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Case 2:12-cv-00191-KOB Document 9 Filed 09/19/13 Page 1 of 14

FILED

2013 Sep-19 AM 11:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

BILLY EARLY RAY,

Plaintiff

v.

MICHAEL J. ASTRUE,
Commissioner of
Social Security,

Defendant.

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Civil Action No.: 2:12-CV-00191-KOB

MEMORANDUM OPINION

I. INTRODUCTION

On August 31, 2009, the claimant, Billy Early Ray, applied for supplemental security

income under Title XVI of the Social Security Act. The claimant alleges disability commencing

on May 24, 2009 because of back and neck pain. The Commissioner denied the claim both

initially and on reconsideration. The claimant filed a timely request for a hearing before an

Administrative Law Judge, and the ALJ held a hearing on January 31, 2011. (R. 19, 21). In a

decision dated May 12, 2011, the ALJ found that the claimant was not disabled as defined by the

Social Security Act and, thus, was ineligible for supplemental security income. (R. 25). On

November 23, 2011, the Appeals Council denied the claimant’s request for review;

consequently, the ALJ’s decision became the final decision of the Commissioner of the Social

Security Administration. (R. 4). The claimant has exhausted his administrative remedies, and

this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated

below, this court affirms the decision of the Commissioner.

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II. ISSUES PRESENTED

The claimant presents three issues for review: (1) whether the ALJ made a factually

inconsistent residual functional capacity (“RFC”) finding, (2) whether the ALJ adequately

considered the evidence of record, and (3) whether the ALJ properly developed the record.

III. STANDARD OF REVIEW

The standard for reviewing the Commissioner’s decision is limited. This court must

affirm the Commissioner’s decision if the Commissioner applied the correct legal standards and

if the factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g);

Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999

(11th Cir. 1987).

“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,

including determination of the proper standards to be applied in evaluating claims.” Walker, 826

F.2d at 999. This court does not review the Commissioner’s factual determinations de novo. The

court will affirm those factual determinations that are supported by substantial evidence.

“Substantial evidence” is “more than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402

U.S. 389, 401 (1971).

The court must “scrutinize the record in its entirety to determine the reasonableness of

the [Commissioner]’s factual findings.” Walker, 826 F.2d at 999. A reviewing court may not

look only to those parts of the record that support the decision of the ALJ, but instead must view

the record in its entirety and take account of evidence that detracts from the evidence relied on

by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).

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IV. LEGAL STANDARD

Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the

person cannot “engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death or which

has lasted or can be expected to last for a continuous period of not less than 12 months.” 42

U.S.C. § 423(d)(1)(A). To make this determination, the Commissioner employs a five step,

sequential evaluation process:

(1) Is the person presently unemployed?
(2) Is the person's impairment severe?
(3) Does the person's impairment meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?

An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative answer
to any question, other than step three, leads to a determination of "not disabled."

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986); See 20 C.F.R. §§ 404.1520, 416.920.

In determining a claimant’s RFC the ALJ should consider “all the ‘relevant medical and

other evidence.’” Siverio v. Comm'r of Soc. Sec., 461 F. App'x 869, 871 (11th Cir. 2012)

(quoting 20 C.F.R. § 404.1545(a)(3)). However, the ALJ need not “specifically refer to every

piece of evidence in his decision.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005).

In evaluating pain and other subjective complaints, the Commissioner must first consider

whether the claimant demonstrated an underlying medical condition, and then “either (2)

objective medical evidence that confirms the severity of the alleged pain arising from that

condition or (3) that the objectively determined medical condition is of such a severity that it can

be reasonable expected to give rise to the alleged pain.” Holt v. Sullivan, 921 F.2d 1221, 1223

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(11th Cir. 1991) (emphasis added); see also Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.

2002); 20 C.F.R. § 404.1529.

While the burden rests with the claimant to prove a disability, the ALJ has a duty to

develop a full and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); 20

C.F.R. § 416.912(c). This duty may include ordering a consultative evaluation. Holladay v.

Bowen, 848 F.2d 1206, 1209 (11th Cir. 1988) (internal citations omitted). However, the duty

does not include “order[ing] a consultative examination [when] the record contains sufficient

evidence for the administrative law judge to make an informed decision.” Ingram v. Comm’r of

Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007).

V. FACTS

The claimant has a G.E.D. and was fifty-three years old at the time of the administrative

hearing. (R. 66). His past work experience includes employment as a trash collector. The

claimant alleged he has been unable to work because of back and neck pain since May 24, 2009.

He claimed that injuries from a car accident in his personal vehicle on that day cause his back

and neck pain. (R. 24, 107-08).

Physical Limitations

Four days after the car accident, the claimant reported visiting the UAB Bessemer

emergency room and, on the same date, a chiropractor, Dr. Gerald J. Collins. The claimant

reported receiving medication and physical therapy, respectively. The Social Security

Administration was unsuccessful in obtaining records from either source. (R. 131-132, 184).

On November 7, 2009, Dr. Sharman Sanders conducted a consultative examination on

the claimant. Dr. Sanders noted that the claimant made multiple sudden movements, moved his

neck in between “form exams,” bent over to put on his shoes and socks and easily got on and off

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the exam table. Further, Dr. Sanders stated that the claimant appeared intoxicated with slurred

speech. The claimant admitted to Dr. Sanders he had four beers before the examination. (R.

193-195). Dr. Sanders reported that the claimant’s motor strength in his “[b]ilateral deltoid and

iliopsoas was a 3/5 … Otherwise he is a 5/5 throughout.” The claimant had “normal muscle bulk

and tone.” Before Dr. Sanders could finish testing his strength, however, the claimant became

uncooperative and ended the examination. (R. 196).

On December 17, 2009, Dr. Robert G. Macgregor, treated the claimant for a seizure he

suffered a month prior while drinking with friends. Dr. Macgregor scheduled a brain and spine

MRI and started a trial of Flexeril. (R. 246).

On February 11, 2010, the claimant returned to Dr. Macgregor complaining of knee pain

and swelling. Dr. Macgregor reported that the NCS/EMG indicated the claimant suffered from

C8 radiculopathy and that the claimant’s EEG was normal. He also stated the claimant had

normal bulk and tone and “strength limited by pain in L deltoid, bicep. Otherwise he is 5/5.”

For the seizures, he prescribed no medication but did counsel the claimant about alcohol abuse.

He also ordered a second MRI, continued the Flexeril medication and suggested trying

Neurontin. (R. 231).

On March 10, 2010, the claimant saw Dr. Thomas Stewart Huddle for routine medical

treatment and an MRI with Dr. Siddhartha Gaddamanugu. At the appointment, the claimant

reported suffering whiplash from a second car accident five days prior. The accident occurred in

his driveway while he and a friend were drinking in the car. The claimant did not visit the

emergency room after this accident; instead, the claimant took Aleve and Flexeril “with some

relief.” (R. 225-226). The MRI demonstrated lower cervical spondylosis and mild canal

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It is not clear whether the “1-2 beers/day” or morning beer before his appointment contributed to the claimant’s
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relief. (R. 225).

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narrowing. (R. 278-279). Dr. Huddle had the claimant continue the Flexeril and prescribed

sixty mg of Motrin every eight hours for two weeks. (R. 225-226). Further, Dr. Huddle made an

out-patient request for physical therapy. (R. 261-262).

The ALJ Hearing

After the Commissioner denied the claimant’s request for supplemental security income,

the claimant requested and received a hearing before the ALJ. (R. 64).

The claimant testified that when walking ten to fifteen feet or more than half a block, he

experiences numbness in his right arm and leg. (R. 69-70). He testified that this numbness was

not painful. However, he clarified that the pain further limited his physical abilities because he

would “catch a grabbing pain” if he rotated his neck. (R. 71). He testified that the pain and

numbness would prevent him from holding a gallon of milk (R. 70), holding a railing (R. 81), or

washing the dishes without breaks. (R. 79). But he testified that the numbness and pain did not

prevent him from getting dressed (R. 71), but did stop him from bending over or squatting down

(R. 73). He also testified that the plain required him to wear a back and neck brace. (R. 77). He

further testified that the pain can reach a level of nine on a scale of one to ten. (R. 79).

The claimant testified that seeing a chiropractor did not help with the pain. He was

unsure of exactly what medicine he was taking, but he stated that they “kind of help.” The

medication did, however, also make him sleepy. He also testified that the medication “lasts a

while” but that the pain is still there when he wakes up. (R. 72).

A vocational expert, Dr. Kessler, testified concerning the type and availability of jobs

that the claimant was able to perform. (R. 82-85). He classified the claimant’s previous work

experience as a trash or garbage collector as unskilled and very heavy. When the ALJ asked him

whether a hypothetical individual limited to light work could work as a trash collector, Dr.

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Kessler responded that such an individual could not. (R. 82-83). Specifically, the ALJ

hypothesized about an individual “limited to light work, provided there’s no climbing or ladders,

ropes, or scaffolds,” and no frequent stooping or kneeling. The ALJ further limited the

individual to “moderate limits in exposure to unprotected heights.” The ALJ then asked what

jobs, if any, would such an individual with an age range of 52-53 and a 12th grade education be

able to perform. Dr. Kessler responded that such an individual could perform the jobs of

“machine operator or tender,” DOT 920.685-022, and of “assemblers and production workers,”

DOT 706.684-022. (R. 83).

The ALJ’s Decision

On May 12, 2011, the ALJ issued a decision finding the claimant was not disabled under

the Social Security Act. (R. 25). First, the ALJ found that the claimant had not engaged in

substantial gainful activity since the alleged onset of his disability. Next, the ALJ found that the

claimant’s back and neck pain qualified as a severe impairment; however, it did not manifest the

specific signs and diagnostic findings required by the Listing of Impairments. (R. 21).

The ALJ then considered the claimant’s subjective allegations of pain to determine his

residual function capacity. The ALJ concluded that “the claimant’s medically determinable

impairment could reasonably be expected to cause the alleged symptoms,” but that the “the

claimant’s statements concerning the intensity, persistence and limiting effects of this symptoms

are not credible.” (R. 22-23).

To support his conclusion, the ALJ first referenced Dr. Sanders’ consultative

examination. The ALJ found that this exam hurt the claimant’s credibility because his report

conflicts with several of the claimant’s statements. The ALJ found that, despite the claimant’s

assertion that he always wears a back brace, he was not wearing one at the time of the

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examination. Next, the ALJ found that, despite the claimant’s alleged inability to move his neck,

he was “bending his chin all the way down to his chest and moving his neck around without any

apparent problems.” The ALJ also noted that, again, despite the claimant’s assertion that he was

unable to bend over, Dr. Sanders observed the claimant “reach down, bend over [to the floor],

and retrieve his shoes and socks, without any evidence of pain.” Further, the ALJ stated that Dr.

Sanders “believes the claimant’s motor strength is 5/5.” (R. 23).

The ALJ then discusses the consistency of Dr. Sanders’ assessment with the other

medical evidence on record. He noted that the “MRI findings were generally unremarkable.”

He relied on Dr. Gaddamanugu’s assessment “that claimant’s spinal X-rays of cervical and

thoracic were normal.” He also noted that the head CT scan “showed no evidence for acute

intracranial pathology” and that the claimant’s “EEG was normal.” Id.

Thus, the ALJ found that the claimant could “perform light work, except that claimant

can never climb ladders, ropes, or scaffolds, can only frequently crouch, stoop and kneel, and

can frequently be exposed to unprotected heights.” (R. 22). The ALJ, in making the RFC

finding, gave the greatest weight to Dr. Sanders but also gave significant weight to the other

medical evaluations. He further stated that the other evaluations were “consistent with the total

medical evidence.” (R. 24).

Next, the ALJ determined that the claimant was unable to perform any past relevant

work. However, relying on the testimony from the vocational expert, he found that the claimant

could perform jobs that exist in significant number in the national economy. (R. 24).

Specifically, he found that the claimant could perform the jobs of machine tender and of

assembler production. Based on these findings, the ALJ concluded that the claimant is not

disabled under the Social Security Act. (R. 25).

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VI. DISCUSSION

After careful review, the court concludes that the ALJ applied the correct legal standards

and substantial evidence supports his decision. The court addresses the claimant’s arguments

below.

Factual Inconsistency in the ALJ’s RFC Finding

The claimant first argues the ALJ committed error by finding the claimant could not

climb ladders, ropes or scaffolds, yet could frequently be exposed to unprotected heights. The

claimant contends these findings are mutually exclusive because there is “no provision for the

claimant to get up or down from the heights he can purportedly work … or for the type of

platform this individual is to work on with protection if not some type of scaffold.” (PL.’s Mem.

5-6). However, even if the court accepts this argument, this inconsistency would be a harmless

error.

When the ALJ found that the claimant could perform jobs in the national economy, he

relied on the Vocational Expert’s testimony at the Oral Hearing. (R. 24-25). The ALJ asked the

Vocational Expert about professions with “moderate limits in exposure to unprotected heights.”

(R. 83). However, the Vocational Expert answered with occupations, machine operator and

assembler, that do not include any exposure to unprotected heights. Id.; see DOT Listing No.

920.685-022 available at DICOT § 920.685-022; see DOT Listing No. 706.684-022 available at

DICOT § 706.684-022. Thus, any error regarding the claimant’s ability or inability to work at

unprotected heights is harmless. See Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989) (“No

principle of administrative law or common sense requires us to remand a case in quest of a

perfect opinion unless there is reason to believe that the remand might lead to a different

result.”).

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Consideration of the Record

Next, the claimant argues that, in his determining his RFC, the ALJ did not adequately

consider the entire record and over relied on Dr. Sanders’ consultative examination.

Specifically, the claimant contends that the ALJ erred by failing to cite to any medical evidence

after November 2009. The claimant further argues that the ALJ based his RFC finding solely on

Dr. Sanders’ consultative examination, ignoring other medical evidence and testimony. To the

contrary, the court finds the ALJ properly considered the medical evidence on record and

discredited the claimant’s testimony.

“The ALJ makes an RFC finding based on all the ‘relevant medical and other

evidence.’” Siverio v. Comm'r of Soc. Sec., 461 F. App'x 869, 871 (11th Cir. 2012) (quoting 20

C.F.R. § 404.1545(a)(3)). However, “there is no rigid requirement that the ALJ specifically refer

to every piece of evidence in his decision.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir.

2005). The ALJ’s findings only must indicate the ALJ “considered [the claimant’s] medical

condition as a whole.” Id. (internal quotation marks omitted) (quoting Foote v. Chater, 67 F.3d

1553, 158 (11th Cir. 1995)).

The claimant’s contention that the ALJ did not consider any medical evidence after

November 2009 lacks merit. The ALJ explicitly referenced Dr. Huddle’s treatment of the

claimant in March of 2010. He specifically cited the 2010 MRI and referenced the interpreting

physician. He noted that Dr. Gaddamanagu “opined that no thoracic spine fracture or

subluxation identified.” (R. 23). The claimant highlights the omission of his March 4, 2010 car

accident and resulting whiplash, continued back and neck pain, and treated radiculopathy (Pl.’s

Mem. 7-8); however, the ALJ did find that the claimant suffered back and neck pain caused by

“underlying medically determinable … impairment(s).” (R. 21-22); see Holt, 921 F.2d at 1223.

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The issue is not whether the claimant has back and neck pain caused by an underlying medical

condition; the issue is the extent and the severity of the pain. Here, the claimant does not point

to any medical evidence or any treating physician’s opinion, and the court finds none in the

record, that conflict with the ALJ’s determination of the extent or severity of the claimant’s pain

or his overall RFC assessment. Thus, the ALJ adequately considered the “relevant medical …

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evidence” in making his RFC determination. See Siverio, 461 F. App'x at 871.

When a claimant attempts to establish disability through his testimony of pain or other

subjective symptoms, the three-part pain standard applies. Holt v. Sullivan, 921 F.2d 1221, 1223

(11th Cir. 1991). To meet the pain standard, a claimant must demonstrate “(1) evidence of an

underlying medical condition and either (2) objective medical evidence that confirms the

severity of the alleged pain arising from that condition or (3) that the objectively determined

medical condition is of such a severity that it can be reasonable expected to give rise to the

alleged pain.” Id. (emphasis added). A claimant’s subjective testimony supported by medical

evidence that satisfies the pain standard is sufficient to support a finding of disability. Foote v.

Charter, 67 F.3d 1553, 1561 (11th Cir. 1995).

The ALJ may discredit a claimant’s subjective testimony of pain if he does so

specifically and articulates his reasons for doing so. Brown v. Sullivan, 921 F.2d 1233, 1236

(11th Cir. 1991). Failure to articulate adequate reasons for discrediting the claimant’s subjective

complaints of pain requires that the testimony be accepted as true. Id. However, “[a] clearly

articulated credibility finding with substantial supporting evidence in the record will not be

disturbed by a reviewing court.” Foote, 67 F.3d at 1562 (other citations omitted).

In fact, Dr. Macgregor’s opinion of the claimant’s motor strength, omitted from the ALJ’s decision, mirrors Dr.
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Sanders’ opinion. (R. 231).

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The ALJ explicitly articulated his reasons for discrediting the claimant’s alleged severity

and limiting effect of his pain. When discrediting the claimant’s testimony, the ALJ specifically

noted numerous inconsistencies in the claimant’s previous statements. For example, despite the

claimant’s stated inability to “even bend over,” the ALJ “observed him bend over at the

hearing.” The claimant claimed “he wears a brace all the time,” yet did not wear one to his

medical evaluation with Dr. Sanders. (R. 22). The ALJ cited Dr. Sanders’ statement that the

claimant made several sudden movements, rotated his neck and bent over to pick up his shoes

and socks. The ALJ also noted Dr. Sanders’ observation that the claimant only seemed to have

trouble moving during specific portions of the exam. (R. 23). And, as discussed above, the

other medical records and opinions do not contradict Dr. Sanders’ or the ALJ’s assessment.

Thus, the ALJ’s discrediting of the claimant’s testimony was supported by substantial evidence,

and the court will not second guess the ALJ’s credibility determination. See Foote, 67 F.3d at

1562.

Development of the Record.

Finally, the claimant argues the ALJ should have ordered a second consultative medical

examination pursuant to 20 C.F.R. 416.919(a) or considered a medical expert opinion pursuant

to 20 C.F.R. 416.929(b). According to the claimant, this omission amounts to a breach of the

ALJ’s duty to develop the record. For reasons discussed below, the court concludes that the ALJ

was not required to obtain a consultative examination or medical expert opinion.

As the claimant notes, the ALJ has a duty to develop a full and fair record. Ellison v.

Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); Cowart v. Schweiker, 662 F.2d 731, 735 (11th

Cir. 1981). Nevertheless, the burden remains with the claimant to prove that he is disabled and

to produce medical evidence supporting his claim. 20 C.F.R. § 416.912(c); Ellison, 355 F.3d at

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1276. The ALJ’s duty to develop the record encompasses an obligation to order a consultative

evaluation when one is needed to make an informed decision. Holladay v. Bowen, 848 F.2d

1206, 1209 (11th Cir. 1988) (citing Reeves v. Heckler, 734 F.2d 519, n.1 (11th Cir. 1984)).

However, the ALJ is “not required to order a consultative examination as long as the record

contains sufficient evidence for the administrative law judge to make an informed decision.”

Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007). Normally, a

consultative examination is only required when “necessary information is not in the record and

cannot be obtained from the claimant’s treating medical sources or other medical sources.”

Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001) (citing 20 C.F.R. § 404.1519a).

In this case, the record held sufficient evidence for the ALJ to determine the claimant’s

RFC without ordering a consultative evaluation. The record documents evidence of the

claimant’s underlying medical condition through lab tests (R. 253-260), a psychiatric review (R.

199-212), MRI results (R. 273-282), and multiple medical progress reports from multiple

physicians (R. 213-252). Further, the claimant testified as to the disabling nature of his back and

neck pain and already had a consultative examination with Dr. Sanders. (R. 62-85, 192-196).

Unfortunately, during the examination Dr. Sanders was “unable to evaluate the full severity of

the problem” caused by the claimant’s lack of cooperation. (R. 196). While a completed

examination would give a greater degree of certainty as to the severity of the claimant’s

symptoms, “the statute does not require absolute certainty; it requires only substantial evidence

to sustain the [Commissioner’s] findings.” Holladay, 848 F.2d at 1210. Dr. Sanders’

examination and the record documents provided substantial evidence to support the ALJ’s

findings, and a second consultative examination was not necessary for the ALJ to make an RFC

assessment.

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Further, the ALJ did not err by failing to ask for a medical expert opinion to support his

RFC findings. Determining the claimant’s RFC is not a medical assessment. Langley v. Astrue,

777 F. Supp. 2d 1250, 1261 (N.D. Ala. 2011). Thus, the ALJ is not required to rely on an expert

medical opinion in making the RFC assessment. Id. The substantial evidence in the record

supports the ALJ’s RFC assessment.

VII. CONCLUSION

For the reasons stated above, this court concludes that the decision of the Commissioner

is supported by substantial evidence and is to be AFFIRMED. The court will enter a separate

order to that effect simultaneously.

DONE and ORDERED this 19th day of September, 2013.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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