DeGuilio v. Social Security Administration Commissioner

Filing 19

MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on January 29, 2016. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
SHELLY DeGUILIO

PLAINTIFF

V.

NO. 15-5024

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Shelly DeGuilio, brings this action pursuant to 42 U.S.C. §405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying her claim for a period of disability and disability insurance benefits
(DIB) under the provisions of Title II of the Social Security Act (Act). 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:
Plaintiff protectively filed her DIB application on November 9, 2011, alleging an

inability to work since October 19, 2009, due to major depressive disorder and personality
disorder. (Tr. 160-161, 179, 183). An administrative hearing was held on April 18, 2013, at
which Plaintiff appeared with counsel and testified. (Tr. 68-100).
By written decision dated June 5, 2013, the ALJ found that during the relevant time
period, Plaintiff had an impairment or combination of impairments that were severe –
degenerative disc disease of the cervical and lumbar spine; gastroesophageal reflux disease;
major depressive disorder; and post-traumatic stress disorder. (Tr. 14).

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However, after

reviewing all of the evidence presented, the ALJ determined that Plaintiff’s impairments did
not meet or equal the level of severity of any impairment listed in the Listing of Impairments
found in Appendix I, Subpart P, Regulation No. 4. (Tr. 15). The ALJ found Plaintiff retained
the residual functional capacity (RFC) to:
Perform light work as defined in 20 CFR 404.1567(b) except she is
occasionally able to climb ladders, ropes or scaffolds, is limited to occasional
overhead reaching bilaterally, must avoid all exposure to vibration, is limited
to brief, incidental contact with the general public, and is limited to frequent
interaction with co-workers and supervisors.
(Tr. 16-17). With the help of the vocational expert (VE), the ALJ determined that during the
relevant time period, Plaintiff would not be able to return to her past relevant work, but there
were other jobs Plaintiff would be able to perform, such as garment folder, cleaner/polisher,
and electrode cleaner. (Tr. 23-24).
Plaintiff then requested a review of the hearing decision by the Appeals Council,
which denied that request on December 4, 2014. (Tr. 1-5). Subsequently, Plaintiff filed this
action. (Doc. 1). This case is before the undersigned pursuant to the consent of the parties.
(Doc. 7). Plaintiff has filed a pro se brief, Defendant has filed a brief, and the case is now
ready for decision. (Docs. 17, 18).
The Court has reviewed the entire transcript.

The complete set of facts and

arguments are presented in the parties’ briefs, and are repeated here only to the extent
necessary.
II.

Applicable Law:
This Court’s role is to determine whether the Commissioner’s findings are supported

by substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F. 3d 576, 583
(8th Cir. 2002). Substantial evidence is less than a preponderance but it is enough that a

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reasonable mind would find it adequate to support the Commissioner’s decision. The ALJ’s
decision must be affirmed if the record contains substantial evidence to support it. Edwards
v. Barnhart, 314 F. 3d 964, 966 (8th Cir. 2003). 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. Haley v. Massanari,
258 F.3d 742, 747 (8th Cir. 2001). 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, the decision of the ALJ must be affirmed. Young v. Apfel, 221 F. 3d
1065, 1068 (8th Cir. 2000).
It is well established that a claimant for Social Security disability benefits has the
burden of proving her disability by establishing a physical or mental disability that has lasted
at least one year and that prevents her 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)(D). A Plaintiff must show that her disability, not simply her
impairment, has lasted for at least twelve consecutive months.
The Commissioner’s regulations require her to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant had engaged in
substantial gainful activity since filing her claim; (2) whether the claimant had a severe
physical and/or mental impairment or combination of impairments; (3) whether the
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impairment(s) met or equaled an impairment in the listings; (4) whether the impairment(s)
prevented the claimant from doing past relevant work; and (5) whether the claimant was able
to perform other work in the national economy given her age, education, and experience. See
20 C.F.R. §416.920. Only if the final stage is reached does the fact finder consider the
Plaintiff’s age, education, and work experience in light of her RFC.

See McCoy v.

Schneider, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
III.

Discussion:
In her pro se brief, Plaintiff states that she has been under the care of Dr. Ester

Arejola Salvador, staff psychiatrist at Ozark Guidance Center, Inc. (OGC), since 2010, and
suffers with mental impairments; that she has had difficulty maintaining work throughout her
life; that her depression, anxiety and personality disorders affect her in every aspect of her
life; that her depression and anxiety cause her to have concentration and memory problems;
and that her age, scoliosis and degenerative disk disease keep her from getting certain jobs,
“but it is my depression that keeps me from maintaining full time employment.” (Doc. 17).
The Court will construe Plaintiff’s arguments to be that there is not substantial evidence to
support the ALJ’s finding that she was not disabled due to a mental or physical impairment.
A. Credibility Analysis:
The ALJ concluded that Plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that Plaintiff’s statements
concerning the intensity, persistence and limiting effects of the symptoms were not entirely
credible. (Tr. 19). The ALJ was required to consider all the evidence relating to Plaintiff’s
subjective complaints including evidence presented by third parties that relates to: (1)
Plaintiff’s daily activities; (2) the duration, frequency, and intensity of her pain; (3)
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precipitating and aggravating factors; (4) dosage, effectiveness, and side effects of her
medication; and (5) functional restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th
Cir. 1984). While an ALJ may not discount a claimant’s subjective complaints solely
because the medical evidence fails to support them, an ALJ may discount those complaints
where inconsistencies appear in the record as a whole. Id. 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).
With respect to Plaintiff’s alleged mental impairments, the ALJ found Plaintiff had
mild restriction in her activities of daily living; moderate difficulties in social functioning;
moderate difficulties in concentration, persistence, or pace, and no episodes of
decompensation of extended duration. (Tr. 16). The ALJ noted her medications (Tr. 19), and
found that although her impairments could reasonably be expected to cause the alleged
symptoms, her statements concerning the intensity, persistence and limiting effects of the
symptoms were not entirely credible. (Tr. 19). The ALJ noted that Plaintiff had been
performing light work on a part-time basis since September of the previous year and
acknowledged that working was good for her. (Tr. 19).
The ALJ discussed Plaintiff’s activities of daily living, noting that Plaintiff
acknowledged she was able to perform all activities of daily living except on the occasional
day she had a “meltdown.” (Tr. 16). Plaintiff was able to perform household chores or yard
work, take care of her personal needs, care for her dogs, drive, shop, and work part-time (24
hours a week) at a clothing store, where she put out clothing, priced them, tagged them, and
performed customer service. (Tr. 16, 19, 78, 192-195) Plaintiff also testified that she was
taking Citalopram, Wellbutrin, Abilify, Tramadol, and a generic version of Valium, and had

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no side effects. (Tr. 92). The ALJ also addressed the x-rays and MRIs , noting that Plaintiff
showed limitations in cervical range of motion. (Tr. 19-20). He incorporated Plaintiff’s
limitations in his RFC.
Based upon the foregoing, the Court finds there is substantial evidence to support the
ALJ’s credibility analysis.
B. RFC Determination:
As stated earlier, the ALJ found Plaintiff would be able to perform light work with
certain postural limitations.

RFC is the most a person can do despite that person’s

limitations. 20 C.F.R. § 404.1545(a)(1). 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 (8th Cir. 2003). “[T]he ALJ is [also]
required to set forth specifically a claimant’s limitations and to determine how those
limitations affect his RFC.” Id. “The ALJ is permitted to base its RFC determination on ‘a
non-examining physician’s opinion and other medical evidence in the record.’” Barrows v.
Colvin, No. C 13-4087-MWB, 2015 WL 1510159 at *15 (quoting from Willms v. Colvin,
Civil No. 12-2871, 2013 WL 6230346 (D. Minn. Dec. 2, 2013).

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With respect to weight given to the opinions of treating physicians, “[a] claimant’s
treating physician’s opinion will generally be given controlling weight, but it must be
supported by medically acceptable clinical and diagnostic techniques, and must be consistent
with other substantial evidence in the record.” Andrews v. Colvin, No. 14-3012, 2015 WL
4032122 at *3 (8th Cir. July 2, 2015)(citing Cline v. Colvin, 771 F.3d 1098, 1102 (8th Cir.
2014). “A treating physician’s opinion may be discounted or entirely disregarded ‘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.

“In either case-whether granting a treating physician’s opinion

substantial or little weight-the Commissioner or the ALJ must give good reasons for the
weight apportioned.” Id
The medical records indicate that prior to Plaintiff’s onset date of October 19, 2009,
Plaintiff was seen by Dr. Salvador, beginning in 2006. (Tr. 296-297, 301, 303, 305, 307, 308,
310, 312, 314, 316, 318, 320, 327, 329). Dr. Salvador’s most recent diagnosis, as set forth in
the September 25, 2009 record, is as follows:
Axis I:

Major Depressive Disorder recurrent, moderate to severe
without psychosis

Axis II:

Personality Disorder NOS

Axis III:

Infection of right forearm secondary to dog bite, improved.
There is no more swelling or redness and she is already able to
make use of it, close and open it, but there is still problem with
grip

Axis IV:

Problems with primary support group, problems related to
social environment, economic problems, problems related to
interaction with the legal system/crime

Axis V:

50-55
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(Tr. 327).
After Plaintiff’s onset date, on November 17, 2009, Dr. Salvador reported that
Plaintiff was not feeling well because she had a motor vehicle accident the prior month on
October 19, 2009. (Tr. 329). As a result of the accident, Plaintiff had to have a splenectomy
on December 7, 2009. (Tr. 283, 331).
On October 8, 2010, Plaintiff reported to OGC that she felt better right away when
she took her medications, and when she missed them, she felt dizzy. (Tr. 346). Plaintiff was
thereafter treated intermittently at OGC, and on October 19, 2011, it was reported that
Plaintiff did not return/dropped out of treatment. (Tr. 351).
When Plaintiff saw her treating physician, Dr. Richard Hill, on December 14, 2011,
she reported that she needed help to get antidepressants. (Tr.416). Dr. Hill reported that
Plaintiff was on Wellbutrin and Lexapro and had done well with them, and she needed help
with patient assistance. (Tr. 416). On December 15, 2011, Plaintiff was seen by Judith
Levenson, LPC. (Tr. 444). Ms. Levenson reported that Plaintiff had been having ongoing
problems with depression and PTSD since she was bitten by a dog several years prior thereto.
She reported that Plaintiff’s depression intensified about six years prior, when she developed
a gambling addiction, began stealing to support her habit, was convicted of theft, and had
trouble maintaining jobs. She also reported that Plaintiff was looking for work, although she
was also applying for disability. (Tr. 444).
On May 2, 2012, non-examining consultant, Dave Sanford, Ph.D., completed a
Mental RFC Assessment of Plaintiff. (Tr. 117-118). Dr. Sanford found Plaintiff suffered
from no cognitive impairment, her intellect was average, and her insight and judgment were
intact. (Tr. 119). He indicated that she would do well with jobs that did not have a lot of
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changes. (Tr. 118). He also found she was able to interact in superficial interactions, but
would benefit from not doing work that required more than occasional interactions. (Tr. 118).
Plaintiff saw Dr. Hill on January 11, 2012, and advised him that she was applying for
disability because of depression. (tr. 414). She had also had an increase in neck and back
pain, and was awaiting approval of a MRI. (Tr. 414). Dr. Hill wrote a letter of the same date,
stating that he expected that Plaintiff would be unable to work during the next year, and
hoped treatment could be successful for long term rehabilitation. (Tr. 374). He assessed her
with anxiety, major depression, recurrent, and cervicalgia. (Tr. 415).
On February 20, 2012, Plaintiff was admitted at Portneuf Medical Center for
increasing suicidal ideation in reaction to multiple stressors.(Tr. 376). She was given a GAF
score of 30 on admission, was kept in the hospital through February 26, 2012, and her GAF
score upon discharge was 50. (Tr. 376). Plaintiff continued to see Dr. Hill after that, and on
April 20, 2012, Dr. Hill wrote another letter, stating that Plaintiff continued to have problems
maintaining focus and concentration and would continue to struggle with socialization and
fatigue to a degree that “she will not be able to maintain any regular employment for the
foreseeable future.” (Tr. 408).
On February 5, 2013, Plaintiff was seen by Terri Muegerl, LCSW, of Behavioral
Treatment Services. (Tr. 436). Ms. Muegerl diagnosed Plaintiff as follows:
Axis I:

Major Depressive Disorder, Recurrent Severe, without
psychotic features
Generalized Anxiety Disorder
Kleptomania

Axis II:

V71.09

Axis III:

Severe back pain

Axis IV:

Inadequate Finances
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Axis V:

45

(Tr. 436). On March 21, 2013, Ms. Muegerl reported that she had been treating Plaintiff
since January of 2013, and that because Plaintiff’s mental, emotional and physical symptoms
were so severe, they had significantly made it unlikely that she could keep or work a job
more than part-time. (Tr. 483). Ms. Muegerl also completed a Mental RFC Statement on
April 11, 2013, wherein she opined that Plaintiff’s mental, emotional and physical symptoms
were so severe that they had significantly made it unlikely that she could keep or work a job
more than part-time. (Tr. 519).
At the time of the hearing held before the ALJ, Plaintiff was working 24 hours a week
at a clothing store. (Tr. 78). She testified that her shift lasted about six hours and that she
spent five and a half of those hours on her feet. (Tr. 80). Plaintiff stated that working at that
job had made her mental issues better because she needed to get out in society and be social.
(Tr. 83).
The ALJ gave the opinion of Ms. Muegerl less weight, “as it appears to be a
document that helps qualify the claimant for ongoing treatment and is based on all of the
claimant’s subjective complaints rather than serving as a snapshot of how she is functioning
at that period of time.” (Tr. 21). With respect to Dr. Hill’s opinions, the ALJ recognized that
Dr. Hill had a long term examining and treating relationship with Plaintiff within his area of
specialization, and that it was clear that Plaintiff had struggled with depression and anxiety
since well before her alleged onset date. However, he emphasized that “exacerbation of her
symptoms is very situational, as the claimant has been in multiple unfortunate circumstances
and dealing with what appears to be a consistently chaotic family situation.” (Tr. 22). The
ALJ also noted that Dr. Hill’s own records consistently noted that Plaintiff’s depression scale
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ranged around a 3 – which was relatively mild, that her estimated GAF scores consistently
placed her in a category of “moderate” symptoms, and that Plaintiff generally reported that
her medications were effective in helping to lessen psychiatric symptoms. (Tr. 22).
With respect to Plaintiff’s physical limitations, in her Function Report – Adult, dated
December 8, 2011, Plaintiff reported that: sometimes, if she had any money, she would go to
thrift stores; would take care of her pets by feeding and watering them and occasionally
taking them for walks; had no problem with personal care; prepared her meals; was able to
do all of the house and yard work; drove and shopped for groceries; and went to the smoke
shop for cigarettes. (Tr. 192-195).
Plaintiff presented herself to the Portneuf Medical Center on January 2, 2012, stating
that she had painted on Friday and had developed pain in her back between her shoulder
blades. (Tr. 359). It was reported at that time that Plaintiff smoked one pack of cigarettes per
day and had smoked for 30 years. (Tr. 359). X-rays of her thoracic spine revealed scoliosis
of the thoracolumbar spine, and x-rays of her cervical spine revealed degenerative changes at
C5-6 and mild discogenic disease. (Tr. 3620.
On May 2, 2012, non-examining consultant, Dr. John Crites, completed a Physical
RFC assessment, opining that Plaintiff could perform medium work. (Tr. 116). On June 21,
2012, Plaintiff saw Dr. Hill, complaining of a rash on her hands and increasing knee pain.
(Tr. 454). July 5, 2012 x-rays of her knees revealed minimal, barely delectable osteoarthritis
changes medial compartment in both knees. (Tr. 431). A MRI of Plaintiff’s lumbar spine on
July 5, 2012, revealed: severe levoscoliosis, centered at L2, measuring approximately 29
degrees; some desiccation with mild diffuse bulging at L4-5, mild bilateral facet arthropathy
resulting in perhaps some minimal spinal stenotic changes with minimal neuroforaminal

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narrowing; at 3-4 minimal bulging; mild facet and ligamentum flavum hypertrophy, with no
significant spinal stenosis; at 2-3 minimal desiccation and bulging with mild facet
arthropathy, with no spinal stenosis; and at L1-2, mild narrowing and desiccation, mild
bulging and arthropathy, with no stenosis. (Tr. 433). On August 3, 2012, Plaintiff reported to
Dr. Hill that overall, her pain was better with Neurontin. (Tr. 463). A MRI of Plaintiff’s
cervical spine, performed on August 9, 2012, revealed moderate degenerative disc changes
with a broad-based central disc protrusion at C5-6 that mildly flattens the ventral surface of
the cord, and a small right paracentral disc protrusion at C3-4, and a small central disc
protrusion at C6-7. (Tr. 435).

Plaintiff thereafter saw Kerry Reynolds, PA, between

November 15, 2012, and March 12, 2013. On December 31, 2012, Plaintiff reported to Ms.
Reynolds that her back was not hurting as much. (Tr. 477). On March 12, 2013, Plaintiff
reported that she felt the “Best I’ve felt in a long time.” (Tr. 481).
The ALJ addressed the x-rays and MRIs and concluded that while activities such as
standing, walking and bending were ostensibly not significantly affected beyond limiting the
claimant to light work, the findings did support Plaintiff’s allegations of inability to lift or
reach above shoulder height without exacerbating cervical symptoms. (Tr. 19). The ALJ
concluded that Plaintiff’s degenerative disc disease and scoliosis limited her to light work
with no more than occasional overhead reaching. (Tr. 20).
The Court finds that the ALJ considered all of the medical records, the observations
of her treating physicians, and Plaintiff’s descriptions of her limitations, and that there is
substantial evidence to support the ALJ’s RFC determination.
C. Hypothetical Questions:
At the hearing, the ALJ posed the following hypothetical question to the VE:

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Q: Mr. Granite, I’d like for you to assume the following: An individual with
the Claimant’s age, education and work background. Such an individual is
limited to only light work as defined in the regulations. Climbing of ropes,
ladders and scaffolds should be limited to only occasional. She is limited to
only occasional overhead reaching with both upper extremities. She is also
limited to having no direct exposure to vibrations. She is limited to work
involving no more than brief and incidental contact with members of the
general public. Her interactions with coworkers and supervisors should be on
no more than a frequent basis. Is such an individual able to perform any of
Claimant’s past work?
A: No, Your Honor. Three of the jobs are light or sedentary but all have
more than brief contact with the public.
Q: Is there any other work available for such a person?
A: I believe so under that hypothetical. There’s a position called a garment
folder…a cleaner polisher…an electrode cleaner – all light. . . .
Q: If such an individual were limited to only sedentary work, defined in the
regulations, with the same additional restrictions as in the second hypothetical,
would there be work available?
A: There would be, Your Honor. …touch-up inspector…dowel
inspector…semi-conductor bonder. . .
...
Q: Is your testimony consistent with the Dictionary of Occupational Titles?
A: I believe so.
...
(Tr. 95-98).
The Court observes that two of the jobs identified by the VE - garment folder and
cleaner/polisher - require constant reaching, and the job of electrode cleaner requires frequent
reaching, according to the Selected Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles (SCO). The ALJ’s RFC provides that Plaintiff could
“occasionally do overhead work bilaterally and can only occasionally do rapid and repetitive
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flexion and extension of the wrists.” (Tr. 10).

Consequently, there is a conflict between the

DOT and the VE’s testimony. See Moore v. Colvin, 769 F.3d 987, 989 (8th Cir. 2014)(stating
the ALJ failed to resolve an apparent conflict when a hypothetical limited a person to only
occasional overhead reaching, and the VE identified jobs which the SCO said required
frequent reaching).
When an apparent conflict between the DOT and VE testimony exists, an ALJ has an
affirmative responsibility to address the conflict. Young v. Apfel, 221 F.3d 1065, 1070 (8th
Cir. 2000). If evidence from the VE appears to conflict with the DOT, the ALJ must obtain
“an explanation for any such conflict.” Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007).
An ALJ is not absolved of a duty to investigate any conflict simply because a VE responded
“yes” when asked if his testimony was consistent with the DOT. Kemp v. Colvin, 743 F.3d
630, 632-633 (8th Cir. 2014). In this case, the ALJ did ask the VE if his testimony was
consistent with the DOT. (Tr. 98). It is not clear whether the VE recognized the possible
conflict between the hypothetical and the positions he identified, and no explanation for the
conflict was offered at the hearing. Although in his decision, the ALJ stated that he
determined the VE’s testimony was consistent with the information contained in the DOT
(Tr. 24), there is no indication that he was aware of the conflict or how he made such a
determination. The Court therefore believes this failure to resolve the conflict is reversible
error. See e.g., Daniels v. Colvin, 2015 WL 224668 (W.D. Ark., Jan. 15, 2015). Based upon
the foregoing, the Court concludes the ALJ did not resolve a conflict between the VE’s
testimony and the DOT and therefore, the VE’s testimony did not constitute substantial

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evidence. On remand, the ALJ is instructed to identify and obtain a reasonable explanation
for any conflict between the VE’s testimony and the DOT. 1
IV.

Conclusion:
Accordingly, having carefully reviewed the record, the Court finds the ALJ’s decision

regarding Plaintiff’s ability to perform the jobs he identified is not supported by substantial
evidence, and therefore, the matter should be reversed and remanded to the Commissioner
for further consideration pursuant to sentence four of 42 U.S.C. §405(g).
IT IS SO ORDERED this 29th day of January, 2016.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

1

In Kemp v. Colvin, 743 F.3d 630, 633 n.3 (8th Cir. 2014), the Eighth Circuit noted that the necessary resolution

of the identified issue may be accomplished by written interrogatories posed to the VE, and thus another
Administrative hearing may not be required.

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