Fazen v. Commissioner Social Security Administration

Filing 21

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION (DKT. NO. 18 ), DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 13 , GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT. NO. 17 ) AND DIMISSING THE CASE. The Clerk is directed to enter a separate judgment order in this matter. Signed by Senior Judge Irene M. Keeley on 2/27/19. (mh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
REGINA RATOMA BERTRAND
FAZEN,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:18CV64
(Judge Keeley)

NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE WITH PREJUDICE
On March 26, 2018, the plaintiff, Regina Ratoma Bertrand Fazen
(“Fazen”), filed a complaint seeking review of the adverse decision
of the defendant, Nancy Berryhill, Acting Commissioner of Social
Security (“the Commissioner”) (Dkt. No. 1). On December 20, 2018,
the Honorable Michael J. Aloi, United States Magistrate Judge,
issued a Report and Recommendation (“R&R”), recommending that the
Court affirm the Commissioner’s decision (Dkt. No. 18). Pending
before the Court are Fazen’s timely objections to the Magistrate
Judge’s recommendations (Dkt. No. 19).
For the reasons that follow, the Court OVERRULES Fazen’s
objections

(Dkt.

No.

19)

and

ADOPTS

the

R&R

(Dkt.

No.

18).

Accordingly, it DENIES Fazen’s motion for summary judgment (Dkt.

FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE WITH PREJUDICE
No. 13), GRANTS the Commissioner’s motion for summary judgment
(Dkt. No. 17), AFFIRMS the Commissioner’s decision, and DISMISSES
this case WITH PREJUDICE.
I. BACKGROUND
The Court has jurisdiction over this case pursuant to 42
U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). As part of its review
of the R&R, the Court incorporates by reference Magistrate Judge
Aloi’s

thorough

recitation

of

the

facts

surrounding

Fazen’s

disability insurance benefits (“DIB”) and supplemental security
income

(“SSI”)

claims,

as

well

as

his

articulation

of

the

Commissioner’s five-step evaluation process (Dkt. No. 18 at 2-32).
Because Fazen’s arguments on appeal relate only to her alleged
mental impairments, the Court focuses its discussion on that issue.
A.

Factual
The record reflects that Fazen began seeing psychiatrist

Alfredo Aguirre, M.D. (“Dr. Aguirre”) no later than December 2011,
at which time she reported feelings of anxiety, anger, frustration,
and moodiness, a personal history of anxiety, depression and
migraine headaches, and a family history of bipolar disorder (Dkt.
No. 9-9 at 41). On December 7, 2011, Dr. Aguirre diagnosed Fazen

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FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE WITH PREJUDICE
with major depression, anxiety disorder, and panic disorder, and
prescribed an antidepressant. Id. at 41. Dr. Aguirre continued to
treat Fazen once every one to two months over the next several
years,

prescribing

various

mental

health

medications

as

she

continued to report symptoms of anxiety and depression.
On

August

“protective”

2,

2012,

application

Fazen,
for

then

36

disability

years

old,

insurance

filed

a

benefits,

alleging an onset date of June 1, 2012 (Dkt. No. 9-7 at 1-8). On
March

25,

2014,

Dr.

Aguirre

completed

a

Mental

Impairment

Questionnaire at the request of the state agency (Dkt. No. 9-10 at
30-39). Dr. Aguirre opined that Fazen had marked daily living
restrictions; extreme social functioning difficulties; extreme
concentration, persistence, or pace difficulties; and one or two
extended episodes of decompensation within a 12-month period. Id.
at 34. He also indicated, however, that Fazen was not limited in
understanding and remembering short and simple instructions and was
only moderately limited in remembering locations and work-like
procedures. Id. at 36.
In terms of concentration and persistence, Dr. Aguirre opined
that, with the exception of marked limitations in the abilities to

3

FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE WITH PREJUDICE
carry out detailed instructions and to sustain an ordinary routine
without special supervision, Fazen was only moderately limited in
other

abilities

carrying

out

in

this

simple

category,

instructions;

including
maintaining

the

following:

attention

and

concentration for extended periods; performing activities within a
schedule, maintaining regular attendance, and being punctual;
working in coordination with or proximity to others without being
distracted

by

them;

making

simple

work-related

decisions;

completing a normal workday and workweek without interruptions from
psychologically based symptoms; and performing at a consistent pace
without an unreasonable number and length of rest periods. Id. at
36-37.
Dr. Aguirre further opined that, while Fazen was markedly
limited in adaptation (i.e.,, the ability to respond appropriately
to changes in the work setting) and some social interaction
abilities (e.g., the ability to accept instructions and respond
appropriate to criticism from supervisors), there was no evidence
that she was limited in her abilities to get along with coworkers
or

peers

without

distracting

them

4

or

exhibiting

behavioral

FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE WITH PREJUDICE
extremes, or to maintain socially appropriate behavior and to
adhere to basic standards or neatness or cleanliness. Id. at 37-38.
B.

Procedural
The Commissioner denied Fazen’s claims at both the initial and

reconsideration levels (Dkt. No. 9-5 at 3-7, 12-18). Upon Fazen’s
request, Administrative Law Judge Karen B. Kostol (“ALJ”) held a
hearing on May 8, 2014 (Dkt. No. 9-3 at 2-25), following which she
denied Fazen’s claim (Dkt. No. 9-4 at 51-66). Fazen sought review
from the Appeals Council, which remanded the case to the ALJ. Id.
at 71-74.
Following a supplemental hearing on December 5, 2016 (Dkt. No.
9-2 at 50-81), the ALJ entered a second decision denying Fazen’s
claims on August 29, 2017. Id. at 21-46. On January 26, 2018, the
Appeals Council denied Fazen’s request for review, id. at 2-4,
which made the ALJ’s second decision the final decision of the
Commissioner. Thereafter, on March 26, 2018, Fazen filed suit in
this Court, seeking reversal of the Commissioner’s final decision
(Dkt. No. 1). The Commissioner answered the complaint and filed the
administrative record on May 31, 2018 (Dkt. Nos. 8, 9).

5

FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE
In her motion for summary judgment, Fazen argued that the
Commissioner committed reversible error by failing to comply with
20 C.F.R. § 416.927 when she assigned “less weight” to the medical
opinion of Fazen’s treating physician, Dr. Aguirre, which rendered
the decision contrary to the law and unsupported by substantial
evidence (Dkt. Nos. 13 at 1; 13-1 at 9-13). She requests that the
Court remand the case to the Commissioner “for a correction of the
errors” (Dkt. No. 13-1 at 13).
In the R&R, Magistrate Judge Aloi rejected each of Fazen’s
contentions (Dkt. No. 18). Following a careful review of the
record, id. at 3-31, he concluded that the ALJ had applied the
proper standards of law, and that her decision to deny benefits was
supported by substantial evidence. Id. at 35-43. Specifically, he
found substantial evidence to support the ALJ’s decision to afford
less weight to Dr. Aguirre’s medical opinion, and also found that
the ALJ had sufficiently explained her decision so as to permit
meaningful review. Id. at 40-43.
Fazen filed timely objections to the R&R, in which she argues
that Magistrate Judge Aloi “fail[ed] to perform a full judicial
review of the issues and evidence” prior to concluding that the

6

FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE
ALJ’s evaluation of Dr. Aguirre’s opinion was proper (Dkt. No. 18
at 2-7). In response, the Commissioner argues that substantial
evidence supports the ALJ’s decision to discount Dr. Aguirre’s
opinion, and that the ALJ’s explanation was “more than sufficient”
to allow this Court to conduct meaningful review (Dkt. No. 19 at 14).
II. STANDARDS OF REVIEW
A.

The Magistrate Judge’s R&R
Pursuant to 28 U.S.C. § 636(b)(1)(c), the Court must review de

novo any portion of the magistrate judge’s recommendation to which
objection is timely made. The Court, however, will uphold those
portions of the R&R to which no objection is made unless they are
“clearly erroneous.” See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005). Because Fazen filed
objections to the R&R (Dkt. No. 19), the Court will review de novo
all those portions of the R&R to which she has objected.
B.

The ALJ’s Decision
Importantly, the question presented is not whether Fazen is

disabled. See Mayer v. Astrue, 662 F.3d 700, 704 (4th Cir. 2011)
(citing Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)).

7

FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE
Judicial review of a final decision regarding disability benefits
is limited to determining whether the ALJ’s findings are supported
by substantial evidence, and whether the ALJ correctly applied the
law. See 42 U.S.C. § 405(g); Milburn Colliery Co. v. Hicks, 138
F.3d 524, 528 (4th Cir. 1998). Accordingly, the Court must not
“reweigh conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the [ALJ].” Johnson v.
Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam) (citation
omitted). It is the duty of the ALJ, not the Court, to make
findings of fact and resolve disputed evidence. King v. Califano,
599 F.2d 597, 599 (4th Cir. 1979).
Substantial evidence is that which a “reasonable mind might
accept as adequate to support a conclusion.” Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990) (quoting Richardson v.Perales, 402
U.S. 389, 401 (1971)). The “possibility of drawing two inconsistent
conclusions from the evidence does not prevent an administrative
agency’s findings from being supported by substantial evidence.”
Sec’y of Labor v. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir.
1996) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1996)). Rather, “[w]hen conflicting evidence could lead reasonable

8

FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE
minds to differ regarding whether a claimant is disabled, [the
Court] defer[s] to the ALJ’s disability determination.” Sharp v.
Colvin, 660 F. App’x 251, 256 (4th Cir. 2016) (citing Hancock v.
Astrue, 667 F.3d 470, 472 (4th Cir. 2011)).
III. DISCUSSION
In

her

objections,

Fazen

argues

that

the

ALJ

committed

reversible error by according little weight to the medical opinion
of

her

treating

physician,

Dr.

Aguirre,

and

contends

that

Magistrate Judge Aloi erred by finding that the ALJ’s explanation
provides a sufficient basis on which to uphold the decision (Dkt.
No. 19 at 2-7).
A.

Applicable Law
An

ALJ

must

accord

controlling

weight

to

a

treating

physician’s medical opinion regarding a claimant’s ability to work,
if that opinion “is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with
the

other

substantial

evidence”

in

the

record.

20

C.F.R.

§ 404.1527(c)(2); Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir.
2001);

see

20

C.F.R.

§

404.1527(a)(2).

Thus,

“[b]y

negative

implication, if a physician’s opinion is not supported by clinical

9

FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE
evidence or if it is inconsistent with other substantial evidence,
it should be accorded significantly less weight.” Craig v. Chater,
76

F.3d

585,

590

(4th

Cir.

1996);

see

generally

20

C.F.R.

§ 404.1527(c) (describing how medical opinions are to be weighed in
determining entitlement to disability benefits). Ultimately, the
ALJ is not bound by a treating physician’s opinion that a claimant
is disabled or unable to work, because that determination is
reserved for the ALJ. See 20 C.F.R. § 404.1527(d)(1).
Notably, “[a] necessary predicate to engaging in substantial
evidence review is a record of the basis for the ALJ’s ruling,”
including “a discussion of which evidence the ALJ found credible
and

why,

and

specific

application

of

the

pertinent

legal

requirements to the record evidence.” Monroe v. Colvin, 826 F.3d
176, 189 (quoting Radford v. Colvin, 734 F.3d 288, 295 (4th Cir.
2013)). Where, as here, an ALJ denies a claimant’s application, the
ALJ must state “specific reasons for the weight given to the
treating source’s medical opinion,” to enable reviewing bodies to
identify clearly the reasons for the ALJ’s decision. Sharp, 660 F.
App’x at 257 (citing Social Security Ruling (SSR) 96–2p, 61 Fed.
Reg. 34,490, 34,492 (July 2, 1996)).

10

FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE
B.

Analysis
Magistrate Judge Aloi determined the ALJ did not summarily

conclude that Dr. Aguirre’s opinion merited little weight. Cf.
Monroe v. Colvin, 826 F.3d 176, 190–91 (4th Cir. 2016) (holding
ALJ’s statement that “the objective evidence or the claimant’s
treatment history did not support the consultative examiner’s
findings” precluded meaningful review); Reynolds v. Berryhill, No.
1:16CV29, 2017 WL 1128602, at *4 (N.D.W. Va. Mar. 24, 2017)
(holding that the ALJ “provided only a cursory discussion of [the
treating physician]’s opinion before dismissing it”). Rather, in
explaining why she discredited Dr. Aguirre’s opinions, the ALJ
stated that “Dr. Aguirre’s own treatment notes, the claimant’s
conservative treatment, refusal of additional medications, and . .
. noted improvement with continued treatment do not support them”
(Dkt. No. 9-2 at 37).
“While the ALJ did not cite specific pages in the record,
h[er] explanation relied on and identified . . . particular
categor[ies] of evidence.” Sharp, 660 Fed App’x at 257 (citing 20
C.F.R. § 404.1527(c)(2)). Further, the ALJ provided an “narrative

11

FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE
discussion” as part of her explanation for the weight she gave to
Dr. Aguirre’s opinion. See Dkt. No. 9-2 at 37.
The record contains substantial evidence supporting the ALJ’s
conclusion that Dr. Aguirre’s opinion did not merit controlling
weight.

Foremost,

Dr.

Aguirre’s

treatment

notes

indicated

conservative and effective treatment, see e.g., Dkt. No. 9-10 at
43-44 (noting that Fazen had improved on Prozac and denied feelings
of hopelessness, helplessness, suicidal ideation, and psychotic
symptoms), 56-57 (noting that Fazen’s condition was stable on
medication). As observed by the ALJ, Fazen testified that her
prescribed medications helped except when she occasionally needed
marijuana to help calm down (Dkt. No. 9-2 at 64, 79-80). And,
according to Dr. Aguirre’s notes, Fazen consistently refused to
participate in additional treatment, including therapy, which the
ALJ

found

to

be

inconsistent

with

an

individual

who

is

not

satisfied with her functionality (Dkt. No. 9-2 at 37; see Dkt. No.
9-12 at 26).
Furthermore, as explained by the ALJ (Dkt. No. 9-2 at 36-37),
Dr. Aguirre’s treatment notes consistently indicated no findings of
psychosis or hallucinations. See e.g., Dkt. Nos. 9-9 at 39 (finding

12

FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE
Fazen fully oriented with normal perceptions and thought content;
no delusions, hallucinations, or suicidal/homicidal ideation; only
mildly deficient insight and immediate memory; and normal recent
and remote memory), 42 (finding Fazen alert and attentive with a
cooperative attitude and no evidence of delusions, hallucinations,
or cognitive impairment); 9-10 at 54-62 (finding no evidence of
delusions,

hallucinations,

psychomotor

retardation,

cognitive

impairment, or thought disorder); 9-11 at 10-11 (same), 31-32
(same); 9-12 at 26-30 (same)). In fact, Fazen admitted at her
hearings before the ALJ that there was no current diagnosis or
treatment for alleged dissociations or “multiple personalities”
(Dkt. Nos. 9-2 at 68-69, 9-3 at 16-18).
The ALJ also was entitled to consider whether Dr. Aguirre’s
opinion was inconsistent with other material evidence, including
the opinions of the state agency psychological consultants, Philip
Comer, Ph.D. and Jeff Boggess, Ph.D. (Dkt. No. 9-2 at 38-39).
Contrary to Dr. Aguirre’s opinion, Drs. Comer and Boggess agreed
that

Fazen’s

restrictions,

medical

records

reflected

moderate

social

functioning

mild

daily

living

difficulties,

and

moderate concentration, persistence, or pace difficulties (Dkt. No.

13

FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE
9-4 at 30, 43). Also, contrary to Dr. Aguirre’s opinion, in their
residual functional capacity assessments, Drs. Comer and Boggess
concluded that Fazen had the mental and emotional capacity for work
activity

in

an

environment

requirements. Id.

with

limited

social

interaction

at 34, 47. Drs. Comer and Boggess further

concluded that Fazen had no understanding or memory limitations,
and was no more than moderately limited in her ability to sustain
concentration and persistence. Id. at 32-33, 46-47.
Based on this other evidence, the ALJ was “not obligated to
adopt” Dr. Aguirre’s opinion about Fazen’s ability to work. Sharp,
660

Fed

App’x

at

257;

see

also

20

C.F.R.

§

404.1527(d)(1).

Moreover, the Court may not reweigh the evidence and must defer to
the ALJ’s determination when, as here, conflicting evidence might
lead reasonable minds to disagree as to whether Fazen was disabled.
See Hancock, 667 F.3d at 472; Johnson, 434 F.3d at 653.
For these reasons, the Court concludes that the stated,
specific reasons for the weight given to Dr. Aguirre’s medical
opinion provide a sufficient basis on which to uphold the ALJ’s
decision. The Court agrees with Magistrate Judge Aloi’s finding
that substantial evidence exists to support the ALJ’s decision to

14

FAZEN V. BERRYHILL

1:18CV64

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 18], DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 13], GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 17], AND DISMISSING THE CASE
afford less weight to Dr. Aguirre’s opinion, and that the ALJ
sufficiently explained her decision so as to permit this Court’s
meaningful review.
IV. CONCLUSION
In conclusion, for the reasons discussed, the Court:
1)

ADOPTS the R&R (Dkt. No. 18);

2)

OVERRULES Fazen’s objections (Dkt. No. 19);

3)

DENIES Fazen’s Motion for Summary Judgment (Dkt. No. 13);

4)

GRANTS the Commissioner’s Motion for Summary Judgment
(Dkt. No. 17); and

5)

DISMISSES this civil action WITH PREJUDICE and DIRECTS
that it be stricken from the Court’s active docket.

It is so ORDERED.
The Court DIRECTS the Clerk to enter a separate judgment order
and to transmit copies of both orders to counsel of record.
Dated: February 27, 2019

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

15