Opinion
Civil No. 00-2250 (JRT/JMM).
March 31, 2002.
Edward C. Olson, OLSON LAW OFFICE, Minneapolis, MN, for plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Minneapolis, Minnesota, for defendant.
MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Plaintiff John R. Montgomery brings this action against the Commissioner of Social Security seeking judicial review of the denial of his application for disability insurance benefits. The parties have filed cross-motions for summary judgment. In a Report and Recommendation dated June 6, 2001, United States Magistrate Judge John M. Mason recommended that the Court deny plaintiff's motion for summary judgment and grant defendant's motion for summary judgment. This matter is before the Court on plaintiff's objections to the Report and Recommendation.
The Court has reviewed de novo plaintiff's objections to the Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court concludes that the ALJ's decision denying plaintiff's claim for benefits is supported by substantial evidence in the record as a whole and that plaintiff has failed to satisfy the requirements to remand the case for consideration of new evidence. Accordingly, the Court adopts the report and recommendation of the Magistrate Judge, grants defendant's motion and denies plaintiff's motion for summary judgment.
BACKGROUND
A. Procedural History
Plaintiff filed an application for disability insurance benefits on October 20, 1997, alleging that he became disabled due to a heart condition on September 29, 1997. His claim was initially denied on December 10, 1997, and was again denied upon reconsideration on April 15, 1998. At plaintiff's request, a hearing was held before an Administrative Law Judge ("ALJ') on February 22, 1999. Plaintiff and a vocational expert testified at the hearing. On May 21, 1999, the ALJ issued a decision denying plaintiff's claim for benefits. The Appeals Council denied review of plaintiff's claim, thus making the ALJ's decision the final decision of the Commissioner. Plaintiff then timely sought judicial review of the decision pursuant to 42 U.S.C. § 405(g).
B. The Administrative Hearing
Plaintiff was born on October 12, 1937. He was 61 years old at the time of the administrative hearing and thus "of advanced age" according to Social Security Administration ("SSA") regulations. 20 C.F.R. § 404.1563(e). He has a high school education and his most recent job had been as a dispatcher for a utility company. He stopped working on September 29, 1997, claiming that post status myocardial infarction (a post heart attack condition) left him unable to deal with the stresses of dealing with emergency situations over the phone. Prior to plaintiff's first heart attack, he worked as a lineman for a local electric co-op for twenty-three years. Because such work requires heavy physical exertion, plaintiff switched to a dispatcher job after his first heart attack. Plaintiff's Disability Report alleges that he suffered four heart attacks, but his medical evidence indicates that three heart attacks occurred. Plaintiff also underwent two angioplasty procedures for his heart disease.
The medical records reveal that plaintiff suffered heart attacks on July 12, 1994, November 21, 1994, and December 7, 1995. After his last heart attack, he underwent an angiography which revealed that his artery was free of significant stenosis and the circumflex artery contained minimal stenosis with fresh thrombus. He took a ten-minute treadmill test, and had no pain. One of the treating physicians indicated that "there is a very good chance for this circumflex lesion to remodel appropriately." The plaintiff was told to refrain from snow shoveling and heavy exertion.
Plaintiff's follow-up care in the years following his heart attacks was by Dr. John Knott. In February 1996, Dr. Knott indicated that plaintiff was "completely asymptomatic," with regular rhythm and adequate blood pressure. While noting that he was doing well, Dr. Knott also indicated that plaintiff was "having difficulties only when he works more than an 8 hour shift." In December 1996, plaintiff reported no symptoms and no difficulties to Dr. Knott. In February 1997, plaintiff's coronary artery disease was considered to be in remission, and an electrocardiogram revealed an old inferior injury, a normal heart, and liver profile in normal limits. In June 1997, Dr. Knott again noted that plaintiff was doing well and had no congestive heart failure.
In August 1997, medical evidence indicates that the plaintiff's heart trouble began again, in relation to stress. Dr. Knott noted that the job as dispatcher was related to the angina. On September 3, 1997, after plaintiff underwent an eight-minute stress test, Dr. Knott diagnosed "Schemic heart disease with fair tolerance for exercise." He noted that "I suspect his [plaintiff's] work and general health are incompatible." Defendant stopped working that month, and in October 1997, Dr. Knott noted no further angina. In March 1998, Dr. Knott reported that plaintiff's symptoms were stable. A December 1998 progress note indicates that plaintiff "has done relatively well through the fall . . . [h]is blood pressure is within normal limits, his chest is clear, heart is regular."
At the request of the SSA, plaintiff's medical evidence was reviewed by Dr. Charles C. Gornick on November 19, 1997. He determined that the plaintiff could lift fifty pounds occasionally, twenty-five pounds frequently, and could stand, walk, and sit for six hours of an eight-hour day. This criteria defines a medium level of exertion. Another reviewing physician, Dr. Thomas Chisholm, affirmed this assessment.
Dr. Knott wrote several letters explaining plaintiff's medical condition and its effect on his ability to perform work-related activities. In response to a letter request from the Minnesota Department of Economic Security asking for an opinion as to plaintiff's "ability to do work-related activities despite his/her impairment," Dr. Knott wrote in March 1998 that plaintiff had done well since his heart attacks, but continued to have angina while working. As a result, Dr. Knott recommended that plaintiff was unable to perform work as a dispatcher and recommended that he cease employment in that capacity. Dr. Knott indicated nothing about plaintiff's ability to perform other types of work or whether there were any restrictions on his ability to lift, carry, sit or stand. Dr. Knott repeated this recommendation in letters to the plaintiff's representative in January 1999 and February 1999.
Plaintiff was evaluated by a psychologist, Dr. Steven Carter, in March 1998, regarding his ability to cope with stress. Dr. Carter concluded that "from a psychological standpoint, his work capacity is now normal for jobs that are not particularly stressful. He would not be able to perform those which involve time demands or juggling multiple priorities because of his heart pain." Orthopaedic surgeon D.F. Person examined plaintiff's hands in March 1998. Plaintiff reported a history of carpel tunnel syndrome and said he experienced some hand pain but no hand numbness. Dr. Person concluded that plaintiff could work with his hands at almost any type of job.
At the hearing, plaintiff testified that he still hunted and fished with modifications, but did not do as much lifting or dragging. He said he did a little yard work and was capable of various household chores if his wife was away. Plaintiff was unsure how many pounds he could lift, explaining that he had not had a reason to lift or carry anything very heavy. Plaintiff also described some difficulty using his hands as a result of carpel tunnel surgery, explaining that he sometimes dropped small items such as pencils. Plaintiff testified that his physician told him not to shovel snow, but did not impose any other limitations. Plaintiff also completed a function report, indicating that since his heart attacks, there had been no change in his ability to sit, stand, walk, bend, lift, reach or use his hands, as well as no change in his ability to do housework or yardwork. Plaintiff stated he enjoyed being active around the house and garage, but had discontinued evening activities such as politics and social gatherings.
The ALJ undertook the five-step sequential analysis pursuant to 20 C.F.R. §§ 404.1520; 416.920. At the first step, the ALJ found that the record provided no evidence of work activity since the claimant's alleged disability onset date of September 29, 1997. At the second step, the ALJ found that plaintiff was severely impaired by post status myocardial infarction and could not tolerate stress on phone work dealing with emergency situations. At step three, the ALJ found that plaintiff's impairments did not meet or equal a listed impairment or combination of impairments listed in Appendix 1, Subpart P, Regulations No. 4. The ALJ proceeded to determine plaintiff's residual functional capacity ("RFC") and concluded that he could perform medium work of an unskilled nature but with the additional limitations that he not work with a phone or have a job with high stress or pressure. The ALJ then found that plaintiff is unable to perform his past relevant work as a dispatcher or as a lineman. At step five, the ALJ referred to the medical-vocational guidelines (the "grid") as a framework and concluded that based on plaintiff's RFC, age, education and work experience, § 404.1569 and Rule 203.07 of Appendix 2 directs a conclusion of not disabled.
At the close of the administrative hearing, claimant amended his alleged onset date of disability to October 12, 1997, on which date he turned 60 years old.
C. The Report and Recommendation
In his motion for summary judgment before the Magistrate Judge, plaintiff argued that the ALJ's finding that plaintiff had the RFC to perform medium work is not based on substantial evidence in the record as a whole. Specifically, plaintiff claims that the ALJ erred in failing to request an opinion from plaintiff's treating physician concerning plaintiff's exertional capabilities. Instead, plaintiff maintains that the ALJ relied on the opinions of two non-examining, non-treating physicians who reviewed an incomplete file and that this evidence does not constitute substantial evidence that plaintiff is capable of performing the jobs identified by the ALJ. Plaintiff also seeks to present new evidence pursuant to sentence six of 42 U.S.C. § 405(g). This evidence consists of a February 6, 2001 letter from plaintiff's treating physician, Dr. Knott. In this letter, Dr. Knott concludes that based on a review of plaintiff's medical history, his experience and his treatment of plaintiff, plaintiff's condition prevents him from sustaining the lifting and standing requirements of medium or light work. Dr. Knott also expresses concerns whether plaintiff could sustain any kind of full-time employment even at the sedentary level, as it could lead to increased problems with preinfarctional angina. On June 6, 2001, the Magistrate Judge recommended denying plaintiff's motion and granting defendant's motion for summary judgment. In response to plaintiff's argument that plaintiff's RFC is not supported by substantial evidence because it does not include an opinion from Dr. Knott regarding plaintiff's exertional capabilities, the Magistrate Judge stated:
A claimant's RFC is determined at step four where the claimant bears the burden or proof. See Young v. Apfel, 221 F.3d 1065, 1069, n. 5 (8th Cir. 2000); Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). At step five, the burden shifts to the Commissioner to produce evidence of other available jobs which the claimant can perform in light of his RFC and other vocational factors. Young, 221 F.3d at 1969 n. 5. However, the burden of persuasion to prove disability always remains with the claimant.
Report Recommendation at 12. The Magistrate Judge then determined that the record contained substantial medical evidence, or evidence beyond the opinion of a reviewing physician, supporting the ALJ's RFC determination of medium level work with the additional limitations to account for plaintiff's inability to deal with a high level of stress. The Magistrate Judge also rejected plaintiff's request for consideration of the new evidence, concluding that plaintiff had failed to establish good cause to excuse plaintiff's failure to submit the letter prior to the close of the ALJ hearing and, in any event, the letter was not reasonably likely to alter the ALJ's prior determination.
ANALYSIS
A. Standard of Review
On review, the Court may reject the Commissioner's decision only if it is not supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is relevant evidence that a reasonable person would accept as adequate to support the Commissioner's conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)); Craig v. Apfel, 212 F.3d 433, 435 (8th Cir. 2000). In determining whether evidence in the record is substantial, the Court considers "evidence that detracts from the Commissioner's decision as well as evidence that supports it." Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). However, the possibility that the Court could draw two inconsistent conclusions from the same record does not preclude the decision from being supported by substantial evidence. Culbertson v. Shalala, 39 F.3d 934, 939 (8th Cir. 1994).
B. Plaintiff's Objections
Plaintiff objects to the Magistrate Judge's conclusion that the ALJ's determination that plaintiff retained the residual functional capacity for medium work is supported by substantial evidence in the record as a whole. Specifically, plaintiff argues that the Magistrate Judge erred in his reliance on Young v. Apfel, 221 F.3d 1065 (8th Cir. 2000) as properly stating the burden of proof at step five of the sequential analysis. Plaintiff claims the burden clearly resides with the ALJ at step five and that the ALJ failed to satisfy that burden by not obtaining an opinion from Dr. Knott, plaintiff's treating physician. According to plaintiff, the facts of this case are indistinguishable from those in Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000) and consequently, require a finding that the ALJ's RFC determination is not supported by substantial evidence. Plaintiff also objects to the Magistrate Judge's conclusion that there was no good cause for plaintiff's failure to produce the letter from Dr. Knott and that the letter is not material. Defendant claims that the Magistrate Judge's reliance on Young was proper and that the Magistrate Judge correctly held that the ALJ's determination of plaintiff's residual functional capacity for medium work is supported by substantial evidence in the record as a whole. Defendant further claims that the Magistrate Judge was correct in finding that plaintiff failed to satisfy the standards of good cause and materiality for consideration of plaintiff's new evidence.
1. RFC Determination Supported by Substantial Evidence
The Court first addresses plaintiff's argument that the Magistrate Judge erred in relying on Young. If the Magistrate Judge erred at all in his reliance on Young, that reliance was misplaced only in so far as Young suggests that the burden borne by the Commissioner at step five is one of production, not proof. In Young, the claimant argued that the Commissioner failed to establish by medical evidence that the claimant possessed the RFC to work full-time in a competitive environment. 221 F.3d at 1069. In a footnote, the court stated that RFC is determined at step four of the analysis and that the Commissioner's burden at the fifth step is merely one of production:
The parties engage in a lengthy dispute over whether RFC is properly evaluated at step four or step five and over who bears the burden of demonstrating RFC. We reiterate that RFC is determined at step four, where the burden of proof rests with the claimant. See 20 C.F.R. § 404.1420(a)(e),(f); 404.1545-46; 404.1560-61; Bowen, 482 U.S. at 146 n. 5, Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). If the Commissioner determines that, in light of a claimant's RFC, he or she cannot perform past work, the inquiry proceeds to step five, where the burden of production shifts to the Commissioner to produce evidence of jobs available in the national economy that can be performed by a person with the claimant's RFC and vocational skills. See Roth, 45 F.3d at 282. The ultimate burden of persuasion to prove disability, however, always remains with the claimant. See id.
Id. at 1069, n. 5 (emphasis added). In many other Eighth Circuit decisions, however, the circuit has articulated the Commissioner's burden at step five as one of proof. In McCoy v. Schweiker, 683, F.2d 1138, 1146-47 (8th Cir. 1983) (en banc), rev'd on other grounds, Forney v. Apfel, 524 U.S. 266, 267 (1998), the Eighth Circuit articulated the Commissioner's burden as follows:
[W]here, as here, the claimant has borne his initial burden of proving that he cannot return to his past work because of a severe impairment not listed in Appendix 1, the burden shifts to the Secretary to prove with substantial evidence that the applicant has the RFC to do other kinds of work, and that his RFC, age and so forth fit him to do some job that exists in the national economy.
Id. at 1147 (emphasis added). Other courts, relying on McCoy, have articulated the Commissioner's burden as follows:
In our circuit it is well settled law that once a claimant demonstrates that he or she is unable to do past relevant work, the burden of proof shifts to the Commissioner to prove, first that the claimant retains the residual functional capacity to do other kinds of work, and second that other work exists in substantial numbers in the national economy that the claimant is able to do.
Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000); Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001); Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000); Cunningham v. Apfel, 222 F.3d 496, 501 (8th Cir. 2000); Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir. 1995); Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
The inconsistency between Young and McCoy and its progeny has not gone unnoticed. Indeed, a number of district courts have addressed this issue at some length. McPherson v. Apfel, 110 F. Supp.2d 1162 (N.D.Iowa 2000); Scott v. Apfel, 89 F. Supp.2d 1066, 1072 (N.D.Iowa 2000); Brock v. Apfel, 118 F. Supp.2d 974 (W.D.Mo. 2000).
In McPherson, the parties disputed, as the parties do here, the Commissioner's burden at the fifth stage of the disability analysis. 110 F. Supp.2d at 1169. In addressing whether the burden is one of production or persuasion, the district court noted that "[d]ecisions of the Eighth Circuit Court of Appeals describing the Commissioner's burden at step five of the disability determination process as one of `proof' are legion." Id. (citing seventeen Eighth Circuit decisions describing the Commissioner's burden at step five as one of proof). In contrast, "[d]ecisions of the Eighth Circuit Court of Appeals describing the burden as one of `production' . . . are so rare that the court has unearthed none besides Young . . . and the case upon which Young relies, Roth." Id. The court also noted that the Young footnote refers to the Supreme Court's decision in Bowen v. Yuckert, 482 U.S. 137 (1987). However, in Bowen, the Supreme Court expressly stated that "the Secretary bears the burden of proof at step five." Id. (quoting Bowen, 482 U.S. at 146 n. 5) (emphasis in original). Upon this review, the McPherson court concluded that "it is indeed `well settled' that the Commissioner's burden at step five of the disability determination process is a burden of `proof,' and not merely one of `production.'" Id.
The Court agrees with the district court's conclusion in McPherson that the Commissioner bears a burden of proof at the fifth stage of the disability analysis. The heart of the dispute in this case, however, resides, as it often does, with the determination of plaintiff's residual functional capacity. It is "the ALJ's responsibility to determine [a claimant]'s RFC based on all the relevant evidence, including medical records, observations of treating physicians and others, and [a claimant's] own description of [his or her] limitations." Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). RFC is a medical question and therefore, it is for the Court to determine whether the record presents medical evidence of plaintiff's RFC at the time of the hearing. Ford v. Secretary of Health Human Servs., 662 F. Supp. 954, 955 (W.D.Ark. 1987) (C.J. R. Arnold, sitting by designation) ("The key issue in this case is Ford's RFC. This is a medical question). As the Court explained in Anderson, the need for medical evidence to support an ALJ's determination of RFC does not require the ALJ to produce additional evidence "`so long as other evidence in the record provides a sufficient basis for the ALJ's decisions.'" Id. (quoting Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994)); see also Dykes v. Apfel, 223 F.3d 865, 866-67 (8th Cir. 2000) (disagreeing with claimant's contention that RFC may be proved only with medical evidence, but agreeing with claimant to the extent that "the record must include some medical evidence that support the ALJ's RFC finding").
Having reviewed the record as a whole, the Court agrees with the Magistrate Judge's conclusion that substantial evidence supports the ALJ's determination of plaintiff's RFC. Plaintiff correctly notes that the opinion of a reviewing, non-treating physician alone does not constitute substantial evidence. Anderson, 51 F.3d 777, 779 (8th Cir. 1995). In this case, the reviewing physicians, Dr. Charles Gronick and Dr. Tomas Chisholm, both opined that plaintiff could perform work at a medium exertional level. However, what distinguishes this case from Nevland, a case relied on heavily by plaintiff, and Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir. 1995), is that the Magistrate Judge also conducted a review of the medical evidence in the record and this medical evidence supports the ALJ's RFC determination. Anderson, 51 F.3d at 779 (ALJ's RFC determination was supported by substantial evidence where the ALJ "did not rely solely on the reviewing physicians . . . [but] also conducted an independent analysis of the medical evidence and substantial medical evidence in the record existed to support the ALJ's determination").
Plaintiff appears to argue that the burden to determine RFC rests with the ALJ at step five of the five-step sequential analysis. However, as the Magistrate Judge noted and as the regulations and caselaw make quite clear, residual functional capacity is determined at step four of the five-step sequential analysis. 20 C.F.R. § 404.1520(e) (review of RFC at step four); Pearsall v. M assanari, 274 F.3d 1211, 1217 (8th Cir. 2001) ("It is the claimant's burden, and not the Social Security Commissioner's burden, to prove the claimant's RFC."); Cunningham v. Apfel, 222 F.3d 496, 501 (8th Cir. 2000) ("If the Commissioner finds that the claimant does not have an impairment that meets the Listings, the Commissioner next considers the claimant's residual functional capacity and the physical and mental demands of the claimant's past work and determines whether the claimant can still perform that work."); Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998) (explaining that at step four, the question is "whether the claimant has the residual functional capacity to perform his or her past relevant work"). Other circuit courts agree that RFC is determined at the fourth step. Her v. Commissioner of Social Security8203 F.3d 388, 391 (6th Cir. 1999) (rejecting plaintiff's contention that "once the burden of proof shifts to the Commissioner at step five, the Commissioner is then required to prove a claimant's residual functional capacity"); Shaffer v. Apfel, No. 97-5174, 1998 WL 314376 at *2 (10th Cir. June 4, 1998) ("The RFC determination is initially part of the step four evaluation and, thus, is made before the burden of proof shifts at step five."). Even the courts which have concluded that Young is out of step with Eighth Circuit precedent concerning the burden of proof agree that a claimant's RFC is determined at step four of the analysis. McPherson, 110 F. Supp.2d at 1174 ("[T]here is no doubt that residual functional capacity is determined at step four.").
As the Magistrate Judge thoroughly pointed out in his report and recommendation, which the Court will not repeat here, the medical evidence from both treating and reviewing physicians as well as plaintiff's own statements regarding his exertional capabilities supports the ALJ's RFC determination. Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir. 2000) (ALJ's RFC finding supported by substantial evidence in the record as a whole given evidence of the treatment histories of plaintiff's shoulder condition). Accordingly, the Court concurs with the Magistrate Judge's conclusion that the Commissioner's determination of residual functional capacity for medium work is supported by substantial evidence in the record as a whole.
Plaintiff also claims that the ALJ did not complete its duty to fully and fairly develop the record by failing to request the opinions from plaintiff's treating physicians. However, the Court notes that the Minnesota Department of Economic Security specifically requested an opinion as to plaintiff's "ability to do work-related activities despite his/her impairment" by letter dated February 9, 1998. R. at 251.
2. New Evidence
The Court also agrees with the Magistrate Judge's conclusion that Dr. Knott's February 2001 letter does not satisfy the sentence six standard required for remanding the case for consideration of new evidence. Section 405(g) grants reviewing courts the authority to order the Commissioner to consider additional evidence "upon showing there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g); Jones v. Callahan, 122 F.3d 1148, 1156 (8th Cir. 1997). In this case, even if plaintiff could show that the evidence is material, plaintiff has failed to establish good cause for the delay in producing this evidence. Hinchey v. Shalala, 29 F.3d 428, 433 (8th Cir. 1994) (no need to determine whether additional evidence is material because good cause is lacking). Plaintiff's only claim for "good cause" is that the letter "was not in existence at the time of the ALJ's decision." The Court concurs with the Magistrate Judge's conclusion that this justification is insufficient. As the Magistrate Judge explained, plaintiff could have sought the opinion of Dr. Knott concerning plaintiff's exertional capacities before the administrative record was closed. Dr. Knott was certainly available at the time of the administrative hearing as the record contains several letters from him. Courts have declined to find good cause under similar circumstances. Smith v. Shalala, 987 F.2d 1371, 1375 (8th Cir. 1993) (good cause lacking where plaintiff had the opportunity to consult an additional physician before the record closed, but failed to do so); Hinchey, 29 F.3d at 433 (good cause lacking where plaintiff had the opportunity to obtain a statement from a physician before the administrative record was closed but failed to do so without providing a sufficient explanation). Accordingly, there is no good cause for the delay and thus plaintiff's request for a remand is denied.
Thus, aside from the one modification concerning the articulation of the Commissioner's burden at step five of the sequential analysis, the Court adopts the report and recommendation of the Magistrate Judge.
ORDER
Based on the foregoing, the submissions of the parties, and all of the files, records, and proceedings herein, the Court OVERRULES plaintiff's objections [Docket No. 17] and ADOPTS as modified above the Report and Recommendation of the Magistrate Judge [Docket No. 16]. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion for Summary Judgment [Docket No. 11] is DENIED.
2. Defendant's Motion for Summary Judgment [Docket No. 13] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.