Thomas v. Astrue
Filing
24
OPINION: See written Opinion. Plaintiff's Motion for Summary Judgment (d/e 20) is DENIED, and Defendant Commissioner of Social Security has filed a Motion for Summary Affirmance (d/e 22) which is ALLOWED. The Decision of the Commissioner is AFFIRMED. THIS CASE IS CLOSED. Entered by Magistrate Judge Byron G. Cudmore on 2/2/2012. (MJ, ilcd)
E-FILED
Thursday, 02 February, 2012 04:59:57 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
BARBARA LYNN THOMAS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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No. 11-CV-3055
OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
Plaintiff Barbara Thomas appeals from the denial of her application
for Social Security Disability Insurance Benefits and Supplemental Security
Income (collectively “Disability Benefits”) under Titles II and XVI of the
Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c. This
appeal is brought pursuant to 42 U.S.C. §§ 405(g) and 1383(c). Thomas
has filed a Motion for Summary Judgment (d/e 20), and Defendant
Commissioner of Social Security has filed a Motion for Summary
Affirmance (d/e 22). The parties consented, pursuant to 28 U.S.C.
§ 636(c), to have this matter proceed before this Court. Consent to
Proceed Before a United States Magistrate Judge, and Order of Reference
Page 1 of 20
entered October 3, 2011 (d/e 17). For the reasons set forth below, the
Decision of the Commissioner is affirmed.
STATEMENT OF FACTS
Thomas was born on December 15, 1945. She completed high
school in 1963. She also received training as a certified care giver in 2006.
Answer to Complaint (d/e 15),attached Certified Transcript of Record of
Proceedings Before the Social Security Administration (R.), at 35. She last
worked as a care giver in a residence home beginning in 2005 until
January 1, 2007. R. 36, 39. She previously worked for two years as a
cashier at Walmart. R. 47-48.
Thomas has an extensive medical history of suffering from
depression and post traumatic stress disorder. In November 1992,
Thomas was diagnosed with major depression recurrent in partial
remission with multiple psycho social stressors. R. 329.1 The records
from the Christian County, Illinois, Mental Health Associates show that she
was treated by a psychiatrist, Dr. Obul Reddy, M.D., from 1992 to 2003.
R. 282-329. Thomas moved to Florida in 2003, but returned to Illinois in
November 2004.
1
The records refer to Thomas as Barbara Wells. Wells was her last name before
she married in 2008.
Page 2 of 20
Upon her return to Illinois, Thomas started seeing Mr. Peter Corso, a
licensed counselor, on November 16, 2004. R. 404. Corso noted that
Thomas’ depression was relatively controlled, but she became more
depressed in the winter. He assessed her with a Global Assessment of
Functioning (GAF) score of 65. R. 404. The GAF scale reflects a
clinician's assessment of an individual's symptom severity or level of social,
occupational, or school functioning. American Psychiatric Association,
Diagnostic & Statistical Manual of Mental Disorders, 32-33 (4th ed., Text
Rev. 2000). A GAF score of 61 to 70 means mild symptoms or some
difficulty in functioning, but generally functioning pretty well. A GAF score
of 51 to 60 means some moderate symptoms or moderate difficulty in
functioning. A GAF score of 41 to 50 means serious symptoms or serious
difficulty in functioning. Id. at 34.
On December 20, 2004, Corso noted that Thomas was nonsymptomatic and she stated that she felt stable. He assessed a GAF score
of 69. R. 403. She saw Corso on a monthly basis throughout 2004 and
2005. He assessed her GAF score as ranging from 60 top 70. R. 402-400,
395-97, 390-93, 388.
Thomas saw Dr. Reddy on February 23, 2005, Dr. Reddy noted that
her thinking was logical, coherent, and goal directed. He found that her
concentration was fair, her retention and recall were not impaired, she had
Page 3 of 20
no other memory deficits, her judgment and insight were fair, and she had
no other sensorium deficits. R. 279-80. Dr. Reddy listed her diagnosis as
major depression and mixed personality traits. R. 280. He assessed her
with a GAF score of 51. Dr. Reddy prescribed Prozac and Imipramine.
R. 279.
Thomas saw Dr. Reddy again on June 1, 2005. Dr. Reddy noted that
Thomas was reasonably stable on her current medications. He continued
the medications and assessed her with a GAF score of 58. R. 278. On
November 2, 2005, Dr. Reddy noted that Thomas was doing poorly. He
increased her Prozac dosage from 20 mg to 40 mg. He assessed her with
a GAF score of 45. R. 277.
Thomas saw Dr. Reddy again on March 8, 2006. Thomas reported
that she switched from generic to name brand medication and felt much
better. Dr. Reddy noted that she was significantly improved and assessed
her GAF score as 51. R. 275. Corso saw Thomas on March 13, 2006. He
assessed her GAF score as 70 and noted that she was stable. R. 378. On
April 10, 2006, Corso noted that her condition is gradually improving. He
assessed her with a GAF score of 65. R. 377. In May and June 2006,
Corso assessed Thomas with a GAF score of 62 and 63 respectively.
R. 375-76.
Page 4 of 20
On June 14, 2006, Dr. Reddy noted that Thomas was quite stable
and coming along well. He assessed her GAF score at 59. R. 274. On
September 20, 2006, Dr. Reddy noted that Thomas’ moods were
reasonably stable and noted no new difficulties. He assessed her GAF
score at 51. R. 273. After the September 2006, Corso changed his format
of progress notes and stopped assessing a GAF score. R. 333-73.
On November 29, 2006, Thomas reported to Dr. Reddy that she was
not doing well with low energy, no interest, and lots of ups and downs. She
reported getting into trouble at work because of her emotional stress.
R. 272. Dr. Reddy recommended sitting in front of a light for a half hour in
the morning and in the evening. Dr. Reddy assessed her GAF score as 45.
R. 272. On December 19, 2006, Corso noted that Thomas’ mood was
down and she had some seasonally related depression. R. 362.
Thomas lost her job on January 1, 2007. Corso noted that Thomas
was more depressed at her meetings with him on January 17, 2007 and
February 26, 2007. R. 360-61. Thomas saw Dr. Reddy on February 28,
2007. She reported losing her job, being more depressed, being irritable
and forgetful, and having problems with her memory. She reported not
remembering what she did for chunks of time. Dr. Reddy assessed her
with a GAF score of 41 at that time. He did not change her medication.
R. 271.
Page 5 of 20
On May 7, 2007, Corso noted that Thomas’ depression was starting
to ameliorate, but her moods were still up and down. R. 356.
On May 30, 2007, Dr. Reddy noted that Thomas’ moods were barely
stable and she had some break through depressive symptoms. He again
assessed her with a GAF score of 41, and did not change her medication.
R. 270. On June 6, 2007, Corso noted some progress and that Thomas
was compliant with her medications. R. 353. On July 25, 2007, Corso
noted Thomas had improved her coping ability and remained compliant
with her medications. R. 351.
On August 29, 2007, Thomas reported moving to a new apartment
and doing better. Dr. Reddy noted that Thomas remain dysphoric, but her
general moods and noted that she was “coming along much better.” He
again assessed her with a GAF score of 45. R. 269. He did not change
her medications.
On October 22, 2007, Corso noted that Thomas had improved
significantly. R. 345. On November 28, 2007, Thomas reported that she
had stopped taking her medications, started exercising and lost 26 pounds.
R. 268. Thomas reported that it was the best she had felt in years. R. 268.
Dr. Reddy assessed her GAF score at 52 and diagnosed her depression as
abated. R. 268.
Page 6 of 20
Thomas saw Dr. Reddy again on May 7, 2008. She reported that
she spent the winter in Florida. She said that she had some ups and
downs. R. 266. Dr. Reddy noted that Thomas’ depression was controlled
pretty well and assessed a GAF score of 55. R. 266. On May 21, 2008,
Mr. Corso noted that Thomas was very happy and was compliant with her
medications.
Thomas applied for Disability Benefits on June 30, 2008. Thomas
alleged that she became disabled on January 1, 2007, when she lost her
job as a care giver. R. 136, 140.
On July 2, 2008, Thomas saw Corso. Corso noted that Thomas was
depressed after being newly married for about a month. She felt anxious.
He noted a marked impairment in social and occupational functioning.
R. 335. On July 30, 2008, Thomas saw Dr. Reddy. Thomas’ new husband
accompanied her on this visit. She told Dr. Reddy that she was applying
for disability benefits. R. 265. Dr. Reddy noted that her depression was
fairly well contained. He also noted that she was chronically dysfunctional
and needs to go on disability. R. 265. Dr. Reddy assessed a GAF score of
51. R. 265.
On September 29, 2008, psychologist Dr. Howard Tin, Psy.D.,
completed a Psychiatric Review Technique and Mental Residual Functional
Capacity Assessment. R. 405-22. Dr. Tin found that Thomas had mild
Page 7 of 20
restrictions in her daily living activities and social functioning, moderate
restriction in maintaining concentration, persistence and pace, and no
episodes of extended decompensation. R. 415. Dr. Tin opined that
Thomas could carry out short and simple instructions, interact appropriately
with the public and coworkers, and respond appropriately to changes in
work settings. R. 421.
On November 14, 2008, Dr. Hima Atluri, M.D., performed a
consultative examination of Thomas. R. 425-28. Dr. Atluri reviewed
Thomas’ medical history and noted that she had a history of depression
and post-traumatic stress disorder. R. 425. Dr. Atluri found no physical
abnormalities. Dr. Atluri’s neurological examination was also normal.
Dr. Atluri psychological findings were also normal. R. 427.2 The diagnostic
impression listed severe anxiety and depression, severe post-traumatic
stress disorder, and mild obesity. R. 427-28.
On December 8, 2008, Dr. Donald Henson, Ph.D., reviewed the
medical evidence and affirmed Dr. Tin’s opinions. R. 429-34.
On January 6, 2010, Dr. Reddy completed a Listing of Impairments
form. R. 435. Dr. Reddy opined that Thomas had marked difficulties in
maintaining social functioning and maintaining concentration, persistence
2
Dr. Atluri stated that a Mini Mental Status Exam was attached to his report.
R. 427. No such document is in the Official Transcript.
Page 8 of 20
and pace, and well as repeated episodes of extended decompensation.
R. 436. Dr. Reddy opined that Thomas’ condition met the requirements for
Listing 12.04 for Affective Disorders set forth in the Social Security
regulation’s Listings of disabling disorders. R. 435-36. See 20 C.F.R.
Part 404 Subpart P, Appendix 1 (Listings), Listing 12.04.
Listing 12.04 is divided into three paragraphs: A, B, and C. To meet
Listing 12.04, a person must meet the requirements of both paragraphs A
and B, or meet the requirements of paragraph C. Paragraph A requires
medically documented persistence of a depressive, manic, or bipolar
syndrome with certain characteristics. Paragraph B requires that the
person exhibit two of the following: (1) marked restriction of activities of
daily living; (2) marked difficulties in maintaining social functioning;
(3) marked difficulties in maintaining concentration, persistence, or pace;
and (4) repeated episodes of decompensation, each of extended duration.
In the alternative, paragraph C requires a medically documented
history of a chronic affective disorder of at least two years duration that has
caused more than minimal limitation in the ability to do basic work
activities, with symptoms controlled by medication and one of the following:
(1) repeated episodes of decompensation, each of extended duration; (2) a
residual disease process that is severe enough that even a minimal change
in circumstance would cause the person to decompensate; or (3) current
Page 9 of 20
history of one or more years’ inability to function outside of highly
supportive living arrangement. Listing 12.04. Marked means more than
moderate, but less than extreme. Listing 12.00.C.
Decompensation means an exacerbation or temporary increase in
symptoms that is accompanied by an inability to function. Listing
12.00.C.4. Such an episode generally results in a significant change in
medication or a need for a change to a more structured psychological
support system. Id. Repeated episodes of decompensation, each of
extended duration, means three episodes within a year, or an average of
once every four months, each lasting for at least two weeks. Listing
12.00.C and 12.00.C.4. See R. 15.
Dr. Reddy opined with respect to paragraph B that Thomas had
marked difficulties in maintaining social functioning and maintaining
concentration, persistence, and pace, and also had suffered from repeated
decompensation, each of extended duration. R. 435-36. Dr. Reddy
opined with respect to paragraph C that Thomas had suffered from
repeated decompensation, each of extended duration, and had a residual
disease process that is severe enough that even a minimal change in
circumstance would cause the person to decompensate. R. 435-36.
The Administrative Law Judge (ALJ) held an administrative hearing
on February 4, 2010. Thomas appeared with her counsel. Vocational
Page 10 of 20
expert Barbara E. Meyers appeared by telephone. Only Thomas testified
at the hearing. Thomas testified that she lost her last job as a care giver in
a residence home on January 1, 2007, because she could not cope with
the responsibilities. R. 36. Thomas stated that she felt like she had to be
in three places at once. R. 39.
Thomas testified about other jobs she had in the fifteen years prior to
he alleged disability. She worked in a factory assembling electronic items
for aircraft. R. 43. She had a home business in the 1990s raising
cockatiels and other birds. R. 44-46. She worked at Walmart as a cashier
in 2003 and 2004. R. 47-48. She worked as a care giver beginning in
2005 until January 1, 2007. R. 48.
Thomas testified that she lived with her husband in a one-story house
with a basement. R. 49. Thomas testified that she had no physical
limitations that affected her ability to work. R. 49. She testified that she
took daily walks with her husband and went to church twice a week for
worship and Bible study. R. 50-51.
Thomas took Prozac and Imipramine every day. Thomas saw
Dr. Reddy quarterly and Mr. Corso monthly. R. 56-57. She testified that
she started seeing Dr. Reddy in 1992. R. 53-54. Thomas moved to Florida
in 2003 and lived there until 2005. R. 54. She testified that she went to a
mental health clinic while she was there. R. 54.
Page 11 of 20
Thomas testified that she did not do much during the day because
she felt overwhelmed. She testified that she forgot things because she
could not stay focused. R. 60-61. She testified that on bad days she
would stay in bed. R. 62. Thomas had three birds and a cat at home as
pets.
R. 64.
Thomas testified that she married her husband in 2008. The couple
honeymooned in Bloomington, Illinois. R. 65. They also went on a
vacation to Florida in October 2009. R. 66. At the completion of Thomas’
testimony, the ALJ concluded the hearing.
THE DECISION OF THE ALJ
The ALJ issued his decision on March 12, 2010. R. 8-17. The ALJ
followed the five-step analysis set forth in Social Security Administration
Regulations (Analysis). 20 C.F.R. §§ 404.1520, 416.920. Step 1 requires
that the claimant not be currently engaged in substantial gainful activity.
20 C.F.R. §§ 404.1520(b), 416.920(b). If true, Step 2 requires the claimant
to have a severe impairment. 20 C.F.R. §§ 404.1520(c), 416.920(c). If
true, Step 3 requires a determination of whether the claimant is so severely
impaired that she is disabled regardless of the claimant's age, education
and work experience. 20 C.F.R. §§ 404.1520(d), 416.920(d). The
claimant's condition or combination of conditions must meet the criteria for
Page 12 of 20
one of the conditions set forth in the Listings or be equal to the criteria in
one of the Listings. 20 C.F.R. §§ 404.1520(d), 416.920(d).
If the claimant is not so severely impaired, then Step 4 requires the
claimant not to be able to return to her prior work considering his Residual
Functional Capacity (RFC). 20 C.F.R. §§ 404.1520(e), 416.920(e). If the
claimant cannot return to her prior work, then Step 5 requires a
determination of whether the claimant is disabled considering his RFC,
age, education, and past work experience. 20 C.F.R. §§ 404.1520(f),
416.920(f). The claimant has the burden of presenting evidence and
proving the issues on the first four steps. The Commissioner has the
burden on the last step; the Commissioner must show that, considering the
listed factors, the claimant can perform some type of gainful employment
that exists in the national economy. Briscoe ex rel. Taylor v. Barnhart,
425 F.3d 345, 352 (7th Cir. 2005); Knight v. Chater, 55 F.3d 309, 313
(7th Cir. 1995).
The ALJ found that Thomas met her burden at Steps 1 and 2. She
had not engaged in substantial gainful activity since January 1, 2007, and
she suffered from severe impairments of depression, post traumatic stress
disorder, and anxiety. R. 14. At Step 3, the ALJ found that Thomas did not
have an impairment or combination of impairments that met or equaled any
Listing. R. 14.
Page 13 of 20
The ALJ considered Listings 12.04 for Affective Disorders.3 The ALJ
focused on paragraphs B and C. The ALJ found that Thomas did not meet
either paragraph. The ALJ found that Thomas had mild restrictions on
daily living. The ALJ relied on the fact that Thomas took care of her
personal needs, performed household chores, and cared for her pets on a
daily basis. The ALJ found mild difficulties in social functioning. The ALJ
relied on the fact that Thomas went to church regularly and recently
married. The ALJ found moderate limitations on concentration,
persistence, and pace. The ALJ stated that Thomas was forgetful, but
completed routine tasks and was able to monitor her medication by herself.
The ALJ found no evidence of decompensation. R. 15.
In making these findings, the ALJ discounted the January 2010
opinions of Dr. Reddy. The ALJ found that Dr. Reddy’s opinions of marked
limitations and repeated episodes of decompensation were not consistent
with his own treatment notes or the treatment notes of Mr. Corso. The ALJ
also relied Dr. Tin’s opinions. The ALJ reviewed the record and found no
evidence to support Dr. Reddy’s opinions. R. 15.
At Step 4, the ALJ found that Thomas had the RFC to perform a full
range of work at all exertional levels but was limited to simple repetitive
3
The ALJ also considered Listing 12.06 for Anxiety Disorders. Dr. Reddy did not
opine that Thomas met Listing 12.06, and Thomas does not raise Listing 12.06 in the
appeal. The Court, therefore, does not discuss Listing 12.06 in this Opinion.
Page 14 of 20
tasks. The ALJ relied on Dr. Atluri’s examination and Thomas’ testimony
regarding her physical abilities and her activities to find no exertional
limitations. The ALJ relied on Thomas’ activities and social interactions
(such as daily walks, regular church attendance and Bible study, trips and
vacations, and her marriage) to support his conclusion that her mental
limitations were adequately addressed by limiting her to simple repetitive
tasks. The ALJ also relied on Dr. Tin’s opinions, Dr. Atluri’s finding of no
mental status abnormalities, and Mr. Corso’s progress notes to support the
nonexertional limitations. The ALJ rejected Dr. Reddy’s opinions as
inconsistent with all of this other evidence. R. 16-18. Based on the RFC
finding, the ALJ found that Thomas could perform her prior work as a
cashier. R. 18.
In the alternative at Step 5, the ALJ found that Thomas could perform
a significant number of jobs that exist in the national economy. The ALJ
relied on the Medical-Vocational Rules to reached this conclusion. R. 18;
20 C.F.R. Part 404, Subpart P, Appendix 2 (Grid). The ALJ found that
Thomas was a person of advanced age with a high school education and
no transferable skills who has the physical capacity to perform all work at
all exertional levels. Such person is not disabled under the Grid Rule
204.00. See R. 18-19. Thus, the ALJ concluded that Thomas was not
disabled.
Page 15 of 20
Thomas appealed. The Appeals Council denied Thomas’ request for
review on January 19, 2011. Thomas then brought this action for judicial
review.
ANALYSIS
This Court reviews the ALJ's Decision to determine whether it is
supported by substantial evidence. In making this review, the Court
considers the evidence that was before the ALJ. Wolfe v. Shalala, 997
F.2d 321, 322 n.3 (7th Cir. 1993). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate” to support the
decision. Richardson v. Perales, 402 U.S. 389, 401 (1971). This Court
must accept the ALJ's findings if they are supported by substantial
evidence, and may not substitute its judgment for that of the ALJ. Delgado
v. Bowen, 782 F.2d 79, 82 (7th Cir. 1986). The ALJ must articulate at least
minimally his analysis of all relevant evidence. Herron v. Shalala, 19 F.3d
329, 333 (7th Cir. 1994). The Court must be able to “track” the analysis to
determine whether the ALJ considered all the important evidence. Diaz v.
Chater, 55 F.3d 300, 308 (7th Cir. 1995).
Thomas raises one issue on appeal. She asserts that the ALJ erred
by accepting Dr. Tin’s opinion over Dr. Reddy. She argues that the ALJ
should have given Dr. Reddy’s opinion controlling weight because he was
Thomas’ treating physician. A treating physician’s medical opinion is
Page 16 of 20
entitled to controlling weight when it is well supported by medically
acceptable clinical and diagnostic techniques and is reasonably
consistent with the other substantial evidence in the record. 20 C.F.R.
§ 404.1527(d)(2); SSR 96-2p.
In this case, however, the evidence supports the ALJ’s conclusion
that Dr. Reddy’s opinions were not supported by the medical evidence and
were not consistent with the other substantial evidence in the record.
Dr. Reddy opined that Thomas had marked difficulties in maintaining social
functioning and marked difficulties in maintaining concentration,
persistence and pace. Dr. Reddy’s progress notes and those of Mr. Corso
are not consistent with that finding. Both noted improvement in Thomas’
condition in late 2007 and 2008. In addition, Thomas’ actions were
inconsistent with those findings. Thomas got married, went on a
honeymoon and a vacation to Florida in 2008. She also took care of three
pets, took daily walks with her husband, and attended church and Bible
Study on a regular basis. Those actions are also inconsistent with a
marked difficulty in maintaining social functioning at a minimum.
Dr. Reddy also opined that Thomas suffered from repeated episodes
of decompensation, each of extended duration. There is no evidence to
support this opinion at all. The treatment notes contain no evidence that
Thomas ever suffered an episode of severe symptoms that required either
Page 17 of 20
a significant change in her medication or implementation of a more
structured psychological support system. Her Prozac dosage varied from
20 to 40 mg, but otherwise her medication did not change. Her pattern of
monthly counseling sessions with Corso and quarterly visits to Dr. Reddy
remained the same since February 2005. There is no medical evidence to
support Dr. Reddy’s opinion regarding decompensation.
Dr. Reddy also opined that her residual disease process has resulted
in such marginal adjustment that even a minimal increase in mental
demands or change in circumstance would likely cause her to
decompensate. There is again no medical evidence to support this
opinion. The medical progress notes document that Thomas experienced
major changes in her life in 2007 and 2008, but did not decompensate.
She lost a job and got married. Thomas became more depressed when
she suffered a job loss in early 2007, but she did not require a significant
change in her medication or a significant change in her psychological
support system. She became depressed a month after getting married, but
did not decompensate. No medical evidence supports this opinion.
Corso’s opinion of Thomas’ GAF score was also consistently ten to
twenty points higher than Dr. Reddy’s. Corso’s higher GAF scores support
the ALJ’s findings of mild to moderate restrictions rather than marked
restrictions. Corso is not a physician and so not a medical source, but the
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ALJ can consider his opinions as evidence. See 29 C.F.R. § 404.1513(a)
and (d)(1).
Thomas argues that Dr. Atluri’s diagnoses of severe anxiety and
depression and severe post-traumatic stress disorder support Dr. Reddy’s
opinions. The Court disagrees. The ALJ properly viewed those diagnoses
as a reflection of the medical history that he reviewed. Dr. Atluri also found
no psychological abnormalities in his mental status examination. This
finding conflicts with Dr. Reddy’s opinions and supports the ALJ’s
conclusions.
Given the lack of support for Dr. Reddy’s opinions in the medical
record, the ALJ’s was not required to give controlling weight to those
opinions. Dr. Tin’s opinion and the progress notes from both Dr. Reddy
and Mr. Corso provide substantial evidence to support the ALJ’s decision
at Step 3 that Thomas’s condition or combination of conditions did not meet
Listing 12.04 or any other Listing. Dr. Tin’s opinions, Dr. Atluri’s physical
examination findings, and Thomas’ testimony about her physical
capabilities and her activities support the ALJ’s RFC finding and his
conclusion at Step 4 that Thomas could perform her former work as a
cashier. The Medical-Vocational Rule 204.00 supports the ALJ’s
conclusion at Step 5 that Thomas was not disabled. The Commissioner’s
decision is, therefore, affirmed.
Page 19 of 20
WHEREFORE, Plaintiff’s Motion for Summary Judgment (d/e 20) is
DENIED, and Defendant Commissioner of Social Security has filed a
Motion for Summary Affirmance (d/e 22) which is ALLOWED. The
Decision of the Commissioner is AFFIRMED. THIS CASE IS CLOSED.
ENTER: February 2, 2012
s/ Byron G. Cudmore
BYRON G. CUDMORE
UNITED STATES MAGISTRATE JUDGE
Page 20 of 20
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