Gatson v. Berryhill

Filing 16

MEMORANDUM OPINION re: DI 12 and DI 14. Signed by Judge Mary Pat Thynge on 12/4/18. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROBERT LEWIS GATSON,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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C.A. No. 17-1523-MPT

MEMORANDUM
I.

INTRODUCTION
This action arises from the denial of plaintiff’s claim for Social Security benefits.

On May 6, 2013, plaintiff filed an application for Social Security Disability Insurance
benefits (“DIB”) under Title II of the Social Security Act (“the Act”).1 In his application,
plaintiff alleged he was disabled on November 1, 2012, due to left hand nerve damage.2
The claim was denied initially on August 6, 2013, and upon reconsideration on March
20, 2014.3 Following the denials, plaintiff requested a hearing before an Administrative
Law Judge (“ALJ”).4 The hearing occurred on May 17, 2016, with ALJ Bonnie Kittinger.5
At the hearing, testimony was provided by plaintiff and impartial vocational expert
Christopher Rymond.6 On, June 14, 2016, ALJ Kittinger issued a decision denying
1

D.I. 13 at 1.
D.I. 15 at 1.
3
D.I. 9-2 at 10.
4
Id.
5
Id.
6
Id.
2

plaintiff’s claim.7 Plaintiff requested review of the decision by the Appeals Council,
which denied the review on September 11, 2017.8 He then filed a timely appeal with
this court.9 Presently before the court are the parties’ cross motions for summary
judgment.10 For the reasons that follow, the court will grant defendant’s motion.
II.

BACKGROUND
Plaintiff was born on November 17, 1955.11 He has a high school education and

has not worked full time since 2011.12 Plaintiff received unemployment benefits for
approximately one year after being laid off, and claimed he stopped looking for
employment after his left hand was injured in 2012.13
The ALJ found that plaintiff has physical and mental impairments, that are both
severe and nonsevere.14 Plaintiff’s severe impairments include: complex regional pain
syndrome vs. reflex sympathetic dystrophy and degenerative joint disease.15 His
nonsevere impairments include: possible cerebrovascular accident, transient ischemic
attack, and/or seizure, hypertension, asthma, degenerative disc disease, and
depression.16 Despite his impairments, the ALJ found that plaintiff can perform and
return to past relevant work as a loan clerk/credit analyst, or an insurance claims clerk.17

7

Id at 21.
D.I. 13 at 2.
9
Id.
10
D.I. 12 and D.I. 14.
11
D.I. 9-2 at 39.
12
Id. at 39 and 41.
13
Id. at 42.
14
Id. at 12.
15
Id.
16
Id.
17
Id. at 21.
8

2

To be eligible for disability benefits, plaintiff must not only demonstrate he is
disabled within the meaning of §§§ 216(I), 223(d), and 1614(a)(3)(A), but additionally,
that he meets the insured status requirements of §§ 216(I) and 223.18 Plaintiff has met
the requirements for coverage under §§ 216(I) and 223, and his earnings records show
he has acquired sufficient quarters of coverage to remain insured through December
31, 2016.19 The remaining issue, is whether plaintiff is disabled under the Act.
A.

Evidence Presented

Plaintiff last worked for Chase Bank in 2011.20 He received unemployment, and
stopped searching for additional employment due to chronic pain and extensive nerve
damage in his left hand.21 Plaintiff alleged he was disabled on November 1, 2012. On
November 22, 2012, he went to the Emergency Room (“ER”) for back pain and
spasms.22 A nurse attempted to administer an IV but encountered problems with a vein,
which allegedly precipitated his left hand impairments.23 On December 18, 2012,
plaintiff returned to the ER and was diagnosed with left hand superficial
thrombophlebitis following a VS VDOP of the left arm, neck, and wrist.24 He was
prescribed Ibuprofen, which was changed to Mobic, 15 mg daily, and Percocet as
needed for pain.25
On January 22, 2013, plaintiff met with his primary care physician, Matthew
18

Id.
Id.
20
Id. at 14.
21
Id.
22
D.I. 13 at 7 and D.I. 9-16, Ex. 25F at 672-92.
23
Id. and D.I. 9-2 at 15.
24
D.I. 9-2 at 15, D.I. 13 at 7, and D.I. 9-16, Ex. 25F at 693-712.
25
Id.
19

3

Jacobson, M.D., for pain of the left dorsal hand and swelling with palpable lumps,
worsening at night or with increased use.26 An EMG of the left hand showed mild carpal
tunnel syndrome and radicular symptoms up the left arm.27 Plaintiff was diagnosed with
phlebitis thrombophlebitis and instructed to keep his hand elevated and minimal use.28
He returned to the ER in February, with pain in his left hand, and was examined
by Todd Harad, M.D.29 Dr. Harad agreed with the ongoing treatment of Joseph
Thornton, M.D., a hand surgeon that plaintiff saw twice for evaluation of his hand pain.30
Dr. Thornton ordered an MRI which revealed mild tenosynovitis of the second extensor
compartment of the wrist, recommended therapy, and the hand to be splinted, and to
see another hand surgeon and a neurologist.31 At this time, plaintiff was offered to
return to work, but rejected the job offer. He claimed he was unable to work due to his
hand condition.32 Dr. Jacobson reported plaintiff had not been elevating his hand or
minimizing use as advised.33 Plaintiff attended physical therapy three times a week,
and maintained his hand felt “pretty good” in the mornings, but worsened as usage
increased and the day progressed.34
Dr. Jacobson’s treatment records from April 2013 indicate that plaintiff had
continued left-hand soreness and nodules over the dorsal hand and spasms even with

26

D.I. 13 at 7 and D.I. 9-7, Ex. 1F at 253-55.
Id.
28
Id.
29
Id.
30
D.I. 13 at 7, D.I. 9-15, Ex. 24F at 671.
31
Id. at 7 and at 298.
32
D.I. 9-2 at 15.
33
Id.
34
D.I. 9-2 at 15 and D.I. 9-7, Ex. 1F.
27

4

minimal use.35 Further, plaintiff was taking care of his elderly mother, which made it
difficult to avoid using his hand.36
In 2013, Anne Mack, M.D. reevaluated plaintiff with a nerve conduction study of
his right upper and left lower extremity to evaluate for peripheral neuropathy.37 An
examination revealed decreased sensation in his left upper extremity, but sensation was
intact in his right upper extremity.38 Additionally, his lower extremities showed sensation
intact to light touch, strength at 5/5 throughout, with normal nerve conduction studies,
and asymptomatic in the extremities studied.39 There was no definite evidence of right
carpal tunnel, and neurologic evaluation of the upper extremities showed sensation was
decreased in his left second through fifth digits.40 Further, a screening
electromyography done of the left extremity was normal, and showed no evidence of a
left cervical radiculopathy or myopathy.41
Plaintiff underwent an MRI of his left hand which showed no abnormality within
the metacarpals or proximal phalanges.42 MRI of the left wrist showed no acute
osseous abnormality, mild tenosynovitis of the second extensor compartment and no
findings of an abcess or osteomyelitis.43 Dr. Mack informed Drs. Thornton and
Jacobson that the evidence of left median nerve entrapment at the wrist was consistent

35

Id. and D.I. 13 at 8.
Id.
37
D.I. 9-2 at 15, D.I. 9-7, Ex. 2F at 263-69, and D.I. 9-13, Ex. 11F at 528-38.
38
Id.
39
Id.
40
Id.
41
Id.
42
D.I. 9-7-9-9, Ex. 3F-4F at 270-348, and D.I. 9-11, Ex. 6F at 398-459.
43
Id.
36

5

with left carpal tunnel syndrome of mild severity.44 Plaintiff started physical therapy, was
wearing a splint and began taking Neurontin.45
In May 2013, plaintiff complained physical therapy at ATI was not helping.46 On
June 3, 2013, plaintiff was examined by J. Douglas Patterson, M.D.47 He noted that
plaintiff had altered sensibility in the long, ring and small fingers, more prominent in the
ring and long, with loose intrinsics and subluxation to the tendons in his long and ring
digits.48 Dr. Patterson recommended therapy and possible cortisone injections.49 In
July 2013, he recommended more physical therapy and to stop narcotics.50 In August,
he diagnosed plaintiff with carpel tunnel syndrome by the nerve study, but plaintiff had
negative Durkin’s and Phalen’s, and his symptoms were far from classic for carpal
tunnel syndrome.51 Plaintiff was prescribed Cymbalta and told to use Neurontin as
needed.52
In June 2013, Dr. Jacobson reported plaintiff was feeling mentally drained and
depressed, which was impacted by taking care of his mother, who had dementia.53 His
sister had helped prior to receiving Hospice care for her metastatic cancer.54
Plaintiff’s medical records from Christiana Care Health Service in 2013 showed

44

Id.
Id.
46
Id.
47
D.I. 13 at 7 and D.I. 9-10 at 349-60.
48
Id and D.I. 9-12, Ex. 7F at 482-93.
49
Id.
50
Id.
51
Id.
52
Id.
53
Id.
54
Id.
45

6

no evidence of deep vein thrombosis in the left upper extremity.55 He underwent thirtytwo sessions of physical therapy through August, 2013, but claimed no improvement
since February.56 He maintained he had increased pain in the dorsal left hand with
activities, increased stiffness in his fingers, soreness at instrinsics and around the
nodules. Further, he had difficulty with zippers and buttons, holding utensils, opening
doors, opening and closing lids, and washing his face or hands.57
After twelve sessions of physical therapy related to the thoracic outlet of the left
extremity, plaintiff returned to Dr. Patterson.58 Drs. Patterson and Jacobson agreed that
a neurology referral was the best option.59 In September 2013, plaintiff began treatment
with neurologist Lee Dresser, M.D., who treated him through February 2016.60 Dr.
Dresser reported plaintiff had weakness of external rotation and abduction of the left
shoulder in September 2013, and noted increased pain with activity in November
2013.61 Plaintiff was referred to pain management, considered for possible left stellate
ganglion block. Dr. Dresser also noted reflex sympathetic dystrophy of the left
extremity.62
Plaintiff was referred to Dr. Asit Patel, who examined him on December 19,
2013.63 Dr. Patel reported plaintiff ambulated with antalgic gait due to evident back

55

Id.
D.I. 13 at 9 and D.I. 9-11, Ex. 6F at 367.
57
Id.
58
D.I. 13 at 9 and D.I. 9-12, Ex. 7 at 482.
59
Id.
60
D.I. 9-12, Ex. 8-9F at 495-510.
61
Id. at 503.
62
D.I. 9-13, Ex. 14F at 556-58.
63
Id.
56

7

pain, and smoking cessation was discussed. He informed plaintiff to continue to use his
hand brace and glove to decrease pain and swelling.64 Plaintiff was offered a stellate
ganglion block, but declined because he was afraid, stating he would just apply for
disability.65 Dr. Patel diagnosed plaintiff with pain in limb, reflex sympathetic dystrophy
of the upper limb and chronic pain.66 Plaintiff underwent a right axillary nerve block, but
claimed the relief provided lasted onlyone and one-half days.67
In January and March 2014, Dr. Dresser found that plaintiff continued to be
medically unable to work using his left hand, and would be unable to return to a job that
required him to type with his left hand.68 During a visit in March 2014, Dr. Dresser
reported that plaintiff received two injections by Dr. Patel.69
Plaintiff returned to the ER again in August 2014 for numbness in his right arm,
with onset of pain in both upper extremities.70 Dr. Dresser diagnosed plaintiff with TIA
and cerebral infarction without residual deficits and ordered an MRI and MRA.71 In
December, plaintiff’s right arm numbness worsened with trembling twice a week, always
in the morning.72 Dr. Dresser diagnosed abnormal involuntary movements, RSD and
acute but ill-defined cerebral vascular disease.73

64

Id.
Id.
66
Id.
67
Id.
68
Id.
69
Id.
70
D.I. 9-18, Ex. 28F at 783-828.
71
Id.
72
Id.
73
Id.
65

8

On April 21, 2015, plaintiff returned to the ER because of right arm shaking.74 He
reportedly had thirty to sixty seconds of jerking, shaking and inability to use his right arm
and leg.75 During that time, he had two strong spells and perhaps eight-weak ones in
the past two weeks.76 He continued smoking a pack of cigarettes a day, had a blood
pressure of 139/76, and a brain MRI showed decreased signal in the left middle
cerebral artery with less prominent branching.77 Plaintiff’s episodes of right arm shaking
were characterized as compatible with focal seizures.78
A CT angiography of his brain showed the left middle asymmetrical cerebral
artery decreased in size.79 There was no evidence of a focal occlusion or any
aneurysm.80 A MRI of the brain was within normal limits for his age; the diagnosis was
embolic stroke and left parietal stoke due to a high-grade left cavernous carotid
stenosis.81 On May 7, 2015, plaintiff returned to the ER due to a possible seizure.82
Later in May, Dr. Dresser prescribed Keppra 500 mg. twice daily, and noted that plaintiff
had not suffered a seizure since being placed on the medication.83
On July 2, 2015, Dr. Jacobson completed a physical RFC questionnaire,
reporting that the emotional factors of depression and anxiety contributed to the severity

74

Id., Ex. 29F at 830-77.
Id.
76
Id.
77
Id.
78
Id.
79
Id.
80
Id.
81
Id.
82
Id.
83
Id.
75

9

of plaintiff’s symptoms and functional limitations.84 His pain and symptoms were
constantly severe enough to interfere with attention and concentration needed to
perform even simple work tasks and he was incapable of low stress jobs.85 Dr.
Jacobson noted plaintiff was able to walk two city blocks without rest or severe pain,
stand fifteen minutes at a time, stand/walk less than two hours and sit for more than two
hours for a total of at least six hours.86
Dr. Jacobson noted that plaintiff requires a job that permitted shifting positions
from sitting, standing or walking and he would require unscheduled breaks.87 Further,
plaintiff could occasionally lift ten pounds, and rarely twenty pounds, but did not require
a cane or other assistive device for walking/standing.88 Finally, plaintiff would rarely be
able to twist, stoop/bend, crouch/squat, or climb stairs, and he has significant limitations
with reaching, handling or fingering.89 Plaintiff would experience both good and bad
days, and be absent more than four days per month because of his impairments or
treatment.90
Charla Phoenix, PA-C, of Wilmington Neurology Consultants performed a
physical RFC questionnaire on July 30, 2015.91 She reported plaintiff was diagnosed
with a stroke, complex partial seizures, and reflex sympathetic dystrophy.92 Further, he

84

D.I. 9-13, Ex. 16F at 562-66.
Id.
86
Id.
87
Id.
88
Id.
89
Id.
90
Id.
91
D.I. 9-13, Ex. 17F at 567-71.
92
Id.
85

10

had severe pain in his left hand/fingers/arm, dizziness, stiffness and involuntary body
movements.93 She noted plaintiff’s pain would frequently interfere with attention and
concentration needed to perform simple work tasks and he was incapable of even low
stress jobs.94
Plaintiff began counseling with licensed professional counselor, Elijah Butler, for
depression in July 2015.95 Mr. Butler reported fatigue, anger, depression and stress as
plaintiff’s mental health problems.96 His self-care skills were intact and unimpaired, as
was his domestic skills.97 He continued to have normal relationships with family and
friends, and considerable stress resulted from caring for his mother.98 However, in
December 2015, plaintiff began receiving help from a nursing agency.99
In 2016, plaintiff asked Mr. Butler to complete disability forms.100 He noted
plaintiff had limited to poor mental abilities, adjustment disorder aptitudes, could only
perform unskilled work, and had a low IQ or reduced intellectual functioning.101 Further,
plaintiff had three or more episodes of decompensation within twelve months, each
lasting at least two weeks, and he would likely be absent from work more than four days
per month due to his impairments or treatment.102
On March 1, 2016, plaintiff suffered a stroke and was hospitalized for three
93

Id.
Id.
95
D.I. 9-15, Ex. 23F at 635-69.
96
Id.
97
Id.
98
Id.
99
Id.
100
Id.
101
Id.
102
Id.
94

11

days.103 His complaints in the ER complaining were numbness and weakness on his
right side and speech difficulties.104 He was diagnosed with embolic stroke and left
parietal stroke from high grade left cavernous carotid stenosis, as well as, chronic
neuropathic pain, history of seizures and chronic back pain.105 Plaintiff’s history
indicated his first stroke occurred in 2014, with residual right-hand weakness causing
the grip of his right hand being weaker than the left since January 2016.106
Plaintiff is currently prescribed a number of medications, including: Cymbalta,
Keppra, Lotrel, Lipitor, Plavix, Xanex, Abilify, Methadone, Oxycodone, and Aspirin.107
Plaintiff’s medical file was also reviewed by nonexamining medical consultants, Dr.
Shane and Dr. Shaffzin in July 2013 and March 2014, who both agreed that plaintiff was
not disabled and could perform past relevant work.108
B.

Hearing Testimony
1.

Plaintiff’s Testimony

At the administrative hearing on May 17, 2016, plaintiff testified to his
background, work history, and alleged disability.109 Plaintiff is sixty-two years old,
single, and has an adult daughter and three grandchildren.110 He has a high school
education.111 Plaintiff testified that his driving abilities are limited, and he has not

103

D.I. 9-14, Ex. 19F at 583-625.
Id.
105
Id.
106
Id.
107
D.I. 9-6, Ex. 11E at 239.
108
D.I. 9-3, Ex. 1A-3A at 69-93.
109
D.I. 9-2 at 36-68.
110
Id. at 39-40.
111
Id. at 39.
104

12

traveled out of state since November 2012.112 He further testified he has not worked
since being laid off in 2011, and received unemployment benefits for approximately one
year.113 He maintained that he attempted to look for employment, but stopped after his
hand injury.114
Plaintiff testified that during his ER visit on November 22, 2012, the nurse
struggled starting the IV and ended up popping his vein and damaging the nerves
underneath the vein and vein area.115 He stated that he continues to smoke, but has cut
back to a pack of cigarettes per week.116 He testified to experiencing chronic left hand
pain, which has been diagnosed as complex regional pain syndrome II.117
Plaintiff maintained that his pain is very severe, and that he suffered a stroke on
his right side, resulting in weakness on this side.118 He testified he is not able to brush
his teeth or tie his shoes with his right hand.119 Further, he is unable to write his name
or do other simple tasks.120 Plaintiff treats at Dynamic Therapy for his left hand
problems and for his stroke, but has not attended recently before the Administrative
Hearing because his mother’s death.121
Plaintiff testified that he is able to lift five to ten pounds, but ten pounds is

112

Id. at 40-41.
Id. at 41-42.
114
Id. at 42.
115
Id.
116
Id. at 43.
117
Id. at 45.
118
Id.
119
Id.
120
Id.
121
Id. at 45-47.
113

13

pushing it.122 He cannot stand for long periods due to pain in the lower lumbar region,
and he can walk only two or three blocks at a time.123 Plaintiff can stand for twenty to
thirty minutes before he needs to sit down.124 He testified he tries to help out with the
yard, vacuum, mopping the kitchen and bathroom floors, but is limited in what he can
do, and does not have help.125 Before his mother passed away, aides assisted with
some chores and his mother’s care. Additionally, friends and family helped, but have
not done so recently.126
On the day of the Administrative hearing, plaintiff testified that his pain level was
“maybe two to three”, but after being in “this cold building, it’s probably six, seven,
heading toward an eight now right as we speak.”127 The pain plaintiff was referring to
was from his left hand. He testified he had not taken any pain medicine because he
“took all [his] medicines except the medicines that [he] thought that play a part in
making [him] tired,” and did not take the prescribed Xanax, Percocet, or Methadone.128
He further testified he used the keyboard at work between seven and seven and a half
hours in an eight hour workday, but is now unable to do so for twenty minutes. When
he uses his left hand, “it always feel[s] worse.”129

122

Id. at 49
Id.
124
Id.
125
Id. at 51-52.
126
Id. at 54-55.
127
Id.
128
Id.
129
d Id. at 57.
123

14

2.

Vocational Expert Testimony

Testimony was provided by vocational expert, Christopher Rymond.130 Mr.
Rymond received his Master’s of Vocational Rehabilitation Counseling from the
University of Kentucky, and was certified by the Commission on Rehabilitation
Counselor Certification in 2009.131 He has worked as a Vocational Rehabilitation
Specialist and a vocational expert for the Social Security Administration.132 Mr. Rymond
provides classification of employment and expert court testimony regarding jobs in local,
regional, and national economies, as well as the effects specific physical and mental
limitations may have on the availability of employment.133
Mr. Rymond classified plaintiff’s work as a credit analyst.134 He reported that a
credit analyst is skilled work per the DOT, at a SVP of 7, with sedentary exertion.135 He
further maintained this work may have started as a semiskilled position, but over the
years, became a skilled position.136 Mr. Rymond also characterized plaintiff’s previous
work history as a salesclerk, loan clerk, and insurance claim clerk.137
Mr. Rymond addressed the hypothetical situations posed by the ALJ. The ALJ
asked whether an individual of plaintiff’s age, education and work history, could perform
work at a light exertional level, and whether that same individual could:
occasionally life twenty pounds, could frequently lift ten pounds, could
130

D.I. 9-2 at 59-65.
D.I. 9-6 Ex. 12E at 240.
132
Id. at 241.
133
Id.
134
Id. at 61.
135
Id.
136
Id.
137
Id.
131

15

stand and walk up to six hours and sit every six hours in an eight-hour
workday, could occasionally push and pull with the left upper extremity,
occasionally crawl, but should not ever climb ladders, ropes, or scaffolds,
and could occasionally reach in all directions overhead and front and
laterally with the left upper extremity, also would need to avoid
concentrated exposure to vibration and hazards such as dangerous
machinery and unprotected heights. 138
Mr. Rymond testified that these limitations allowed for work as a credit analyst, a
skilled work position, with occasional handling, fingering, and feeling, and only
occasional reaching in all directions with the left, non-dominant upper extremity.139
Further, employment as a loan clerk, insurance claims clerk, and salesclerk could not
be performed as plaintiff described, but could possibly be performed within the range of
these jobs.140 Additionally, Mr. Rymond testified that:
any discussion herein of issues not directly addressed by the DOT such
as differences in reaching or handling would be based upon my
experiences and training . . . as well as my observation as to how jobs are
typically performed and the tolerances and accommodations I feel most
employers would be willing to make. Further, any variation I may have
made within classifying the claimant’s past work is based on the claimant’s
description of his work activities both here and in the record as well as my
understanding of DOT. . . .141
C.

ALJ’s Finding of Facts and Conclusions of Law

Based on plaintiff’s application for a period of disability and disability insurance
benefits protectively filed on February 6, 2014, the ALJ found plaintiff as not disabled
under sections 216(I) and 223(d) of the Social Security Act.142 The ALJ’s disability
decision from the 2016 hearing, are summarized as follows:
138

Id. at 62-63.
Id. at 63.
140
Id. at 63-64.
141
Id. at 66.
142
D.I. 9-2 at 21.
139

16

1.
2.

The claimant has not engaged in substantial gainful activity since
November 1, 2012, the alleged onset date (20 CFR 404.1571 et
seq).

3.

The claimant has the following severe impairments: complex
regional pain syndrome vs. reflex sympathetic dystrophy and
degenerative joint disease (20 CFR 404.1520©).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 404.1520(d), 404.1525 and 404.1526).

5.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform less than the Full Range of light work as defined in 20 CFR
404.1567(b). The claimant is able to life/carry twenty pounds
occasionally and ten pounds frequently; and he is able to
stand/walk six hours and sit at least six hours in an eight-hour
workday. He is able to occasionally push/pull with his left upper
extremity, occasionally crawl and occasionally reach in all directions
with his left upper extremity; but he should not climb ladders, ropes
or scaffolds. He should avoid concentrated exposure to vibration
and hazards, such as dangerous machinery and unprotected
heights.

6.

The claimant is capable of performing past relevant work as a Loan
Clerk/Credit Analyst, Insurance Claims Clerk. This work does not
require the performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 404.1565).

7.

III.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2016.

The claimant has not been under a disability, as defined in the
Social Security Act, from November 1, 2012, through the date of
this decision (20 CFR 404.1520(f)).143

STANDARD OF REVIEW
A.

143

Motion for Summary Judgment

Id. at 12-21.
17

Each party moved for summary judgment.144 In determining the appropriateness
of summary judgment, the court must “review the record as a whole, ‘draw[ing] all
reasonable inferences in favor of the nonmoving party[,]’ but [refraining from] weighing
the evidence or making credibility determinations.”145 If there is no genuine issue as to
any material fact and the movant is entitled to judgment as a matter of law, summary
judgment is appropriate.146
This standard does not change merely because there are cross-motions for
summary judgment.147 Cross-motions for summary judgment:
are no more than a claim by each side that it alone is entitled to summary
judgment, and the making of such inherently contradictory claims does not
constitute an agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial consideration and
determination whether genuine issues of material fact exist.148
“The filing of cross-motions for summary judgment does not require the court to grant
summary judgment for either party.”149
B.

Court’s Review of the ALJ’s Findings

Section 405(g) sets forth the standard of review of the ALJ’s decision by the
district court. The court may reverse the Commissioner’s final determination only if the
ALJ did not apply the proper legal standards, or the record did not include substantial
evidence to support the ALJ’s decision. The Commissioner’s factual decisions are
144

D.I. 12 (Plaintiff’s motion for summary judgment); D.I. 14 (Defendant’s motion
for summary judgment).
145
Reeves v. Sanderson Plumbing, Prods., Inc., 530 U.S. 133, 150 (2000).
146
Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (quoting FED. R. CIV.
P. 56(c)).
147
Appelmans v. City of Philadelphia, 826 F.2d 214, 216 (3d Cir. 1987).
148
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968).
149
Krupa v. New Castle County, 732 F. Supp. 497, 505 (D. Del. 1990).
18

upheld if supported by substantial evidence.150 Substantial evidence means less than a
preponderance of the evidence, but more than a mere scintilla of evidence.151 As the
United States Supreme Court has found, substantial evidence "does not mean a large
or significant amount of evidence, but rather such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."152
In determining whether substantial evidence supports the Commissioner’s
findings, the court may not undertake a de novo review of the Commissioner’s decision
and may not re-weigh the evidence of record.153 The court’s review is limited to the
evidence that was actually presented to the ALJ.154 The Third Circuit has explained that
a:
single piece of evidence will not satisfy the substantiality test if the
[Commissioner] ignores, or fails to resolve, a conflict created by countervailing
evidence. Nor is evidence substantial if it is overwhelmed by other evidence,
particularly certain types of evidence (e.g., evidence offered by treating
physicians) or if it really constitutes not evidence but mere conclusion.155
Thus, the inquiry is not whether the court would have made the same
determination, but rather, whether the Commissioner’s conclusion was reasonable.156
Even if the court would have decided the case differently, it must defer to the ALJ and
affirm the Commissioner’s decision so long as that decision is supported by substantial

150

42 U.S.C. §§ 405(g), 1383(c)(3); see also Monsour Medical Center v.
Heckle, 806 F .2d 1185, 1190 (3d Cir. 1986).
151
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005).
152
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
153
Monsour, 806 F.2d at 1190.
154
Matthews v. Apfel, 239 F.3d 589, 593-95 (3d Cir. 2001)
155
Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983).
156
Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
19

evidence.157
Where “review of an administrative determination is sought, the agency's
decision cannot be affirmed on a ground other than that actually relied upon by the
agency in making its decision.”158 In Securities & Exchange Commission v. Chenery
Corp., the Supreme Court found that a “reviewing court, in dealing with a determination
or judgment which an administrative agency alone is authorized to make, must judge
the propriety of such action solely by the grounds invoked by the agency. If those
grounds are inadequate or improper, the court is powerless to affirm the administrative
action by substituting what it considers to be a more adequate or proper basis.”159 The
Third Circuit has recognized the applicability of this finding in the Social Security
disability context.160 Thus, this court's review is limited to the four corners of the ALJ's
decision.161
C.

ALJ’s Disability Determination Standard

The Supplemental Social Security Income (SSI) program was enacted in 1972 to
assist “individuals who have attained the age of 65 or are blind or disabled” by setting a
minimum income level for qualified individuals.162 A claimant – in order to establish SSI
eligibility – bears the burden of proving that he is unable to “engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment

157

Monsour, 806 F .2d at 1190-91.
Hansford v. Astrue, 805 F. Supp. 2d 140, 144-45 (W.D. Pa. 2011).
159
Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947).
160
Fargnoli v. Massanari, 247 F.3d 34, 44, n.7 (3d Cir. 2001).
161
Cefalu v. Barnhart, 387 F. Supp. 2d 486, 491 (W.D. Pa. 2005).
162
Sullivan v. Zebley, 493 U.S. 521, 524 (1990) (citing 42 U.S.C. § 1381 (1982
158

ed.)).
20

which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of or not less than twelve months.”163 Moreover, “the physical or
mental impairment or impairments must be of such severity that the claimant is not only
unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
significant numbers in the national economy.”164 Furthermore, a “physical or mental
impairment” is an impairment that results from anatomical, physiological, or
psychological abnormalities which are evidenced by medically acceptable clinical and
laboratory diagnostic techniques.165
1.

Five-Step Test.

The Social Security Administration uses a five-step sequential claim evaluation
process to determine whether an individual is disabled.166
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful activity. If a claimant
is found to be engaged in substantial activity, the disability claim will be
denied.
In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment. If the claimant fails to
show that her impairments are “severe”, she is ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence of the
claimant's impairment to a list of impairments presumed severe enough to
preclude any gainful work. If a claimant does not suffer from a listed
impairment or its equivalent, the analysis proceeds to steps four and five.
Step four requires the ALJ to consider whether the claimant retains the
residual functional capacity to perform her past relevant work. The

163

42 U.S.C. § 423(d)(1)(A).
42 U.S.C. § 423(d)(2)(A).
165
42 U.S.C. § 423(d)(3).
166
20 C.F.R. §416.920(a); see also Plummer v. Apfel, 186 F.3d 422 (3d Cir.
164

1999).
21

claimant bears the burden of demonstrating an inability to return to her
past relevant work. If the claimant is unable to resume her former
occupation, the evaluation moves to the final step.
At this stage, the burden of production shifts to the Commissioner,
who must demonstrate the claimant is capable of performing other
available work in order to deny a claim of disability. The ALJ must show
there are other jobs existing in significant numbers in the national
economy which the claimant can perform, consistent with her medical
impairments, age, education, past work experience, and residual
functional capacity. The ALJ must analyze the cumulative effect of all the
claimant's impairments in determining whether she is capable of
performing work and is not disabled. The ALJ will often seek the
assistance of a vocational expert at this fifth step.167
If the ALJ determines that a claimant is disabled at any step in the sequence, the
analysis ends.168
2.

Weight Afforded Treating Physicians

“A cardinal principle guiding disability eligibility determinations is that the ALJ
accord treating physicians’ reports great weight.”169 Moreover, such reports will be
given controlling weight where a treating source’s opinion on the nature and severity of
a claimant’s impairment is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence on record.170
The ALJ must consider medical findings supporting the treating physician’s
opinion that the claimant is disabled.171 If the ALJ rejects the treating physician’s

167

Plummer, 186 F.3d at 427.
20 C.F.R § 404.1520(a)
169
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)
170
Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001).
171
Morales, 225 F.3d at 317 (citing Plummer, 186 F.3d at 429).
168

22

assessment, he may not make “speculative inferences from medical reports” and may
reject “a treating physician’s opinion outright only on the basis of contradictory medical
evidence.”172 If an opinion is rejected, then the ALJ must provide an explanation for the
rejection. However, the explanation need not be exhaustive, but rather “in most cases,
a sentence or short paragraph would probably suffice.”173
However, a statement by a treating source that a claimant is “disabled” is not a
medical opinion; rather, it is an opinion on an issue reserved to the ALJ because it is a
finding that is dispositive of the case.174 Therefore, only the ALJ can make a disability
determination.
3.

Evaluation of Subjective Accounts of Pain175

Statements about the symptoms alone never establish the existence of any
impairment or disability.176 The Social Security Administration uses a two-step process
to evaluate existence and severity of symptoms.
a.

Step One, Existence of Pain

First, the ALJ must find a medically determinable impairment – proven with
medically acceptable clinical and laboratory diagnostic data – that could reasonably be
expected to produce the claimant’s symptoms. Otherwise, the ALJ cannot find the

172

Plummer, 186 F.3d at 429.
Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981).
174
See 20 C.F.R. § 416.927 (e)(1).
175
See 20 C.F.R §§ 416.928-29; see also SSR 96-7p.
176
A symptom is an individual’s own description of physical or mental
impairments such as pain, fatigue, shortness of breath and other complaints. see SSR
96-7p.
173

23

applicant disabled, no matter how genuine the symptoms appear to be.
This step does not consider the intensity, persistence, and limiting effects of the
symptoms on the claimant: it only verifies whether a medical condition exists that could
objectively cause the existence of the symptom.
Analysis stops at this step where the objectively determinable impairment meets
or medically equals one listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, because
the claimant is considered disabled per se.
b.

Step Two, Severity of Pain

At step two, the ALJ must determine the extent to which the symptoms limit the
claimant’s ability to do basic work activities. At this step, the ALJ must consider the
entire record, including medical signs, laboratory findings, the claimant’s statements
about symptoms, any other information provided by treating or examining physicians
and psychologists, and any other relevant evidence in the record, such as the claimant’s
account of how the symptoms affect his activities of daily living and ability to work.177
Where more information is needed to assess a claimant’s credibility, the ALJ
must make every reasonable effort to obtain available information that would shed light
on that issue. Therefore, the ALJ must consider the following factors relevant to
symptoms, only when such additional information is needed:
(I) The applicants’ account of daily activities;
(ii) The location, duration, frequency, and intensity of pain or other symptoms;

177

20 C.F.R. § 404.1529.
24

(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication the
applicant takes or has taken to alleviate pain or other symptoms;
(v) Treatment, other than medication, the applicant receives or has received for
relief of pain or other symptoms;
(vi) Any measures the applicant uses or has used to relieve pain or other
symptoms (e.g., lying flat, standing for 15 to 20 minutes every hour, sleeping on
a board, etc.); and
(vii) Other factors concerning functional limitations and restrictions due to pain or
other symptoms.178
4.

Factors in Evaluating Credibility179

A claimant’s statements and reports from medical sources and other persons
with regard to the seven factors, noted above, along with any other relevant information
in the record, provide the ALJ with an overview of the subjective complaints, and are
elements to the determination of credibility.
Consistency with the record, particularly medical findings, supports a claimant’s
credibility. Since the effects of symptoms can often be clinically observed, when
present, they tend to lend credibility to a claimant’s allegations. Therefore, the
adjudicator should review and consider any available objective medical evidence
concerning the intensity and persistence of pain or other symptoms in evaluating the

178
179

20 C.F.R. § 404.1529
SSR 16-3p.
25

claimant’s statements.
Persistent attempts to obtain pain relief, increasing medications, trials of different
types of treatment, referrals to specialists, or changing treatment sources may indicate
that the symptoms are a source of distress and generally support a claimant’s
allegations. An applicant’s claims, however, may be less credible if the level or
frequency of treatment is inconsistent with the level of complaints, or if the medical
reports or records show noncompliance with prescribed treatment.
Findings of fact by state agency medical and psychological consultants and other
physicians and psychologists regarding the existence and severity of impairments and
symptoms, and opinions of non-examining physicians and psychologist are also part of
the analysis. Such opinions are not given controlling weight. However, the ALJ,
although not bound by such findings, may not ignore them and must explain the weight
afforded those opinions in his decision.
Credibility is one element in determining disability. The ALJ must apply his
finding on credibility in step two of the five-step disability determination process, and
may use it at each subsequent step.
The decision must clearly explain – provide sufficiently specific reasons based on
the record – to the claimant and any subsequent reviewers, the weight afforded to the
claimant’s statements and the reasons therefore.
The law recognizes that the claimant’s work history should be considered when

26

evaluating the credibility of his testimony or statements.180 A claimant’s testimony is
accorded substantial credibility when he has a long work history, which demonstrates it
is unlikely that, absent pain, he would have ended employment.181
5.

Medical Expert Testimony

The onset date of disability is determined from the medical records and reports
and other similar evidence, which requires the ALJ to apply informed judgment.182 “At
the hearing, the administrative law judge (ALJ) should call on the services of a medical
advisor when onset must be inferred.”183
IV.

DISCUSSION
A.

Parties’ Contentions

In his appeal, plaintiff argues the ALJ’s evaluation of the opinion evidence is
insufficient as a matter of law and contrary to the regulations, Agency policy and Third
Circuit precedent.184 He contends that the opinions of his treating physicians establish
greater limitations than set forth in the RFC and, pursuant to Agency authority, he is
disabled.185 Further, he maintains that the ALJ failed to provide good, specific,

180

20 C.F.R. § 404.1529(a)(3)
Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984)(citing Taybron v.
Harris, 667 F.2d 412, 415 n.6 (3d Cir. 1981)). In Podedworny, the claimant worked for
thirty-two years as a crane operator for one company. He had a ninth grade education
and left his employment after the company physicians determined that his symptoms of
dizziness and blurred vision prevented him from safely performing his job.
182
SSR 83-20.
183
Id.
184
D.I. 13 at 12.
185
Id. at 13-14.
181

27

supported reasons for rejecting the treating opinions.186 Additionally, he argues that the
ALJ’s credibility assessment is generally flawed based on the aforementioned issues,
and specifically because it fails to acknowledge plaintiff’s stellar work history.187
Alternatively, defendant maintains the ALJ complied with the regulations when
weighing the medical evidence, and plaintiff’s work history would not have changed the
outcome of this case.188
B.

Disability Analysis

Title II of the Social Security Act, 42 U.S.C. § 423(a)(I)(D), “provides for the
payment of insurance benefits” to those who contributed to the program and suffer from
a physical or mental disability.189 In order to qualify for disability insurance benefits, a
claimant must establish he was disabled prior to the date he was last insured.190 A
“disability” is defined as the inability to do any substantial gainful activity because of any
medically determinable physical or mental impairment, which either could result in death
or has lasted or can be expected to last for a continuous period of at least twelve
months.191 To be disabled, the severity of the impairment must prevent return to
previous work, and considering age, education, and work experience, restrict “any other
kind of substantial gainful work which exists in the national economy.”192

186

Id. at 14-19.
Id. at 19-20.
188
D.I. 15 at 7-12.
189
Bowen, 482 U.S. at 140.
190
20 C.F.R. § 404.131.
191
42 U.S.C. §§ 423(d)(I)(A), 1382(c)(a)(3).
192
42 U.S.C. § 423(d)(2)(A); Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003).
187

28

As noted previously, in determining whether a person is disabled, the
Commissioner is required to perform a five-step sequential analysis.193 If a finding of
disability or non-disability can be made at any point in the sequential process, the
Commissioner does not review the claim further.194
When a claimant’s impairment or its equivalent matches an impairment in the
listing, the claimant is presumed disabled.195 If a claimant’s impairments, either
singularly or in combination, fail to meet or medically equal any listing, the analysis
continues.196 In the analysis through the five steps, the Commissioner determines
whether the claimant retains the RFC to perform his past relevant work.197 A claimant’s
RFC is “that which an individual is still able to do despite the limitations caused by [his]
impairment(s).”198
If the claimant is unable to return to his past relevant work, the Commissioner
then determines whether the claimant’s impairments preclude adjusting to any other
available work.199 At this final step, the burden is on the Commissioner to show the
claimant is capable of performing other available work existing in significant national
numbers and consistent with the claimant’s medical impairments, age, education, past

193

20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422,427-28 (3d
Cir. 1999).
194
20 C.F.R. § 404.1520(a)(4).
195
20 C.F.R. § 404.1520(a)(4)(iii).
196
20 C.F.R. § 404.1520(e).
197
20 C.F.R. § 404.1520(a)(4)(iv); see also Plummer, 186 F.3d at 428.
198
Fargnoli, 247 F.3d at 40.
199
20 C.F.R. § 404.1520(g) (mandating a finding of non-disability when claimant
can adjust to other work); see also Plummer, 186 F.3d at 428.
29

work experience, and RFC before denying disability benefits.200 In making this
determination, the ALJ must analyze the cumulative effect of all the claimant’s
impairments, often through the assistance of a vocational expert.
1.

Weight Accorded to Medical Opinion Evidence

It is the exclusive responsibility of the ALJ to weigh the evidence in the record as
a whole in making a disability decision.201 The evidence presented to the ALJ may
contain differing medical opinions from both treating and non-treating physicians, as
well as other testimony.202 Normally, the evidence presented by the treating physician is
given controlling weight as that individual may be most acquainted with the medical
history of the claimant. However, in circumstances where the treating physician’s
opinion is not consistent with the record as a whole or is not well supported by
“medically acceptable clinical and laboratory diagnostic techniques”, an ALJ may
reasonably accord little weight to the treating physician’s opinion.203
Plaintiff argues that the ALJ failed to properly weigh the medical opinion from
treating physicians Drs. Jacobson, Dresser and Fishman, and PA-C Phoenix. However,
the ALJ’s decision regarding weight did not turn on whether the nature and severity of
his impairments were well supported by medically acceptable clinical and laboratory
diagnostic techniques, but rather on whether the opinion was inconsistent with the other
substantial evidence in the record. This court finds that the proper weight was given to

200

Id.
See 20 CFR 404.1527(e)(2).
202
See 20 CFR 404.1512.
203
See 20 CFR 404.1527.
201

30

the medical opinions of the treating physicians, and the evidence supports this decision.
a.

Treating Physicians

The ALJ considered the assessments of plaintiff’s treating physicians, but
assigned their opinions partial, relatively slight weight. The ALJ maintained that their
opinions were not supported by the objective documentation in their treatment records.
These opinions were inconsistent with plaintiff’s demonstrated ability to serve as
primary caretaker for his elderly mother, who had dementia and required assistance
with bathing and daily activities. The ALJ found the medical evidence did not
substantiate the inability to perform light and sedentary work, such as the work plaintiff
previously performed. The ALJ further maintained that the conclusion that plaintiff is not
disabled is supported by the opinions of the state agency medical and psychological
consultants.
The ALJ properly afforded slight weight to Dr. Jacobson’s opinion, because of the
inconsistency with PA-C Phoenix’s treatment records. On July 20, 2015, PA-C Phoenix
performed a Physical RFC of plaintiff at Wilmington Neurology Consultants. He was
diagnosed with stroke, complex partial seizures, and reflex sympathetic dystrophy.
Plaintiff reported he had severe pain in his left hand, fingers, and arm, dizziness,
stiffness, and involuntary body movements. Ms. Phoenix noted his pain would
frequently interfere with attention and concentration needed to perform simple work
tasks making him incapable to perform low stress jobs. Further, she reported that
plaintiff would be able to sit for twenty to thirty minutes, stand or walk for ten to fifteen
minutes at one time for a total of about two hours sitting and two hours standing/walking
31

in an eight hour workday. Additionally, she maintained he could rarely lift ten pounds.
Under the disability determination standard, a statement by a treating source that
a claimant is disabled is not a medical opinion.204 The ALJ is the only one with authority
to decide whether plaintiff is disabled. In other words, a finding of “disabled” by a
treating physician does not equate to the definition of disabled under the Acts.
Therefore, the treating medical opinions that plaintiff is disabled are not dispositive, and
the ALJ did not err in reject it as a medical opinion.
b.

State Agency Consultants

Plaintiff’s medical file was reviewed by state agency consultants, Drs. John
Shane and Lawrence Shaffzin.205 Dr. Shane reported that plaintiff’s statements about
the intensity, persistence, and functionally limiting effects of the symptoms were not
substantiated by the objective medical evidence alone. He further noted that the
assessment of the credibility of plaintiff’s statements regarding symptoms considering
the total medical and non-medical evidence were only partially credible.
Dr. Shane documented an RFC evaluation of plaintiff, reporting that he had
external limitations due to his left hand. Plaintiff could: occasionally lift and/or carry
twenty pounds; frequently lift and/or carry ten pounds; stand and/or walk for about six
hours in an eight hour day; sit for about six hours in an eight hour work day; his left
upper extremity was limited with push/pull; he had postural limitations, and could never
climb ladders, ropes, or scaffolds. He further determined that plaintiff had possible left

204
205

See 20 CFR 416.927(e)(1).
D.I. 9-3, Ex. 1A-3A at 69-93.
32

upper extremity thrombophlebitis, which was equivocal at best. His right side was
normal, but his left showed mild CTS and he was limited in reaching, handling, fingering,
or feeling.
Dr. Shane maintained that the allegations lacked credibility and plaintiff not only
had past relevant work, but his RFC showed he was able to perform past relevant work.
He found that the evidence demonstrated that plaintiff had some limitations in
performance of certain work activities; however these limitations would not prevent him
from performing past relevant work as a senior credit analyst, and therefore plaintiff is
not disabled.
Dr. Shaffzin agreed with Dr. Shane’s determination of plaintiff, finding that he is
not disabled and could generally perform past relevant work in the national economy.
He maintained that the evidence showed some limitations in performance of certain
work activities; however these limitations would not prevent him from performing past
relevant work as a senior credit analyst.
2.

The ALJ’s Credibility Assessment

As stated above, a claimant’s statements and reports from medical sources and
other persons, along with any other relevant information in the record, provide the ALJ
with an overview of the subjective complaints, and are elements to the determination of
credibility. However, the key component in the assessment of plaintiff’s credibility is
consistency between his testimony and the record. Plaintiff’s claims may be less
credible if the level or frequency of treatment is inconsistent with the degree of his
complaints, or if the medical reports or records show noncompliance with prescribed
33

treatment.
The ALJ concluded plaintiff’s testimony was not credible due to its inconsistency
with other evidence in the record. The ALJ compared the record to plaintiff’s testimony
and concluded his “medically determinable impairments could reasonably be expected
to cause the alleged symptoms; however . . . [his] statements concerning the intensity,
persistence, and limiting effects of these symptoms are not entirely credible . . . .”206
The ALJ found that plaintiff was not intentionally misrepresenting the severity of his
impairments, and his decision to care for his mother was admirable, but the objective
medical evidence does not substantiate inability to perform light and sedentary work,
such as the work he previously performed.
Proper application of the credibility standard requires the ALJ’s decision to clearly
explain the weight afforded to the claimant’s statements and his reasoning, by including
sufficiently specific reasons from the record. As previously stated, the examples cited
herein of his reasoning, clearly delineated in the decision suffice.
Plaintiff argues that the opinions of the state agency medical consultants should
not have been afforded great weight. However, findings of fact by state agency medical
and psychological consultants, other psychologists and physicians, and the opinions of
non-examining physicians regarding the existence and severity of impairments and
symptoms are part of the analysis. The ALJ considered the vocational expert’s
testimony, and also added limitations in plaintiff’s favor to that assessment, in making
the final determination regarding disability. The ALJ did not give the vocational expert’s
206

D.I. 9-2 at 19.
34

opinion controlling weight, and therefore, did not err.
V.

CONCLUSION
Therefore, Plaintiff’s Motion for Summary Judgment (D.I. 12) is denied; and

Defendant’s Motion for Summary Judgment (D.I. 14) is granted. An order consistent
with the findings in this memorandum shall follow.
December 4, 2018

/s/ Mary Pat Thynge
Chief U.S. Magistrate Judge

35