Summary
In Weers, the only evidence of the plaintiff's VA disability rating before the ALJ was plaintiff's own testimony that he had received a 100% disability rating from the VA and was receiving benefits.
Summary of this case from Parks v. Comm'r of Soc. Sec.Opinion
Civil Action No. 00-2568-DJW
January 15, 2002
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff David A. Weers' Motion for remand or reversal of the Commissioner's decision denying him disability benefits and supplemental security income (doc. 7).
Plaintiff made application on May 20, 1997 for disability benefits and supplemental security income pursuant to the Social Security Act. (Tr. 132-38) The Commissioner denied Plaintiff's application, finding that Plaintiff was not disabled within the meaning of the Act. (Tr. 108) On November 20, 1998, Plaintiff received a hearing before an Administrative Law Judge (ALJ). The ALJ determined that Plaintiff was not disabled and denied Plaintiff's application. (Tr. 42-43) Plaintiff sought review by the Appeals Council, which considered Plaintiff's arguments and additional income documentation but denied review, finding no basis to grant review either at law or because of the additional evidence provided. (Tr. 8-9).
Because the Appeals Council denied claimant's request for review, the ALJ's decision became the final agency decision subject to judicial review. Sims v. Apfel, 530 U.S. 103, 106-107, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). On December 20, 2000, Plaintiff filed this suit seeking judicial review pursuant to the Social Security Act, 42 U.S.C. § 405(g).
Plaintiff contends that the Commissioner's decision is flawed because (1) the ALJ did not consider the disability finding of the Department of Veteran's Affairs (VA); (2) the ALJ's determination that Plaintiff's testimony was not credible was not supported by substantial evidence; and (3) the ALJ's hypothetical question to the vocational expert failed to include one of Plaintiff's physical limitations. In response, the Commissioner asserts that the ALJ gave the VA's disability finding all the consideration it was due. The Commissioner also asserts that the ALJ properly determined that Plaintiff was not credible and that the ALJ was therefore not required to include in his hypothetical question the limitation that Plaintiff must lie down after taking a nitroglycerin pill.
The Court will address each of these asserted points of error in detail below. As is discussed below, the Court holds that the Commissioner did not properly consider the VA's disability finding. The Court will therefore grant Plaintiff's motion for remand and will remand this action for further consideration.
Facts
Plaintiff claims that he is disabled as the result of severe coronary disease, which results in chest pain and headaches from taking nitroglycerin pills. He also claims that an abdominal hernia contributes to his disability.
In March 1997, Plaintiff suffered a heart attack. (Tr. 56, 247-48) At the hearing before the ALJ, Plaintiff testified that he gets chest pains from doing physical work and activity. (Tr. 59, 72) He testified that he takes one or two nitroglycerin pills approximately every two days because of the chest pains. (Tr. 70) He stated that when he takes a nitroglycerin pill, the chest pains usually resolve in 20-30 seconds. (Tr. 71) Taking the pills, however, gives him a headache, and he must lie down for approximately 10 minutes to relieve the headache. (Tr. 71)
Later on during the hearing, Plaintiff testified that the headaches will go away if he lies down for 20 to 30 minutes. (Tr. 86)
Plaintiff testified that he has received disability benefits from the VA since July 1997 based upon a finding of 100% disability due to his heart condition. (Tr. 58-59) The record before the ALJ included medical records from the Kansas City VA Medical Center for the period of August 1998 to October 1998. (Tr. 603-36) The transmittal letter with Plaintiff's VA medical records included the notation, "C P exam not in chart please request from Dept. of Veterans Affairs, Regional Office, Attn Adjudication, 5500 E. Kellogg Blvd, Wichita, KS 67218." (Tr. 603) Neither the VA disability finding nor any VA record dated before August 1998 was included in the hearing exhibits.
After recovering from his heart attack, Plaintiff returned to work some time in June or July 1997 for seven to ten days to finish a construction job. (T. 55-56) Plaintiff testified that before doing so he spoke with an employee of the Social Security Administration (SSA) who told Plaintiff "to go try and finish up the job and see how it came." (Tr. 56) This work was Plaintiff's last gainful employment. (Tr. 55-56, 58)
At the hearing, the ALJ noted that Plaintiff had callouses and dirt on his hands. (Tr. 79) A SSA employee who had interviewed Plaintiff on May 28, 1997 in connection with his claim for disability benefits noted on the Field Office Disability Report as follows: "Hands were soiled (as if he had been working." (Tr. 216)
Plaintiff testified at the hearing that he engages in the following activities: he goes out for coffee every morning, visits with friends, takes out the trash, drives, walks a couple of blocks in the evening, and does laundry. (Tr. 68, 69-70, 72-73, 88)
Plaintiff testified that during the time period 1994 through 1996, i.e., before he suffered his heart attack, he worked as an independent contractor and he earned between $2,500 to $3,500 per month. (Tr. 64-65) Plaintiff's Social Security Earnings Record, however, showed an annual income of only $2,300 for the year 1994, $6,890 for the year 1995, and $6,556 for the year 1996. (Tr. 142, 146)Based upon the evidence received at the hearing, the ALJ found that Plaintiff "has severe coronary artery disease; status post myocardial infarction; chest pain and the use of nitroglycerin; headaches secondary to nitroglycerin use; and abdominal hernia secondary to appendectomy." (Tr. 41) The ALJ, however, found that the testimony of Plaintiff as to the limiting nature of his physical symptoms was not credible. (Tr. 41) The ALJ's credibility determination was based on three findings. First, Plaintiff had callouses and dirt on his hands, which indicated that he had been working. (Tr. 39-40, 41) Second, the pre-heart attack earnings Plaintiff testified to at the hearing were much higher than those shown on his Social Security Earnings Record. (Tr. 39-40, 41) Third, after suffering his heart attack, Plaintiff was able to return to work and worked for seven to ten days in June or July 1997, despite the fact that, according to the medical evidence, his coronary artery disease was worse then than at the time of the hearing. (Tr. 39-40, 41)
The ALJ concluded that Plaintiff was not under a disability because Plaintiff's residual functional capacity would allow him to perform a significant number of jobs existing in the national economy. (Tr. 41, 42)
Plaintiff appealed the ALJ's decision to the Appeals Council. On appeal, Plaintiff provided for the first time his unsigned tax returns for the years 1994 through 1996. (Tr. 10-27) Those returns revealed that his monthly income was approximately $1350, $2500, and $3700 in 1994, 1995, and 1996, respectively. (Tr. 12-27)
Standard of Review
Pursuant to 42 U.S.C. § 405(g), a court may render "upon the pleadings and the transcript of record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." The court reviews the decision of the Commissioner to determine whether the record as a whole contains substantial evidence to support the Commissioner's decision and whether the Commissioner applied the correct legal standards. Hamilton v. Sec'y of Health and Human Services, 961 F.2d 1495, 1497 (10th Cir. 1992).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Miller v. Chater, 99 F.3d 972, 975 (10th Cir. 1996) (quoting Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993)) (internal quotations omitted). A finding of no substantial evidence will be found "only where there is a conspicuous absence of credible choices or no contrary medical evidence." Burkett v. Callahan, 978 F. Supp. 1428, 1429 (D.Kan. 1997) (quoting Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992)). "Evidence is not substantial `if it is overwhelmed by other evidence — particularly certain types of evidence ( e.g., that offered by treating physicians) — or if it really constitutes not evidence but mere conclusion.'" Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir. 1985) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983)).
The court may neither reweigh the evidence nor substitute its discretion for that of the Commissioner. Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000) (citing Casias v. Sec'y of Health Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)). At the same time, however, the findings of the Commissioner should not be mechanically accepted. Ortiz v. Apfel, 39 F. Supp.2d 1275, 1281 (D.Kan. 1998). A court may not affirm the Commissioner's findings by isolating facts and labeling them substantial evidence, and the court must scrutinize the entire record to determine whether the Commissioner's conclusions are rational. Id. In applying these standards, "the court must keep in mind that the purpose of the Social Security Act is to ameliorate some of the rigors of life for those who are disabled or impoverished." Owen v. Chater, 913 F. Supp. 1413, 1418-19 (D.Kan. 1995).
A five-step sequential process is used in evaluating a claim of disability. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987).
Step one is whether the claimant is currently engaged in substantial gainful activity. If claimant is not, the fact finder in step two decides whether the claimant has a medically severe impairment or combination of impairments. Step three entails looking at whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. If no equivalency, step four requires the claimant to show that because of the impairment he is unable to perform his past work. The final step is to determine whether the claimant has the residual functional capacity ("RFC") to perform other work available in the national economy, considering such additional factors as age, education, and past work experience. Anderson v. Apfel, 100 F. Supp.2d 1278, 1281 (2000) (quotations and citations omitted).
If the claimant fails at any of the steps in which he or she bears the burden of proof, consideration of any subsequent steps rendered unnecessary. Burnett v. Shalala, 883 F. Supp. 565, 567 (D.Kan. 1995). The claimant bears the burden of proof at steps one through four, while the Commissioner bears the burden at step five. Id.
Did the ALJ Err in Failing to Consider the VA Disability Rating?
Plaintiff argues that the ALJ erred by not considering the 100% disability rating made by the VA and failing to give it any weight in his decision. Plaintiff argues that the law requires the Commissioner to consider disability findings by another agency and to give them some weight. Plaintiff further argues that because the pertinent medical evidence and administrative findings of the VA pre-dated the medical records that were entered into the record, they could not have been considered or given any weight by the ALJ. The Commissioner responds that the VA disability finding is not binding on the Commissioner. The Commissioner notes that the ALJ did refer to the VA disability rating in his written decision and that this showed sufficient consideration of the VA's finding.
There is no question that a VA disability finding or rating should be considered by the ALJ in making his/her decision. In Baca v. Dep't of Health Human Servs., 5 F.3d 476, 480 (10th Cir. 1993), the Tenth Circuit held that the ALJ erred when he failed to consider the VA disability rating of Plaintiff in making his decision. The Tenth Circuit observed that although findings by other agencies are not binding on the Commissioner, "they are entitled to weight and must be considered." Id. (quoting Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979)). When an ALJ rejects the VA's findings, the ALJ should state his/her reasons for doing so in order to allow a reasoned review by the courts. Morrison v. Apfel, 146 F.3d 625, 628, (8th Cir. 1998) (citing Mem., Soc. Sec. Admin. Office of Hearings and Appeals 3 (Oct. 2, 1992)). See also Dreiling v. Massanari, No. 99-4178-DES, 2001 WL 1155270, *5-6 (D.Kan. Sept. 28, 2001) (remanding case to the ALJ for consideration of VA disability rating).
In addition, as the Tenth Circuit observed in Baca, the ALJ has the duty to develop the record relating to the other agency's disability findings. Baca, 5 F.3d at 479-80. The Baca court stated that even though a Social Security claimant has the burden of providing medical evidence establishing disability, "the ALJ has a basic duty of inquiry to fully and fairly develop the record as to material issues." Id. (citations omitted). This duty exists even when the claimant is represented by counsel. Id. at 480 (citations omitted).
The Court finds Baca controlling here. In Baca, the plaintiff had received a 50% disability rating from the VA based upon ear and joint disease. Id. He made an application to the SSA for disability benefits based upon arthritis and heart disease. Id. at 478. The VA had been evaluating Baca for disability for many years before the expiration of his insured status, but the VA records provided to the SSA only covered the period of time after the expiration of plaintiff's insured status. Id. at 478, 480. Baca's VA records for the relevant period were not available at the hearing before the ALJ. Id. at 480. The Tenth Circuit remanded the case, ordering the Commissioner to make every reasonable effort to obtain the VA records and to consider the VA disability rating. Id.
In this case, the ALJ's decision merely stated that Plaintiff "testified that he had a 100% disability rating from the Veterans Administration and started receiving benefits of $722.00 monthly in July 1997 because of his heart." (Tr. 37). The ALJ, however, made no other reference to the VA disability rating and did not discuss what weight or consideration, if any, he gave to such evidence. Moreover, the ALJ did not have any of the findings or evaluations upon which the VA based its rating. The only VA records considered by the ALJ were current medical treatment records like those of any health care provider that did not provide a disability rating or disability evaluation. ( See Tr. 603-36.) Moreover, it was obvious here that relevant VA records were missing from the record. In its transmittal letter to the SSA, the VA stated, "C P exam not in chart" and explained where the missing records could be obtained. (Tr. 603) Furthermore, even though Plaintiff testified that he received the VA disability rating in July 1997, the only VA records before the ALJ were from a short three-month period in 1998.
In sum, the ALJ was aware that Plaintiff claimed a 100% VA disability rating and was aware, or should have been aware, of his duty to consider the VA rating and findings. Had the ALJ sought to do so, he would have discovered that the records were missing. In these circumstances, the Court finds that the ALJ failed to fully and fairly develop the record as to the material issue of the VA disability rating. The Court also holds that the ALJ erred in failing to explicitly consider the VA's 100% disability rating in rendering his decision that Plaintiff was not disabled.
Given the ALJ's failure to develop the record as to the VA disability rating and his failure to consider the rating in rendering his decision, the Court will remand this case to the Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings. On remand, the Commissioner shall make every reasonable effort to obtain Plaintiff's disability rating records from the VA and shall reconsider his decision in light of those records, giving the VA disability rating and findings appropriate weight as set forth herein. In the event the ALJ rejects the VA's disability rating and findings, the ALJ shall state his/her reasons for doing so in order to allow a reasoned review by this Court.
The Court will now proceed to address Plaintiff's other points of error.
Does Substantial Evidence Support the ALJ's Credibility Finding?
Plaintiff argues that the ALJ improperly weighed the credibility of Plaintiff and that the ALJ's conclusion that Plaintiff's testimony was not credible was not supported by substantial evidence. The ALJ found Plaintiff's testimony regarding his limiting physical symptoms not credible for three reasons. First, the ALJ found that Plaintiff's hands were dirty and calloused, which indicated some work activity. (Tr. 39, 79) Second, Plaintiff testified that he had monthly earnings that were much higher than what was listed on his Social Security Earnings Record for the time period 1994 through 1996 (the three years preceding Plaintiff's heart attack). (Tr. 64-65, 142, 146) Third, several months after his heart attack, Plaintiff returned to finish a construction job and worked for seven to ten days, even though the medical records indicated that his condition was worse at that time than in later years. (Tr. 36, 39-40, 41)
This was consistent with a SSA employee's observation at the time Plaintiff applied for benefits that Plaintiff's hands were soiled as if he had been working. (Tr. 216)
Plaintiff first argues that the ALJ was wrong to conclude Plaintiff was not credible when he testified as to a monthly income that was significantly higher than the income reflected on his Social Security Earnings Record. Essentially, Plaintiff asserts that the ALJ knew that Plaintiff was self-employed and that he should have known that the difference between the earnings Plaintiff testified to and the income reflected in the Social Security Earnings Record was a result of Plaintiff using gross income figures and the Earnings Record using net income figures. Plaintiff provided unsigned copies of income tax records to the Appeals Council (but not to the ALJ) that support this assertion. ( See Tr. 10-27)
With respect to the ALJ's finding that Plaintiff had dirty, calloused hands, Plaintiff argues that there is no evidence that this was the result of recent work activity. Plaintiff was a construction worker most of his life and developed callouses on his hands. Plaintiff testified that he has always had callouses (Tr. 79). Plaintiff also testified that he probably got dirt on his hands from picking up something outside. (Tr. 79) He argues that there simply was no time for Plaintiff to perform any work prior to attending the hearing — the hearing began at 9:30 a.m. (Tr. 46) and the trip to the hearing was forty miles with one rest stop. (Tr. 85-86)
Finally, Plaintiff asserts that the work he performed in June or July of 1997 following his heart attach should not be used to discredit him because it was only seven to ten days, and, as Plaintiff testified, the SSA gave Plaintiff permission to finish that job. (Tr. 55-56) There was no evidence of any other employment and no long-term employment after his heart attack.
The Commissioner responds that the ALJ used the five-step sequential evaluation method required by the regulations and applied the factors set forth in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987) for evaluating subjective complaints. The Commissioner notes that it is proper for the ALJ to include his personal observations as a factor in his consideration of the evidence and the credibility of a witness. Moreover, the Commissioner asserts that there is substantial evidence in the record to support the ALJ's evidentiary finding that Plaintiff performed substantial gainful activity after March 1997 and that Plaintiff's testimony was not credible because Plaintiff's activities did not substantiate the physical limitations he claimed.
To the extent Plaintiff asks the Court to reweigh the evidence, his argument fails. The Court may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000) (citing Casias v. Sec'y of Health Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)). The ALJ is the individual best situated to observe and assess witness credibility. Casias, 933 F.2d at 801. Although an ALJ may not rely solely on his/her personal observations to discredit a plaintiff's allegations, the ALJ may consider his personal observations in his overall evaluation of the claimant's credibility. Qualls, 206 F.3d at 1373. When, however, the ALJ's credibility determination is based upon a finding conceded by the Commissioner to be incorrect as shown by the evidence of record at the hearing, it is proper for the court to remand the case for a proper evaluation of the plaintiff's testimony. Walker v. Callahan, 990 F. Supp. 1283, 1287 (D.Kan. 1997). In such a circumstance, the plaintiff "deserves the opportunity to have his credibility assessed without being unjustly characterized a liar about [the incorrect finding.]" Id. Plaintiff argues that this rule should be applied here, and that the Commissioner's decision should be reversed or the case remanded for a new credibility determination.
The Court finds that the Walker rule is not applicable here, as Plaintiff has not established that the ALJ was incorrect in finding that Plaintiff's hands were calloused and dirty, that Plaintiff continued his construction job in June or July 1997, or that Plaintiff's condition was worse in July 1997 than it was at the time of the hearing. These findings are supported by substantial evidence in the record as a whole and are conclusive as to this Court's review.
The Court does note, however, that it is somewhat troubled by the ALJ's finding regarding the apparent discrepancy in Plaintiff's income. The ALJ's decision notes that Plaintiff testified at the hearing that his earning in the three years preceding his heart attack were much greater than the earnings reflected in his Social Security Earnings Record. (Tr. 37, 39) The ALJ does not state whether he believed Plaintiff intentionally misstated his income, whether the Earnings Record might be incorrect, or whether there might be some other reason for the discrepancy.
Nonetheless, the Commissioner does not concede, and Plaintiff does not argue, that the ALJ's income finding was incorrect as shown by the evidence of record at the hearing. The evidence of income in the hearing record was in conflict. Plaintiff's income tax records were not offered at the hearing and were only offered as new evidence for consideration by the Appeals Council. As is discussed in detail below, the Court does not find that remand to the ALJ for consideration of this new evidence is warranted.
Remand based on newly proffered evidence requires that three factors be satisfied. First, the proffered evidence must be new, that is, "not in existence or available to the claimant at the time of the administrative proceeding." Sullivan v. Finkelstein, 496 U.S. 617, 626, 110 S.Ct. 2658, 110 L.Ed.2d 563 (1990). It must also be "new" in the sense that it is "not merely cumulative of what is already in the record." Heimerman v. Chater, 939 F. Supp. 832, 833 (D.Kan. 1996) (citing Tirado v Bowen, 842 F.2d 595, 597 (2d Cir. 1988)). Second, the proffered evidence must be material. Hargis v. Sullivan, 945 F.2d 1482, 1493 (10th Cir. 1991); Heimerman, 939 F. Supp. at 833. To be deemed material, the evidence must relate to the time period for which the benefits were denied. Id. at 833-34. In addition, to establish materiality, the claimant must show "that the new evidence would have changed the [Commissioner's] decision had it been before him." Hargis, 945 F.2d at 1493. Third, the claimant must show good cause for the failure to obtain and present the evidence at the prior hearing. Heimerman, 939 F. Supp. at 833-34 (citing Tirado, 842 F.2d at 597).
In this case, Plaintiff does not satisfy any of the three requirements. With respect to the first requirement, Plaintiff does not attempt to show that his income tax records were unavailable at the time of the hearing.
With respect to the second requirement, the tax returns do not relate to the period for which benefits have been denied. In addition, Plaintiff cannot show that the income tax records would have changed the Commissioner's decision. There is other evidence in the record which, when considered as a whole, is sufficient to support the ALJ's determination that Plaintiff was not credible. As noted above, there were callouses and dirt on Plaintiff's hands, which might indicate work activity. In addition, Plaintiff admitted working at construction during the alleged disability period, and there is medical evidence shows that Plaintiff's condition was worse at that time than at the time of the hearing. In addition, the record includes evidence inconsistent with Plaintiff's allegations of limiting symptoms: Plaintiff goes out for coffee every morning, visits with friends, takes out the trash, drives, walks a couple of blocks in the evening, and does laundry. (Tr. 68, 69-70, 72-73, 88) The Court therefore finds that Plaintiff cannot show that the income tax returns would have changed the Commissioner's decision.
Finally, with respect to the third requirement, Plaintiff has not attempted to show good cause for failing to obtain and present the income tax records at the hearing before the ALJ. Accordingly, the Court finds no basis to remand this case to the ALJ for his consideration of the tax returns.
In conclusion, the Court finds that substantial evidence supports the ALJ's determination that Plaintiff's testimony was not credible as to his allegations of limiting symptoms. The Court will therefore decline to remand or reverse on this basis.
Did the ALJ Err in Failing to Include in His Hypothetical Question Plaintiff's Need to Lie Down?
Plaintiff contends that the ALJ erred when he failed to include in his hypothetical question to the vocational expert the need for Plaintiff to lie down to relieve his headache after taking a nitroglycerin pill. Plaintiff argues that, as a result, the ALJ does not know whether there are jobs in the local, regional, or national economy that Plaintiff can perform.
The Commissioner admits that an ALJ's hypothetical question to the vocational expert must reflect with precision all of the claimant's impairments that are substantially supported by the record. See Taylor v. Chater, 118 F.3d 1274, 1278-79 (8th Cir. 1997); Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996). As the Commissioner points out, however, the ALJ need not include every limitation claimed by the claimant, but only those limitations that the ALJ finds exist based upon substantial evidence in the record. Decker, 86 F.3d at 955; Hintz v. Chater, 913 F. Supp. 1486, 1495 (D.Kan. 1996).
The ALJ determined that Plaintiff's claims of disabling limitations were not credible. The Court has affirmed that credibility finding. Thus, the Court cannot hold that the hypothetical question should have included a physical limitation that Plaintiff lie down after taking a nitroglycerin pill. Accordingly, remand or reversal on the basis of defect in the ALJ's hypothetical question is not proper.
IT IS THEREFORE ORDERED that Plaintiff's Motion for Reversal or Remand (doc. 7) is granted to the extent Plaintiff seeks remand based on the ALJ's failure to consider the VA disability rating. Judgment shall be entered remanding this case to the Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings consistent with this decision. On remand, the Commissioner shall make every reasonable effort to obtain Plaintiff's disability rating records from the VA and shall reconsider his decision in light of those records, giving the VA disability rating and findings appropriate weight as set forth herein. In the event the ALJ rejects the VA's disability rating and findings, the ALJ shall state his/her reasons for doing so in order to allow a reasoned review by this Court.
IT IS FURTHER ORDERED that Plaintiff's Motion for Reversal and Remand is denied in all other respects.
IT IS FURTHER ORDERED that Jo Anne B. Barnhart is substituted for William A. Halter as the party defendant in this suit, and the Clerk shall change the docket to reflect the caption as shown on this Memorandum and Order.
IT IS SO ORDERED.