Reece v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on June 18, 2014. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 13-2165
CAROLYN W. COLVIN1, Acting Commissioner of
Social Security Administration
Plaintiff brings this action under 42 U.S.C. § 405(g), seeking judicial review of a decision
of the Commissioner of Social Security Administration (Commissioner) denying her claim for a
period of disability and disability insurance benefits (DIB) under Title II of the Social Security Act
(Act), 42 U.S.C. § 423(d)(1)(A). In this judicial review, the court must determine whether there is
substantial evidence in the administrative record to support the Commissioner’s decision. See 42
U.S.C. § 405(g).
I. Procedural Background:
The plaintiff filed her application for DIB on November 19, 2010 alleging an onset date of
March 4, 1992, due to plaintiff’s fibromyalgia, diabetes, bone tumors, torn rotator cuff, and mental
problems. (T. 58, 108). Plaintiff’s application was denied initially and on reconsideration. Plaintiff
then requested an administrative hearing, which was held on October 19, 2011. Plaintiff was present
and represented by counsel.
Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner Michael
J. Astrue as the defendant in this suit.
At the time of the administrative hearing, plaintiff was 60 years of age, possessed a high
school education, and was able to communicate in English. (T. 20). The plaintiff has no past
relevant work (“PRW”) experience. (T. 20).
On January 6, 2012, the Administrative Law Judge (“ALJ”) concluded that, although severe,
plaintiff’s back disorder does not meet or equal any Appendix 1 listing. (T. 18). The ALJ found that
plaintiff maintained the residual functional capacity (“RFC”) to perform the full range of medium
work. (T. 18). With the assistance of a vocational expert through a series of interrogatories, the ALJ
determined plaintiff could perform other work as a dietary aide, hospital food service worker, and
hand packager. (T. 21).
II. Applicable Law:
The court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence in the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough so that a reasonable mind would find
it adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining
the record to find substantial evidence in support of the ALJ’s decision; we also consider evidence
in the record that fairly detracts from that decision.” Id. As long as there is substantial evidence in
the record to support the Commissioner’s decision, the court may not reverse the decision simply
because substantial evidence exists in the record to support a contrary outcome, or because the court
would have decided the case differently. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001).
If the court finds it possible “to draw two inconsistent positions from the evidence, and one of those
positions represents the Secretary’s findings, the court must affirm the decision of the Secretary.”
Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
It is well-established that a claimant for Social Security disability benefits has the burden of
proving his disability by establishing a physical or mental disability that has lasted at least one year
and that prevents him from engaging in any substantial gainful activity. Pearsall v. Massanari, 274
F.3d 1211, 1217 (8th Cir. 2001); see 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). The Act defines
“physical or mental impairment” as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § § 423(d)(3), 1382(3)(c). A plaintiff must show that his
disability, not simply his impairment, has lasted for at least twelve consecutive months. Titus v.
Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing his claim; (2) whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the impairment(s) meet or equal an
impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national economy
given his age, education, and experience. See 20 C.F.R. § § 404.1520(a)-(f)(2003). Only if the final
stage is reached does the fact finder consider the plaintiff’s age, education, and work experience in
light of his or her residual functional capacity. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42
(8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
The court has reviewed the Briefs filed by the Parties, the Transcript of the proceedings
before the Commission, including a review of the hearing before the ALJ, the medical records, and
relevant administrative records and finds the ALJ’s decision is supported by substantial evidence.
A. Period of Review
In her application, the plaintiff initially alleged an onset date of March 4, 1992. (T. 108).
She later requested in a pre-hearing memorandum to amend her alleged onset date to October 1,
2010, which was her date first insured. (T. 252). At the hearing, the plaintiff’s attorney requested
an amended alleged onset date of October 1, 2010, and the ALJ noted the request. (T. 32-33).
Subsequently, the ALJ held in the decision that March 4, 1992 was the alleged onset date, and that
the plaintiff had not been under a disability from that date through the date of the decision. (T. 16,
21). The plaintiff expressed concern that the ALJ withdrew his acknowledgment of the plaintiff’s
amendment. See Plaintiff’s Brief (Pl.’s Br.) at 5. The court finds that the use of the alleged onset
date of March 4, 1992 in the decision was not a reversible error because the original alleged onset
date was prior to the amended alleged onset date. The ALJ simply reviewed more medical records,
including the evidence from October 1, 2010 and beyond, than what was necessary in making his
decision. The hearing records show that the ALJ was aware of the request to amend the alleged onset
date (T. 32-33). Nevertheless, the ALJ ultimately found that the residual functional capacity
assessment was supported by the long-term review of the medical evidence of record. (T. 20). See
Buckner v. Astrue, 646 F.3d 549, 559-560 (8th Cir. 2011) (an arguable deficiency in opinion-writing
technique does not require a decision to be set aside when the deficiency has no bearing on the
The plaintiff alleges that the ALJ applied the wrong legal standard in requiring a
“significantly limiting” standard to his evaluation of the plaintiff’s impairments. See Pl.’s Br. at 6.
A “severe impairment is defined as one which ‘significantly limits [the claimant’s] physical or
mental ability to do basic work activities.’” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006)
(quoting 20 C.F.R. § 404.1520(c)). The impairment must result from anatomical, physiological, or
psychological abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques. A physical or mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only by [the claimant's] statement of
symptoms. See 20 C.F.R. §§ 404.1508, 404.1527. Based on the established case law, the court finds
that the ALJ applied the appropriate legal standard for determining the plaintiff’s severe
1. Physical Impairments
The plaintiff alleges additional severe physical impairments besides the one the ALJ found
such as neuropathy (hands/fingers), elbow, and post-operative shoulder tendinitis and adhesions.
See Pl.’s Br. at 8. Alleged impairments may not be considered severe when they are stabilized by
treatment and otherwise are generally unsupported by the medical record. Johnston v. Apfel, 210
F.3d 870, 875 (8th Cir. 2000); see also Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000)
(plaintiff bears the burden to establish severe impairments at step-two of the sequential evaluation).
In regards to her neuropathy and left elbow problems, she was treated conservatively with Neurontin
by her primary care physician. (T. 309). The plaintiff was later referred to a neurologist,
Dr. Knubley, who diagnosed her with possible early peripheral neuropathy. (T. 568). However,
Dr. Knubley wrote that she did not appear to have any major physical difficulties other than pain
management. (T. 568). Dr. Knubley advised that it was reasonable to keep her on Neurontin and
titrate upon the dose. (T. 290). A nerve conduction velocity study (“NCV”) of the left upper
extremity did not fall into the abnormal range even though there was a drop in conduction across
the elbow. (T. 294). A second NCV showed a drop in ulnar conduction that was dramatic, but again
it did not fall out of normal values. (T. 573). The plaintiff returned to Dr. Knubley approximately
a year after her initial visit, and only conservative treatment such as elbow splints, physical therapy
at home, and Neurontin and Aleve were recommended. (T. 584). As a result of the normal NCV
results and conservative treatment, the court agrees with the ALJ’s finding that the plaintiff’s
neuropathy and left elbow problems were non-severe impairments. (T. 16-20).
In regards to her post-operative shoulder tendinitis and adhesions, an X-ray of her right
scapula was negative, and she received a Lidocaine and Decadron injection with good relief. (T.
441, 453). Dr. Williams ordered a left shoulder X-ray that showed density that appeared postsurgical. (T. 360, 362). The plaintiff was referred to the UAMS Surgical Oncology Clinic where
she was last seen 11 years ago for benign tumors. (T. 421). Dr. Nicholas, an orthopedic oncologist,
wrote that he suspected she had recurrent rotator cuff tendinitis. (T. 422). Dr. Nicholas saw no
evidence of recurrent cartilage neoplasm, additional calcifications, or neurologic abnormality in the
left upper extremity. (T. 421, 422). The plaintiff was diagnosed with stable, radiographic
abnormalities due to her previous surgery and was only prescribed therapy. (T. 422). The plaintiff
received occupational therapy for approximately a month and a half. She later reported to her
therapist that her pain was still low and was very thrilled. (T. 474). She even returned to work and
reported that the pain was the same while working and not worse. (T. 475). The plaintiff was
discharged from therapy with a report that she made progress towards long-term goals and her
functional goal, a 4/10 was at worst now, and she only reported mild to moderate difficulty with
activities of daily living and work tasks. (T. 466). Later, Dr. McAuley continued treatment by
administering a Lidocaine and Decadron injection with good relief. (T. 424). Based on records
showing good results from therapy and injections with no referral for surgery, the court concurs with
the ALJ’s finding of non-severe. (T. 16-20).
The court agrees with the ALJ’s finding that the plaintiff’s only severe impairment was her
back disorder. (T. 16). Objective testing such as X-rays and an MRI study showed moderate
degenerative disc disease at the C5-6 levels and mild degenerative disc disease at the C4-5 and C6-7
levels. (T. 362, 454, 571). Nevertheless, the plaintiff only received treatment from her primary care
physician, and she was not referred to a specialist or advised to have surgery. (T. 272-590). This
evidence shows that the plaintiff was able to manage her symptoms over the years with minimal
treatment, and she was still able to perform various activities of daily living despite her back
disorder. As a result, the court agrees with the ALJ’s finding that her severe back impairment did
not prevent her from working in some capacity. (T. 16-18).
2. Mental Impairments
The plaintiff alleges severe mental impairments such as depression, anxiety, and personality
disorders. See Pl.’s Br. at 11. The ALJ found that her medically determinable mental impairments
do not cause more than a minimal limitation in her ability to perform basic mental work activities
and are therefore, non-severe. (T. 17). In regards to her mental impairments, the plaintiff received
regular treatment from Dr. McAuley and Dr. Pennington. She was consistently diagnosed with
mood disorder NOS, dysthymia, depression, and personality disorder with dependent traits. (T. 278,
281-282, 388-391, 396, 415, 489, 566).
Although the plaintiff’s Global Assessment of Functioning (“GAF”) scores remained low
and reflected primarily serious symptoms, her treatment remained conservative consisting of only
counseling sessions and prescribed medication like Zoloft. (T. 272, 275, 278-282, 284-286, 365,
389-391, 396, 399, 410, 415416, 437, 566). A particular GAF score does not warrant a finding of
disability because it only applies to the date in the medical report in which it is noted. Comments
to new rules revising criteria for evaluating mental disorders effective September 20, 2000, state that
GAF scores do not have a direct correlation to the severity requirements in the mental disorders
listings. 65 Fed. Reg. 50746, 60764-65 (August 21, 2000). Instead, disability determinations should
be made on a case by case basis, considering all the evidence, not just a GAF result. Lozada v.
Barnhart, 331 F.Sup. 2d 325, (E.D. Penn. 2004); Purvis v. Commissioner, 57 F.Supp.2d 1088, 1093
(D. Oregon 1999). As this court has explained, “[w]hile the GAF system provides insight into a
claimant’s overall level of functioning, it is by no means dispositive on the issue of disability and
must be considered in conjunction with other medical evidence.” Stewart ex rel. J.L.M. v. Astrue,
2:11-CV-02203-JRM, 2013 WL 252749 (W.D. Ark. Jan. 23, 2013). It was noted in the records that
compliance with treatment has shown improvements, and Dr. Pennington even wrote that she has
had a very positive response to Zoloft. (T. 415, 566). The evidence also shows that her treatment
remained consistent with nothing further required such as inpatient psychiatric treatment, and she
has been able to work a part-time job in a retail store since 2008. (T. 274-286, 363-367, 387-416,
The ALJ found that Dr. Pennington’s assessment of severe mental limitations was not
supported by his own clinic notes or by the plaintiff’s testimony regarding her activities of daily
living, including caring for her teenage granddaughter and working at least part-time. (T. 17, 501502). A treating physician's medical opinion is given controlling weight if that opinion is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2).
These opinions are not automatically controlling, however, because the record must be evaluated
as a whole. Reed I’Iv. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005). We will uphold an ALJ's
decision to discount or even disregard the opinion of a treating physician where “other medical
assessments are supported by better or more thorough medical evidence, or where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions.” Id. at
920-21 (internal quotations omitted). The court agrees with the ALJ’s finding that her mental
impairments are non-severe because his treatment notes are inconsistent with the opinion he
provided. Dr. Pennington continued the same treatment over several years without mentioning any
limitations or problems. (T. 389-391, 396, 566). In addition, she continued to be highly functional
and was able to manage her symptoms with medication. (T. 202-208). To the extent that the
plaintiff contends she had other severe impairments besides the ones the ALJ found in his decision,
the court finds the contention to be without merit.
3. Combined Effect of Impairments
The plaintiff alleges that the decision was devoid of any indication that the ALJ considered
the combined effect of all the plaintiff’s impairments, severe and non-severe. See Pl.’s Br. at 7. A
review of the record reveals that the plaintiff's allegations are unfounded. See, e.g., Hajek v.
Shalala, 30 F.3d 89, 92 (8th Cir. 1994) (holding that ALJ properly considered combined effects of
claimant's impairments where ALJ found that the claimant had a history of coronary artery disease,
hernia repair, and chronic obstructive pulmonary disease, but that the claimant did not have an
impairment or combination of impairments that rendered him disabled). The ALJ expressly found
that she “does not have an impairment or combination of impairments that meets or medically equals
the severity of one of the listed impairments.” (T. 18). “After careful consideration of the entire
record” her residual functional capacity was determined. (T. 18). “None of her impairments and
resulting limitations of function, whether considered singly or in combination, limit her to such a
degree that she would be unable to perform the jobs as set out.” (T. 20). Based on the ALJ's
synopsis of the plaintiff’s medical records and discussion of each of her alleged impairments, the
court concludes that the ALJ properly considered the combined effects of plaintiff's impairments.
C. Residual Functional Capacity
The ALJ determined that the plaintiff had the RFC to perform the full range of medium
work.2 (T. 18). RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is defined as the individual’s maximum remaining ability to do sustained work
activity in an ordinary work setting “on a regular and continuing basis.” 20 C.F.R. §§ 404.1545 and
416.945; Social Security Ruling (SSR) 96-8p (1996). It is assessed using all relevant evidence in
the record. Id. This includes medical records, observations of treating physicians and others, and
the claimant’s own descriptions of her limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th
Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). Limitations resulting from
symptoms such as pain are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3). The
United States Court of Appeals for the Eighth Circuit has held that a “claimant’s residual functional
capacity is a medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Therefore, an
ALJ’s determination concerning a claimant’s RFC must be supported by medical evidence that
addresses the claimant’s ability to function in the workplace.” Lewis v. Barnhart, 353 F.3d 642, 646
Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and
light work. 20 CFR § 404.1567(c) and 416.967(c).
(8th Cir. 2003).
Nevertheless, in evaluating a claimant's RFC, an ALJ is not limited to considering medical
evidence exclusively. Cox v. Astrue, 495 F.3d 614, 619 citing Lauer, 245 F.3d at 704; Dykes v.
Apfel, 223 F.3d 865, 866 (8th Cir.2000) (per curiam) (“To the extent [claimant] is arguing that
residual functional capacity may be proved only by medical evidence, we disagree.”). Even though
the RFC assessment draws from medical sources for support, it is ultimately an administrative
determination reserved to the Commissioner. Cox, 495 F.3d at 620; 20 C.F.R. §§ 416.927(e)(2),
The plaintiff alleges that the ALJ erroneously failed to properly evaluate the plaintiff’s
subjective complaints and apply the Polaski factors. See Pl.’s Br. at 13; Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir.1984); 20 C.F.R. § 404.1529(c)(3) (2003). In determining a claimant's RFC,
“‘the ALJ must first evaluate the claimant's credibility.’” Wagner v. Astrue, 499 F.3d 842, 851 (8th
Cir.2007) (quoting Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001)). Assessing and
resolving credibility issues is a matter that is properly within the purview of the ALJ. Johnson v.
Chater, 87 F.3d 1015, 1018 (8th Cir. 1996) (court will not substitute its own credibility opinion for
that of the ALJ). As the Eighth Circuit has observed, “Our touchstone is that [a claimant’s]
credibility is primarily a matter for the ALJ to decide.” Edwards v. Barnhart, 314 F.3d 964, 966
(8th Cir. 2003). The court should, “ defer to the ALJ's determinations regarding the credibility of
testimony, so long as they are supported by good reasons and substantial evidence.” Perks v. Astrue
687 F.3d 1086, 1091 (8th Cir. 2012).
The plaintiff alleges that the sparseness of the ALJ’s Polaski factors discussion was
troubling. See Pl.’s Br. at 13. The ALJ is not required to discuss each Polaski factor as long as the
analytical framework is recognized and considered.” Tucker v. Barnhart, 363 F.3d 781, 783 (8th
Cir. 2004). The court finds that the ALJ considered and discussed the Polaski factors in the
decision. For instance, the ALJ found discrediting evidence in regards to her alleged pain. The ALJ
found that although she reported neck and right arm pain in October 2007 and underwent an
injection for the arm pain, she did not return for medical treatment for any reason until February
2009. (T. 19). Between December 2009 and June 2010, the ALJ determined that she went another
six months without treatment for physical complaints. (T. 19). In addition, Dr. Knubley found that
she did not appear to have any major physical difficulties other than management of her pain. (T.
19-20). Another example of the Polaski analysis was when the ALJ examined her daily activities
acknowledging her ability to care for her teenage granddaughter, perform personal care and
household chores, and work a part-time job in retail on a long-term basis. (T. 17-18).
The plaintiff reported that she was working part-time in order to afford medical treatment.
See Pl.’s Br. at 14. Absent a showing of deterioration, working after the onset of an impairment is
some evidence of an ability to work. See Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005);
Gowell v. Apfel, 242 F.3d 793, 798 (8th Cir. 2001). The court finds that the ALJ properly considered
her part-time work during the claimed period of disability in the credibility analysis. The plaintiff
testified that she only gets Zoloft because that is all she can afford and goes without other
medication. (T. 41). The ALJ noted that she also stopped therapy without achieving her initial
goals. (T. 19). However, there is no evidence that she has ever been turned down for medical care
or that she has contacted one of the charitable organizations in the area in an effort to obtain medical
care. (T. 272-590). As such, her failure to comply with recommended treatment is not excused.
See Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992) (rejecting claim of financial hardship
where there was no evidence that claimant attempted to obtain low cost medical treatment or that
claimant had been denied care because of her poverty); Hutsell v. Sullivan, 892 F.2d 747, 750 n. 2
(8th Cir.1989) (noting that “lack of means to pay for medical services does not ipso facto preclude
the Secretary from considering the failure to seek medical attention in credibility determinations.”)
(internal quotations omitted). Because the ALJ’s credibility determination was supported by good
reasons and substantial evidence, we conclude that it is entitled to deference. See Cox v. Barnhart,
471 F.3d 902, 907 (8th Cir. 2006).
2. RFC Determination and Opinion Evidence
The plaintiff alleges that the ALJ relied on a residual functional assessment completed by
a non-treating medical consultant, indicating plaintiff’s ability to perform within the medium
exertional level. See Pl.’s Br. at 16. Dr. Crow, a DDS medical consultant, found that the medical
evidence records supported a medium residual functional capacity noting only one mention of
fibromyalgia in the file, a diagnosis of type II diabetes, and a benign tumor of the femur, but
physical examinations do not show a significant decrease in range of motion. (T. 359). Dr.
Norcross, another DDS medical consultant, found that the evidence supported a medium residual
functional capacity with limited overhead reaching occasionally with the left upper extremity. (T.
386). Dr. Norcross based the assessment on her degenerative disc disease of the cervical spine,
tumor of the left shoulder or pain, and diabetes with longitudinal neuropathy, and activities of daily
living. (T. 386). The ALJ gave their opinions some weight, acknowledging they do not deserve as
much weight as those of examining and treating physicians, but found that there existed a number
of other reasons to reach similar conclusions. (T. 20). The court finds in this instance that the ALJ
properly considered all of the evidence in determining the plaintiff’s residual functional capacity
in light of plaintiff’s testimony and the lack of evidentiary support for her allegations. See Page v.
Astrue, 484 F.3d, 1040, 1043 (8th Cir. 2007) (the medical evidence, state agency physician opinions,
and claimant’s own testimony were sufficient to determine RFC); Stormo v. Barnhart, 377 F3d 801,
807-08 (8th Cir. 2004) (medical evidence, state agency physicians’ assessments, and claimant’s
reported activities of daily living supported RFC finding). It should be acknowledged that the court
cannot consider Dr. McAuley’s July 3, 2012 opinion because the ALJ decided the case only through
January 6, 2012, and we concur with the Appeal Council’s reasoning regarding the matter. (T. 2).
D. Vocational Expert
The plaintiff alleges that the ALJ did not include in his interrogatories to the vocational
expert (“VE”) about any manipulative/reaching limitations and omitted any mental limitations. See
Pl.’s Br. at 19. Since there is no evidence in the record that supports such physical limitations and
the court supports the ALJ finding that there are no severe mental impairments, such questioning
is not required. (T. 272-590). “The ALJ's hypothetical question to the vocational expert needs to
include only those impairments that the ALJ finds are substantially supported by the record as a
whole." Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006) (quotation and citation omitted). The
hypothetical question included all of the plaintiff’s limitations found to exist by the ALJ and set
forth in the ALJ's description of her residual functional capacity. Based on the previous conclusion
that the ALJ's findings of the plaintiff’s residual functional capacity are supported by substantial
evidence, the court holds that the hypothetical question was therefore proper. As a result, the
vocational expert’s answer constituted substantial evidence supporting the Commissioner's denial
of benefits. For the reasons stated above, an award of benefits is unwarranted.
Accordingly, having carefully reviewed the record, the undersigned finds substantial
evidence supporting the ALJ’s decision, and thus the decision should be affirmed. The undersigned
further finds that the plaintiff’s Complaint should be dismissed with prejudice.
Dated this 18th Day of June 2014.
/s/ J. Marschewski__
HON. JAMES R. MARSCHEWSKI
CHIEF U.S. MAGISTRATE JUDGE
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