Papp-Roche v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on March 23, 2016. (rw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
EVELYN M. PAPP-ROCHE
V.

PLAINTIFF
Case No. 2:15-CV-2052

CAROLYN W. COLVIN, Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Evelyn M. Papp-Roche, seeks judicial review of a decision of the Commissioner
of the Social Security Administration (the “Commissioner”) denying her applications for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”) under the provisions of Title
II and Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3).
Plaintiff has exhausted her administrative remedies, and therefore, pursuant to 42 U.S.C. § 405(g),
judicial review is now appropriate. After having reviewed the record for the purpose of determining
whether the Commissioner’s decision is supported by substantial evidence, the Court AFFIRMS the
decision of the Commissioner.
I. Procedural Background
Plaintiff filed her applications for DIB and SSI on July 9, 2012 and January 18, 2013,
respectively, claiming disability beginning April 13, 2007, due to anxiety, severe depression,
memory loss, and stage 2 in remission ovarian cancer. (Tr. 144-50) The State Disability
Determination Services denied Plaintiff’s applications initially and upon reconsideration. (Tr. 96-98,
103-04) At Plaintiff’s request, an Administrative Law Judge (the “ALJ”), Hon. Harold D. Davis,
conducted a hearing on April 2, 2013, at which Plaintiff and Montie Lumpkin, a vocational expert,

1

testified. (Tr. 54-82) Plaintiff was represented at the hearing by her attorney, David Harp. (Tr.54)
By written decision dated December 20, 2013, the ALJ found that Plaintiff had the following
severe impairments: degenerative disk disease of the lumbar spine status post laminectomy, status
post ovarian cancer and total abdominal hysterectomy, and major depression. (Tr. 12) After
reviewing all of the evidence presented, the ALJ determined that Plaintiff’s impairments did not
meet or medically equal the level of severity of any impairment listed in the Listing of Impairments
found in 20 C.F.R. Part 404, Subpart P, Appendix I. (Tr. 13)
The ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to perform
light work, except that she can use her hands for frequent, but not repetitive, reaching, handling and
fingering. (Tr. 14) The ALJ further found that Plaintiff would be limited to jobs that involve simple
tasks and simple job instructions, as well as, only incidental contact with the public. (Tr. 14) The
ALJ concluded that Plaintiff is unable to perform her past relevant work as a cardiac stenographer
and EKG technician as their requirements exceed Plaintiff’s RFC to perform light, unskilled work.
(Tr. 19) After considering Plaintiff’s age, education, work experience, and RFC, the ALJ found there
were jobs that existed in significant numbers in the national economy that Plaintiff could perform.
(Tr. 20). The ALJ concluded Plaintiff was not under a disability (as defined in the Social Security
Act) from the alleged onset date of April 13, 2007, through the date of the decision. (Tr. 21)
Plaintiff requested a review of the ALJ’s unfavorable decision by the Appeals Council. (Tr.
6) This request was denied on January 29, 2015. (Tr. 1-4) The ALJ’s decision therefore became the
final decision of the Commissioner, and Plaintiff’s administrative remedies were exhausted. (Tr. 1)
Plaintiff subsequently filed her Complaint herein seeking judicial review of the Commissioner’s
decision. (Doc. 1) Both parties have filed briefs, and this case is before the Court for decision.
2

(Docs. 9, 10)
II. Standard of Review and Applicable Law
This Court’s role is to determine whether substantial evidence supports the Commissioner’s
findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial evidence is less than
a preponderance but it is enough that a reasonable mind would find it adequate to support the
Commissioner’s decision. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). We must affirm the
ALJ’s decision if the record contains substantial evidence to support it. Blackburn v. Colvin, 761
F.3d 853, 858 (8th Cir. 2014). As long as there is substantial evidence in the record that supports the
Commissioner’s decision, the Court may not reverse it simply because substantial evidence exists
in the record that would have supported a contrary outcome, or because the Court would have
decided the case differently. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). In other words, if
after reviewing the record it is possible to draw two inconsistent positions from the evidence and one
of those positions represents the findings of the ALJ, we must affirm the ALJ’s decision. Id.
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 also 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 her disability, not simply
her impairment, has lasted for at least twelve consecutive months.

3

The Commissioner’s regulations require her 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 or her 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 or her age, education, and experience. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Only if she reaches the final stage 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(a)(4)(v), 416.920(a)(4)(v).
III. Analysis
The ALJ in this case found Plaintiff was not disabled and had the RFC and capability to
successfully adjust to other unskilled occupations performed at the light work level that exist in
significant numbers in the national economy with certain restrictions. (Tr. 21) Plaintiff alleges that
the ALJ erred by: (1) making an improper step two determination, (2) failing to properly assess
Plaintiff’s RFC, and (3) making an improper step five determination.
A. No Error in Step Two Analysis
Plaintiff contends the ALJ committed prejudicial error by failing to find that her anxiety,
cluster B personality traits, osteoarthritis and fibromyalgia were severe impairments. (Doc. 9, pp. 1011) Plaintiff asserts that these impairments cause more than minimal effects on her ability to work
and, therefore, are severe. (Doc. 9, p. 11) Additionally, Plaintiff contends that by failing to find these
additional severe impairments, the ALJ did not include the appropriate work limitations in the later
4

steps of his evaluation. (Doc. 9, p. 11) The Court finds the ALJ’s determination that these
impairments were not severe is supported by substantial evidence.
At Step Two, a claimant has the burden of providing evidence of functional limitations in
support of their contention of disability. Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). “An
impairment is not severe if it amounts only to a slight abnormality that would not significantly limit
the claimant’s physical or mental ability to do basic work activities.” Id. (citing Bowen v. Yuckert,
482 U.S. 137, 153 (1987); 20 C.F.R. § 404.1521(a)). “If the impairment would have no more than
a minimal effect on the claimant’s ability to work, then it does not satisfy the requirement of step
two.” Id. (citing Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007)).
According to Plaintiff, her anxiety has been under variable control despite treatment with
medication, and that this was evident at the hearing. (Doc. 9, p. 10) Plaintiff contends these problems
would make it difficult to handle the stresses of a normal work environment as evidenced by her
treatment records from Vista Health (“Vista”) and Dr. Fayz Hudefi’s assessment. (Doc. 9, p. 11)
Plaintiff’s initial visit to Vista to address her depression and anxiety was on March 9, 2009.
Her chief complaint was “unresolved issues of past marriage.” (Tr. 381) On April 9, 2009, Plaintiff
reported that her anxiety was minimally controlled with Xanax. (Tr. 390) On May 11, 2009, Plaintiff
returned reporting increased anxiety, however, Dr. Hudefi noted she was currently involved in a
lawsuit over property she had inherited. (Tr. 391) On June 9, 2009, Plaintiff reported she had anxiety
due to the fact that the IRS was seeking taxes that she owed on her inheritance but that she was
“working on things” with her therapist. (Tr. 392) Dr. Hudefi identified her risk factors as relational
issues with her ex-husband and the pending lawsuit. (Tr. 392) Dr. Hudefi further noted that Plaintiff
was showing more assertiveness with regards to taking responsibility and control over her current
5

relational situation. (Tr. 392)
On July 13, 2009, Plaintiff presented with an expressive, dramatic affect, however, Dr.
Hudefi noted that she had recently lost her dog. (Tr. 393) Plaintiff reported that she was dating and
was working in therapy to be more assertive. (Tr. 393) Depression was noted, but was controlled,
and anxiety was reported, but no symptoms were observed. (Tr. 393) On August 20, 2009, Plaintiff
stated that her therapist advised her she was sabotaging her own happiness, and Plaintiff stated that
she does enjoy drama. (Tr. 394) Plaintiff reported that her anxiety and depression were controlled,
and that she was retaining an attorney to assist her in the inheritance lawsuit. (Tr. 394) Plaintiff
further reported that she was sleeping and eating well and that the stress was directly related to the
lawsuit. (Tr. 394) On September 17, 2009, Plaintiff reported some anxiety over the litigation and
anger about how her attorney was handling the case. (Tr. 395) Plaintiff also reported that she was
currently getting along with her ex-husband. (Tr. 395)
On October 14, 2009, Plaintiff again reported anxiety over the litigation. (Tr. 396) When she
returned on November 16, 2009, Dr. Hudefi noted that her depression, sleep and anxiety were
controlled. (Tr. 389) On March 3, 2010, Plaintiff reported that her sleep had improved and that her
anxiety and depression were overall controlled. (Tr. 397) On July 12, 2010, Plaintiff reported only
mild anxiety and depression. (Tr. 398) On November 16, 2010, Plaintiff was pleasant and
cooperative reporting some anxiety but otherwise doing well. (Tr. 399) Further, a review of the
records from her counseling sessions with Nick Keeter show continued progress towards her
treatment goals. (Tr. 400-13)
Plaintiff contends that Dr. Hudefi’s mental assessment of Plaintiff shows that her anxiety and
abnormal personality traits are problematic without citing any specific reason. (Doc. 9, p. 11) Dr.
6

Hudefi’s assessment was completed on November 12, 2012. (Tr. 947-50) Dr. Hudefi checked
moderate to marked limitations in every area of mental activity, however, he did not complete the
narrative section of the functional capacity assessment, and these findings are inconsistent with the
therapist’s and Dr. Hudefi’s progress notes as detailed above, as well as her function reports. The
ALJ found Plaintiff had mild difficulties in social functioning, as she testified that she goes to a
cancer support group and has friends. (Tr. 68) Also, in her function report Plaintiff wrote that she
goes to church and has no problems getting along with family, friends, neighbors and others, but that
pain limits her social activities. (Tr. 161-63) The limitations in Dr. Hudefi’s November 2012
assessment were not supported by the objective medical evidence and contrasted with other
evidence, therefore, the ALJ properly discounted this opinion. See Wagner v. Astrue, 499 F.3d 842,
849 (8th Cir. 2007) (ALJ may credit another medical evaluation over that of treating physician when
other assessement is supported by better medical evidence, or where treating physician renders
inconsistent opinions).
Plaintiff contends that her osteoarthritis and fibromyalgia cause pain in her hands, joint
tenderness in her fingers, and problems with her grip that have persisted for several years and caused
her to see Dr. James Deneke, a rheumatologist. (Doc. 9, p. 11) X-rays of her hands on October 20,
2010, showed no significant findings. (Tr. 421) On October 27, 2008, Dr. Deneke noted that her
fibromyalgia symptoms were improved with Cymbalta and her hands had improved with injections.
(Tr. 628) Dr. Deneke advised her to continue with range of motion exercises for her hands. (Tr. 628)
Dr. Deneke’s examination of Plaintiff showed good range of motion without pain in her neck,
shoulders, elbows, wrists, hips, knees, ankles and back. (Tr. 641-42) Plaintiff complained of
tenderness in her hands, but Dr. Deneke noted no real swelling and her fingertips were readily
7

approximated to the palms. (Tr. 641) Dr. Deneke reported he saw no signs of inflammatory arthritis.
(Tr. 642) These findings are consistent with Plaintiff’s statements in her function report that she has
minimal problems with her personal care, although she dresses slowly and cannot tie her shoes. (Tr.
159) Plaintiff prepares her own meals daily, waters her outdoor plants, and does her laundry. (Tr.
160) Plaintiff stated she drives, shops for groceries, and can lift one to two pounds. (Tr. 163) In a
third party function report, her friend, Diane Arnold, stated Plaintiff was able to manage her
household but had limitations in yardwork and vacuuming. (Tr. 193)
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); see also Kirby v. Astrue,
500 F.3d 705, 707 (8thCir. 2007) (impairment is not severe if it is only slight abnormality that would
not significantly limit mental ability to do basic work activities). Considering the evidence as a
whole, the Court finds the ALJ’s step two determination is supported by substantial evidence and
should be affirmed.
The Court also finds it significant that Plaintiff did not allege cluster B personality traits,
osteoarthritis, or fibromyalgia in her application for disability benefits. (Tr. 169) See Dunahoo v. Apfel,
241 F.3d 1033, 1039 (8th Cir. 2001) (the fact that claimant did not allege disabling condition in his
application is significant). Therefore, the ALJ was not required to evaluate these impairments or find
them severe. See Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996) (holding “the administrative law
judge is under no obligation to investigate a claim not presented at the time of the application for
benefits and not offered at the hearing as a basis for disability”) (quoting Brockman v. Sullivan, 987 F.2d

8

1344, 1348 (8th Cir. 1993)). In any event, the ALJ considered all of these alleged impairments and
their related limitations in determining Plaintiff’s RFC. The ALJ considered Plaintiff’s complaints
of fear, focus, memory problems, numbness in her hands, pain, and fatigue. (Tr. 15) Finally, once
an ALJ finds a claimant has a “severe” impairment at step two, the ALJ must then consider all
impairments, including those that are less than “severe,” in determining a claimant’s RFC. See 20
C.F.R. § 404.1545(e). Therefore, the Court finds no error in the ALJ’s step two determination.
B. No Error in RFC Determination
The ALJ determined Plaintiff has the RFC to perform light work except that she can use her
hands for frequent, but not repetitive, reaching, handling and fingering. (Tr. 14) The ALJ further
found Plaintiff can do work with simple tasks and simple instructions that involves only incidental
contact with the public. (Tr. 14) Plaintiff contends the ALJ failed to properly take into account the
limitations caused by her mental impairments and by affording Dr. Hudefi’s assessment of her workrelated restrictions little weight. (Doc. 9, pp. 12-14) Plaintiff further contends the ALJ’s RFC
finding did not take into account medical evidence that would restrict her from standing, walking
and using her hands. (Doc. 9, p. 14) Plaintiff also asserts the ALJ should have ordered a physical
consultative examination and failed to conduct an appropriate credibility analysis of Plaintiff’s
subjective complaints. (Doc. 9, pp. 14-16)
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §§ 404.1545,
416.945. A disability claimant has the burden of establishing his or her RFC. Vossen, 612 F. 3d at
1016. “The ALJ determines a claimant’s RFC based on all relevant evidence in the record, including
medical records, observations of treating physicians and others, and the claimant’s own descriptions
of his or her limitations.” Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010); Davidson v. Astrue,
9

578 F.3d 838, 844 (8th Cir. 2009). Limitations resulting from symptoms such as pain are also
factored into the assessment. 20 C.F.R. §§ 404.1545(a)(3), 416.945(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.” Miller, 784 F.3d at 479 (8th Cir. 2015) (citing 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. Perks v. Astrue,
687 F.3d 1086, 1092 (8th Cir. 2012).
The ALJ is required to consider all the evidence relating to Plaintiff’s subjective complaints,
including: (1) Plaintiff’s daily activities; (2) the duration, frequency, and intensity of his pain; (3)
precipitation and aggravating factors; (4) dosage, effectiveness, and side effects of his medication;
and, (5) function restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). In so
doing, the ALJ must also consider the claimant’s prior work record, observations made by third
parties, and the opinions of treating and examining physicians.” Polaski, 739 F.2d at 1322.
An ALJ may not discount the Plaintiff’s subjective complaints solely because the medical
evidence fails to support them. Id. However, “[a]n ALJ . . . may disbelieve subjective reports because
of inherent inconsistencies or other circumstances.” Wright v. Colvin, 789 F.3d 847, 853 (8th Cir.
2015) (citing Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007) (quotation and citation omitted).
The Eighth Circuit has observed, “[o]ur 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).
As stated in the previous section, the ALJ properly considered the evidence in connection
with Plaintiff’s alleged impairments of anxiety, cluster B personality traits, fibromyalgia and
osteoarthritis. The ALJ weighed the medical evidence along with Plaintiff’s subjective complaints
10

and information provided by her friend, Diane Arnold, and found Plaintiff would be limited by
repetitive reaching, handling and fingering, and she would require simple tasks with simple
instructions and only incidental contact with the public.
Plaintiff contends she has problems with significant degenerative disc disease and
accompanying radicular symptoms that would preclude her from the hours of standing and walking
that light work requires. (Doc. 9, p. 14) Plaintiff, however, does not cite to any specific evidence to
support this contention.
On April 18, 2006, Plaintiff presented to Dr. David Rovetti in Reno, Nevada, for an
Impairment Rating after an accident at her employment. (Tr. 242) Plaintiff reported low back pain
that radiated into her left thigh, but that her ankle was doing better. (Tr. 242) Dr. Rovetti observed
no swelling of the lumbar spine and Plaintiff had a normal gait. (Tr. 245) On May 7, 2010, Plaintiff’s
physical therapist noted after seven (7) physical therapy sessions she was doing well with only mild
tenderness in her lower back and negative straight leg raises and had started doing Pilates at home
in addition to the physical therapy. (Tr. 833)
On February 16, 2011, Plaintiff was examined by Dr. Daniel Mackey. (Tr. 820-21) He noted
Plaintiff had no tenderness to palpation of the spine. (Tr. 820) On October 16, 2011, an x-ray of the
lumbar spine showed only mild degenerative facet arthropathy of the lower lumbar spine and no
fracture, dislocation or bony abnormality of the right ankle with a well maintained ankle joint. (Tr.
420) A CT scan on June 20, 2012, showed a small disc bulge or protrusion at the L3-4 level with
mild facet hypertrophy and mild canal stenosis and laminectomy changes at the L4-5 level with facet
hypertrophy and mild anterolisthesis of the L4 vertebra on the L5 vertebra. (Tr. 822) Plaintiff was
treated conservatively with pain medication, and no work limitations were suggested. (Tr. 932,95111

55, 958) Further, Plaintiff testified that she walked two miles every other day. (Tr. 69) Plaintiff has
the burden of establishing her RFC. See Vossen, supra, at 1016. The Court finds that substantial
evidence supports the ALJ’s credibility determination, as well as his RFC assessment.
Finally, Plaintiff contends the ALJ should have ordered a physical consultative examination.
While an ALJ does have a duty to fairly and fully develop the record, this duty is not never-ending,
and an ALJ is not required to disprove every possible impairment. McCoy v. Astrue, 648 F.3d 605,
612 (8th Cir. 2011) (citation omitted). The ALJ is required to order medical examinations and tests
only if the medical records presented to him do not give sufficient medical evidence to determine
whether the claimant is disabled. Id. (citation omitted). There is no bright line test for determining
whether the ALJ failed to adequately develop the record, and this determination is made on a case
by case basis. Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994).
The need for medical evidence does not necessarily require the Commissioner to produce
additional evidence not already within the record. An ALJ is permitted to issue a decision without
obtaining additional medical evidence so long as other evidence in the record provides a sufficient
basis for the ALJ’s decision. Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001). Providing
specific medical evidence to support her disability claim is, of course, the Plaintiff’s responsibility,
and that burden of proof remains on her at all times to prove up her disability and present the
strongest case possible. Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991); 20 C.F.R. §
416.912(a) and (c).
Even if Plaintiff could show the ALJ failed to fully develop the record, which she failed to
do, Plaintiff did not show she was prejudiced or treated unfairly by the ALJ’s alleged failure to
develop the record. Therefore, remand would not be proper. Onstad v. Shalala, 999 F.2d 1232, 1234
12

(8th Cir. 1993). Accordingly, the ALJ did not violate his duty to develop the record by failing to
elicit more testimony from Plaintiff or to order medical and psychiatric evaluations based upon the
medical evidence and the testimony presented at the hearing. Substantial evidence supports the
ALJ’s finding these other alleged impairments were either not medically determinable or non-severe.
C. No Error in Step Five Analysis
Plaintiff contends the ALJ erred by failing to include an accurate description of Plaintiff’s
limitations in the hypothetical presented to the VE thereby failing to satisfy his burden that there are
other jobs that Plaintiff can perform. (Doc. 9, pp. 16-17) “Testimony based on hypothetical questions
that do not encompass all relevant impairments cannot constitute substantial evidence to support the
ALJ’s decision.” Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006) (quotation omitted).
Hypothetical questions should “set forth impairments supported by substantial evidence [on] the
record and accepted as true.” Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005) (quotation
omitted), and “capture the ‘concrete consequences’ of those impairments.” Lacroix, 465 F.3d at 889
(quoting Roe v. Chater, 92 F.3d 672, 676-77 (8th Cir. 1996).
“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.” Martise v.
Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (citing Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir.
2006)). The ALJ’s hypothetical question included all the limitations found to exist by the ALJ and
set forth in the ALJ’s RFC determination. Id. Based on our previous conclusion that the ALJ’s RFC
findings are supported by substantial evidence, we hold that the hypothetical question was proper,
and the VE’s answer constituted substantial evidence supporting the Commissioner’s denial of
benefits. Id., see also Lacroix, 465 F.3d at 889.
13

V. Conclusion
For the foregoing reasons, the ALJ committed no reversible error and his decision is
supported by substantial evidence on the record as a whole. The ALJ’s decision is accordingly
AFFIRMED. Plaintiff’s case is hereby DISMISSED WITH PREJUDICE.
IT IS SO ORDERED this 23rd day of March, 2016.
/s/ Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

14