Ghoreyan-White v. Colvin
Filing
32
MEMORANDUM AND OPINION. The Commissioner's final decision is reversed and remanded pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of Court is directed to enter judgment in favor of plaintiff. Signed by Magistrate Judge Clifford J. Proud on 5/19/2015. (klm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEBBIE GHOREYAN-WHITE,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
Case No. 14-cv-615-CJP 1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Debbie M. GhoreyanWhite, through counsel, seeks review of the final decision of the Commissioner
of Social Security denying her Disability Insurance Benefits (DIB).
Procedural History
Plaintiff applied for benefits on June 8, 2011, alleging disability
beginning on February 16, 2011. (Tr. 14). After holding an evidentiary hearing,
ALJ Carol L. Boorady denied the application for benefits in a decision dated
November 9, 2012. (Tr. 14-24). The Appeals Council denied review, and the
decision of the ALJ became the final agency decision. (Tr. 1). Administrative
remedies have been exhausted and a timely complaint was filed in this Court.
Issues Raised by Plaintiff
This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 21.
1
1
Plaintiff raises the following points:
1. The ALJ improperly discounted the opinion of plaintiff’s treating
physician.
2. The ALJ did not properly evaluate plaintiff’s credibility.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of
the applicable statutes. For these purposes, “disabled” means the “inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. §423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from
anatomical,
physiological,
or
psychological
abnormalities
which
are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.
42 U.S.C. §423(d)(3).
“Substantial gainful activity” is work
activity that involves doing significant physical or mental activities, and that is
done for pay or profit. 20 C.F.R. §§ 404.1572.
Social Security regulations set forth a sequential five-step inquiry to
determine whether a claimant is disabled.
The Seventh Circuit Court of
Appeals has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are
considered conclusively disabling. If the impairment meets or
equals one of the listed impairments, then the applicant is
2
considered disabled; if the impairment does not meet or equal a
listed impairment, then the evaluation continues. The fourth step
assesses an applicant's residual functional capacity (RFC) and
ability to engage in past relevant work. If an applicant can engage
in past relevant work, he is not disabled. The fifth step assesses
the applicant's RFC, as well as his age, education, and work
experience to determine whether the applicant can engage in other
work. If the applicant can engage in other work, he is not disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
presently unemployed; (2) whether the claimant has an impairment or
combination of impairments that is serious; (3) whether the impairments meet
or equal one of the listed impairments acknowledged to be conclusively
disabling; (4) whether the claimant can perform past relevant work; and (5)
whether the claimant is capable of performing any work within the economy,
given his or her age, education and work experience. 20 C.F.R. §§ 404.1520;
Simila v. Astrue, 573 F.3d 503, 512-513 (7th Cir. 2009); Schroeter v.
Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
If the answer at steps one and two is “yes,” the claimant will
automatically be found disabled if he or she suffers from a listed impairment,
determined at step three. If the claimant does not have a listed impairment at
step three, and cannot perform his or her past work (step four), the burden
shifts to the Commissioner at step five to show that the claimant can perform
some other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984).
See also Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001)(Under the
five-step evaluation, an “affirmative answer leads either to the next step, or, on
Steps 3 and 5, to a finding that the claimant is disabled…. If a claimant
3
reaches step 5, the burden shifts to the ALJ to establish that the claimant is
capable of performing work in the national economy.”).
This Court reviews the Commissioner’s decision to ensure that the
decision is supported by substantial evidence and that no mistakes of law were
made. It is important to recognize that the scope of review is limited. “The
findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this
Court must determine not whether plaintiff was, in fact, disabled at the
relevant time, but whether the ALJ’s findings were supported by substantial
evidence and whether any errors of law were made. See, Books v. Chater, 91
F.3d 972, 977-78 (7th Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306
(7th Cir. 1995)). This Court uses the Supreme Court’s definition of substantial
evidence, i.e., “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 91 S. Ct. 1420,
1427 (1971).
In reviewing for “substantial evidence,” the entire administrative record is
taken into consideration, but this Court does not reweigh evidence, resolve
conflicts, decide questions of credibility, or substitute its own judgment for that
of the ALJ. Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997).
However, while judicial review is deferential, it is not abject; this Court does not
act as a rubber stamp for the Commissioner. See, Parker v. Astrue, 597 F.3d
920, 921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
4
ALJ Boorady followed the five-step analytical framework described above.
She determined that plaintiff had not been engaged in substantial gainful
activity since her alleged onset date. She found that plaintiff had severe
impairments of degenerative disc disease of the lumbar spine, lumbar
spondylosis
with
moderate
bilateral
neural
foraminal
stenosis,
and
degenerative changes in both knees. (Tr. 16). The ALJ found that plaintiff had
the residual functional capacity to perform work at the sedentary level with
physical limitations. (Tr. 18). Based on the testimony of a vocational expert the
ALJ found that plaintiff was unable to perform past relevant work, however she
was able to perform work that existed in significant number in the regional and
national economies. (Tr. 22-23).
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record
is directed to the points raised by plaintiff.
1. Agency Forms
Plaintiff was born on April 17, 1965 and was forty-five years old at her
alleged onset date. (Tr. 196). She was insured for DIB through December 31,
2014. (Tr. 238). Plaintiff was five feet five inches tall and weighed three
hundred and seven pounds. (Tr. 201).
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According to plaintiff she had a number of health problems that made
her unable to work including bulging disc disease, degenerative disc disease,
plantar fasciitis on right foot, and right knee problems. (Tr. 201).
Plaintiff previously worked as a certified nurse’s aide, housekeeper, laborer
for a temp agency, and a security guard. She had a cosmetology degree and
completed two years of college. (Tr. 202).
In a Function Report submitted in June 2011, plaintiff stated she lived in an
apartment with her family. (Tr. 222). She performed simple chores such as
making the bed, light house cleaning, and laundry. (Tr. 222, 224). She was
able to drive and shopped for food once a month. (Tr. 225). Plaintiff could
handle financial matters and make simple meals. (Tr. 224-25).
Plaintiff stated she had trouble lifting, squatting, bending, standing,
reaching, walking, sitting, kneeling, climbing stairs, completing tasks, and
concentrating. She felt she could walk for one block before needing a twenty
minute rest. (Tr. 227).
2. Evidentiary Hearing
Plaintiff was represented by an attorney at the evidentiary hearing on
November 1, 2012. (Tr. 30). She was forty-seven years old at the time of the
hearing and she lived with her husband and her seventeen year old son. (Tr.
34). She stated she had a driver’s license but her son drove her to the hearing
because she did not drive frequently. (Tr. 35).
Plaintiff testified that she last worked full-time in February 2011 as a
security guard. She was fired because she could no longer perform the work
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and missed too many days due to medical problems. (Tr. 36). Plaintiff had a
part-time job at a school cafeteria where she scooped and served ice cream. (Tr.
38-39). She served the ice cream in four fifteen minute intervals during each
weekday. (Tr. 40). She was able to sit in a back room when she was not serving
the children. (Tr. 41-42). Plaintiff did not consult her physician before
beginning the part-time work, but she stated that her son needed new clothing
so she had to get a job. (Tr. 47-48).
Plaintiff testified that pain in her knees made her unable to perform jobs
where she needed to sit for most of the day. She felt that nothing relieved her
pain except lying down. (Tr. 38). She stated that walking, sitting, and standing
were equally painful and she experienced little relief from the treatments she
received. (Tr. 42-43).
Plaintiff testified that she took high blood pressure medication, several pain
killers, and a muscle relaxer. She also received cortisone injections in her
knees. (Tr. 43). She stated that she had injections, went to a pain management
specialist, and did physical therapy for her back pain. None of those treatments
helped and her only remaining option was surgery. (Tr. 44). However, she could
not have surgery until she lost weight. (Tr. 45).
Plaintiff stated that she does not lift over five pounds and does not sit or
stand for more than fifteen minutes at a time. (Tr. 45-47). She spent most of
the day laying down and watching television or using her laptop. (Tr. 49-50).
She had a difficult time walking up and down stairs and had poor balance. (Tr.
50-51).
7
A vocational expert (VE) also testified. The ALJ asked the VE hypothetical
questions that comported with the ultimate RFC assessment, that is, a person
could lift or carry less than five pounds frequently, up to five pounds
occasionally, and stand or walk for two hours out of an eight hour work day.
Additionally, the person could sit for up to six hours a day and must have the
ability to alternate between sitting and standing positions at will but could
remain at the work station when alternating positions. The person could never
bend, kneel, crouch, crawl, or climb ladders, ropes, scaffolding or stairs, and
can stoop no more than occasionally. (Tr. 58).
The VE testified that plaintiff could not perform her past work or any work
at the unskilled level. (Tr. 58). However, other semi-skilled and skilled jobs
existed in significant numbers in the national economy. Examples of such jobs
are telephone solicitor, receptionist, and order clerk. (Tr. 58-61). The VE also
stated that plaintiff’s inability to lift more than five pounds would reduce the
number of available sedentary jobs by about fifty percent. (Tr. 64).
3. Medical Treatment
In September 2010, plaintiff presented to her primary care physician’s office
complaining of increased right foot pain in her Achilles area. She was doing
exercises for plantar fasciitis but they had not helped. (Tr. 379-80). Plaintiff’s
primary doctor, Dr. Sarah Calhoun, referred plaintiff to a foot and ankle
specialist, Dr. Saul Trevino. (Tr. 280).
In November 2010, plaintiff saw Dr. Trevino due to her problems with
Achilles tendinitis and plantar fasciitis. She had normal strength and sensation
8
but her plantar fascia was tender. She stated her symptoms had bothered her
since June 2009. (Tr. 280-81). Plaintiff returned to Dr. Trevino in December
2010 for a follow-up. She had a very antalgic gait and had difficulty walking.
Dr. Trevino noted plaintiff was tender on the posterior aspect of her heel and
over the lateral aspect of her Achilles tendon. He had her fitted with a Cam
boot and custom-made arch supports in order to alleviate her pain. (Tr. 28587).
Plaintiff’s next medical treatment on record was in June 2011 when she
presented to Dr. Calhoun with left leg and knee pain. While she had surgery on
her knee several years prior, her knee had not bothered her until a week before
this visit. (Tr. 370). Plaintiff had an MRI performed on her knee later that
month. The MRI showed edema suggestive of chronic repetitive strain, findings
suggestive of a grade 1 medial collateral ligament sprain, and degeneration at
the posterior horn of the medial meniscus. (Tr. 272). Plaintiff was referred to
specialist Dr. Thomas Aleto for her knee pain. He felt her MRI indicated no
substantial meniscal pathology but she did have degenerative changes. Dr.
Aleto began giving plaintiff cortisone injections to help with her pain. (Tr. 275).
In January 2012, plaintiff had another MRI of her left knee performed. The
imaging
revealed
degenerative
tearing
of
the
medial
meniscus,
tricompartmental arthrosis most pronounced in the patellofemoral and medial
meniscus, and small joint effusion. (Tr. 345-46).
In April 2012, plaintiff saw a podiatrist, Ben Sommerhays, DPM, for her
right foot problems. (Tr. 314). Plaintiff was performing her stretching exercises
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at home and taking Mobic for pain without any relief. Dr. Sommerhays noted
that plaintiff’s insurance did not cover physical therapy so she was given at
home exercises and cortisone injections. (Tr. 315).
Plaintiff returned to Dr. Calhoun in April 2012 with back pain that radiated
down both of her legs into her heels. (Tr. 357). While Dr. Calhoun noted that
plaintiff’s spine was not tender to palpation, she also stated the pain was
chronic and worsening. Dr. Calhoun ordered an MRI, added Flexeril to her
prescriptions, and referred plaintiff to an orthopedic doctor. (Tr. 359). Later
that month, plaintiff saw Dr. Khuns at the Missouri Orthopedic Institute for
her back pain. (Tr. 302-09).
Plaintiff had seen Dr. Khuns for several years and treatment notes indicated
plaintiff’s pain had worsened since her visit one year prior. Plaintiff presented
with new X-rays and MRI imaging. (Tr. 306). The MRI report from the imaging
center noted no significant changes since the 2008 study. (Tr. 311). Dr. Khuns
compared the MRIs and noted there was evidence of some generalized
spondylosis predominately at L5-S1 with some loss of disc height and anterior
spurring. He also stated there was consistent loss of disc height with disc
bulging of L5-S1 with lateral foraminal stenosis bilaterally. (Tr. 308).
Dr. Khuns noted that plaintiff had exhausted conservative treatment
options and that plaintiff was a good candidate for surgery. However, plaintiff
would need to lose approximately seventy-five pounds due to her morbid
obesity to proceed with the surgical option. (Tr. 308).
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In May 2012, plaintiff presented to Dr. Calhoun with back pain and
numbness and tingling in her legs when they were extended. (Tr. 348-55).
Plaintiff had trouble lifting and preferred to lie down on her side to alleviate
pain. (Tr. 353). Plaintiff saw Dr. Aleto once more in October 2012 for her knee
pain. (Tr. 385-86). Plaintiff had injections and Dr. Aleto noted plaintiff’s X-rays
“demonstrate fairly advanced degenerative changes in the medial compartment
and patellofemoral.” (Tr. 386). Plaintiff had restricted motion with grinding and
swelling. (Tr. 385-86).
4. Opinion of Treating Physician
Dr. Calhoun completed mental and physical medical source statements in
May 2012. While she opined that plaintiff had no mental impairments on
record, she also determined plaintiff had several physical limitations. (Tr. 33945). Dr. Calhoun stated that plaintiff should lift a maximum of five pounds per
day, and stand, walk, or sit for fifteen minutes at a time and less than one
hour total per day. Plaintiff also would need a fifteen minute break every fifteen
minutes in order to lie down or recline to alleviate symptoms during an eighthour workday. (Tr. 342-43). Dr. Calhoun opined that plaintiff should avoid any
exposure of heights or hazards, and avoid moderate exposure of extreme heat,
cold, weather, wetness and humidity, and vibration. (Tr. 343).
Analysis
Plaintiff first argues that the ALJ incorrectly discounted Dr. Calhoun’s
opinion. The ALJ looked at Dr. Calhoun’s physical medical source statement
and gave it “little weight.” The ALJ is required to consider a number of factors
11
in weighing a treating doctor’s opinion. The applicable regulation refers to a
treating healthcare provider as a “treating source.” The version of 20 C.F.R.
§404.1527(c)(2) in effect at the time of the ALJ’s decision states:
Generally, we give more weight to opinions from your treating
sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture
of your medical impairment(s) and may bring a unique perspective
to the medical evidence that cannot be obtained from the objective
medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations. If we
find that a treating source's opinion on the issue(s) of the nature
and severity of your impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case
record, we will give it controlling weight. [Emphasis added]
A treating doctor’s medical opinion is entitled to controlling weight only
where it is supported by medical findings and is not inconsistent with other
substantial evidence in the record. Clifford v. Apfel, 227 F.3d 863 (7th Cir.
2000); Zurawski, 245 F.3d at 881. Supportability and consistency are two
important factors to be considered in weighing medical opinions. In a nutshell,
“[t]he regulations state that an ALJ must give a treating physician's opinion
controlling weight if two conditions are met: (1) the opinion is supported by
‘medically acceptable clinical and laboratory diagnostic techniques[,]’ and (2) it
is ‘not inconsistent’ with substantial evidence in the record.” Schaaf v. Astrue,
602 F.3d 869, 875 (7th Cir. 2010), citing §404.1527(d).
The ALJ looked at Dr. Calhoun’s treatment notes indicating plaintiff
could stand, walk, or sit for fifteen minutes at a time and no more than one
hour per day and needed frequent fifteen minute breaks in order to lie down.
(Tr. 342-43). The ALJ gave this opinion little weight because Dr. Calhoun’s
12
“treatment notes do not support the extreme limitations in the assessment,”
the ALJ felt the opinion was based on plaintiff’s less than credible complaints,
and the form was in a checkbox format that did not reference support for Dr.
Calhoun’s conclusions. (Tr. 21).
While plaintiff contends that the ALJ erred by not analyzing every factor
for a treating physician’s opinion, this is not necessarily true. The Seventh
Circuit has held that an ALJ’s reasoning can be sufficient even if it only covers
two of the factors outlined in 20 C.F.R. § 404.1527(d). Henke v. Astrue, 498
Fed.Appx. 636, 640 (7th Cir. 2012). However, while the ALJ is only required
to minimally articulate her reasons for rejecting evidence, the reasoning has to
be sound. Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008); Jelinek v.
Astrue, 662 F.3d 805, 811 (7th Cir. 2011). Here, the Court agrees with
plaintiff that ALJ Boorady’s analysis is insufficient.
First, the ALJ states that the treatment notes only reference diffuse
lumbar tenderness and positive straight leg raising. (Tr. 21). This is only one
portion of Dr. Calhoun’s notes. Plaintiff saw Dr. Calhoun regularly for over two
years and Dr. Calhoun’s records indicate plaintiff had degeneration and
displacement of lumbar discs, osteoarthritis, and spinal stenosis among other
problems. (Ex., Tr. 314, 319-21, 360, 380). Through her explanation, it seems
the ALJ only considered one treatment note in conjunction with the medical
source statement and not plaintiff’s overall history with Dr. Calhoun. Her
explanation as to why she gave Dr. Calhoun’s opinion little weight does not
13
reference any other medical records nor does it provide much explanation
based on the one record she referenced. This is error.
The Commissioner references medical records on file to support the ALJ’s
determination that Dr. Calhoun’s medical source statement was based on
subjective complaints. However, the ALJ did not reference these medical
records, and explicitly stated she looked at the contemporaneous opinion to
determine it was based on subjective complaints. In advancing reasons not
relied upon by the ALJ, the Commissioner violates the Chenery doctrine. See,
SEC v. Chenery Corporation, 318 U.S. 80 (1943). “Under the Chenery
doctrine, the Commissioner's lawyers cannot defend the agency's decision on
grounds that the agency itself did not embrace.” Kastner v. Astrue, 697 F.3d
642, 648 (7th Cir. 2012).
In weighing the medical opinions, the ALJ is not permitted to “cherrypick” the evidence, ignoring the parts that conflict with her conclusion. Myles
v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009). While she is not required to
mention every piece of evidence, “[she] must at least minimally discuss a
claimant's evidence that contradicts the Commissioner's position.” Godbey v.
Apfel, 238 F.3d 803, 808 (7th Cir. 2000). The ALJ impermissibly “cherrypicks” plaintiff’s records in order to support her finding that plaintiff is not
disabled throughout her opinion.
For example, the ALJ also focuses heavily on the one treatment note that
indicated plaintiff’s MRI from 2008 was similar to the imaging done in 2012.
(Tr. 19-20, 311). She fails, however, to note that the reviewing doctors indicated
14
plaintiff had degenerative changes and significant disc narrowing in the more
recent MRI. (Tr. 308). The ALJ also notes that plaintiff did not need assistance
to walk, but does not acknowledge when doctors stated she had a severe
antalgic gait and difficulty walking. (Tr. 19, 285-87).
Additionally, an ALJ is not permitted to “play doctor” and her decision
“must be based on testimony and medical evidence in the record, and not on
[her] own ‘independent medical findings.’” Rohan v. Chater, 98 F.3d 966, 970
(7th Cir. 1996). It seems as though that is what ALJ Boorady did with the case
at hand. For example, the ALJ noted that the diagnostic imaging of plaintiff’s
knees revealed slightly progressive moderate arthritic and degenerative changes
as well as bilateral medial joint space narrowing with degenerative bony spurs
of the femoral condyles. She then states that plaintiff did not have any
abnormal medical signs due to these problems. (Tr. 19). Plaintiff regularly saw
doctors regarding the pain she experienced in her knees, received cortisone
injections, and previously had surgery. (Ex., Tr. 43, 275, 370). No doctors on
record indicate plaintiff did not have the level of debilitating pain she claimed
to experience, nor did they indicate she had greater capabilities than Dr.
Calhoun provided in her statement.
Finally, in light of the ALJ’s decision to give Dr. Calhoun’s opinion “little
weight” it is unclear how she determined plaintiffs RFC. As plaintiff points out,
the ALJ did not call a medical expert or send plaintiff for a consultative
examination. The only medical opinion on record is that of Dr. Calhoun which
the ALJ gave little weight. When Dr. Calhoun’s opinion is excluded from the
15
record the Court is unable to identify evidence the ALJ relied upon to
determine plaintiff could perform sedentary work. “An ALJ cannot substitute
his own judgment for a physician’s opinion without relying on other medical
evidence or authority of record.” Clifford, 227 F.3d at 870.
The ALJ is “required to build a logical bridge from the evidence to [her]
conclusions.” Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009). While the
ALJ was not required to give Dr. Calhoun’s opinion controlling weight, she
needed to adequately explain why the opinion was discounted. ALJ Boorady
simply failed to do so here. “If a decision ‘lacks evidentiary support or is so
poorly articulated as to prevent meaningful review,’ a remand is required.”
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012)., citing Steele v.
Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). While the ALJ
It is not necessary to address plaintiff’s other points at this time. The
Court wishes to stress that this Memorandum and Order should not be
construed as an indication that the Court believes that plaintiff is disabled or
that she should be awarded benefits.
On the contrary, the Court has not
formed any opinions in that regard, and leaves those issues to be determined
by the Commissioner after further proceedings.
Conclusion
The Commissioner’s final decision denying Debbie Ghoreyan-White
application
for
social
security
disability
benefits
is
REVERSED
and
REMANDED to the Commissioner for rehearing and reconsideration of the
evidence, pursuant to sentence four of 42 U.S.C. §405(g).
16
The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDERED.
DATE: May 19, 2015.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
17
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