Burkhammer v. Commissioner of Social Security

Filing 23

MEMORANDUM AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION: It is ORDERED that Plaintiff's 14 Motion for Summary Judgment is denied; Defendant's 18 Motion for Summary Judgment is granted; Magistrate Seibert' s 21 Report and Recommendation is accepted; and this civil action is dismissed with prejudice and retired from the docket. The Clerk shall enter a separate judgment order. If a petition for fees is contemplated, the time for such a petition expires in ninety days. Signed by District Judge Irene M. Keeley on 8/19/13. (cnd)

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

STEVEN A. BURKHAMMER, II,
Plaintiff,
v.

CIVIL ACTION NO. 1:12CV113
(Judge Keeley)

COMMISSIONER OF SOCIAL
SECURITY
Defendant.
MEMORANDUM AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. §636(b)(1)(B), Fed. R. Civ. P. 72(b),
and L.R. Civ. P. 4.01(d), on July 16, 2012, the Court referred this
Social Security action to United States Magistrate James E. Seibert
(“Magistrate Judge Seibert” or “magistrate judge”) with directions
to submit proposed findings of fact and a recommendation for
disposition.
On February 5, 2013, Magistrate Judge Seibert filed his Report
and Recommendation (“R&R”) and directed the parties, in accordance
with 28 U.S.C. §636(b)(1) and Rule 6(e), Fed. R. Civ. P., 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 February 18,
2013, plaintiff, Steven A. Burkhammer (“Burkhammer”), through
counsel, Travis M. Miller, filed objections to the R&R. (Dkt. No.
22.)

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I.

PROCEDURAL BACKGROUND

On June 27, 2008, Burkhammer applied for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”), alleging
disability since April 24, 2008, due to difficulties in reading and
understanding, learning disabilities, leg problems, and shoulder
problems. (R. 146-53, 176.) The Commissioner initially denied
Burkhammer’s

application

on

October

23,

2008,

and

on

reconsideration on March 3, 2009. (R. 28.)
Following

a

March

12,

2009

request

for

a

hearing,

an

Administrative Law Judge (“ALJ”), conducted a hearing on June 22,
2010 at which Burkhammer, represented by counsel, testified. An
impartial Vocational Expert (“VE”) also testified. (R. 28.) On
July 8, 2010, the ALJ issued an unfavorable decision, Burkhammer
then appealed, and, on May 18, 2012, the

Appeals Council denied

his request for review. (R. 1.) On July 16, 2012, Burkhammer timely
filed this suit seeking judicial review of that final decision.
(Dkt. No. 1.)
II.

PLAINTIFF'S BACKGROUND

Burkhammer was born on May 19, 1977, and is considered a
younger individual pursuant to 20 C.F.R. 404.1563 and 416.964. His
personal history includes three marriages, three divorces and four
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children. (R&R 2.) He dropped out of school during the tenth grade,
claiming learning difficulties and a dislike of “being picked on.”
His work history includes employment in several different areas,
including as a cook at various fast food restaurants, as a laborer
in the sheet metal industry, and at various grocery stores. (R.
163-171.) He has not worked since the date of the onset of his
alleged disability. (R&R 3.)
III.
Utilizing
prescribed

in

ADMINISTRATIVE FINDINGS

the

five-step

sequential

the

Commissioner’s

evaluation

regulations

at

20

process
C.F.R.

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

Burkhammer met the insured status requirements of
the Social Security Act through December 31, 2012;

2.

Burkhammer has not engaged in substantial gainful
activity since April 24, 2008, the alleged onset
date;

3.

Burkhammer has the following severe impairments,
left shoulder pain/tendonitis, left knee pain,
borderline intellectual functioning, mathematics
disorder that 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.

Burkhammer has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b)
and 416.967(b) with the following restrictions, can
perform all postural movements occasionally, except
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no crouching or climbing of ladders, ropes or
scaffolds, must avoid all temperature extremes or
hazards, is limited to occupations that do not
require more than occasional overhead reaching, is
limited to unskilled work, can understand and
follow simple instructions and perform simple,
routine,
repetitive
tasks
involving
little
independent decision-making, and is limited to
occupations that require no more than occasional,
simple reading or math;
5.

Burkhammer is unable to perform any of his past
relevant work (20 CFR § 404.1565);

6.

As of the alleged disability onset date, Burkhammer
is considered a younger individual age 18-49 (20
CFR § 404.1563 and 416.963);

7.

Burkhammer has a limited education but is able to
communicate in English (20 CFR § 404.1564 and
416.964);

8.

Burkhammer has no transferable skills from any past
relevant work and/or transferability of skills is
not an issue in this case because the MedicalVocational Rules support a finding of not disabled
(See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2);

8.

Considering Burkhammer’s age, education, work
experience and residual functional capacity, there
are a significant number of jobs in the national
economy that he could perform (20 CFR 404.1569(a),
416.969 and 416.969(a)); and

12.

Burkhammer was not under a “disability,” as defined
in the Social Security Act, from April 24, 2008,
through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).

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(R. 28-40.)
IV.

PLAINTIFF'S OBJECTIONS

Burkhammer asserts that the ALJ’s decision is based on an
error

of

law.

He

contends

that

the

record

does

not

contain

substantial evidence to support the ALJ’s finding that he failed to
establish that he had “deficits in adaptive functioning as required
by Listing 12.05C.” (Dkt. No. 22.) The Commissioner did not file
any objections to the R&R.
V.

MEDICAL EVIDENCE

The magistrate judge limited the medical history in his R&R to
the medical evidence directly related to the issue of whether there
is substantial evidence in the record to support the ALJ’s finding
that Burkhammer failed to satisfy the criteria of Listing 12.05C of
the Act. The Court incorporates the medical history contained in
the magistrate judge’s R&R. (Dkt. No. 21, p. 3-6.)
The magistrate judge specifically noted:
1.

A February 1992 psychological evaluation from Terry

Laurita, M.A. (“Ms. Laurita”) based on several interviews, as well
as a battery of tests, including: the Wide Range Achievement TestRevised (WRAT-R); the Minnesota Multiphasic Personality Inventory
(MMPI); the Wechsler Intelligence Test for Children-Revised (WISC5

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R); and the Slosson Intelligence Test-Revised (SIT-R) performed
when Burkhammer was fourteen years old and in the seventh grade
that indicated a verbal IQ of 69, a performance IQ of 78 and a full
scale IQ of 72.(R. 418.) Ms. Laurita noted that, even though Mr.
Burkhammer “was not happy about having to take the intelligence
test,” she believed the scores were “a fair estimate of his current
level of intellectual functioning.” (R. 419-20.);
2.

A November 10, 1993 adaptive evaluation report from

Braxton County Schools performed when Burkhammer was sixteen years
old indicating he achieved a Survival Skills Quotient1 of 78, based
on a mean of 100 and a standard deviation of 15, noting he
performed in the average range in functional signs, time, and
money, was relatively weak in basic concepts, tools, domestics,
health

and

safety,

public

service,

and

measurements,

and

recommending learning activities to help in the areas in which he
was deficient. (R. 416.);

1

The Street Survival Skills Questionnaire (SSSQ) is used to
assess functional impairment, independent living skills, and
appropriate vocational and residential placement for children,
adolescents, and adults with physical, mental, or developmental
disabilities.
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3.

A December 1994 Individualized Education Program (“IEP”)

from Braxton County High School developed when he was in tenth
grade

and

nearly

eighteen

years

old

indicating

Burkhammer

participated in regular education classes eighty-eight percent
(88%) of the time, in special education classes twelve percent
(12%) of the time, and received modified grades.1 (R. 421.) The
eligibility committee for this IEP determined that Burkhammer met
the criteria for mildly mentally impaired at that time. (R. 427.)
About a month later, Burkhammer took the Woodcock-Johnson Revised
Test. His scores on that test placed him in between third and sixth
grade in the various subjects. He dropped out of school later that
year without completing the tenth grade. (R. 417.);
4.

A September 19, 2008 report from Wilda Posey, M.A., who

performed several assessments at the request of the West Virginia
Disability Determination Service, including

a clinical interview,

a mental status examination, a Wechsler Adult Intelligence Scale
(WAIS-III), and a Wide Range Achievement Test (WRAT-4). Ms. Posey
indicated that Burkhammer had driven himself to the appointment,

1

An eligibility committee report from Braxton County, West
Virginia dated December 15, 1994 indicates that, while in school in
Lewis County, West Virginia, Burkhammer attended all regular
classes. (R. 428.)
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was dressed appropriately with normal hygiene and grooming, and
exhibited a positive and cooperative attitude. (R. 363, 366.)
According to Ms. Posey, Burkahmmer’s chief complaints were
pain in his shoulder and knee. He did not list learning disability.
She indicated that he was filing for Social Security because he was
physically unable to do the job he wants. (R. 364.) He reported
difficulty

in

spelling,

comprehension,

and

memory,

attending

special education classes, and leaving school because he could not
stay out of trouble. (R. 365.)
During the mental status examination, Ms. Posey noted that
Burkhammer had a very introverted manner, made normal eye contact,
made limited, relevant, coherent conversation at a normal pace and
tone, had average judgment and concentration, poor remote memory
and severely deficient recent memory. Ms. Posey did not note any
difficulty with thought process, thought content, or perception.
(R. 366.)
Burkhammer’s results from the WAIS-III were a verbal IQ score
of 70, a performance IQ score of 77, and full scale IQ of 71 . (R.
365).

Ms. Posey reported that
“[t]here is no significant difference between the
claimant’s Verbal IQ score of 70 and his Performance IQ
score of 77. His full Scale IQ score of 71 places him in
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the borderline intellectual functioning range. The
claimant’s performance throughout the evaluation and
assessments were considered to be adequate. The claimant
appeared to put forth consistent effort throughout the
evaluation. The claimant’s Full Scale IQ score of 71 is
considered to be valid.
(R. 367.)
On the WRAT-4, Burkhammer achieved valid scores of 79 in word
reading, 70 in sentence comprehension, 75 in spelling, 55 in math,
and 72 in reading composite which place him at about a fifth grade
level in all subjects except math where he was near the first grade
level.

Ms.

Posey’s

diagnostic

impressions

were

a

mathematics

disorder within Axis I, and borderline intellectual functioning
within Axis II. (R. 367.); and
5.

A September 30, 2008 psychiatric review from

Dr. James

W. Bartee, Ph.D., which found a medically determinable impairment
under Listing 12.02, organic mental disorders, that does not meet
the criteria under the Listing. (R. 370-71.) Under the “B” criteria
of the Section 12 Listings, Dr. Bartee indicated that Burkhammer
had

mild

restrictions

of

activities

of

daily

living,

mild

difficulties in maintaining social function, mild difficulties in
maintaining concentration, persistence, or pace, no episodes of

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decompensation, and further noted that Burkhammer did not meet any
of the “C” criteria of the Listings. (R. 380-1.)

VI.

DISCUSSION

A. Scope of Review
The scope of review of an administrative finding of no
disability is limited to determining whether “the findings of the
Secretary are supported by substantial evidence and whether the
correct law was applied.”

Hays v. Sullivan, 907 F.2d 1453, 1456

(4th Cir. 1990). In Smith v. Schweiker, 795 F.2d 343, 345 (4th
Cir.1986), the Fourth Circuit described the scope of review as
“specific and narrow. We do not conduct a de novo review of the
evidence, and the Secretary’s finding of non-disability is to be
upheld, even if the court disagrees, so long as it is supported by
substantial evidence.” Id. Substantial evidence is “such relevant
evidence

as

a

reasonable

mind

might

accept

to

support

a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971)
(quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229

(1938)).
Elaborating on this definition, the Fourth Circuit has stated
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that substantial evidence “consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance. If there
is evidence to justify a refusal to direct a verdict where the case
is before a jury, then there is ‘substantial evidence.’” Hays, 907
F.2d at 1456 (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir. 1968)). And, in

Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir.

1987), the Fourth Circuit held: “A factual finding by the ALJ is
not binding if it was reached by means of an improper standard or
misapplication of the law.” 829 F.2d 514, 517 (4th Cir. 1987).
Pursuant to 42 U.S.C. § 423(d)(1), (d)(2)(A) and Heckler v.
Campbell, 461 U.S. 458, 460 (1983), Burkhammer has the burden of
establishing that he has a medically determinable impairment that
is so severe that it prevents him from engaging in any substantial
gainful activity that exists in the national economy.
B.
Burkhammer’s sole objection is that the ALJ erred in deciding
that the record did not contain substantial evidence to support a
finding that he had deficits in adaptive functioning manifested
before age 22 as required by Listing 12.05C. He asserts that the
Street

Skills

Questionnaire

administered

when

he

was

sixteen

establishes that he had deficits in adaptive functioning. (Dkt. No.
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22 at 6).
At the third step of the sequential evaluation, an ALJ must
determine

whether

a

claimant’s

impairment

or

combination

of

impairments meets or medically equals the criteria of an impairment
listed

in

20

416.920(e)).

CFR
If

a

Part

404,

Subpart

claimant’s

P,

Appendix

impairment

or

1

(20

CFR

combination

of

impairments meets or medically equals the criteria of a listing and
meets the duration requirement (20 CFR 416.909), that claimant is
disabled.

If not, the ALJ’s analysis proceeds to the next step.

Here, the ALJ determined that Burkhammer’s impairments included
left

shoulder

pain/tendonitis,

left

knee

pain,

borderline

intellectual functioning and mathematics disorder. (R. 30).
The ALJ analyzed Burkhammer’s impairments pursuant to Section
101

regarding

the

impairments

of

the

musculoskeletal

system,

Section 12.00 regarding the mental impairments, and determined:
. . . neither the examining physicians’
reports nor the clinical (imaging/laboratory)
data meets the minimum criteria required by
Section 1.02, 12.02 or 12.05.
(R. 31).
Listing 12.00 provides, in pertinent part:
The structure of the listing for mental retardation
(12.05) is different from that of the other mental
disorders
listings.
Listing
12.05
contains
an
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introductory paragraph with the diagnostic description
for mental retardation. It also contains four sets of
criteria (paragraphs A through D). If your impairment
satisfies the diagnostic description in the introductory
paragraph and any one of the four sets of criteria, we
will find that your impairment meets the listing.
Paragraphs A and B contain criteria that describe
disorders we consider severe enough to prevent your doing
any gainful activity without any additional assessment of
functional limitations. For paragraph C, we will assess
the degree of functional limitation the additional
impairment(s) imposes to determine if it significantly
limits your physical or mental ability to perform basic
work activities, i.e., is a “severe” impairment(s), as
defined in section 404.1520(c) and 416.920(c). If the
additional impairment(s) does not cause limitations that
are “severe” as defined in sections 404.1520(c) and
416.920(c), we will not find that the additional
impairment(s) imposes “an additional and significant
work-related limitation of function,” even if you are
unable to do your past work because of the unique
features of that work . . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1 section 12.00.
Listing 12.05C provides:
Mental retardation refers to significantly subaverage
general intellectual functioning with deficits in
adaptive functioning initially manifested during the
developmental period; i.e., the evidence demonstrates or
supports onset of the impairment before age 22.
The required level of severity for this disorder is met
when the requirements in A, B, C or D are satisfied . .
. .
C. A valid verbal performance, or full scale IQ of 60
through 70 and a physical or other mental impairment
imposing an additional and significant work-related
limitation of function . . . .
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20 C.F.R. Pt. 404, Subpt. P, App. 1 section 12.05C.
1.

Deficits in Adaptive Functioning
In Hancock v. Astrue, 667 F.3d 470 (4th Cir. 2012), the Fourth

Circuit held that, in order to meet the criteria of Section 12.05C,
a claimant must establish: (1) that he has deficits in adaptive
functioning that manifested before age twenty-two; (2) that he has
a valid verbal, performance, or full scale IQ of 60 through 70; and
(3) that he has a physical or other mental impairment that imposes
an additional and significant work-related limitation of function.
Significantly, Hancock also held that, if an ALJ determines that a
claimant does not have deficits in adaptive functioning and bases
that determination on substantial evidence, the inquiry ends. See
Hancock, 667 F.3d at 475. In Jackson v. Astrue, 467 Fed. Appx. 214,
218 (4th Cir. 2012) (unpublished) (citing Atkins v. Virginia, 536
U.S. 304, 309 n.3 (2002)), the Fourth Circuit held that, when
determining

whether

a

claimant

has

deficits

in

adaptive

functioning, an ALJ may consider “limitations in areas such as
communication, self care, home living, social/interpersonal skills,
use of community resources, self direction, functional academic
skills, work, leisure, health, and safety.”
Here, the ALJ determined as follows:
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The claimant’s mental impairments, considered singly and
in combination, do not meet or medically equal the
criteria of listing 12.05C, as asserted by counsel. The
claimant’s representative sought to rely on a Street
Skills Survival questionnaire (Exhibit 11F/1) as
establishing prerequisite significantly sub-average
intellectual functioning with deficits in adaptive
functioning. The Survival Skills Quotient of 78 and
identification of ‘relatively weakest’ adaptive skills is
not further defined or explained, and their significance
is unclear. However, as noted above, intelligence testing
conducted in March 1992 and more recently both assessed
the claimant to be in the borderline range of
intellectual
functioning.
The
claimant
has
also
demonstrated significant adaptive functioning. He is
married with a small child that he cares for; he has a
driver’s license; he has held a number of jobs from which
he was let go or quit, according to his testimony, for
reasons other than an inability to comprehend or mentally
perform work demands (e.g., the job was located too far
away, or he was fired for taking a day off work for his
daughter’s birth despite being told not to); his adult
function report (Exhibit 5E) indicated that he is able to
perform household tasks, shop and run errands, handle a
savings account and pay bills, despite his hearing
testimony to the contrary.
(R. 31-34.)
In determining that Burkhammer demonstrated little difficulty
in adaptive functioning other than on the educational level1, the
ALJ relied on Burkhammer’s adult function report that indicated he
helped care for a small child, has a valid driver’s license, held

1

Although he is limited in the academic setting, the
evidence establishes that Burkhammer has the ability to read and
write, albeit at a lower level. (R. 5).
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a number of jobs that he either quit or from which he was “let go”
for reasons other than an inability to comprehend or mentally
perform the work demands, and his ability to perform household
tasks, shop and run errands, handle a savings account and pay
bills. (R. 34).
After reviewing and comparing Burkhammer’s testimony at the
administrative hearing and the medical evidence of record regarding
deficits

in

adaptive

functioning,

the

magistrate

judge

noted

numerous inconsistencies. For example, at the hearing, Burkhammer
testified that he had difficulties performing daily activities,
such as reading street signs, counting change or paying bills (R.
33). In August 2008, however, Burkhammer had reported to Ms. Posey
that he had “no difficulties paying bills, counting change or
handling a savings account.” (R. 37). In other statements made to
Ms. Posey September 2008, Burkhammer reported that his writing was
“okay” and that he read “some.” (R. 37).
Furthermore, at the hearing Burkhammer also testified that his
wife, stepmother or brother-in-law did most of the household chores
and child care. In September 2008, however, Burkhammer had reported
caring for his six-year-old child all day long, taking her for
walks around town in her stroller, going to the post office daily,
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shopping for groceries monthly, performing mechanical work on his
own vehicle, going out to eat three times monthly, visiting with
family regularly, attending medical appointments, doing household
chores with his girlfriend and caring for his own personal needs
and hygiene. (R. 37).
From this, the magistrate judge determined that the record
contained substantial evidence supporting the ALJ’s decision that
Burkhammer failed to meet the introductory paragraph of 12.05C.
Therefore, pursuant to Hancock, 667 F.3d at 475, Burkhammer cannot
meet

Listing

12.05C

and

the

inquiry

ends.

Nevertheless,

the

magistrate judge provided a brief discussion of the other prongs.
1.

Valid IQ scores
Listing 12.05C requires a valid IQ score between 60 and 70.7

In 1992 at age fourteen, Burkhammer received a Verbal Score of 69,
a Performance Score of 78, and a Full Scale Score of 72, all of
which William J. Fremouw, the administering psychologist, noted
fairly estimated Burkhammer’s intelligence at that time. (R. 41920.) At age thirty-one (31), Burkhammer received a Verbal Score of
7

“[S]ince the results of intelligence tests are only part of
the overall assessment, the narrative report that accompanies the
test results should comment on whether the IQ scores are considered
valid and consistent with the developmental history and the degree
of functional limitation.” 20 C.F.R. § 404 app. 1, 12.00(D)(6)(a).
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70, a Performance Score of 77, and a Full Scale Score of 71 that
Ms. Posey, the administering psychologist, also noted represented
a valid full scale score. (R. 367.)
“In cases where more than one IQ is customarily derived from
the test administered, e.g., where verbal, performance, and full
scale IQs are provided in the Wechsler series, [the Social Security
Administration] use[s] the lowest of these in conjunction with
12.05.” 20 C.F.R. § 404app. 1, 12.00(D)(6)(c). See also Grant v.
Schweiker, 699 F.2d 189 (4th Cir.1983).

Thus, because the lowest

score in 1992 was a 69 Verbal and in 2008 the lowest score was a 70
Verbal, and both scores were valid and fell within the range of 6070, the magistrate judge determined that Burkhammer satisfied this
prong of Listing 12.05C.
The magistrate judge noted, however, that, in Hancock, the
Fourth Circuit found that “[a] valid I.Q. score need not be
conclusive

of

mental

retardation

where

the

I.Q.

score

is

inconsistent with other evidence in the record of the claimant’s
daily activities and behavior.”

Id. at 475 (quoting Lowery v.

Sullivan, 979 F.2d 835, 837 (11 th Cir. 1992)). Accordingly,
“[t]est results must be examined to assure consistency with daily
activities and behavior.” Id. (quoting Popp v. Heckler, 779 F.2d
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1497, 1499 (11th Cir. 1986))
Thus, even though the ALJ did not provide his reasoning
regarding the valid IQ scores, since the ALJ determined that
Burkhammer failed to satisfy the introductory paragraph of Section

12.05C, the magistrate judge determined that the lack of reasoning
was harmless error.
2.

Additional Impairment

The magistrate judge noted that the ALJ also had failed to
discuss whether Burkhammer satisfied the requirement in Section
12.05C regarding an additional impairment. At step two of the
sequential evaluation process, the ALJ listed Burkhammer’s severe
impairments as left shoulder pain/tendonitis, left knee pain,
borderline intellectual functioning, and mathematics disorder. (R.
30.) Further, the ALJ found that Burkhammer was unable to perform
any past relevant work. (R. 38.) The magistrate judge determined
that these two things alone were sufficient to meet the additional
limitation requirement of 12.05C. See Luckey v. U.S. Dept. of
Health & Hum. Svcs., 890 F.2d 666, 669 (4th Cir. 1989) (“[The
Claimant’s] inability to perform his prior relevant work alone
established the significant work-related limitation of function
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MEMORANDUM AND ORDER ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
requirement of section 12.05C. Further, the Secretary's finding
that

[the

Claimant]

suffers

from

a

severe

combination

of

impairments also established the second prong of section 12.05C.”)
(internal citations omitted). Thus, the magistrate judge determined
that Burkhammer also met this prong of Listing 12.05C.
Following a thorough review of the record, however, the
magistrate judge determined that the record contained substantial
evidence to support the ALJ’s conclusion that Burkhammer had failed
to establish deficits in adaptive functioning manifested initially
prior to age 22 as required by Listing 12.05C. The Court agrees.
VII. CONCLUSION
After careful consideration of Burkhammer’s objections, it
appears to the Court that he has not raised any issues that were
not thoroughly examined and weighed by Magistrate Judge Seibert in
his R&R. Moreover, following an independent de novo consideration
of all matters before it, the Court is of the opinion that the R&R
accurately

reflects

the

law

applicable

to

the

facts

and

circumstances before it in this action. Therefore, it ACCEPTS the
magistrate judge’s R&R in whole and ORDERS that this civil action
be disposed of in accordance with the recommendation of the
magistrate judge. Therefore, it
20

BURKHAMMER V. ASTRUE

1:12CV113

MEMORANDUM AND ORDER ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
1.

GRANTS

the

defendant's

motion

for

Summary

Judgment

motion

for

Summary

Judgment

(Docket No. 18);
2.

DENIES

the

plaintiff's

(Docket No. 14); and
3.

DISMISSES this civil action WITH PREJUDICE and ORDERS
that it be

RETIRED from the docket of this Court.

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.
If a petition for fees pursuant to the Equal Access to Justice
Act (EAJA) is contemplated, the plaintiff is warned that, as
announced in Shalala v. Schaefer, 113 S.Ct. 2625 (1993), the time
for such a petition expires in ninety days.
DATED: August 19, 2013.

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

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