Richardson v. Social Security Administration, Commissioner

Filing 9

OPINION AND ORDER denying 5 Motion to Reverse Decision of Commissioner; granting 7 Motion for Order Affirming Decision of Commissioner. Signed by Judge John M. Conroy on 8/11/2011. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Joseph Bodessa Richardson,
Plaintiff,
v.

Civil Action No. 2:11-CV-15

Michael J. Astrue,
Commissioner of Social Security,
Defendant.

OPINION AND ORDER
(Docs. 5, 7)
Claimant Joseph Bodessa Richardson brings this action pursuant to 42 U.S.C. §
405(g) of the Social Security Act, requesting review and reversal of the decision of the
Commissioner of Social Security (“Commissioner”) denying his applications for
disability insurance benefits. Pending before the Court are Richardson’s Motion seeking
an order reversing the Commissioner’s decision and remanding for further proceedings
(Doc. 5), and the Commissioner’s Motion seeking an order affirming the same (Doc. 7).
For the reasons set forth below, Richardson’s motion to remand (Doc. 5) is
DENIED and the Commissioner’s motion to affirm (Doc. 7) is GRANTED.
Background
Richardson was thirty-four years old on the alleged disability onset date.
(Administrative Record (“AR”) 142.) He completed one year of college and lives with

his wife and two sons. (AR 7, 165.) Richardson applied for disability insurance benefits
and supplemental security income based upon diabetes and back pain. (AR 158.)
Richardson worked as a corrections officer, drug and alcohol counselor, and retail
store manager. (AR 167.) He has not worked since December 2008, when he alleges he
became unable to work due to pain. (AR 61.) In a 2008 Disability Report, Richardson
reported that pain prevented him from sitting, lifting, and concentrating. (AR 158.) He
further reported problems sleeping and leg pain resulting in instability. (Id.) Richardson
reported taking the following medications: Aspirin, Cozaar, Lyrica, Metaprolol,
OxyCodone, and OxyContin. (AR 164.)
In Richardson’s 2009 Function Report, he reported that his daily activities include
personal care, eating, relaxing, and making lunch for his children. (AR 182-83.) He
further reported that he requires assistance from his wife in bathing and dressing. (AR
183.) Richardson also reported being able to prepare simple meals, fold laundry, shop for
groceries in stores, and drive short distances. (AR 184-87.) He reported that he engages
in no social activities as a result of his pain. (AR 185-87.) Although Richardson reported
in his first Function Report that he can walk for only twenty-five yards before needing to
stop and rest and that he requires a cane (AR 187-88), in a subsequent Function Report,
he reported that he can “take [the] dog out for [a] walk” (AR 209). Richardson wrote
that he is able to follow written and spoken directions. (AR 187, 213.) He reportedly
gets along well with authority figures, handles stress well, and handles changes in routine
“O.K.” (AR 188, 214.)
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In Richardson’s 2009 Pain Report, he stated that he suffers from low back pain
continuously and that he is unable to do any chores around the house as a result. (AR
191.) He takes OxyContin twice daily, which he reported sometimes relieves the pain.
(AR 192.) He further reported constant leg pain, made worse by standing and walking,
and pain arising from his diabetes. (AR 193-97.)
On June 8, 2009, Richardson applied for a period of disability and disability
insurance benefits, alleging that his back pain and diabetes rendered him unable to work
as of December 1, 2008. (AR 36.) His applications were denied initially and upon
reconsideration. (Id.) Richardson timely requested an administrative hearing, which
occurred on August 25, 2010 before Administrative Law Judge (“ALJ”) James
D’Alessandro. (AR 49-64.) Richardson testified at the hearing and was represented by
counsel. (AR 36.)
On September 15, 2010, the ALJ found that Richardson was not disabled within
the meaning of the Social Security Act and was therefore not entitled to benefits. (AR
36-43.) The Decision Review Board (“DRB”) selected the ALJ’s decision for review,
but failed to complete its review within the time allotted, thereby rendering the ALJ’s
decision the final decision of the Commissioner. (AR 1.) Having exhausted his
administrative remedies, Richardson timely filed the instant action on January 14, 2011.
(Doc. 1.)

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ALJ Determination
I.

Five-Step Sequential Evaluation Process
The Commissioner uses a five-step sequential process to evaluate disability

claims. See Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). The first step
requires the ALJ to determine whether the claimant is presently engaging in “substantial
gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so
engaged, step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant
has a severe impairment, the third step requires the ALJ to make a determination as to
whether the claimant’s impairment “meets or equals” an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1520(d), 416.920(d).
The claimant is presumptively disabled if the impairment meets or equals a listed
impairment. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the fourth step requires the ALJ to
consider whether the claimant’s “residual functional capacity” (“RFC”) precludes the
performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). The
fifth and final step requires the ALJ to determine whether the claimant can do “any other
work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant bears the burden of proving
his or her case at steps one through four, Butts, 388 F.3d at 383; and at step five, there is a
“limited burden shift to the Commissioner” to “show that there is work in the national
economy that the claimant can do,” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009)
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(clarifying that the burden shift to the Commissioner at step five is limited, and the
Commissioner “need not provide additional evidence of the claimant’s residual functional
capacity”).
Employing this five-step analysis, ALJ D’Alessandro first determined that
Richardson had not engaged in substantial gainful activity since December 1, 2008. (AR
38.) At step two, the ALJ found that Richardson had the following severe impairments:
“mild bilateral neural foraminal narrowing at L5-S1 and facet arthropathy, status post L5S1 laminectomy in 2002.” (Id.) At step three, the ALJ found that Richardson did not
have an impairment or combination of impairments that met or medically equaled any
impairment contained in the Listing of Impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (“the Listings”).  (AR 38-41.) Next, the ALJ determined that Richardson had
the RFC to perform light work1 except that he:
can lift 20 pounds occasionally and 10 pounds frequently. The claimant
can walk or stand for at least two hours and sit for 6 hours during an 8-hour
workday (Exhibit 9F, p. 2). He can frequently climb ramps and stairs,
balance, kneel, and crouch, but never climb ladders or scaffolds. He can
occasionally stoop and crawl.
(AR 40.) The ALJ explained that, although Richardson’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms, his statements
concerning the intensity, persistence, and limiting effects of those symptoms were “not

1
Pursuant to 20 C.F.R. § 404.1567(b), “[l]ight work” involves “lifting no more than 20 pounds at
a time with frequent lifting or carrying of objects weighing up to 10 pounds.” The regulation further
explains as follows: “Even though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most of the time with some
pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range
of light work, you must have the ability to do substantially all of these activities.”

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credible to the extent they are inconsistent with the . . . [RFC] assessment.” (AR 41.) In
support of this credibility determination, the ALJ referenced the objective medical
evidence, the subjective factors including Richardson’s reported activities, and the
opinion evidence. (AR 41-43.)
At step four, the ALJ determined that Richardson was capable of performing his
past relevant work as a store manager. (AR 42.) In the alternative, at step five, the ALJ
determined based on the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P,
Appendix 2 (“the Grids”), that considering Richardson’s age, education, work
experience, and RFC, there are jobs that exist in significant numbers in the national
economy that Richardson could perform. (AR 43.) As a result, the ALJ concluded that
Richardson had not been under a disability, as defined in the Social Security Act, from
December 1, 2008, the alleged onset date, through the date of the decision. (AR 43.)
Standard of Review
The Social Security Act defines the term “disability” as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). A person will be found to be disabled only if it is determined that his
“impairments are of such severity that he is not only unable to do his previous work[,] but
cannot, considering his age, education, and work experience, engage in any other kind of

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substantial gainful work which exists in the national economy.” 42 U.S.C. §
423(d)(2)(A).
In reviewing a Commissioner’s disability decision, the court limits its inquiry to a
“review [of] the administrative record de novo to determine whether there is substantial
evidence supporting the . . . decision and whether the Commissioner applied the correct
legal standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). A court’s factual
review of the Commissioner’s decision is limited to determining whether “substantial
evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). “Substantial evidence” is more than a mere
scintilla; it means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Poupore, 566 F.3d at 305.
Although the reviewing court’s role with respect to the Commissioner’s disability
decision is “quite limited[,] and substantial deference is to be afforded the
Commissioner’s decision,” Hernandez v. Barnhart, No. 05 Civ. 9586, 2007 WL
2710388, at *7 (S.D.N.Y. Sept. 18, 2007) (quotation marks and citation omitted), the
Social Security Act “must be construed liberally because it is a remedial statute that is
intended to include, rather than exclude, potential recipients of benefits,” Jones v. Apfel,
66 F. Supp. 2d 518, 522 (S.D.N.Y. 1999); Dousewicz v. Harris, 646 F.2d 771, 773 (2d

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Cir. 1981) (“In its deliberations the District Court should consider the fact that the Social
Security Act is a remedial statute to be broadly construed and liberally applied.”).
Analysis
Richardson argues that the ALJ erred by: (1) rejecting the opinions of Timothy
Tanner, M.D., Richardson’s treating physician; and (2) finding that his subjective
complaints of pain were not credible. The Commissioner asserts that the ALJ’s decision
is supported by substantial evidence and complies with applicable legal standards.
I. The ALJ’s Decision to Give Minimal Weight to Dr. Tanner’s Medical Source
Statement Is Supported by Substantial Evidence.
Richardson first argues that the ALJ erred by rejecting the opinions of Dr. Tanner.
Specifically, he contends that the ALJ should have credited Dr. Tanner’s Medical Source
Statement of Ability to Do Work-Related Activities, which opined that Richardson
cannot perform even sedentary work. (AR 497-502.)
The “treating physician rule” provides that the ALJ must give a treating
physician’s opinion as to the claimant’s disability “controlling weight,” so long as that
opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the] case
record.” 20 C.F.R. § 404.1527(d)(2); see Green-Younger v. Barnhart, 335 F.3d 99, 106
(2d Cir. 2003); SSR 96-2p, 1996 WL 374188, at *1 (S.S.A. July 2, 1996). Conversely, a
treating physician’s opinion is not controlling where it is contrary to other substantial
evidence in the record, including the opinions of other medical experts. Halloran v.
Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). Where conflicts arise in the form of
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contradictory medical evidence, their resolution is properly entrusted to the
Commissioner. Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). When a treating
physician’s opinion is not given controlling weight, the opinion is still entitled to some
weight, given that such physician “[is] likely to be the medical professional[ ] most able
to provide a detailed, longitudinal picture of [the claimant’s] medical impairment(s) and
may bring a unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.” 20 C.F.R. § 404.1527(d)(2).
Under the Commissioner’s regulations, the ALJ must consider the following
factors when assigning weight to the opinion of a treating source: “(1) the length of the
treatment relationship and the frequency of examination; (2) the nature and extent of the
treatment relationship; (3) whether the treating physician presents relevant evidence to
support an opinion, particularly medical signs and laboratory findings; (4) whether the
treating physician’s opinion is consistent with the record as a whole; (5) whether the
treating physician is a specialist in the area relating to her opinion; and (6) other factors
which tend to support or contradict the opinion.” Richardson v. Barnhart, 443 F. Supp.
2d 411, 417 (W.D.N.Y. 2006) (citing Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000));
20 C.F.R. § 404.1527(d)(2)-(6)); see Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993)
(holding that, in deciding what weight to accord to medical opinions, the ALJ may
consider a variety of factors, including “[t]he duration of a patient-physician relationship,

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the reasoning accompanying the opinion, the opinion’s consistency with other evidence,
and the physician’s specialization or lack thereof”).
The treating physician rule does not require the ALJ to give controlling weight to
Dr. Tanner’s opinions because Dr. Tanner identified no particular medical or clinical
findings in support of his opinions, other than to state that Richardson’s pain is
“provoked by use of arms” and that he has “loss of feeling” in his feet. (AR 499.)
Moreover, the Court agrees with the ALJ’s finding that Dr. Tanner’s opinions with
respect to Richardson’s functional limitations “are not consistent with the evidence on
record and with the claimant’s reported activities of daily living.” (AR 42.) For
example, Dr. Tanner opined that Richardson could sit for a total of twenty minutes, stand
for a total of ten to fifteen minutes, and walk for a total of five minutes during an eighthour work day. (AR 498.) By contrast, Richardson reported that his ability to stand,
walk, and sit “depends on pain.” (AR 213.)
According to Dr. Tanner, Richardson needed a cane to walk and could walk for
only fifteen feet without a cane (AR 498), whereas Richardson reported that he can walk
25-50 yards before needing to rest (AR 213). Dr. Tanner’s statement further provided
that Richardson could only occasionally reach, handle, and finger things with his hands.
(AR 499.) By contrast, Richardson did not state in his Function Report that his
impairments limited his ability to use his hands at all. (AR 213.) With respect to
Richardson’s activities, Dr. Tanner stated that Richardson is unable to perform activities

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such as shopping. (AR 502.) Richardson, however, reported that he can shop for
groceries. (AR 185.)
Richardson’s assertions that the ALJ cannot choose to credit the opinions of a nontreating physician over those of Dr. Tanner is without merit. A state agency physician’s
opinion may constitute substantial evidence in support of the ALJ’s decision. SantosSanchez v. Astrue, 723 F. Supp. 2d 630, 638 (S.D.N.Y. 2010) (finding no error in ALJ’s
reliance upon state agency consultant’s opinion); Babcock v. Barnhart, 412 F. Supp. 2d
274, 280 (W.D.N.Y. 2006) (“State agency physicians are qualified as experts in the
evaluation of medical issues in disability claims. As such their opinions may constitute
substantial evidence if they are consistent with the record as a whole.” (quotation
omitted)). Accordingly, the ALJ did not err in crediting state agency consultant Dr. Ann
Fingar’s opinions that Richardson could walk or stand for two hours and sit for six hours
in an eight-hour work day and that he could lift twenty pounds occasionally and ten
pounds frequently. (AR 449.)
Further, contrary to Richardson’s argument, the ALJ did not mischaracterize
Richardson’s reported activities of daily living. The ALJ found that Richardson
“reported that he was able to make simple meals, walk his dog, care for his children,
and . . . . help his wife with some housework.” (AR 41.) The ALJ’s statement is an
accurate representation of statements made by Richardson in his Function Report.
Specifically, Richardson wrote that he can “prepare simple sandwiches.” (AR 210.) And
in response to the question “what do you do for [your pets]?,” Richardson wrote, “[t]ake
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[the] dog out for [a] walk.” (AR 209.) Richardson also wrote that he can “make lunch
for [his sons]” (AR 183) and “fold laundry” (AR 184).
II.

The ALJ’s Determination That Richardson’s Complaints of Pain
Were Not Credible Is Supported by Substantial Evidence.
Richardson next argues that the ALJ erred in his credibility determination.

Specifically, Richardson contends that the ALJ failed to consider the entire record. He
points to evidence that he contends is inconsistent with the evidence cited by the ALJ in
support of his conclusion that Richardson was not credible.
SSR 96-7p sets forth the evidence that the ALJ must consider in assessing the
credibility of a claimant’s statements about his or her symptoms. SSR 96-7p, 1996 WL
374186, at *1 (S.S.A. July 2, 1996). This ruling states:
In determining the credibility of the individual’s statements, the adjudicator
must consider the entire case record, including the objective medical
evidence, the individual’s own statements about symptoms, statements and
other information provided by treating or examining physicians or
psychologists and other persons about the symptoms and how they affect
the individual, and any other relevant evidence in the case record.
Id. The ruling further provides that the ALJ’s credibility determination “must contain
specific reasons for the finding on credibility, supported by the evidence in the case
record, and must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s statements and
the reasons for that weight.” Id. at *2.
Additionally, when determining a claimant’s RFC, the ALJ is required to take the
claimant’s reports of pain and other limitations into account. 20 C.F.R. § 416.929; see
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McLaughlin v. Sec’y of Health, Educ. & Welfare, 612 F.2d 701, 704-05 (2d Cir. 1980).
But the ALJ is not required to accept the claimant’s subjective complaints without
question; in fact, the ALJ may exercise discretion in weighing the credibility of the
claimant’s testimony in light of the other evidence in the record. Marcus v. Califano, 615
F.2d 23, 27 (2d Cir. 1979). It is the province of the Commissioner, not the reviewing
court, to “appraise the credibility of witnesses, including the claimant.” Aponte v. Sec’y
of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984). If the Commissioner’s
findings are supported by substantial evidence, the court must uphold the ALJ’s decision
to discount a claimant’s subjective complaints. Id. (citing McLaughlin, 612 F.2d at 704).
Richardson references specific evidence in the record which he claims documents
occasions on which he reported significant pain to his treating physicians. (AR 269, 275,
279, 282, 290, 308, 397-98, 401, 404, 465.) Many of these records, however, do not
provide clinical findings or objective observations consistent with his complaints. For
example, Richardson argues that the ALJ failed to consider Dr. Tanner’s January 8, 2009
note which states “[S]ince his last visit, pain has changed in quality. Now experiences
episodically sharp shooting pains that radiate down right leg with sciatic distribution.”
(AR 308.) Objective clinical signs recorded during the same visit, however, provided
that:
Examination of the back reveals no obvious deformity, edema, or
ecchymosis. With palpation pt is quite point tender directly overlying
lowest most lumbar to sacral spinal regions. Lesser into paravertebral
musculature. No obvious spasm. . . . Appears to be neurovascularly intact
to lower extremities grossly. Straight leg raise negative.
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(Id.) A March 2, 2009 MRI revealed “no evidence of disc herniation, . . . [m]ild bilateral
neural foraminal narrowing at L4-5,” “[s]light narrowing of the spinal canal on the lateral
recess at L5,” and “[f]acet hypertrophy at L4-5.” (AR 397.) Melynda Wallace, M.D.
reviewed the March MRI with Richardson on April 21, 2009 and noted on that day that
Richardson’s heel-toe walking was intact and his gait was “[i]intact, mildly antalgic.”
(AR 397-98.) Dr. Wallace further noted no Hoffmann’s sign.2 (AR 398.) Although
Richardson reported increased pain levels to Dr. Tanner on May 7, 2009, a bone scan
yielded normal results. (AR 282.)
In addition, Richardson did not always report disabling levels of pain to his
treating physicians. On February 4, 2009, Richardson sought treatment for a cough with
nasal congestion and reportedly had on that occasion “[n]o significant musculoskeletal
aches or pains.” (AR 304.) On May 14, 2009, Richardson reported to Dr. Tanner that his
medications were providing him with “moderate relief.” (AR 279.) On June 4, 2009, Dr.
Tanner’s notes reflected that Richardson’s symptoms were apparently “stable” as a result
of his prescription regimen. (AR 275.) On July 2, 2009, Richardson was reportedly
“doing fairly well.” (AR 269.) In any event, “disability requires more than mere
inability to work without pain. To be disabling, pain must be so severe, by itself or in
conjunction with other impairments, as to preclude any substantial gainful employment.”
Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983).

2
“Hoffman’s sign is present if tapping the nail on the third or fourth finger elicits involuntary
flexion of the distal phalanx of the thumb and index finger,” which indicates spinal cord compression.
Dale v. Astrue, No. 4:10-CV-632 (CEJ), 2011 WL 2621539, at *3 n.3 (E.D. Mo. July 5, 2011) (citing THE
MERCK MANUAL OF DIAGNOSIS AND THERAPY 325 (18th ed. 2006)).

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Richardson correctly notes that the ALJ failed to acknowledge that he did report
some numbness to his providers on specific occasions. (See, e.g., AR 446.) In addition,
treatment notes from Dr. Wallace on October 9, 2009 stated that Richardson had a
“clearly antalgic gait” (AR 447), and on December 23, 2009, he was similarly noted to
have a “severely antalgic gait” (AR 465). These records alone, however, do not establish
that the ALJ’s credibility determination was erroneous. When a reviewing court finds
substantial evidence to support the Commissioner’s final decision, that decision must be
upheld, even if substantial evidence supporting the claimant’s position also exists. Alston
v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990); DeChirico v. Callahan, 134 F.3d 1177,
1182-83 (2d Cir. 1998). The ALJ noted and discussed many of the records described
above. (AR 41-42.) Thus, the Court finds that the ALJ’s determination is supported by
substantial evidence and that he gave good reasons in support of his decision that
Richardson was not credible.
Richardson’s claim that the ALJ failed to consider all of his activities of daily
living is also without merit. As noted above, the ALJ considered Richardson’s reported
daily activities as set forth by Richardson in his Function Reports and did not unfairly
characterize Richardson’s statements. Cf. Genier v. Astrue, 606 F.3d 46, 49-50 (2d Cir.
2010) (reversing and remanding where the evidence showed that the ALJ’s credibility
determination “was based on so serious a misunderstanding of Genier’s statements that it
cannot be deemed to have complied with the requirement that they be taken into
account”).
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While Richardson points to other evidence in the record tending to support his
assertions, the ALJ need not give identical weight to all the evidence regarding a
claimant’s subjective complaints of pain. See Parker v. Harris, 626 F.2d 225, 231 (2d
Cir. 1980). Rather, the ALJ must ultimately resolve evidentiary conflicts and appraise
the credibility of witnesses, including the claimant, see Carroll v. Comm’r of Health and
Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); and the Court must sustain the ALJ’s
decision as to credibility if it is supported by substantial evidence, even if there is
substantial evidence to support the claimant’s position, see Schauer v. Schweiker, 675
F.2d 55, 57-60 (2d Cir. 1982). Here, there is substantial evidence supporting the ALJ’s
determination that Richardson’s subjective complaints were not entirely credible. The
ALJ applied the correct legal standard in assessing Richardson’s credibility, and, given
the contradictory evidence, the ALJ was justified in refusing to accept his statements
regarding the intensity, persistence, and limiting effects of his impairments.
Conclusion
For the reasons stated above, Richardson’s motion for an order reversing the
decision and remanding for further proceedings (Doc. 5) is DENIED, and the
Commissioner’s motion for an order affirming such decision (Doc. 7) is GRANTED.

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Dated at Burlington, in the District of Vermont, this 11th day of August, 2011.

/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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