Braman v. Commissioner of Social Security
Filing
13
OPINION; signed by Magistrate Judge Joseph G. Scoville (Magistrate Judge Joseph G. Scoville, mmh)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
)
JEFFREY A. BRAMAN,
)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF
)
SOCIAL SECURITY,
)
)
Defendant.
)
____________________________________)
Case No. 1:10-cv-1259
Honorable Joseph G. Scoville
OPINION
This is a social security action brought under 42 U.S.C. §§ 405(g), 1383(c)(3) seeking
review of a final decision of the Commissioner of Social Security denying plaintiff’s claims for
disability insurance benefits (DIB) and supplemental security income (SSI) benefits. On July 13,
2006, plaintiff filed his applications for benefits alleging a May 1, 2000 onset of disability.1 (A.R.
219-26). Plaintiff’s disability insured status expired on June 30, 2009. Thus, it was plaintiff’s
burden to submit evidence demonstrating that he was disabled on or before June 30, 2009. See Moon
v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990).
Plaintiff’s claims for DIB and SSI benefits were denied on initial review. (A.R. 12634). On January 30, 2009, plaintiff received a hearing before an administrative law judge (ALJ),
1
SSI benefits are not awarded retroactively for months prior to the application for benefits.
20 C.F.R. § 416.335; see Kelley v. Commissioner, 566 F.3d 347, 349 n.5 (3d Cir. 2009); see also
Newsom v. Social Security Admin., 100 F. App’x 502, 504 (6th Cir. 2004). The earliest month in
which SSI benefits are payable is the month after the application for SSI benefits is filed. Thus,
August 2006 is plaintiff’s earliest possible entitlement to SSI benefits.
at which he was represented by counsel. (A.R. 69-106). On March 26, 2009, the ALJ issued a
decision finding that plaintiff was not disabled. (A.R. 112-20). On September 12, 2009, the Appeals
Council vacated the ALJ’s decision and remanded the matter for further administrative proceedings.
(A.R. 123-25). On February 11, 2010, plaintiff received a hearing before an administrative law judge
(ALJ), at which he was represented by counsel. (A.R. 36-68). On March19, 2010, the ALJ issued
a decision finding that plaintiff was not disabled. (A.R. 18-31). The Appeals Council denied review
on October 20, 2010 (A.R. 1-3), and the ALJ’s decision became the Commissioner’s final decision.
Plaintiff filed a timely complaint seeking judicial review of the Commissioner’s
decision. Pursuant to 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure, the
parties voluntarily consented to have a United States magistrate judge conduct all further proceedings
in this case, including entry of final judgment. (docket # 9). Plaintiff asks the court to overturn the
Commissioner’s decision on the following grounds:
1.
The ALJ “failed to sufficiently explain his adverse credibility findings;”
2.
The ALJ’s RFC finding is not supported by substantial evidence because it did not
include “needed breaks for pain, fatigue, and to check blood sugars;” and
3.
“The ALJ failed to give sufficient weight to the opinions of the plaintiff’s medical
providers, Edward Lewis, M.D. and B. R. Reames, PA-C.”
(Plf. Brief at iii, docket # 10). Upon review, the Commissioner’s decision will be affirmed.
Standard of Review
When reviewing the grant or denial of social security benefits, this court is to
determine whether the Commissioner’s findings are supported by substantial evidence and whether
the Commissioner correctly applied the law. See Elam ex rel. Golay v. Commissioner, 348 F.3d 124,
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125 (6th Cir. 2003); Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Substantial evidence is
defined as “‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Heston v. Commissioner, 245 F.3d 528, 534 (6th Cir. 2001) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)); see Rogers v. Commissioner, 486 F.3d 234, 241 (6th Cir. 2007).
The scope of the court’s review is limited. Buxton, 246 F.3d at 772. The court does not review the
evidence de novo, resolve conflicts in evidence, or make credibility determinations. See Ulman v.
Commissioner, No. 11-2304, __ F.3d __, 2012 WL 3871353, at * 4 (6th Cir. Sept. 7, 2012); Walters
v. Commissioner, 127 F.3d 525, 528 (6th Cir. 1997). “The findings of the [Commissioner] as to any
fact if supported by substantial evidence shall be conclusive . . . .” 42 U.S.C. § 405(g); see
McClanahan v. Commissioner, 474 F.3d 830, 833 (6th Cir. 2006). “The findings of the
Commissioner are not subject to reversal merely because there exists in the record substantial
evidence to support a different conclusion. . . . This is so because there is a ‘zone of choice’ within
which the Commissioner can act without fear of court interference.” Buxton, 246 F.3d at 772-73.
“If supported by substantial evidence, the [Commissioner’s] determination must stand regardless of
whether the reviewing court would resolve the issues of fact in dispute differently.” Bogle v.
Sullivan, 998 F.2d 342, 347 (6th Cir. 1993); see Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996)
(“[E]ven if the district court -- had it been in the position of the ALJ -- would have decided the
matter differently than the ALJ did, and even if substantial evidence also would have supported a
finding other than the one the ALJ made, the district court erred in reversing the ALJ.”). “[T]he
Commissioner’s decision cannot be overturned if substantial evidence, or even a preponderance of
the evidence supports the claimant’s position, so long as substantial evidence also supports the
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conclusion reached by the ALJ.” Jones v. Commissioner, 336 F.3d 469, 477 (6th Cir. 2003); see
Kyle v. Commissioner, 609 F.3d 847, 854 (6th Cir. 2010).
Discussion
The ALJ found that plaintiff met the disability insured status requirements of the
Social Security Act on May 1, 2000, his alleged onset of disability, and continued to meet the
requirements through June 30, 2009, but not thereafter. (A.R. 20). The work plaintiff performed
after his alleged onset of disability did not rise to the level of substantial gainful activity precluding
an award of benefits at step 2 of the sequential analysis.2 (A.R. 20). The ALJ found that plaintiff
had the following severe impairments: “degenerative disc disease, depression, osteoarthritis of the
right shoulder, left shoulder impingement, diabetes, bipolar disorder, and borderline personality
disorder.” (A.R. 21). Plaintiff did not have an impairment or combination of impairments which
met or equaled the requirements of the listing of impairments. (A.R. 21). The ALJ found that
plaintiff retained the following residual functional capacity (RFC):
After careful consideration of the entire record, I find that the claimant has the residual
functional capacity to perform a narrowed range of sedentary work as defined in 20 CFR
2
“Administrative law judges employ a five-step sequential inquiry to determine whether a
claimant is disabled within the meaning of the Social Security Act.” Warner v. Commissioner, 375
F.3d 387, 390 (6th Cir. 2004). Under the sequential analysis, “The claimant must first show that []he
is not engaged in substantial gainful activity. Next, the claimant must demonstrate that []he has a
‘severe impairment.’ A finding of ‘disabled’ will be made at the third step if the claimant can then
demonstrate that h[is] impairment meets the durational requirement and ‘meets or equals a listed
impairment.’ If the impairment does not meet or equal a listed impairment, the fourth step requires
the claimant to prove that []he is incapable of performing work that []he has done in the past.
Finally, if the claimant’s impairment is so severe as to preclude the performance of past work, then
other factors, including age, education, past work experience, and residual functional capacity, must
be considered to determine if other work can be performed. The burden shifts to the Commissioner
at this fifth step to establish the claimant’s ability to do other work.” White v. Commissioner, 572
F.3d 272, 282 (6th Cir. 2009).
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404.1567(a) and 416.967(a). He could occasionally lift 10 pounds, sit for approximately 6
hours in an 8-hour workday with normal breaks, stand or walk for approximately 2 hours in
an 8-hour workday with normal breaks; would require a sit/stand option alternatively at will;
could do no pushing/pulling with the upper extremities; could not operate foot controls with
the lower extremities; should never climb ramps or stairs; should never climb ladders, ropes
or scaffolds; could engage in occasional balancing and stooping; and should never kneel,
crouch, and crawl. He should avoid concentrated exposure to extreme cold, heat, wetness,
humidity, and excessive vibration. He should avoid all exposure to workplace hazards such
as unprotected machinery and unprotected heights due to effects of pain medication. Work
would be limited to simple, routine, and repetitive tasks in a work environment free of fastpaced production requirements; involving only simple work-related decisions; and with few,
if any, workplace changes.
(A.R. 22-23). The ALJ determined that plaintiff’s subjective complaints were not fully credible.
(A.R. 23-29). He found that plaintiff was not capable of performing his past relevant work. (A.R.
29). Plaintiff was 27-years-old as of his alleged onset of disability, 36-years -old when his disability
insured status expired, and 37-years-old as of the date of the ALJ’s decision. Thus, at all times
relevant to his claims for DIB and SSI benefits, plaintiff was classified as a younger individual.
(A.R. 29). Plaintiff has at least a high school education and is able to communicate in English.
(A.R. 29). The ALJ found that the transferability of jobs skills was not material to a disability
determination. (A.R. 29). The ALJ then turned to the testimony of a vocational expert (VE). In
response to a hypothetical question regarding a person of plaintiff’s age, and with his RFC,
education, and work experience, the VE testified that there were approximately 9,200 jobs in
Michigan’s Lower Peninsula that the hypothetical person would be capable of performing. (A.R.
65-66). The ALJ found that this constituted a significant number of jobs. Using Rule 201.28 of the
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Medical-Vocational Guidelines as a framework, the ALJ held that plaintiff was not disabled.3 (A.R.
29-31).
1.
Plaintiff argues that the ALJ “failed to sufficiently explain his adverse credibility
findings” and that the ALJ’s factual finding regarding his RFC should have included additional
restrictions for plaintiff’s need to take unscheduled breaks. (Plf. Brief at 14-16; Reply Brief at 2-4).
A.
Credibility
This case turns on the ALJ’s credibility determination regarding plaintiff’s
subjective complaints. Credibility determinations concerning a claimant’s subjective complaints are
peculiarly within the province of the ALJ. See Gooch v. Secretary of Health & Human Servs., 833
F.2d 589, 592 (6th Cir. 1987). It is the ALJ’s function to determine credibility issues. See Siterlet
v. Secretary of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987). The court does not make
its own credibility determinations. See Walters v. Commissioner, 127 F.3d 525, 528 (6th Cir. 1997).
The court’s “review of a decision of the Commissioner of Social Security, made through an
administrative law judge, is extremely circumscribed . . . .” Kuhn v. Commissioner, 124 F. App’x
3
Since 1996, the Social Security Act, as amended, has precluded awards of SSI and DIB
benefits based upon alcoholism and drug addiction. See 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J);
20 C.F.R. §§ 404.1535, 416.935; see also Bartley v. Barnhart, 117 F. App’x 993, 998 (6th Cir.
2004); Hopkins v. Commissioner, 96 F. App’x 393, 395 (6th Cir. 2004). The claimant bears the
burden of demonstrating that drug and alcohol addiction was not a factor contributing to his
disability. See Cage v. Commissioner, No. 09-4530-cv, __ F.3d __, 2012 WL 3538264, at * 4-6 (2d
Cir. Aug. 17, 2012); Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007); Brown v. Apfel, 192 F.3d
492, 498 (5th Cir. 1999); see also Zarlengo v. Barnhart, 96 F. App’x 987, 989-90 (6th Cir. 2004).
Because plaintiff was found not to be disabled, the ALJ was not required to decide the issue of
whether substance abuse was material to a finding of disability.
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943, 945 (6th Cir. 2005). The Commissioner’s determination regarding the credibility of a
claimant’s subjective complaints is reviewed under the “substantial evidence” standard. This is a
“highly deferential standard of review.” Ulman v. Commissioner, No. 11-2304, __ F.3d __, 2012
WL 3871353, at * 5 (6th Cir. Sept. 7, 2012). “Claimants challenging the ALJ’s credibility
determination face an uphill battle.” Daniels v. Commissioner, 152 F. App’x 485, 488 (6th Cir.
2005). “Upon review, [the court must] accord to the ALJ’s determinations of credibility great weight
and deference particularly since the ALJ has the opportunity, which [the court] d[oes] not, of
observing a witness’s demeanor while testifying.” Jones, 336 F.3d at 476. “The ALJ’s findings as
to a claimant’s credibility are entitled to deference, because of the ALJ’s unique opportunity to
observe the claimant and judge [his] subjective complaints.” Buxton v. Halter, 246 F.3d at 773;
accord White v. Commissioner, 572 F.3d 272, 287 (6th Cir. 2009); Casey v. Secretary of Health &
Human Servs., 987 F.2d 1230, 1234 (6th Cir. 1993).
The ALJ found that plaintiff’s testimony regarding his functional limitations was not
fully credible:
The claimant at the initial hearing testified that, when he was working as a carpenter, he
would occasionally change positions to relieve his pain. At the hearing held in February
2010, the claimant reported that he had been hospitalized 36 times and had 15 surgeries
which are not supported by the evidence of record. The claimant testified that he would have
to lie down once an hour for 15 to 30 minutes each time during the day. In fact, there are
mentions throughout the file that the claimant was able to bend and almost touch his toes
(Exhibits 3F p. 9 and 11F p. 7)[A.R. 359, 418], could do pushups (p. 8)[A.R. 419], was
walking without difficulty, and was not displaying any pain behaviors (Exhibits 15F and
16F)[A.R. 477-87]. The claimant continued to return to work that is medium exertional level
and has mentions of him carrying wood and hanging drywall (Exhibits 14F and 11F)[A.R.
413-49, 465-76]. These are not the actions of someone who would be limited to not even
sedentary work on a consistent basis as argued by the claimant’s representative.
After careful consideration of the evidence, I find that the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms; however, the
claimant’s testimony regarding the intensity, persistence and limiting effects of these
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symptoms are not credible to the extent they are inconsistent with the above residual capacity
assessment.
While I do not doubt that the claimant experiences some difficulty, his statements concerning
his impairments and their impact on his ability to work are not entirely credible in light of
the claimant’s own description of his activities and lifestyle, the degree of medical treatment
required, the reports of treating and examining practitioners, the medical history, the findings
made on examination, and the claimant’s assertions regarding his ability to work.
(A.R. 28-29). It was appropriate for the ALJ to take plaintiff’s daily activities into account in
making his credibility determination. See Cruse v. Commissioner, 502 F.3d 532, 542 (6th Cir.
2007); Blacha v. Secretary of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990).
Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. Heston v. Commissioner, 245 F.3d at 534. Carrying wood and hanging
drywall are activities far in excess of what would be anticipated from an individual who claims that
he is incapable of performing a limited range of sedentary work. The ALJ’s credibility finding is
supported by more than substantial evidence and the ALJ gave a more than adequate explanation
why he found that plaintiff’s testimony was not fully credible. See Rogers v. Commissioner, 486
F.3d 234, 247-49 (6th Cir. 2007).
B.
Residual Functional Capacity (RFC)
Plaintiff argues that the ALJ’s factual finding regarding his RFC is not supported by
substantial evidence. RFC is an administrative finding of fact reserved to the Commissioner. 20
C.F.R. §§ 404.1527(d)(2), (3), 416.927(d)(2), (3). RFC is the most, not the least, a claimant can do
despite his impairments. 20 C.F.R. §§ 404.1545(a), 416.945(a); Griffeth v. Commissioner, 217 F.
App’x 425, 429 (6th Cir. 2007).
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The ALJ found that plaintiff retained the RFC for a limited range of sedentary work
with a sit/stand option, no pushing or pulling with the upper extremities, no use of foot controls with
the lower extremities, no climbing of ramps, stairs, ladders, ropes or scaffolds, occasional balancing
and stooping, and no kneeling, crouching, and crawling. Plaintiff should avoid concentrated
exposure to extreme cold, heat, wetness, humidity, and excessive vibration, and avoid all exposure
to workplace hazards such as unprotected machinery and unprotected heights due to effects of pain
medication. Further, plaintiff was limited to simple, routine, and repetitive tasks in a work
environment free of fast-paced production requirements, involving only simple work-related
decisions, and with few, if any, workplace changes. (A.R. 22-23). The court finds that the ALJ’s
factual finding regarding plaintiff’s RFC is supported by more than substantial evidence.
There are huge gaps in the evidence plaintiff filed in support of his claims for DIB
and SSI benefits. Although plaintiff claims a May 1, 2000 onset of disability, the earliest medical
record he submitted is dated almost three years after the alleged onset date.4 (A.R. 429).
On April 6, 2004, Mark Adams, M.D., reported that plaintiff’s EMG showed no
active nerve damage. Plaintiff had normal strength and was able to do a pushup without difficulty.
(A.R. 419).
In June 2004, Neurosurgeon E. Malcolm Field, M.D., performed a consultative
evaluation. Dr. Field found that plaintiff had no disturbance of “gait, taste, smell, speech,
swallowing, reading, writing, memory functions, [or] orientation.” (A.R. 418). He had stiffness and
tightness in his back, but was “able to go down to about touch his toes.” (A.R. 418). Plaintiff was
4
Plaintiff was well aware of this deficiency in the evidence he presented. (A.R. 73-75).
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performing the construction work of hanging drywall. (A.R. 418). His July 2004 MRI showed the
post-surgical changes at L4-5, but there was no evidence of disc herniation or stenosis. (A.R. 428).
Plaintiff testified that he had 15 surgeries (A.R. 48), but the only surgical records
found in this administrative record stem from his June 2007 and April 2009 surgeries performed by
Dr. Schell. (A.R. 442-45, 609-10).5 Plaintiff did not submit any medical records for 2005. He
worked as a carpenter from October 2005 to March 2006: work which involved lifting and carrying
“stacks of wood, building materials, equipment, tools, trusses [] up to 100 ft.[,] at times all day.”
(A.R. 286-88). Plaintiff began treating with Physician’s Assistant B. R. Reames in May 2006. (A.R.
51, 352, 454). Progress notes for June 1, 2006, indicate that plaintiff was taking insulin for his
diabetes. He stated that he experienced depression and anxiety. Mr. Reames gave him a prescription
for Ativan. (A.R. 353). On July 6, 2006, Physician’s Assistant T. Phan stated that plaintiff could
perform work “with no restrictions.” (A.R. 367).
On July 13, 2006, plaintiff filed his applications for DIB and SSI benefits. His July
28, 2006 MRI showed post-operative changes with a magnetic artifact at L4-L5, and “minimal”
broad based bulging of the L5-S1 disc without significant neural effacement. (A.R. 349, 368). In
August and September 2006, plaintiff sought and obtained prescriptions for narcotic medications
from Dr. Lewis, a “family friend” (A.R. 51) and general surgeon.6 (A.R. 360-61). Plaintiff saw Dr.
5
There are allusions to plaintiff’s 1999 back surgery performed by Dr. Flood. (A.R. 359, 416,
428).
6
When plaintiff was 16-years-old, Dr. Lewis performed his appendectomy, but that was
eleven years before plaintiff’s alleged onset of disability. (A.R. 51). There are no medical records
from any surgical procedure that Dr. Lewis performed during the decade at issue, or in the decade
preceding it.
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Lewis on three occasions: August 8, 29, and September 26, 2006.7 On August 8, 2006, plaintiff did
not appear to be in any acute distress. He had a full range of motion in his extremities and his
strength, sensation and reflexes were intact bilaterally. Neurologically, plaintiff was oriented in all
three spheres. His cranial nerves, motor and sensory systems were intact. He was alert and oriented.
(A.R. 361). Dr. Lewis expressed significant concern about plaintiff’s long-term use of narcotics, but
nonetheless gave him a month’s supply of Duragesic patches. (A.R. 362). Three weeks later, on
August 29, 2006, plaintiff returned to Lewis’s office. Lewis counseled plaintiff regarding the
possibility of addiction, but did refill plaintiff’s prescription for Duragesic patches. (A.R. 365). Dr.
Lewis recommended that plaintiff keep his medication in a very secure place because it was “apt to
be stolen by drug seekers.” (A.R. 365).
On September 19, 2006, Dr. Field conducted another neurological consultation. He
found no evidence of sensory deficits. Plaintiff’s fusion was solid. He had no muscle atrophy and
no significant paravertebral muscle tightness. (A.R. 359, 416). On September 20, 2006, plaintiff
sought additional Dilaudid at Medics P.C. in Edmore, Michigan. He stated that he ran out of the
medication a week and a half earlier. (A.R. 356). Plaintiff’s last visit with Dr. Lewis occurred on
September 26, 2006. Plaintiff requested and obtained more medication. Dr. Lewis refilled the
Duragesic prescription, with the limitation that plaintiff use it “once every three days.” (A.R. 364).
A September 28, 2006 MRI revealed no spinal canal stenosis or significant neural foraminal
compromise. A “mild” effacement of the thecal sac was observed “from either a disc bulge or
possibly that of postoperative scarring.” (A.R. 350, 426).
7
Dr. Lewis’s letter to Mr. Reames on August 8, 2006, described plaintiff as Reames’s patient.
(A.R. 362).
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On November 2, 2006, Justin Northeim, D.O., examined plaintiff. (A.R. 372-76).
Plaintiff was not in any acute distress. He had a full range of motion in all extremities. (A.R. 374).
His motor strength was 5/5. (A.R. 376).
On November 6, 2006, plaintiff appeared at the Montcalm Center for Behavioral
Health seeking outpatient services to help him deal with anxiety and depression. He was living with
his girlfriend. He reported that he had a good relationship with his ex-wife, and that they had joint
custody of their 14-year-old daughter. Plaintiff related that he had been working in Mecosta County
until March 1, 2006. He stated that he stopped working after rupturing a disc while on the job.
When asked about his history of legal involvement, plaintiff reported that he “had three convictions
of DUI’s” which “did result in some jail time.” He reported that he had two domestic violence
charges brought against him, but declined to provide further information.8 (A.R. 389; see A.R. 53334). Plaintiff gave a history of extensive abuse of alcohol, cocaine, heroin, acid, methamphetamine,
and other substances:
Jeff reports that he first used alcohol at the age of 10. Reports the date last used was six
months ago which was the last time he entered rehab. Also reports that he smoked marijuana
starting at the age of 15. Again, his last use was approximately six months ago. Also reports
a history of using heroin, morphine, Dilantin, Vicodin. Reports that first stage of use was
25. Reports that the date last used was approximately three weeks ago when he was in
Carson City. Also reports a history of using acid. Reports that this was at age 17 and that
he only engaged in this “a couple of times.” Also reports that he engaged in the use of crystal
meth, cocaine, coke and crack at age 21. Reports that the last date he used was five to six
months ago. Reports that he used to use a[n] eight ball every day. Denies any use at this
time. Also reports a history of using Xanax, Klonopin, Ativan, and Valium. Reports that
he first began using these at the age of 25. Reports that his [last] use was three months ago.
Reports that he was using every day. Reports that the first time he began smoking cigarettes
8
Plaintiff is generally not eligible to receive social security benefits for any months he was
confined in a jail or prison. See 42 U.S.C. §§ 402(x)(1)(A), 1382(e)(1)(A); 20 C.F.R. §§ 404.468,
416.1325.
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was at the age of 10. Reports he drinks a couple of cups of coffee and a couple of pops a
day. [It w]as discussed with Jeff how this could be impacting his anxiety.
(A.R. 390).
On November 22, 2006, plaintiff’s nerve conduction study returned normal results.
There was no evidence of significant peripheral neuropathy or myopathy. There was evidence of
“mild” L5 radiculopathy on the left side. (A.R. 434). On January 4, 2007, a CT scan of the lumbar
spine yielded no evidence of focal disc extrusion. (A.R. 423-24). Plaintiff’s lumbar myelogram
revealed the postoperative changes of the L5-S1 fusion with satisfactory alignment. A “very
minimal ventral defect” at the L4-L5 level appeared to be causing “mild” narrowing of the thecal sac.
(A.R. 425).
On June 18, 2007, Gerald Schell, M.D., performed a decompressive lumbar
laminectomy at L4-5 and L4, L5, S1 fusion with removal of the L5-S1 disc. (A.R. 445-46). There
were no post-operative complications. (A.R. 413, 442-43).
On October 31, 2007, plaintiff received a psychiatric evaluation by David Lyon, D.O.,
a board certified psychiatrist at the Montcalm Center for Behavioral Health. (A.R. 541-43). Plaintiff
reported that he was living with his long-term girlfriend and that she was providing his financial
support. He stated that he began using marijuana at age 12 and cocaine at age 16. He stated that he
used marijuana on an almost-daily basis. He stated that he was an alcoholic and drank heavily in the
past. He reported that legal complications from his drinking “included three DUIs as well as being
arrested for driving on a suspended license five times as well as two domestic assaults.” (A.R. 541).
He conceded that he was “addicted to cocaine in the past as well.” (A.R. 541). His cocaine abuse
reached “up to an eight ball a day.” (A.R. 542). “He’s tried heroin, methamphetamine, LSD, acid
and other illicit substances. He admits that he was addicted to Norco which was being prescribed
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for him. He was also buying some on the street. He also admits at one point he was addicted to
benzodiazepines where he would use Xanax excessively. He admitted to me one time he took over
90 Xanax over a weekend,” combined with alcohol consumption. (A.R. 542). Dr. Lyon noted: “In
all he’s had three detoxes as well as three addiction residential treatments. His last detox was 2
weeks ago.” (A.R. 541). Plaintiff stated that a typical day involved watching television, playing
Xbox games, and helping out around the house. (A.R. 541). Dr. Lyon offered the following
diagnosis:
Axis I:
Axis II:
296.32 Major Depressive Disorder, moderate, recurrent, in partial remission
(one would have to R/O PTSD depression secondary to substance
abuse)
300.02 Generalized Anxiety Disorder
305.1 Nicotine Dependence
303.90 Alcohol Dependence in early remission
304.00 Opioid Dependence in early remission
304.20 Cocaine Dependence, in reported sustained remission
R/O Benzodiazepine Dependence
R/O Personality Disorder
Axis III:
The patient has diabetes mellitus as well as degenerative disc disease with
chronic back pain. He’s had two surgeries on his back. He’s had an
appendectomy. He had surgery on his left hand because of a trigger finger.
Current review of symptoms includes back pain, currently mild.
Axis IV:
Moderate stressors include legal difficulties, unemployed with limited
finances, substance abuse history with limited family support although he
does feel his girlfriend is supportive.
Axis V:
GAF: 60 to 65.
(A.R. 543).
On November 27, 2007, plaintiff returned to Psychiatrist Lyon and admitted that he
had obtained Valium from his primary care physician. He stated that he “took a couple.” When Dr.
Lyon contacted the pharmacy, the pharmacist “reported on 11/9 he got 60 Vicodin and then he had
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that filled again yesterday for another 60. He also had Tramadol on 11/17 number 120.” (A.R. 482).
Plaintiff reported that he was doing well and denied any suicidal ideation. He admitted that he
continued to smoke marijuana and drink alcohol. Dr. Lyon expressed skepticism regarding the truth
of plaintiff’s story about how he had obtained the marijuana. (A.R. 482). Dr. Lyon summarized the
results of the mental status examination as follows:
The patient is a 34 year old white male who is casually dressed with a blue hat with M block
on it, yellow sweatshirt and jeans. He’s chewing tobacco. He makes good eye contact. Was
pleasant and cooperative. His speech was clear and coherent without any evidence of
pressure. His mood is reported to be “good.” His affect was broad and appropriate.
Thoughts were clear and organized [and] goal directed. No suicidal or homicidal ideation,
no psychotic or manic symptoms. He seems to have adequate insight and judgment except
with regards to his drug addiction. His attention and memory are grossly intact and he was
alert and oriented times three out of three.
(A.R. 482). Dr. Lyon recommended that plaintiff abstain from drugs and alcohol. He strongly
encouraged “AA or some type of inpatient addiction treatment.” (A.R. 483). Plaintiff’s response
was that he “d[id] not want to do these at this time.” (A.R. 483).
On January 8, 2008, plaintiff told Dr. Lyon that he did get drunk on Christmas Eve.
He reported frustration stemming from his ex-wife’s refusal to let him see their daughter because his
substance use made him too irrational. Plaintiff reported that he “didn’t use” when his daughter was
around. (A.R. 479). Dr. Lyon recommended that plaintiff get professional help in “coming off
Valium and the opiates.” Plaintiff stated that he would try to do it on his own. (A.R. 480).
On March 4, 2008, Dr. Lyon noted that plaintiff’s grooming and hygiene were good.
He walked without difficulty and did not appear to be in any pain. His affect was appropriate. His
thoughts were clear and organized. His attention and memory were grossly intact and he was
oriented in all three spheres. Plaintiff seemed “to have adequate insight and judgment except with
regards to his drug addiction. He admitted . . . that he did drink alcohol on a couple of occasions and
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did rationalize this.” (A.R. 486). Plaintiff continued to use Vicodin and Valium. This concerned
Dr. Lyon, and when it was suggested that plaintiff get off the Valium and opiates, plaintiff’s response
was that he still needed them and did not want to get off them. (A.R. 486-87). A month later,
plaintiff reported that he had stopped taking Valium and Vicodin and felt better. He continued to
drink alcohol. (A.R. 484-85).
On June 26, 2008, plaintiff reported to Dr. Lyon that he “just got out of detox.” (A.R.
549). Plaintiff was taking up to 20 Vicodin a day. When he ran out of the prescribed Vicodin, he
would buy more on the street. He was also using up his Valium. He would get “60 a month and use
those up in 3-4 days,” then buy more from illicit sources. (A.R. 549). Dr. Lyon strongly
recommended that plaintiff get into some type of residential treatment facility. Plaintiff seemed to
have a negative attitude and struggled with bitterness and anger, which Dr. Lyon identified as a
trigger for relapse. Dr. Lyon made a phone call to Physician’s Assistant Reames and explained to
him that plaintiff just got out of detox, and he was concerned that Mr. Reames might prescribe
opiates and benzodiazepines. (A.R. 550, 553). When Dr. Lyon asked plaintiff for a release to talk
to his pain specialist, plaintiff’s response was that he did not know the name of his physician. Dr.
Lyon suspected that plaintiff “may try to get pain medications out of him.” (A.R. 550).
On October 8, 2008, plaintiff was a “no show” for his appointment with Dr. Lyon.
Lyon was concerned that plaintiff was “possibly using prescription drugs again.” (A.R. 544). On
October 8, 2008, plaintiff called on the telephone and revoked all of his consents allowing Dr. Lyon
to talk to his family physician. Psychiatrist Lyon stated: “This will not be acceptable for me to be
able to treat him without being able to talk with his other prescribing physicians.” (A.R. 545).
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On November 3, 2008, plaintiff was discharged as a patient of the Montcalm Center
for Behavioral Health. The discharge summary provided an overview of the care plaintiff had
received during his two years as a patient. Plaintiff made significant progress in the anxiety and
depression symptoms he reported. He had been “in detox twice for his drug use during this time and
ha[d] significantly reduced his usage of these medications.” (A.R. 488). Plaintiff’s diagnosis at the
time of discharge was as follows:
Axis I:
296.32 Major Depressive Disorder, moderate, recurrent, stable R/O
depression secondary to substance abuse, R/O PTSD
300.02 Generalized Anxiety Disorder
305.1 Nicotine Dependence
303.90 Alcohol Dependence, in early partial remission
304.00 Opioid Dependence
304.20 Cocaine Dependence, in reported sustained remission, R/O
Benzodiazepine Dependence
Axis II:
301.83 Borderline Personality Disorder.
(A.R. 488). Plaintiff was advised to follow-up with North Kent Guidance for further substance
abuse counseling. (A.R. 489).
On November 7, 2008, Janmeet Sahota, M.D., examined plaintiff. (A.R. 467-68).
Plaintiff had no AC joint tenderness. “His strength appeared to be equal bilaterally and was 5/5 with
elevation in the scapular plane.” (A.R. 467). Dr. Sahota administered an injection in plaintiff’s left
shoulder which “almost completely resolved” plaintiff’s complaints of left shoulder pain. (A.R.
467). Dr. Sahota recommended an arthrogram on plaintiff’s right shoulder to rule out a rotator cuff
tear. (A.R. 468). Plaintiff’s arthrogram returned normal results. (A.R. 470-71).
Plaintiff performed construction work for a remodeling company from October 1,
2008, through January 2009. (A.R. 332-33). On November 11, 2008, Mr. Reames gave a statement
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to plaintiff’s attorney. (A.R. 451-63). Among other things, Mr. Reames offered his opinion that
plaintiff was not capable of performing sedentary work. (A.R. 461-62).
On December 1, 2008, plaintiff reported to Dr. Sahota that his left shoulder felt
“much, much better” after the injection. (A.R. 465). Plaintiff requested and received an injection
in his right shoulder. Afterwards, he reported that “his shoulder pain was essentially completely
resolved.” (A.R. 465).
On April 16, 2009, Dr. Schell noted that plaintiff was a 35-year-old male who has had
previous laminectomy and lateral fusion done almost two years earlier. Postoperative imaging
studies demonstrated “a pretty good fusion.” Dr. Schell observed significant disc space collapse and
associated anterior foraminal stenosis, and he felt that plaintiff would benefit from anterior interbody
fixation. (A.R. 612). On April 16, 2009, Dr. Schell performed a “360 lumbar fusion with anterior
interbody fusion and diskectomy at L3-L4 and posterior facet instrument fusion at L3-L4.” (A.R.
609). On May 18, 2009, plaintiff was “healing quite nicely. He ha[d] good strength.” (A.R. 601).
On August 21, 2009, Dr. Schell noted that plaintiff had recently admitted himself to the hospital for
detox based on overdose of narcotics. Dr. Schell found that plaintiff was showing signs of
neurologic improvement and could continue with conservative treatment. (A.R. 600). Plaintiff’s
disability insured status expired on June 30, 2009.
On December 7, 2009, plaintiff appeared at St. Mary’s Health Care stating that he was
experiencing suicidal thoughts after ending his relationship with his girlfriend of six years. Plaintiff
“denied going through withdrawal, although he ha[d] been abusing Suboxone with [] Valium.”
(A.R. 595). Plaintiff reported that he “d[id] not like the Valium.” (A.R. 595). Hyder H. Makki,
D.O., noted plaintiff’s history of Vicodin, Suboxone, and Valium abuse. (A.R. 595). Plaintiff
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related that he had been working with Psychiatrist Lyon, but “did not like him so he quit.” (A.R.
596). Plaintiff had a “12th grade regular education” and average intelligence. (A.R. 596). He did
not experience hallucinations and was not paranoid. (A.R. 598). Plaintiff received Seroquel, Ativan,
and Neurontin prescriptions. The discharge plan was to have plaintiff follow-up with his psychiatrist
and therapist. (A.R. 599).
The record summarized above provides more than substantial evidence supporting
the ALJ’s factual finding that plaintiff retained the RFC for a limited range of sedentary work. It is
noteworthy that plaintiff’s treating surgeon, Dr. Schell, and his treating psychiatrist, Dr. Lyon, never
expressed opinions that plaintiff was disabled or otherwise incapable of performing a limited range
of sedentary work. The court finds no basis for disturbing the Commissioner’s decision.
2.
Plaintiff argues that the ALJ failed to give sufficient weight to the statements Dr.
Lewis and Mr. Reames gave to his attorney. The issue of whether the claimant is disabled within
the meaning of the Social Security Act is reserved to the Commissioner.
20 C.F.R. §§
404.1527(d)(1), 416.927(d)(1); see Warner v. Commissioner, 375 F.3d 387, 390 (6th Cir. 2004). A
treating physician’s opinion that a patient is disabled is not entitled to any special significance. See
20 C.F.R. §§ 404.1527(d)(1), (3), 416.927(d)(1), (3); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir.
2007); Sims v. Commissioner, 406 F. App’x 977, 980 n.1 (6th Cir. 2011) (“[T]he determination of
disability [is] the prerogative of the Commissioner, not the treating physician.”). Likewise, “no
special significance” is attached to treating physician opinions regarding the credibility of the
plaintiff’s subjective complaints, RFC, or whether the plaintiff’s impairments meet or equal the
requirements of a listed impairment because they are administrative issues reserved to the
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Commissioner. 20 C.F.R. §§ 404.1527(d)(2), (3), 416.927(d)(2), (3); see Allen v. Commissioner,
561 F.3d 646, 652 (6th Cir. 2009).
Generally, the medical opinions of treating physicians are given substantial, if not
controlling deference. See Johnson v. Commissioner, 652 F.3d 646, 651 (6th Cir. 2011). “[T]he
opinion of a treating physician does not receive controlling weight merely by virtue of the fact that
it is from a treating physician. Rather, it is accorded controlling weight where it is ‘well supported
by medically acceptable clinical and laboratory diagnostic techniques’ and is not ‘inconsistent . . .
with the other substantial evidence in the case record.’” Massey v. Commissioner, 409 F. App’x 917,
921 (6th Cir. 2011) (quoting Blakley v. Commissioner, 581 F.3d 399, 406 (6th Cir. 2009)). A
treating physician’s opinion is not entitled to controlling weight where it is not “well-supported by
medically acceptable clinical and laboratory diagnostic techniques” and is “inconsistent with the
other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The
ALJ “is not bound by conclusory statements of doctors, particularly where they are unsupported by
detailed objective criteria and documentation.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001).
An opinion that is based on the claimant’s reporting of his symptoms is not entitled to controlling
weight. See Young v. Secretary of Health & Human Servs., 925 F.2d 146, 151 (6th Cir. 1990); see
also Francis v. Commissioner, 414 F. App’x 802, 804 (6th Cir. 2011) (A physician’s statement that
merely regurgitates a claimant’s self-described symptoms “is not a medical opinion at all.”).
Even when a treating source’s medical opinion is not given controlling weight
because it is not well-supported by medically acceptable clinical and laboratory diagnostic
techniques or is inconsistent with other substantial evidence in the record, the opinion should not
necessarily be completely rejected; the weight to be given to the opinion is determined by a set of
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factors, including treatment relationship, supportability, consistency, specialization, and other
factors. See Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions,
SSR 96-2p (reprinted at 1996 WL 374188 (SSA July 2, 1996)); 20 C.F.R. §§ 404.1527(c),
416.927(c); Martin v. Commissioner, 170 F. App’x 369, 372 (6th Cir. 2006).
The Sixth Circuit has held that claimants are “entitled to receive good reasons for the
weight accorded their treating sources independent of their substantive right to receive disability
benefits.” Smith v. Commissioner, 482 F.3d 873, 875-76 (6th Cir. 2007); see Cole v. Astrue, 652
F.3d 653, 659-61 (6th Cir. 2011); Wilson v. Commissioner, 378 F.3d 541, 544 (6th Cir. 2004).
“[T]he procedural requirement exists, in part, for claimants to understand why the administrative
bureaucracy deems them not disabled when physicians are telling them that they are.” Smith, 482
F.3d at 876; see Rabbers v. Commissioner, 582 F.3d 647, 657 (6th Cir. 2009).
A.
Dr. Lewis
Plaintiff argues that Dr. Lewis was a treating physician and that the ALJ should have
given controlling weight to his “Medical Provider’s Assessment of Patient’s Ability to do WorkRelated Activities.” (Plf. Brief at 6-9; Reply Brief at 1-4). Social security regulations define a
“treating source” as a physician or other acceptable medical source who has had an “ongoing
treatment relationship” with the claimant:
Treating source means your own physician, psychologist, or other acceptable medical source
who provides you, or has provided you, with medical treatment or evaluation and who has,
or has had, an ongoing treatment relationship with you. Generally, we will consider that you
have an ongoing treatment relationship with an acceptable medical source when the medical
evidence establishes that you see, or have seen, the source with a frequency consistent with
accepted medical practice for the type of treatment and/or evaluation required for your
medical condition(s). . . . We will not consider an acceptable medical source to be your
treating source if your relationship with the source is not based on your medical need for
treatment or evaluation, but solely on your need to obtain a report in support of your claim
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for disability. In such a case, we will consider the acceptable medical source to be a
nontreating source.
20 C.F.R. §§ 404.1502, 416.902; see Coldiron v. Commissioner, 391 F. App’x 435, 442 (6th Cir.
2010).
Plaintiff provided five pages of medical records from Dr. Lewis for the ten-year span
from his alleged onset of disability through the date of the ALJ’s decision. (A.R. 360-64). Further,
these few pages are limited to the two months immediately after plaintiff filed his applications for
DIB and SSI benefits. Dr Lewis is a general surgeon and a family friend. He did not perform any
surgical procedure on plaintiff during the period at issue, or remotely close to it. The ALJ’s finding
that Dr. Lewis was not a treating physician is supported by more than substantial evidence. See
Kornecky v. Commissioner, 167 F. App’x 496, 506-07 (6th Cir. 2006). Because Dr. Lewis was not
a treating physician, the ALJ was “not under any special obligation to defer to [his] opinion[s] or to
explain why he elected not to defer to [them].” Karger v. Commissioner, 414 F. App’x 739, 744 (6th
Cir. 2011).
On May 1, 2009, almost three years after plaintiff’s last visit, Dr. Lewis completed
a “Medical Provider’s Assessment of Patient’s Ability to do Work-Related Activities.” (A.R. 58891). The ALJ carefully considered this statement and provided a detailed explanation why he found
that the extreme restrictions proffered by Dr. Lewis were not persuasive:
Dr. Edward Lewis (the family friend) completed a medical assessment on May 1, 2009, in
which he limited the claimant to lifting no more than 5 pounds occasionally and indicated
he could sit for a total of 15 minutes, stand for a total of 30 minutes, and walk for a total of
10 minutes in an 8-hour workday with normal breaks. He indicated that the claimant needed
a back brace to ambulate and was first limited in 1996. He also indicated that the claimant
could occasionally reach above shoulder level, push and pull, crawl; would be totally
restricted from stooping, squatting, kneeling, climbing and crouching; could not operate foot
controls; and should avoid all heights, dangerous moving machinery, and vibration; should
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avoid concentrated exposure to temperature extremes, humidity, pulmonary irritants, noise,
and motor vehicle use (Exhibit 22F)[A.R. 588-91].
***
I give little weight to the assessment of Dr. Lewis, who is a family friend and who the
claimant stated he had seen in May 2006. His assessment in Exhibit 22F is inconsistent with
the physical examination performed [i]n June 2008 (Exhibit 19F)[A.R. 575-76]. The
extreme limitations on standing and walking noted by Dr. Lewis would preclude the
activities of daily living performed by the claimant such as doing his own laundry, shopping
for groceries, and surfing the Internet.
(A.R. 27-28). Even assuming that plaintiff had presented evidence sufficient to establish an ongoing
treatment relationship with Dr. Lewis, the above-quoted paragraphs satisfy the requirements of the
treating physician rule. See Cole v. Astrue, 652 F.3d at 659-61; Smith v. Commissioner, 482 F.3d
at 875-76.
B.
Physician’s Assistant Reames
Plaintiff argues that the ALJ should have given more weight to the statement
Physician’s Assistant Reames gave to his attorney. (Plf. Brief at 9-13; Reply Brief at 1-4). A
physician’s assistant is not an “acceptable medical source.” See 20 C.F.R. §§ 404.1513(a), (d),
416.913(a), (d). There is no treating physician’s assistant rule, and the opinion of a physician’s
assistant is not entitled to any particular weight. See Geiner v. Astrue, 298 F. App’x 105, 108 (2d
Cir. 2008). Only “acceptable medical sources” can: (1) provide evidence establishing the existence
of a medically determinable impairment; (2) provide a medical opinion; and (3) be considered a
treating source whose medical opinion could be entitled to controlling weight under the treating
physician rule. See Titles II and XVI: Considering Opinions and Other Evidence from Sources Who
are not ‘Acceptable Medical Sources’ in Disability Claims; Considering Decisions on Disability by
Other Governmental and Nongovernmental Agencies, SSR 06-3p (reprinted at 2006 WL 2329939,
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at * 2 (SSA Aug. 9, 2006)). The opinions of a physician’s assistant fall within the category of
information provided by “other sources.” Id. at * 2; see 20 C.F.R. §§ 404.1513(d), 416.913(d). The
social security regulations require that information from other sources be “considered.” 2006 WL
2329939, at * 1, 4 (citing 20 C.F.R. §§ 404.1512, 416.912). This is not a demanding standard. It
was easily met here.
The ALJ considered all Mr. Reams’s opinions. He found that some were persuasive,
and that others were unduly restrictive:
Mr. Ream[e]s, a physician’s assistant, stated in a deposition taken on November 17, 2008
that he had treated the claimant since May 2006 for insulin-dependent diabetes mellitus and
diabetic neuropathy for which he was being treated with Insulin, severe chronic back pain
for which he was being prescribed Lortab, and major depressive disorder for which he was
being prescribed Seroquel and Cymbalta. He opined that the claimant was unable to lift
more than a gallon of milk in each hand occasionally, to stand all day, and to do prolonged
sitting; would need to change positions or move around; and could do no squatting, climbing
or twisting. He stated that, if the claimant could not change positions frequently, he would
need to lie down in a recliner to relieve the pressure off his spine during the day. He did not
think the claimant could perform sedentary work on a sustained basis due to his back pain,
need for frequent resting, and checking his blood sugar levels (Exhibit 13F)[A.R. 451-64].
***
The finding of disability for the purposes of the Social Security Administration is left to the
Commissioner. While the opinions from treating sources are given greater weight, Mr.
Ream[e]s is not a physician, but a physician’s assistant; therefore, the weight of his opinion
is that of a[n] other source and not a treating physician. I give some weight to the weight
restrictions and the need to have a sit/stand option; however, the other limitations are
inconsistent with the specialists’ reports and examination, particularly the June 2008 normal
physical examination.
(A.R. 27-28). The ALJ is responsible for weighing medical opinions, not the court. See Buxton, 246
F.3d at 772-75; see also Price v. Commissioner, 342 F. App’x 172, 177-78 (6th Cir. 2009).
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Conclusion
The court finds no error in the record requiring reversal. Plaintiff’s medical history
did not support the extreme restrictions that he was claiming, and the ALJ had more than sufficient
grounds to question the credibility of both plaintiff and Physician’s Assistant Reames. The ALJ gave
the medical evidence and opinions the weight that they deserved. For the reasons set forth herein,
the Commissioner’s decision will be affirmed.
Dated: October 17, 2012
/s/ Joseph G. Scoville
United States Magistrate Judge
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