Parker v. Social Security Administration
MEMORANDUM OPINION AND ORDER denying Plaintiff's appeal and directing the clerk to close the case. Signed by Magistrate Judge Beth Deere on 9/15/09. (hph)
IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS E A S T E R N DIVISION D A V I D PARKER v. CASE NO. 2:08CV00119 BD PLAINTIFF
M I C H A E L J. ASTRUE, C o m m is s io n e r , Social Security Administration M E M O R A N D U M OPINION AND ORDER
P la in tiff David Parker has appealed the final decision of the Commissioner of the S o c ia l Security Administration (the "Commissioner") denying his claim for disability in s u ra n c e benefits under Title II and Supplemental Security Income ("SSI") benefits u n d e r Title XVI of the Social Security Act1 (the "Act"). For the reasons that follow, the d e c is io n of the Administrative Law Judge ("ALJ")2 is affirmed. I. P r o c e d u r a l History: O n January 11, 2005, Plaintiff filed an application for Title II disability insurance b e n e fits and Title XVI supplemental security income, alleging that he became disabled on J u n e 1, 2001 as a result of a head injury, migraine headaches, and blurred vision. (Tr. 1 2 7 -1 3 1 ) Plaintiff's claim was denied initially and on reconsideration, after which P la in tiff filed a request for a hearing. (Tr. 19, 43-48)
42 U.S.C. § 1381, et seq. The Honorable Don Curdie, Administrative Law Judge. 1
On August 9, 2007, the ALJ held a hearing, which Plaintiff attended with his nona tto rn e y representative, Kathy Grady. (Tr. 19, 325-343) The ALJ received testimony fro m Plaintiff and David O'Neal, a Vocational Expert ("VE"). (Tr. 325-343) On S e p te m b e r 26, 2007, the ALJ denied Plaintiff benefits. (Tr. 19-31) Plaintiff sought re v ie w from the Appeals Council, but was denied review on April 4, 2008. (Tr. 4-6) On J u n e 19, 2008, Plaintiff filed the current Complaint for Review of Decision (Docket Entry # 1 ). II. B ackground: A t the time of the hearing, Plaintiff was a 33-year-old male. (Tr. 327) He had c o m p le te d high school but had no additional vocational or other training.3 (Tr. 328) P la in tiff had held a variety of jobs, including working as a forklift driver in 1994. (Tr. 330) O n January 8, 2004, Plaintiff was admitted to Health Resources of Arkansas for tre a tm e n t of paranoia and facial pain from a prior facial injury. (Tr. 181-189) Plaintiff s u ffe re d from anxiety, and stated that he felt that "everybody [was] out to hurt [him]." (Tr. 183) It appears an Advanced Practice Nurse ("APN") diagnosed Plaintiff with major d e p re s s iv e disorder ("MDD") with paranoia, chronic post-traumatic stress disorder (" P T S D " ), and cannabis dependence. (Tr. 188-189) It was noted that Plaintiff was a s e x u a l and physical abuse victim. (Tr. 188)
During a mental status evaluation, Plaintiff reported vocational training in aircraft m e c h a n ic s. (Tr. 195) 2
Later that month, Plaintiff was evaluated by the White River Rural Health Augusta M e d ic a l Clinic. (Tr. 246) The physician noted that Plaintiff complained of constant h e a d a c h e s , and that his stomach was bothering him. (Tr. 246) The Radiology Report s ta te d that Plaintiff had a history of trauma from the previous year, and suffered from h e a d a c h e s . (Tr. 247) A computed tomography ("CT") scan of Plaintiff's brain, however, re tu rn e d negative.4 O n February 4, 2004, Plaintiff was again evaluated by the White River Rural H e a lth Augusta Medical Clinic. (Tr. 245) This time, the physician opined that Plaintiff's " h e a d a c h e [did] not sound like migraine, more tension type." (Tr. 245) Throughout March of 2004, Plaintiff received assistance from an intervention s p e c ia lis t for a variety of legal and personal issues that had arisen in his life. (Tr. 1611 7 7 ) On March 9, 2004, an APN 5 listed Plaintiff's diagnoses as PTSD, MDD, mood d is o rd e r, post-concussion syndrome, cannabis dependence, facial and neck pain, gastric u lc e rs, and acid reflux. (Tr. 177) Plaintiff was prescribed Paxil and Trazodone. At the tim e , Plaintiff smoked three marijuana cigars per day. The APN commented that Plaintiff w a s applying for disability. (Tr. 177)
Specifically, the Radiology Report lists the findings as follows: "Examination re v e a ls no mass, mass effect, or intracranial hemorrhage. No abnormal enhancement is s e e n . The ventricular system is not distorted or dilated. No abnormal extra-axial fluid c o lle c tio n is seen." (Tr. 247)
The name of the APN is illegible. 3
On March 30, 2004, Dr. P. Scott Ballinger, M.D., gave a detailed explanation of P la in tiff's physical state at that time. (Tr. 160) Dr. Ballinger stated that: " [P la in tiff's ] review of systems was essentially normal. [Plaintiff's] physical e x a m in a tio n revealed minimal, if any, facial asymmetry. [Plaintiff] appeared to have good occlusion with a normal bite. [Plaintiff] stated that he had pain w h e n he squinted his eyes. [Plaintiff's] pain seems to be atypical." (Tr. 160) In June and July of 2004, Plaintiff again visited the Health Resources of Arkansas a n d received counseling services. (Tr. 165-168) Plaintiff's intervention specialist listed P la in tiff's diagnoses as PTSD chronic, MDD with paranoia, and depression. (Tr. 165168) In November, 2004, a physician reviewed Plaintiff's medical records and found e v id e n c e of MDD with psychotic features. (Tr. 161) Plaintiff had a Global Assessment o f Functioning ("GAF") score of 55.6 (Tr. 161) The physician noted that the evaluation w a s not based on a direct examination of Plaintiff. (Tr. 161) On March 11, 2005, a physician reported that Plaintiff responded well to treatment w ith Lortab for his frontal and bilateral maxillae headache. (Tr. 191) Later that month, P la in tiff sought treatment for blurry vision and light sensitive eyes. (Tr. 192) The e x a m in a tio n revealed that Plaintiff had no unusual problems with his eyes, and that P la in tiff's farsightedness was correctable by using eyeglasses. (Tr. 192)
The Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV), p u b lish e d by the American Psychiatric Association, states that a GAF of 51 to 60 in d ic a te s moderate symptoms or moderate difficulty in social, occupational, or school fu n c tio n in g . (DSM-IV 32). 4
A May 4, 2005, Plaintiff underwent a mental status examination, performed by Dr. K e n n e th Hobby, a licenced psychologist. (Tr. 193-203) Dr. Hobby noted that Plaintiff w a s well-groomed, had no physical abnormalities, and looked very strong and fit. (Tr. 1 9 3 ) Dr. Hobby also noted that Plaintiff was friendly and cooperative, and had no u n u s u a l behavior. (Tr. 193-194) Plaintiff reported no inpatient treatment for emotional o r psychiatric problems. (Tr. 194) He attended three sessions of outpatient therapy, and re p o rte d previous therapy a year prior to this evaluation. (Tr. 194) Plaintiff was not ta k in g any medications at the time, though he had taken Paxil and sleeping pills a year p rio r. (Tr. 194) According to Dr. Hobby's report, "[n]o indications of pain were displayed [by P la in tiff]." (Tr. 194) Plaintiff exercised regularly and was capable of self-care, personal h y g ie n e , and dressing. (Tr. 200) He could drive alone for up to seventy miles from h o m e , despite poor night vision. (Tr. 200-201) Plaintiff was able to cook, follow an a d e q u a te nutritional plan, shop for groceries and clothes, use a checkbook and pay bills, a n d could do almost any household chore on a daily basis. (Tr. 200-201) Accordingly, D r. Hobby determined that Plaintiff was "able to take care of himself on a daily basis." (Tr. 200) D u rin g the mental status evaluation, Plaintiff described "a vision [of himself] b e in g mangled as if he jumped out of the car" when detailing his complaints and s y m p to m s to Dr. Hobby. (Tr. 194) Plaintiff complained that exposure to chemicals d u rin g previous employment had made his face break out and his bones hurt. Plaintiff 5
stated that he had to smoke a lot of marijuana because of this. (Tr. 194, 196) Dr. Hobby " [d id n 't] believe much of what [Plaintiff told] him," and found "[Plaintiff's] report of `v isio n s ' not believable." (Tr. 202) Accordingly, Dr. Hobby diagnosed Plaintiff with m a lin g e rin g cognitive and psychosis symptoms, cannabis dependence, and antisocial and d e p e n d e n t personality traits. (Tr. 199) Dr. Hobby determined that Plaintiff's IQ was a b o v e 80, in the normal range, and that Plaintiff's GAF score was 60. (Tr. 199-201) Dr. H o b b y noted that Plaintiff did not suffer from any unusual social behaviors, and that there w a s no evidence of unusual passivity, dependence, aggression, impulsiveness, or w ith d ra w a l. (Tr. 200) Finally, Dr. Hobby noted: [P la in tiff] has the ability to understand, carry out, and remember in s tru c tio n s . There appears to be a good capacity to respond to supervision, a n d the most likely area of difficulty is his motivation. There appears to be th e capacity to respond appropriately to coworkers, and the most likely area o f difficulty here is his motivation. [Plaintiff] would probably respond a d e q u a te ly to work pressure in a work setting. (Tr. 202) A subsequent evaluation on May 9, 2005, revealed that Plaintiff suffered from only mild to moderate limitations. (Tr. 214, 218-219) O n May 19, 2005, Plaintiff returned to the White River Rural Health Augusta M e d ic a l Clinic complaining of nasal and chest congestion and cough. (Tr. 228) After he re fu s e d Ultram to treat the congestion and cough and demanded other medications, P la in tiff's physician refused to continue treating him. (Tr. 228) Plaintiff continued to v is it White River Rural Health Augusta Medical Clinic to receive follow-up care and m e d ic a tio n throughout 2005 and 2006. (Tr. 229-252) Plaintiff also was treated by Dr.
James M. Merritt, M.D., who put Plaintiff on a pain management plan in February, 2006. (Tr. 278-283) A month later, Dr. Merritt noted that Plaintiff was "doing well." (Tr. 276) After another month passed, Plaintiff again visited Dr. Merritt, who reported that Plaintiff w a s still "doing well" on the pain management plan. (Tr. 273) On August 16, 2006, Plaintiff visited Dr. Merritt and complained of pain on the le ft side of his face after chewing gum. (Tr. 267) Although Plaintiff complained of re flu x , Dr. Merritt noted that Plaintiff was in the habit of eating late, and using caffeine a n d eating snacks. (Tr. 267) On February 14, 2007, Dr. Merritt again noted that Plaintiff w a s "doing well." (Tr. 261) On November 28, 2006, Plaintiff visited White River Rural Health Augusta M e d ic a l Clinic, where physicians described Plaintiff as "generally healthy." (Tr. 250) On March 28, 2007, Dr. Larry R. Killough saw Plaintiff regarding a throat problem, and n o te d : "[one] week sore throat and [slight] cough, want[ed] narcotic med[ications] as a lw a y s !" (Tr. 248) After Dr. Killough offered Plaintiff Bidex DM to treat the cough, P la in tiff became upset, and stated, "I know what my body needs." (Tr. 248) Dr. K illo u g h told Plaintiff that if he insisted on narcotic cough medication, he would have to fin d another physician. (Tr. 248) Plaintiff also submitted records from July 12, 2005, to December 3, 2007, to the A p p e a ls Council. (Tr. 286-324) During this time, a Licensed Professional Counselor and a Licensed Clinical Social Worker assessed Plaintiff with a variety of GAF scores, from a
low assessment of 387 (Tr. 295) to numerous assessments of 50 and 55. (Tr. 301, 302, 3 0 3 , 306, 308, 311-316, 319, 322-324) III. F in d in g s of the ALJ: T h e ALJ followed the mandatory fire-step framework set forth by the Social S e c u rity Administration and codified in 20 C.F.R. § 416.920. (Tr. 19-31) In doing so, th e ALJ found that: (1) Plaintiff had not engaged in substantial gainful activity since June 1 , 2001; (2) Plaintiff's history of facial fracture, PTSD with MDD, cannabis dependence w ith anti-social and dependent personality traits, gastroesophageal reflux disease, h e a d a c h e , and neck pain were all "severe" within the meaning of the Social Security R e g u la tio n s ; (3) Plaintiff did not have an impairment, or combination of impairments, th a t met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, S u b p a rt P, Appendix 1; (4) Plaintiff had past relevant work as a forklift driver, was u n a b le to perform that work, but retained the residual functional capacity ("RFC") to p e rfo rm a significant range of light work8 on a sustained basis, in a work setting where in te rp e rs o n a l contact is routine but superficial, the complexity of tasks is learned by
The Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV), p u b lish e d by the American Psychiatric Association, states that a GAF of 31 to 40 in d ic a te s some impairment in reality testing or communication or major impairment in s e v e ra l areas, such as work or school, family relations, judgment, thinking, or mood. (D S M -IV 32). "Light work" is defined as work involving "lifting no more than 20 pounds at a tim e with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 4 0 4 .1 5 6 7 ( b ) . 8
experience, with several variables requiring the use of individual judgment within limits, a n d where supervision required is little for routine tasks, but detailed for non-routine ta s k s ; and (5) a significant number of jobs existed in the economy which Plaintiff was c a p a b le of performing. (Tr. 19-31) P la in tiff's sole argument is that the Commissioner's decision is not supported by s u b s ta n tia l evidence because the ALJ did not obtain all of Plaintiff's mental health re c o rd s (Docket Entry # 7). Defendant responds that the Commissioner's decision should b e affirmed as supported by substantial evidence because the ALJ adequately developed th e record, and the result would have been the same regardless of whether the ALJ had c o n s id e re d the supplemental records (Docket Entry # 11). IV . L e g a l Analysis: A. S ta n d a r d of Review
In reviewing the ALJ's decision, this Court must determine whether there is s u b s ta n tia l evidence in the administrative record to support the decision. 42 U.S.C. § 405(g). This review function is limited, and the decision of the ALJ must be affirmed " if the record contains substantial evidence to support it." Edwards v. Barnhart, 314 F.3d 9 6 4 , 966 (8th Cir. 2003). "Substantial evidence is less than a preponderance but enough s o that a reasonable mind could find it adequate to support the decision." Id. Evidence th a t both supports and detracts from the ALJ's decision must be considered, but the d e c is io n cannot be reversed "merely because there exists substantial evidence supporting a different outcome." Id. "Rather, if, after reviewing the record, . . . it is possible to draw 9
two inconsistent positions from the evidence and one of those positions represents the [A L J's ] findings, we must affirm the decision of the [ALJ]." Young v. Apfel, 221 F.3d 1 0 6 5 , 1068 (8th Cir. 2000) (citations and quotations omitted). Thus, the Court's function o n review is to determine whether the Commissioner's decision is supported by s u b s ta n tia l evidence on the record as a whole and whether it is based on legal error. Long v . Chater, 108 F.3d 185, 187 (8th Cir. 1997); 42 U.S.C. § 405(g). B. T h e ALJ did not Err in Developing the Medical Record
A lth o u g h an ALJ "must fully and fairly develop the record so that a just d e te rm in a tio n of disability may be made," an ALJ "is not required to function as the c la im a n t's substitute counsel, but only to develop a reasonably complete record." Clark v . Shalala, 28 F.3d 828, 830 (8th Cir. 1994) (internal quotations and citations omitted). In developing a reasonably complete record, an ALJ is not required to obtain "additional m e d ic a l evidence so long as other evidence in the record provides sufficient basis for the A L J 's decision." Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995) (quoting Naber v . Shalala, 22 F.3d 186, 189 (8th Cir. 1994) (internal quotations omitted)). Accordingly, a n ALJ's decision will not be reversed unless the failure to develop the record is unfair or p re ju d ic ia l. Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995) (citing Onstad v. S h a la la , 999 F.2d 1232, 1234 (8th Cir. 1993)). Plaintiff argues that the ALJ's statement, that "there is no evidence of continued m e n ta l health treatment after November 2004" (Tr. 27), shows that the ALJ did not c o n s u lt all available mental health records (Docket Entry # 7, p. 5). Even if this is true, it 10
is irrelevant, "so long as other evidence in the record provides sufficient basis for the A L J 's decision." Anderson, 51 F.3d at 779. The ALJ clearly did not base his decision on a perceived failure to seek medical treatment. Instead, the ALJ reviewed all of the mental health records provided by Plaintiff. The ALJ sent Plaintiff to a Mental Status and E v a lu a tio n of Adaptive Functioning Consultative Examination (Tr. 193-203), and had D is a b ility Determination physicians complete a Psychiatric Review Technique (Tr. 2042 1 7 ) and a Mental Residual Functional Capacity Assessment (Tr. 218-227) regarding the lim ita tio n s presented by Plaintiff's impairments. In denying Plaintiff's claim, the ALJ considered a variety of mental health records a n d psychologist opinions. (Tr. 26-29) In addition, the ALJ specifically asked Plaintiff if h is recent records were part of the file. (Tr. 333) Plaintiff's representative stated that s o m e were, and she gave the ALJ additional records from Dr. Killough, who was treating P la in tiff for mental problems and depression, the day of the hearing (Tr. 333-334) The A L J again asked about treatment and the following exchange occurred: [ A L J ]: N o w , does this depression and mental problems, d o they go up past `04? I mean, does the tre a tm e n t go past `04? Y e s , sir. Mr. Parker, when the - - the Judge just a s k e d you when was the last time you went for tre a tm e n t - J u s t last - - - to mental - - - week. 11
[ R e p r e s e n t a t i v e ]:
[ P l a i n t i f f ]: [ R e p r e s e n t a t i v e ]: [ P l a i n t i f f ]:
O k a y . And then was there a period when you s to p p e d ? Y e a h there was - - when I was going through m y divorce. My wife had me - - she had my h e a d and I don't know. She had my head in the c lo u d s and - -
[ P l a i n t i f f ]:
T h e re was no testimony regarding how long Plaintiff stopped going to treatment. The o n ly testimony was that there was some gap in treatment, that there were "some" records o f recent treatment in the file, and additional records from Dr. Killough were submitted at th e hearing. (Tr. 333-334) Although the ALJ did not have access to the supplemental mental health records, " [i]t is not unreasonable to require the claimant, who is in a better position to provide in fo rm a tio n about his own medical condition, to do so." Bowen v. Yuckert, 482 U.S. 137, 1 4 6 n.5 (1987). That is especially true in this case. The ALJ specifically asked Plaintiff a b o u t recent records and received a vague and potentially misleading answer. Were the re c e n t records the same records from Dr. Killough that were submitted at the hearing? Plaintiff only listed Dr. Merritt and Dr. Killough when asked who would have medical re c o rd s about Plaintiff's impairment since his last disability report. (Tr. 79-81, 85) Records from both doctors were submitted at the hearing and reviewed by the ALJ. (Tr. 2 4 -2 9 , 248-284) It was not error for the ALJ to rely on the information Plaintiff s u b m itte d to him. The ALJ's failure to seek out records that Plaintiff failed to identify a ls o does not constitute error.
Even if the ALJ erred in relying on the information and records provided by P la in tiff, it was neither unfair nor prejudicial, as substantial evidence supports the ALJ's d e te rm in a tio n . Shannon, 54 F.3d at 486. Absent unfairness or prejudice, remand is not a p p ro p ria te . Onstad, 999 F.2d at 1234. P la in tiff does not make any argument regarding fairness. It was not unfair for the A L J to rely on Plaintiff to provide, or identify, medical records or sources that supported h is claims. Regarding prejudice, Plaintiff states that the ALJ's decision might have been d iffe re n t if the additional mental health records had been considered (Docket Entry # 7). Plaintiff admits, however, that the Appeals Council considered the supplemental mental h e a lth records and still found no reason to review the ALJ's decision (Docket Entry # 7, p . 1, 3, 6). (Tr. 4-6) In addition, Plaintiff fails to describe how the decision "may have b e e n different" or what additional limitations were supported by the supplemental r e c o r d s .9 In the opinion, the ALJ gave substantial weight to the mental status evaluation c o n d u c te d on May 4, 2005, by Dr. Kenneth Hobby, a licensed psychologist. (Tr. 27-29) There is no evidence that the ALJ would have given greater weight, or any weight, to the
The ALJ ultimately found that: "[d]ue to psychologically based symptoms, in c lu d in g depression, personality disorder and/or organic brain syndrome with a history o f cannabis dependence, [Plaintiff] would require a work setting where interpersonal c o n ta c t is routine but superficial; the complexity of tasks is learned by experience, with s e v e ra l variables and requiring the use of individual judgment within some limits; s u p e rv is io n required is little for routine tasks, but detained for non-routine tasks." (Tr. 23) 13
supplemental mental records even if Plaintiff had provided them in a timely manner. The s u p p le m e n ta l records and the mental status evaluation reach very different conclusions. (Tr. 193-203, 286-324) The mental status evaluation provided a medical opinion that was s u p p o rte d by other evidence in the record and, at least in part, by psychological tests. (Tr. 1 9 3 -2 0 3 ) The supplemental records, however, do not qualify as "medical opinions" at a ll. (Tr. 286-324) Only statements from "accepted medical sources" qualify as "medical o p in io n ." 20 C.F.R. § 404.1527(a)(2); 20 C.F.R. § 416.927(a)(2). Licensed Professional C o u n s e lo rs and Licensed Clinical Social Workers are not "accepted medical sources." 20 C .F .R . § 404.1513(a); 20 C.F.R. § 416.913(a). Instead, they are "other sources," just as re la tiv e s and neighbors who provide evidence. 20 C.F.R. § 404.1527(d)(1)-(4); 20 C.F.R. § 416.927(d)(1)-(4). In addition, there is no reference in the supplemental records to tre a tm e n t from an accepted medical source. See Tindell v. Barnhart, 444 F.3d 1002, 1005 (8 th Cir. 2006) (holding that the opinions of a therapist who was not associated with an a c c e p ta b le medical source were not entitled to great weight). The supplemental medical records do not qualify as medical opinions, but they are s till evidence for an ALJ to consider. When determining the weight given to other m e d ic a l evidence, the ALJ has more discretion and is allowed to consider any in c o n s is te n c ie s in the record. Lacroix v. Barnhart, 465 F.3d 881, 886 (8th Cir. 2006) (c itin g Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005)). In the present case, the
supplemental records contain no explanation of how the GAF scores were reached. The s u p p le m e n ta l records were not supported by objective psychological tests. The wide range in GAF findings over short periods of time, without explanation fo r the differences, makes these records inherently inconsistent. For instance, Plaintiff's G A F score went from 45 on August 29, 2005, to 38 on September 1, 2005. (Tr. 299-300, 3 0 1 ) The only listed explanation for this change is that Plaintiff had been "threatened by a local thug." (Tr. 301) Plaintiff's GAF score went from a 55 to a 50 from July 27, 2007, to August 2, 2007. (Tr. 314, 312) The August 2, 2007, report states that there was no c h a n g e in Plaintiff's condition from the last visit. (Tr. 312) Interestingly, Plaintiff's GAF s c o re went from a 55 to a 50 between 10:42 a.m. and 2:00 p.m. of the same day, N o v e m b e r 30, 2006. (Tr. 306, 308) Even if the ALJ had erred by failing to seek out the supplemental records, Plaintiff h a s failed to show prejudice necessary for reversal. See Lacroix, 465 F.3d at 88 (finding n o error when the ALJ gave more weight to an examining physician report, than to other m e d ic a l source reports that were inconsistent and not supported by other evidence in the re c o rd or by objective psychological testing). Accordingly, the ALJ's determination that P la in tiff was not disabled is affirmed. V. C o n c lu s io n : T h e re is substantial evidence in the record to support the Commissioner's denial of b e n e fits to Plaintiff. Plaintiff undoubtedly suffers from pain deriving from his facial 15
injury and has some limitations from his illness. There is sufficient evidence, however, to s u p p o rt the ALJ's assessment that Plaintiff could perform a significant number of jobs in th e national economy. Accordingly, Plaintiff's appeal is DENIED. The clerk is directed to close the case. IT IS SO ORDERED this 15th day of September, 2009.
____________________________________ UNITED STATES MAGISTRATE JUDGE
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