Harden v. Astrue
MEMORANDUM OPINION re: 16 SOCIAL SECURITY BRIEF filed by Plaintiff Michael Harden, 21 SOCIAL SECURITY CROSS BRIEF re 16 SOCIAL SECURITY BRIEF filed by Defendant Michael J. Astrue. For the reasons set forth above, the decision of the Commissioner of Social Security is affirmed under Sentence 4 of 42 U.S.C. § 405(g). An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 1/8/13. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MICHAEL D. HARDEN
MICHAEL J. ASTRUE,
Commissioner of Social Security,
No. 1:12 CV 24 DDN
This action is before the court for judicial review of the final decision of the defendant
Commissioner of Social Security denying the application of plaintiff Michael D. Harden for
disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and
for supplemental security income under Title XVI of that Act, 42 U.S.C. § 1381, et seq. The
parties have consented to the exercise of plenary authority by the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 9.) For the reasons set forth below, the
decision of the Administrative Law Judge is affirmed.
Plaintiff Michael D. Harden, who was born on August 8, 1974, filed applications for Title
II and Title XVI benefits on June 2, 2009.1 (Tr. 113-17.) He alleged an onset date of disability of
May 28, 2009, due to depression, bipolar disorder, and back pain.
applications were initially denied on August 10, 2009, and he requested a hearing before an ALJ.
(Tr. 51-57, 105.)
On January 21, 2011, following a hearing, the ALJ found plaintiff was not disabled. (Tr.
10-16.) On December 9, 2011, the Appeals Council denied plaintiff’s request for review. (Tr. 13.) Thus, the decision of the ALJ stands as the final decision of the Commissioner.
As discussed below, plaintiff filed prior applications for disability benefits under the Social
Security Act. (Tr. 11.)
II. MEDICAL HISTORY
On May 5, 2007, plaintiff underwent a consultative psychological examination conducted
by John Keough, M.A., a licensed psychologist. During this interview, plaintiff stated he was
disabled because, “I’m bipolar, I got depression, back problems, and I don’t know.” He was
depressed at a level of 9 or 10, on a scale of 1 to 10, and he was sometimes suicidal. He believed
everyone was against him, and reported suffering from depression since childhood. He reported
having severe authority figure problems with police. Plaintiff reported first having mental health
treatment at age thirteen, and he received counseling bi-weekly. He reported being mentally and
physically abused by his stepfather, and he had not seen his biological father since age two. He
was kicked out of school in the eighth grade because he always fought and got into trouble, and
he did not get his GED. He was first employed at age thirteen, and the last year he worked was
2006. His employment history was varied, mostly hard labor, with the longest time on any one
job being about three or four months. He has been married twice to the same woman. The first
marriage produced two children, both of whom were adopted out, and no children came of the
second marriage. He had no social life or hobbies, and had been drinking since age fourteen. At
age fifteen, he started using street drugs including: marijuana, crack, crank, meth, ice, and
cocaine. He stated he had been clean for three years, and had never been involved in drug or
alcohol treatment. (Tr. 193.)
Plaintiff stated he first started smoking at the age of twelve, and he smoked about two
packs a day. He had spent sixty hours in the county jail because at age thirteen he was an
accessory to a theft. Regarding his physical well-being, plaintiff stated, “my back is killing me,
my blood pressure stays high and my sugar is high.” (Tr. 194.)
Mr. Keough noted plaintiff failed to take responsibility for his actions. Further, Mr.
Keough observed that during the interview plaintiff malingered at times.
Plaintiff had no
difficulty following the context of the interview, though at times he acted like he could not.
Plaintiff had no difficulty understanding and following simple instructions.
He denied any
hearing impairments, but halfway through the interview he stated he could not hear, and asked
Mr. Keough to look at him directly so he could read lips. At times, Mr. Keough lowered his head
to speak and plaintiff could hear him. Mr. Keough noted plaintiff obviously tried to portray an
image other than his own, and interacted in a superficial manner. (Tr. 194.) Plaintiff’s affective
responses were highly inconsistent with the manner in which he stated he felt, in that he did not
present himself as one experiencing severe depression or anxiety. Mr. Keough stated plaintiff did
not appear to be experiencing severe depression or anxiety. Plaintiff portrayed a moderate level
of impairment with regard to his ability to sustain concentration, to be persistent at tasks, and
maintain an adequate pace in productive activity. Similarly, plaintiff’s ability to understand and
remember simple instructions on a sustained basis was unimpaired with regard to psychological
issues, as long as he refrained from using alcohol or other street drugs. (Tr. 194-95.)
Mr. Keough further noted plaintiff’s ability to adapt to the environment of others, adjust to
changes in routine, and interact appropriately in social situations. He appeared to be moderately
limited by personality deficits and a long history of substance abuse. At the end of his report, Mr.
Keough noted plaintiff suffered from a history of polysubstance dependence, which, according to
plaintiff, was in remission for three years; Mr. Keough found that statement questionable.
Further, plaintiff had a learning disorder NOS, and a personality disorder NOS, with emphasis on
borderline and avoidant features. (Id.)
Plaintiff routinely saw Nikolay Horozov, M.D., a physician at the Family Counseling
Center, starting on August 29, 2007. On September 18, 2007, plaintiff submitted to a psychiatric
evaluation conducted by Dr. Horozov. During the evaluation, plaintiff stated he suffered from a
long history of depressed mood, during which he loses interest in daily activities and has low
energy, which alternates to periods of high energy where he occasionally goes five or six days
without sleep. Under past psychiatric history, Dr. Horozov noted plaintiff had been hospitalized
twice for psychiatric reasons, once at eighteen, and again at twenty-eight, following suicidal
ideations after an argument with his ex-wife. Under past medical history, Dr. Horozov listed
obesity, hypertension, chronic back pain, and hypercholesterolemia.2 Plaintiff stated he lived
with his girlfriend until she kicked him out because, “I didn’t want to get a cell phone.” Plaintiff
reported extensive past history of recreational substance use. He had been smoking marijuana
between the ages of fourteen and thirty. He also reported a three-year history of daily crystal
methamphetamine use between the ages of nineteen and twenty-two. He also started using
The presence of an abnormally large amount of cholesterol in the blood. Stedman’s Medical
Dictionary, 918 (28th ed. 2006).
cocaine at the age of seventeen, and occasionally consumed alcohol. Dr. Horozov noted plaintiff
had attentive facial expressions and easily engaged in the interview. Plaintiff’s speech was of
normal rate and volume without articulation deficits. His affect was full range and appropriate to
place and situation, and congruent to the conversation topics. Plaintiff’s thought process was
linear, to the point, and lacked evidence of psychotic distortions. His insight and judgment were
fair. Dr. Horozov prescribed Lamictal3 to replace Depakote,4 because significant weight gain is
caused by Depakote. (Tr. 237-38, 240.)
On October 18, 2007, plaintiff weighed 312 pounds, and complained of intermittent
depressed mood. He complained about his medication, and had attempted to lose weight without
success. Dr. Horozov continued plaintiff on Abilify5 and increased his Lamictal dosage. On
November 7, 2007, plaintiff reported improved mood, good sleep and appetite; he weighed 318
pounds. Dr. Horozov continued plaintiff on Abilify and further increased his Lamictal dosage.
On March 25, 2008, plaintiff weighed 325 pounds, and he stated he felt more depressed lately.
He admitted he had not been taking his medication daily. Dr. Horozov continued plaintiff’s
Abilify, and prescribed Cymbalta6.
On May 7, 2008, plaintiff arrived on time for his
appointment, stating his mood had greatly improved with the addition of Cymbalta. He denied
any side effects from the medication. On July 28, 2008, plaintiff weighed 316 pounds, arrived
late for his appointment, and reported that despite his arguments with his girlfriend and the fact
they had separated, his mood was relatively stable. Dr. Horozov determined plaintiff should
continue taking Abilify and Cymbalta. (Tr. 232-36.)
Plaintiff returned to Dr. Horozov on October 14, 2008. He arrived on time for his
appointment, and stated he had separated from his girlfriend and lived with his mother and
younger brother, both of whom were on disability for mental illness. He further stated he had
applied for social security for mental illness, and he could not find a physician to refer him to a
Lactimal is used to prevent and control seizures or prevent the extreme mood swings of bipolar
disorder. WebMD, http://www.webmd.com/drugs (last visited on November 14, 2012).
Depakote is used to treat seizure disorders and certain psychiatric conditions and to prevent
migraine headaches. WebMD, http://www.webmd.com/drugs (last visited on November 14,
Abilify is used to treat certain mental or mood disorders and depression. WebMD,
http://www.webmd.com/drugs (last visited on November 14, 2012).
Cymbalta is used to treat depression and anxiety. WebMD, http://www.webmd.com/drugs (last
visited on November 14, 2012).
neurosurgeon due to his obesity. Dr. Horozov maintained the Abilify dosage, but increased the
Cymbalta dosage. Plaintiff again returned to Dr. Horozov on December 2, 2008. He weighed
319 pounds, and reported a relatively stable mood. Dr. Horozov noted plaintiff had no complaints
of clinical significance, and denied any side effects from the medication. Plaintiff’s medication
regimen remained unchanged. (Tr. 230-31.)
On February 12, 2009, plaintiff had another appointment with Dr. Horozov. Plaintiff
weighed 322 pounds, reported a relatively stable mood, and had no complaints of clinical
significance. Plaintiff continued to deny any side effects from the medication, and Dr. Horozov
encouraged him to start a healthier lifestyle to lose weight.
Plaintiff’s medication regimen
remained unchanged. On May 14, 2009, plaintiff met with Dr. Horozov. Plaintiff weighed 315
pounds, reported relatively stable mood, and had no complaints of clinical significance, though he
worried about the results from his disability hearing. Plaintiff denied any side effects from the
medication, or any self-mutilation behaviors.
Plaintiff’s medication regimen remained
unchanged. On July 27, 2009, plaintiff stated he felt depressed and his disability claim had been
denied. He denied side effects from medication, but complained of occasional unprovoked anger
outbursts. Dr. Horozov increased plaintiff’s Abilify medication and continued Cymbalta. (Tr.
On August 7, 2009, James Morgan, Ph.D., filled out a Psychiatric Review Technique
form. On this form, Dr. Morgan determined plaintiff’s impairments were not severe. This
determination was based on affective disorders and mental retardation. Dr. Morgan further listed
plaintiff as having bipolar disorder, which was in remission, and a learning disorder NOS. Dr.
Morgan also stated plaintiff’s thought processes were goal directed, and the content was normal.
Additionally, plaintiff’s behavior, speech, and mood were normal. Dr. Morgan noted plaintiff’s
condition did not impose significant functional limitations, and found plaintiff’s impairments nonsevere. (Tr. 211, 214, 219, 221.)
On November 3, 2009, plaintiff again returned to Dr. Horozov. Plaintiff stated he
had been paranoid lately because he thought people talked behind his back about his
weight. He denied any recent episodes of self-mutilation, and requested a change in his
medication. Dr. Horozov changed Abilify to Perphenazine, decreased the Cymbalta dosage,
and added Wellbutrin SR. (Tr. 226.)
Testimony at the Hearing
A hearing was conducted before an ALJ on October 4, 2011. (Tr. 36-64.) Plaintiff
testified to the following. He finished eighth grade, and he believed he failed first, third, and sixth
grades. He did not take special education courses because his mother would not permit it. He
believes he can read a little and do simple math. He last worked at the Pallet Depot in Marshall,
Missouri. He does not remember how long he had that job or when he left, but he stated that he
left because of his back problems and his inability to concentrate on his work. He has difficulty
keeping a job, but he did not know what kept him from holding down a job aside from his
mindset. If he did not have mental issues or back pain he would be able to do physical work. The
primary things that keep him from working are his bipolar and his back conditions. (Tr. 23-24.)
Plaintiff no longer drives because his license was suspended in January for failure to pay
child support. When he drove prior to the suspension, he sometimes forgot where he was going
and always had to have someone in the car with him who knew where they were going. He could
not drive in the city because he could not concentrate on what he was doing, but he can drive in
the country or a small town. Plaintiff currently lives in Hannibal, Missouri, with his fiancé and
their son. They support themselves with his fiancé and son’s disability benefits. He is currently
on Medicaid, and he sees Dr. Arment (phonetic) once or twice a month for mental issues. His
therapy consists of just seeing his doctor. He currently takes Wellbutrin and another medication.
The medications have improved his mental condition a little, but he still cannot control himself, as
he will ‘go off’ and start punching something, or curse uncontrollably. (Tr. 25-27.)
He suffers from depression, which causes him to not want to get up or do anything. At
times he will just sit there and cry, and he does not want people to be around him. The last crying
spell was the day before the hearing, and he cannot identify the causes. The crying spells can last
hours or days. He suffers from this level of depression three times a week. He has had these
Perphenazine is used to treat certain mental or mood disorders.
http://www.webmd.com/drugs (last visited on November 14, 2012).
Wellbutrin is used to treat depression. WebMD, http://www.webmd.com/drugs (last visited on
November 14, 2012).
problems since he was seventeen. He took an IQ test two or three years ago. He thinks about
hurting himself all the time and he has cut himself and attempted to cut his heart out once. He last
tried to hurt himself about eight months ago, before he started taking Geodon. During the last
episode, he overdosed and cut his arms. (Tr. 27-29, 32.)
He cannot explain the problems he has with concentration and he cannot concentrate on
anything for long periods of time. His main problem with having a job is that he gets frustrated
when they try to teach him things because he cannot concentrate well enough to understand them,
which makes him angry. He has received x-rays on his back, and though his doctors cannot find
anything he has back pain all the time. He is 5 feet, 11 inches tall and weighs 300 pounds. To
alleviate his back pain he lays down every day for about four hours per day. Due to the napping,
he has trouble sleeping and must take sleeping medication. He has used illicit drugs in the past,
but not within the last five years. He smokes about a pack of cigarettes per day. He is trying to
cut back, but his nerves will not let him. (Tr. 29-31.)
He has had problems with the law, and he is about to go on probation due to missed child
support payments. He has no support system, because his mother is now blind and he has not
seen his father since he was two years old. His fiancé cooks and cleans the house. (Tr. 31-32.)
III. DECISION OF THE ALJ
On January 21, 2011, the ALJ issued a decision that plaintiff was not disabled. (Tr. 1016.) At Step One of the prescribed regulatory decision-making scheme, the ALJ determined
plaintiff had not engaged in substantial gainful activity (SGA) since May 28, 2009. At Step Two,
the ALJ determined plaintiff has the following impairments: obesity, a bipolar disorder controlled
by medication, and a remote history of polysubstance dependence, but determined these
impairments are not severe within the meaning of 20 C.F.R. §§ 404.1521 and 416.921. (Tr. 15.)
Because the ALJ determined plaintiff did not suffer from a severe impairment, he was not
disabled as defined by the Social Security Act at any time though September 30, 2009, or the date
of the decision, the determination ended at Step Two. Plaintiff does not suffer from a substance
use disorder that is uncontrollable or prevents the performance of substantial gainful activity. (Tr.
In the initial part of his opinion the ALJ stated that plaintiff had applied unsuccessfully for
disability benefits under the Social Security Act on four prior occasions. The ALJ described
specifically the most recent, which alleged a period of disability that began on March 15, 2006.
The initial decision denying benefits occurred on June 19, 2007. (Tr. 37.) The ALJ assigned to
that set of applications denied them on June 1, 2009, after a hearing. (Id.) The instant ALJ
described evidence that was presented to the earlier ALJ. The instant ALJ stated the following:
The undersigned finds no good cause to disturb the decision by Judge
O’Blennis [in the earlier case], which became final when the Appeals Council
denied [the] request for review on August 12, 2009. That decision is subject
to administrative res judicata. 20 CFR 404.957(c)(1) and 416.1457(c)(1). The
claimant has produced no new and material evidence or other good reason to
reopen the prior decision. Exhibit B1F in the current file, the report from Mr.
Keough, is a duplicate of Exhibit 6F, previously considered by Judge
O’Blennis. Exhibit B6F, pp. 10-28 and Exhibit B3F, p. 2 are duplicates of
material in Exhibit 13F, also considered by Judge O’Blennis.
IV. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d 935,
942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner’s conclusion.” Id. In
determining whether the evidence is substantial, the court considers evidence that both supports
and detracts from the Commissioner's decision. Id. As long as substantial evidence supports the
decision, the court may not reverse it merely because substantial evidence exists in the record that
would support a contrary outcome or because the court would have decided the case differently.
See Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove he is unable to perform any
substantial gainful activity due to a medically determinable physical or mental impairment that
would either result in death or which has lasted or could be expected to last for at least twelve
continuous months. 42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A), 1382c(a)(3)(A); Pate-Fires, 564 F.3d
at 942. A five-step regulatory framework is used to determine whether an individual is disabled.
20 C.F.R. § 404.1520(a)(4); see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing
the five-step process); Pate-Fires, 564 F.3d at 942 (same).
Steps One through Three require the claimant to prove (1) he is not currently engaged in
substantial gainful activity, (2) he suffers from a severe impairment, and (3) his impairment meets
or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If the claimant does not suffer
from a listed impairment or its equivalent, the Commissioner’s analysis proceeds to Steps Four
and Five. Step Four requires the Commissioner to consider whether the claimant retains the RFC
to perform his past relevant work (PRW). Id. § 404.1520(a)(4)(iv). The claimant bears the
burden of demonstrating he is no longer able to return to his PRW. Pate-Fires, 564 F.3d at 942.
If the Commissioner determines the claimant cannot return to his PRW, the burden shifts to the
Commissioner at Step Five to show the claimant retains the RFC to perform other work that exists
in significant numbers in the national economy.
Id.; 20 C.F.R. § 404.1520(a)(4)(v).
sequential analysis can be discontinued at Step Two “when an impairment or combination of
impairments would have no more than a minimal effect on the claimant's ability to work.” Dixon
v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003).
Plaintiff argues the ALJ erred (1) by incorrectly applying the law and social security
regulations when he found that good cause must be demonstrated, and new evidence presented, to
reopen plaintiff’s prior claim; and (2) by finding plaintiff did not suffer from a severe impairment
when that finding is not supported by substantial evidence.
A. Administrative Res Judicata
Plaintiff argues the ALJ misapplied the law and social security regulations when he found
good cause must be demonstrated, and new evidence presented, in order to reopen plaintiff’s prior
claim. The court disagrees.
“A determination, revised determination, decision, or reversed decision may be
reopened—(a) within 12 months of the date of the notice of the initial determination, for any
reason; [or] (b) within four years of the date of notice of the initial determination if we find good
cause, as defined by § 404.989, to reopen the case.” 20 C.F.R. § 404.988(a), (b).
indicates that the most recent of plaintiff’s prior applications was denied initially on June 19,
2007. The instant applications were filed on June 2, 2009, well outside the 12-month period for
reopening the earlier decision “for any reason.” However, plaintiff’s current applications were
filed within the 4-year period following the initial denial of the earlier applications. Therefore,
the earlier decision may be reopened for good cause.
Good cause for reopening a prior determination will be found if: “(1) [N]ew and material
evidence is furnished; (2) [A] clerical error in the computation or recomputation of benefits was
made; or (3) [T]he evidence that was considered in making the determination or decision clearly
shows on its face that an error was made.” 20 C.F.R. § 404.989(a). In the current case, the ALJ
carefully considered the decision made by another ALJ in the earlier case and concluded that the
earlier decision is subject to res judicata effect. Plaintiff does not meet any of these exceptions;
therefore the ALJ properly limited his review to whether or not plaintiff became disabled at any
time after May 27, 2009. Furthermore, the current ALJ considered evidence that was received on
the earlier applications and determined that plaintiff was not disabled.
B. Substantial Evidence
Plaintiff also argues the ALJ’s finding that plaintiff did not suffer from a severe
impairment is not supported by substantial evidence in the record. It is plaintiff’s burden to
establish that his impairments are severe. 20 C.F.R. § 404.1520(a)(4)(ii). Impairments are not
severe when they have no more than a minimal effect on an individual’s ability to work. 20
C.F.R. § 404.1521(a). If the impairment would have no more than a minimal effect on the
claimant's ability to work, it does not satisfy the requirement of Step Two. Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007). While severity is not an onerous requirement for plaintiff to
meet, see Hudson v. Bowen, 870 F.2d 1392, 1395 (8th Cir. 1989), it is also not a toothless
standard, and the Commissioner’s findings will be sustained upon a determination that the
claimant failed to make this showing. Page, 484 F.3d at 1043-44.
Here, there is substantial evidence in the record to support the ALJ’s finding that plaintiff
did not suffer from a severe impairment. Plaintiff was evaluated by Licensed Psychologist John
Keough on May 5, 2007. (Tr. 193-95.) In this meeting, Mr. Keough stated plaintiff’s IQ was 70,
but because he was not cooperative with the testing, plaintiff’s IQ was likely at least borderline
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intellectual functioning. (Tr. 195.) Further, Mr. Keough noted that plaintiff malingered. (Tr.
194.) Mr. Keough did not list plaintiff’s IQ as a diagnosis; instead he diagnosed personality
disorder, learning disorder, and an history of polysubstance dependence. (Tr. 195.) The ALJ
found no corroborating evidence of plaintiff’s alleged below normal intelligence, because there
was only plaintiff’s testimony to that effect. Plaintiff had been seeing Dr. Horozov from August
29, 2007, through July 28, 2008, about once every one or two months while taking Cymbalta and
Abilify for a diagnosed bipolar disorder. During these visits, plaintiff stated there were no side
effects from the medication, and he had no complaints of clinical significance. (Tr. 11-12.)
In addition, there has never been any medical evidence supporting plaintiff’s allegation of
back pain, and the ALJ found the allegation not credible. (Tr. 14.) The record indicates that if
plaintiff has hypertension, it is controlled by medication, and there is no evidence of any
secondary damage to the eyes, heart, brain or kidneys. (Id.) No doctor who has treated or
examined plaintiff has stated or implied he is physically disabled or totally or seriously
incapacitated, or that he has any significant long-term exertional or other physical limitations or
restrictions. Plaintiff testified he weighed 300 pounds at the hearing, and the record indicated his
weight fluctuated between 308-325 pounds, though it never met or exceeded the 328 pounds that
designates disability due to obesity for a man of his height. (Tr. 30, 226-36.) There was no
credible evidence presented to show that plaintiff’s obesity, aside from a minor reduction in
ordinary mobility and stamina, reduces his overall functional abilities.
Even with the
supplemental medical files for July 27, 2009, November 3, 2009 (noting also that plaintiff missed
his last scheduled appointment), and January 19, 2010, there is no evidence to show physical
impairment. Plaintiff reported being more depressed due to the denial of his disability claim, and
alleged some unprovoked anger outbursts, but denied any adverse side effects from the
medication. (Tr. 227.)
Additionally, there is no evidence of substance abuse in recent years.
depression and bipolar disorder have been well controlled with medication after plaintiff started
seeing Dr. Horozov. (Tr. 227-36.) Any problems have been minor and short in duration. (Id.)
During the hearing, the ALJ observed no obvious signs of depression, anxiety, memory loss, or
other mental disturbance, and therefore determined plaintiff has no credible, medically-
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established mental problem or mood disorder that would prevent him from doing any number of
ordinary jobs. (Tr. 14.)
The ALJ’s determination that plaintiff does not suffer from a severe impairment is
supported by substantial evidence in the record.
For the reasons set forth above, the decision of the Commissioner of Social Security is
affirmed under Sentence 4 of 42 U.S.C. § 405(g). An appropriate Judgment Order is issued
/S/ David D. Noce ______ _____
UNITED STATES MAGISTRATE JUDGE
Signed on January 8, 2013.
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