Lacher v. Berryhill

Filing 24

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that the Commissioner's decision is AFFIRMED. IT IS FURTHER ORDERED that this action is DISMISSED. (cc: all counsel)(asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KEVIN THOMAS LACHER,
Plaintiff,
v.

Case No. 18-CV-941

ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.
DECISION AND ORDER
Kevin Lacher seeks judicial review of the final decision of the Commissioner of the
Social Security Administration denying his claim for a period of disability and disability
insurance benefits under the Social Security Act, 42 U.S.C. § 405(g). For the reasons below,
the Commissioner’s decision is affirmed.
BACKGROUND
Lacher filed an application for a period of disability and disability insurance benefits
alleging disability beginning on February 13, 2014, due to degenerative disc disease in the
lumbar spine, joint dysfunction on the left side, pathological facture in the vertebrae, and high
blood pressure. (Tr. at 171–72, 195, Docket # 12-3–12-10.) Lacher’s application was denied
initially and upon reconsideration. (Tr. 62–80.) Lacher filed a request for a hearing, and a
hearing was held before an Administrative Law Judge (“ALJ”) on May 16, 2017. (Tr. 34–
61.) Lacher testified at the hearing, as did Andrea Thomas, a vocational expert.
In a written decision issued June 29, 2017, the ALJ found that Lacher had the
following severe impairment: history of compression fractures. (Tr. 22.) The ALJ further

found that Lacher did not have an impairment or combination of impairments that met or
medically equaled one of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (the
“listings”). (Tr. 23.) The ALJ found Lacher had the residual functional capacity (“RFC”) to
perform sedentary work, with the following limitations: occasionally climb stairs and ramps;
never climb ladders or scaffolds; frequently balance; occasionally stoop, kneel, and crouch;
never crawl; and avoid concentrated exposure to hazards such as unprotected heights and
moving mechanical parts. (Tr. 23.) The ALJ found Lacher capable of performing his past
relevant work as a recycler. (Tr. 26–27.) As such, the ALJ found that Lacher was not disabled
from his alleged onset date through September 30, 2015, the date last insured. (Tr. 27–28.)
The ALJ’s decision became the Commissioner’s final decision when the Appeals Council
denied Lacher’s request for review. (Tr. 4–9.)
DISCUSSION
1.

Applicable Legal Standards

The Commissioner’s final decision will be upheld “if the ALJ applied the correct legal
standards and supported [her] decision with substantial evidence.” Jelinek v. Astrue, 662 F.3d
805, 811 (7th Cir. 2011) (citing 42 U.S.C. § 405(g); Castile v. Astrue, 617 F.3d 923, 926 (7th
Cir. 2010); Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009)). Substantial evidence is not
conclusive evidence; it is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Although a decision denying benefits need
not discuss every piece of evidence, remand is appropriate when an ALJ fails to provide
adequate support for the conclusions drawn. Jelinek, 662 F.3d at 811 (citing Villano v. Astrue,
556 F.3d 558, 562 (7th Cir. 2009)). The ALJ “must build an accurate and logical bridge from
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the evidence to [her] conclusion[s].” Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (citing
Green v. Apfel, 204 F.3d 780, 781 (7th Cir. 2000); Groves v. Apfel, 148 F.3d 809, 811 (7th Cir.
1998)).
The ALJ is also expected to follow the Social Security Administration’s (“SSA”)
rulings and regulations. Failure to do so, unless the error is harmless, requires reversal. See
Prochaska v. Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). In reviewing the entire record, the
court “does not substitute its judgment for that of the Commissioner by reconsidering facts,
reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility.”
Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998). Finally, judicial review is limited to the
rationales offered by the ALJ. Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) (citing SEC
v. Chenery Corp., 318 U.S. 80, 93–95 (1943); Johnson v. Apfel, 189 F.3d 561, 564 (7th Cir. 1999);
Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)).
2.

Application to this Case

Lacher argues that the ALJ erred in evaluating (1) the opinion of his treating physician,
Dr. Paul Robey, and (2) his subjective complaints of disabling symptoms.
2.1

Treating Source Opinion

An ALJ must consider all medical opinions in the record, but the method of evaluation
varies depending on the source. Generally, more weight is given to the medical opinions of
treating sources. 20 C.F.R. § 404.1527(c)(2).1 If the opinion of a treating source is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not

 On January 18, 2017, the SSA published the final rules entitled “Revisions to Rules Regarding the Evaluation
of Medical Evidence” in the Federal Register (82 Fed. Reg. 5844). The final rules became effective on March
27, 2017. For claims (like the one at issue here) filed before March 27, 2017, the SSA continues to apply the
rules that were in effect at the time of the ALJ’s decision. See 20 C.F.R. § 404.1527.
1

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inconsistent with other substantial evidence in [the] record,” the opinion must be given
“controlling weight.” Id. Even if the ALJ finds that the opinion is not entitled to controlling
weight, she may not simply reject it. Social Security Ruling (“SSR”) 96-2p. Rather, if the ALJ
finds that a treating source opinion does not meet the standard for controlling weight, she
must evaluate the opinion’s weight by considering a variety of factors, including the length,
nature, and extent of the claimant and the source’s treatment relationship; the degree to which
the opinion is supported by the evidence; the opinion’s consistency with the record as a whole;
and whether the source is a specialist. See 20 C.F.R. § 404.1527(c).
The ALJ must always give “good reasons” for the weight given to a treating
physician’s opinion. § 404.1527(c)(2); SSR 96-2p. The ALJ must give reasons “sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the
treating source’s medical opinion and the reasons for that weight.” SSR 96-2p. “An ALJ can
reject [a treating source’s] opinion only for reasons supported by substantial evidence in the
record.” Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003) (citing Moore v. Barnhart, 278
F.3d 920, 924 (9th Cir. 2002)).
As of April 2017, Lacher had seen Dr. Robey, his primary care physician, once every
six months or so since about 2000. (Tr. 431.) In 2008, Lacher fractured his back at work. (Tr.
278.) He underwent fusion surgery in July 2010. (Tr. 281–90.) Lacher appeared to be doing
well post-surgery (Tr. 312–13), but in January 2014, he complained to Dr. Robey that he had
been experiencing low-back pain for the past three days (Tr. 316). Upon physical
examination, Lacher exhibited markedly diminished flexion of the lumbar spine and
moderately diminished bilateral side bending. (Tr. 317.) Also, his gait was slow and mildly
antalgic. Dr. Robey assessed an unspecified backache, prescribed Valium, and encouraged
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Lacher to try to return to work a few days later. Lacher also had his lumbar spine x-rayed; the
x-ray revealed a compression fracture at L1 and suspicion of a minimal compression fracture
at L2. (Tr. 307–088.) Lacher’s back pain persisted (Tr. 343) and he stopped working
completely on February 13, 2014 (Tr. 195).
On February 28, 2014, Lacher presented to Dr. Robey for a preoperative evaluation
and clearance. (Tr. 317–21.) He demonstrated a normal gait, moved all four extremities with
normal range of motion, and had no joint redness, edema, or focal deficits. (Tr. 320.)
However, he did have slightly diminished flexion of the thoracolumbar spine. A few weeks
later, Lacher underwent kyphoplasty surgery at L1 and L2. (Tr. 318, 345.)
In September 2014, Lacher had an onset of back pain. (Tr. 345–46.) Physical exam
notes indicate that he was ambulatory and walking without a limp, but he exhibited some
low-back tenderness to palpation. (Tr. 346.) An x-ray revealed compression fractures at L1
and L2 with vertebral plasty changes and a new compression fracture at L5. (Tr. 342.) Lacher
continued to have back pain in October 2014. (Tr. 321, 347.) He demonstrated low-back
tenderness to palpation, had pain with range of motion of the lumbar spine, and changed
position slowly during his physical exams. (Tr. 324, 348.) Lacher was scheduled for L5
kyphoplasty on November 6, 2014. (Tr. 321.) However, the surgery was canceled on
November 5 because the most recent MRI revealed only a small endplate fracture that was
not likely amenable to kyphoplasty. (Tr. 326.)
Over the following months, Lacher displayed significant improvement with
chiropractic care. (Tr. 326, 348–60.) He reported being able to engage in more daily activities,
such as shoveling snow, with less flareup of pain. (Tr. 359.) During an appointment with Dr.
Robey on February 23, 2015, Lacher indicated that he was using only ibuprofen for pain and
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that he had consulted a lawyer about applying for disability benefits. (Tr. 325–26.) He
demonstrated moderately diminished flexion of the lumbar spine, but his gait was normal and
the straight leg raise test was negative. (Tr. 326.) Dr. Robey explained to Lacher that his back
pain probably would not get better and that he likely would have more compression fractures
in the future. (Tr. 327.) Dr. Robey suggested that Lacher check to see if his insurance would
cover maintenance chiropractic treatments. He also encouraged Lacher to stop smoking.
On March 25, 2015, Lacher presented to a new clinic complaining about low-back
pain that radiated to his left lower extremity. (Tr. 361.) He claimed that his symptoms
interfered with most activities, including bending, walking, sleeping, and working. (Tr. 362.)
On physical examination, Lacher exhibited decreased range of motion in his lumbar back.
(Tr. 365.) But his gait was normal, and he demonstrated no tenderness or deformity. The
provider reviewed Lacher’s imaging studies from 2014, noting that the fracture at L5 was
healed. He also noted that there was no evidence of increased bone activity at L5, central
canal or neural stenosis, or advanced degenerative changes. Lacher was encouraged to remain
active and continue with his chiropractic care; he was not a candidate for further surgery.
In the summer of 2015, Lacher received maintenance chiropractic treatment. (Tr. 366–
67.) During his two visits, he displayed mild to moderate grade joint restrictions, minimal to
mild graded muscle spasm/hypertonicity, and muscle shortening, but no significant palpatory
tenderness. Lacher reported he still experienced some mild pain; however, he claimed to no
longer have significant flareups, though the pain seemed to get a little worse the longer he
went between care. (Tr. 367.) During an ER visit for chest pains in September 2015, Lacher
exhibited normal range of motion and no edema or tenderness. (Tr. 410.)

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On April 20, 2017, Dr. Robey completed a “Treating Source Statement” regarding
Lacher’s physical conditions. (Tr. 431–35.) Dr. Robey opined that Lacher would be off-task
more than twenty-five percent of the typical workday and would miss four or more days of
work per month due to his impairments. (Tr. 431.) He further opined that Lacher could
frequently lift and carry less than ten pounds and could occasionally lift ten pounds. (Tr. 432.)
According to Dr. Robey, during an eight-hour workday, Lacher could sit for a total of four
hours, stand for a total of two hours, and walk for a total of two hours. He also needed to be
able to alternate between sitting and standing at will. Lacher, in Dr. Robey’s medical opinion,
needed to use a cane when he walked more than 100 yards.
As for Lacher’s nonexertional limitations, Dr. Robey opined that Lacher could
occasionally reach in all directions, frequently handle and push/pull, and continuously finger
and feel with both upper extremities. (Tr. 433.) According to Dr. Robey, Lacher had no
limitations using foot controls. He opined that Lacher could never climb stairs, ramps,
ladders, or scaffolds; could occasionally balance, stoop, kneel, crouch, and crawl; and could
continuously rotate his head and neck. (Tr. 433–34.) Finally, Dr. Robey opined that Lacher
could never be exposed to unprotected heights; rarely be exposed to moving mechanical parts;
occasionally be exposed to vibrations; and frequently operate a vehicle and be exposed to
humidity and wetness, dusts/odors/fumes/pulmonary irritants, and extreme cold or heat.
(Tr. 434.)
The ALJ assigned “some weight” to Dr. Robey’s opinion. (Tr. 26.) The ALJ found
that portions of Dr. Robey’s opinion were “somewhat consistent with the evidence showing
[Lacher] had limited range of motion and tenderness in the lumbar and thoracic spine as well
as imaging studies showing compression fractures.” (Tr. 26.) However, according to the ALJ,
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Dr. Robey’s opinion was “not fully consistent with the evidence because the physical
examinations also showed [Lacher] had a normal gait or ambulated without a limp, had
normal muscle strength, intact reflexes, and normal range of motion in all extremities.” (Tr.
26.) The ALJ further reasoned that, “other than restating the nature of [Lacher’s] conditions,
Dr. Robey failed to explain how [Lacher’s] conditions caused the limitations he opined.” (Tr.
26.)
Lacher argues that the ALJ’s step four finding is not supported by substantial evidence
because she failed to factor in the functional limitations established by Dr. Robey in the RFC
assessment. (Pl.’s Br. at 9–13, Docket # 13.) Lacher further argues that the ALJ erred in
finding that Dr. Robey’s opinion was inconsistent with the evidence in the record. (Id. at 13–
17.) The Commissioner maintains that the ALJ’s step four finding is supported by substantial
evidence, as “[t]he ALJ considered Dr. Robey’s opinion, adopting some of his limitations,
while finding that others lacked support in the record.” (Def.’s Br. at 10–14, Docket # 18.)
The ALJ did not commit reversible error in evaluating Dr. Robey’s opinion. Contrary
to Lacher’s suggestion, the ALJ did include several of Dr. Robey’s opined limitations in her
RFC assessment. The ALJ directly adopted Dr. Robey’s limitations concerning Lacher’s
ability to climb ladders and scaffolds, stoop, kneel, and crouch. (Compare Tr. 23 with Tr. 433.)
Likewise, by restricting Lacher to sedentary work—that is, work that “involves lifting no more
than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers,
and small tools,” 20 C.F.R. 404.1567(a)—the ALJ sufficiently accommodated the lifting and
carrying limitations opined by Dr. Robey (frequently lifting less than ten pounds and
occasionally lifting ten pounds). The ALJ also assigned greater restrictions than Dr. Robey
regarding Lacher’s ability to crawl and stand/walk. Dr. Robey opined that Lacher could
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crawl occasionally (Tr. 434); the ALJ found that Lacher could never crawl (Tr. 23). Similarly,
while Dr. Robey opined that Lacher could stand for a total of two hours and walk for a total
of two hours in an eight-hour workday, (Tr. 432), the ALJ’s sedentary restriction means that
Lacher could stand and walk a total of two hours combined. See SSR 96-9p. Thus, the ALJ
reasonably adopted those portions of Dr. Robey’s opinion that were consistent with the
evidence showing limited range of motion and tenderness in the spine and imaging studies
showing compression fractures.
Furthermore, the ALJ provided sufficient reasons for not adopting other portions of
Dr. Robey’s opinion. First, the ALJ determined that Dr. Robey’s more restrictive limitations
were inconsistent with the record. See 20 C.F.R. § 404.1527(c)(4) (“Generally, the more
consistent a medical opinion is with the record as a whole, the more weight we will give to
that medical opinion.”). This finding is supported by substantial evidence. Although Lacher
sometimes exhibited tenderness and limited range of motion during physical examinations,
he frequently ambulated without a limp and had a normal gait, normal muscle strength, intact
reflexes, and full range of motion. (Tr. 320, 324, 326, 346, 348, 349–50, 365, 410.) These exam
findings are inconsistent with Dr. Robey’s more restrictive limitations. To support his
argument that the ALJ’s claimed inconsistencies were “completely unsubstantiated,” Lacher
cites other evidence in the record that he believes is consistent with Dr. Robey’s opinion. (See
Pl.’s Br. at 14–16.) But all this shows is that Dr. Robey’s opinion was consistent with some
evidence but inconsistent with other evidence—a fact explicitly recognized by the ALJ.
Because certain limitations were not consistent with other substantial evidence in the record,
the ALJ appropriately did not assign controlling weight to Dr. Robey’s opinion. See
§ 404.1527(c)(2); SSR 96-2p.
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Second, the ALJ determined that Dr. Robey failed to explain how Lacher’s conditions
caused the limitations he opined. See 20 C.F.R. § 404.1527(c)(3) (“The more a medical source
presents relevant evidence to support a medical opinion, particularly medical signs and
laboratory findings, the more weight we will give that medical opinion. The better an
explanation a source provides for a medical opinion, the more weight we will give that
medical opinion.”). Substantial evidence supports this finding as well. Dr. Robey generally
asserted that his opinions were supported by Lacher’s complaints of back pain and the
imaging studies revealing compression fractures of the thoracic and lumbar vertebrae. (Tr.
432–34.) But he did not explain how those symptoms and findings supported the specific
limitations he assessed. “Where substantial evidence supports the ALJ’s disability
determination, [the court] must affirm the decision even if ‘reasonable minds could differ
concerning whether [the claimant] is disabled.’” L.D.R. by Wagner v. Berryhill, 920 F.3d 1146,
1152 (7th Cir. 2019) (quoting Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008)).
2.2

Lacher’s Subjective Symptoms

The Commissioner’s regulations set forth a two-step test for evaluating the credibility
of a claimant’s statements regarding his symptoms. First, the ALJ must determine whether
the claimant suffers from a medically determinable impairment that could reasonably be
expected to produce the alleged symptoms. SSR 16-3p. Second, if the claimant has such an
impairment, the ALJ must evaluate the intensity and persistence of the symptoms to
determine the extent to which they limit the claimant’s ability to work. Id. If the statements
are not substantiated by objective medical evidence, the ALJ must evaluate the intensity,
persistence, and limiting effects of the alleged symptoms based on the entire record and
considering a variety of factors, including the claimant’s daily activities; the location,
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duration, frequency, and intensity of the symptoms; factors that precipitate and aggravate the
symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant
takes; treatment, other than medication, used for relief of the symptoms; other measures the
claimant uses to relieve the symptoms; and any other factors concerning the claimant’s
functional limitations due to the symptoms. Id. (citing 20 C.F.R. § 404.1529(c)(3)). While an
ALJ “may discount subjective complaints of pain that are inconsistent with the evidence as a
whole . . . , the ALJ may not disregard subjective complaints merely because they are not
fully supported by objective medical evidence.” Knight v. Chater, 55 F.3d 309, 314 (7th Cir.
1995) (citations omitted). The lack of objective medical evidence is merely one factor to
consider, along with the other factors listed in § 404.1529(c)(3). Id.
After summarizing Lacher’s allegations, the ALJ began her subjective symptom
evaluation with the following paragraph:
After careful consideration of the evidence, I find that the claimant’s medically
determinable impairment could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely consistent
with the medical evidence and other evidence in the record for the reasons
explained in this decision. Accordingly, these statements have been found to
affect the claimant’s ability to work only to the extent they can reasonably be
accepted as consistent with the objective medical and other evidence.
(Tr. 24.)
Lacher argues that the ALJ erred in using this “meaningless boilerplate” language and
failed to engage in a meaningful, reviewable analysis of his subjective allegations. (Pl.’s Br. at
17–19.) In particular, he criticizes the ALJ for failing to address his hearing testimony that he
could not perform even a sit-down job because he needed to get up and walk around for about
fifteen minutes every hour. (Id. at 17 (citing Tr. 49–50).) The ALJ’s alleged failure to address
this testimony was crucial, in Lacher’s view, as the vocational expert testified that a
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hypothetical person of Lacher’s age, education, and work experience could not perform his
past job as a recycler if he needed to be off task for approximately five minutes every half
hour. (Pl.’s Br. at 17.) The Commissioner argues that the ALJ considered Lacher’s subjective
allegations of disabling symptoms, applied the correct legal standard for evaluating those
symptoms, and reasonably determined that Lacher had failed to demonstrate that he was
unable to perform sustained work activity. (Def.’s Br. at 4–10.)
While the Seventh Circuit has cautioned against the use of boilerplate, Bjornson v.
Astrue, 671 F.3d 640, 645–46 (7th Cir. 2012), the use of this language, in and of itself, does
not warrant remand. Boilerplate is only problematic when it “‘fails to inform us in a
meaningful, reviewable way of the specific evidence the ALJ considered in determining that
claimant’s complaints were not credible.’” Id. at 645 (citing Hardman v. Barnhart, 362 F.3d
676, 679 (10th Cir. 2004)). Thus, the ALJ’s use of boilerplate language in this case was not
reversible error, as the ALJ provided “sufficient reasons, grounded in evidence in the record,
to support her ultimate determination.” Murphy v. Colvin, 759 F.3d 811, 816 (7th Cir. 2014)
(citing Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013)). The ALJ’s subjective symptom
analysis began, but did not end, with the above boilerplate paragraph. Rather, the ALJ
specifically explained how the evidence of record did not fully support Lacher’s allegations
concerning the intensity, persistence, and limiting effects of his impairments.
The ALJ described in detail the objective medical evidence (Tr. 24–25) and reasonably
concluded that “[t]he medical evidence failed to indicate [Lacher] experienced symptoms that
cause work-related functional limitations beyond those described [in the RFC assessment]”
(Tr. 25). Although the record showed that Lacher had a history of compression fractures in
his lumbar spine that sometimes resulted in limited range of motion and tenderness (Tr. 308–
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10, 316–17, 320–24, 326, 342, 343–50, 365), upon physical examination, Lacher often had
normal reflexes, sensation, muscle strength, and gait (Tr. 320, 324, 326, 346, 348–50, 365,
410). Thus, the ALJ complied with SSA regulations directing adjudicators to consider “the
extent to which [the claimant’s] symptoms can reasonably be accepted as consistent with the
objective medical evidence.” 20 C.F.R. § 404.1529(a).
The ALJ also reasonably determined that Lacher “reported improvement with
chiropractic care and indicated increased ability in performing some activities of daily living.”
(Tr. 25.) After about a dozen sessions, Lacher’s chiropractor concluded that Lacher responded
very well to his care and was happy with the outcome of his treatment. (Tr. 348–60.) Indeed,
during one visit in February 2015, Lacher reported that he was “able to engage in more daily
activities like snow shoveling with less flareup.” (Tr. 359.) A few weeks later, Lacher told Dr.
Robey that he was using only ibuprofen for pain. (Tr. 326.) The ALJ therefore properly
identified Lacher’s daily activities, the effectiveness of medication, and other treatment as
factors that weighed against Lacher’s subjective allegations. See § 404.1529(c)(3)(i), (iv), (v).
Finally, the ALJ did not commit reversible error by failing to discuss specific portions
of Lacher’s testimony or functional reports. For one, ALJs do not need to “provide a complete
written evaluation of every piece of testimony and evidence” in the record. Murphy, 759 F.3d
at 815 (quoting Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)). Moreover, the
omissions alleged here were harmless. Lacher testified that he was unable to stay on task for
a sit-down job. But that was in 2017. Lacher did not testify to experiencing similar limitations
during the relevant time period—that is, between the alleged onset date (February 13, 2014)
and the date last insured (September 30, 2015). Also, contrary to Lacher’s suggestion, the ALJ
did indicate that she considered his disability and functional reports. (Tr. 24 (citing Tr. 194–
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202, 212–21, 224–39, 242–49).) And, as outlined above, the ALJ explained why she did not
fully credit those disabling allegations.
CONCLUSION
Lacher argues that the ALJ erred in evaluating (1) the opinion of his treating physician
and (2) his subjective complaints of disabling symptoms. I find that the ALJ did not err and
that the decision is supported by substantial evidence. Therefore, the Commissioner’s decision
is affirmed.
ORDER
NOW, THEREFORE, IT IS ORDERED that the Commissioner’s decision is
AFFIRMED.
IT IS FURTHER ORDERED that this action is DISMISSED. The Clerk of Court
is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 10th day of December, 2019.
BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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