Opinion
CIV. 2001-5061 [2002 DSD 12]
May 8, 2002
Margo Tschetter Julius, Groves, Julius Simpson, Rapid City, S.D. Attorney for Plaintiff.
Diana J. Ryan, Assistant United States Attorney, Rapid City, S.D. Attorney for Defendant.
MEMORANDUM OPINION AND ORDER
I. PROCEDURAL HISTORY
Pending before the Court is a motion for summary judgment filed by plaintiff Kenneth Fischer (Fischer) on January 17, 2002. Fischer applied for social security disability benefits on January 22, 1999, alleging an onset date of May 23, 1997. AR 88-90. Fischer's application was initially denied and denied upon reconsideration. AR 71-74, 77-79. An administrative hearing was held before an administrative law judge (ALJ) on January 10, 2000, after which an unfavorable decision was issued on July 28, 2000. AR 37-68, 13-34. The Appeals Council denied Fischer's request for review of the hearing on June 13, 2001. AR 7-8. Fischer filed a complaint with the Court on August 13, 2001.
II. FACTUAL BACKGROUND
Fischer was born on June 3, 1951, and was 48 years of age at the time of the administrative hearing. AR 40. Fischer is married and has four children and four stepchildren though only two children currently reside with him and his wife. AR 41-42. Fischer's formal education ended when he completed the ninth grade. AR 41. Fischer has been employed as a truck driver, drill operator, RV technician, garbage truck driver and collector, bricklayer's assistant, RV park manager, and laborer. AR 153-54. He was also self-employed for a time where he owned a tire business. AR 154.
Fischer was injured on May 22, 1997, when his right leg was crushed by the bucket on a bobcat. AR 43. He was diagnosed with a fracture of the medial malleolus right ankle and a fracture of the distal tibia and fibula. AR 183. Fischer underwent surgery in which an open reduction and screw fixation of the medial malleolus and a closed reduction of the tibia and fibula were performed and a long leg cast was used. AR 183. On November 20, 1997, Dr. Steven Frost diagnosed Fischer with possible reflex sympathetic dystrophy (RSD). AR 264-265. A bone scan in January 1999 suggested arthritic changes but was not suggestive of RSD. AR 347.
RSD is a post-traumatic chronic pain syndrome. See Merck Manual of Diagnosis and Therapy, 1372 (17th ed. 1999).
After the initial surgery, Fischer underwent physical therapy from November 5, 1997, to February 9, 1998. AR 258, 317-26. He had two lumbar spine sympathetic blocks which were performed on November 20, 1997, and November 28, 1997. AR 264-65, 182. From February 13, 1998, to April 10, 1998, Fischer underwent a work conditioning program. AR 188-243, 257. In June 1998, Fischer underwent a right knee debridement and arthroscopic chondroplasty. AR 374-375. In October 1999, an orthopedic screw was removed from Fischer's right ankle and an arthroscopic debridement of his right ankle was performed. AR 362-63. An x-ray revealed only minimal arthritic changes in his right ankle. AR 342.
A Residual Functional Capacity (RFC) assessment was completed on May 7, 1999. AR 162-69. The primary diagnosis was a crush injury to Fischer's right leg and a secondary diagnosis of possible RSD. AR 162. Exertionally, Fischer was found able to lift and/or carry ten pounds occasionally, and less than ten pounds frequently, stand and/or walk at least two hours in an eight-hour workday, sit about six hours in an eight-hour workday, and he was unlimited in pushing and pulling. AR 163. He can occasionally climb, balance, stoop, kneel, crouch, and crawl. AR 164. Fischer had no manipulative, visual, communicative, or environmental limitations. AR 165-66.
Dr. Dewey J. Ertz (Ertz) performed a psychological evaluation of Fischer on March 30, 1999, utilizing extensive testing methodologies. AR 416-27. Dr. Ertz diagnosed Fischer as suffering from a "Mood Disorder Due to Chronic Pain, secondary to injuries received on 5/22/97, with Depressive Features. . . . Pain Disorder, Associated with Both Psychological Factors and a General Medical Condition, Chronic. . . ." AR 427. He was also diagnosed with psychosocial problems stemming from occupational and economic problems. Id. The doctor also found no evidence of cognitive malingering. AR 426. It was Dr. Ertz's opinion that "the somatization Ken displays is consistent with a pain disorder and it is based upon a fear of increasing his pain along with other depressive symptoms." Id. Dr. Ertz's opinion was based on Fischer's presentation, medial records, and psychological testing. Id.
In a letter dated January 4, 2000, Dr. Ertz gave an opinion concerning Fischer's impairments and his ability to pursue gainful employment. AR 414-15. It was Dr. Ertz's opinion that Fischer met the criterion for an affective disorder (12.04) with a depressive syndrome and that he suffers from a pain disorder "consistent with a somatoform disorder as described in Section 12.07. AR 414. In the doctor's opinion, Fischer is not capable of sustained full-time gainful employment. Id. Dr. Ertz stated the following in supporting his conclusion:
Psychological testing indicated that Mr. Fischer is not malingering his impairments on either a psychological or a cognitive level. The instruments employed have wide acceptance in the psychological and medical community and support Mr. Fischer's self-reports of impaired mood. A large volume of literature exists indicating that chronic pain results in mood disturbances for approximately 70% of patients. A direct relationship exists between chronic pain, depressed mood, and stress where increases in any area results in corresponding increases for the remaining areas. Existing medical records, observations, and the psychological testing supports Mr. Fisher's self-reports. . . .
AR 415.
Fischer completed a personal pain questionnaire on February 6, 1999. AR 128-34. Fischer described his pain as an aching pain which is located in his right leg from his foot to his knee. AR 128. Elevating his right leg, icing it, and using a TENS unit two to three times per day will alleviate the pain. Id. He claims to experience pain twenty-four hours a day but it is worse in the evening. Id. Fischer states that the pain has become worse over the last six months from the date of the questionnaire. Id.
Transcutaneous electrical nerve stimulation. See Dorland's Illustrated Medical Dictionary, 1668 (28th ed. 1994).
Fischer also states in the questionnaire that his daily activities are affected by his pain. AR 129-32. He states that his sleep is affected such that he can only sleep three to four hours per night. AR 50, 129. He is able to go shopping with his wife but must go to his car midway through the shopping because of his pain. AR 129. He also tries to help with house chores until his leg hurts him too bad; his wife and children do all the outside work now. AR 129-30. Fischer can stand for about an hour and walk about thirty to forty-five minutes at a time, but then he must sit down with his leg elevated or lie down. AR 130-31. He states that he can lift twenty to thirty pounds without increasing his pain, but lifting, bending, and reaching makes his leg hurt. AR 131. Fischer can drive for about two hours. Id. His activities in a typical day include doing some chores around the house until the pain becomes too bad and then his wife and children will finish for him. AR 132.
Fischer also indicates in the questionnaire that he has social and psychological problems stemming from his pain. He states that the pain causes difficulties with him getting along with family, friends, and others because it makes him "grouchy." AR 131. He also states that he does not participate in community, church, sport, or social groups. AR 132. His pain makes attending movies, concerts, car racing, and fishing too uncomfortable to enjoy. Id. Fischer's testimony at the administrative hearing and from the pain and daily activities questionnaire completed by his wife is substantially consistent with the information provided by Fischer in his pain questionnaire. See AR 37-68, 128-34, 139-47.
According to Fischer, he needs to elevate his leg at a high angle throughout the day in order to alleviate the pain in his leg. AR 48, 128, 131. Dr. Stuart Fromm (Fromm), Fischer's treating physician, reviewed Fischer's pain questionnaire and it was the doctor's opinion that Fischer's activity modifications are legitimate and consistent with his medical condition. AR 429. According to Dr. Fromm, his opinion is supported in that Fischer "does have significant chondromalacia patella of his right knee as well as post-injury stiffness . . . [and] [h]e also has stiffness and early arthritic changes of his ankle." AR 429. Dr. Fromm agreed that Fischer elevating his leg above his waist would help with swelling. AR 430.
III. DECISION OF THE ALJ
The ALJ determined at step one of the sequential evaluation process that Fischer was not engaging in substantial gainful activity. AR 17. At step two, the ALJ determined that Fischer had the following severe impairments: status post crushed right leg and ankle with degenerative joint disease, status post right knee arthroscopy, pain disorder, and an affective disorder. AR 17. The ALJ, however, at step three determined that Fischer's severe impairments did not meet or equal the requirements set forth in the listings of impairments found in Appendix 1 of Subpart P, of 20 C.F.R. Part 404. AR 18. The ALJ determined that Fischer retained the RFC to "perform the extertional demands of light work, or work which requires maximum lifting of twenty pounds and frequent lifting of ten pounds. 20 C.F.R. § 404.1567. The claimant would be further limited to occasional overhear (sic) reaching, squatting, kneeling, and crawling." AR 23. The ALJ also determined that Fischer would be limited to unskilled work. Id. At step four, the ALJ determined that Fischer was unable to perform past relevant work. AR 24. But at step five the ALJ, with the aid of a vocational expert (VE), determined that Fischer could perform work existing in significant numbers in the national economy. AR 25. Such positions include surveillance systems monitor, assembler, electronics worker, and assembler production. AR 23. Consequently, the ALJ concluded that Fischer was not disabled and not entitled to disability benefits under the Social Security Act. AR 25-26.
The five-step sequential evaluation process is as follows:
(1) If the claimant is working and such work is substantial gainful activity, the claimant is not deemed disabled for purposes of the Social Security Act;
(2) The claimant must have a severe impairment(s) which is an impairment that significantly limits the claimant's physical or mental ability to do basic work activities;
(3) If the impairment(s) either meets or equals one of the listed impairments found in 20 C.F.R. Part 404, Subpart P, Appendix 1, and meets the duration requirement, the claimant will be found to be disabled without considering the claimant's age, education, and work experience;
(4) The impairment(s) must prevent the claimant from doing past relevant work. If such a conclusion cannot be made based upon the claimant's current work activity or medical facts alone, then the ALJ reviews the claimant's residual functional capacity and the physical and mental demands of the claimant's former employment activities. If the ALJ determines that the claimant can still do past relevant work, then the claimant is not disabled for the purposes of the Social Security Act; and
(5) The impairment(s) must also prevent the claimant from doing any other work. However, "[i]f [the claimant has] only a marginal education, and long work experience (i.e., 35 years or more) where [the claimant] only did arduous unskilled physical labor, and [the claimant] can no longer do this kind of work, [a different rule is used] (see § 404.1562)."20 C.F.R. § 404.1520. See also Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001) (acknowledging the five-step sequential evaluation process of 20 § C.F.R. § 404.1520).
IV. STANDARD OF REVIEW
The decision of the ALJ must be upheld if it is supported by substantial evidence in the record as a whole. See 42 U.S.C. § 405(g); Metz v. Shalala, 49 F.3d 374, 376 (8th Cir. 1995) (citing Sullins v. Shalala, 25 F.3d 601, 603 (8th Cir. 1994), cert. denied, 573 U.S. 1076, 115 S.Ct. 722, 130 L.Ed.2d 627 (1995)); Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993). Substantial evidence is less than a preponderance, but enough evidence that a reasonable mind might find it adequate to support the conclusion. See Fines v. Apfel, 149 F.3d 893 (8th Cir. 1998) (citing Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993)). See also Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)); Onstead v. Sullivan, 962 F.2d 803 (8th Cir. 1992) (quoting Whitehouse v. Sullivan , 949 F.2d 1005, 1007 (8th Cir. 1991)). Review by this Court extends beyond a limited search for the existence of evidence supporting the Commissioner's decision to include giving consideration to evidence in the record which fairly detracts from the decision. See Brockman v. Sullivan, 987 F.2d 1344, 1346 (8th Cir. 1993); Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992); Turley v. Sullivan, 939 F.2d 524, 528 (8th Cir. 1991).
The Court's role is to determine whether there is substantial evidence in the record as a whole to support the decision of the Commissioner and not to reweigh the evidence or try the issues de novo. See Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Furthermore, a reviewing court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993); Smith v. Shalala, 987 F.2d at 1374 (citing Locher, 986 F.2d at 727 (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984))). The Court must review the Commissioner's decision to determine if an error of law has been committed. See Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992); Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir. 1983). The Commissioner's conclusions of law are only persuasive, not binding, on the reviewing court. See Smith v. Sullivan, 982 F.2d at 311; Satterfield v. Mathews, 483 F. Supp. 20, 22 (E.D.Ark. 1979), aff'd per curiam, 615 F.2d 1288, 1289 (8th Cir. 1980). As long as the ALJ's decision is supported by substantial evidence, then this Court cannot reverse the decision of the ALJ even if the Court would have decided it differently. See Smith v. Shalala, 987 F.2d at 1374. In other words, "`[i]f, after review, [the Court] find[s] it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, [the Court] must affirm the denial of benefits.'" Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001) (quoting Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996) (citing Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
V. DISCUSSION
Fischer presents four issues for review: (1) whether the ALJ erred in rejecting a treating physician's opinion of Fischer's limitations; (2) whether the ALJ's finding that Fischer was not fully credible was err; (3) whether the ALJ's erred in finding that Fischer did not meet the listing under § 12.04; and (4) whether the hypothetical posed by the ALJ to the VE was defective such as to result in reversible error.
Treating Physician's Opinion
Fischer argues that the ALJ erred in rejecting the medical opinion of his treating physician, Dr. Fromm, concerning his need to elevate his leg to alleviate his pain. It was Dr. Fromm's medical opinion that elevation of Fischer's leg would help with the swelling. AR 430. Additionally, the doctor agreed that Fischer's activity modifications were legitimate and consistent with Fischer's medical condition. AR 429. The doctor provides the following medical evidence for the support of his opinion: "[H]e does have significant chondromalacia patella of his right knee as well as post-injury stiffness. He also has stiffness and early arthritic changes of his ankle." Id.
Generally, "[a] treating physician's opinion should not ordinarily be disregarded and is entitled to substantial weight." Cunningham v. Apfel, 222 F.3d 496, 502 (8th Cir. 2000) (citing Ghant v. Bowen, 930 F.2d 633, 639 (8th Cir. 1991)). The Eighth Circuit Court of Appeals has held that a treating physician's opinion should be given controlling weight "if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record." Cunningham, 222 F.3d at 502 (citing Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998)). The Court of Appeals, however, has advised that an ALJ may reject a treating physician's opinion where the opinion is inconsistent with the medical record as a whole. See Sarna v. Barnhart, No. 01-3215, 2002 WL 508492 at *2 (8th Cir. (Ark. Apr. 5, 2002)) (citing Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002)) (unpublished).
The record indicates that Fisher's knee problem has significantly improved. Examinations performed between July 1998, and September 1999, indicate that Fischer's right knee is able to achieve almost full extension and excellent flexion. AR 343-344, 385. He can walk with a smooth gait. Id. Fischer reported in January, 1999, that the pain in his knee was improving. AR 338-39. Dr. Fromm concluded that Fischer's right knee had improved since his surgery. AR 343-345.
Fischer's right ankle also is improving. An examination performed in November of 1998 indicated that Fischer's right foot was neurovascularly intact; he also demonstrated increased motion in his right foot. AR 341. In December 1998, Dr. Fromm determined that Fischer's lower extremity suffered a twenty-seven percent impairment and Fischer suffered a twelve percent overall impairment. AR 341. In January 1999, Dr. Fromm concluded that Fischer's ankle had improved and he was showing no obvious signs of RSD. AR 338-39.
Fischer's RFC assessment is inconsistent with Dr. Fromm's opinion. The assessment determined that Fischer was able to lift and/or carry ten pounds occasionally, and less than ten pounds frequently, stand and/or walk at least two hours in an eight-hour workday, sit about six hours in an eight-hour workday, and he was unlimited in pushing and pulling. AR 163. He can occasionally climb, balance, stoop, kneel, crouch, and crawl. AR 164.
The record also indicates that Fischer had attempted to go back to work, performing light to medium work. AR 246. The ALJ correctly noted that while the work did not constitute substantial gainful activity, it did indicate a residual functional capacity to do some work. AR 19. See also 20 C.F.R. § 404.1571 ("Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did.").
The Court finds that the treating physician's opinion is inconsistent with the medical record as a whole. Consequently, the ALJ could properly reject Fischer's treating physician's opinion.
Subjective Complaints
Fischer argues that the ALJ erred in finding his testimony regarding his subjective complaints of pain as not credible. See Plaintiff's Opening Memorandum (Plaintiff's Memorandum) at 3-5. "Where adequately explained and supported, credibility findings are for the ALJ to make." Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (citing Tang v. Apfel, 205 F.3d 1084, 1087 (8th Cir. 2000)). The Eighth Circuit Court of Appeals, in Polaski v. Heckler, outlined the necessary steps an ALJ must take in determining the credibility of a claimant's subjective complaints. 739 F.2d 1320, 1321-22 (8th Cir. 1984). Under Polaski:
The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
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.
The adjudicator is not free to accept or reject the claimant's subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.
Id. (emphasis in original). See also 20 C.F.R. § 416.929(c)(3). The ALJ is not required to "discuss methodically each Polaski consideration, so long as he acknowledged and examined those considerations. . . ." Lowe, 226 F.3d at 972.
The ALJ did not error in concluding that Fischer's subjective complaints regarding his pain lacked credibility. Fischer has admitted to going shopping with his wife, albeit with pain. AR 129. He also admits to doing some house chores and some cooking. AR 129-30, 140, 145. He will infrequently go camping, fishing and to the races. AR 132, 141, 146. Additionally, Fischer's RFC assessment, as discussed above, does not indicate that Fischer's pain is as disabling as he alleges. Given Fischer's daily activities and his RFC assessment, the Court finds that the ALJ's credibility determination is supported by substantial evidence.
Listing 12.04
Fischer next argues that the ALJ erred in finding that he did not meet the requirements of 20 C.F.R. Pt. 404, Subpt. P. App. 1, § 12.04(B) for an affective disorder. See Plaintiff's Memorandum at 5. Dr. Ertz performed a psychological evaluation of Fischer and concluded that he was not malingering and has met the criteria for an affective disorder under § 12.04. AR 414-427. The ALJ did acknowledge that the criteria of § 12.04(A) was met. AR 21. Section 12.04(B) states that two of the following must exist for the claimant's condition to establish an affective disorder that meets the listing:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
20 C.F.R. Pt. 404, Subpt. P. App. 1, § 12.04(B).
The ALJ determined that Fisher has only slight restrictions on activities of daily living, moderate limitations on social functioning, often has limitations in concentration, persistence, or pace, and that there was no evidence that he had episodes of deterioration or decompensation in work or work related settings because he left work in 1997 because of his work-related injury. AR 22. Additionally, the ALJ noted that Fischer did not seek mental health treatment for his condition. AR 22.
The record indicates that Fischer does not have marked limitations in daily activities. He is able to go shopping with his wife, albeit with pain. AR 129. He helps with house chores. Fischer will occasionally go camping and fishing. AR 132, 141. These activities do not indicate a marked limitation.
The regulations define the term "marked" in this context as follows: "it means more than moderate but less than extreme. A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with your ability to function independently, appropriately, effectively, and on a sustained basis." See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00 C (citing §§ 404.1520a and 416.920a).
Further, the record does not reflect a marked limitation in Fischer's social functioning. He states that his pain makes him "grouchy." AR 131. He also states that he does not participate in community, church, sport, or social groups, see AR 132, but he does go fishing and camping occasionally. AR 132, 141. Finally, Fischer does attend family gatherings. AR 141.
Fischer is not currently seeking counseling or taking medication for his mental impairments. AR 55. Failure to seek medical treatment for alleged mental impairments contradicts his complaint of a disabling mental impairment. See Gwathney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997) (citation omitted).
The only evidence which supports Fischer's contention that he has met the requirements of listing 12.04 is that of a consultative psychologist, Dr. Ertz. The opinions of a consulting psychologist who examines the claimant once does not usually rise to the level of substantial evidence. Cf. Cunningham, 222 F.3d at 502 (regarding a consulting physician).
Considering the record as a whole, the Court finds that the ALJ's decision is supported by substantial evidence.
Hypothetical
Fischer argues that the ALJ erred in not including his need to elevate his leg, his pain disorder, and depression in the hypothetical presented to the VE. Plaintiff's Memorandum at 7-10. "In order for an ALJ to rely on a vocational expert's opinion, the posed hypothetical must accurately describe a claimant's impairments." Morse v. Shalala, 32 F.3d 1228, 1230 (8th Cir. 1994) (citing Tennant v. Schweiker, 682 F.2d 707, 711 (8th Cir. 1982)). In reviewing the ALJ's hypothetical, the reviewing court must determine "whether the information given to the vocational expert in the hypothetical was supported by substantial evidence in the record as a whole." Id. (citing Andres v. Bowen, 870 F.2d 453, 455 (8th Cir. 1989)).
The ALJ presented the VE the following hypothetical:
Assume a person with the claimant's age, experience, and education. A (sic) if that person were able to lift 50 pounds occasionally and 25 pounds frequently, stand and walk for 6 hours, and sit for 6 hours. A (sic) this person is limited to occasional reaching, squatting, kneeling and crawling. Could that person do the claimant's past relevant work?
***
And if we a (sic) further limit the person to a (sic) lifting 20 pounds occasionally and 10 pounds frequently. Could that person do any work with the above a (sic) limitations?
***
[W]e'll limit this person also to a (sic) unskilled work.
***
Let's say it's occasional over head reach.
AR 61-62.
As discussed above, the ALJ did not error in rejecting Dr. Fromm's opinion concerning the necessity of Fischer elevating his leg to relieve his pain. As the ALJ's decision concerning Fischer's subjective complaints regarding the need to elevate his leg was supported by substantial evidence, the ALJ did not error in excluding it from his hypothetical. Although the ALJ found that Fischer suffered from a pain disorder and an affective disorder which the ALJ classified as severe, see AR 17, the Court finds that the exclusion of these impairments from the hypothetical was harmless error, especially in light of the fact that Fischer was not on medication or seeking other treatment for his mental impairments. Consequently, the Court finds the ALJ did not error in his formulation of the hypothetical.
The Court concludes that there is substantial evidence to support the conclusion of the ALJ that plaintiff is not disabled.
VI. CONCLUSION
Pursuant to the forgoing, it is hereby
ORDERED that plaintiff's motion for summary judgment is denied. Judgment will be entered for the Commissioner and against the plaintiff. The case is dismissed with prejudice against the plaintiff.