McKay v. Social Security Administration

Filing 23

Chief Judge Patti B. Saris: ORDER entered. MEMORANDUM AND ORDER, Motions terminated: 15 MOTION to Remand to Agency filed by Kenneth McKay, 20 MOTION for Order Affirming Decision of Commissioner filed by Michael J. Astrue.(Folan, Karen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner
)
Social Security Administration, )
Defendant.
)
)
KENNETH McKAY,

Civil Action No. 13-10521-PBS

MEMORANDUM AND ORDER
June 30, 2014
Saris, U.S.D.J.
I. INTRODUCTION
Plaintiff Kenneth P. McKay moves to reverse the Commissioner’s
denial of his application for Social Security Disability Insurance
benefits under 42 U.S.C. § 405(g), arguing that the Administrative
Law Judge (“ALJ”) erred by failing to find that plaintiff’s left
shoulder impairment was a disabling impairment. Defendant moves to
affirm the decision of the Commissioner. The Court DENIES both
plaintiff’s Motion to Reverse (Docket No. 15), and defendant’s
Motion

to

Affirm

(Docket

No.

20).

The

Court

VACATES

the

Commissioner’s decision that plaintiff is not disabled under the
Social

Security

Act,

and

the

case

is

REMANDED

for

further

proceedings consistent with this order.
II. FACTS
Plaintiff

was

twenty-eight

years

old

when

he

filed

his

application for Social Security Disability Insurance benefits on
December 10, 2009. R. 18 (Docket No. 14). He had previously worked
as a personal care attendant, delivery driver, metal worker, retail
manager, security guard, laborer, store clerk, and dishwasher. Id.
Plaintiff alleged that his disability made him ineligible to work
beginning December 4, 2009, due to rheumatoid arthritis of the
spine and multiple disc herniations. R. 70. His initial request was
denied. R. 70-72. Plaintiff alleged worsening pain and asthma as
the basis for disability in his request for reconsideration, which
was denied on November 2, 2010. R. 74-76. On August 22, 2011,
roughly three months before his administrative hearing, he was in
a motor vehicle accident that hurt his left shoulder. R. 396-97.
A.

Medical History
Plaintiff’s shoulder impairment is the main issue on review

before the Court.1 At 1:30 p.m. on August 22, 2011, plaintiff
arrived at the North Shore Medical Center/Salem Hospital Emergency
Department after a motor vehicle accident, complaining of pain in
his left shoulder. R. 396. The “ED Physician Documentation” notes
indicate that his symptoms were moderate at worst but “aggravated
by movement.” Id. After an exam, the physician concluded that

1

In his application, plaintiff also alleged degenerative disc
disease, obesity, and asthma, none of which resulted in a finding
of disability by the ALJ. These three impairments, however, are not
the focus of plaintiff’s Motion to Reverse. As such, the Court will
not delve into the medical records for those impairments.
2

plaintiff’s “[range of motion] [was] painful, with all movement,”
and that he had “tenderness over the deltoid, left side.” Id.
Plaintiff’s X-ray showed “no fracture or dislocation,” and the
“[s]oft tissues, bony structures and joint spaces [were] normal.”
R. 472. Plaintiff was discharged with a diagnosis of shoulder
sprain, placed in a sling, and told to follow up with an orthopedic
doctor. R. 397.
On September 13, 2011, plaintiff had his first visit with Wei
Yang, M.D., a specialist in Internal Medicine at The Medical Group
in Beverly, MA. R. 479, 485. Dr. Yang’s treatment notes from this
visit state that plaintiff “had multiple visits here [at the
Medical Group] for chronic pain involving his upper and lower back,
left shoulder, hips and knees. Pain has been constant, 7/10, for
the past two years.” R. 485. She also wrote that “[n]othing seems
to be able to control his pain . . . except for Vicodin which he
uses sparsely and seems to ‘take the edge away.’” Id. Dr. Yang
recorded that plaintiff’s “pain [was] exacerbated from a recent
[motor vehicle accident] on 8/22/11 during which he was rear-ended.
He

now

[complains

of]

constant

8/10

left

shoulder

pain

and

worsening upper and lower back pain, making him unable to work. The
[X-ray] for spines were negative.” Id.
plaintiff’s

left

shoulder

showed

“no

Her physical exam of

deformity,

swelling

or

erythema [redness of the skin], positive tenderness over the
anterior, lateral and upper shoulder, limited [range of motion] for

3

extension, abduction, external rotation, unable to lift arm above
the shoulder.” R. 487-88. Under the “Neurologic” section of the
physical exam, she wrote: “No gross motor or sensory deficits,
[c]erebral function intact with normal sensation. Deep tendon
reflexes are normal and symmetrical. Muscle strength 4/5 with left
upper ext[remity] due to pain.” R. 488. Dr. Yang’s “impressions”
included a “likely rotator cuff injury,” and she recommended an
“MRI [magnetic resonance imaging scan] and orthopedic consult,
[and] pain control with Vicodin until [plaintiff] sees Northshore
pain management.” Id.
According to Steven M. Defossez, M.D., an MRI on September 20,
2011, revealed “mild to moderate tendinopathy [disease of a tendon]
of the anterior aspect of the distal infraspinatus [a thick muscle
in the rotator cuff] tendon. There is mild distal supraspinatus [a
small muscle in the upper back] tendinopathy. The distal teres
minor

[an

elongated

muscle

in

the

rotator

cuff]

tendon

and

subscapularis [a large muscle connecting several bones in the
shoulder] tendon appear intact. No significant fatty atrophy of any
of the rotator cuff muscle bellies is identified.” R. 493. After
reviewing these results, Dr. Defossez noted his “impression” that
plaintiff

suffered

from

“[m]ild/moderate

distal

supraspinatus

tendinopathy” and “[m]ild distal supraspinatus tendinopathy,” but
that “[n]o rotator cuff tear [was] identified.” R. 494.
On October 12, 2011, plaintiff went to the Northeast Hospital

4

Corporation Emergency Room with a chief complaint of left shoulder
pain “worse than it has been.” R. 491. Joshua Lerner, M.D.,
examined

plaintiff

and

found

“the

left

shoulder

reveals

no

asymmetry when compared with the right,” a “tenderness to palpation
superiorly and posteriorly over the left shoulder,” “no signs of a
shoulder effusion,” and “some mild tenderness when I adductor [sic]
the

shoulder

passively

and

less

tenderness

with

flexion

and

extension.” R. 491-92. Dr. Lerner’s impression was that plaintiff
suffered from “left-sided shoulder pain, chronic, and secondary to
tendinopathy of the infraspinatus and sepraspinatus distally.” R.
492. He discharged plaintiff with a prescription for Vicodin and a
sling

and

recommended

that

plaintiff

“call

tomorrow

for

an

appointment [with a shoulder specialist] as soon as possible.” Id.
At a follow-up appointment on October 24, 2011, Dr. Yang noted
that plaintiff was “having 8/10 back pain as baseline and 10/10
pain when using his left shoulder. He could not raise his left arm
over his shoulder. He can only hold his new baby of 6 weeks old for
5 minutes. . . . He is waiting for his insurance approval in order
to [follow up] with Northeast [Hospital] [s]houlder [specialist]
Dr. Mc[L]aughlin.” R. 480. Dr. Yang made the same notes in the
Physical Exam section regarding the left shoulder and neurologic
findings as she had at the previous appointment on September 11,
2011. R. 482, 487-88. For his shoulder pain, she recommended
exercise and warm compressions, a follow-up with the shoulder

5

specialist, and a refill of the Vicodin prescription. R. 483.
B.

Treating Physician Medical Source Statement
On October 6, 2011, after examining plaintiff during his first

appointment and reviewing the MRI results, Dr. Yang completed a
medical source statement to assist a determination by the Social
Security Administration (“SSA”) of plaintiff’s ability to do workrelated activities. R. 476-79. Dr. Yang wrote up her assessment
before plaintiff visited the Northeast Hospital Emergency Room on
October 12, 2011, and before his follow-up with her on October 24,
2011. R. 480-84, 491-92. On this form, Dr. Yang stated that
plaintiff had the following limitations due to his impairments:
plaintiff can “occasionally lift and/or carry” less than 10 pounds,
plaintiff can only stand and/or walk for less than 2 hours in an 8hour workday, and plaintiff has a reaching limitation in all
directions.

R.

476-77.

As

justification

for

the

reaching

limitation, Dr. Yang wrote, “Patient has left shoulder rotator cuff
tendinopathy. Any activities including overhead which exacerbate
the pain should be avoided for the tendinopathy to heal.” R. 477.
Dr. Yang also noted pushing and/or pulling limitations resulting
from the “limited range of motion [and] tenderness” of the left
shoulder; full limitations to any crawling or stooping; limitations
to occasional climbing, kneeling, and crouching; and a limitation

6

to frequent balancing.2 R. 478.
C.

State Agency Non-Examining Medical Consultants’ Evaluations
Two state agency, non-examining consultants completed Physical

Residual Functional Capacity (“RFC”) Assessments of plaintiff. The
assessments done by Marcia Lipski, M.D., on April 30, 2010, R. 21926, and by John Jao, M.D., on November 1, 2010, R. 252-59, were
completed months before the onset of plaintiff’s left shoulder
impairment (motor vehicle accident on August 22, 2011). Neither
doctor reviewed a medical source statement. R. 225, 258.
Dr. Lipski’s RFC assessment lists back pain as the primary
diagnosis, with no other indications of a secondary diagnosis or
other alleged impairments. R. 219. Dr. Lipski concluded that
plaintiff was limited to occasionally lifting/carrying 20 pounds;
to frequently lifting/carrying 10 pounds; and to standing, walking,
or sitting for about 6 hours in the workday. R. 220. Dr. Lipski
also found that plaintiff was limited to frequent balancing and
occasional climbing, stooping, kneeling, crouching, and crawling.
R. 221. Notably, Dr. Lipski did not find any reaching limitations.
R. 222.
Dr. Jao’s RFC assessment listed degenerative disc disease as

2

In the SSA form filled out by Dr. Yang, “[f]requently means
occurring one-third to two-thirds of an 8-hour workday (cumulative,
not continuous),” and “[o]ccasionally means occurring from very
little up to one-third of an 8-hour workday (cumulative, not
continuous).” R. 478; accord R. 219, 252 (same definitions in state
agency non-examining medical consultants’ SSA evaluation forms).
7

the primary diagnosis, obesity as a secondary diagnosis, and asthma
as another alleged impairment. R. 252. Dr. Jao’s findings are
largely identical to Dr. Lipski’s, except that Dr. Jao found that
plaintiff

was

limited

to

frequent,

rather

than

occasional,

climbing, kneeling, crouching, and crawling. R. 254.
D.

Plaintiff’s Testimony
On November 29, 2011, plaintiff, represented by counsel,

appeared and testified at an administrative hearing before ALJ
Constance D. Carter. R. 23, 30-54. Plaintiff stated that his
shoulder injury resulted from a car accident on August 22, 2011,
and that his left shoulder was fine prior to that. R. 36-37.
Plaintiff testified that he “ha[s] trouble lifting even a gallon of
milk,” “occasionally” has trouble lifting ten pounds, and does not
pick up his three-month-old daughter because “it hurts too much.”
R. 36, 47-48. He also informed the ALJ that he is currently taking
Vicodin, but that it “does not make all the pain go away.” R. 49.
It only “allows [him] to sleep, . . . maybe lift [his] daughter,
not be in as much pain, be a little bit more comfortable.” Id.
Plaintiff testified that he had trouble reaching and lifting prior
to his shoulder injury due to back problems, but it “hasn’t gotten
any better since [he] injured [his] shoulder.” R. 49-50. Plaintiff
further admitted that, even if a job did not involve much lifting
or standing, he could not “concentrate and focus 40 hours a week on
work tasks” due to either the pain or the Vicodin. R. 52-53.

8

III. STANDARD
A.

Statutory and Regulatory Framework
A claimant seeking disability insurance benefits under the

Social Security Act must prove that he is unable “to engage in any
substantial

gainful

activity

by

reason

of

any

medically

determinable physical or mental impairment . . . 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). The claimant “must have a
severe impairment(s) that makes [him] unable to do [his] past
relevant work or any other substantial gainful work that exists in
the national economy.” 20 C.F.R. § 416.905(a) (internal citation
omitted).
The

Commissioner

uses

a

five-step

sequential

evaluation

process to assess a claim for disability benefits. See 20 C.F.R. §
404.1520(a)(4); see also Goodermote v. Sec’y of Health & Human
Servs., 690 F.2d 5, 6-7 (1st Cir. 1982). The evaluation will end at
any step in the process if it is determined that the claimant is
not disabled. 20 C.F.R. § 404.1520(a)(4). The steps are as follows:
1) if the applicant is engaged in substantial gainful
work activity, the application is denied; 2) if the
applicant does not have, or has not had within the
relevant time period, a severe impairment or combination
of impairments, the application is denied; 3) if the
impairment meets the conditions for one of the “listed”
impairments in the Social Security regulations, then the
application is granted; 4) if the applicant’s [RFC] is
such that he or she can still perform past relevant work,
then the application is denied; and 5) if the applicant,
given his or her [RFC], education, work experience, and
age, is unable to do any other work, the application is
9

granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001).
A claimant’s “impairment(s), and any related symptoms, such as
pain, may cause physical and mental limitations that affect what
[he] can do in a work setting.” 20 C.F.R. § 404.1545(a)(1). His RFC
is “the most [he] can still do despite [his] limitations” and is
assessed “based on all the relevant evidence in [his] case record.”
Id. The RFC is used to determine if he can perform his past
relevant work or if he can adjust to other work (i.e., if he can do
any other job that “exist[s] in significant numbers in the national
economy”). Id. § 404.1560(b)(3), (c)(1).
The claimant bears the burden of proof on steps one through
four. The SSA bears the burden of proof at step five to present
evidence of specific jobs that the applicant can still perform. See
Arocho v. Sec’y of Health & Human Servs., 670 F.2d 374, 375 (1st
Cir. 1982).
B.

Standard of Review
The Court may only set aside the ALJ decision if it resulted

from legal error or if the factual findings were not supported by
substantial evidence. Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir.
1999). For findings of fact, “even if the record arguably could
justify a different conclusion,” the Court must affirm the decision
“so long as it is supported by substantial evidence.” Rodriguez
Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir.

10

1987). Substantial evidence exists “if a reasonable mind, reviewing
the evidence in the record as a whole, could accept it as adequate
to support [the ALJ’s] conclusion.” Rodriguez v. Sec’y of Health &
Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). The Court will
examine the record in its entirety to determine the weight and
“substantiality” of the evidence. Rohrberg v. Apfel, 26 F. Supp. 2d
303, 306 (D. Mass. 1998).
The Court reviews the ALJ’s conclusions of law de novo. Ward
v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000). “Failure
of the [ALJ] to apply the correct legal standards as promulgated by
the regulations or failure to provide the reviewing court with the
sufficient basis to determine that the [ALJ] applied the correct
legal standards are grounds for reversal.” Weiler v. Shalala, 922
F. Supp. 689, 694 (D. Mass. 1996) (citing Wiggins v. Schweiker, 679
F.2d 1387, 1389 (11th Cir. 1982)). However, remand is not necessary
if it “will amount to no more than an empty exercise.” Dantran,
Inc. v. U.S. Dep’t of Labor, 171 F.3d 58, 73 (1st Cir. 1999). Where
application of the correct legal standard could support a different
conclusion, the agency’s decision must be remanded. Ward, 211 F.3d
at 656; see also Dantran, 171 F.3d at 75 (holding that, while the
“customary rule” is to remand once a court “sets aside an agency
determination,” remand is unnecessary despite legal error in the
“rare case in which the facts admit of only one plausible legal
conclusion”).

11

IV. PROCEDURAL HISTORY
Plaintiff filed his application on December 10, 2009, and
alleged a disability onset date of December 4, 2009. R. 116. His
application was denied first on May 11, 2010, and again upon
reconsideration on November 2, 2010. R. 70-72, 74-76. On November
29, 2011, an administrative hearing was held before ALJ Carter. R.
11, 23.
On December 13, 2011, the ALJ issued a decision that plaintiff
was not disabled under the Social Security Act. R. 11-20. At step
one, the ALJ found that plaintiff had not engaged in substantial
gainful activity since December 4, 2009. R. 13. At step two, the
ALJ

found

that

plaintiff

suffered

from

the

following

severe

impairments: degenerative disc disease, obesity, and asthma. Id. At
step three, the ALJ found that plaintiff did not have an impairment
or combination of impairments that met or medically equaled the
severity of one of the listed impairments (20 C.F.R. pt. 404,
subpt. P, app. 1). R. 14.
Next, the ALJ assessed plaintiff’s RFC and found he was
“limited

to

occasional

climbing

.

.

.

balancing,

stooping,

kneeling, crouching, and crawling,” and that he therefore possessed
the capacity to perform “less than the full range of sedentary
work.” Id. Although plaintiff’s treating physician, Dr. Yang,
completed a medical source statement attesting to a severe shoulder
impairment and a resulting reaching limitation, the ALJ found Dr.

12

Yang’s evaluation “largely unsupported by objective findings and
inconsistent with the longitudinal treatment record.” R. 17. The
ALJ thus did not include this impairment or resulting limitation in
her findings. Id. Based on the RFC, the ALJ found at step four that
plaintiff was unable to perform any of his past work as personal
care attendant, delivery driver, metal worker, retail manager,
security guard, laborer, store clerk, or dishwasher. R. 18.
At step five, the ALJ examined whether plaintiff could perform
other jobs available in the national economy. The ALJ found that
plaintiff could not perform any past relevant work. R. 18. After
hearing the testimony of a vocational expert, the ALJ found that,
based on plaintiff’s RFC, age, education and work experience, he
would be capable of performing jobs that exist in significant
numbers in the national economy, including charge account clerk and
“assembly worker jobs that include but are not limited to eye glass
assembler.” R. 19. The ALJ therefore concluded that plaintiff was
not disabled under the Act. R. 20.
On February 13, 2012, plaintiff requested review of the ALJ’s
decision by the Appeals Council, which denied the request on
January 7, 2013. R. 1-3, 5. Plaintiff now seeks judicial review of
the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
V. DISCUSSION
Plaintiff argues that the ALJ erred by failing to consider
whether his shoulder impairment could be expected to last for 12

13

months.3 To find disability under the Social Security Act, a
claimant must suffer from a severe impairment that “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) (emphasis added); accord 20 C.F.R. § 404.1505(a). The
ALJ concluded that plaintiff’s left shoulder impairment did not
satisfy the “duration requirement” because, by the date of the
hearing, his impairment had not lasted for 12 months. R. 13-14.
However, the ALJ did not address whether it could be expected to
last for 12 months. Id. The plain language of the statute and
regulations demonstrates that the ALJ must consider whether the
impairment has already lasted for 12 months; and, if not, whether
the impairment could be expected to last for 12 months. 20 C.F.R.
§ 404.1509; see also Social Security Ruling 82-52 (“the disabling
impairment(s) . . . must be expected to result in death, or must
have lasted (or be expected to last) for at least 12 continuous
months from the date of onset”). As such, the ALJ’s failure to
determine if the impairment could be expected to last for 12 months
was legal error.

3

Plaintiff also argues that the ALJ improperly granted little
weight to the medical opinion of plaintiff’s treating physician,
failed to include a reaching limitation as part of plaintiff’s
residual functional capacity, and relied on the wrong hypothetical
question posed to the vocational expert. The Court does not reach
these arguments, as they involve issues to be addressed on remand.
14

If a reviewing court finds that the ALJ committed legal error,
the court must then consider whether, after correcting that error,
substantial evidence exists to support a different conclusion. See
Ward, 211 F.3d at 656. The ALJ found the shoulder impairment “nonsevere” because it “ha[d] not yet persisted for the requisite
twelve-month period.” R. 14. Because the ALJ failed to address the
expected duration of the impairment, no further evidence was
considered at this point.
The Court looks to other facts found by the ALJ and in the
record to determine if substantial evidence exists to support a
conclusion that plaintiff’s shoulder impairment could be expected
to last for twelve months. The ALJ relied on the following evidence
to determine that the plaintiff was not entitled to disability
insurance benefits: (1) medical records from before the onset of
the shoulder impairment (motor vehicle accident on August 22,
2011); (2) two RFC assessments by state agency non-examining
consultants from before the onset of the shoulder impairment; (3)
medical records from after the onset of the shoulder impairment;
and (4) Dr. Yang’s medical source statement from after the onset of
the shoulder impairment. R. 13-18. The first two groups, produced
before the onset of the shoulder impairment, do not provide any
evidence regarding how long the impairment could be expected to
last. As for the third group, the emergency room documentation of
the shoulder impairment states that plaintiff had a “Shoulder

15

Injury” or “SHOULDER SPRAIN” upon discharge; and the MRI from
September 2011 contains objective identifying information about the
impairment but nothing as to how long the impairment could be
expected to last. R. 397, 493-94. Notably, neither the emergency
room

records

nor

the

MRI

rule

out

the

possibility

that

the

impairment could last for 12 months. Regarding the fourth group,
Dr. Yang found that plaintiff’s shoulder injury caused a limited
range of motion and an inability to raise his arm above his
shoulder. R. 487-88. She found the injury serious enough to warrant
a visit to a shoulder specialist as well as a Vicodin prescription.
R. 488. At plaintiff’s second visit, Dr. Yang noted “10/10 pain
when using his left shoulder,” and that “[h]e could not raise his
left arm over his shoulder.” R. 480. The extent of the injury was
consistent: Dr. Yang’s physical exam notes for the follow-up were
the same as those for plaintiff’s initial visit, as were her
recommendation

of

a

shoulder

specialist

and

prescription

of

Vicodin. R. 482-83. While not conclusive as to the duration of
plaintiff’s shoulder injury, Dr. Yang’s medical opinion contains no
objective findings to indicate that plaintiff’s shoulder injury
could not be expected to last for 12 months. R. 476-79.
Other evidence in the record provides further support for
finding that plaintiff’s impairment could last the requisite 12
months. Plaintiff’s emergency room visit on October 21, 2011, for
increasing shoulder pain resulted in another prescription for

16

Vicodin and a recommendation that he schedule an appointment with
a shoulder specialist “as soon as possible.” R. 492. Plaintiff also
stated at the administrative hearing that up to a third of the time
of an eight-hour workday, he has trouble lifting ten pounds. R. 47.
Although he had difficulty reaching and lifting prior to the car
accident due to back and other problems, plaintiff testified that
these difficulties have not improved since the onset of the
shoulder injury and that he is currently taking Vicodin for the
pain. R. 49-50. Plaintiff’s testimony is consistent with Dr. Yang’s
medical opinion and does not support a determination that the
shoulder injury will not last 12 months.
By
shoulder

contrast,
injury

some
could

of

the

support

evidence
a

regarding

finding

that

plaintiff’s

his

shoulder

impairment would not last 12 months. His initial emergency room
visit after the accident indicated that the shoulder injury was
moderate at worst, resulted in “no fracture or dislocation,” and
was diagnosed as a shoulder sprain. R. 396-97. Dr. Yang, during
plaintiff’s initial visit, found that his shoulder muscle strength
was still “4/5” despite the injury. R. 488. The subsequent MRI
revealed “mild to moderate tendinopathy” but did not identify any
tearing of plaintiff’s rotator cuff. R. 493-94. In addition,
plaintiff’s emergency room visit on October 12, 2011, resulted in
similar findings by Dr. Lerner. R. 492.

17

The evidence regarding the potential duration of plaintiff’s
injury is mixed; but, based on Dr. Yang’s medical source statement
and the paucity of other medical evidence produced after the motor
vehicle accident, remand would result in more than an empty
exercise and is warranted. See Dantran, 171 F.3d at 73.
VI. ORDER
The Court DENIES both plaintiff’s Motion to Reverse (Docket
No. 15), and defendant’s Motion to Affirm (Docket No. 20). The
Court VACATES the Commissioner’s decision that plaintiff is not
disabled under the Social Security Act, and REMANDS the case for
further proceedings consistent with this order.

/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge

18