Lynch v. Commissioner of Social Security

Filing 23

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION: The Court ADOPTS Magistrate Judge Kaull's 20 R&R in its entirety and DENIES the 16 Motion to Permit Further Memorandum in Support of Motion to Reverse and Remand to Consider E ven More Additional Medical Records, and Memorandum Itself and DENIES the 18 Second Motion to Permit Further Memorandum in Support of Motion to Reverse and Remand to Consider EvenMore Additional Medical Records, and Memorandum Itself; DENIES the Co mmissioners Motion for Summary Judgment 10 ;GRANTS-IN-PART plaintiff's motion for Summary Judgment 9 ; and REMANDS this case for consideration pursuant to the recommendations contained in the magistrate judge's Report and Recommendation. The Court DISMISSES this case WITH PREJUDICE and DIRECTS the Clerk to strike it from the docket of this Court.It is to ORDERED. Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk ofCourt to enter a separate judgment order. Signed by District Judge Irene M. Keeley on 3/30/12. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JEFFREY HOWARD LYNCH,
Plaintiff,

v.

CIVIL ACTION NO. 1:10CV210
(Judge Keeley)

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
On December 22, 2010, the Court referred this Social Security
action to United States Magistrate John S. Kaull with directions to
submit

proposed

findings

of

fact

and

a

recommendation

for

disposition. On October 31, 2011, Magistrate Judge Kaull filed his
Report and Recommendation (“R&R”) (Dkt. No. 1), in which he
recommended

that

the

Court

remand

this

case

for

further

proceedings. He also directed the parties, in accordance with 28
U.S.C. § 636(b)(1) and Fed. R. Civ. P. 6(e), to file any written
objections with the Clerk of Court within fourteen (14) days after
being served with a copy of the R&R. On November 14, 2011, the
Commissioner filed objections to the R&R (dkt. no. 21). Also, on
November 14, 2011, the plaintiff, Jeffrey Howard Lynch (“Lynch”),
through

his

attorney,

Timothy

F.

Cogan

(“Cogan”),

filed

his

LYNCH V. COMMISSIONER OF SOCIAL SECURITY

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
response to the Commissioner’s objections, as well as his own
objections to the R&R (Dkt. No. 22).
I.

PROCEDURAL BACKGROUND

On July 14, 2008, Lynch filed applications for Disability
Insurance

Benefits

(“DIB”)

and

Supplemental

Security

Income

(“SSI”), alleging disability beginning April 25, 2008, due to a
double cerebellum stroke that resulted in blurred vision, bad
balance,

vertigo,

and

thin

blood.

(Tr.

105,

108,

137).

On

September 23, 2008, the Commissioner denied both applications
initially, and on November 7, 2008 denied both applications on
reconsideration (Tr. 57, 62, 68, 71). After Lynch requested a
hearing, an Administrative Law Judge (“ALJ”) conducted a hearing on
January

11,

2010,

at

which

Lynch

appeared

with

counsel

and

testified. (Tr. 26).
On April 15, 2010, the ALJ determined that Lynch was not
disabled (Tr. 24). On October 29, 2010, the Appeals Council denied
Lynch’s request for review (Tr. 1). On December 22, 2010, Lynch
timely filed this action seeking review of the final decision.
(Dkt. No. 1).

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II.

PLAINTIFF'S BACKGROUND

On April 25, 2008, the alleged disability onset date, Lynch
was 38 years old, and 48 years old at the time of the ALJ’s
decision. (Tr. 24). He has an eleventh grade education and can
communicate in English. His employment history includes work as a
truck driver for 13 years. (Tr. 145).
III.
Utilizing
prescribed

in

ADMINISTRATIVE FINDINGS

the

five-step

sequential

the

Commissioner’s

evaluation

regulations

at

20

§§ 404.1520, the ALJ made the following findings:
1.

Lynch met the insured status requirements of
the Social Security Act through December 31,
2013;

2.

Lynch has not engaged in substantial gainful
activity since April 25, 2008, the alleged
onset date (20 CFR 404.1571 et seq., and
416.971 et seq.);

3.

Lynch has the following severe impairments:
status
post
bilateral
cerebellar
cerebrovascular accident with sensation, gait
and balance residuals (20 CFR 404.1520(c) and
416.920(c)) that, alone or in combination, do
not meet or medically equal one of the listed
impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926);

4.

Lynch retains the residual functional capacity
to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) with certain
3

process
C.F.R.

LYNCH V. COMMISSIONER OF SOCIAL SECURITY
ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
modifications that include: a sit/stand
option, no balancing or climbing of ladders,
ropes
and
scaffolds,
no
exposure
to
temperature
extremes
of
hot
and
cold,
including items that are handled, no exposure
to workplace hazards such as dangerous moving
machinery or unprotected heights, should
perform work that requires mostly gross
manipulation
and
only
minimal
fine
manipulation, be permitted to ambulate with a
cane for balance purposes, and is limited to
unskilled
work
involving
routine
and
repetitive instructions and tasks;
5.

Lynch is unable to perform any past relevant
work (20 CFR 404.1565 and 416.965);

6.

Lynch was born on March 11, 1970 and was 38
years old on the alleged disability onset date
and is considered to be a younger individual,
(20 CFR 404.1563 and 416.963);

7.

Lynch has at least a high school education and
is able to communicate in English (20 CFR
404.1564 and 416.964);

8.

Transferability of job skills is not material
to the determination of disability because
using the Medical-Vocational Rules as a
framework supports a finding that Lynch is
“not disabled,” whether or not he has
transferable job skills (See SSR 82-41 and 20
CFR Part 404, Subpart P, Appendix 2);

9.

Considering Lynch’s age, education, work
experience, and residual functional capacity,
there are jobs that exist in significant
number in the national economy that the
claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)); and

4

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
10.

Lynch has not been under a disability, as
defined in the Social Security Act, from April
25, 2008, through the date of this decision(20
CFR 404.1520(g) and 416.920(g)).

(Tr. 12-24).
IV.

COMMISSIONER'S OBJECTIONS

In his objections to the magistrate judge’s recommendation to
remand the case, the Commissioner contends that the ALJ adequately
considered all of Lynch’s impairments prior to determining that his
impairments failed to meet or medically equal one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Relying
on Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir. 2004),

he

argues that remanding this matter is unnecessary because the ALJ’s
failure to characterize Lynch’s obesity and depression as severe
impairments at step two constitutes “harmless error” that would not
impact the ALJ’s ultimate decision.
The Commissioner also contends that Lynch did not allege a
disability due to obesity in his applications for DIB and SSI, or
at the hearing, or in his subsequent pleadings. He asserts that the
magistrate judge unilaterally found a diagnosis of obesity on which
he based his recommendation to remand this case. He further argues
that the record contains no evidence that Lynch’s obesity resulted

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in any functional limitations that were not already included in the
ALJ’s residual functional capacity assessment.
Finally, relying again on harmless error, the Commissioner
contends that inclusion of a non-severe mental impairment at step
two of the sequential analysis would not have altered the ALJ’s
ultimate conclusion that Lynch was not disabled. See

Lee v.

Sullivan, 945 F.2d 687, 693-94 (4th Cir. 1991).
V. PLAINTIFF’S OBJECTIONS
Lynch contends that the relevant medical evidence in the
record is incomplete and “at points just plain wrong.” He also
alleges that the ALJ erred by failing to consider additional
medical records pertaining to his documented diagnoses of obesity
and depression. Finally, he contends that, in his credibility
analysis, the ALJ erred by speculating about whether secondary gain
was a motivating factor for Lynch. He also argues that the
magistrate judge failed to find that the ALJ violated Hines v.
Barnhart, 453 F.3d 559 (4th Cir. 2006), citing Social Security
Ruling (SSR) 90-1p. (Dkt. No. 22 at 2).
VI.
1.

RELEVANT MEDICAL EVIDENCE

An April 24, 2008 emergency department report from Saint

Joseph Regional Medical Center (“SJRMC”), indicating that Lynch had

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complained of a severe headache for the last few days, with no
specific radiation, that the headache had worsened around 4 P.M.
that day, and that two to three hours prior to coming to the ER he
had experienced some numbness along the left corner of his mouth,
had become lightheaded and had begun sweating profusely. He denied
any weakness or numbness over his extremities, any difficulty in
speech, chest pain, shortness of breath or palpitation, abdominal
pain, nausea, vomiting or diarrhea. He was noted to be bradycardic
with a heart rate of 40-45.
Examination revealed a 38-year old male, 5'10" weight of 234
pounds,

in

acute

headache

distress

and

diaphoretic,

a

blood

pressure of 152/82, pulse 42, respirations 16, questionable left
sided facial droop, questionable left 7th nerve palsy, hypothermia
etiology

unclear

at

present

time,

and

otherwise

normal.

The

diagnosis was severe headache with a plan to rule out subarachnoid
hemorrhage and meningitis. The doctor transferred Lynch to another
hospital, where he was admitted (Tr. 191 - 199);
2.

An April 24, 2008 CT scan from SJRMC of the head,

revealing no acute intracranial abnormality, but possible sinusitis
(Tr. 200);

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3.

A May 4, 2008 discharge summary from Memorial Hospital of

South Bend (“MHSB”), indicating that Lynch reported a five day
history of a worsening headache, dizziness, double vision, and
difficulty with balance. Physical examination revealed that Lynch’s
heart rate was sinus bradycardia with a rate of 55, a blood
pressure of 132/88, pinpoint pupils, decreased sensation to the
left side of his face with mild ptosis, a left sided face drop,
poor finger-to-nose and rapid alternating movements, ataxic gait
with a predisposition to fall to the left (Tr. 215).
On admission, an MRI of the brain revealed a bioccipital
infarct1 (Tr. 215), and abrupt occlusion of both vertebral arteries
at the C1 level with possible mild filling defect of the basilar
artery.

Lynch

monitoring

was

and

admitted

to

evaluation.

the

Repeat

stroke
CT

unit

for

scans

further

during

his

hospitalization established persistent infarct but no worsening and
no

evidence

of

new

bleeds

or

hydrocephalus.

Lynch

underwent

physical therapy, speech therapy and occupational therapy.
neurologic

status

remained

stable.

1

He

developed

His

persistent

Areas of coagulation tissue death in both sides of the
posterior of the brain due to local ischemia resulting from
obstruction of circulation to those areas. Dorland’s Illustrated
Medical Dictionary, at 934 (32d ed. 2012).
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ORDER ADOPTING MAGISTRATE JUDGE'S
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hiccups, “likely secondary to his acute stroke,” which multiple
medications modestly improved.
He

was

discharged

to

a

rehabilitation

facility

with

instructions to use a walker at home to assist with balance and to
walk with assistance otherwise. A sleep study was recommended for
possible sleep apnea. He was not medically cleared to return to
work (Tr. 215-216);
4.

A May 7, 2008 report from Trinty Health System (“TMS”),

a rehabilitation facility, noting ataxia2 that affected both upper
and lower extremities (Tr. 277). Lynch was able to open his left
eye with less difficulty than he had the day before. He reported he
was sleeping and eating well and the numbness on his face was
improving. He reported continuing sharp, shooting pain causing
headache

in

C2

dermatonal

distribution,

although

diminished.

Examination indicted a 38 year old male with a pulse of 109,
respiration of 20 and a blood pressure of 144/78. Lynch was to
continue stroke rehabilitation program for bilateral cerebellar
cerebrovascular accident (Tr. 277);
5.

A May 8, 2008 report from TMH, reporting that

Lynch’s

headache had improved. He stated he would like to go home, feeling
2

Failure of muscular coordination; irregularity of muscular
action. Dorland’s, supra at 170.
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he could rest better there.
going

well.

Physical

He was eating well, and therapy was

examination

revealed

a

pulse

of

78,

respirations of 20, a blood pressure of 132/84 and a saturation
rate of 97% (Tr. 275);
6.

A May 9, 2008 report from TMH, indicating that Lynch’s

headache continued to improve (Tr. 274).

He still had pain in his

left neck, radiating to the left temporal area.
improving.

His vision was

He also reported decreased sleep, but had taken a four

hour nap after therapy the day before.
progressing well.

He was reported to be

Physical examination revealed a pulse of 80,

respirations 20, a blood pressure of 140/86 and a saturation rate
of 97% on room air (Tr. 274);
7.

A May 10, 2008 report from TMH, indicating Lynch had no

new issues.

He had a headache at a level 8 out of 10, but his

vision improved daily.

He was sleeping well and had gotten 7-8

hours sleep the night before. He was noted to be progressing well.
His headache continued to improve.

Physical examination revealed

pulse of 96, respirations 20, a blood pressure of 137/77 and a
saturation rate of 96% on room air (Tr. 272);
8.

A May 12, 2008 report from TMH, indicating that Lynch

continued to improve, although he did report he was agitated the

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
past weekend secondary to an argument with his girlfriend (Tr.
270).

He

required

a

sleeping

aid

and

anxiety

medication.

Otherwise, he was eating well and sleeping well. He also was noted
to be progressing well.

Although his headaches waxed and waned,

they were continuing to improve.

Physical examination revealed

pulse 85, respirations 20, a blood pressure of 132/81 and a
saturation rate of 98% on room air (Tr. 270);
9.

A May 13, 2008 discharge summary from TMH, indicating

that Lynch was eating and grooming at modified independence level,
bathing at supervision level, dressing and toileting at modified
independence
independence

level,
and

bladder

complete

management

independence,

between

bowel

modified

management

at

modified independence, transfer from bed, chair, wheelchair, tub
and shower all at supervision level, ambulation and stairs at
supervision level and he could ambulate greater than 150 feet,
comprehension, expression, social interaction, problem solving and
memory all at the modified independence level. Lynch was discharged
to his mothers’s home. His medications were Neurontin and Coumadin.
He was also to receive outpatient physical therapy and was issued
a standard walker (Tr. 279-80);

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10.
Weirton

A May 15, 2008 report from Summit Physical Therapy, Inc.
(“SPTIW”),

indicating

left

facial

numbness,

left

leg

weakness, right leg altered sensation, loss of coordination, poor
balance, and limited endurance.

He used a cane to walk and had an

apraxic gait3 with wide stance and decreased step length.

His

seated balance was good. He required help with balance if he stood
without using an assistive device. He could maintain feet together
position for 15 seconds with moderate sway.

His primary deficits

were in the areas of functional mobility and balance. (Tr. 318);
11.

A

May

16,

2008

report

from

SPTIW,

indicating

no

difficulty with the medication prescribed during his last visit,
although he did report the treatment caused fatigue (Tr. 317);
12.

A May 19, 2008 report from Riverside Medical of Ohio

(“RMO”), indicating that John N. Figel, M.D., saw Lynch for a
follow

up

appointment

following

his

discharge

from

the

rehabilitation center on May 15, 2008. He was on Coumadin therapy
and going through physical therapy. He had been feeling well and
doing well. He complained of residual weakness of the left side of

3

A disorder of
frontal lobe . . .
taking short steps
Dorland’s, supra at

gait and equilibrium caused by a lesion in the
. the person walks with a broad-based gait,
and placing the feet flat on the ground.
121.
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his face and some ptosis4 of his left eyelid. He had occasional
headaches. He complained of feeling very anxious and nervous.
Examination revealed a weight of 243, a blood pressure of 120/88,
a pulse of 72, respiration rate of 15, no clubbing, cyanosis or
edema of the extremities, some drooping of the left eyelid and some
mild left-sided residual weakness. Dr. Figel prescribed Xanax for
his anxiety (Tr. 258);
13.

A May 22, 2008 report from SPTIW, indicating increased

paresthesias along the right leg and arm and left side of his face
(Tr. 316);
14.

A May 23, 2008 report from SPTIW, indicating Lynch

reported having had little sleep over the last week due to right
leg paresthesias (Tr. 315);
15.

A May 29, 2008 report from SPTIW, indicating Lynch

reported improvement with ambulation and ascending and descending
stairs (Tr. 314);
16.

A May 30, 2008 report from SPTIW, indicating Lynch

reported improvement with ambulation, but difficulty sleeping (Tr.
313);

4

Prolapse or drooping of the upper eyelid. Dorland’s, supra
at 1551.
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17.
reported

A June 2, 2008 report from SPTIW, indicating Lynch
improvement

with

ambulation

but

continued

altered

sensation (Tr. 313);
18.

A June 5, 2008 report from SPTIW, indicating Lynch

reported overall fatigue and having hurt his neck the day before
while trying to change a tire (Tr. 311);
19.

A June 6, 2008 report from SPTIW, indicating Lynch

reported neck pain that apparently was causing headaches and
decreased sensation in his face (Tr. 310);
20.

A June 10, 2008 report from Dr. Figel, Lynch’s treating

physician, indicating that Lynch reported a feeling of numbness and
tingling over the right side of his body and the left side of his
face, as well as ongoing disequilibrium with some improvement since
his last visit. Lynch reported that Xanax had been helpful for his
anxiety, although he questioned whether he could use a little
higher dose. Examination revealed a weight of 246, a blood pressure
of 125/76, a pulse of 74, respirations of 18, a relatively equal
grasp bilaterally, and some decreased sensation to light touch over
his right arm and leg and left side of his face.

The diagnosis

remained bilateral cerebellar CVA, Coumadin therapy and anxiety.

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Dr. Figel continued the Coumadin, increased his Xanax, and
continued physical therapy (Tr. 257);
21.

A June 12, 2008 report from SPTIW, indicating that Lynch

reported decreased neck pain and improved balance with the problem
site being his upper and lower extremities (Tr. 308);
22.

A June 23, 2008 report from SPTIW, indicting significant

improvement in Lynch’s balance but his upper and lower extremities
remained a problem site (Tr. 305);
23.
old

A July 3, 2008 brain scan without contrast, indicating an

left

cerebellar

nonspecific

findings

infarct
in

the

with
left

associated
frontal

encephalomacia,

region

which

might

represent asymmetry or perhaps minimal manifestation of previous
peripheral branch infarct, and evidence of left maxillary sinusitis
(Tr. 287);
24.

A July 10, 2008 report from SPTIW, indicating that Lynch

tolerated his physical therapy well. The plan of treatment was for
endurance,

gait

training,

balance/coordination.

stability,

strengthening,

and

He stated he had steady improvement with

balance, but his upper and lower extremities remained a problem
site (Tr. 300);

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25.

A July 25, 2008 Application Summary for Supplemental

Security Income indicating that the SSA employee who conducted the
initial interview noted that Lynch had difficulty with standing and
walking and described his walk as “unsteady” (Tr. 134);
26.

A

September

22,

2008

Physical

Residual

Functional

Capacity Assessment (“RFC”), from Cindy Osborne, a State agency
reviewing physician, indicating that Lynch could occasionally lift
20 pounds, frequently lift 10 pounds, stand/walk about 6 hours in
an 8-hour workday, sit about 6 hours in an eight-hour workday,
could

never

climb

ladders,

ropes

or

scaffolds,

could

only

occasionally climb ramps and stairs, balance, stoop, or kneel, had
no

manipulative,

visual,

communicative

or

environmental

limitations, except to avoid all exposure to hazards. Dr. Osborne
noted Lynch still had some balance issues due to his stroke (Tr.
319-24).
Dr. Osborne concluded that Lynch was credible and that the
findings supported a light RFC with limitations as indicated (Tr.
324). He could walk two blocks and used a cane for balance as
needed.

She also noted that his physician stated his walk was

unsteady. She listed his daily activities as:
Watches TV, tries to take a short walk, sometimes gets
dizzy in tub, doesn’t need reminders, doesn’t prepare
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meals, doesn’t do any chores, visits friends and
relatives, difficulty lifting, squatting, completing
tasks, using hands, gets dizzy and loses his balance.
Can walk 2 blocks with 10 min rest, his left eye is half
shut due to loss of feeling – reason for difficulty
seeing, doesn’t go out alone or drive, has a cane and a
walker was prescribed when he got out of hospital. Uses
cane when he goes out.
(Tr. 324).
26.

A September 23, 2008 psychiatric review technique (“PRT”)

from Bob Marinelli, Ed.D., a state agency reviewing psychologist,
indicating that Lynch had an anxiety-related disorder that was not
severe. Lynch had only a mild degree of limitation in activities of
daily

living,

maintaining

social

functioning,

maintaining

concentration, and persistence, or pace, and has had no episodes of
decompensation of extended duration (Tr. 327-37). Marinelli noted
Lynch’s medication as Alprazolam for anxiety and Sertraline for
depression and further noted that Lynch was not receiving any
psychiatric

treatment.

Lynch

reported

that

he

“did

not

have

problems with anxiety and depression before his physical problems
started.” Marinelli stated Lynch appeared credible (Tr. 339).

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27.

A March 23, 2009 MRI report of the head and brain from

Trinity West, indicating chronic5 focal encephalomalacia6 of the
left lateral cerebellar lobe, consistent with chronic ischemic
infarct,7 with no associated focal edema, mass effect or abnormal
contrast

enhancement,

and

hypoplastic8

vertebral

and

basilar

artery. He had a normal angiogram of the intracranial and internal
carotid

circulation,

but

diffusely

hypoplastic

vertebral

and

basilar artery, and with absence of left superior cerebellar
artery. The impression noted normal angiogram of the intracranial
and

internal

carotid

circulation

and

diffusely

hypoplastic

vertebral and basilar artery absence of left superior cerebellar
artery (Tr. 363);

5

Chronic–persisting over a long period of time.
supra at 358.
6

Softening of the brain, especially
infarct. Dorland’s, supra at 621.

that

Dorland’s,

caused

by

an

7

An area of coagulation necrosis in tissue due to local
ischemia resulting from obstruction of circulation to the area.
Condition of the brain producing local tissue death and usually a
persistent focal neurological deficit in the area of distribution
of one of the cerebral arteries. Dorland’s, supra at 934.
8

Incomplete development or underdevelopment of an organ or
tissue; less severe in degree than aplastic. Dorland’s, supra at
917.
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28.

A March 24, 2009 report from Viorica M. Crisan, M.D., an

endocrinologist
evaluation

of

at

The

abnormal

Endocrinology
testosterone

Clinic,

levels.

indicating

Lynch

an

reported

a

history of a cerebellar stroke in April 2008 of unclear cause.
Examination revealed a 5'10" male, weight of 280 pounds,9 reported
fatigue, weight gain, dizziness, and lightheadedness, poor sleep,
headaches,

shortness of breath with wheezing, muscle weakness and

gait disturbance, no anxiety, no blurry vision, and no memory
impairment. Dr. Crisan diagnosed abnormal endocrine function study,
impaired fasting glucose, impotence, and obesity (Tr. 344);
29.

An April 13, 2009 report from Dr. Crisan regarding a

follow up appointment for evaluation of hypogonadism.

Examination

and testing revealed no changes from previous visit, an evaluation
by Dr. Parther, a urologist, indicating a normal rectal exam and
testicular ultrasound (Tr. 345);
30.

A May 22, 2009 report from Dr. Deol, Lynch’s treating

psychiatrist,

indicating

that

Lynch

was

having

difficulties

adjusting to his disability and problems with his girlfriend. Lynch
reported his mother lived across the street and his father was

9

Lynch’s weight when admitted to the hospital 11 months
earlier was 234 pounds.
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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
bedfast. Dr. Deol diagnosed central sleep apnea, increased the
dosage of Wellbutrin10 and referred Lynch to a therapist11 (Tr. 371);
31.

A July 26, 2009 report from Dr. Deol, indicating that

Lynch complained of being irritable because he was not working and
having no desire and no motivation at all.
Lynch

had

unrealistic

expectation

from

Dr. Deol noted that
medications,

was

not

adjusting to his disability, had financial problems, and was still
having

problems

with

balance.

He

did

not

recommend

neuropsychological testing because Lynch’s state medical card would
not pay for it.12

Dr. Deol continued the Wellbutrin and prescribed

Paxil13 (Tr. 372);
32.

An October 2, 2009 report from Dr. Deol, indicating that

Lynch complained of feelings of rage and being ready to explode and
that everyone “pissed him off.” He reported that Dr. Figel had

10

Trade name for a monocyclic compound structurally similar
to amphetamine, used as an antidepressant. Dorland’s supra at 265.
11

The record does not contain a report from a therapist, even
though Lynch testified he saw a therapist named “Wendy.”
12

The record does not contain a referral by any health care
provider, including Dr. Deol, for, or suggesting that Lynch have,
neuropsychological testing.
13

Trade name for a selective serotonin reuptake inhibitor
[“SSRI”] used to treat depressive, obsessive-compulsive, panic, and
social anxiety disorders. Dorland’s, supra at 1405.
20

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prescribed Remeron14 that Lynch reported was not helping.

Dr. Deol

discontinued the Wellbutrin and Paxil and prescribed Depakote15 (Tr.
373);
33.

A November 6, 2009 record from Dr. Deol, indicating that

Lynch reported that the Depakote was helping with his temper and
impulsivity and that he was also trying to walk.

Dr. Deol

increased his Depakote (Tr. 374); and
34.

A December 3, 2009 report from Dr. Crisan, indicating

that she had instructed Lynch about how to administer testosterone
injections.

Lynch

had

a

diagnosis

of

hypogonadism,

diabetes

controlled, without complications, abnormal thyroid function and
obesity (Tr. 349);
35.

A December 18, 2009 report from Dr. Deol, indicting that

Lynch reported he had a court hearing for disability. He also
reported that he was frustrated and afraid he was going to snap.

14

Trade name for an antidepressant. Used to treat depression
and major depressive disorder. Dorland’s supra at 1186.
15

Trade name for a compound used in the treatment of manic
episodes associated with bipolar disorder. Dorland’s, supra at
565.
21

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
His medications included Lyrica,16 Coumadin, testosterone, Depakote,
and Klonopin17 (Tr. 375).
VII. DISCUSSION
A.

Plaintiff’s Motion to Permit Further Memorandum in Support of
Motion to Reverse and Remand to Consideration Even More
Additional Medical Records, and Memorandum Itself (Dkt. No.
16)
In his R&R, Magistrate Judge Kaull recommended that the Court

deny Lynch’s “Motion to Permit Further Memorandum in Support of
Motion to Reverse and Remand to Consider Even More Additional
Medical Records, and Memorandum Itself” (dkt. no. 16).
On April 15, 2010, Lynch and his then counsel, Sharon Bogarad,
received the ALJ’s opinion, which notified them that they had 60
days to appeal the unfavorable decision to the Appeals Council. By
letter dated May 4, 2010, signed by “Ms. Elo, a paralegal,” Ms.
Bogarad notified the Social Security Administration (“SSA”) that
Lynch wished to appeal the decision. The letter also stated that
“. . . my office has not handled a Social Security matter beyond
this point and I do not feel comfortable starting with Mr. Lynch’s

16

Trade name for an anticonvulsant, antinociceptive, used in
the treatment of neuropathic pain. Dorland’s, supra at 1531.
17

Trade name for a benzodiazepine used as an anticonvulsant
and as an antipanic agent in the treatment of panic disorders.
Dorland’s, supra at 379.
22

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case. I have informed him in person and in writing that I will not
be representing him any further.” (Dkt. No. 20 at 16). Importantly,
this letter never requested an enlargement of time to file the
appeal, nor did it note that any evidence was missing from the
record, or request permission to submit further evidence. Id.
On

May

13,

2010,

Lynch’s

second

attorney

wrote

to

SSA

requesting a review of the hearing decision. Id. at 17. He never
noted that any evidence was missing from the administrative record,
nor did he request additional time to review the decision and
evidence or to submit additional evidence or argument to the
Appeals Council. Id. On October 29, 2010, the Appeals Council
denied Lynch’s request for review, stating it found no reason to
overturn the ALJ’s decision. (Tr. 1).
On

December

22,

2010,

Cogan,

Lynch’s

third

and

current

counsel, timely filed this action seeking review of the final
decision

of

the

Commissioner.

The

Commissioner

answered

on

February 14, 2011, and also filed the transcript of this case,
certifying “that the documents annexed hereto constitute a full and
accurate transcript of the entire record of proceedings relating to
this case.” (Dkt. No. 20 at 17).

On March 20, 2011, Cogan filed a

“Statement of Errors” (Dkt. No. 9) and, in a footnote, advised:

23

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Plaintiff’s attorney did not handle this case at the
hearing. He received a description of evidence of
evidence [sic] ,e.g., physician examinations, that he
cannot find in the record. Plaintiff’s attorney has
attached an appendix indicating evidence that previous
counsel’s office suggested was in the record but which
current counsel cannot find.
Id. at 4 n.1.
Attached to Cogan’s Statement of Errors was an “Appendix
Regarding Missing Documents,” which stated that Ms. Bogarad’s
office had advised that the missing medical evidence listed in the
appendix “would have been submitted” to the SSA at Attachment No.
1. Cogan also noted in the Appendix that the records supplied by
Ms.

Bogarad’s

office

“seem

much

fewer

in

number

than

those

referenced in the brief yet previous counsel’s office states that
nothing was mentioned in its brief that was not submitted to Social
Security.” Id. at Appendix 1.
The magistrate judge noted that the Appendix attached to
Lynch’s

Statement

of

Reasons

included

the

office

note

following

medical

records:
1.

An

October

17,

2008

from

Dr.

Figel,

indicating that Lynch complained that the “right side of body still
feels funny and left side of head feels numb,” and that he bad
headaches, a lot of heartburn, and trouble hearing in his left ear.

24

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REPORT AND RECOMMENDATION
Dr.

Figel

depression.

diagnosed

CVA,

disequilibrium,

paresthesis,

and

He listed Lynch’s current medications as Elavil and

Lyrica;
2.

A

November

21,

2008

office

note

from

Dr.

Figel,

indicating that Lynch complained of being very depressed, that his
lips went numb, that the left side of his face was still numb, and
he had shooting pain in his left eye. Lynch reported that he had
stopped taking all of his medications and had not had any lab work.
Dr. Figel diagnosed CVA, disequilibrium, and depression and stated
he would arrange an appointment with the Federal Clinic in Weirton;
3.

A

January

16,

2009,

office

note

from

Dr.

Figel,

indicating that Lynch reported his head “felt messed up today,”
that he felt pressure in his left ear, had been short of breath at
times, and was having problems with erectile dysfunction.

Dr.

Figel diagnosed CVA, sinusitis, and ED. Dr. Figel prescribed
Oxycodone;
4.

A

February

19,

2009

office

note

indicating that Lynch complained of bloody

from

Dr.

Figel,

noses and headaches

that woke him up and felt like a sharp pain through his eyes. He
reported the

Oxycodone did not help at all and the Percocet took

the edge off but did not last long. Dr. Figel diagnosed CVA,

25

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REPORT AND RECOMMENDATION
headaches, depression, and sinusitis. He recommended an appointment
with Dr. Deol and a second opinion from neurology;
5.
that

A March 10, 2009 office note from Dr. Figel, indicating

Lynch

complained

of

continuing

daily

headaches,

which

Oxycodone, Percocet and Fioricet did not help. He reported seeing
Dr. Deol, who stopped the Zoloft and prescribed Lexapro. Dr. Figel
stated that Lynch was overall about the same, still depressed and
anxious. Physical examination revealed a weight of 280 pounds, a
blood pressure 122/81, pulse of 74, respirations 18, a supple neck
with no lymphadenopathy, thyromegaly or bruit noted, a regular
heart

rate

and

rhythm,

soft

nontender

abdomen,

no

clubbing,

cyanosis or edema in his extremities, peripheral pulses of 2+
bilaterally, and noted that, neurologically, Lynch has some left
sided residual weakness. Dr. Figel diagnosed Bilateral Cerebellar
CVA, headaches, depression, and onychomycosis.

He recommended a

lipid profile, SGPT, SGOT, GGT, chem 6, CBC, fasting blood sugar,
thyroid function studies and continuation of follow up with Dr.
Malik. He prescribed Ultram ER 100 mg tablets 1po qd and an
appointment in one month;
6.

An April 28, 2009 office note from Dr. Figel, indicating

that Lynch complained of “areas” on his right arm and toenail

26

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
fungus.

Dr.

Figel

diagnosed

Cerebellar

CVA,

Sleep

Apnea,

depression, onychomycosis, and hyperlipidemia. He noted that Lynch
had a physical for Medicaid. He prescribed Duricef, Lamisil and
SGPT, SGOT, 1 month; and
7.

A June 9, 2009 office note from Dr. Figel, indicating

that Lynch had a sleep study done which was remarkable for sleep
apnea and is attempting to use a CPAP. He still complained of some
intermittent headache and vague sensations on the right side at
times. He has chronic dysequilibrium and is anxious and depressed.
Dr. Figel diagnosed history of Cerebellar CVA, depression, sleep
apnea, tinea pedis, and positive stressors. Dr. Figel stated that,
even though more than one year had passed since the stroke, Lynch
had not regained the capacity to work at his previous job and, in
Dr. Figel’s opinion, did not have the capacity for full-time
employment.18

Dr. Figel continued Lynch’s medications and directed

him to follow up in three months.
On April 28, 2011, the Commissioner filed his Motion for
Summary Judgment, which argued that “[r]emand is not required to

18

This is the document that was not in
that the ALJ specifically referenced when
though Lynch testified “Dr. Figel told him
not go back to truck driving at that time,”
the record to support his statement.
27

the certified record,
he stated that, even
in June that he could
the is no evidence in

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ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
consider

Plaintiff’s

Appendix,

new

evidence,

or

extra-record

evidence.” (Dkt. No. 10). The Commissioner contended that none of
the evidence submitted by Lynch could provide a basis for remand
pursuant to sentence six of § 405(g), unless the evidence was new,
material, and there was good cause for the failure to incorporate
it into the record at a prior hearing.
On May 5, 2011, Lynch filed his reply to the motion for
summary judgment. (Dkt. No. 12). Also citing to 42 U.S.C. § 405(g),
sentence six, he argued that the evidence submitted in the Appendix
was new, material, not cumulative, and that good cause existed for
its not having been submitted at the administrative level. Id. He
contended that prior counsel “obviously thought that the material
had been submitted” based on her reference to it in her pre-hearing
brief, and obviously would not have prepared the brief had she not
intended to submit it. Id. Lynch asserted that the “most likely
possibility” was that the material had been properly submitted, but
that the SSA had lost it and therefore failed to include it in the
record. Id.
Lynch further contended that Ms. Elo’s affidavit established
her “distinct recollection” that she either submitted the evidence
via fax prior to, or personally

delivered it on, the date of the

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hearing. Ms. Elo averred that she distinctly recalled drafting the
pre-hearing memorandum and submitting it “via fax prior to the date
of the hearing and/or personal submission on the date of the
hearing.” Id.
Nevertheless, the magistrate judge noted that the record
contained none of this material. Nor were there any cover sheets
reflecting

that

these

faxes

were

confirmed

as

received.

He

therefore rejected Lynch’s explanation, finding that it “was at
least as likely that the materials were never submitted (due,
possibly to failure of the faxes to go through), as it is the SSA
simply “lost” the documents. Id. at 21.
A reviewing court may remand a Social Security case on the
basis

of

newly

discovered

evidence

if

the

following

four

prerequisites are met:
1)

The evidence must be "relevant to the determination of
disability at the time the application was first filed
and not merely cumulative." Mitchell v. Schweiker, 699
F.2d 185, 188 (4th Cir. 1983);

2)

It must be material to the extent that the Secretary's
decision "might reasonably have been different" had the
new evidence been before her. King v. Califano, 599 F.2d

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597, 599 (4th Cir. 1979); Sims v. Harris, 631 F.2d 26, 28
(4th Cir. 1980);
3)

There must be good cause for the claimant's failure to
submit

the

evidence

when

the

claim

was

before

the

Secretary. 42 U.S.C. § 405(g); and
4)

The claimant must present to the remanding court "at
least a general showing of the nature" of the new
evidence. King, 599 F.2d at 599; Borders v. Heckler, 777
F.2d 954 (4th Cir. 1985).

The magistrate judge determined that Lynch had only satisfied
three of these prerequisites, finding that the evidence 1) was
clearly relevant to the determination of disability at the time
Lynch filed his application, 2) was not cumulative of other
evidence in the record, and 3) was material because the ALJ
specifically based his negative decision in large part on the lack
of medical records and the fact that the record did not support
Lynch’s testimony that his doctor had told him he could not work.
(Dkt. No. 20 at 21). He also acknowledged that, by submitting the
actual records to the court, Lynch had established the nature of
the new evidence.

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Despite having satisfied three of the required prerequisites,
according to the magistrate judge, Lynch failed to show good cause
for not submitting the evidence when the claim was before the
Commissioner. During the January 11, 2010 hearing, the ALJ
specifically asked Lynch’s prior counsel if she objected to the
exhibits, at which time she stated that she did not.

Moreover, at

the end of the hearing, counsel requested an additional 45 days to
obtain additional records from future doctor visits, but not for
“missing” records. Id. at 21-22.
Based on all this, the magistrate judge observed that anyone
with knowledge of the evidence in the case should have recognized
that relevant medical records were missing. Significantly, while
Lynch blames the ALJ for not realizing that the record from Dr.
Figel’s June 2009 examination was missing, he never acknowledges
his own counsel’s failure to notice that the ALJ’s decision
expressly stated that the evidence of record did not contain this
document. Id. at 22.
As noted, Lynch’s former counsel, had 60 days from the date
the ALJ entered his decision to advise either the ALJ or the
Appeals Council that evidence was missing from the record, but
failed to do so. Thus, as Magistrate Judge Kaull noted in his R&R,

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the Appeals Council found no reason to reverse the ALJ’s decision.
Id. Based on all this, the Court concludes that Lynch failed to
show good cause for not submitting the additional evidence at the
administrative level, and therefore denies his “Motion to Remand
Because of New and Material Evidence.”
B.

Claimant’s Second Motion to Permit Further Memorandum in
Support of Motion to Reverse and Remand to Consider Even More
Additional Medical Records, and Memorandum Itself”(Dkt No. 18)
On September 8, 2011, Lynch filed “Claimant’s Second Motion to

Permit Further Memorandum in Support of Motion to Reverse and
Remand to Consider Even More Additional Medical Records, and
Memorandum Itself” (dkt no. 18), and attached records from a visit
to Dr. Malik, a neurologist, dated November 2009, just two months
before the Administrative Hearing, which his counsel had obtained
in relation to a subsequent claim being pursued by Lynch. Lynch
argues that this “suggest[s] that Drs. Deol and Malik did not
respond to any request from previous counsel that they send
complete records.” Id.
In his R&R, Magistrate Judge Kaull determined that the basis
for this argument was speculative, and noted that, even if the
argument did not constitute mere speculation, he would not remand
the case to the ALJ based on evidence that existed in 2009, but was

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never submitted until eight months after this Court had begun its
consideration of the Complaint.

The Court agrees, and therefore

denies the Claimant’s Second Motion to Permit Further Memorandum in
Support of Motion to Reverse and Remand to Consider Even More
Additional Medical Records, and Memorandum Itself. (Dkt. No. 18).
C.

Motions for Summary Judgment
Both the Commissioner and Lynch objected to the magistrate

judge’s recommendations that the Commissioner’s motion for summary
judgment be denied and the plaintiff’s motion for summary judgment
be granted-in-part, and the case remanded for further proceedings.
(Dkt. No. 20 at 35-36). The Court turns now to those objections.
1.

Plaintiff’s Obesity
In his R&R, the magistrate judge determined that the ALJ’s

reliance on the State agency reviewer’s opinion was not well
founded because that opinion failed to address Lynch’s medicallydiagnosed obesity. After careful review, the magistrate judge found
that the medical records in this case contain a diagnosis of
obesity by a treating physician and that there is no evidence to
the contrary.

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SSR 02-1p provides guidance on SSA policy concerning the
evaluation of obesity in disability claims filed under Titles II
and XVI. SSR 02-1p, 2002 WL 3468628 at *1.
SSA policy states that, in the absence of evidence to the
contrary in the record, it will accept a diagnosis of obesity from
a treating source or a consultative examiner.

SSR 02-1p at *3.

SSR 02-1p further provides:
As with any other medical condition, we will find that
obesity is a “severe” impairment when, alone or in
combination with another medically determinable physical
or mental impairment(s), it significantly limits an
individual’ physical or mental ability to do basic work
activities. We will also consider the effects of any
symptoms (such as pain or fatigue) that could limit
functioning . . . . Therefore we will find that an
impairment(s) is “not severe” only if it is a slight
abnormality (or a combination of slight abnormalities)
that has no more than a minimal effect on the
individual’s ability to do basic work activities . . . .
SSR 02-1p at *4.
The ALJ also must consider obesity at the third step of the
sequential evaluation when determining whether any impairment(s),
alone or in combination, meets a listing, and at steps four and
five, when assessing functioning. SSR 02-1p at *3.
Lynch is 5'10". At the time of his stroke, he weighed 234
pounds. The State agency physician opinion submitted about five
months after Lynch’s stroke does not include obesity even as a
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secondary or “other” diagnosis. The record, however, documents
that, on March 24, 2009, 11 months after his stroke, Viorica M.
Crisan, M.D., an endocrinologist, examined Lynch and noted that he
was 5'10" and weighed 280 pounds. She diagnosed abnormal endocrine
function, impaired fasting glucose, impotence, and obesity. (Tr.
344).
The ALJ did not consider obesity when determining Lynch’s
medically determinable or severe impairments, or his RFC. At the
time the State agency physician completed her PRFC on September 22,
2008, she was unaware of the diagnosis of obesity, which never
appeared in the record until Dr. Crisan’s report of March 24, 2009.
Thus, she did not consider, indeed she could not have considered,
the effects of Lynch’s obesity in her assessment. Nor could the
ALJ,

who

relied

determination

of

on

her

RFC,

Lynch’s

have

considered

impairments

or

obesity

RFC.

in

his

Therefore,

the

magistrate judge correctly concluded that the case should be
remanded for further evaluation.
2.

Plaintiff’s Mental Impairments
As

to

Lynch’s

mental

impairments,

the

magistrate

judge

concluded that the record does not substantially support 1) the
ALJ’s reliance on the State agency psychologists’ opinions, which

35

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were provided long before most of the evidence regarding Lynch’s
mental impairments even existed, and 2) the ALJ’s determination
that Lynch’s only mental impairment was anxiety, or, alternatively,
that he had no severe mental impairment. (Dkt. No. 20 at 33).
Although

Lynch

alleged

disability

due

to

anxiety

and

depression, the ALJ found that, prior to his stroke, Lynch had only
received limited mental health treatment and had no history of
anxiety and depression. He also noted, however, that, shortly after
Lynch’s stroke, his primary care physician had prescribed Xanax for
anxiety and nervousness, and had increased the dosage a month
later.
The ALJ nevertheless concluded that the evidence of record did
not “establish the presence of a severe psychological impairment
for any continuous 12 month period,” and that “[c]onsistent with
the

assessments

consultants,
Section

submitted

the

12.06

of

claimant’s
Appendix

disorders.” (Tr. 16).

by

the

anxiety
1,

state

agency

had

been

dealing

with

psychological

evaluated

under

anxiety-related

He further determined that Lynch had only

mild restrictions of activities of daily living, mild difficulties
in maintaining social functioning, mild difficulties in maintaining

36

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concentration, persistence and pace and had had no episodes of
decompensation. Id.
The problem with this determination is that the State agency
psychologists on whose PRTF assessment the ALJ placed significant
weight possessed only limited records from April 2008, when Lynch
suffered his stroke, through September 23, 2008.

Although the

medical evidence in the record includes reports about mental health
treatment beginning on May 22, 2009, when Lynch first began seeing
a psychiatrist, the State agency reviewing psychologists did not
have the benefit of those mental health records when conducting
their review.
Lynch’s application, which he filed in July 2008, reported
that he was taking an anxiety medication and Sertraline, the
generic form of

Zoloft, a medication for depression. Also, in his

request for hearing in December 2008, Lynch alleged that he had new
mental limitations consisting of depression and anxiety.
After reviewing the medical records, the magistrate judge
concluded that the ALJ could not have reasonably relied on the
State agency psychologists’ opinions because of evidence in the
record that Lynch’s treating physician, Dr. Figel, had prescribed
Xanax in June 2008, and Zoloft in July 2008. Additionally, the

37

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medical records also evidence Dr. Crisan’s diagnosis of depression
and prescription of anti-depressant medications in March, April,
and June 2009, and that she started Lynch on Depakote in October
2009.
The magistrate judge also noted that the evidence of record
includes

reports

of

Lynch’s

treatment

with

Dr.

Deol,

a

psychiatrist, beginning in May 2009, which note that Lynch was
already on Wellbutrin. Dr. Deol increased that dosage and referred
Lynch to a therapist, identified as “Wendy.” Dr. Deol also noted
that Lynch was having trouble “adjusting to disability.”
In July 2009, Dr. Deol increased Lynch’s dosage of Wellbutrin
and added Paxil, another antidepressant. Indeed, Dr. Deol commented
that Lynch had an “unrealistic expectation from meds.”
2009,

Dr.

Deol

noted

that

“the

Remeron,”

In October

yet

another

antidepressant, prescribed by Lynch’s treating physician, Dr.
Figel, was not working. He also discontinued Wellbutrin and Paxil,
and prescribed Depakote.
In November 2009, Lynch reported that the Depakote was helping
with his temper and impulsivity, at which time Dr. Deol increased
the dosage. Then, in December 2009, only weeks before the hearing,
Lynch told Dr. Deol he was afraid he was going to “snap.”

38

As a

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result, Dr. Deol continued his Depakote and added Klonopin, yet
another antidepressant.
After a de novo review of the evidence of record, the Court
agrees with the magistrate judge’s recommendation to remand this
case because the evidence does not substantially support the ALJ’s
conclusion that Lynch’s only mental impairment was anxiety, or that
he had no severe mental impairment.

3.

Credibility
The

ALJ

determined

that

Lynch’s

“medically

determinable

impairments” could reasonably be expected to cause some of his
alleged symptoms, but concluded that Lynch’s statements concerning
the intensity, persistence and limiting effects of these symptoms
were

not

credible,

and

were

inconsistent

with

his

residual

functional capacity assessment. The ALJ listed Lynch’s medically
determinable

impairments

cerebrovascular

accident

as
with

post

bilateral

sensation,

gait

cerebellar
and

balance

residuals, sleep apnea, diabetes, enlarged heart, and anxiety.
As noted earlier, the ALJ failed to consider obesity and
depression as at least medically-determinable impairments. Thus,
because

SSR

02-1p

provides

that

39

obesity

may

also

cause

or

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contribute

to

other

physical

or

mental

impairments,

such

as

depression, the magistrate judge determined that the ALJ had failed
to consider “all the available evidence,” and that the record did
not contain substantial evidence to support a finding that Lynch
was not entirely credible. Id. at 35. The Court agrees.
VIII. CONCLUSION
After due consideration of both the Commissioner’s and Lynch’s
objections, it appears that neither has raised any issues that were
not thoroughly considered by Magistrate Judge Kaull in his R&R.
Moreover, upon an independent de novo consideration of all matters
now before it, the Court is of the opinion that the R&R accurately
reflects the law applicable to the facts and circumstances in this
action.

Therefore, it ADOPTS Magistrate Judge Kaull's R&R in its

entirety (dkt. no. 20) and
1.

DENIES the Motion to Permit Further Memorandum in Support
of Motion to Reverse and Remand to Consider Even More
Additional Medical Records, and Memorandum Itself” (dkt.
no. 16);

2.

DENIES the Second Motion to Permit Further Memorandum in
Support of Motion to Reverse and Remand to Consider Even

40

LYNCH V. COMMISSIONER OF SOCIAL SECURITY

1:10CV210

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
More Additional Medical Records, and Memorandum Itself”
(dkt. no. 18);
3.

DENIES the Commissioner’s Motion for Summary Judgment
(dkt. no. 10);

4.

GRANTS-IN-PART plaintiff's motion for Summary Judgment
(dkt. no. 9);

5.

REMANDS this case for consideration pursuant to the
recommendations

contained

in

the

magistrate

judge's

Report and Recommendation; and
6.

DISMISSES this case WITH PREJUDICE and DIRECTS the Clerk
to strike it from the docket of this Court.

It is to ORDERED.
Pursuant to Fed. R. Civ. P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
this Order to counsel of record.
DATED: March 30, 2012.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

41