Horne v. Social Security Administration, Commissioner of (PLR2)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

BRIAN D. HORNE, )

)

Plaintiff, )

)

v. ) No. 2:19-CV-013-DCP

)

ANDREW M. SAUL,1 )

Acting Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 73 of the Federal

Rules of Civil Procedure, and the consent of the parties [Doc. 10].

Now before the Court is Plaintiff’s Motion for Judgment on the Pleadings and

Memorandum in Support [Docs. 19 & 20] and Defendant’s Motion for Summary Judgment and

Memorandum in Support [Docs. 23 & 24]. Brian D. Horne (“Plaintiff”) seeks judicial review of

the decision of the Administrative Law Judge (“the ALJ”), the final decision of Defendant Andrew

M. Saul (“the Commissioner”). For the reasons that follow, the Court will DENY Plaintiff’s

motion and GRANT the Commissioner’s motion.

I. PROCEDURAL HISTORY

Plaintiff initially filed an application for disability insurance benefits on January 25, 2012

[Tr. 192–98], as well as an application supplemental security income benefits on February 2, 2012

[Tr. 199–205], pursuant to Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq.

1 Andrew M. Saul was sworn in as the Commissioner of Social Security on June 17, 2019,

during the pendency of this case. Therefore, pursuant to Federal Rule of Civil Procedure 25(d),

Andrew M. Saul is substituted as the Defendant in this case.

and 1381 et seq. After his applications were denied initially and upon reconsideration, Plaintiff

requested a hearing before an ALJ. [Tr. 132–33]. Hearings were held on May 17, 2013, and

October 31, 2013. [Tr. 33–58]. On November 14, 2013, the ALJ found that Plaintiff was not

disabled. [Tr. 13–32]. The Appeals Council denied Plaintiff’s request for review on March 13,

2015 [Tr. 1–5], making the ALJ’s decision the final decision of the Commissioner.

Having exhausted his administrative remedies, Plaintiff filed a Complaint with this Court

on February 18, 2015, seeking judicial review of the Commissioner’s final decision under Section

405(g) of the Social Security Act. See Horne v. Comm’r of Soc. Sec. Admin., No. 2:15-cv-048-

RLJ-HBG, Doc. 2. On December 21, 2015, this Court remanded Plaintiff’s case for further

consideration of his need to alternate between sitting and standing based upon the medical record.

Horne, No. 2:15-cv-048, Doc. 21.

While Plaintiff’s previous appeal was pending, he filed new claims under Titles II and XVI

on February 27, 2015 and March 26, 2015. [Tr. 626–28]. After Plaintiff’s subsequent application

was denied at the initial and reconsideration levels [Tr. 534–35, 566–67], and following the Court’s

remand order [Tr. 570–88], the Appeals Council consolidated Plaintiff’s claims [Tr. 589–92]. The

ALJ held a hearing on January 27, 2017 [Tr. 464–78], and on June 26, 2017, the ALJ found that

Plaintiff was not disabled. [Tr. 439–55]. The Appeals Council declined to assume jurisdiction

over Plaintiff’s appeal on November 30, 2018 [Tr. 430–35], making the ALJ’s decision the final

decision of the Commissioner.

Plaintiff then filed a Complaint with this Court on January 28, 2019, seeking judicial

review of the Commissioner’s final decision under Section 405(g) of the Social Security Act.

[Doc. 1]. The parties have filed competing dispositive motions, and this matter is now ripe for

adjudication.

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II. ALJ FINDINGS

The ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social

Security Act through June 30, 2016.

2. The claimant has not engaged in substantial gainful activity since

August 1, 2011, the alleged onset date (20 CFR 404.1571 et seq. and

416.971 et seq.).

3. The claimant has the following severe impairments: degenerative

disc disease and morbid obesity (20 CFR 404.1520(c) and

416.920(c)).

4. The claimant does not have an impairment or combination of

impairments that meets or medically equals the severity of one of

the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1

(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925

and 416.926).

5. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to lift 10

pounds frequently and 20 pounds infrequently, walk for at least two

hours in an eight hour workday; sit six hours in an eight hour

workday; he would need an opportunity to change positions every

20 to 30 minutes; and he is limited in his ability to bend (stoop),

twist, and kneel, and he is unable to climb ladders.

6. The claimant is unable to perform any past relevant work (20

CFR 404.1565 and 416.965).

7. The claimant was born on September 11, 1969 and was 41 years

old, which is defined as a younger individual age 18–44, on the

alleged disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to

communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination

of disability because using the Medical-Vocational Rules as a

framework supports a finding that the claimant is “not disabled,”

whether or not the claimant has transferrable job skills (See SSR 82-

41 and 20 CFR Part 404, Subpart P, Appendix 2).

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10. Considering the claimant’s age, education, work experience,

and residual functional capacity, there are jobs that exist in

significant numbers in the national economy that the claimant can

perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the

Social Security Act, from August 1, 2011, through the date of this

decision (20 CFR 404.1520(g) and 416.920(g)).

[Tr. 442–55].

III. STANDARD OF REVIEW

When reviewing the Commissioner’s determination of whether an individual is disabled

pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision

was reached through application of the correct legal standards and in accordance with the

procedure mandated by the regulations and rulings promulgated by the Commissioner, and

whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,

581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,

544 (6th Cir. 2004).

Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it

is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It

is immaterial whether the record may also possess substantial evidence to support a different

conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the

case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).

The substantial evidence standard is intended to create a “‘zone of choice’ within which the

Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,

773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the

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Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of

credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation omitted).

On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v.

Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).

IV. DISABILITY ELIGIBILITY

“Disability” means an individual 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) and 1382c(a)(3)(A). An individual will only be

considered disabled:

if his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work but

cannot, considering his age, education, and work experience, engage

in any other kind of substantial gainful work which exists in the

national economy, regardless of whether such work exists in the

immediate area in which he lives, or whether a specific job vacancy

exists for him, or whether he would be hired if he applied for work.

42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).

Disability is evaluated pursuant to a five-step analysis summarized as follows:

1. If claimant is doing substantial gainful activity, he is not disabled.

2. If claimant is not doing substantial gainful activity, his

impairment must be severe before he can be found to be disabled.

3. If claimant is not doing substantial gainful activity and is

suffering from a severe impairment that has lasted or is expected to

last for a continuous period of at least twelve months, and his

impairment meets or equals a listed impairment, claimant is

presumed disabled without further inquiry.

4. If claimant’s impairment does not prevent him from doing his

past relevant work, he is not disabled.

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5. Even if claimant’s impairment does prevent him from doing his

past relevant work, if other work exists in the national economy that

accommodates his residual functional capacity (“RFC”) and

vocational factors (age, education, skills, etc.), he is not disabled.

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).

A claimant’s residual functional capacity (“RFC”) is assessed between steps three and four and is

“based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §§

404.1520(a)(4) and -(e), 416.920(a)(4), -(e). An RFC is the most a claimant can do despite his

limitations. 20 C.F.R. §§ 404.1545(a)(1) and 416.945(a)(1).

The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d at 529.

The burden shifts to the Commissioner at step five. Id. At the fifth step, the Commissioner must

prove that there is work available in the national economy that the claimant could perform. Her

v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137,

146 (1987)).

V. ANALYSIS

Plaintiff asserts that the ALJ’s disability decision is not supported by substantial evidence

in several regards. First, Plaintiff maintains that “[t]he ALJ failed to properly consider [his] need

to withdraw from the work setting more than one time per day due to excessive pain” [Doc. 20 at

3, 7–8]. Next, Plaintiff alleges that there is not substantial evidence to support the ALJ’s RFC

determination that his upper extremities had normal strength, and that the ALJ thus erred by failing

to include a limitation on his ability to lift above shoulder level in the RFC. [Id. at 8–9]. Further,

Plaintiff claims that the ALJ erred by failing to order a mental health consultative examination,

did not appropriately consider his need for a service animal, and improperly found that his

depression and anxiety were not severe impairments. [Id. at 9–11]. Lastly, Plaintiff asserts that

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the ALJ improperly failed to provide his March 17, 2012 MRI to consultative examiner, Jeffrey

Uzzle, M.D., for his review. [Id. at 11].

A. ALJ’s Step Two Determination

Plaintiff asserts that the ALJ improperly found that his depression and anxiety were not

severe impairments during step two of the disability determination. Plaintiff points to the medical

opinion of nonexamining state agency consultant, Thomas Neilson, Psy.D., who reviewed the

evidence of record at the initial level of the agency’s review of his first application for disability

benefits on April 11, 2012. [Tr. 83]. Plaintiff asserts that Dr. Neilson assessed that Plaintiff had

moderate limitations in seven areas of functioning, including dealing with changes in the work

setting; the ability to get along with coworkers or peers without distracting them or exhibiting

behavior extremes; the ability to handle criticism from supervisors; and the ability to complete a

normal workday without interruptions from psychologically based symptoms and to perform at a

consistent pace without an unreasonable number and length of rest periods. [Doc. 20 at 10 (citing

[Tr. 82]).

At step two, the ALJ is required to consider whether Plaintiff’s alleged impairments

constitute “medically determinable” impairments. See 20 C.F.R. §§§ 404.1508; 416.920(a)(4)(ii);

404.1520(a)(4)(ii). A medically determinable impairment “must result from anatomical,

physiological, or psychological abnormalities which can be shown by medically acceptable

clinical and laboratory diagnostic techniques,” and “must be established by medical evidence

consisting of signs, symptoms, and laboratory findings, not only by [the claimant’s] statement of

symptoms.” 20 C.F.R. §§ 404.1508; 416.908. Additionally, an impairment must meet the

durational requirement, meaning, “it must have lasted or must be expected to last for a continuous

period of at least 12 months.” 20 C.F.R. § 404.1509. Lastly, “[i]f an alleged impairment is not

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medically determinable, an ALJ need not consider that impairment in assessing the

RFC.” See Jones v. Comm’r of Soc. Sec., No. 3:15-CV-00428, 2017 WL 540923, at *6 (S.D. Ohio

Feb. 10, 2017) (internal citations omitted).

Additionally, to be found disabled, “the ALJ must find that the claimant has a severe

impairment or impairments” at step two. Farris v. Sec’y of Health & Human Servs., 773 F.2d 85,

88 (6th Cir. 1985). An impairment, or combination of impairments, will be found severe if the

impairment(s) “significantly limit[ ] [a claimant’s] physical or mental ability to do basic work

activities.” 20 C.F.R. § 416.920(c). The step two determination is “a de minimis hurdle” in that

“an impairment will be considered not severe only if it is a slight abnormality that minimally

affects work ability regardless of age, education, and experience.” Higgs v. Brown, 880 F.2d 860,

862 (6th Cir. 1988) (citing Farris, 773 F.2d at 90).

In the disability determination, the ALJ found that Plaintiff’s “medically determinable

mental impairments of depression and anxiety . . . do not cause more than minimal limitation in

the claimant’s ability to perform basic mental work activities and are therefore nonsevere.” [Tr.

445]. First, the Court notes that the ALJ reviewed Plaintiff’s mental health treatment and medical

history in great detail, spanning from when Plaintiff first sought mental health treatment on August

12, 2011, [Tr. 443] through his continued monthly therapy in September and October of 2016 [Tr.

445]. The ALJ reviewed that Plaintiff presented for a consultative psychological examination on

March 27, 2012, with Roy Nevils, Ph.D., who diagnosed anxiety disorder and depressive disorder,

but opined that Plaintiff “could have some mild problems with memory and concentration, but

there were no limitations seen with respect to adaptability due to mental disorder.” [Tr. 443]; see

[Tr. 281]. Further, the ALJ detailed that Plaintiff reported much improvement after beginning

taking Pristiq in July of 2013, and that he denied depression, sadness, crying spells and he did not

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endorse panic attacks or anxiety. [Tr. 443–444]; see [Tr. 390]. The ALJ reviewed normal mental

status examinations in November of 2014, and May of 2015, while also detailing Plaintiff’s

treatment and response to additional stressors. [Tr. 444]. Further, the ALJ cited to an August 14,

2015 treatment note in which Plaintiff’s depression was reported as stable, with his medication

working. [Id.]; see [Tr. 832].

Next, the ALJ “considered [Plaintiff’s] psychotherapy records, which largely document the

claimant’s statements concerning his symptoms, financial difficulties, and physical concerns,”

although Plaintiff “related well with the therapist, and his presentations were not consistent with

statements to medication providers.” [Tr. 444].

The ALJ then found that Plaintiff had mild limitations in understanding, remembering, or

applying information, largely due to treatment records documenting intact memory abilities and

active participation in treatment discussions, as well as consultative examination findings. [Tr.

445]. Additionally, the ALJ found that Plaintiff had mild limitation in social interaction, reviewing

that Plaintiff was involved in a romantic relationship and lives with another individual, was noted

as calm and cooperative, and that Dr. Nevils noted that Plaintiff reported a mild interpersonal

relationship disturbance. [Id.]. Further, the ALJ found that Plaintiff had only mild limitation in

concentrating, persisting, or maintaining pace after reviewing Dr. Nevils’ examination findings.

[Id.]. Lastly, the ALJ found that Plaintiff had mild limitation in adaption due to his reported daily

activities, and treatment records indicating that he generally presented with good hygiene and

appropriately dressed, with good judgment and insight. [Tr. 446].

Plaintiff does not contest the remaining evidence relied upon by the ALJ in step two of the

disability determination, and solely claims that the ALJ improperly found mild limitation in each

area of his mental functioning, in contrast to Dr. Neilson’s opinion. However, the Court finds that

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the ALJ appropriately reviewed Plaintiff’s treatment records and other opinions of record to find

that he had no more than mild limitation in each of the paragraph B criteria set forth for evaluating

mental impairments—understanding, remembering, or applying information, social interaction,

concentrating, persisting, or maintaining pace, and adaption.

Further, it is well settled that the ALJ’s failure to identify some impairments as “severe” is

harmless where the ALJ continues the disability determination and considers both severe and

nonsevere impairments at subsequent steps of the sequential evaluation as required by the

regulations. See Fisk v. Astrue, 253 F. App’x 580, 583 (6th Cir. 2007) (“And when an ALJ

considers all of a claimant’s impairments in the remaining steps of the disability determination, an

ALJ’s failure to find additional severe impairments at step two ‘[does] not constitute reversible

error.’”) (quoting Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987));

Pompa v. Comm’r of Soc. Sec., 73 F. App’x 801, 803 (6th Cir. 2003) (“Because the ALJ found

that Pompa had a severe impairment at step two of the analysis, the question of whether the ALJ

characterized any other alleged impairment as severe or not severe is of little consequence.”).

Here, in the RFC determination the ALJ granted great weight to Dr. Nevils’ opinion,

finding that it was “consistent with treatment records, which often indicate normal mental status

examinations and positive response to medications.” [Tr. 451]. Moreover, the ALJ assigned little

weight to the opinions of the nonexamining state agency consultants who reviewed the evidence

of record during Plaintiff’s initial application, including Dr. Neilson, as they were not consistent

with the medical record, including Dr. Nevils’ opinion after his examination. [Id.]. The ALJ

assigned great weight to the opinions of the state agency psychological consultants provided in

connection with Plaintiff’s subsequent application, who found that Plaintiff did not have a severe

mental impairment. [Tr. 451].

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Therefore, the Court finds that the ALJ’s finding that Plaintiff’s depression and anxiety

were not severe mental impairments is supported by substantial evidence, as the ALJ reviewed the

record with respect to Plaintiff’s mental health treatment at length and detailed why he found no

more than mild limitations. Further, the ALJ reviewed the medical opinions regarding Plaintiff’s

depression and anxiety in the RFC determination, and detailed why Dr. Neilson’s opinion—which

Plaintiff relied upon—was entitled to little weight.

B. ALJ’s RFC Determination

1. Need to Lie Down

Plaintiff asserts that the ALJ’s RFC determination is not supported by substantial evidence

because the ALJ failed to consider his need to “withdraw from the work setting more than one

time per day due to excessive pain.” [Doc. 20 at 7]. Plaintiff claims that this limitation is supported

by his testimony, the October 24, 2013 opinion of William E. Kennedy, M.D., who opined that he

would have to withdraw from work two or more times a day [Tr. 429], the April 9, 2012

consultative examination with Robert Blaine, M.D., after which Dr. Blaine opined that Plaintiff

could not stand or walk for more than thirty to forty-five minutes in a workday and would require

“frequent” rest breaks and change of position [Tr. 285], and the May 1, 2013 independent medical

evaluation of Steven Baumrucker, M.D., who opined that Plaintiff would need to lie down

frequently during a normal work day [Tr. 346].

The Commissioner responds that the ALJ “specifically considered Plaintiff’s assertion that

he needed to lie down about five or six hours a day but found this assertion not entirely consistent

with the evidence in the record.” [Doc. 24 at 18]. Additionally, the Commissioner contends that

the ALJ reviewed Plaintiff’s treatment records for his back pain and spinal tenderness, and

identified other inconsistencies in the medical record. [Id. at 18–20].

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The ALJ included the need for an opportunity to change position every twenty to thirty

minutes in Plaintiff’s RFC. [Tr. 446]. However, Plaintiff challenges the failure to include a

limitation for the need to withdraw from work more than once per day, as well as the need to lie

down frequently.

In the disability decision, the ALJ first addressed Plaintiff’s allegations of back pain,

finding that his treatment “has been generally routine and conservative in nature, and the evidence

is not supportive of his allegations.” [Tr. 447]. The ALJ reviewed Plaintiff’s treatment for his

back pain from September 2011 through his consultative examination with Dr. Uzzle on March

17, 2017. [Tr. 447–50]. For example, the ALJ discussed that a March 15, 2012 examination

revealed a normal range of motion, muscle strength, and stability in all extremities with no pain

on inspection [Tr. 291]; as well as that a March 17, 2012 MRI “revealed a focal annular fissure

posterolaterally on the right at L5-S1, and a small disc protrusion,” further examinations revealed

mild to moderate pain, and Plaintiff’s primary care providers prescribed non-steroid anti-

inflammatory drugs. [Tr. 447–48]; see [Tr. 418].

The ALJ then reviewed Plaintiff’s examination with Dr. Blaine on April 9, 2012 [Tr. 283–

85] and complaints of worsening back pain in October of 2012. [Tr. 448]. However, the ALJ

cited to treatment notes in 2013 revealing moderate pain with motion and tenderness in the lumbar

spine, without sensory loss. [Id.]; see [Tr. 336, 418, 779]. The ALJ detailed Dr. Baumrucker’s

independent medical examination on May 1, 2013, “where the doctor observed the claimant’s

antalgic gait apparently favored the left side, which was opposite of Dr. Blaine’s observations.”

[Tr. 448]; see [Tr. 344–46]. The ALJ further summarized Dr. Baumrucker’s examination as

revealing “decreased range of motion of the thoracic and lumbar spine, as well as tenderness over

the lumbar paraspinal muscles with guarding and spasm.” [Id.].

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Therefore, the ALJ found that “[r]ecords that follow indicate the claimant received

conservative treatment through his primary care provider, and his examinations remained

essentially unchanged . . . [and] often revealed tenderness and mild to moderate pain with motion,

but no sensory loss was indicated, and deep tendon reflexes were preserved and symmetric.” [Tr.

448]. The ALJ reviewed Plaintiff’s examination with Dr. Kennedy on October 24, 2013, where

Plaintiff stood with a normal posture and walked through the office slowly and carefully without

evidence of a limp, and “[e]xamination revealed decreased range of motion of the lumbar spine,

muscle spasm, as well as an inconsistent straight leg raise test.” [Tr. 449].

Next, the ALJ reviewed Plaintiff’s emergency treatment on September 9, 2014, for neck

pain, and imaging revealed degenerative changes, which were most pronounced at C6-C7 [Tr.

740–48], and that “subsequent records continue to report some limitations in range of motion with

mild to moderate pain.” [Tr. 449]. The ALJ detailed that after a gap in treatment, Plaintiff

presented to his primary care provider on November 23, 2015, with complaints of back pain, which

began two weeks ago and radiated to the bilateral legs. [Id.]; see [Tr. 875]. On examination,

Plaintiff’s cervical spine was tender, with pain on range of motion and lumbar spine tenderness

and a normal gait [Tr. 879], and Plaintiff was prescribed narcotic pain medication. [Tr. 449]. The

ALJ then stated that Plaintiff’s next visit on April 1, 2016, included examination findings of “mild

pain with range of motion of the lumbar spine, but the claimant demonstrated normal pain free

range of motion of the cervical spine.” [Id.]; see [Tr. 884–91].

Moreover, the ALJ reviewed Plaintiff’s consultative examination with Dr. Uzzle on March

17, 2017, where Dr. Uzzle “reviewed updated imaging, which revealed mild to moderate multiple

level degenerative disc changes in the thoracic spine, as well as moderate multiple level

degenerative disc changes in the lumbar spine.” [Tr. 449]. Further, Dr. Uzzle reported that

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Plaintiff has never had any type of surgery, and the ALJ detailed that Dr. Uzzle noted that Plaintiff

was not a good historian, and “[r]ange of motion testing was limited, but [Dr. Uzzle] noted obvious

inconsistencies in the formal versus informal range of motion observations of the spine and

extremities.” [Tr. 449–50]; see [Tr. 944–45].

With respect to the relevant opinion evidence discussed above, the ALJ assigned partial

weight to Dr. Uzzle’s opinion, as Dr. Uzzle did not explain his reasoning for limitations involving

the frequent use of Plaintiff’s hands or feet or environmental limitations. [Tr. 452]. Additionally,

the ALJ found that Plaintiff was unable to perform the lifting and carrying requirements specified

by Dr. Uzzle due to Plaintiff’s subjective complaints of pain and limitations in range of motion.

[Id.].

The ALJ also assigned little weight to Dr. Blaine’s opinion, because it was inconsistent

with the objective findings in the medical record and was vague in nature, as Dr. Blaine failed to

specify the frequency of rest breaks and change of positions needed. [Id.]. The ALJ detailed that

the opinion was inconsistent with subsequent treatment records which indicated fair control of

Plaintiff’s pain, as well as Dr. Uzzle’s observations. [Id.]. Similarly, the ALJ noted that Dr.

Baumrucker’s opinion included an opinion that there was no job that Plaintiff could perform—an

opinion on a matter reserved to the Commissioner, as well as that the opinion was vague and

provided “little insight” on Plaintiff’s functioning. [Id.]. The ALJ found that the opinion was

largely based on Plaintiff’s subjective complaints and inconsistent with the observations of

Plaintiff’s treating providers and objective findings. [Id.].

Lastly, the ALJ found that Dr. Kennedy’s opinion was entitled to little weight, as Plaintiff

did not undergo the examination in an attempt to seek treatment, and his presentation to Dr.

Kennedy was “inconsistent with his presentations to treatment providers, who largely noted intact

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sensation, as well as presentation to another examiner, who noted a different gait pattern, both of

which could affect Dr. Kennedy’s opinion.” [Tr. 453]. However, the ALJ found that certain

aspects of the opinion were consistent with the RFC determination. [Id.].

The RFC is the most an individual can do despite her limitations. 20 C.F.R. §

416.945(a)(1). When determining a claimant’s RFC and the corresponding hypothetical, the ALJ

need only include those limitations found to be “credible” and supported by the record. See Casey

v. Sec’y of Health and Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)). The ALJ alone is

tasked with the responsibility of assessing a claimant’s RFC. 20 C.F.R. § 416.1546(c). “Although

the ALJ may not substitute his opinion for that of a physician, he is not required to recite the

medical opinion of a physician verbatim in his residual functional capacity finding.” Poe v.

Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009). Accordingly, the “ALJ does not

improperly assume the role of a medical expert by assessing the medical and non-medical evidence

before rendering a residual functional capacity finding.” Id. However, “the ALJ must give some

indication of the evidence upon which he is relying, and he may not ignore evidence that does not

support his decision.” Fleischer v. Astrue, 774 F. Supp. 2d 875, 881 (N.D. Ohio 2011). Although

the ALJ retains a “zone of choice,” she must explain why she did not include limitations assessed

in contradicting medical opinions. Schmiedebusch v. Comm’r of Soc. Sec., 536 F. App’x. 637, 649

(6th Cir. 2013).

Ultimately, the Court concludes that the ALJ’s finding that “the evidence of record is not

supportive of [Plaintiff’s] allegations of . . . the requirement of at least five to six hours of laying

down daily due to pain” is supported by substantial evidence. [Tr. 450]. After extensively

reviewing the medical record with respect to Plaintiff’s back pain, the ALJ found that Plaintiff has

received largely conservative treatment and reported that his pain was fairly controlled. [Id.]. See

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20 C.F.R. § 404.1529(c)(3)(v) (listing treatment a claimant has received for their pain or other

symptoms as a relevant factor to be weighed in considering the severity of a claimant’s symptoms);

see, e.g., Helm v. Comm’r of Soc. Sec., 405 F. App’x 997, 1001 (6th Cir. 2011) (holding that the

plaintiff’s limited treatment was inconsistent with a finding of total disability); Robertson v.

Colvin, No. 4:14-cv-35, 2015 WL 5022145, at *5 (E.D. Tenn. Aug. 24, 2014) (finding the ALJ

properly discounted Plaintiff’s subjective complaints because “the ALJ also considered that

Plaintiff received routine, conservative care for his impairments”) (citing Curler v. Comm’r of Soc.

Sec., 561 F. App’x 464, 473 (6th Cir. 2014)). The ALJ noted how Plaintiff reported his pain being

fairly controlled with medication, as well as detailed numerous treatment records where Plaintiff

noted only mild to moderate complaints of pain. Further, the ALJ reviewed several examination

findings during the claimed period of disability where Plaintiff exhibited a normal range of motion.

Plaintiff also briefly asserts that he “does not have insurance and has received only

conservative care for his lumbar and neck issues,” including noting his inability to pay for ordered

physical therapy or an additional MRI of his lumbar spine. [Doc. 20 at 12]. Social Security Ruling

96–7p provides that an ALJ “must not draw any inferences about an individual’s symptoms . . .

from a failure to seek or pursue regular medical treatment without first considering any

explanations that the individual may provide,” such as that an “individual may be unable to afford

treatment and may not have access to free or low-cost medical services.” SSR 96–7p, 1996 WL

374186, at *7–8 (July 2, 1996). The ALJ, however, reviewed Plaintiff’s conservative course of

treatment for his back pain, including that it was fairly controlled with medication and the lack of

any surgery. Additionally, “there is no evidence that he ever sought treatment offered to indigents

or was denied medical treatment due to an inability to pay.” Moore v. Comm’r of Soc. Sec., No.

14-1123, 2015 WL 1931425, at *3 (W.D. Tenn. Apr. 28, 2015) (citing Goff v. Barnhart, 421 F.3d

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785, 793 (8th Cir. 2005) (“However, there is no evidence Goff was ever denied medical treatment

due to financial reasons.”)).

Next, the ALJ detailed several inconsistencies with Plaintiff’s disabling allegations of pain,

including his normal sensory examinations by his primary care providers and Dr. Blaine, but

complaints of decreased sensation to Dr. Kennedy; observations of Plaintiff favoring his left

extremity at one examination and his right extremity at another; and the most recent examination

noting Plaintiff’s gait was observed without asymmetric limping. [Tr. at 450]. Lastly, the ALJ

stated that Plaintiff’s treatment records indicate he told a provider that he was fired for falsifying

logbooks, which calls into question whether he could continue working, and noted that Dr. Uzzle

reported multiple inconsistencies while observing Plaintiff. [Id.].

Additionally, the ALJ reviewed the medical record, including the opinions of Dr. Kennedy,

Dr. Blaine, and Dr. Baumrucker, and detailed how the opinions were not entitled to controlling

weight. Plaintiff does not contest the ALJ’s treatment of these opinions or his reasoning for not

adopting the assessed limitations involving Plaintiff’s need to withdraw from work or lie down.

The Court finds that the ALJ appropriately detailed how the opinions were not entitled to great

weight and detailed objective medical evidence which supported his findings. See, e.g., Shular v.

Berryhill, No. 3:17-CV-266-HBG, 2018 WL 3377332, at *4 (E.D. Tenn. July 11, 2018) (finding

the ALJ’s assignment of little weight to opinion of consultative examiner is supported by

substantial evidence as “[t]he ALJ cited to Plaintiff’s otherwise normal range of motion”); Hinkle

v. Berryhill, No. 2:17-CV-54, 2018 WL 2437238, at *5 (E.D. Tenn. May 30, 2018) (holding the

ALJ properly assigned little weight to a consultative examiner’s opinion, as the ALJ detailed how

the opinion was not consistent with the examination or medical record, as well as reviewed

Plaintiff’s subjective allegations)

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Ultimately, the ALJ did include significant limitations on Plaintiff’s ability to stand or

walk, as well as change position, as Plaintiff’s RFC limits him to walking for two hours in an eight

hour workday, with a need to change positions every twenty to thirty minutes, and limits his ability

to bend, twist, and kneel. [Tr. 446]. The Court finds that the ALJ accounted for Plaintiff’s severe

impairment of degenerative disc disease, and after reviewing the medical opinions and Plaintiff’s

treatment record, included only the limitations that he found credible. See Poe v. Comm’r of Soc.

Sec., 342 F. App’x 149, 155–56 (6th Cir. 2009). Therefore, Plaintiff’s assignments of error do not

constitute a basis for remand.

2. Need to Reach Overhead

Plaintiff asserts that the ALJ improperly failed to include a limitation on his ability to lift

above shoulder-level in the RFC determination. [Doc. 20 at 8]. Plaintiff claims that this limitation

is supported by Dr. Kennedy’s opinion that he could not “be expected to work with his hands

elevated above the level of his shoulders because that would tend to arch his back and make his

pain worse.” [Tr. 429]. Additionally, Plaintiff contends that the nonexamining state agency

physician on his subsequent application, Frank Pennington, M.D., opined that he would be limited

in his ability to reach overhead in any direction in both of his upper extremities. [Doc. 20 at 8].2

In the disability determination, while reviewing the opinions of the nonexamining state

agency consultants on Plaintiff’s subsequent application, the ALJ found that the assessed

limitations with respect overhead reaching were not consistent with the medical record, as Plaintiff

2 While Plaintiff asserts that Dr. Kennedy opined that he would “have limited upper

extremity movement [due] to ‘frequent’ usage due to neck pain” [Doc. 20 at 8], when asked to

assess Plaintiff’s manipulative limitations, Dr. Kennedy opined “frequent o[ver]h[ead] reaching

with [bilateral upper extremities] due to neck pain” [Tr. 516].

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“has demonstrated normal strength in his upper extremities, and his complaints of neck pain have

not been consistent throughout the period at issue.” [Tr. 451].

As discussed previously, however, the ALJ is only required to include limitations that he

finds credible in the RFC determination. See Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 155–

56 (6th Cir. 2009). Here, the ALJ found that the portion of Dr. Kennedy’s opinion regarding

“working with his hands elevated above the shoulder level” was consistent with the RFC

determination. [Tr. 453]. Therefore, the Court interprets Dr. Kennedy’s opinion as stating that

Plaintiff was limited to frequent overhead reaching with both upper extremities due to his neck

pain, which the ALJ found was consistent with the RFC determination. Further, as a nonexamining

state agency physician, Dr. Pennington’s opinion was not entitled to controlling weight. 20 C.F.R.

§§ 404.1527(e)(2)(i) and 416.927(e)(2)(i). Here, the Court finds that the ALJ appropriately

detailed how the assessed limitation on Plaintiff’s ability to overhead reach was not supported by

the medical record in discounting Dr. Pennington’s opinion. 20 C.F.R. §§ 404.1502 and 416.902

(noting opinions from nonexamining sources are weighed based in part on consistency with the

record); see also Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013).

Plaintiff claims that the ALJ failed to consider “the consistent reports of pain in the left

shoulder with limited strength after a fall in 2014.” [Doc. 20 at 8]. Plaintiff cites to the September

9, 2014 MRI of his cervical spine which indicated “multilevel degenerative disc space narrowing

and osteophytic ridging most prominent at C6-C7.” [Id. at 9]; see [Tr. 745].

However, in the disability decision, the ALJ specifically addressed Plaintiff’s “emergency

treatment for neck pain, and imaging [which] revealed degenerative changes most pronounced at

C6-C7.” [Tr. 449]. The ALJ also reviewed that at his subsequent visit, Plaintiff demonstrated

“normal pain free range of motion of the cervical spine” on April 1, 2016. [Id.]; see [Tr. 884–91].

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Plaintiff exhibited negative impingement and apprehension signs at the shoulders during his

consultative examination with Dr. Uzzle on March 17, 2017. [Tr. 944]. Further, the ALJ

specifically detailed his reasoning in support of the lack of a limitation on Plaintiff’s ability to lift

above shoulder level in the RFC determination—that Plaintiff consistently demonstrated normal

strength on examination and did not exhibit consistent complaints of neck pain. [Tr. 451].

Although Plaintiff would interpret the medical evidence differently, the Court finds that

the ALJ’s determination was within his “zone of choice.” Blakley v. Comm’r of Soc. Sec., 581

F.3d 399, 407 (6th Cir. 2009); see also Huizar v. Astrue, No. 3:07CV411-J, 2008 WL 4499995, at

*3 (W.D. Ky. Sept. 29, 2008) (“While plaintiff understandably argues for a different interpretation

of the evidence from that chosen by the ALJ, the issue is not whether substantial evidence could

support a contrary finding, but simply whether substantial evidence supports the ALJ’s findings.”).

“Rather, it is the Commissioner’s prerogative to determine whether a certain symptom or

combination of symptoms renders a claimant unable to work.” Luukkonen v. Comm’r Soc. Sec.,

653 F. App’x 393, 402 (6th Cir. 2016) (citing 20 C.F.R. § 416.929(c)(1), -(d)(2)). The ALJ is

responsible for weighing medical opinions, as well as resolving conflicts in the medical evidence

of record. Richardson v. Perales, 402 U.S. 389, 399 (1971); see also 20 C.F.R. §

416.946(c) (stating the final responsibility for assessing a claimant’s RFC rests with the ALJ).

Ultimately, the Court finds that the ALJ’s RFC determination is supported by substantial evidence,

and Plaintiff’s assignments of error do not constitute a basis for remand.

C. Discretion to Order a Mental Health Consultative Evaluation and Need for

Service Animal

Plaintiff contends that the ALJ abused his discretion by failing to order an updated mental

health evaluation due to his testimony and use of a service animal. [Doc. 20 at 9]. Plaintiff notes

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that his counsel requested that the ALJ order an updated mental health evaluation on May 24, 2017

[Tr. 738], and that “[t]he only assessment of record” was performed by Dr. Nevils “over three

years prior to the ALJ’s decision.” [Doc. 20 at 9]. Plaintiff points to his long history of mental

health treatment for depression and anxiety, and he claims that while the ALJ found that his

condition improved after being prescribed Pristiq, the ALJ also failed to consider his use of a

service animal as a source of his improvement. [Id.]. Plaintiff alleges that “[t]he ALJ’s failure to

consider the need for the service animal [ ] when determining whether adequate information was

available to make a determination regarding his mental health limits was error,” and “[t]he ALJ

should have ordered an updated [consultative examination] to address this significant issue.” [Id.

at 10].

The regulations provide that the agency “may ask [the claimant] to have one or more

physical or mental examinations or tests” if the claimant’s “medical sources cannot or will not give

us sufficient medical evidence” to determine whether the claimant is disabled. 20 C.F.R. §

416.917. Additionally, “[a]n ALJ has discretion to determine whether further evidence, such as

additional testing or expert testimony, is necessary.” Foster v. Halter, 279 F.3d 348, 355 (6th Cir.

2001); see Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 n.3 (6th Cir. 2009) (“[A]n ALJ is

required to re-contact a treating physician only when the information received is inadequate to

reach a determination on claimant’s disability status[.]”).

Here, the Court finds “that the record contained a considerable amount of evidence

pertaining to [Plaintiff’s] mental limitations,” and thus the ALJ “did not abuse [his] discretion by

declining to obtain an additional assessment.” Culp v. Comm’r of Soc. Sec., 539 F. App’x 750,

751 (6th Cir. 2013). Although the present case presents an unusual procedural posture, where

Plaintiff’s case was before the ALJ after a second, subsequent application and the remand order of

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this Court, the ALJ extensively reviewed Plaintiff’s mental health treatment. As the Court has

already detailed, the ALJ reviewed Plaintiff’s improvement after taking Pristiq in July of 2013 and

subsequent mental status examinations by his primary care providers. Further, the ALJ afforded

great weight to both Dr. Nevils’ opinion and the opinions of the state agency psychological

consultants provided in connection with Plaintiff’s subsequent application, who found that

Plaintiff did not have a severe mental impairment. [Tr. 451]. In addition, the ALJ did not have a

special duty to develop the record because Plaintiff was represented by counsel. See Duncan v.

Sec’y of Health & Human Servs., 801 F.2d 847, 856 (6th Cir. 1986). Therefore, the Court finds

that the ALJ did not err by failing to order an additional psychological consultative examination

after the consolidation of his subsequent application and the Court’s remand.

Plaintiff also claims that the ALJ failed “to consider the need for a service animal,” and

that “[t]his case should be remanded to determine the need for the service animal.” [Doc. 20 at

10]. The Commissioner responds that the ALJ appropriately considered Plaintiff’s testimony that

he had a service dog but found that there was “no evidence that the dog received any training as a

service animal or was otherwise part of Plaintiff’s prescribed treatment.” [Doc. 24 at 22].

“A claimant’s use of a service dog must be considered by the ALJ when there is evidence

of a prescription from a medical provider for the dog.” McGehee v. Berryhill, 386 F. Supp. 3d 80,

87–88 (D. Mass. 2019); see, e.g., Cruz v. Comm’r of Soc. Sec. Admin., 406 F. Supp. 3d 1337, 1346

(M.D. Fla. 2019) (“While there does not appear to be any Eleventh Circuit authority establishing

a standard for incorporating a claimant’s need for a service animal in a claimant’s RFC

assessment, some courts have found that ‘the use of a service dog must be medically necessary to

be considered in an RFC assessment’ . . . Other courts have also found that the ALJ must consider

the claimant’s use of a service dog when the evidence shows that the service dog was medically

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prescribed or recommended.”) (quoting McGehee, 386 F. Supp. 3d at 87) (other citations omitted).

Plaintiff has failed to point to any evidence in the record establishing that a service animal was

medical necessary other than “the statement of need for the service animal in an apartment

application signed by his counselor at the time.” [Doc. 20 at 10]; see [Tr. 734].3

In the disability decision, the ALJ noted that Plaintiff testified that he has had a service

animal since 2015, but that “the evidence indicates the claimant and his girlfriend bought a puppy

for each other as a Christmas present, and the evidence does not indicate that the claimant received

a trained service dog.” [Tr. 442–43]. The ALJ also discussed Plaintiff’s treatment notes involving

the puppy, as “[i]n February 2016, the claimant told his therapist he has become very attached to

the animal, and he brought [the] puppy to his therapy session.” [Tr. 444].

The attached record submitted by the Plaintiff consists of a modification disability

verification for his apartment complex, which Plaintiff claims was signed by his treating counselor,

and states that he requires a “companion animal.” [Tr. 734]. While the Court notes the apparent

absence of controlling Sixth Circuit authority on this topic, the Mcgehee Court noted that “[a]bsent

a prescription, courts are split on whether a letter recommending a service dog from a medical

source is sufficient to show that the dog is medically necessary.” 386 F. Supp. 3d at 88

(comparing Payano v. Colvin, No. 2:15-cv-294-RFB-GWF, 2017 WL 4778593, at *4 (N.D. Nev.

Oct. 23, 2017) (finding letter from psychiatrist recommending service dog alone does not support

an assessment that a dog is necessary for the plaintiff to work), with Santos v. Colvin, No. 3:12-

cv-5827-KLS, 2013 WL 5176846, at *5 (W.D. Wash. Sept. 12, 2013) (remanding where a doctor

3 Plaintiff asserts that “[i]t appears the second page was not in the record and has been

attached as Exhibit 1,” [Doc. 20 at 10], but subsequently failed to include any exhibits to his

Memorandum.

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provided letter indicating that plaintiff required a service dog)).

Here, the ALJ considered Plaintiff’s testimony that he used a service dog in the disability

decision, but found that the evidence did not indicate that he received a trained service dog, as well

as that his anxiety and depression were not severe impairments. [Tr. 442–43]. Additionally, the

Court finds that Plaintiff has failed to establish that a service animal was medically necessary. The

referenced letter to Plaintiff’s apartment complex that he requires a service animal does not detail

that such an animal was medically prescribed or provide an opinion on the impact of a service

animal on Plaintiff’s ability to work. See Cordell v. Saul, No. 3:19-CV-47, 2019 WL 6257994, at

*18 (N.D.W. Va. Nov. 4, 2019) (“Generally, a letter from a medical provider that suggests an

individual’s use of a service dog, without further testimony or documentation of the individual’s

need and use of the service animal, is insufficient to establish that the service dog is medically

necessary.”), report and recommendation adopted sub nom., Cordell v. Comm’r of Soc. Sec., 2019

WL 6255498 (N.D.W. Va. Nov. 22, 2019); Payano, 2017 WL 4778593, at *4 (finding a

recommendation that the claimant’s dog be designated as a service animal “does not support an

assessment that the dog is necessary for Plaintiff to work, nor describe how she would need any

dog in a work setting” and as such “[a]ny failure to inform the vocational expert of the mere fact

of having a properly-designated service dog was harmless error”). Further, Plaintiff fails to point

to evidence in the record of the use of a service dog in his treatment notes, or that he ever actually

utilized a properly trained service animal.

Accordingly, the Court finds that Plaintiff has failed to establish that a service animal was

medically necessary, and thus the ALJ did not err by failing to consider the use of a service animal

in the RFC determination.

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D. Dr. Uzzle’s Review of the Medical Record

Plaintiff additionally claims that the ALJ erred by failing to forward the March 17, 2012

MRI of his lumbar spine to Dr. Uzzle for his review. [Doc. 20 at 11]. Plaintiff contends that Dr.

Uzzle only reviewed x-rays, and that the MRI “and its revelation of the L5 disc herniation . . . is

at the crux of [Plaintiff’s] back pain and radiating pain into his legs,” while also revealing C6-C7

narrowing. [Id.]. The Commissioner responds that the ALJ specifically detailed why it was not

necessary for Dr. Uzzle to review the March 2012 MRI. [Doc. 24 at 23].

In the disability decision, the ALJ noted that Plaintiff requested that the MRI be sent to Dr.

Uzzle for his review, but that the request was denied, as the ALJ considered the MRI in making

the disability determination, “the examiner had an opportunity to review recent diagnostic

imaging,” and Dr. Uzzle noted that “his observations were already limited by the claimant’s lack

of effort during testing and inconsistent behaviors.” [Tr. 439]. As the Court has already reviewed,

the ALJ detailed that Plaintiff’s March 17, 2012 MRI “revealed a focal annular fissure

posterolaterally on the right at L5-S1, and a small disc protrusion,” further examinations revealed

mild to moderate pain, and Plaintiff’s primary care providers prescribed non-steroid anti-

inflammatory drugs. [Tr. 447–48]; see [Tr. 418].

Pursuant to 20 C.F.R. §§ 404.1517 and 416.917, consultative examiners must be provided

with “any necessary background information” concerning a claimant’s condition. However, the

regulation “does not place an imperative on the agency to provide a consultative examiner with a

full medical record, but only explains that ‘[w]e will also give the examiner any necessary

background information about your condition.’” Grant v. Colvin, No. 3:14-cv-399, 2015 WL

4713662, at *13 (E.D. Tenn. Aug. 7, 2015) (quoting 20 C.F.R. § 404.1517).

25

Here, Dr. Uzzle noted on March 17, 2017 that “[l]umbrosacral AP and lateral x-rays” were

obtained, as well as x-rays of Plaintiff’s “thoracic spine AP and lateral views.” [Tr. 942]. Dr.

Uzzle found this imaging exhibited “mild-to-moderate multiple level degenerative disc changes

with spurring at multiple levels,” while “[l]umbosacral x-rays show moderate multiple level

degenerative disc changes, no signs of fracture or malalignment, and SI joints appear patent.” [Id.].

Ultimately, the Court finds that the ALJ did not err by failing to provide Dr. Uzzle with

Plaintiff’s March 17, 2012 MRI, as Plaintiff has failed to differentiate the MRI from more recent

diagnostic imaging that revealed his moderate multi-level degenerative disc changes in the lumbar

spine. Dr. Uzzle did not state that he was unable to review Plaintiff’s medical record, and

specifically detailed his review of the diagnostic imaging. Cf. Goppert v. Berryhill, No. 3:16-CV-

02739, 2018 WL 513435, at *11 (M.D. Tenn. Jan. 23, 2018) (“Yet, the ALJ did not provide any

medical records or x-rays to Dr. Robinson to review. Therefore, based upon the Sixth Circuit’s

analysis in Brantley, the Magistrate Judge concludes that under 20 C.F.R. §§ 404.1517 and

416.917 the ALJ was obligated to provide Dr. Robinson with Plaintiff’s medical records and x-

rays and failure to do so constituted error.”) (citing Brantley v. Comm’r of Soc. Sec., 637 F. App’x

888, 894 (6th Cir. 2016)), report and recommendation adopted by, 2018 WL 1138533 (M.D. Tenn.

Mar. 1, 2018). Importantly, Plaintiff does not argue that the ALJ failed to discuss the records he

claims that Dr. Uzzle did not review. Therefore, Plaintiff’s contention that Dr. Uzzle improperly

failed to review a complete medical record does not constitute a basis for remand.

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VI. CONCLUSION

Based on the foregoing, Plaintiff's Motion for Judgment on the Pleadings and

Memorandum in Support [Doc. 19] will be DENIED, and the Commissioner’s Motion for

Summary Judgment [Doc. 23] will be GRANTED. The decision of the Commissioner will be

AFFIRMED. The Clerk of Court will be DIRECTED to close this case.

ORDER ACCORDINGLY.

nn O 8

Lf Vit Wits Gow aK LH

Debra C. Poplin \

United States Magistrate Judge

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