Prince v. Social Security, Commissioner of

Filing 17

ORDER granting in part and denying in part 13 Motion for Summary Judgment; denying 14 Motion for Summary Judgment; adopting in part 15 Report and Recommendation. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS PRINCE,
Plaintiff,
CASE NO. 13-12055
v.
SENIOR UNITED STATES DISTRICT
JUDGE ARTHUR J. TARNOW

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

U.S. MAG. JUDGE PATRICIA T. MORRIS

______________________________/
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT [13], DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [14], AND REMANDING FOR
FURTHER CONSIDERATION
Before the Court is the Magistrate Judge’s Report and Recommendation
[15], entered on May 13, 2014, recommending that Plaintiff’s Motion for
Summary Judgment [13] be denied, and that Defendant’s Motion for Summary
Judgment [14] be granted. Plaintiff filed Objections [16] on May 27, 2014. No
response was filed by Defendant.
For the reasons stated below, Plaintiff’s Motion for Summary Judgment [13]
is GRANTED IN PART and DENIED IN PART, and Defendant’s Motion for
Summary Judgment [14] is DENIED. The matter is REMANDED to the ALJ for
further consideration.
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I. Procedural Background
On September 30, 2010, Plaintiff Prince filed an application for Disability
Insurance Benefits, alleging a disability onset date of April 14, 2010. His
application was denied on March 18, 2011. A hearing was held on February 16,
2012, before Administrative Law Judge (ALJ) Jessica Inouye. Plaintiff Prince
testified at the hearing. Vocational expert (VE) Judith Gasco also testified at the
hearing.
On March 2, 2012, the ALJ issued a decision finding that Plaintiff was not
disabled from April 2, 2010 through March 2, 2012, the date of the decision. In
accordance with testimony from the VE, the ALJ found that while Plaintiff was
unable to perform past relevant work, his residual functional capacity (RFC) still
allowed him to perform a significant number of “light work” unskilled jobs in the
region.
On March 26, 2013, the Appeals Council denied review of the ALJ’s ruling.
On May 9, 2013, Plaintiff filed for review of the ALJ’s decision before this Court.
On October 9, 2013, Plaintiff filed its Motion for Summary [13], and on
November 6, 2013 Defendant filed its Motion for Summary Judgment [14]. The
Magistrate Judge issued the Report and Recommendation [15] on May 13, 2014.
Defendant filed Objections [16] on May 27, 2014.

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II. Factual Background
The R&R [15] contains an accurate record of the factual background of this
case. The Court adopts the factual background as set out in the R&R [15], with the
following additions.
While working for his mother-in-law for the approximately six years prior to
the onset of his disability, Plaintiff testified that he had help from family and
friends to do any lifting or other strenuous work that he was not able to do. At the
time Plaintiff stopped working in 2010, he testified that his pain was progressively
worsening, limiting his ability to work to two or three hour days every couple of
days. Prior to working for his mother-in-law, Plaintiff worked for S&S
Construction, where he reported that he was missing days and working shorter
hours because of his pain. During his hearing, Plaintiff stated that he was only able
to sleep about four hours a night due to pain.
In an early visit to Dr. Hough in August 2010, Plaintiff reported that his pain
had improved from eight to nine out of ten to seven to eight out of ten. Plaintiff
first visited pain management specialist Larisa Bruma, M.D. in January 2011. As
early as this visit, Dr. Bruma noted that Plaintiff was taking Ambien. During a
second visit that month, Plaintiff reported that his pain was improving and 50%
better with medication, heat, and massage, but that he had “flare-ups” in pain
during activities, standing, or sitting.
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Later, in August 2011, Plaintiff reported that his pain had increased from
four out of ten to six out of ten. During that same visit, Dr. Bruma prescribed
trazodone for sleep hygiene because Plaintiff’s insurance would not cover Ambien.
Plaintiff later returned to Dr. Bruma in December 2011 and reported that his pain
was “pretty leveled” on a scale of four out of ten. After the functional assessment
performed by Barbara Rounds, an occupational therapist, in January 2012,
Plaintiff’s pain level was reported as eight out of ten. Rounds wrote that in a
follow-up call between herself and Plaintiff’s wife it was said that Plaintiff needed
to take rest breaks during the trip home from the assessment due to pain, and that
he did not sleep well that night. During the hearing, Plaintiff testified that
medication and treatment were helping alleviate his pain, but also noted that he
spent most of the day lying down, with legs propped up to relieve pain.
III. Standard of Review
This Court reviews objections to an R&R on a dispositive motion de novo.
See 28 U.S.C. §636(b)(1)(c).
A motion for summary judgment is granted under Fed. R. Civ. P. 56(c) when
there is no genuine issue as to any material fact, and the moving party is entitled to
judgment as a matter of law. Summary judgment is also proper where the moving
party shows that the non-moving party is unable to meet its burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1987). Facts and inferences must be
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viewed in the light most favorable to the non-moving party. Matsuhita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). However, the nonmoving party must present “specific facts showing that there is a genuine issue for
trial” that demonstrates that there is more than “some metaphysical doubt as to the
material facts.” Moore v. Philip Morris Cos.,Inc., 8 F.3d 335, 39-40 (6th Cir.
1993) (internal citations omitted).
In reviewing an ALJ’s decisions, 42 U.S.C. §405(g) provides that the ALJ’s
“factual findings are conclusive if supported by substantive evidence.” Maziarz v.
Sec’y of Health and Human Servs., 837 F.2d 240, 243 (6th Cir. 1987). “Our
review of the ALJ’s decision is limited to whether the ALJ applied the correct legal
standards and whether the findings of the ALJ are supported by substantial
evidence.” Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 405-06 (6th Cir. 2009)
(citing Key v. Callahan, 109 F.d 270, 273 (6th Cir. 1997)). “Substantial evidence
is defined as more than a scintilla of evidence but less than a preponderance; it is
such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)
(citing Cutlip v. Sec’y of Health and Human Servs., 25 F.3d 284, 286 (6th Cir.
1994)) (internal quotation marks omitted); Richardson v. Perales, 402 U.S. 389,
401 (1971). In order to determine “whether the Secretary’s factual findings are
supported by substantial evidence, we must examine the evidence in the record
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taken as a whole and must take into account whatever in the record fairly detracts
from its weight.” Wyatt v. Sec’y of Health and Human Servs., 974 F.2d 680, 683
(6th Cir. 1992). In doing so, the court “may look to any evidence in the record,
regardless of whether it has been cited by the Appeals Council.” Hogston v.
Comm’r of Soc. Sec., No. 12-12626, 2013 WL 5423781, at *11 (E.D. Mich. Sept.
26, 2013) (citing Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir.
2001)).
IV. Analysis
In the Report and Recommendation [15], the Magistrate Judge recommends
that Plaintiff’s Motion for Summary Judgment [13] be denied and that Defendant’s
Motion for Summary Judgment [14] be granted. The Magistrate Judge found that
substantial evidence supported the ALJ’s determination that Plaintiff is not
disabled. Accordingly, the Report and Recommendation [15] recommends this
Court affirm the decision of the Social Security Commissioner.
Plaintiff Prince now makes two objections to the Report and
Recommendation [15]. First, Plaintiff argues that the ALJ did not give enough
weight to the “other source” evidence provided by occupational therapist Rounds.
He claims that the ALJ’s lack of explanation of the ALJ’s assessment of this
evidence provides an insufficient basis for the court to review the agency’s
decision. Plaintiff also contends that the Magistrate Judge’s discussion of the
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ALJ’s reasoning for giving little weight to the “other source” evidence was
insufficient under the Chenery rule.1 Second, Plaintiff alleges that the ALJ’s
improper weighing of Rounds’s opinion was neither trivial nor harmless, as found
by the Magistrate Judge.
After reviewing the record, the Report and Recommendation [15], and
Plaintiff’s objections [16], this Court agrees that the ALJ gave an insufficient
explanation of her analysis of Rounds’s report. This Court also finds that the ALJ
gave an insufficient explanation for her treatment of Dr. Hough’s opinion. In
addition, the ALJ’s analysis of Plaintiff’s subjective reports of pain and the
characterization of Rounds’s report as conclusory are not supported by the record.
These errors are not trivial, and thus the matter is remanded to the ALJ for further
consideration in accordance with this opinion.

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Plaintiff’s reliance on the Chenery rule is misplaced. The Chenery rule (or rules)
refers to the Supreme Court’s holding in two cases between the Securities and
Exchange Commission and the Chenery Corporation - Chenery I and Chenery II.
In Chenery I, the Court held that a court will only review an agency’s decision
based on the reasons the agency provides for its action and that post hoc
justifications will not be considered. See Sec.& Exch. Comm’n v. Chenery Corp.,
318 U.S. 80, 87 (1943). In Chenery II, the Court held that administrative agencies
may use their own discretion when choosing procedures for creating rules. See
Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 203 (1947). These rules
need not be applied here. Instead, the issue now before the Court is whether the
ALJ’s treatment of the record is insufficient for the court to understand and review
the ALJ’s rationale.
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A. Opinion of Treating Physician Hough
The ALJ states that she gave “some weight” to Plaintiff’s treating physician,
Dr. Joseph Hough. However, the ALJ’s discussion of opinion evidence provided
by Dr. Hough is unclear to the extent that the Court cannot determine what
evidence she included in her weighing of Dr. Hough’s opinion. The ALJ notes that
Dr. Hough signed off on a portion of Rounds’s report, and describes his analysis as
appearing to “rest on subjective reports of symptoms and limitations provided by
the claimant that are not supported by the medical evidence of the record as a
whole.” It is also not explained if the reports the ALJ refers to are Plaintiff’s
personal reports of pain, or all or a portion of Rounds’s report.
If the ALJ is referring to Rounds’s report or the portion of it which Dr.
Hough signed, this description would be inaccurate. Occupational therapist
Rounds’s report is quite in-depth and rests on more than just Plaintiff’s subjective
complaints. If the ALJ is referring to Plaintiff’s subjective reports of pain, then
Plaintiff’s complaints also appear to be supported by the record. In addition, the
ALJ’s general statement that the subjective reports of pain are not supported by the
record “as a whole” does not identify which portions of the record are in conflict.
See Hogston v. Comm’r of Soc. Sec., No. 12-12626, 2013 WL 5423781, at *11
(E.D. Mich. Sept. 26, 2013) (“[e]laboration on what inconsistencies the ALJ relied
is lacking and thus evades adequate judicial review . . . without elaboration, there
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is no way to know whether the ALJ disregarded this portion of [the doctor’s]
treatment records, or instead found inconsistency significant enough to discredit
[the doctor’s] opinion.”).
Given that Dr. Hough is Plaintiff’s treating physician, whose opinion should
generally be given greater weight, this gap in the record makes it particularly
difficult for the Court to review whether the ALJ’s overall analysis of Plaintiff’s
application is supported by substantial evidence. Even if an ALJ does not find that
a treating physician’s opinion is entitled to controlling weight, “there remains a
presumption, albeit a rebuttable one, that the opinion of a treating physician is
entitled to great deference.” Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)).
Specifically, the “treating source rule” requires that the ALJ give “good reasons”
for the weight given to a treating source opinion. 20 C.F.R. § 404.1527(c)(2).
Thus, because the ALJ’s treatment of Dr. Hough’s opinion is insufficient for the
Court to understand why and in what way she decided to accord it only “some
weight,” it is necessary to remand to the ALJ for further explanation.
B. Report of Occupational Therapist Rounds
The ALJ describes Rounds’s functional assessment report as “quite
conclusory, providing little explanation of the evidence relied on in forming [the]
opinion.” This description of Rounds’s report is not supported by substantial
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evidence. Instead, the assessment provided by Rounds is quite detailed and
provides substantial support for the recommendations contained within. Because it
appears that as a result of her mischaracterization of Rounds’s report the ALJ gave
it little weight in her overall analysis, the Court directs the ALJ to revisit her
overall analysis of Plaintiff’s application in light of the Court’s analysis of the
report provided below.
When assessing an individual’s impairment, the Social Security
Administration (SSA) distinguishes between “acceptable medical sources,” such as
licensed physicians, and “other sources” which include physicians’ assistants,
therapists, and medical sources not listed as “acceptable medical sources.” 20
C.F.R. § 404.1513. As an occupational therapist, Rounds’s opinions are
considered “other source” evidence. In 2006, the SSA issued ruling SSR 06-03p
which sought to clarify its policy in regard to assessing this “other source”
evidence. The ruling provided that the factors enumerated in 20 C.F.R. §
404.1527(c), which explains how medical source opinions are evaluated in
determining disability status, can also be applied to “other source” opinions. These
six factors are the examining relationship, treatment relationship, supportability,
consistency, specialization, and any other relevant factors. The Sixth Circuit Court
has held that, “[a]n ALJ must consider other-source opinions and ‘generally should

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explain the weight given to opinions for these 'other sources[.]’” Hill v. Comm'r of
Soc. Sec., 560 Fed. Appx. 547, 550 (6th Cir. 2014)(quoting SSR 06-03p).
In regard to the examining and treatment relationship factors of 20 C.F.R. §
404.1527(c), Plaintiff’s counsel noted during the hearing that the assessment by
Rounds was completed because Dr. Hough would not provide any restrictions until
he had a functional capacity evaluation. Likewise, there is only mention of one
visit to Rounds’s office in the record. This suggests Plaintiff met with Rounds
only once, and that the assessment was brought about by referral from Plaintiff’s
treating physician. In addition, at the beginning of Rounds’s report, she
enumerates the two reasons Plaintiff was referred to her office: to assess the
client’s physical status and safe functional capabilities as related to the physical
demands of work, and to help define the client’s residual capacities and determine
his ability to engage in substantial gainful activity on a regular and constant basis.
Thus, the record contained evidence by which the ALJ could evaluate the first two
factors, yet they were not addressed in her decision.
In addition, the consistency of Rounds’s report with the record as a whole is
not mentioned in the ALJ decision. The Report and Recommendation [15]
contends that the ALJ, by noting that Rounds “opined that the claimant was not
able to . . . sustain full-time employment but if he did so, he would have
limitations,” showed a recognition by the ALJ of a “slight inconsistency in
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Rounds’s declaration that Plaintiff was incapable of work, but would need certain
limitations if he did work.” This is misconstruing Rounds’s report. What is
actually written under the “Tolerance for Sustained Work Activity” section of the
report is the following:
The client does NOT appear capable of engaging in full-time
sustained employment. If the client were required to work 40 hours
per week, 8 hours per day in a competitive work environment he
would most likely have serious limitations as to pace and
concentration & [sic] need a sit-stand-rest option as symptoms dictate.
(emphasis in original). Rather than being inconsistent, it actually appears that
Rounds was merely providing her interpretation of what limitations Plaintiff would
require if her impression of his inability to work was not accepted. Representing
this rather thorough analysis as an inconsistency is inaccurate. Further, before her
own assessment was given, Rounds’s report reviewed the medical history, daily
activities, and employment information of Plaintiff, showing that she was familiar
with Plaintiff’s medical record.
In regard to the specialization factor, the ALJ notes that Rounds is a
registered occupational therapist (OTR). An OTR is responsible for assessing
patients’ needs and creating treatment plans. The Bureau of Labor Statistics notes
that a typical duty of an occupational therapist is to “[a]ssess and record patients’
activities and progress for patient evaluations, for billing, and for reporting to
physicians and other healthcare providers.” BUREAU OF LABOR STATS., U.S. DEP’T
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OF LABOR, OCCUPATIONAL OUTLOOK HANDBOOK (2014-15 ed.),

available at

http://www.bls.gov/ooh/healthcare/occupational-therapists.htm#tab-2.
Finally, the main concern the ALJ appears to have with Rounds’s report is
its supportability. However, the report is quite detailed and supported by
substantial explanation of Rounds’s observations and Plaintiff’s demonstrated
capabilities. Rounds’s functional assessment provides Plaintiff’s heart rate during
each exercise, his pain rating on a scale of zero to ten, reasons for termination,
such as “[p]rogressive and intense low back and left leg pain,” and other
observational notes, including “client was noted to frequently shift his weight” and
“client appeared to be in moderate distress and presented with significant shortness
of breath.” To compare, in Southward the court noted that the nurse-practitioner’s
opinion was:
. . . nothing more than a form on which she checked boxes indicating
Plaintiff's level of impairment. It is devoid of any discussion of the
observations or medical evidence that led [the nurse-practitioner] to
her assessments; it does not indicate how long and how frequently
[the nurse-practitioner] had been treating Plaintiff; and it appears to be
based entirely on Plaintiff's subjective description of her limitations.
Southward v. Comm’r of Soc. Sec., No. 11-14208, 2012 WL 3887212, at *6.
The ALJ’s discussion of Rounds’s report does not take note of many of the
distinctions and details the report includes. For instance, the ALJ states that
Rounds’s report showed that Plaintiff would be limited to lifting or carrying 10
pounds. The RFC similarly assigns Plaintiff a capability of light work, defined in
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§ 404.1567(b) as including the capability to lift “no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds.” However,
in Rounds’s report, the lifting assessment was only done from waist to waist.
Lifting from floor to waist was deemed unsafe by Rounds. It was noted for the
overhead lifting test that Plaintiff had insufficient AROM in the left shoulder and
decreased spinal ability. Rounds also noted under reasons for termination in the
waist to waist lifting exercise that there was left leg weakness and instability,
increased antalgia, and complaints of intense pain with consistent pain behaviors.
In summary, the ALJ’s analysis of the evidence and opinions offered by
Rounds is not supported by substantial evidence. In regard to consistency,
specialization, and supportability, the record contains evidence that would prompt
giving additional weight to Rounds’s report, contrary to how it appears the report
was treated by the ALJ. The Report and Recommendation’s [15] contention that
the ALJ’s decision shows a reasoned consideration of Round’s opinion is either not
supported by the gaps in the ALJ’s decision or disproved by portions of the report
the Court has identified above.
C. Plaintiff’s Credibility
The ALJ states that she found Plaintiff’s allegations partially “credible to the
extent that they are consistent with the limitations in the residual functional
capacity but beyond that, the allegations are given little weight.” This statement,
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along with the ALJ’s RFC determination that Plaintiff was capable of light work,
suggests that Plaintiff’s reports of pain were given very little weight in determining
his capabilities. Yet, there are several mischaracterizations or gaps in the ALJ’s
analysis, and Plaintiff’s reports of pain do seem to be reasonable and supported by
the record as a whole.
There is a two-step process for evaluating subjective symptoms, such as
pain. SSR 96-7p explains that the first step is to determine if there is an underlying
medically determinable physical impairment that can reasonably be expected to
produce the plaintiff’s pain. Once such an underlying impairment has been
identified, the next step is to evaluate the extent to which the plaintiff’s pain will
affect his or her ability to work. During this second step, to the extent a plaintiff’s
reports of pain are not supported by the objective medical evidence, the ALJ must
make a finding on the plaintiff’s credibility based on the record as a whole. 20
C.F.R. § 404.1529(c); SSR 96-7p. The factors to be considered when assessing an
individual’s credibility are provided in SSR 96-7p:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's
pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication
the individual takes or has taken to alleviate pain or other
symptoms;
5. Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms;
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6. Any measures other than treatment the individual uses or has used
to relieve pain or other symptoms (e.g., lying flat on his or her
back, standing for 15 to 20 minutes every hour, or sleeping on a
board); and
7. Any other factors concerning the individual's functional limitations
and restrictions due to pain or other symptoms.
Here, a number of questions have been raised in regard to the ALJ’s
treatment of Plaintiff’s subjective complaints. In regard to Plaintiff’s daily
activities, the first factor, the ALJ accurately states that Plaintiff is generally
independent in his personal care, but that his daily activities are limited. However,
as the Report and Recommendation [15] notes, the ALJ slightly mischaracterizes
Plaintiff’s statements by stating that Plaintiff acknowledges that he can drive, read,
go shopping, and visit with family. This language in the ALJ’s decision suggests
she used this evidence to question Plaintiff’s overall credibility. However, whereas
the ALJ stated Plaintiff could drive, during the hearing Plaintiff testified that that
he did not keep a driver’s license, and had stopped driving in June 2011. He
testified that he had never read often, and if he tried to read now it would hurt to
hold a book out in front of him. Plaintiff reported that he did visit with his family,
but that they came to his house to see him. He goes grocery shopping only when
he is already out of the house for a doctor’s appointment.
In regard to factors five and six, the ALJ states that Plaintiff’s treatment “has
been routine and conservative, which has generally been successful in controlling
his symptoms.” She then cites to the portion of Dr. Bruma’s medical records
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which noted that Plaintiff’s pain had improved by fifty percent. However, it is not
clear to this Court from the medical record to what extent Plaintiff’s treatment has
been effective in controlling his pain as Plaintiff’s reported pain levels fluctuate
throughout the record. Finally, the statement that Plaintiff’s treatment has been
“routine and conservative” is not defined, nor is it explained how this
characterization of Plaintiff’s treatment is factored into the overall analysis.
Although the ALJ in this case has stated that she considered the relevant
regulations, the Court has identified instances that support the conclusion that the
ALJ has failed to properly weigh the factors in the associated regulations. As such,
it is necessary for the ALJ to provide further explanation of her reasoning, and, if
merited, reconsider her assessment of Plaintiff’s credibility. See Felisky v. Bowen,
35 F.3d 1027, 1039-40 (6th Cir. 1994).
D.

Harmless Error
The Report and Recommendation [15] notes that the ALJ’s “decision’s main

shortcoming is its lack of clarity in spelling out the ALJ’s reasoning process,” yet
its description of this shortcoming as a harmless error is inaccurate. The VE’s
testimony provides reason to believe that the ALJ’s decision may have come out
differently had she accorded greater weight to Rounds’s report, Dr. Hough’s
opinion, or Plaintiff’s own allegations of pain. After providing a number of
hypotheticals, the ALJ asked the vocational expert if there would be jobs available
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in the regional or national economy for a person of Plaintiff’s age, education, and
work experience. In response to the third hypothetical, which presented a situation
in which Plaintiff would have to lie down in three one-hour increments during an
eight-hour workday, the vocational expert responded that there would be no jobs
available. The fourth hypothetical asked if there would be positions available if
Plaintiff could only work four hours per day and was limited to a range of
sedentary work. The vocational expert responded that there would be no positions
available. See cf. Hill v. Astrue, no. 5:12CV-00072-R, 2013 WL 3293657, at *4
(W.D. Ky. June 28, 2013) (holding “even if the ALJ technically erred in failing to
address each regulatory factors [sic], any error was harmless inasmuch as the
Plaintiff has not shown a reasonable probability that an explicit analysis would
have resulted in a [different] finding.”).
Regardless of whether the ALJ’s errors in this case were harmless, it is
difficult for the Court to determine whether this would have made a difference in
the outcome of the case without further explanation from the ALJ. Specifically,
the ALJ failed to provide a sufficient explanation of the weight given to Dr.
Hough’s opinion, as well as the ALJ’s analysis of Rounds’s report and Plaintiff’s
subjective complaints does not appear to be supported by the record. Thus, remand
is appropriate so that the ALJ can adequately explain her decision.

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V. Conclusion
For the reasons stated above, the matter is REMANDED for further
explanation, the Plaintiff’s Motion for Summary Judgment [13] is GRANTED IN
PART and DENIED IN PART, and Defendant’s Motion for Summary Judgment
[14] is DENIED.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary
Judgment [13] is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment [14] is DENIED.
IT IS FURTHER ORDERED that the matter is REMANDED for further
consideration.
SO ORDERED.
s/Arthur J. Tarnow
ARTHUR J. TARNOW
SENIOR UNITED STATES DISTRICT JUDGE
Dated: September 16, 2014

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