Fox v. Astrue

Filing 27

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and this case is DISMISSED. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on February 27, 2014. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
MICHAEL G. FOX,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case number 2:13cv0010 TCM

MEMORANDUM AND ORDER
This 42 U.S.C. § 405(g) action for judicial review of the final decision of Carolyn W.
Colvin, the Acting Commissioner of Social Security (Commissioner), denying the
applications of Michael Fox (Plaintiff) for disability insurance benefits ("DIB") under Title
II of the Social Security Act (the Act), 42 U.S.C. § 401-433, and for supplemental security
income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1381-1383b, is before the
undersigned United States Magistrate Judge by written consent of the parties. See 28 U.S.C.
§ 636(c). Plaintiff has filed a brief in support of his complaint; the Acting Commissioner has
filed a brief in support of her answer.
Procedural History
Plaintiff applied for DIB and SSI in November 2009, alleging he was disabled as of
November 1, 2008, because of bipolar affective disorder, depression, and anxiety. (R.1 at
138-44, 199.) His applications were denied initially and after a hearing held in August 2011
1

References to "R." are to the administrative record filed by the Acting Commissioner with
her answer.

before Administrative Law Judge (ALJ) Thomas G. Norman. (Id. at 7-22, 28-57, 59, 626753.) After considering additional evidence, the Appeals Council denied Plaintiff's request
for review, thereby effectively adopting the ALJ's decision as the final decision of the
Commissioner. (Id. at 1-5.)
Testimony Before the ALJ
Plaintiff, represented by counsel; Charles R. Poor, N.C.C. (National Certified
Counselor); and Ashok Khushalani, M.D., testified at the televised administrative hearing.
Plaintiff testified that he was then 27 years old, has completed the eleventh grade, and
has a General Equivalency Degree ("GED"). (Id. at 31.) He has on-the-job training as a
welder. (Id.)
His last job was as a welder. (Id. at 32.) He left that job because he was doing
"tedious stuff" and was unable to keep up with his normal job functions due to his anxiety
and stress. (Id.) He described his anxiety and depression as constantly thinking about what
he has gone through in life and as preventing him from concentrating. (Id. at 33.) He takes
mood stabilizing medications, including alprazolam four times a day and Klonopin three
times a day. (Id.) On a bad day, he is a recluse. (Id. at 34.) Anything can trigger a bad day.
(Id.) At least twice a day, he has a severe panic attack and has to hide somewhere. (Id.)
On a good day, he tries to do something, but he does not have the aptitude he once
had. (Id. at 35.) His memory is such that he sometimes cannot recall birth dates or his child's
middle name. (Id.) His memory used to be excellent. (Id.) His ability to concentrate is
"almost non-existent." (Id. at 36.)

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Also, he has vascular migraines that cause extreme pain that radiates from the back
of his neck to the top of his head. (Id.) His insurance only covers nine migraine pills a
month. (Id.) Sometimes, he has migraines every other day for all day. (Id. at 37.) The
medication helps take the edge off, and would help more if he could afford more pills. (Id.)
When he has a migraine, he cannot do anything and has to sit or lie down with a towel over
his eyes. (Id.) This happens at least three times a week. (Id.) He has pain in his back and
numbness and tingling in his hands, arms, and feet. (Id. at 39.)
Plaintiff testified he either sleeps a lot or not at all. (Id. at 38.)
Plaintiff is on at least seven medications. (Id. at 40.) He was having seizures, i.e.,
blackouts, tunnel vision, and memory loss, for which he was taking Depakote. (Id.) It made
the seizures worse. (Id.) He stopped taking it earlier that month, and has not had severe
seizures since. (Id. at 40, 43.)
Plaintiff has been treated for anxiety since he was thirteen years old. (Id. at 41.) For
awhile, he controlled his temper. (Id.) When a child of his was born prematurely, his wife
noticed something in him changed. (Id.)
Dr. Khushalani testified that he is a board-certified psychiatrist. (Id. at 42.) He
summarized Plaintiff's medical records as follows.
[Plaintiff] has a longstanding history initially of depression. He was being
treated by his family physician – through a medical clinic. [H]e was diagnosed
as having bipolar disorder and also panic disorder with a GAF [Global
Assessment of Functioning] of 502 and more recently psychiatric records . . .

2

"According to the Diagnostic and Statistical Manual of Mental Disorders 32 (4th Ed. Text
Revision 2000) [DSM-IV-TR], the [GAF] is used to report 'the clinician's judgment of the individual's
-3-

at Arthur Center, evidence having [sic] bipolar disorder and Attention Deficit
Hyperactivity Disorder [ADHD]. In between, as he said, he has been seen at
– those medical clinics by Dr. Kondro. The only psychiatric treatment record
. . . [is from] the Arthur Center. Now, he has this bipolar disorder and
Attention Deficit Disorder. At the Arthur Center he was being treated for
ADHD with Adderall. For his anxiety it was Xanax and Klonopin. And for
his bipolar disorder it was Depakote and Ability. . . . The records from the
Arthur Center indicate most of his GAF's are between 60 and 65,3 which would
indicate mild symptomatology; the only lower GAF was the consultative, it
was in 2010. But recent GAF's, according to the Arthur Center, have been
indicate of mild symptomatology. I reviewed Dr. Bhalla's medical assessment
of ability to do work-related activities, and most of the parameters she rated as
fair. [T]he daily activities are diminished but not precluded. So he does not
have any history of hospitalization. [H]e's not in counseling. So the lack of
intensity of treatment, lack of hospitalizations suggest that the symptomatology
is mild to moderate. . . . His activities of daily living are moderately affected
....
Maintain [sic] social functioning is moderately affected. Maintaining
concentration, persistence or pace is moderately affected. He has not had any
episodes of decompensation.
(Id. at 44-46.) (Footnotes added.)

overall level of functioning,'" Hudson v. Barnhart, 345 F.3d 661, 663 n.2 (8th Cir. 2003), and
consists of a number between zero and 100 to reflect that judgment, Hurd v. Astrue, 621 F.3d 734,
737 (8th Cir. 2010). A GAF score between 41 and 50 is indicative of "[s]erious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR at 34
(emphasis omitted).
3

A GAF score between 51 and 60 indicates "[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers)." DSM-IV-TR at 34
(emphasis omitted). A GAF score between 61 and 70 indicates "[s]ome mild symptoms (e.g.,
depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning
(e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has
some meaningful interpersonal relationships." DSM-IV-TR at 34 (emphasis omitted).
-4-

Asked by the ALJ to describe Plaintiff's residual functional capacity ("RFC"), Dr.
Khushalani testified Plaintiff has no limitations in his ability to understand, remember, and
carry out simple instructions; has moderate limitations in his ability to understand, remember,
and carry out complex instructions; has moderate limitations in his ability to make judgments
on complex work-related decisions; has mild limitations in his ability to interact appropriately
with the public and with co-workers; has no limitations in his ability to interact appropriately
with supervisors; and has mild limitations in his ability to respond appropriately to usual
work situations. (Id. at 46.)
Mr. Poor was asked by the ALJ to assume a hypothetical claimant of Plaintiff's age,
education, and past work experience who is capable of medium work but is limited to no
heights or climbing, no moving or dangerous equipment, and no commercial driving. (Id. at
50-51.) This claimant also has the mental RFC described by Dr. Khushalani. (Id. at 51.)
Asked if this claimant can perform Plaintiff's past relevant work, Mr. Poor replied he can not.
(Id.) He can, however, do a "very wide range of unskilled work, and a very significant range
of semiskilled jobs." (Id.) Examples of the semiskilled jobs are team assembler, with a
Dictionary of Occupational Titles ("DOT") code of 706.687-010; a hand grinder/polisher,
with a DOT code of 603.280-010; and tool grinder, with a DOT code of 701.381-018. (Id.
at 58.) Examples of the unskilled jobs are a kitchen helper, with a DOT code of 318.687010; laundry worker, with a DOT code of 361.685-018; and landscape worker, with a DOT
code of 406.684-014. These jobs exist in significant numbers in the state and national
economies. (Id. at 52-53.)

-5-

If, as Plaintiff testified he does, the claimant has to lie down for at least two hours
during an ordinary work day or has to miss at least three days of work a month because of
illnesses, there are no jobs the claimant can perform. (Id. at 53.) And, if the claimant has a
reduction of 30 to 50 percent in his ability to function in work-related areas, competitive
employment is precluded. (Id. at 54.) The highest percentage at which a claimant can
"probably" still function is 20. (Id. at 55.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ included forms Plaintiff completed as part of
the application process, documents generated pursuant to his applications, records from
health care providers, and assessment of his mental functional capacities.
When applying for DIB and SSI, Plaintiff completed a Disability Report,4 listing his
height as 6 feet and his weight as 245 pounds. (Id. at 198.) His impairments, see page one,
supra, limit his ability to work by preventing him from completing any tasks, sitting still,
focusing, and making decisions. (Id. at 199.) He is easily stressed and is unable to handle
normal pressure. (Id.) He is depressed, confused, and always tired. (Id.) He has headaches,
nausea, vomiting, muscle twitches, and tunnel vision. (Id.) His weight fluctuates within a
thirty to forty pound range. (Id.) Plaintiff's impairments first bothered him in 1996 and
prevented him from working as of November 1, 2008.

(Id.) He was given special

concessions on his job, and finally stopped working on April 28, 2009. (Id.) His medications

4

The report is completed in the third person and the first person. For ease of reference, the
Court will assume it was completed by Plaintiff.
-6-

include Abilify, alprazolam, citalopram, and lamotrigine. (Id. at 205.) All were prescribed
by Dr. Kondro for depression. (Id.) Only the alprazolam, which is also prescribed for
anxiety, helps, but not for long. (Id.) He finished the eleventh grade; he was not in special
education classes. (Id. at 206.)
Plaintiff also completed a Function Report. (Id. at 216-23.) Asked to describe what
he does during the day, he reported he has no routine. (Id. at 216.) If he is able to sleep, he
gets up, watches television, plays with his children, and falls asleep on the couch. (Id.) He
tries to help his wife get their oldest child ready for preschool. (Id.) He does not take care
of anyone else or of any pets. (Id. at 217.) His parents help take care of his three children
when his wife is away. (Id.) His parents also get his prescriptions filled and dispense his
medications to him at the appropriate times. (Id. at 218.) He has to be told when to shave
or change clothes. (Id.) The only household chore he does is to cut the grass; he uses a
riding mower. (Id.) His impairments adversely affect his abilities to stand, sit, talk, see,
remember, complete tasks, concentrate, understand, follow instructions, use his hands, and
get along with others. (Id. at 221.) He cannot walk farther than thirty feet and then must rest
until his dizziness stops. (Id.) He cannot pay attention for longer than a few minutes. (Id.)
Because of his blurred vision and inability to focus, he cannot follow written instructions.
(Id.) Because of his inability to focus, he cannot follow spoken instructions. (Id.) He is
anxious around authority figures. (Id. at 222.) He does not handle stress or changes in
routine well. (Id.)

-7-

Plaintiff's mother completed a Function Report Adult – Third Party on his behalf. (Id.
at 208-15.) Her answers generally mirror his. When asked what he was able to do before
his impairments that he can no longer do, she responded that he has had problems most of
his life taking care of himself. (Id. at 209.)
On a Disability Report – Appeal form completed after the initial denial of his
applications, Plaintiff reported that his conditions have worsened since a fall in March 2010.
(Id. at 227.)
The relevant medical records before the ALJ are summarized below in chronological
order, beginning with a November 2008 visit to Eric Kondro, M.D., for complaints of chronic
anxiety. (Id. at 276.) An increased dosage of Lexapro had not helped, and had caused
insomnia. (Id.) He had taken some alprazolam, and it had helped. (Id.) On the checklist
format to indicate the results of his examination, Dr. Kondro marked that Plaintiff was
anxious, but not depressed or experiencing hallucinations. (Id.) Those were the only three
choices listed for psychiatric symptoms. (Id.) There were also three choices listed for
neurological symptoms, one of which was seizures. (Id.) None were checked. (Id.) Dr.
Kondro's diagnosis was chronic anxiety and insomnia and a tear in Plaintiff's left knee
cartilage. (Id.) Alprazolam was prescribed.5 (Id.)

5

Two other medications were prescribed; their names are illegible.
-8-

Early in 2009,6 Plaintiff saw Dr. Kondro for a bacterial skin infection he had
developed when using water jetty equipment. (Id. at 275.) His psychiatric symptoms
included both anxiety and depression. (Id.)
Plaintiff was seen at the emergency room at St. John's Mercy Hospital on June 4 for
complaints of abdominal pain and dizziness. (Id. at 247-66.) He explained that he had eaten
hot dogs the day before and had woken up that morning with shaking, chest tightness, back
pain, fever, and vomiting. (Id. at 248.) His medical history was significant for anxiety, for
which he took alprazolam. (Id. at 250, 251.) A computed tomography ("CT") scan of his
abdomen and pelvis was normal, as were x-rays of his chest. (Id. at 255, 262.) He was
treated with medications and discharged within two hours with a prescription for doxycycline
(an antibiotic) and instructions not to work for two days. (Id. at 253, 257, 259.)
Plaintiff saw Dr. Kondro in June for sores on his legs and was diagnosed with a
chronic skin infection due to exposure at work to contaminated water. (Id. at 274.) His other
diagnosis was chronic anxiety. (Id.) The checklist on the progress notes did not include any
psychiatric symptoms. (Id.)
Plaintiff returned to Dr. Kondro in August, reporting that he was very depressed. (Id.
at 273.) Plaintiff said that, on reflection, he had been so for years. (Id.) He was paranoid,
jittery, and, occasionally, edgy. (Id.) His sleep was poor. (Id.) Dr. Kondro's diagnosis was
chronic depression and anxiety, for which he prescribed citalopram and lamotrigine. (Id.)
Plaintiff was to taper off the alprazolam. (Id.)

6

The month of the visit is illegible; however, it appears to be a "2" or "3."
-9-

In October, Plaintiff told Dr. Kondro he was not doing well; he was very anxious, very
moody, and paranoid. (Id. at 272.) He could not sleep or focus. (Id.) He felt depressed and
hopeless. (Id.) His affect was flat and anxious. (Id.) Dr. Kondro diagnosed him with
anxiety, panic attacks, depression, and bipolar affective disorder. (Id.) His dosages of
citalopram and lamotrigine were increased; Abilify was added. (Id.) On the progress notes
and on a separate paper, Dr. Kondro wrote: "[Plaintiff] is currently disabled with bipolar
affective disorder and is unable to work."7 (Id. at 268, 341.)
Plaintiff next saw Dr. Kondro in January 2010. (Id. at 271.) He reported that he was
drowsy all day and sleeping poorly at night. (Id.) His heart was pounding. (Id.) In addition
to dental problems, Plaintiff's diagnoses were attention deficit disorder ("ADD"), generalized
anxiety disorder ("GAD"), and insomnia. (Id.) Plaintiff was prescribed clonazepam (the
generic form of Klonopin), alprazolam, Adderall, and a fourth medication, the name of which
is illegible. (Id.)
In March, Plaintiff went to the emergency room at Herman Area District Hospital after
falling down steps and injuring his face, left knee, and left ankle. (Id. at 304-15.) His current
medications included Abilify, Zyloprim (prescribed to treat kidney stones), and Xanax (brand
name form of alprazolam). (Id. at 305.) X-rays of the knee and ankle were normal. (Id. at

7

A December 2010 note from Dr. Kondro reads the same. (Id. at 342.) And, an unsigned
August 2002 letter on Wellsville Medical Center stationery reads that Plaintiff "has been treated for
depression and anxiety since 4 21 98." (Id. at 267, 340.) Wellsville Medical Center is Dr. Kondro's
practice.

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305, 313-14.) Plaintiff was diagnosed with a strain of his left knee and ankle, had his left
foot placed in a gel cast, and was discharged with prescriptions for amoxicillin and Vicodin.
(Id. at 305, 311, 315.)
In June, Plaintiff was treated by Sunil M. Apte, M.D., at Patients First Health Care for
kidney stones that had been causing him severe pain for the past month. (Id. at 316-18.) He
presented positive for anxiety and depression and negative for poor or worsening memory,
blurred vision, seizures, and tremors. (Id. at 317.) Chronic problems included major
depressive disorder, single episode, unspecified, and anxiety state, unspecified. (Id.) A CT
scan of his abdomen was to be scheduled. (Id. at 318.) His current medications included
alprazolam, Ambien, Lexapro, Percocet, and Vicodin. (Id. at 316.) They were continued.
(Id. at 318.) The CT scan revealed a small, two millimeter kidney stone in his right ureter.
(Id. at 326-29.)
Plaintiff returned the next month with the same problem. (Id. at 319-22.) A right
ureteroscopy was to be performed in eight days, and was. (Id. at 319, 330-31.)
Plaintiff returned to Dr. Apte in September for treatment of a stone in his left ureter.
(Id. at 323-25.) It was noted that he demonstrated an "appropriate mood and affect." (Id. at
325.) Subsequently, Plaintiff underwent a left ureteroscopy. (Id. at 332-33.)
Plaintiff again saw Dr. Kondro in February 2011, reporting that he was having
headaches and nausea when he drove at night. (Id. at 358.) He had pins and needles
sensations in his left arm. (Id.) His ears rang. (Id.) He was sleeping "pretty well." (Id.)

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His psychiatric diagnoses included bipolar disorder, post traumatic stress disorder, ADD,
GAD, and depression. (Id.)
The following month, he consulted Dr. Kondro about his migraines and kidney
stones. (Id. at 359.)
On week later, on Dr. Kondro's referral, Plaintiff underwent an evaluation at the
Arthur Center by Michael Gordon, a licensed clinical social worker. (Id. at 351-57.)
Plaintiff presented with symptoms of anger, anxiety, depression, mania, and paranoia. (Id.
at 351.) Plaintiff "describe[d] racing thoughts and says that he can switch from being 'OK'
to very angry very quickly and with little provocation." (Id.) "[H]is mood switches several
times per day sometimes." (Id.) His sleep schedule varied; however, he usually got six hours
a night. (Id.) He was paranoid, feeling like he had enemies in the community. (Id.) He had
episodes of memory loss, sometime forgetting things that had occurred in the past day or two.
(Id.) He had had problems since he was a teenager, but they were lately getting worse. (Id.)
He had been hospitalized when he was fifteen years old after eluding cops he thought were
trying to stop him. (Id. at 351-52.) He had been getting medication from Dr. Kondro since
he was thirteen. (Id. at 352.) He did not have any current suicidal ideation or intent to harm
others; he was not a suicide risk. (Id.) He had difficulty maintaining employment and
sustaining attention. (Id. at 353.) He had frequently been disciplined at school for behavior
problems. (Id.) He had made enemies when he was a "snitch for the police." (Id.) When
out in public, he was concerned he might run into someone who resented this cooperation.
(Id.) Plaintiff further reported that his wife had been laid off, her unemployment was running

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out, and their financial situation was "getting very challenging." (Id.) His wife did most of
the work caring for their three children and the house; he did the dishes and laundry when
they piled up. (Id.) He had managed to better control his anger, but it was a problem when
he was younger. (Id.) He had formerly abused alcohol and marijuana, but stopped when he
was eighteen. (Id. at 353-54.) On examination, Plaintiff was alert; cooperative; casually
dressed; had an anxious affect; had an anxious, depressed, and irritable mood; spoke
excessively and rapidly; had appropriate eye contact; had a tangential and circumstantial flow
of thought; and had fair insight and judgment. (Id. at 355.) He was well oriented. (Id.)
Plaintiff was diagnosed with bipolar II disorder. (Id. at 356.) His current GAF was 50. (Id.)
Plaintiff wanted to "explore medication options that can optomize [sic] his ability to function
well." (Id.) He was to have a psychiatric evaluation by Sarmistha Bhalla, M.D. (Id.)
Plaintiff saw Dr. Bhalla two weeks later. (Id. at 347-50.) Plaintiff reported he had
never used illicit drugs or alcohol. (Id. at 347.) Dr. Bhalla described Plaintiff as looking his
stated age and being calm, cooperative, and well-oriented to time, place, and person. (Id. at
349.) His speech was normal in tone and volume; his attention, concentration, and memory
were within normal limits. (Id.) His affect was appropriate; his mood was "'stressed out'";
his insight and judgment were fair. (Id.) Dr. Bhalla diagnosed Plaintiff with mood disorder,
not otherwise specified, and ADHD, not otherwise specified. (Id.) His GAF was 60. (Id.)
She prescribed an increased dosage of Depakote and renewed Plaintiff's prescriptions for
Adderall, Xanax, Klonopin, and Abilify. (Id.) Plaintiff was to have his Depakote level
checked in two weeks. (Id.)

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At his April 14 visit to Dr. Kondro, Plaintiff reported he had had a seizure after going
into a rage and passing out (Id. at 360.) He was to discontinue taking the Adderall. (Id.)
Two weeks later, Plaintiff saw Dr. Bhalla, reporting he had not had his Depakote
levels checked. (Id. at 343-46.) He was feeling better, but was irritable and having
migraines. (Id. at 343.) At the time, he did not have a headache and was in a good mood.
(Id.) He was sleeping and eating well. (Id.) Although he was taking Xanax and Klonopin,
he was not doing so regularly and was trying to stop. (Id.) On examination, his appearance
was casual, his mood and speech were normal, his affect was appropriate, his eye contact
was good, his flow of thought was logical, his thought content was normal, and his judgment
was fair. (Id. at 344.) His diagnoses were unchanged. (Id.) His GAF was 65. (Id.) He was
to continue on his current medications and take them as prescribed. (Id.)
After falling twenty feet off a roof in May, Plaintiff had X-rays of his right ankle and
left knee and CT scans of his head, cervical spine, chest, abdomen, and pelvis taken; all were
negative. (Id. at 362-66.) Three days later, he informed Dr. Kondro he was still in a lot of
pain from the fall. (Id. at 361.)
When next seeing Dr. Bhalla, on June 30, Plaintiff informed her that his primary care
physician had told him his Depakote levels were low. (Id. at 370-73.) He denied have any
side effects. (Id. at 370.) He was sleeping and eating well. (Id.) He was trying to avoid
taking Xanax and Klonopin, and was not taking either regularly. (Id.) His diagnoses and
GAF were as before. (Id. at 372.) He was again prescribed Adderall, as well as Abilify,

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Klonopin, Xanax, and Depakote. (Id. at 372-73.) He was to increase his dosage of the latter
and to take his medications as prescribed. (Id. at 373.)
In August, Plaintiff reported to Dr. Bhalla that he was constantly nauseous and thought
the Depakote was to blame, although it did make him calmer. (Id. at 374-77.) His diagnoses
and GAF were unchanged. (Id. at 377.) The Depakote was discontinued; the dosage of
Abilify was increased. (Id.)
Also before the ALJ were assessments of Plaintiff's mental residual functional
capacity.
In March 2010, Plaintiff underwent a psychological evaluation by Kim A. Dempsey,
Psy.D., pursuant to his DIB and SSI applications. (Id. at 279-83.) Plaintiff reported
symptoms of depression that included depressed mood, hopelessness, suicidal thoughts
without a plan, loss of interest, and low motivation. (Id. at 279.) He had episodes of a
decreased need for sleep and, during manic episodes, was irritable, impulsive, had grandiose
and racing thoughts, and had thoughts of harming others. (Id.) He saw shadows out of the
corner of his eye, suggestive to Dr. Dempsey of possible psychotic features. (Id.) He had
symptoms of anxiety and "'extreme panic attacks.'" (Id.) He had been prescribed Abilify,
lamotrigine, clonazepam, alprazolam, and citalopram. (Id.) The first two were for his bipolar
symptoms; the second two were for his anxiety; and the fifth was for his depression. (Id.)
Plaintiff reported he had suffered from depression since he was thirteen years old, but his
more severe symptoms had begun after he and his wife had their second child. (Id.) He had
been married for four years and has three children. (Id.) Because of his depression and low

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motivation, he had difficulty doing household tasks. (Id. at 280.) His wife did the household
chores. (Id.)
His scores on the Test of Memory Malingering suggested he put forth his best effort
and did not malinger. (Id.) His scores on the Trail Making Tests A and B suggested deficits
in his visual working memory. (Id.)
On examination, Plaintiff "was adequate in appearance, wore appropriate clothing, and
exhibited adequate personal hygiene." (Id.) His facial expressions were flat; his eye contact
was fair; his attitude was "fairly cooperative"; his mood was depressed. (Id.) His speech was
logical, coherent, relevant, and goal-directed. (Id.) He was oriented to time, place, person,
and purpose. (Id.) "He did not present with psychotic symptoms during the assessment, but
reportedly sometimes sees 'shadows out of the corner of [his] eye.'" (Id. (alteration in
original)). He reported having suicidal ideation and some thoughts of harming others, but no
plan or intent for either. (Id.) His abstract-conceptual thinking was adequate; his memory
functions were problematic. (Id.)
Dr. Dempsey described Plaintiff's daily activities as appearing to currently be
restricted by mood symptoms and anxiety. (Id. at 281.) "There was evidence of impairment
in his interests and personal habits." (Id.) He did not appear to have any significant
difficulties in following simple instructions, and appeared to be capable of managing his own
funds. (Id.) He had problems tolerating normal external stress and vocational pressures.
(Id.) She diagnosed Plaintiff with bipolar I disorder, mixed, severe, and panic disorder. (Id.)
His GAF was 50. (Id.)

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Later that same month, a Psychiatric Review Technique form was completed for
Plaintiff by a non-examining consultant, Kyle DeVore, Ph.D. (Id. at 284-95.) Plaintiff was
assessed as having an organic mental disorder, i.e., ADD; an affective disorder, i.e., bipolar
I disorder, mixed, severe; and anxiety-related disorders, i.e., GAD and panic disorder. (Id.
at 284, 285, 287, 288.) These disorders resulted in mild restrictions in his daily living
activities, moderate difficulties in maintaining social functioning, and moderate difficulties
in maintaining concentration, persistence, or pace. (Id. at 292.) There were no repeated
episodes of decompensation of extended duration. (Id.)
On a Mental Residual Functional Capacity Assessment form, Dr. DeVore assessed
Plaintiff as being moderately limited in one of the three abilities in the area of understanding
and memory, i.e., understanding and remembering detailed instructions, and not significantly
limited in the other two. (Id. at 296.) In the area of sustained concentration and persistence,
Plaintiff was not significantly limited in three of the eight listed abilities; was markedly
limited in one, i.e., the ability to carry out detailed instructions; and was moderately limited
in four, i.e., (i) maintaining attention and concentration for extended periods, (ii) performing
activities within a schedule, maintaining regular attendance, and being punctual within
customary tolerances, (iii) working in coordination with or proximity to others without being
distracted by them, and (iv) completing a normal workday and workweek without
interruptions from psychologically based symptoms and performing at a consistent pace
without an unreasonable number and length of rest periods. (Id. at 296-97.) In the area of
social interaction, Plaintiff was moderately limited in all but one of the five abilities. (Id. at

- 17 -

297.) In the area of adaptation, he was moderately limited in two of the four abilities and not
significantly limited in the other two. (Id.)
In August 2011, Dr. Bhalla completed a mental functional capacity form for Plaintiff,
rating him as having a "fair" ability in each of eight activities listed for the area of making
occupational adjustments, each of three activities for the area of making performance
adjustments, and each of the three activities for the area of making personal-social
adjustments. (Id. at 368-69.) "Fair" was the third of four choices, with the first being
"unlimited/very good" and the fourth being "poor." (Id.)
The ALJ's Decision
The ALJ first found that Plaintiff met the insured status requirements of the Act
through December 31, 2014, and has not engaged in substantial gainful activity since his
amended alleged onset date of April 1, 2009. (Id. at 12.) The ALJ next found that Plaintiff
has severe impairments of migraine headaches, bipolar disorder, and anxiety disorder. (Id.)
Plaintiff does not, however, have an impairment or combination of impairments that meets
or medically equals one of listing-level severity. (Id. at 13.) Relying, in part, on Dr.
Khushalani's opinion, the ALJ found that Plaintiff satisfies the "A" criteria for Listing 12.04
(affective disorders) and 12.06 (anxiety disorders). (Id.) He does not satisfy the "B" criteria
for either Listing. (Id.) Specifically, he has moderate restrictions of activities of daily living;
moderate difficulties in social functioning; and moderate difficulties in concentration,
persistence, or pace. (Id. at 14.) And, Plaintiff has had no episodes of decompensation. (Id.)
Also, Plaintiff does not satisfy the "C" criteria for either Listing. (Id.)

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The ALJ then determined that Plaintiff has the RFC to perform medium work8 with
additional limitations of (a) not working at unprotected heights; (b) not climbing, operating
moving or dangerous equipment; and (c) no commercial driving. (Id. at 15.) Plaintiff has
moderate limitations in his abilities understand, remember, and carry out complex
instructions and in his ability to make judgments on complex work-related decisions. (Id.)
He has mild limitations in his ability to respond appropriately to usual work situations and
in his ability to interact appropriately with the public and with co-workers. (Id.) He has no
limitations in his abilities to understand, remember, and carry out simple instructions; to
make judgments on simple work-related decisions; and to interact appropriately with
supervisors. (Id.)
When assessing Plaintiff's RFC, the ALJ evaluated his credibility and found him not
to be entirely credible as to the severity and effects of his symptoms. (Id. at 16.) This was
based, in part, on his daily activities, the medical record, and his failure to comply with
treatment recommendations and medications. (Id. at 16-18.)
The ALJ declined to give the assessments of Drs. Kondro and Bhalla any weight as
both were inconsistent with the record. (Id. at 19.) Also, Dr. Kondro's opinion that Plaintiff
is disabled is a determination to be made by the Commissioner. (Id.)
With his RFC, Plaintiff is unable to perform his past relevant work. (Id. at 20.) With
his age, education, work experience, and RFC, he is able to perform the jobs described by

8

Medium work "involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects up to 25 pounds." 20 C.F.R. §§ 404.1567(c), 416.967(c). If someone can do
medium work, he can do sedentary or light work. Id.
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the VE. (Id. at 21.) Consequently, he is not disabled within the meaning of the Act. (Id. at
21.)
Additional Records before the Appeals Council
Plaintiff submitted additional medical records to the Appeals Council in support of his
request for review. These records are with from Dr. Kondro or from the Herman Area
District Hospital.
In August 2011, Plaintiff saw Dr. Kondro for a follow-up for his complaints of
migraines, reporting he had been having them several times a month and had been getting
very good relief with a particular medication (the name of is illegible). (Id. at 420.) In
October, Plaintiff returned for a recheck of his kidney stones and migraines. (Id. at 421.)
Both conditions had been better until he was in an altercation with home invaders. (Id.) He
was to see Dr. Bhalla the next week. (Id.) In January 2012, Plaintiff informed Dr. Kondro
that he was doing fairly well. (Id. at 422.) His left hand ached after he was in an altercation.
(Id.)
In April 2012, Plaintiff informed Dr. Kondro he had developed a severe headache after
a family problem and had had a seizure. (Id. at 423.) A workup at the emergency room was
negative. (Id.) Plaintiff was angry and expressed suicidal and homicidal ideation. (Id.)
Plaintiff and his wife were referred to the crisis intervention program at Arthur Center; a
telephone call verified that they went there and were in counseling. (Id.)
Dr. Kondro wrote on February 16, 2012, that Plaintiff was currently unable to work
due to his bipolar affective disorder. (Id. at 380.)

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Plaintiff went to the emergency room at Herman Area District Hospital in July 2011
for a toothache; he was prescribed Percocet and told to see a dentist as soon as possible. (Id.
at 382-89.) He returned to the emergency room in January 2012 for treatment of joint pain
in his left hand. (Id. at 390-92.) An x-ray of the hand was "[g]rossly normal." (Id. at 391.)
In March, he went to the emergency room for treatment of right flank pain, nausea, and
painful urination for past two days. (Id. at 393-402.) He was given Percocet and Tylenol.
(Id. at 395.)
Plaintiff returned to the emergency room in April for treatment of a seizure that had
occurred three hours earlier and a headache that had begun two hours earlier. (Id. at 403-17.)
He had lost consciousness. (Id.) He refused to do a urine screen. (Id.) Chest x-rays were
normal, as was a CT scan of his brain. (Id. at 409, 410.) It was noted he had stopped taking
Depakote on his own because he could not tolerate it and had last had a seizure one year
earlier. (Id. at 406.) No seizure activity was noticed in the emergency room. (Id. at 407.)
After his headache improved on medication and his twitching improved, he was discharged
with instructions to see a neurologist as soon as possible and to take his home medications
as directed. (Id.)
Standards of Review
Under the Act, the Commissioner shall find a person disabled if the claimant is
"unable to engage in any substantial activity by reason of any medically determinable
physical or mental impairment," which must last for a continuous period of at least twelve
months or be expected to result in death. 42 U.S.C. §§ 423(d)(1), 1382c(a)(3)(A). Not only

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the impairment, but the inability to work caused by the impairment must last, or be expected
to last, not less than twelve months. Barnhart v. Walton, 535 U.S. 212, 217-18 (2002).
Additionally, the impairment suffered must be "of such severity that [the claimant] is not only
unable to do his previous work, but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy, regardless of whether . . . a specific job vacancy exists for him, or whether he
would be hired if he applied for work." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
"The Commissioner has established a five-step 'sequential evaluation process' for
determining whether an individual is disabled.'" Phillips v. Colvin, 721 F.3d 623, 625 (8th
Cir. 2013) (quoting Cuthrell v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013) (citing 20 C.F.R.
§§ 404.1520(a) and § 416.920 (a)). "Each step in the disability determination entails a
separate analysis and legal standard." Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir.
2006). First, the claimant cannot be presently engaged in "substantial gainful activity." See
20 C.F.R. §§ 404.1520(b), 416.920(b); Hurd, 621 F.3d at 738. Second, the claimant must
have a severe impairment. See 20 C.F.R. §§ 404.1520(c), 416.920(c). A"severe impairment"
is "any impairment or combination of impairments which significantly limits [claimant's]
physical or mental ability to do basic work activities . . . ." Id.
At the third step in the sequential evaluation process, the ALJ must determine whether
the claimant has a severe impairment which meets or equals one of the impairments listed in
the regulations and whether such impairment meets the twelve-month durational requirement.
See 20 C.F.R. §§ 404.1520(d), 416.920(d) and Part 404, Subpart P, Appendix 1. If the
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claimant meets these requirements, he is presumed to be disabled and is entitled to benefits.
Bowen v. City of New York, 476 U.S. 467, 471 (1986); Warren v. Shalala, 29 F.3d 1287,
1290 (8th Cir. 1994).
"Prior to step four, the ALJ must assess the claimant's [RFC], which is the most a
claimant can do despite [his] limitations." Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.
2009). "[A]n RFC determination must be based on a claimant's ability 'to perform the
requisite physical acts day in and day out, in the sometimes competitive and stressful
conditions in which real people work in the real world.'" McCoy v. Astrue, 648 F.3d 605,
617 (8th Cir. 2011) (quoting Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)).
Moreover, "'a claimant's RFC [is] based on all relevant evidence, including the medical
records, observations of treating physicians and others, and an individual's own description
of his limitations.'" Moore, 572 F.3d at 523 (quoting Lacroix, 465 F.3d at 887); accord
Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011).
"'Before determining a claimant's RFC, the ALJ first must evaluate the claimant's
credibility.'" Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007) (quoting Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002)). This evaluation requires the ALJ consider
"'[1] the claimant's daily activities; [2] the duration, frequency and intensity of the pain; [3]
precipitating and aggravating factors; [4] dosage, effectiveness and side effects of medication;
[5] functional restrictions.'" Id. (quoting Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984)). "'The credibility of a claimant's subjective testimony is primarily for the ALJ to
decide, not the courts.'" Id. (quoting Pearsall, 274 F.3d at 1218). After considering the
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Polaski factors, the ALJ must make express credibility determinations and set forth the
inconsistencies in the record which caused the ALJ to reject the claimant's complaints. Ford
v. Astrue, 518 F.3d 979, 982 (8th Cir. 2008); Singh v. Apfel, 222 F.3d 448, 452 (8th Cir.
2000).
At step four, the ALJ determines whether claimant can return to his past relevant work,
"review[ing] [the claimant's] [RFC] and the physical and mental demands of the work
[claimant has] done in the past." 20 C.F.R. §§ 404.1520(e), 416.920(e). The burden at step
four remains with the claimant to prove his RFC and establish he cannot return to his past
relevant work. Moore, 572 F.3d at 523; accord Dukes v. Barnhart, 436 F.3d 923, 928 (8th
Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005).
If, as in the instant case, the ALJ holds at step four of the process that a claimant
cannot return to past relevant work, the burden shifts at step five to the Commissioner to
establish the claimant maintains the RFC to perform a significant number of jobs within the
national economy. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009); Banks v.
Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R. §§ 404.1520(f),
416.920(f). The Commissioner may meet her burden by eliciting testimony by a VE,
Pearsall, 274 F.3d at 1219, based on hypothetical questions that "'set forth impairments
supported by substantial evidence on the record and accepted as true and capture the concrete
consequences of those impairments,'" Jones v. Astrue, 619 F.3d 963, 972 (8th Cir. 2010)
(quoting Hiller v. S.S.A., 486 F.3d 359, 365 (8th Cir. 2007)).

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If the claimant is prevented by his impairment from doing any other work, the ALJ
will find the claimant to be disabled.
The ALJ's decision whether a person is disabled under the standards set forth above
is conclusive upon this Court "'if it is supported by substantial evidence on the record as a
whole.'" Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008)); accord Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.
2001). "'Substantial evidence is relevant evidence that a reasonable mind would accept as
adequate to support the Commissioner's conclusion.'" Partee, 638 F.3d at 863 (quoting Goff
v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). When reviewing the record to determine
whether the Commissioner's decision is supported by substantial evidence, however, the
Court must consider evidence that supports the decision and evidence that fairly detracts from
that decision. Moore, 623 F.3d at 602; Jones, 619 F.3d at 968; Finch, 547 F.3d at 935. The
Court may not reverse that decision merely because substantial evidence would also support
an opposite conclusion, Dunahoo, 241 F.3d at 1037, or it might have "come to a different
conclusion," Wiese, 552 F.3d at 730.
Discussion
Plaintiff argues that the ALJ erred by not giving the opinions of Drs. Kondro and
Bhalla greater weight, not discussing the weight given to Dr. Dempsey's evaluation, and not
explaining why Dr. DeVore's opinion should be given great weight. The Commissioner
disagrees.

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It is undisputed that Drs. Kondro and Bhalla are Plaintiff's treating physicians. "A
treating physician's opinion is given controlling weight if it 'is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [a claimant's] case record.'" Tilley v. Astrue, 580 F.3d 675, 679 (8th
Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2)) (alteration in original); accord Halverson
v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010); Davidson v. Astrue, 578 F.3d 838, 842 (8th
Cir. 2009). "[W]hile a treating physician's opinion is generally entitled to substantial weight,
such an opinion does not automatically control because the [ALJ] must evaluate the record
as a whole." Wagner, 499 F.3d at 849 (internal quotations omitted). Thus, "'an ALJ may
grant less weight to a treating physician's opinion when that opinion conflicts with other
substantial medical evidence contained within the record.'" Id. (quoting Prosch v. Apfel, 201
F.3d 1010, 1013-14 (8th Cir.2000)).
The one-sentence opinions of Dr. Kondro are similar: Plaintiff has bipolar affective
disorder and is disabled. (R. at 268, 341, 342.) "[A] treating physician's opinion does not
deserve controlling weight when it is nothing more than a conclusory statement." Hamilton
v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008). Moreover, "[a] medical source opinion that an
applicant is 'disabled' . . . involves an issue for the Commissioner and therefore is not the type
of 'medical opinion' to which the Commissioner gives controlling weight." Ellis v. Barnhart,
392 F.3d 988, 994 (8th Cir. 2005). And, another consideration lessening the weight to be
given Dr. Kondro's opinion is the checklist format of his notes. The Eighth Circuit Court of
Appeals has "recognized that a conclusory checkbox form has little evidentiary value when
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it 'cites no medical evidence, and provides little to no elaboration.'" Anderson v. Astrue, 696
F.3d 790, 794 (8th Cir. 2012) (quoting Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir.
2010)).
Plaintiff first saw Dr. Bhalla in March 2011. Her notes describe his attention,
concentration, and memory as being within normal limits. His insight and judgment were
fair. He was well-oriented to time, place, and person. She rated his GAF as 60, indicative
of moderate symptoms and one point below the beginning of the range for mild symptoms.
At his visit the next month, Plaintiff was rated as having a GAF within the range for mild
symptoms. He had a logical flow of thought, normal thought content, and fair judgment. His
mood and speech were normal; his affect was appropriate. This was so even though he was
not compliant with his medications. Plaintiff saw Dr. Bhalla in June and again in August; his
GAF remained 65. On the form completed in August for Plaintiff, however, Dr. Bhalla
assessed him as having a "fair" ability in all fourteen listed activities. This was but one step
away from the fourth and worst ability: "poor." "'[A]n ALJ may discount or even disregard
the opinion of a treating physician . . . where a treating physician renders inconsistent
opinions that undermine the credibility of such opinions.'" Wildman, 596 F.3d at 964
(quoting Goff, 421 F.3d at 790). Accord Davidson, 578 F.3d at 843 ("It is permissible for
an ALJ to discount an opinion of a treating physician that is inconsistent with the physician's
clinical treatment notes."). Dr. Bhalla's dire view of Plaintiff's mental residual functional
capacity is inconsistent with her three treatment notes, including her ratings of his GAF and
her psychiatric findings on examination.
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Plaintiff further argues that the ALJ was obligated to recontact Drs. Kondro or Bhalla
if finding, as he did, that their opinions are of no weight. "The ALJ has a duty to fully and
fairly develop the evidentiary record," Byes v. Astrue, 687 F.3d 913, 915-16 (8th Cir. 2012),
"includ[ing] seeking clarification from treating physicians if a crucial issue is underdeveloped
or undeveloped," Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2006). If the record is
sufficiently developed, the ALJ does not err in not recontacting the treating physicians for
further clarification, examinations, or tests. Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir.
2010). "'The Commissioner's regulations explain that contacting a treating physician is
necessary only if the doctor's records are inadequate . . . to determine whether [the claimant]
is disabled such as when the report from [the] medical source contains a conflict or ambiguity
that must be resolved . . . .'" Jones, 619 F.3d at 969 (quoting Goff, 421 F.3d at 791) (second
alteration in original). Neither Dr. Kondro's nor Dr. Bhalla's notes were inadequate for the
purpose of determining whether Plaintiff is disabled. Rather, they were adequate, but did not
support his claims. See Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (noting that
"a lack of medical evidence to support a doctor's opinion does not equate to
underdevelopment of the record as to a claimant's disability"). "Ultimately, the claimant bears
the burden of proving disability and providing medical evidence as to the existence and
severity of an impairment," Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013). Plaintiff
simply failed to do so.
Plaintiff contends that without the opinions of Drs. Kondro and Bhalla, the ALJ did
not have the necessary medical evidence from which to determine his RFC and, consequently,
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the ALJ's RFC findings are mere conjecture. "'[S]ome medical evidence must support the
determination of the claimant's RFC.'" Martise, 641 F.3d at 923 (quoting Vossen v. Astrue,
612 F.3d 1011, 1016 (8th Cir. 2010)). "'However, the burden of persuasion to prove
disability and demonstrate RFC remains on the claimant.'" Id. (quoting Vossen, 612 F.3d at
1016). In the instant case, the ALJ had medical records, including those of Drs. Apte and
Bhalla, and the opinion of Dr. Khushalani that support his RFC findings. His disregard of
the opinions of Drs. Kondro and Bhalla does not equate with a lack of medical evidence.
Plaintiff further challenges the ALJ's RFC determination for his failure to include a
finding that he cannot work on a sustained basis. The evidence of Plaintiff's need to lie down
for at least two hours every day is his testimony. "[Plaintiff] fails to recognize that the ALJ's
determination regarding [his] RFC was influenced by his determination that [his] allegations
were less than fully credible, and [the Court] give[s] the ALJ deference in that
determination."9 Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005) (internal quotations
omitted).
Plaintiff next challenges the ALJ's failure to discuss the weight he gave to Dr.
Dempsey's opinion. The ALJ did, however, discuss that opinion, noting such inconsistencies
as (a) Plaintiff reporting seeing shadows out of the corner or his eye and her report he did not
present with psychotic symptoms and (b) his apparent functioning in the average-t-low
average range of intelligence and his lack of any evidence of memory deficits and of difficulty
following simple instructions. (R. at 17.) Assuming, without deciding, that the failure is an

9

The Court notes Plaintiff does not challenge the ALJ's credibility determination.
- 29 -

error, for it not to be harmless Plaintiff "must provide some indication that the ALJ would
have decided differently if the error had not occurred." Byes, 687 F.3d at 917. Given the
inconsistencies specifically cited by the ALJ, it is clear that any lack of a discussion on the
weight he gave Dr. Dempsey's opinion is not reversible error. Moreover, the opinion of a
consulting health care professional is generally not considered substantial evidence when she
has examined claimant only once. Charles v. Barnhart, 375 F.3d 777, 783 (8th Cir. 2004).
The ALJ did explicitly give Dr. DeVore's opinion "great weight." (R. at 19.) Plaintiff
argues this is error because the ALJ did not explain his reasoning. "Although it is true that
the opinion of a reviewing physician alone does not constitute substantial evidence," an ALJ
does not commit error when that opinion is not the only evidence relied upon. See Anderson
v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). As in Anderson, the ALJ in the instant case
"conducted an independent analysis of the medical evidence." Id.
Conclusion
An ALJ's decision is not to be disturbed "'so long as the . . . decision falls within the
available zone of choice. An ALJ's decision is not outside the zone of choice simply because
[the Court] might have reached a different conclusions had [the Court] been the initial finder
of fact.'" Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quoting Bradley v. Astrue,
528 F.3d 1113, 1115 (8th Cir. 2008)). Although Plaintiff articulates why a different
conclusion might have been reached, the ALJ's decision, and, therefore, the Commissioner's,
was within the zone of choice and should not be reversed for the reasons set forth above.
Accordingly,
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IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED
and this case is DISMISSED.
An appropriate Order of Dismissal shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 27th day of February, 2014.

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