Cockrell v. Commissioner for Social Security

Filing 18

REPORT AND RECOMMENDATION re 1 Complaint filed by Quiana Cockrell. It is RECOMMENDED that the Court REVERSE the Commissioner's decision and award benefits to N.S.C. Objections to R&R due by 3/28/2019. Signed by Magistrate Judge Chelsey M. Vascura on 3/14/2019. (daf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

QUIANNA COCKRELL o/b/o
N.S.C., a minor,
Plaintiff,
Civil Action 2:18-cv-568
Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Quianna Cockrell, on behalf of N.S.C., a minor (“Plaintiff”), brings this action
under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security
(“Commissioner”) determining that N.S.C. is ineligible for Supplemental Security Income
(“SSI”). This matter is before the United States Magistrate Judge for a Report and
Recommendation on Plaintiff’s Statement of Errors (ECF No. 11), the Commissioner’s
Memorandum in Opposition (ECF No. 16), Plaintiff’s Reply (ECF No. 17), and the
administrative record. For the reasons that follow, the undersigned RECOMMENDS that the
Court REVERSE the Commissioner of Social Security’s decision and immediately award
benefits to N.S.C.
I.

BACKGROUND

The Social Security Administration determined that N.S.C. was disabled and eligible for
SSI benefits in 2002. On September 30, 2010, a supplemental needs trust was established in the
name of N.S.C. with funds received from the settlement of a medical malpractice claim in New

York (the “Trust”). (R. at 30.) On August 23, 2011, the Social Security Administration received
a copy of the Trust and undertook an inquiry to determine whether Trust assets qualified as a
resource for purposes of determining N.S.C.’s eligibility for SSI. The field office initially
determined that the Trust does not count as a resource. A regional trust reviewer for the Social
Security Administration later concluded otherwise, however, finding that the Trust counted as a
resource because it contained no residual beneficiary. As a result, on October 9, 2014, the Social
Security Administration issued a notice informing N.S.C. that she was not entitled to benefits
from February 2012 through January 2014 and that she had been overpaid SSI benefits during
that period in the amount of $22,687. (See R. at 13.) N.S.C.’s mother requested reconsideration
and on November 6, 2014, the Social Security Administration determined again that the Trust
counted as a resource such that N.S.C. was not eligible for benefits. N.S.C. sought a de novo
hearing before an administrative law judge. Administrative Law Judge Thomas L. Wang (the
“ALJ”) held a hearing on March 27, 2015, at which N.S.C.’s parents, represented by counsel,
appeared. (R. at 163-74.) On June 19, 2015, the ALJ issued a decision finding that the Trust
counted as a resource for purposes of determining N.S.C.’s eligibility for SSI. (R. at 13-20.)
Although the ALJ found, contrary to the regional trust reviewer, that the Trust does contain a
residual beneficiary, he concluded it nevertheless counted because its Medicaid payback
provision limited reimbursements to medical assistance payments made during the term of the
Trust. Because the Trust assets exceeded the statutory limit of $2,000, the ALJ concluded that
N.S.C. was ineligible for SSI benefits from February 2012 through January 2014 and that N.S.C.
had been overpaid benefits during that period. The Appeals Council granted N.S.C.’s request for
review but affirmed the ALJ’s decision that the Trust counted as a resource and that N.S.C. had
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been overpaid benefits. Plaintiff timely filed this action for review. (ECF No. 1.)
Plaintiff advances a single statement of error, namely, that the ALJ erred in determining
that the Trust counts as a resource for determining N.S.C.’s eligibility for SSI benefits. The
undersigned limits her discussion of the record to evidence bearing on this contention of error.
II.

STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court generally “must affirm
the Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). More specifically, factual findings made by the
Commissioner are reviewed under the substantial evidence standard, though “[l]egal conclusions
are reviewed de novo.” Quinchett ex rel Wells v. Massanari, 185 F. Supp. 2d 845, 849 (S.D.
Ohio 2001), affirmed 185 F. Supp. 2d 845 (S.D. Ohio 2001); see also Graley v. Comm’r of Soc.
Sec., 646 F. App’x 414, 415 (6th Cir. 2016) (“We review the ALJ’s factual findings for
substantial evidence and her legal conclusions de novo.”). For factual findings, “substantial
evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th
Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
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Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)).
Furthermore, even if the ALJ’s decision meets the substantial evidence standard, “‘a
decision of the Commissioner will not be upheld where the SSA fails to follow its own
regulations and where that error prejudices a claimant on the merits or deprives the claimant of a
substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d
742, 746 (6th Cir. 2007)).
Finally, under sentence four of 42 U.S.C. § 405(g) the Court has the power to affirm,
modify, or reverse the Commissioner’s decision “with or without remanding the cause for
rehearing.” The United States Court of Appeals for the Sixth Circuit has stated that “‘[i]f a court
determines that substantial evidence does not support the [Commissioner’s] decision, the court
can reverse the decision and immediately award benefits only if all essential factual issues have
been resolved and the record adequately establishes a plaintiff's entitlement to benefits.’” White
v. Comm'r of Soc. Sec., 312 F. App’x 779, 790 (6th Cir. 2009) (quoting Faucher v. Sec'y of
Health & Human Servs., 17 F.3d 171, 176 (6th Cir.1994)).
III.

ANALYSIS

The undersigned finds Plaintiff’s contention of error to have merit and warrant reversal
and an immediate award of benefits.
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A.

This Court Reviews the ALJ’s Interpretation of the Trust De Novo
As a threshold matter, the undersigned rejects the Commissioner’s position that this

Court must apply the substantial-evidence standard to the ALJ’s interpretation of the Trust. 1 It is
well settled that the “[c]onstruction of a written contract, including the determination of whether
the contract’s terms are ambiguous, is a question of law[.]” Arlington Video Prods. v. Fifth
Third Bancorp, 569 F. App’x 379, 386 (6th Cir. 2014); see also Golden v. Kelsey-Hayes Co., 73
F.3d 648, 653 (6th Cir. 1996) (“Questions of contract interpretation are generally considered
questions of law subject to de novo review.”). As set forth above, although the ALJ’s factual
findings are reviewed for support by substantial evidence, “[l]egal conclusions are reviewed de
novo.” Quinchett, 185 F. Supp. 2d at 849; see also Graley, 646 F. App’x at 415 (“We review the
ALJ’s factual findings for substantial evidence and her legal conclusions de novo.”); White v.
Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (“We need not defer [] to conclusions of law, and if the
Commissioner commits an error of law, we may reverse without regard to the volume of
evidence in support of the factual findings.”); Rose v. Comm’r of Soc. Sec., 202 F. Supp. 3d 231,
240 (E.D.N.Y. 2016) (“[T]he Commissioner’s legal conclusions may be reviewed de novo
without deference.”) (internal quotation marks and citations omitted); Moreira v. Shalala, 1994
WL 75063, *5 (S.D.N.Y. Mar. 4, 1994) (“The ALJ’s conclusions of law will be reviewed de
novo.”).

1. Although the Commissioner incorrectly asserts that Plaintiff “concedes that the substantial
evidence standard governs this court’s review of the ALJ’s decision,” (Op. 7, ECF No. 16),
Plaintiff points out that a de novo standard applies here. See SOE 6, ECF No. 11 (“Legal
conclusions are reviewed de novo. . . . The decision by the Commissioner in this matter is
primarily a legal one in nature. . . . [A]s such this Court should perform a de novo review.”). The
undersigned agrees.
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The undersigned acknowledges that some Courts, without analyzing the issue, state they
are applying a substantial-evidence standard of review to an ALJ’s interpretation of a trust
document; yet, upon closer review, these cases actually review the ALJ’s interpretation of the
trust de novo. See, e.g., Stahl v. Comm’r of Soc Sec., No. 2:14-cv-2352, 2015 WL 5245331, at
*3-7 (S.D. Ohio Sep. 9, 2015). Generally, application of a de novo standard of review is proper
where, as here, neither the ALJ nor the Court need weigh evidence to construe a contract.
Additionally, even where contract terms are ambiguous such that interpretation requires the
reviewing Court to discern the parties’ intent, because intent “is to be ascertained from the
language of the instrument[,] evidence cannot be introduced to show an agreement between the
parties materially different from that expressed by clear and unambiguous language of the
instrument.” Quinchett, 185 F. Supp. at 847 (internal quotation marks and citations omitted). As
such, as this Court has previously held, “the Court can review de novo the question of whether
the language of the trust instrument [] is sufficiently clear and unambiguous to permit the Court
to divine the settlor’s intention as a matter of law,” and if the settlor’s intention is clear, “the
Court does not owe any special deference to the decision of the Commissioner.” Id. As set forth
below, the Trust at issue here must be construed pursuant to New York law, which similarly
mandates that “‘the intent of the parties must be gleaned from within the four corners of the
instrument.’” IRJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 314 (2nd Cir. 2003) (quoting
De Luca v. De Luca, 751 N.Y.S.2d 766, 766 (N.Y. App. Div. 2d Dep’t 2002). Here, because the
issue before the Court is the ALJ’s interpretation of the Trust, the undersigned applies a de novo
standard of review.

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B.

The ALJ Erred in Interpreting the Trust
The federal Supplemental Security Income program prescribed by 42 U.S.C. § 1381 et

seq., provides cash assistance to disabled persons whose monthly income or overall available
resources do not exceed certain maximum amounts set forth in the statute and regulations. See
42 U.S.C. § 1382 and 20 C.F.R. § 416 subparts D and K (setting forth income limits) and 20
C.F.R. § 416.1205 (setting forth resource limits). If the Social Security Administration
determines that either an individual’s available resources or monthly income exceed the
prescribed limits, he or she is ineligible for SSI. 42 U.S.C. § 1382.
Trusts created on or after January 1, 2000, using an individual’s own assets are generally
counted as a resource when considering an individual’s eligibility for SSI. 42 U.S.C. §
1382(b)(e); POMS SI 01120.201. 2 Certain trust assets, including those in a “special needs trust,”
are not considered countable resources. 42 U.S.C. § 1396p(d)(4)(A). A special needs trust is
defined as follows:
A trust containing the assets of an individual under age 65 who is disabled . . . and
which is established for the benefit of such individual by the individual, a parent,
grandparent, legal guardian of the individual, or a court if the State will receive all
amounts remaining in the trust upon the death of such individual up to an amount
equal to the total medical assistance paid on behalf of the individual under a State
plan under this title.

2. The Social Security Administration’s Program Policy Information Site (“POMS”) is a
handbook for internal use by Social Security Administration employees that contains “publicly
available operating instructions for processing Social Security claims.” Washington Dep’t of
Soc. Svs. v. Keffeler, 537 U.S. 371, 385 (2003). As the Supreme Court of the United States has
recognized, although “these administrative interpretations are not products of formal rulemaking,
they nevertheless warrant respect[.]” Id.; see also Davis v. Sec’y of Health & Human Servs., 867
F.2d 326, 340 (6th Cir. 1989) (describing the POMS as persuasive authority).
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42 U.S.C. § 1396p(d)(4)(A). Thus, assets in a special needs trust are not counted as resources if
the trust meets all three requirements of Section 1396p(d)(4)(A), meaning it: (1) contains the
assets of an individual under the age of 65 and who is disabled; (2) is established for the benefit
of such individual by a parent, grandparent, legal guardian, or a court; and (3) provides that the
State will receive all amounts remaining in the trust upon the death of the individual up to an
amount equal to the total medical assistance paid on behalf of the individual under a state
medical plan. Id. The Social Security Administration’s POMS SI 01120.203(B)(1)(h) elaborates
that to qualify as a special needs trust, “Medicaid payback may not be limited to any particular
period of time, i.e., payback cannot be limited to the period after establishment of the trust.”
POMS SI 01120.203(B)(1)(h).
Here, there is no dispute that the Trust meets the first two requirements to qualify as an
excluded asset because it (1) contains assets of N.S.C., a person under the age of 65 who is
disabled; and (2) it was established for the benefit of N.S.C. by a court following a medical
malpractice settlement. The parties likewise agree that the Trust provides that upon N.S.C.’s
death, the State will receive remaining Trust assets to reimburse for medical payments paid on
behalf of N.S.C. The ALJ, however, concluded that the Trust limits such reimbursements to
medical payments made during the “term of the trust.” (R. at 18.) Because “Medicaid payback
may not be limited to any particular period of time” for a trust to qualify as a special needs trust,
the ALJ concluded that the Trust is a countable resource. (Id.) The undersigned disagrees with
the ALJ’s interpretation and finds that the Trust’s Medicaid payback provision is not limited to
the term of the trust.

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Before turning to the specific language of the Trust, the undersigned notes that by its
terms, the Trust “is to be governed, construed, and administered according to the laws of the
State of New York.” (Trust, Article IX, Paragraph (d), R. at 76.) Under New York Law,
contract interpretation is a question of law for the Court to resolve. Int’l Multifoods Corp. v.
Comm. Union Ins. Co., 309 F.3d 76, 83 (2nd Cir. 2002) (applying New York law). “Where a
‘contract is clear and unambiguous on its face, the intent of the parties must be gleaned from
within the four corners of the instrument, and not from extrinsic evidence.’” IRJE Corp., 329
F.3d at 314 (quoting De Luca, 751 N.Y.S.2d at 766). “In assessing ambiguity, [courts] consider
the entire contract to ‘safeguard against adopting an interpretation that would render any
individual provision superfluous.’” Id. (quoting Sayers v. Rochester Tel. Corp. Supp. Mgmt.
Pension Plan, 7 F.3d 1091, 1095 (2d Cir. 1993)). “Contract terms are not ambiguous if they
‘have a definite and precise meaning and are not reasonably susceptible to differing
interpretations.’” Id. (quoting Sayers, 7 F.3d at 1095). Finally, “[w]hether a contract is
ambiguous is a question of law that [courts] review de novo.” Id. (citing Sayers, 7 F.3d at 1095).
Here, the undersigned concludes that the Trust is clear and unambiguous and that its
Medicaid payback provision is not limited to the term of the Trust. Rather, the provision
governing distribution of Trust assets upon N.S.C.’s death clearly mandates the trustee to
reimburse “any . . . Medicaid entity” that provided Medicaid or similar benefits “for the total
value of all Medical Assistance . . . paid on behalf of [N.S.C.].” (Trust, Article V, Paragraph (b),
R. at 68.) Specifically, the distribution clause reads in full as follows:
ARTICLE V – THE TERMINATION OF THE TRUST
b.
After the death of the Beneficiary, and after payment of and only of
administrative expenses, accountings and state and federal taxes due on the Trust,
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the Trustee shall distribute the property, including income and principal, then
remaining in this Trust as follows:
i. DSS or any other appropriate Medicaid entity of any city, county, state,
federal or other governmental agency, within or without the State of New
York, shall be reimbursed for the total value of all Medical Assistance, if
any, paid on behalf of the Beneficiary, consistent with Federal and New
York State Law. If the Beneficiary received Medical Assistance in more
than one city, county or state, then the amount distributed to each city,
county, or state shall be based on the proportionate share of the total amount
of Medical Assistance paid by all cities, counties, or states on behalf of the
Beneficiary[.]
Id. (emphasis added).
This provision clearly mandates reimbursement “for the total value of all Medical
Assistance” payments made on N.S.C.’s behalf, without any limitation as to when such payments
were made. Id. The last sentence in the at-issue provision, which mandates that if N.S.C.
“received Medical Assistance in more than one city, county, or state, then the amount distributed
. . . shall be [prorated],” confirms this interpretation. Id. This provision—which contains no
temporal limitations—does not require prorated distribution only if N.S.C. received Medical
Assistance in more than one city, county, or state during the term of the trust. Rather, it
contemplates prorated distributions to all payors across cities, counties, and states, regardless of
when they made payments. Thus, contrary to the ALJ’s conclusion, the Medicaid payback
provision is not limited to payments made during the term of the Trust.
In reaching a different conclusion, the ALJ relied on a notice provision in the Trust to
conclude that the Medicaid payback provision is limited to the term of the trust. Specifically, the
ALJ relied on the following provision:
This trust shall cease and terminate at the death of the Beneficiary. The Trustee
shall notify the Court, DSS by certified or registered mail return receipt requested
to the attention of General Counsel of HRA . . . and any other appropriate Medicaid
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entity within or without the State of New York from which the Beneficiary may
have received Medical Assistance under any Medicaid program during the term of
this Trust, of the death of the Beneficiary.
(Trust, Article V, Paragraph (a), R. at 67) (emphasis added). Significantly, the ALJ failed to
even acknowledge the distribution provision set forth above in assessing whether the Medicaid
payback provision was limited in time. (R. at 18.) This notice provision, however, is just that—
a notice provision. By its clear and unambiguous terms, it governs to whom notice of N.S.C.’s
death must be given and how, not to whom Medicaid reimbursements must be made. Although
notice must be provided to all entities that made Medicaid or similar payments “during the term
of the trust,” (id.), the distribution clause set forth above clearly mandates that any payors of
Medicaid or similar benefits “shall be reimbursed for the total value of all Medical Assistance []
paid on behalf of [N.S.C.].” (Trust, Article V, Paragraph (a), R. at 67) (emphasis added).
Because the Trust does not limit Medicaid reimbursements, explicitly or implicitly, to payments
made during the term of the Trust, the ALJ erred in concluding otherwise.
The Commissioner posits that the ALJ’s reading of the trust is reasonable because “it
makes [no] sense to reimburse a state agency for Medicaid payments without notifying it” of the
beneficiary’s death. (Op. 6, ECF No. 16.) The undersigned disagrees. Providing notice and
making distributions are different. In this case, Plaintiff offers a reasonable explanation for why
the notice provision requires notice of N.S.C.’s death only to entities that made Medicaid
payments during the term of the Trust, namely, that entities that made payments prior to
enactment of the Trust were reimbursed from the settlement proceeds, making formal notice of
N.S.C.’s death to them unnecessary, particularly because the Trust also clearly protects whatever
remaining right to reimbursement they still have. (SOE 11, ECF No. 11.) But this Court need
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not make a factual finding as to why the notice provision contains a temporal limitation. Rather,
it need only discern the parties’ intent from the clear and unambiguous contract terms. Here, the
Trust’s clear and unambiguous language demonstrates that although notice of N.S.C.’s death
must be provided to entities that made Medicaid payments during the term of the Trust, the
trustee “shall” distribute remaining assets to “any” entity that made Medicaid payments to
reimburse such entity “for the total value of all Medical Assistance [] paid on behalf of the
[N.S.C.]” without limitation to when such payments were made. (Trust, Article V, Paragraph
(a), R. at 67) (emphasis added).
The Commissioner posits that failing to limit the distribution clause to the term of the
Trust “would render the phrase ‘during the term of this Trust’ [in the notice provision] mere
surplusage.” (Op. 6, ECF No. 16.) The undersigned disagrees. Again, notice and distributions
are different, and Plaintiff has offered a reasonable explanation for the temporal limitation
included in the notice provision. Moreover, the ALJ’s reading would require this Court to insert
a temporal limitation into the distribution clause that the parties chose to omit. The undersigned
declines to rewrite the Trust in a way that departs from the settlors’ intention as evidenced by the
Trust’s clear and unambiguous terms.
Finally, even if the undersigned were to find ambiguity based upon the Trust’s inclusion
of a temporal limitation in the notice provision, review of the remainder of the trust resolves any
such ambiguity in Plaintiff’s favor. See Luitpold Pharms., Inc. v. Ed. Geistlich Sohne A.G. Fur
Chemische Industries, 784 F.3d 78, 878 (2d Cir. 2015) (under New York law, the parties’ intent
is “discerned from the four corners of the document itself” where possible). As discussed above,
New York law requires a trust to be interpreted in such a way to give effect to the intent of the
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settlor. See, e.g., Matter of Chase Manhattan Bank, 6 N.Y.3d 456, 460 (N.Y. Ct. App. 2006)
(“We are to ascertain the intention from the words used and give effect to the legal consequences
of that intention when ascertained.”). Here, the remaining provisions of the Trust foreclose all
doubt that the parties intended that the Trust not interfere with N.S.C.’s eligibility for public
assistance benefits such as SSI. Article II, Paragraph (a) of the Trust states: “The purpose of the
Trust is that the Trust’s assets be used to supplement, not supplant, impair or diminish, any
benefits or assistance by any Federal, State, County, City or other governmental entity for which
the Beneficiary may otherwise be eligible.” (R. 63-64.) Consistently, Article III, Paragraph (c),
states: “It is the intentions of all parties hereto that no part of the corpus of the trust created
herein shall be used to supplant or replace public assistance benefits of any county, state, federal
or other governmental agency which has a legal responsibility to persons with disabilities.” (R.
at 34.) Accordingly, even if the Trust’s notice provision were found to create ambiguity, the
undersigned would nevertheless construe the Trust in accordance with the settlors’ intent as
revealed in the foregoing provisions, which means interpreting the distribution clause to require
payback to all entities regardless of when Medical Assistance payments were made, which,
incidentally, is precisely what Article V, Paragraph (b) requires. As such, it is
RECOMMENDED that Plaintiff’s contention of error be SUSTAINED.
IV.

CONCLUSION

Due to the error outlined above, it is RECOMMENDED that the Court REVERSE the
Commissioner’s decision and award benefits to N.S.C.

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V.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, he
may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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