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Case: 4:12-cv-00933-TCM Doc. #: 20 Filed: 09/19/13 Page: 1 of 29 PageID #: 339

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

DEBORA J. JACKSON,

Plaintiff,

vs.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1

Defendant.

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) Case number 4:12cv0933 TCM
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MEMORANDUM AND ORDER

This 42 U.S.C. § 405(g) action for judicial review of the final decision of Carolyn W.

Colvin, the Acting Commissioner of Social Security (Commissioner), denying the application

of Debora Jackson (Plaintiff) for disability insurance benefits (DIB) under Title II of the

Social Security Act (the Act), 42 U.S.C. § 401-433, is before the undersigned United States

Magistrate Judge by written consent of the parties. See 28 U.S.C. § 636(c). Plaintiff has

filed an opening brief and reply brief in support of her complaint; the Commissioner has filed

a brief in support of her answer.

Procedural History

Plaintiff applied for DIB in February 2009, alleging a disability onset date of March

30, 2003, caused by back problems, carpal tunnel syndrome in both wrists, and rheumatoid

1Carolyn W. Colvin became the Acting Commissioner of Social Security in February 2013 and

is hereby substituted for Michael J. Astrue as defendant. See 42 U.S.C. § 405(g).

Case: 4:12-cv-00933-TCM Doc. #: 20 Filed: 09/19/13 Page: 2 of 29 PageID #: 340

arthritis in both wrists. (R.2 at 101-03, 134.) Her application was denied initially and after

a hearing held in March 2010 before Administrative Law Judge (ALJ) Michael D. Mance.

(Id. at 13-23, 27-55, 58-62.) The Appeals Council denied Plaintiff's request for review,

thereby effectively adopting the ALJ's decision as the final decision of the Commissioner.

(Id. at 1-3.)

Testimony Before the ALJ

Plaintiff, represented by counsel, and James E. Israel, L.P.C., C.V.E., C.R.C.,

3

testified at the administrative hearing.

At the beginning of the hearing, Plaintiff amended her alleged disability onset date to

June 16, 2008.4 (Id. at 129.)

Plaintiff testified that she was then fifty-one years old. (Id. at 34.) She lives with her

husband in a trailer. (Id. at 34-35.) Her husband works. (Id. at 39.) She has a General

Equivalency Degree (GED). (Id. at 34.)

Plaintiff's last job was as a bartender. (Id. at 35.) This was in 2007 and 2008, and was

part-time. (Id.) Before that she had last worked in 2003. (Id.

) There was a gap in her

2References to "R." are to the administrative record filed by the Acting Commissioner with

her answer.

3L.P.C. is an abbreviation for Licensed Professional Counselor; C.V.E. is for Certified

Vocational Evaluator; C.R.C. is for Certified Rehabilitation Counselor.

4An earlier application for DIB had been denied at the initial level in February 2006 and not

pursued further. (Id. at 131.)

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earnings because she had been unable to work. (Id.) During that gap, there were several jobs

she had worked at for only a brief time due to her back pain. 5 (Id. at 35-36.)

She is no longer working because she cannot find a job she can do. (Id. at 37.) She

cannot sit or stand for a long period of time because of hand and back pain. (Id.) She cannot

lift anything over five pounds because of her back problems. (Id.

) This restriction was

placed on her in 1979 by the doctor who treated her for a back injury. (Id.)

Asked what she does during the day, Plaintiff explained that she takes care of their

house, i.e., general household chores, such as cleaning and laundry, and cooks. (Id. at 39-

40.) She cannot grasp dishes tightly enough to wash them, and has to rest often while

vacuuming. (Id. at 40.) She sometimes has trouble buttoning her clothes and tying her shoes.

(Id.)

Plaintiff can walk no farther than a couple of blocks. (Id. at 42.) If she did not have

to walk, she could stand for two or three hours at a time. (Id.

) She could sit for

approximately the same length before having to stand up and stretch. (Id.) When riding in

a car, she has to stop approximately every two hours. (Id. at 43.) Sometimes, she has to lie

down to relieve her back pain. (Id.

at 45.) She has a traction set at home that she

occasionally uses to relieve that pain. (Id. ) Sometimes she uses the traction every three

months; sometimes it is once a year. (Id.) In a typical week, she probably lies down two or

three times to relieve the back pain. (Id. at 46.) There is no set time for how long she needs

5The attorney who represented Plaintiff had the administrative level explained at the beginning

of the hearing that the alleged impairments listed on her DIB application were based on Plaintiff's
interpretation of what she had been told by her doctors. (Id. at 33.)

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to rest. (Id.) Her back pain is constant, but varies in intensity. (Id.) Problems with her hand

require that she rests for approximately thirty to sixty minutes after washing dishes for ten

minutes. (Id.) She sometimes has problems cooking and doing laundry because of her hands.

(Id.) For instance, she has difficulties lifting a heavy skillet or peeling potatoes. (Id.)

Plaintiff has not received any medical treatment because she does not have any

insurance and cannot afford it. (Id. at 40.) She had gone to a clinic, Volunteers in Medicine,

in July 2007, September 2007, and January 2009. (Id. at 41.) They were able only to give

her medication for her pain and muscle spasms. (Id.) She takes Tylenol with codeine for the

pain and Flexeril for the muscle spasms. (Id. ) She is also taking an anti-depressant after

losing seven members of her family. (Id. at 41-42.) Plaintiff has not seen a mental health

professional for her depression. (Id. at 47.) She did not "feel that it was that bad." (Id.)

Plaintiff smokes one-half pack of cigarettes a day. (Id. at 43.)

Plaintiff further testified that she worked as "an expeditor." (Id. at 44.) When she had

a scheduling job, she had to move totes around. (Id. ) These weighed up to fifty pounds.

(Id.) Asked how long she could stand before having to sit down, Plaintiff replied

"[p]robably" no longer than three to four hours. (Id.)

Mr. Israel testified as a VE. He classified Plaintiff's past job doing electrical solder

factory work and her job as a line lead worker as medium-strength and semi-skilled; as a

bartender as light, semi-skilled; and as a scheduling supervisor as she described it as medium,

semi-skilled and as generally performed as light, semi-skilled. (Id. at 48-49.)

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The ALJ asked him to assume a hypothetical person of Plaintiff's age, education, and

work experience who is limited to the light exertional level. (Id. at 49.) This person can

frequently climb stairs and ramps; can not climb ropes, ladders, and scaffolds; can frequently

balance, stoop, kneel, crouch, and crawl; can frequently, not constantly, do gross

manipulation; and should avoid concentrated exposure to extreme cold, unprotected heights,

and excessive vibration. (Id.) The VE replied that this person could perform only Plaintiff's

past work as a scheduling supervisor as that job is defined in the Dictionary of Occupational

Titles (DOT). (Id. at 50.)

If the hypothetical person is limited to light exertional level, as before, but can only

occasionally balance, stoop, kneel, crouch, crawl, and climb stairs and ramps; can not climb

ropes, ladders, and scaffolds; can frequently, not constantly, do gross manipulation; and

should avoid concentrated exposure to extreme cold, unprotected heights, and excessive

vibration, this person can still perform Plaintiff's past work as a scheduling supervisor as the

job is defined in the DOT. (Id. at 50-51.)

If the hypothetical person also needs to frequently rotate positions, is limited to no

more than occasional gross manipulation, and otherwise has the same limitations as the

second hypothetical person, she will not be able to perform Plaintiff's past work, primarily

because such work requires more than occasional handling. (Id. at 51.) Nor will there be any

other jobs the person can perform given the her age and educational background. (Id.)

The VE testified that his information is consistent with that in the DOT "and its

companion publications." (Id. at 52.)

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Medical and Other Records Before the ALJ

The documentary record before the ALJ included forms Plaintiff completed as part of

the application process, documents generated pursuant to her application, records from health

care providers, and assessments of her physical functional capacities.

When applying for DIB, Plaintiff 's attorney completed a Disability Report on her

behalf. (Id. at 133-38.) Plaintiff is 5 feet tall and weighs 105 pounds. (Id.

at 133.) Her

impairments, see pages 1 to 2, supra, limit her ability to work by causing her constant back

and wrist pain and by preventing her from standing or sitting for long periods of time, from

lifting anything heavier than five pounds, and from gripping anything "very well." (Id. )

These impairments first limited her ability to work on March 30, 2003, and stopped her from

working that same day. (Id.) She listed two jobs that she had held in the past fifteen years.

(Id. at 134-36.) The job she had held the longest was as an electrical solder. (Id. at 135.)

From 2001 to 2003, she had worked as a scheduling supervisor. (Id.

) She described the

requirements of the soldering job, but not of the scheduling supervisor job. She had not seen

any doctors or gone to any hospitals or clinics since November 2003. (Id. at 136-37.) Her

only medication was Tylenol. (Id. at 137.)

On a Work History Report, Plaintiff did describe the requirements of her scheduling

supervisor job. (Id. at 140-47.) This job required that she walk for a total of one hour each

day; stand for one hour; sit for six hours; handle, grab, or grasp big objects for four hours;

reach for two hours; and write, type, or handle small objects for four hours. (Id. at 142.) She

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did not have to carry anything. (Id.) The heaviest weight she lifted was less than ten pounds.

(Id. at 143.)

Plaintiff completed a Function Report. (Id. at 152-59.) Asked to describe what she

does from when she awakes until she goes to bed at night, she reported that, after showering,

she fixes breakfast, does the dishes, does laundry, if necessary, dusts "a little," makes the

beds, has lunch, "get[s] something out for dinner," and does the dishes. (Id. at 152.) She

cannot work in the yard or do deep cleaning, e.g., wash the windows or mop. (Id. at 153.)

Sometimes, her back pain affects her sleep. (Id.) She has difficulty with buttons, brushing

her hair, and using a curling iron. (Id. ) She daily prepares the meals for herself and her

husband. (Id. at 154.) These take approximately thirty minutes. (Id.) It takes two and one-

half to three hours to do her household chores. (Id.) She drives a car, and shops for groceries

once a week for one and one-half to two hours. (Id. at 155.) She does not have any hobbies,

nor did she have before her impairments. (Id. at 156.) Once or twice a week, she talks on

the telephone with her children or parents and visits her parents. (Id.

) Because of her

impairments, she cannot pick up her grandchildren, play with them, or attend their sporting

events. (Id. at 157.) She follows written and spoken instructions very well. (Id.

) Her

impairments adversely affect her abilities to lift, squat, bend, stand, walk, sit, kneel, climb

stairs, and use her hands. (Id.) The farthest she can walk is three blocks before having to rest

for a few minutes. (Id.) She finishes what she starts. (Id. ) She gets along very well with

authority figures. (Id. at 158.) She also handles stress and changes in routine very well. (Id.)

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Plaintiff completed a Disability Report – Appeal form after the initial denial of her

application. (Id. at 178-84.) Beginning in May 2008, her pain, grip strength in her wrists,

and range of motion in her wrists had become progressively worse. (Id. at 179.) The over-

the-counter medication was not as effective as before. (Id.

) She cannot stand for long

periods of time, cannot bend at the waist, and cannot lift anything heavier than five pounds.

(Id.) Her wrists were becoming numb more frequently. (Id.

) Turning her wrists was

becoming more painful. (Id.) She did not have any new illnesses or impairments. (Id.) Dr.

David Brown prescribed Advil, Tylenol Arthritis, and Tylenol PM for her pain. (Id. at 181.)

On other forms asking for information about medications and recent medical treatment,

Plaintiff reported that she had seen Dr. Nancy Noel in November 2009 and had been

prescribed Flexeril for muscle spasms, Wellbutrin for depression, prednisone for arthritis and

back problems, and Tylenol with codeine for pain. (Id. at 186-87.)

Plaintiff had reported annual earnings from 1981 to 2005, inclusive, 2007, and 2008.

(Id. at 120.) Her earnings steadily increased from 1999 to 2003. (Id.) Her highest annual

earnings were in 2003, $28,047.6 (Id.) They dropped to $9,258 in 2004 and $128 in 2005.

(Id.) She had no reported earnings in 2006. (Id. ) In 2007, she earned $793; in 2008, she

earned $2,025. (Id.)

The medical records before the ALJ were, with the exception of those of Volunteers

in Medicine, generated pursuant to Plaintiff's worker's compensation case or her DIB

application.

6The amounts have been rounded to the nearest dollar.

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The records from Volunteers in Medicine begin on January 19, 2009, when Plaintiff

saw D. Dorrell, R.N., about a knot under her left arm. (Id. at 219.) Also, she was depressed,

having lost seven family members in the past three months. (Id.) The nurse could not feel

the knot. (Id.) Plaintiff was prescribed Wellbutrin to be taken daily for six weeks, at which

time Plaintiff was to stop taking it. (Id.)

Plaintiff consulted Nancy Noel, M.D., with Volunteers in Medicine on November 23

for complaints of back pain that was an eight on a ten-point scale and radiated down her legs.

(Id. at 218.) The pain was chronic, and had worsened over the past two months. (Id.

)

Typically, it flared up when the weather was cold and damp. (Id. ) She was applying for

disability. (Id. ) She reported that she fractured her tailbone in 1979 and had

spondylolisthesis. (Id.) She could not bend, nor could she sit or stand for any length of time.

(Id.) She became stiff if she stayed in bed too long, and sometimes was unable to get out of

bed. (Id.) On examination, she had a decreased range of motion in her lumbosacral spine.

(Id.) Dr. Noel detected no radiculopathy. (Id.) Dr. Noel diagnosed acute and chronic back

pain, and noted that the pain was "prob[ably] arthritic." (Id.

) She prescribed Plaintiff

Flexeril, Tylenol with codeine, prednisone, and Wellbutrin. (Id.) When Plaintiff telephoned

in February 2010 for refills, a nurse informed her that she would need to make an

appointment and should go to an emergency room if the pain was severe. (Id.)

The records relating to Plaintiff's worker's compensation claim begin when she

consulted David Brown, M.D., with the Orthopedic Center of St. Louis in November 2003

about her left thumb. (Id. at 232.) She had had pain in the thumb for the past two months

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after injuring it at work. (Id. ) X-rays revealed arthritis in the thumb. (Id. ) Dr. Brown

recommended an injection; Plaintiff declined. (Id. ) She was given a thumb splint and a

prescription for a non-steroidal anti-inflammatory medication. (Id.) She was to return in one

month. (Id.) She was released to return to work without restrictions. (Id.)

When Plaintiff saw Dr. Brown again in February 2004 she had no tenderness at the

base of the thumb. (Id. at 231.) Her symptoms were described as being improved. (Id.) She

was "minimally symptomatic." (Id.)

Plaintiff next saw Dr. Brown in November 2005, reporting increased pain at the base

of her left thumb and some pain at the base of her right thumb. (Id.

at 228-29.) On

examination, she had "visible signs of osteoarthritis at the base of her left thumb." (Id. at

228.) Dr. Brown again recommended a steroid injection, thumb splint, and non-steroidal

anti-inflammatory medication. (Id.) Dr. Brown explained that the cause of her pain was "a

medical condition related to the natural aging process." (Id.

at 229.) He released her to

return to full duty with no restrictions. (Id.

) His recommendations and release did not

change after he saw Plaintiff again in December. (Id. at 227.)

On February 14, 2006, Plaintiff reported to Dr. Brown that she was continuing to have

pain at the base of her left thumb and was beginning to have pain at the dorsum of the left

wrist and to have numbness and tingling in her fingertips. (Id. at 225-26.) Her grip strength

in her left hand was eleven pounds and in her right hand was thirty-nine pounds. (Id.

at 225.)

Dr. Brown recommended she have a magnetic resonance imaging (MRI) of her left wrist to

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evaluate the soft tissues in that hand and have nerve conduction studies. (Id.

at 226.) As

before, he released her to return to work without restrictions. (Id.)

After undergoing the MRI, Plaintiff returned to Dr. Brown on February 28. (Id. at

224.) The MRI revealed osteoarthritic changes at the base of her left thumb and osteoarthritic

changes at the lunocapitate articulation consistent with osteoarthritis. (Id.) Dr. Brown again

discussed with Plaintiff his opinion that her pain was attributable to osteoarthritic changes

and not to a work-related injury. (Id.)

Also pursuant to her worker's compensation claim, Plaintiff was examined by Jerome

F. Levy, M.D., in October 2004 and again in April 2006. (Id. at 211-16.) When seen by Dr.

Levy in 2004, Plaintiff reported that she was having pain and intermittent numbness in her

hands and wrists after doing hand-intensive work for the past two years. (Id. at 214.) Her

hands were frequently swollen and increasingly weak. (Id.

) On examination, she had

tenderness in the dorsum of the left wrist and moderate discomfort with motion of both

wrists, the left worse than the right. (Id. at 215.) The left biceps and forearm were one

centimeter less in circumference than the right. (Id.) The left grip strength was weaker than

the right. (Id. at 215-16.) Dr. Levy diagnosed Plaintiff with chronic strain and overuse

syndrome in both wrists. (Id. at 216.)

When she saw Dr. Levy in 2006, Plaintiff reported that she was continuing to have

problems with both her wrists, including weakness. (Id. at 211.) She could not hold anything

for long before pain in her hands caused her to drop the items. (Id.) The more swollen her

hands were, the more painful. (Id.) She had had an MRI of her wrists a month earlier and

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been told that she has arthritis in her left thumb and wrist. (Id.) On examination, Plaintiff

had moderate discomfort with movement of her left wrist and tenderness on compression of

the left wrist. (Id. at 212.) There was no joint instability or grating on motion of any joint.

(Id. at 213.) Her left biceps were one centimeter less in circumference than her right; her left

forearm was one and one-half centimeter less in circumference than her right. (Id.) Her left

upper extremity was noticeably weaker than her left. (Id.) The strength of her left grip was

ten; the strength of her right grip was thirty. (Id. ) She was right-handed. (Id. ) She had

diminished sensation to pinprick on the tips of four fingers in her left hand. (Id.) Her deep

tendon reflexes were equal. (Id.) Phalen's and Tinel's signs were absent.7 (Id.) Dr. Levy's

diagnosis was of chronic strain in both wrists; overuse syndrome in both wrists; and

osteoarthritis in her left hand. (Id.) He opined that she had a twenty-five percent permanent

partial disability in her left upper extremity at the wrist and a fifteen percent permanent

partial disability in her right upper extremity at the wrist. (Id.)

Also before the ALJ was the report of Arjun Bhattacharya, M.D., who had examined

Plaintiff in April 2009 pursuant to her DIB application. (Id. at 197-203, 205-06.) At that

time, he had before him no medical records. (Id. at 197.) Plaintiff's chief complaints were

of pain and numbness in both wrists and of back problems. (Id.) She reported that she had

injured her hands at work; she had last worked in 2003. (Id.) The back pain had started in

7Tinel's and Phalen's tests are used in the diagnosis of carpal tunnel syndrome. See Jonathan
Cluett, M.D., Carpal Tunnel Syndrome http://orthopedics.about.com/cs/carpaltunnel/a/carpaltunnel
(last visited September 9, 2013). A Tinel's sign is present when tingling in the fingers is made worse
by tapping the median nerve along its course in the wrist. Id.
A Phalen's sign is present when pushing
the back of the hands together causes the complained-of symptoms. Id.

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the 1970s after she lifted a bed. (Id.) The pain was concentrated in the lumbosacral area.

(Id.) She further reported that she had no difficulty standing, sitting, and walking. (Id.) She

also reported that she could only walk approximately two blocks and stand for approximately

thirty minutes; she could not sit without discomfort. (Id. ) She had difficulty bending and

stooping. (Id.) Her sleep was irregular. (Id.) During the day, she watched television and

did light housework. (Id.) She stated that she had been diagnosed with rheumatoid arthritis

and carpal tunnel syndrome. (Id. at 198.) The pain, however, was in her ring and little

fingers. (Id.) She did not have any numbness in her thumb, index, or middle fingers. (Id.)

She had difficulty with fine movements; she dropped things. (Id. ) She also had difficulty

buttoning her clothes and holding a coffee cup. (Id. ) She could not open a jar, and had to

hold onto a skillet with both hands. (Id.) She smoked one-half pack of cigarettes a day, and

occasionally drank alcohol. (Id.) She was 5 feet 1 inch tall and weighed 122 pounds. (Id.)

On examination, Plaintiff had a normal alignment of her back, but had discomfort on

deep palpation over the lumbar, sacral, and coccygeal areas. (Id. at 199.) She had a reduced

range of motion in her lumbar spine on flexion-extension and with lateral flexion. (Id.

at

203.) She had a reduced range of motion in her hips due to back pain. (Id. ) Straight leg

raises were limited to thirty to forty degrees in a supine position on either side.8 (Id. at 199,

203.) Straight leg raises were negative in a seated position. (Id.

at 203.) There was

8"During a [straight leg raising] test a patient sits or lies on the examining table and the

examiner attempts to elicit, or reproduce, physical findings to verify the patient's reports of back pain
by raising the patient's legs when the knees are fully extended." Willcox v. Liberty Life Assur. Co.
of Boston, 552 F.3d 693, 697 (8th Cir. 2009) (internal quotations omitted).

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tenderness over the lower end of the ulnar at the wrist joint in both hands. (Id.

at 199.)

There was no evidence of carpal tunnel syndrome. (Id.) Phalen's and Tinel's signs were both

absent. (Id.) Her grip in both hands was 3/5 with weakness in the ring and little fingers. 9

(Id.) There was a "somewhat diminished sensation in the distribution of the ulnar nerve in

both hands." (Id. ) She had a normal gait and no difficulty in getting on and off the

examining table and in moving about the room. (Id. ) She had normal coordination in her

fingers, but complained of pain in both hands. (Id.) She had a reduced range of motion in

both wrists. (Id. at 202.) X-rays of her lumbosacral spine showed disc space narrowing at

L5-S1 with grade 2 spondylolisthesis and spondylosis defects. (Id. at 205.) An x-ray of her

right wrist was unremarkable. (Id. at 206.) Dr. Bhattacharya's impression was of back pain,

primarily in the lumbosacral and coccygeal areas, with decreased range of motion in both

lower extremities; of wrist pain, primarily over the ulnar aspect of the wrists joints; and of

weakness of the ring and middle fingers of both hands. (Id. at 200.)

Pursuant to her DIB application, Plaintiff was again evaluated in June 2010. (Id. at

235-47.) After summarizing the foregoing medical records, Alan H. Morris, M.D., listed

Plaintiff's chief complaints as low back pain and bilateral wrist and hand pain. (Id. at 235-

36.) Plaintiff explained that she had been intermittently wearing an over-the-counter back

brace since her custom brace was destroyed by a house fire in 1986. (Id.

at 236.)

Approximately every six months, her back pain flares up for two to three weeks, the most

9Dr. Bhattacharya also listed a grip strength of 4/5 on the Range of Motion Values form. (Id.

at 202.)

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recently being in May 2010. (Id.) When that happens, she takes prednisone and uses a cane.

(Id.) On a daily basis, she has constant pain and generally lies down for relief for two hours

every day. (Id.) She can sit for thirty minutes, stand for twenty, and walk for fifteen. (Id.)

She had been told in 1979 to limit her lifting to no more than five pounds. (Id.) Also during

a flare-up of her back pain, Plaintiff's husband helps her dress and bathe. (Id.) She does light

housework, but no vacuuming or lifting. (Id.) Because of her difficulties gripping things, she

does not drive. (Id.) She has pain in both wrists. (Id. ) She has been told she has carpal

tunnel syndrome, but has not had surgery. (Id. ) She has numbness in the fourth and fifth

fingers of both hands. (Id.) She has braces for both wrists, which she wears for one to two

weeks every two months. (Id. at 237.) She has difficulty holding objects and has pain when

she tries to grip anything tightly. (Id.) She takes prednisone intermittently. (Id.) She can

walk fifty feet without a cane, has a normal gait without a limp, and has a normal, erect

stance. (Id.) On examination, she could do a tandem gait, could take a few steps on her

heels, and refused to attempt toe walking and squatting because of back pain. (Id.) She could

independently get on and off the examining table and get out of a chair. (Id.

) She had

"normal finger and hand control" and could "oppose the thumb to all digits." (Id.) She had

a 4/5 grip bilaterally. (Id.) She had no muscle spasms. (Id. at 237-38.) She could forward

flex to fifty degrees, extend to five degrees, and laterally bend to ten degrees. (Id. at 238,

247.) Straight leg raises were negative to ninety degrees when sitting and positive to sixty

degrees when supine. (Id. at 238.) She could sit up from a supine position without support,

but did complain of pain. (Id.) She had no atrophy in her hands, had normal strength in her

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hands, and had a full range of motion in both wrists. (Id.

at 238, 246.) There was a

thickening and slight tenderness at the base of the left thumb and carpometacarpal joint on

the left but not on the right. (Id.) She had intact sensation in her hands and fingers. (Id. )

Dr. Morris's diagnosis was degenerative disc disease at L-5, S-1 with grade 2

spondylolisthesis and arthritis at the base of her left thumb. (Id.) He found no evidence of

rheumatoid arthritis or of carpal tunnel syndrome. (Id.)

Dr. Morris also completed a Medical Source Statement of Ability to Do Work-Related

Activities (Physical) after examining Plaintiff. (Id. at 240-45.) He assessed her as having the

ability to occasionally lift and carry up to ten pounds. (Id. at 240.) At any one time and

without interruption, she could sit for thirty minutes, stand for twenty, and walk for fifteen.

(Id. at 241.) For a total during an eight-hour work day, she could sit for three hours, stand

for two, and walk for one. (Id.) She did not need a cane to walk. (Id.) She was limited to

only occasionally reaching, handling, fingering, and feeling with either hand. (Id. at 242.)

She should never push or pull. (Id.) She was also limited to occasional use of either foot to

operate foot controls. (Id.) She could occasionally balance and climb stairs and ramps, but

should never crouch, crawl, kneel, stoop, or climb ropes, ladders, or scaffolds. (Id. at 243.)

She should never be exposed to unprotected heights or moving mechanical parts and should

not operate a motor vehicle. (Id. at 244.) She could perform such activities as shopping,

using public transportation, and preparing meals. (Id. at 245.) She should not sort, handle,

or use papers and files. (Id.)

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The ALJ's Decision

The ALJ first found that Plaintiff met the insured status requirements of the Act

through March 31, 2010, and had not engaged in substantial gainful activity during the period

from her amended alleged onset date of June 16, 2008, through her date last insured. (Id. at

18.) The ALJ next found that, through the date she was last insured, Plaintiff had severe

impairments of degenerative joint disease of the lumbar spine and arthritis in her wrists and

thumbs. (Id.) Her depression was not severe because it did not cause more than a mild

limitation in any of the three functional areas and did not cause any episodes of

decompensation of any extended duration. (Id. at 19.) Plaintiff did not have an impairment

or combination of impairments that met or medically equaled one of listing-level severity.

(Id.) Through the date last insured, Plaintiff had the residual functional capacity (RFC) to

perform light work with additional limitations of being able to only occasionally climb ramps

and stairs and of never climbing ladders, ropes, or scaffolds. (Id. at 20.) She was able to

only occasionally balance, stoop, kneel, crouch, or crawl. (Id. ) She could not constantly

handle objects, but could do so frequently. (Id.) She must avoid concentrated exposure to

extremely cold temperatures, excess vibrations, and unprotected heights. (Id.)

In reaching his RFC finding, the ALJ considered Plaintiff's allegations about the extent

of the affect of her impairments on her ability to function and found them not to be fully

credible. (Id. at 20-22.) The ALJ first noted that the intermittent medical care sought by

Plaintiff was inconsistent with her complaints. (Id. at 21.) Recognizing that Plaintiff had

explained the infrequency by a lack of finances, the ALJ further noted that there was no

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evidence that Plaintiff had sought low-cost or no-cost treatment or that she had been denied

treatment due to an inability to pay. (Id.) Also, Plaintiff continued to smoke. (Id.) Her daily

activities suggested that she was not as limited as she described. (Id.) Although she testified

that she had been limited in 1979 to lifting nothing heavier than five pounds, she had

described her job as an electrical solder as requiring that she lift up to fifty pounds. (Id.) The

ALJ noted that Dr. Morris had opined that Plaintiff should not lift or carry more than ten

pounds, but found such opinion to be inconsistent with his own examination findings. (Id.

at 21-22.)

The ALJ determined that with her RFC, Plaintiff was capable of performing her past

relevant work as a scheduler as that job is described in the DOT. (Id. at 22.) She was not,

therefore, disabled within the meaning of the Act at any time from June 16, 2008, through

March 31, 2010. (Id.)



Legal Standards

Under the Act, the Commissioner shall find a person disabled if the claimant is

"unable to engage in any substantial activity by reason of any medically determinable

physical or mental impairment," which must last for a continuous period of at least twelve

months or be expected to result in death. 42 U.S.C. § 1382c(a)(3)(A). Not only the

impairment, but the inability to work caused by the impairment must last, or be expected to

last, not less than twelve months. Barnhart v. Walton , 535 U.S. 212, 217-18 (2002).

Additionally, the impairment suffered must be "of such severity that [the claimant] is not only

unable to do [her] previous work, but cannot, considering [her] age, education, and work

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experience, engage in any other kind of substantial gainful work which exists in the national

economy, regardless of whether . . . a specific job vacancy exists for [her], or whether [s]he

would be hired if [s]he applied for work." 42 U.S.C. § 1382c(a)(3)(B).

The Commissioner has established a five-step process for determining whether a

person is disabled. See 20 C.F.R. § 404.1520; Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir.

2010); Gragg v. Astrue, 615 F.3d 932, 937 (8th Cir. 2010); Moore v. Astrue, 572 F.3d 520,

523 (8th Cir. 2009). "Each step in the disability determination entails a separate analysis and

legal standard." Lacroix v. Barnhart, 465 F.3d 881, 888 (8th Cir. 2006). First, the claimant

cannot be presently engaged in "substantial gainful activity." See 20 C.F.R. § 404.1520(b);

Hurd, 621 F.3d at 738. Second, the claimant must have a severe impairment. See 20 C.F.R.

§ 404.1520(c). The Act defines "severe impairment" as "any impairment or combination of

impairments which significantly limits [claimant's] physical or mental ability to do basic

work activities . . . ." Id.

At the third step in the sequential evaluation process, the ALJ must determine whether

the claimant has a severe impairment which meets or equals one of the impairments listed in

the regulations and whether such impairment meets the twelve-month durational requirement.

See 20 C.F.R. § 404.1520(d) and Part 404, Subpart P, Appendix 1. If the claimant meets

these requirements, she is presumed to be disabled and is entitled to benefits. Warren v.

Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994).

"Prior to step four, the ALJ must assess the claimant's [RFC], which is the most a

claimant can do despite her limitations." Moore, 572 F.3d at 523 (citing 20 C.F.R.

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§ 404.1545(a)(1)). "[RFC] is not the ability merely to lift weights occasionally in a doctor's

office; it is the ability to perform the requisite physical acts day in and day out, in the

sometimes competitive and stressful conditions in which real people work in the real world."

Ingram v. Chater , 107 F.3d 598, 604 (8th Cir. 1997) (internal quotations omitted).

Moreover, "'a claimant's RFC [is] based on all relevant evidence, including the medical

records, observations by treating physicians and others, and an individual's own description

of his limitations.'" Moore, 572 F.3d at 523 (quoting Lacroix , 465 F.3d at 887); accord

Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011).

In determining a claimant's RFC, "'the ALJ first must evaluate the claimant's

credibility.'" Wagner v. Astrue , 499 F.3d 842, 851 (8th Cir. 2007) (quoting Pearsall v.

Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002)). This evaluation requires that the ALJ

consider "'[1] the claimant's daily activities; [2] the duration, frequency and intensity of the

pain; [3] precipitating and aggravating factors; [4] dosage, effectiveness and side effects of

medication; [5] functional restrictions.'" Id. (quoting Polaski v. Heckler , 739 F.2d 1320,

1322 (8th Cir. 1984)). "'The credibility of a claimant's subjective testimony is primarily for

the ALJ to decide, not the courts.'"

Id. (quoting Pearsall , 274 F.3d at 1218). After

considering the Polaski factors, the ALJ must make express credibility determinations and

set forth the inconsistencies in the record which caused the ALJ to reject the claimant's

complaints. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Beckley v. Apfel, 152 F.3d

1056, 1059 (8th Cir. 1998).

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At step four, the ALJ determines "'whether a claimant's impairments keep her from

doing past relevant work.'" Wagner v. Astrue, 499 F.3d 842, 853 (8th Cir. 2007) (quoting

Jones v. Chater , 86 F.3d 823, 826 (8th Cir. 1996)). If "the claimant has the [RFC] to do

either the specific work previously done or the same type of work as it is generally performed

in the national economy, the claimant is found not to be disabled." Lowe v. Apfel, 226 F.3d

969, 973 (8th Cir. 2000). The burden at step four remains with the claimant to prove her

RFC and establish that she cannot return to her past relevant work. Moore, 572 F.3d at 523;

accord Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart,

421 F.3d 745, 750 (8th Cir. 2005).

If the ALJ holds at step four that a claimant cannot return to past relevant work, the

burden shifts at step five to the Commissioner to establish that the claimant maintains the

RFC to perform a significant number of jobs within the national economy. Pate-Fires v.

Astrue, 564 F.3d 935, 942 (8th Cir. 2009); Banks v. Massanari, 258 F.3d 820, 824 (8th Cir.

2001).

If the claimant is prevented by her impairment from doing any other work, the ALJ

will find the claimant to be disabled.

The ALJ's decision whether a person is disabled under the standards set forth above

is conclusive upon this Court "'if it is supported by substantial evidence on the record as a

whole.'" Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547

F.3d 933, 935 (8th Cir. 2008)); accord Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.

2001). "'Substantial evidence is relevant evidence that a reasonable mind would accept as

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adequate to support the Commissioner's conclusion.'" Partee, 638 F.3d at 863 (quoting Goff

v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). When reviewing the record to determine

whether the Commissioner's decision is supported by substantial evidence, however, the

Court must consider evidence that supports the decision and evidence that fairly detracts from

that decision. Moore, 623 F.3d at 602; Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010);

Finch, 547 F.3d at 935. The Court may not reverse that decision merely because substantial

evidence would also support an opposite conclusion, Dunahoo, 241 F.3d at 1037, or it might

have "come to a different conclusion," Wiese, 552 F.3d at 730. "'If after reviewing the

record, the [C]ourt finds it is possible to draw two inconsistent positions from the evidence

and one of those positions represents the ALJ's findings, the [C]ourt must affirm the ALJ's

decision.'" Partee, 638 F.3d at 863 (quoting Goff , 421 F.3d at 789). See also Owen v.

Astrue, 551 F.3d 792, 798 (8th Cir. 2008) (the ALJ's denial of benefits is not to be reversed

"so long as the ALJ's decision falls within the available zone of choice") (internal quotations

omitted).

Discussion

Plaintiff argues that the ALJ erred by (1) defining her past relevant work as light work;

(2) including in his RFC findings that she could frequently perform gross manipulation when

the medical records only supported a conclusion that she could occasionally perform such;

and (3) discounting the Medical Source Statement (MSS) of Dr. Morris.

Past Relevant Work. Plaintiff first argues that the ALJ erred by relying on the

testimony of the VE that she could perform her job as a scheduler because that job was listed

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in the DOT as "'closer to light.'" (Pl.'s Brief at 8, 9, ECF No. 13; Pl.'s Reply Brief at 2, ECF

No. 19.) Plaintiff misapprehends the record.10

In response to a question by the ALJ about a hypothetical claimant who was "limited

to performing light exertion level work," see Record at 49 (emphasis added), the VE replied

that this claimant could perform Plaintiff's past relevant work as a scheduling supervisor, not

as the she performed it, but as it was described in the DOT. "The [DOT] definitions 'are

simply generic job descriptions that offer the approximate maximum requirements for each

position, rather than their range.'" Hillier v. S.S.A. , 486 F.3d 359, 366 (8th Cir. 2007)

(quoting Wheeler v. Apfel

, 224 F.3d 891, 897 (8th Cir. 2000)). As noted by the

Commissioner, the VE did not cite the DOT numbers for the job of scheduling supervisor.

The Commissioner did cite two numbers, DOT 215.367-014, for a personnel scheduler, see

DOT, 1991 WL 671906 (G.P.O. 1991), and DOT 221.367-026, for a line-up worker, see

DOT, 1991 WL 672012 (G.P.O. 1991). The first is sedentary work, see 1991 WL 671906,

and the second is light work, see 1991 WL 672012.

The ALJ's reliance on the VE's testimony about how Plaintiff's past relevant work was

defined in the DOT is not fatally undermined by the VE's failure to cite the two numbers. In

Hulsey v. Astrue, 622 F.3d 917, 921-23 (8th Cir. 2010), the Eighth Circuit Court of Appeals

was able to meaningfully review a claimant's argument that she was unable to perform some

unskilled work which was a part of the jobs cited by the VE. In that case also, the VE had

10Plaintiff cites page 55 of the Record in support of her reference to "closer to light." Page
55 is a Disability Determination and Transmittal denying Plaintiff's application. After a thorough
review of the VE's testimony, the Court could not locate the quoted phrase.

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not specified the DOT codes for the occupations she had identified as being able to be

performed by the claimant. The claimant, however, was able to cite to the six different DOT

listings for the general occupation described by the VE, including to five DOT listings which

did not conform to the demands of the job relied on by VE. Id. at 923. The Eighth Circuit

found it "evident" that the VE "had in mind" the sixth DOT listing, which did include the

demands required by the claimant's RFC. Id. Similarly, in the instant case, there are two

DOT listings for scheduling positions cited by the VE which include the light exertional

requirement specified by the ALJ in his hypothetical question or the more restrictive

sedentary exertional requirement.

Residual Functional Capacity. Plaintiff next challenges the ALJ's conclusions about

her RFC. These conclusions are that Plaintiff can perform light work with additional

limitations of being able to frequently, but not constantly, handle objects and occasionally

balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. (R. at 20.) She can never

climb ladders, ropes, or scaffolds and has to avoid concentrated exposure to extremely cold

temperatures, excess vibrations, and unprotected heights. (Id.)

"The RFC 'is a function-by-function assessment based upon all of the relevant evidence

of an individual's ability to do work-related activities,' despite his or her physical or mental

limitations." Roberson v. Astrue, 481 F.3d 1020, 1023 (8th Cir. 2007) (quoting SSR 96-8p,

1996 WL 374184, at *3 (July 2, 1996)); accord Masterson v. Barnhart, 363 F.3d 731, 737

(8th Cir. 2004); Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003). "When determining

a claimant's RFC, the ALJ must consider all relevant evidence, including the claimant's own

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description of her or his limitations, as well as medical records, and observations of treating

physicians and others." Roberson, 481 F.3d at 1023. See also Social Security Ruling 96-8p,

1996 WL 374184 at *5 (listing factors to be considered when assessing a claimant's RFC,

including, among other things, medical history, medical signs and laboratory findings, effects

of treatment, medical source statements, recorded observations, and "effects of symptoms . . .

that are reasonably attributed to a medically determinable impairment").

Plaintiff contends that only an ability to occasionally handle objects was established,

not, as the ALJ found, an ability to frequently do so. "'Frequent' means occurring from one-

third to two-thirds of the time." Social Security Ruling 83-10, 1983 WL 31251, *6 (S.S.A.

1983).

As noted by Plaintiff, Dr. Levy diagnosed Plaintiff with chronic strain in both wrists

and overuse syndrome and Dr. Brown diagnosed her with osteoarthritis. 11 As noted by the

Commissioner, Drs. Levy's and Brown's treatment and evaluation of Plaintiff were pursuant

to a worker's compensation claim and neither saw her after April 2006 – more than two years

before her amended alleged disability onset date. After April 2006, in 2007 and 2008,

Plaintiff worked part-time as a bartender. This job, as defined in the DOT, 312.474-010,

requires frequent handling. See DOT, 1991 WL 672698 (G.P.O. 1991). And, although

Plaintiff worked at this job part-time, she did not attribute the number of hours she worked

or the duration of her employment to any difficulties with her wrists.

11Plaintiff states that Dr. Brown gave her injections in her thumb. The cited page, Record at

235, is the first page of Dr. Morris' report. Dr. Brown's records reflect that he recommended an
injection; however, Plaintiff declined. (R. at 232.)

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After her alleged disability onset date, Plaintiff sought medical treatment twice. The

first time was in January 2009 and was for a knot under her left arm and depression. The

second time was in November 2009 and was for back pain. See Edwards v. Barnhart, 314

F.3d 964, 967 (8th Cir. 2003) (finding that claimant's failure to seek regular medical care

"seriously undermine[d] her case"). Plaintiff argues that the infrequency of her treatment is

due to her lack of finances. She testified, however, that she had been treated twice in 2007

at the same clinic she attended in January 2009. She did not testify that she had ever been

denied medical attention due to an inability to pay. Moreover, she continued to smoke at least

one-half pack of cigarettes a day. See Goff, 421 F.3d at 792 (failure to take medication was

relevant to credibility determination given lack of any evidence that failure was attributable

to lack of finances); Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (claimant's argument

that he could not afford medical care was appropriately discounted given lack of any evidence

that he was denied low-cost or free medical care and evidence that he continued to smoke

three packs of cigarettes a day).

Plaintiff cites the findings of Dr. Bhattacharya in support of her argument.

12 Dr.

Bhattacharya found that Plaintiff had a "somewhat diminished sensation in the distribution

of the ulnar nerve in both hands," a reduced range of motion in both wrists, a grip strength

of 3/5 in both hands,13 and weakness in her ring and little fingers. He also found that she had

12Her argument relying on Dr. Morris's findings is addressed below.

13But see note 9, supra.

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normal coordination in her fingers. Fourteen months later, Dr. Morris found she had normal

strength in both hands, no atrophy in either hand, and a full range of motion in both wrists.

"'It is the ALJ's responsibility to determine a claimant's RFC based on all relevant

evidence, including medical records, observations of treating physicians and others, and

claimant's own descriptions of [her] limitations.'"14 Tellez v. Barnhart, 403 F.3d 953, 957

(8th Cir. 2005) (quoting Pearsall, 274 F.3d at 1217); accord Perks v. Astrue, 687 F.3d 1086,

1092 (8th Cir. 2012). "'[T]he burden of persuasion to . . . demonstrate RFC remains on the

claimant.'" Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (quoting Vossen v. Astrue,

612 F.3d 1011, 1016 (8th Cir. 2010)).

In the instant case, the ALJ considered the medical records, including those of Dr.

Morris, see discussion below, and Plaintiff's descriptions of her limitations, including her

testimony and her application information, and concluded that she had the RFC to frequently,

but not constantly, handle objects. This conclusion is supported by substantial evidence on

the record as a whole, and Plaintiff has not carried her burden of persuading the Court

otherwise.

Dr. Morris' Medical Source Statement. Dr. Morris reported on a MSS that Plaintiff

was limited to only occasional use of her hands to reach, handle, finger, and feel. Plaintiff

argues that the ALJ erred by not incorporating this more restrictive use in his RFC findings.

As noted by the Commissioner, "the ALJ is not required to rely entirely on a particular

physician's opinion or choose between the opinions [of] any of the claimant's physicians."

14The Court notes that Plaintiff does not challenge the ALJ's credibility assessment.

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Martise, 641 F.3d at 927 (alteration in original) (internal quotations omitted). Nor is the ALJ

required to rely on a physician's opinion when that opinion is inconsistent with the

physician's examination notes, see Davidson v. Astrue, 578 F.3d 838, 843 (8th Cir. 2009),

or when that opinion is based on the claimant's "self-reported symptoms," McCoy v. Astrue,

648 F.3d 605, 617 (8th Cir. 2011). See Charles v. Barnhart, 375 F.3d 777, 783-84 (8th Cir.

2004) (rejecting claimant's argument that ALJ erred by not giving greater weight to treating

physician's opinion that she could not stand for longer than four hours in an eight-hour work

day when that limitation was not supported by clinical and laboratory findings or by the

physician's own treatment notes).

Dr. Morris's examination notes of Plaintiff reflect that she had normal strength in both

hands, a full range of motion in both wrists, and intact sensation in her hands and fingers.

She did not, as reported by Plaintiff, have carpal tunnel syndrome. Regardless, in his MSS

he limited her to only occasional use of her hands and fingers. The reliance of this restriction

on Plaintiff's own description of her limitations is reflected in other restrictions in the MSS.

For instance, Plaintiff reported that she would sit for thirty minutes, stand for twenty, and

walk for fifteen. These limitations were incorporated by Dr. Morris in his MSS. Plaintiff

reported that she had to lie down for two hours every day. This requirement was incorporated

by Dr. Morris in his MSS.

In concluding that Plaintiff could frequently handle objects, the ALJ gave more

credence to Dr. Morris's examination findings than to his MSS conclusions. As explained

above, this is not error. See Renstrom v. Astrue , 680 F.3d 1057, 1064 (8th Cir. 2012)

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(finding that an ALJ does not err by not giving a physician's opinion about a claimant's RFC

controlling weight when that opinion is "largely based on [the claimant's] subjective

complaints").

Conclusion

Considering all the evidence in the record, including that which detracts from the ALJ's

conclusions, the Court finds that there is substantial evidence to support the ALJ's decision.

"If substantial evidence supports the ALJ's decision, [the Court] will not reverse the decision

merely because substantial evidence would have also supported a contrary outcome, or

because [the Court] would have decided differently." Wildman v. Astrue, 596 F.3d 959,

964 (8th Cir. 2010). Accordingly, for the foregoing reasons,

IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED

and that this case is DISMISSED.

An appropriate Order of Dismissal shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE



Dated this 19th day of September, 2013.

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