment does not “meet or medically equal” either the so-called
“Paragraph B” or “Paragraph C” criteria, listed in 20 CFR Part 404, Subpart P,
Appendix 1 (R. 23-24). In activities of daily living, the ALJ found that plaintiff has
“mild restriction . . . due to alleged shoulder and spine impairments, and the resulting
pain and fatigue” (R. 23). With regard to her mental impairments, the ALJ found that
plaintiff’s anxiety “appears to be controllable by prescribed medications and does not
appear to directly produce any of her asserted limitations” (R. 23). He ultimately
concluded that plaintiff
has the residual functional capacity [(“RFC”)] to perform
light work . . . except she should only occasionally climb
ramps or stairs, balance, kneel, stoop, crouch, or crawl;
never climb ladders, ropes, or scaffolds; have no exposure
to extreme cold or hazards such as unprotected heights; she
should have only occasional overhead reaching; and she
should perform only non-complex work with casual,
informal social contacts.
The ALJ’s findings are simply not supported by substantial evidence; in fact,
they appear to contradict the overwhelming weight of substantial evidence, which the
ALJ admitted to have discounted. The Eleventh Circuit Court of Appeals has stated
that the opinion of a treating physician is to be given substantial weight in determining
disability. See Hillsman v. Bowen, 804 F.2d 1179, 1181 (11th Cir. 1986); Parker v.
Bowen, 793 F.2d 1177, 1180 (11th Cir. 1986); Spencer on behalf of Spencer v.
Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985). Absent good cause to the contrary, the
Commissioner must accord substantial or considerable weight to the treating
physician’s opinion. See Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988); Walker
v. Bowen, 826 F.2d 996, 1000 (11th Cir. 1987); Sharfarz v. Bowen, 825 F.2d 278, 279
(11th Cir. 1987); MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). Here,
however, the ALJ admits that he gave “little weight” to the opinions of both plaintiff’s
treating physician and consultative physician to the extent they opined on plaintiff’s
disability because medical opinions affecting “a claimant’s disability . . . are merely
some of the evidence to be considered before that determination is made” (R. 26).
On September 10, 2007, Dr. Bunker, who by then had been plaintiff’s treating
physician for her neck and shoulder pain for at least four years, assessed inter alia an
ability to lift ten pounds, sit for four hours, and be on her feet for two to three hours
in an eight-hour workday; opined that plaintiff should never push or pull; and could
only occasionally bend, stoop, or reach (R. 628). He also stated it would be “difficult
for her to tolerate her work as a hairdresser” (R. 625), a conclusion that the VE’s
testimony also supports (see R. at 55-56), and assessed plaintiff as having pain that
would “cause distraction from tasks or total abandonment of tasks” (R. 629). While
the ALJ accepted some of Dr. Bunker’s restrictions, he simply disregards some of Dr.
Bunker’s other conclusions by doubling the amount she could lift and doubling the
amount of time she could be on her feet (R. 25). His only justification for this is that
“[t]he apparently selective manner in which portions of the medical records have been
used to support these opinions leaves them unreliable, and worthy of only little weight”
This assertion is disingenuous in light of the fact that Dr. Bunker was in the best
position of any physician of record, considering that he is both plaintiff’s treating
physician and a pain specialist, to determine the indicia of disability in his RFC
assessment. The ALJ’s conclusory rejection of Dr. Bunker’s assessment directly
contravene his duty under the law. While it is true that the Social Security
Administration reserves to itself the issue of “disability” (see Social Security Ruling
96-5p), under the Social Security Administration’s own guidelines,
Generally, we give more weight to opinions from . . .
treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed,
longitudinal picture of [a claimant’s] medical impairment(s)
and may bring a unique perspective to the medical evidence
that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as
consultative examinations . . . .
20 CFR 416.927(c)(2) (2012). Further, the longer a treating source has treated a
claimant and the more knowledge that source has of the impairments at issue, the more
weight is due that source’s opinion. See 20 CFR 404.1527(c)(2)(i)–(ii) (2012).
Thus, an ALJ may not simply dismiss a treating opinion at his whim. Here, however,
the ALJ discounted not only the treating physician’s opinion, but also the objective
diagnoses of every single medical professional whose reports appear in the record, as
well as plaintiff’s own subjective description of her symptoms and pain, and provided
nothing but a “conclusory” statement for doing so.
The ALJ concludes that plaintiff’s “statements concerning the intensity,
persistence and limiting effects of [her] symptoms are not credible to the extent they
are inconsistent with the [RFC] assessment” (R. 25). Despite literally hundreds of
pages of medical records cataloging plaintiff’s extensive medical history with respect
to treatment and management of chronic pain, the ALJ discounts plaintiff’s “alleged
chronic severe pain” based on two isolated statements, one of which was written by a
consultative physician who saw plaintiff only once, and the other being Dr. Curtis’s
opinion in October 2007 that plaintiff’s symptoms were “much worse than I would
expect with this problem,” and that because of her pain, it appeared to Dr. Curtis that
plaintiff “sounds like she is not planning to work” (R. 26; see also R. at 636). The ALJ
selectively quoted Dr. Curtis; her actual statement was that plaintiff’s pain was “much
worse than I would expect with this problem but sometimes patients have severe pain”
(R. 636) (emphasis added). Dr. Curtis then opined that plaintiff would be “helped best”
by a coccygectomy, which additional records indicate plaintiff was subsequently
denied due to lack of insurance or other funds (R. 635, 690-91, 694-95). Dr. Curtis’s
conclusion was supported by physical exam; Dr. Curtis opined both that plaintiff
remained “exquisitely tender over the coccyx” (R. 636) and, nearly two months later,
that plaintiff should have undergone a coccygectomy “weeks ago” (R. 655). Regardless
of these results, the ALJ decided that Dr. Curtis’s selectively quoted statements,
combined with the isolated observation of Dr. Meleth, on the one occasion he saw
plaintiff, that plaintiff “sits comfortably,” were sufficient to “undermine the credibility
of [plaintiff’s] subjective complaints of pain” (R. 26).
The ALJ next accuses plaintiff of providing “inconsistent statements . . . to
various doctors” (R. 26).The first series of “inconsistent statements” the ALJ cites (R.
26) is that plaintiff told “Dr. Neville” (who is a Ph.D., not a physician) that she had
received “little benefit” from the nerve blocks (R. 589) but that she had told Dr.
Dewees that she has been treated with numerous nerve blocks which have “helped her”
(R. 26). Yet a closer reading of the record reveals that these statements are not
inconsistent. Plaintiff did, indeed, tell Dr. Dewees during her consultative examination
that she had received “numerous nerve blocks which helped her” (R. 731). However,
the very next sentence in Dr. Dewees’s report begins a half-paragraph summary of the
significant pain that continued to plague plaintiff despite her numerous nerve blocks:
She also required numerous pain medications. She says she
has pain in the posterior neck that goes to the right shoulder
and down to her lower back. She states that if she sits in one
position for a long period of time she has flares of pain in
her neck and shoulders, and also her lower back and legs.
She says that if she lifts anything with her right hand it is
very painful. She can only lift her purse, which is about
three pounds. She is not able to bend over, stoop, crawl or
climb. She says she had to lie down during most of the day
because of the pain in her neck, shoulders, and right arm.
R. 731. Rather than demonstrate inconsistency, the fact that plaintiff required, in
addition to nerve blocks, numerous treatments, spread out over a series of years, to
help relieve chronic pain is evidence that she could both “benefit” from the nerve
blocks, in that they did provide pain relief to a limited degree, but receive “little
benefit” from them over the long term because the nerve block treatments are stop-gap
measures that only temporarily relieve some of her worst pain, and do nothing to
resolve her suffering over the long term.
The second series of “inconsistent statements” the ALJ references are essentially
harmless instances of plaintiff becoming confused about her own medical history (R.
26). The ALJ claims plaintiff “told Dr. Dewees that her 2003 MRI showed cervical
degenerative disc disease with radicular symptoms . . . when in fact it showed mild
degenerative changes at C6-C7 and no other abnormalities” (R. 26). The ALJ is correct
that plaintiff’s 2003 MRI showed only mild degenerative changes at C6-C7 (see R. at
26, 384).16 Plaintiff’s statement was “inconsistent” with the facts not in that she
misrepresented her diagnosis, however; instead, plaintiff incorrectly stated the date of
the diagnosis, an error of memory easily explained considering the literally dozens of
physician visits plaintiff had over the years for her neck and shoulder pain. It was not
until several years after the 2003 MRI that plaintiff was formally diagnosed with
Though the record does indicate that on that date, February 26, 2007,, Dr. Bunker
performed a fluoroscopically guided cervical epidural steroid injection at C7-T1 as treatment for
cervical degenerative disc disease and spondylosis with radicular symptoms (R. 199-203, 485,
cervical degenerative disc disease with radicular symptoms, as evidenced by Dr.
Bunker’s August 2, 2007, letter in which he stated “[s]he has been diagnosed with
Cervical Degenerative Disc Disease with radicular symptoms” (R. at 465, 625). This
diagnosis simply happened at a later date than plaintiff remembered in her statement
to Dr. Dewees.
The final example of plaintiff’s “inconsistent statements” observed by the ALJ
is that she told “Dr. Neville” that she was hypertensive and had mitral valve prolapse,
“conditions which show little, if any, treatment in her medical records” (R. 26). Even
if this is true, it is irrelevant; plaintiff does not reference either of these conditions in
her application for benefits, and does not cite either condition as a cause of her chronic
pain or fibromyalgia.
The ALJ also discounts both plaintiff’s subjective assessment of her mental
health and the assessments of the medical professionals who examined her. The ALJ
. . . while I do not doubt that [plaintiff] experiences . . .
feelings [of depression or anxiety] frequently, perhaps even
daily, I do not find them to be debilitating to the extent
alleged. Her condition appears to benefit from treatment,
and despite her assertions of lacking financial resources, I
believe that a more diligent attempt to obtain treatment for
her impairments could, and should, have been made. This is
particularly true in regard to prescription medications, many
of which are available from multiple providers for $4 or
less. Accordingly, I give these allegations only some
R. 26. In other words, though plaintiff has been in treatment for mental illness and
taking anti-depressants since at least 1993 (see R. at 589), has no health insurance (see
R. at 651), no income, and gets food stamps and financial assistance from family
members (see R. at 591), because the ALJ thinks plaintiff could have tried harder to
find cheap medicine or another doctor, he does not believe her description of her
mental problems. He cites no objective medical evidence for his conclusion; indeed,
he plainly states it is only his “belie[f].”
The ALJ’s condescending “belief” is especially egregious in light of his nearly
total failure, as required by SSR 96-7p, to “consider[,] in addition to the objective
medical evidence when assessing the credibility of an individual’s statements: . . . [t]he
type, dosage, effectiveness, and side effects of any medication the individual takes or
has taken to alleviate pain or other symptoms.” The ALJ stated indirectly that he did
so, insofar as he conducted “careful consideration of the entire record” (R. 25), but his
review was limited to his observations that plaintiff could have obtained medication
for $4 if she had wished (a statement totally unsupported by any objective evidence in
the record) and that Valium had been added to her medications in 2005 when she was
in the middle of a custody battle (R. 19), at least two years prior to plaintiff’s alleged
onset of disability. The ALJ neglects to mention a single additional medication listed
in the record, despite plaintiff’s consistent and justifiable use of narcotic medications
over many years in treatment for her chronic pain. Such review would have been
important to the consideration of the proper weight to be accorded the opinion of
plaintiff’s treating physician, plaintiff’s RFC, and the ultimate issue of disability.
If this were not enough, the ALJ also discounts the objective assessments of
plaintiff’s mental health professionals. For example, though the ALJ observed that the
psychiatric review technique prepared on November 5, 2007, finds “moderate”
restrictions in each of the first three functional areas, the ALJ expressly discounted this
finding because “[w]hile this may well have been an appropriate finding at that point
in time, [plaintiff experienced] a substantial number of situational depressors during
a relatively short span in 2005 to 2007, and it is not unreasonable to conclude that her
mental state has improved more recently” (R. 23). Likewise, for what he concedes are
“essentially the same reasons,” the ALJ determined that in social functioning, plaintiff
has “mild difficulties,” a determination that he reaches despite the fact that the
psychiatric review technique found “moderate” limitations in this area (R. 23). In other
words, the ALJ explicitly concedes that his determination is based on nothing more
than his subjective opinion that plaintiff might conceivably have become less depressed
in the time since the psychiatric review technique was prepared. This is the only way
to explain his conclusion that “the identifiable stressors affecting [plaintiff] have
declined since 2007,” such that “the ‘mild’ restriction is appropriate” (R. 24) because
the entirety of the objective medical evidence controverts the ALJ’s decision in this
This case presents a particularly egregious example of an ALJ disregarding the
weight of objective medical evidence in favor of his own subjective opinion about how
a truly disabled plaintiff “should” present. An ALJ may only reject the opinion of a
physician when the evidence supports a contrary conclusion. Bloodsworth v. Heckler,
703 F.2d 1233, 1240 (11th Cir. 1983). The ALJ is required, however, to state with
particularity the weight he gives to different medical opinions and the reasons why.
Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987).
Absent “good cause,” an ALJ is to give the medical opinions of treating
physicians “substantial or considerable weight.” Lewis, 125 F.2d at 1440;
see also 20 C.F.R. §§ 404.1527(d)(1)-(2). Good cause exists “when the:
(1) treating physician’s opinion was not bolstered by evidence; (2)
evidence supported a contrary finding; or (3) treating physician’s opinion
was conclusory or inconsistent with the doctor’s own medical records.”
Phillips, 357 F.2d at 1241. With good cause, an ALJ may disregard a
treating physician’s opinion, but he “must clearly articulate [the] reasons”
for doing so. Id. at 1240-41.
Winschel v. Comm’r of Soc. Security, 631 F.3d 1176, 1179 (11th Cir. 2011). In short,
“good cause” exists if the opinion is wholly conclusory, unsupported by the objective
medical evidence in the record, inconsistent within itself, or appears to be based
primarily on the patient’s subjective complaints. Edwards v. Sullivan, 937 F.2d 580,
583 (11th Cir. 1991); see also Crawford v. Comm’r of Soc. Security, 363 F.3d 1155,
1159-60 (11th Cir. 2004).
None of these factors is present here. The medical record is not wholly
conclusory or internally inconsistent; it is supported by nearly a decade of treatment
records, for plaintiff’s neck and shoulder pain, and by records dating to at least 1993
regarding plaintiff’s mood disorder. It is also not based entirely on plaintiff’s
subjective complaints; the sheer amount of medication and number of procedures
plaintiff has undergone in treatment for pain, as well as her history of missing
significant time at work since at least 2000 on account of pain (see R. at 343, 333),
support this. The ALJ does not have “good cause” for his blatant disregard of the
opinions of the physicians of record, which likely explains why he provides no
sufficient justification for his conclusions.
In light of these considerations, the court finds the record devoid of substantial
evidence to support the decision of the ALJ. The Commissioner’s “failure to apply the
correct law or to provide the reviewing court with sufficient reasoning for determining
that the proper legal analysis has been conducted mandates reversal.” Cornelius v.
Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991). Before the court in this case are
multiple medical opinions concerning the nature, origins, and severity of plaintiff’s
disability due to chronic pain, from which the record demonstrates she has suffered for
decades. By inferring that plaintiff was able to work from his selective review of the
evidence, the ALJ substituted his opinion for that of all of the medical reports in the
file, which taken together establish that plaintiff is indeed disabled.
Based on the foregoing, the court is of the opinion that the decision by the ALJ
was not supported by substantial evidence, and therefore the decision of the
Commissioner must be REVERSED and this case REMANDED for the calculation
of benefits to which plaintiff is entitled up to February 24, 2010, when she was
awarded benefits pursuant to her subsequent application. The court shall do so by
DONE and ORDERED the 22nd day of May 2012.
INGE PRYTZ JOHNSON
U.S. DISTRICT JUDGE
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