JONES v. KOONS AUTOMOTIVE, INC. (D.Md. 11-5-2010)

the Regulations. First, the record did not establish that Slaughter had engaged in disqualifying substantial gainful activity since December 31, 2000, the alleged onset date. No wages are reported on his Social Security earnings record after 2000. Secondly, the ALJ found that Slaughter's mild obesity has been a severe impairment throughout the relevant period. She also noted that Slaughter's complaints of right shoulder pain and abnormal sensations on his left side did not impose significant functional limitations on his ability to perform work within his RFC, as long as he takes prescribed medications. At step three, the ALJ concluded that Slaughter's impairments, taken collectively, did not satisfy the conditions for any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. At step four, the ALJ determined that although Slaughter lacked the RFC to perform any past relevant work, such as truck driving, he still retained the RFC to perform most light work. Finally, on the basis of the medical evidence and the testimony of Slaughter and the vocational expert at the hearing, the ALJ concluded at step five that the Commissioner had proved Slaughter was "capable of making a successful adjustment to other work that exists in significant numbers in the national economy." AR 297.

If the answer to this inquiry had been yes, Slaughter would have been per se disabled under the Regulations and thus entitled to benefits.

I. ALJ's alleged failure to explain assessment of Slaughter's RFC

First, the court must address an issue pertaining to step four of the five-step inquiry. Specifically, Slaughter argues that the ALJ failed to explain her assessment of Slaughter's RFC. Slaughter's RFC is the ability to do physical or mental work activities on a sustained basis despite limitations or impairments. 20 C.F.R. §§ 404.1545. The ALJ assesses the claimant's RFC based on all of the relevant medical evidence, including medical source opinions and all allegations of physical and mental limitations. Id.; SSR 96-8p.

Slaughter's argument disputing the sufficiency of the ALJ's RFC determination is without merit. Contrary to his allegations, the ALJ's analysis of Slaughter's RFC expressly considered all of his reported symptoms, the objective medical evidence, and the opinion evidence contained in the record. See AR 279-93. Indeed, it is difficult to imagine how the ALJ's RFC analysis could have been more comprehensive. She devotes fifteen pages of her 27-page ruling to summarizing the voluminous medical evidence relevant to her RFC assessment, and in doing so she chronologically traces the development of Slaughter's alleged impairments over a four-year period. The ALJ's meticulous recounting of the record, along with her contemporaneous evaluation of the medical evidence as a whole, satisfies her duty to provide the "logical bridge" between the evidence and her conclusion. Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008). No basis exists for disturbing the RFC finding.

II. ALJ's alleged failure to properly analyze physicians' opinions

Slaughter also challenges the sufficiency of the ALJ's analysis of the medical opinion evidence in the record. Initially, he argues that the ALJ failed to properly analyze the opinion evidence of certain treating and examining physicians, specifically Dr. Dominic Gaziano and Dr. Singleton, whose medical findings allegedly advance Slaughter's argument that he is disabled.

Dr. Gaziano conducted a consultative examination of Slaughter on October 9, 2006, for purposes of supplying information relevant to Slaughter's disability applications. Page 13 of the ALJ's ruling forecloses any argument that the ALJ failed to consider this opinion, as the ALJ expressly discussed Dr. Gaziano's report from the October 9 exam, and analyzed it closely in the context of responding to arguments advanced by Slaughter's attorney. See AR 284 ("I believe [Slaughter's attorney] misconstrues Dr. Gaziano's comment [in his report] as suggesting that the doctor was diagnosing a current alcohol problem, as opposed to current limitations that might have been caused by a remote history of more significant alcohol use. . . . I do not read Dr. Gaziano's report to diagnose current alcohol dependence or abuse."). Slaughter also takes issue with the ALJ's failure to analyze the alleged consistency of Dr. Gaziano's opinion and the opinion of his treating neurologist, Dr. Singleton. This argument, however, also falls short. Slaughter contends that the ALJ should have compared two pieces of evidence that are essentially incomparable. The ALJ did not compare Dr. Gaziano's report and Dr. Singleton's opinion for two reasons: (1) the nature of the two physicians' respective inquiries fundamentally differed in type, and (2) the physicians conducted their examinations for different purposes. Dr. Gaziano merely examined Slaughter and reported data, while Dr. Singleton composed an RFC assessment. Dr. Gaziano never expressed an opinion as to Slaughter's exertional capacity, and thus Slaughter's characterization of Gaziano's report as a "functional capacity assessment," see Pl.'s Brief at 13, is simply false. Dr. Gaziano's sole purpose in examining Slaughter was to "supply[] information relevant to the listings criteria of the Social Security Disability program." AR 464. Dr. Gaziano merely reported the findings gleaned from a brief, 38-minute exam with Slaughter, and these findings served as the basis for a true RFC assessment conducted by Dr. Frank Jimenez on October 20, 2006. Dr. Jimenez's RFC assessment included a verbatim summary of Dr. Gaziano's findings, and he opined that the record did not establish Slaughter's disabled status. It is unclear whether Slaughter misunderstood the nature of Dr. Gaziano's examination, or whether he is attempting to draw the court's attention to medical evidence that reflected favorably on Slaughter's claim when viewed only in isolation. The seemingly favorable evidence that Slaughter has cherry-picked in support of his motion does not tell the whole story.

Dr. Jimenez also made the following conclusions: (1) Slaughter could perform most work at the medium exertional level; (2) he had a reduced ability to push and/or pull with the right upper extremity; (3) he should not work on moving or unstable surfaces; (4) he should only climb occasionally; and (5) he can only occasionally lift or reach above 90 degrees with the right upper extremity. AR 456-63.

Another physician, Dr. Kim, reviewed Slaughter's condition in January 2007 and concurred with Dr. Jimenez's RFC assessment. See AR 450-52.

Even assuming, arguendo, that Dr. Gaziano's report provides support for Slaughter's case, the ALJ committed no error in devoting only one page of her opinion to this piece of evidence. The Regulations distinguish a "treating" physician, i.e., a personal doctor with whom the patient has an ongoing relationship, from a "nontreating" physician, i.e., a doctor who has examined the patient but does not have an ongoing relationship. 20 C.F.R. § 404.1502. Dr. Gaziano, in his capacity as a consultative examiner for the State, was a nontreating physician. Id. Unlike treating physicians, whose opinions are presumptively entitled to controlling weight, see 20 C.F.R. § 404.1527(d); SSR 96-2p, the opinions of nontreating physicians receive no such deference. Dr. Gaziano, moreover, only examined Slaughter once for a short period of time — a mere 38 minutes. Considering the voluminous evidence in this case, Dr. Gaziano's nontreating status, and the doctor's lone, brief encounter with Slaughter, the court finds that the ALJ's analysis of Dr. Gaziano's consultative report was sufficient.

Slaughter also argues that the ALJ erred in not articulating the weight she afforded Dr. Singleton's May 15, 2007, RFC assessment. Unlike Dr. Gaziano, Dr. Singleton was one of claimant's treating physicians, and therefore subject to the so-called "treating source" rule. The treating-source rule "directs the administrative law judge to give controlling weight to the medical opinion of a treating physician if it is `well-supported by medically acceptable clinical and laboratory diagnostic techniques' and `not inconsistent with the other substantial evidence.'" Hofslien v. Barnhart, 439 F.3d 375, 376 (7th Cir. 2006) (quoting 20 C.F.R. § 404.1527(d)(2)). The presumption affording controlling weight to a treating source's opinion can be rebutted "once well-supported contradicting evidence is introduced." Id.

This is not to say, however, that the ALJ can immediately reject the treating physician's opinion outright due to the contradictory evidence. Rather, "a finding that a treating source medical opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case" means only that the opinion is not entitled to "controlling weight." SSR 96-2p. At that point, the presumption drops out and "the treating physician's evidence is just one more piece of evidence for the [ALJ] to weigh." Hofslien, 493 F.3d at 377; see also Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). The Regulations establishing the treating-source rule provide various factors that the ALJ should consider to help her decide how much weight to give the treating source's opinion. 20 C.F.R. § 404.1527(d)(2)-(6); see SSR 96-2p ("[T]he . . . decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record[.]"). In the event an ALJ finds a treating source's opinion not controlling, the ALJ must still explain the weight given to the treating source's opinion. Failure to do so is grounds for reversal. See Moss v. Astrue, 555 F.3d 556, 560-61 (7th Cir. 2009).

Slaughter takes no issue with the ALJ's decision not to give controlling weight to Dr. Singleton's opinion. Instead, he argues that the ALJ failed to specify what weight, if any, she gave to Dr. Singleton's opinion. "An ALJ may discount a treating physician's medical opinion if it is inconsistent with the opinion of a consulting physician, or when the treating physician's opinion is internally inconsistent," Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004), as long as she "minimally articulates [her] reasons for crediting or rejecting evidence of disability." Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). Ultimately, "it is up to the ALJ to decide which doctor to believe," a determination "subject only to the requirement that the ALJ's decision be supported by substantial evidence." Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996). Nothing mandates that the opinion of a treating physician always be accepted over the opinion of a consulting physician. See id.

Slaughter's challenge is foreclosed by the ALJ's careful analysis and comparison of the mobility assessments and progress notes offered by physicians who reviewed his medical condition in 2006 and 2007. See AR 287-88. The ALJ found that Dr. Singleton's diagnosis of Slaughter with greatly reduced mobility and extreme range-of-motion limitations was contradicted by the opinion of a nonexamining, consultative physician (Dr. Jimenez) and by Dr. Singleton's own contemporaneous progress notes. See AR 287-88 (comparing Dr. Jimenez's RFC assessment to Dr. Singleton's RFC assessment); id. at 288 ("Dr. Singleton's opinions about claimant's markedly limited ability to lift, sit, stand and/or walk appear to be contradicted several times in the contemporaneous progress notes from the neurology clinic . . . including at the April 24[, 2007] visit, [Slaughter's] last documented visit in the neurology clinic before Dr. Singleton completed the impairment form."). Moreover, the ALJ noted that Dr. Singleton's RFC appraisal did not appear to be consistent with diagnostic testing results, other medical advice that Slaughter should have a more active lifestyle, or Slaughter's professed ability to walk frequently for exercise. Id. at 288 ("I . . . cannot find in the contemporaneous progress notes or reports of diagnostic studies an explanation for Dr. Singleton's opinion that [Slaughter] is unable to sit through a normal work day, with typical breaks."). This contradictory evidence constituted sufficient `substantial evidence' for the ALJ's decision not to give Dr. Singleton's opinion controlling weight. Accordingly, Dr. Singleton's evidence constituted "just one more piece of evidence" for the ALJ to weigh. Bauer, 532 F.3d at 608.

Dr. Delgado (claimant's primary physician) and a dietitian at the Chicago Board of Health "both encouraged [Slaughter] to increase his level of activity, and [Slaughter] typically reported to them, and testified, that he tries to walk for exercise, and is able to walk several blocks without significant problems." AR 288.

In determining what weight to give Dr. Singleton's opinion, the ALJ properly applied the factors listed in the relevant paragraphs of the Regulations. See 20 C.F.R. § 404.1527(d)(2)-(6). "If the ALJ does not give a treating physician's opinion controlling weight, the regulations require the ALJ to consider the length, nature, and extent of the treatment relationship, frequency of examination, the physician's specialty, the types of tests performed, and the consistency and supportability of the physician's opinion." Moss, 555 F.3d at 560. This is precisely what the ALJ did. First, she noted that Slaughter had only four documented visits with Dr. Singleton at the Fantus neurology clinic from February 2006 to April 2007, with an 11-month gap between his first and second appointments. AR 287-88. In addition to these sporadic visits, the ALJ noted that Slaughter apparently was personally examined only once by Dr. Singleton. Id. at 288. Except for claimant's January 2, 2007 appointment with Dr. Singleton, during each of the other three appointments at Fantus he was examined primarily by medical students who were under Dr. Singleton's supervision. Id. at 287-88. On these occasions, Dr. Singleton merely reviewed the students' assessments instead of performing an independent examination himself.

Although the Commissioner does not make this argument, Dr. Singleton's extremely limited exposure to Slaughter during the relevant time period should probably disqualify his status as a `treating source,' which would provide yet another reason to give little or no deference to his opinion. See White v. Barnhart, 415 F.3d 654, 658 (7th Cir. 2005) (finding that doctor who examined claimant only once should be classified as a `nontreating source').

As mentioned above, the ALJ critically evaluated Dr. Singleton's RFC assessment and found that his opinion lacked evidentiary support and was inconsistent with Dr. Singleton's contemporaneous treatment notes and the opinions of other doctors. It is also clear that the ALJ took Dr. Singleton's specialization as a neurologist into consideration. She noted that tests conducted at Fantus ruled out serious neurological impairments as the cause of Slaughter's numbness and range-of-motion problems. The parts of Dr. Singleton's opinion that the ALJ was skeptical of have nothing to do with Dr. Singleton's specialization as a neurologist. Rather, the ALJ discounted those parts of Dr. Singleton's opinion bearing on Slaughter's musculoskeletal limitations, e.g., how long he could sit, how far he could reach, etc. It is one thing for a neurologist to say that a patient's range-of-motion problems do not derive from neurological causes — a conclusion that falls well within a neurologist's specialization. It is quite another thing to say that a neurologist's opinion on a musculoskeletal diagnosis — the specialty of an orthopedist — should receive great weight when the record contains substantial evidence contradicting the neurologist's opinion on this front. It is unclear how Dr. Singleton's specialization as a neurologist would make his dire assessment of claimant's orthopedic condition more authoritative or deserving of more deference than the other doctors who opined on Slaughter's condition. The ALJ articulated a reasonable basis for giving Dr. Singleton's RFC assessment very little weight and for concluding that Dr. Singleton's opinion on Slaughter's condition deserved no deference. See Hofslien, 439 F.3d at 377 ("[T]he weight properly to be given to testimony or other evidence of a treating physician depends on the circumstances.").

In sum, the ALJ's decision shows that she adequately articulated her reasons for giving little weight to Dr. Singleton's RFC assessment. Instead of summarily dismissing Dr. Singleton's opinion, the ALJ carefully applied the § 404.1527(d) factors and provided a sound basis for declining to give great weight to his opinion. Her ruling was thus "sufficiently specific to make clear to any subsequent reviewers the weight [she] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p. The Regulations require nothing more.

Slaughter seemingly argues that the ALJ failed to articulate the specific weight she afforded Dr. Singleton's opinion because her ruling contains no language explicitly stating what weight she gave it, i.e., "I give Dr. Singleton's opinion little weight because. . . ." But claimant's argument misses the mark. Analysis of the ALJ's opinion leads to the inescapable inference that she gave Dr. Singleton's medical opinion very little weight based on her application of the factors listed in 20 C.F.R. § 404.1527(d). The Regulations do not require a direct, categorical statement of the weight afforded an opinion. Rather, the ALJ's duty is fulfilled by applying the § 404.1527(d) factors so that the reviewing court can trace the ALJ's reasons for "crediting or rejecting evidence of disability." Clifford, 227 F.3d at 871.

III. ALJ's alleged failure to analyze Slaughter's range-of-motion limitations

Slaughter contends that the ALJ erred because she failed to properly analyze his shoulder range-of-motion limitations. Where the decision of the Commissioner "lacks evidentiary support or is so poorly articulated as to prevent meaningful review, the case must be remanded." Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). Hence, the ALJ "must evaluate the record fairly." Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003). In doing so, the ALJ "need not discuss every piece of evidence in the record," Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001), but at the same time the ALJ "may not ignore an entire line of evidence that is contrary to the ruling[.]" Golembiewski, 322 F.3d at 917 (citing Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001)). If the ALJ fails to analyze a contradictory line of evidence, it is impossible for the reviewing court to determine whether the ALJ's decision rests upon substantial evidence. Smith v. Apfel, 231 F.3d 433, 438 (7th Cir. 2000).

Based on her review of the medical evidence, the ALJ concluded that Slaughter could not do "constant repetitive lifting or reaching overhead." AR 279. Slaughter argues, however, that the ALJ should have come to a more extreme conclusion: that claimant could never reach overhead with his right arm and had limited reaching ability with his left arm. He insists that although the medical evidence (allegedly) shows that he could never reach overhead with his right hand, the ALJ's finding implies that he could reach overhead on a less than constant, i.e., occasional basis — a conclusion he deems "illogical." As the record shows, however, this allegation does not withstand scrutiny.

The record contains sufficient evidence to support the ALJ's conclusion that claimant was limited, but not entirely precluded from, working overhead. Slaughter's brief selectively quotes from Dr. Gaziano's medical report and Dr. Singleton's RFC assessment as evidence of Slaughter's extreme reaching limitations. Slaughter ignores, however, the RFC assessment of a state agency doctor, Dr. Jimenez, in which he concluded that Slaughter could occasionally lift or reach above 90° with his right upper extremity. As discussed earlier in this opinion, Dr. Gaziano did not opine on Slaughter's range-of-motion limitations; he merely recorded his physical findings and submitted them to Dr. Jimenez. And given that the ALJ provided a reasoned basis for giving little weight to Dr. Singleton's opinion, see supra pp. 11-16, it was reasonable for the ALJ to base her factual findings on the RFC assessment of a nonexamining state physician.

Additionally, no physician who opined on Slaughter's medical condition ever concluded that he could never reach or lift overhead. In this respect, Slaughter's reliance on Golembiewski is not helpful. In Golembiewski, the Court of Appeals remanded because the ALJ's decision contained no discussion of conflicting medical evidence regarding the claimant's ability to bend with his back. One doctor reported that the claimant could barely bend his back forward, while another opined that he could bend at the waist for up to a third of an eight-hour day. Even though Golembiewski's ability to bend was material to his disability claim, the ALJ simply ignored the issue and declined to discuss the conflicting assessments. 322 F.3d at 917. In this case, however, the ALJ thoroughly considered all the pertinent record evidence bearing on Slaughter's alleged range-of-motion limitations. Most significantly, she provided a cogent rationale for accepting one medical opinion (Dr. Jimenez's) over another (Dr. Singleton's), and she based her assessment of Slaughter's work capabilities on evidence in the record. See AR 279-88. In sum, the ALJ reasonably concluded that Slaughter could not constantly lift or reach overhead, and the court finds no reason to disturb this finding.

IV. ALJ's alleged mischaracterization of the evidence

Slaughter's next contention is that the ALJ improperly mischaracterized evidence of brain abnormalities, shoulder impairments, and carpal tunnel syndrome ("CTS") that was favorable to his disability claim. In making these allegations, Slaughter curiously focuses on the section of the ALJ's opinion that analyzed his claim within the context of the Listing of Impairments at the third step of the sequential analysis. In doing so, he fails to discuss later portions of the opinion where the ALJ analyzed the medical evidence more thoroughly — specifically, in the context of whether Slaughter qualified as disabled despite not suffering from an impairment listed under 20 C.F.R. Part 404, Subpart P, Appendix 1.

Review of these later portions of the ruling reveals that it is Slaughter, not the ALJ, who mischaracterizes the relevant evidence. First, Slaughter argues that the ALJ mischaracterized brain studies as yielding normal results. He provides a layman's interpretation of the brain studies and submits that the results were abnormal. Aside from the fact that lawyers are not qualified to make medical diagnoses, his argument goes against the weight of the evidence. As the ALJ noted, the results of an August 2006 MRI scan ruled out lesions, hemorrhage, or abnormal fluid collection. Moreover, the ALJ noted that neurologists who treated Slaughter at the Fantus neurology clinic reviewed this MRI report and subsequently described it as "normal." There is nothing in the ALJ's decision to indicate that she mischaracterized evidence about brain studies conducted on Slaughter.

Slaughter also argues that the ALJ mischaracterized his shoulder impairments. Like the analysis of the brain results, the portion of Slaughter's brief that addresses this issue points to isolated sections of the ALJ's step-three analysis and ignores the detailed analysis of the shoulder impairments appearing later in the opinion. At step three of the ALJ's analysis, however, the sole question was whether Slaughter suffered from any impairment listed under 20 C.F.R. Part 404, Subpart P, Appendix 1. Thus, the section of the opinion that Slaughter cites only addresses his shoulder limitations insofar as they bear on whether he satisfies the requirements for a condition included in the Listing of Impairments. Under Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999), Slaughter bears the burden of proving that he exhibits all the necessary requirements for a listed impairment, and he does not argue that he met the requirements for any condition in the Listings. Review of the entire 27-page opinion reveals that the ALJ extensively analyzed Slaughter's shoulder impairments and at no point mischaracterized evidence of these impairments.

Finally, Slaughter's argument that the ALJ mischaracterized evidence of CTS fails for identical reasons. Again, he focuses on the ALJ's step-three analysis, but he never challenges the ALJ's finding that he failed to meet the requisite requirements for CTS in the Listing of Impairments. Moreover, the ALJ discussed claimant's symptoms while assessing his RFC, and there is nothing to indicate that she mischaracterized the evidence contained in the record.

V. ALJ allegedly accepted vocational expert testimony that was inconsistent with the Dictionary of Occupational Titles, without requiring explanation

Slaughter's final contention is that the ALJ erred by accepting vocational expert ("VE") testimony that was inconsistent with the Dictionary of Occupational Titles ("DOT") without requiring explanation from the expert. Under Social Security Ruling 00-4p, the ALJ has an "affirmative responsibility" to inquire whether a vocational expert's evidence "conflicts with information provided in the DOT" before she relies on that evidence to support a finding of nondisability. Overman v. Astrue, 546 F.3d 456, 462-63 (7th Cir. 2008). Additionally, if evidence appears to conflict with the DOT, Social Security Ruling 00-4p requires the ALJ to obtain "a reasonable explanation for the apparent conflict." Id. at 463. Failure to raise an objection under Social Security Ruling 00-4p at the ALJ hearing does not foreclose making the argument later on appeal. See Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006). Yet because Slaughter failed to raise the alleged conflict at the hearing, on appeal he must additionally show that the conflicts "were obvious enough that the ALJ should have picked up on them without any assistance." Overman, 546 F.3d at 463. This is because Social Security Ruling 00-4p places a duty on the ALJ to investigate and resolve only apparent conflicts between the VE's evidence and the DOT. Id. Therefore, if the conflict is not apparent, and a claimant does not challenge the VE's testimony at the hearing, the ALJ's duty to investigate is not triggered.

At the first hearing on Slaughter's applications, held on June 28, 2005, the VE identified occupations that exist in significant numbers in the regional economy that a hypothetical person such as Slaughter could perform and sustain, all within his RFC: packer, assembler, visual inspector, and machine tender. The VE testified that within Slaughter's RFC, there are "more than 2000" light positions for each occupation in the region. AR 296. Additionally, he testified that additional jobs exist in the packer, assembler, and visual inspector occupations at the sedentary level and that 2500 to 3500 position exist for each cited occupation at the sedentary level.

The VE testimony at the remand hearing on May 1, 2007, which coincidentally came from the same expert who testified at the first hearing, noted little change in Slaughter's ability to perform the same light occupations he cited two years earlier. Due to the new limitations in Slaughter's ability to push or pull against resistance with his lower extremities and to lift or reach overhead with his upper extremities, the VE testified that the number of positions for each occupation would be reduced approximately 15 percent from the previously cited numbers. During his testimony, the VE was questioned by the ALJ as well as by Slaughter's counsel. The ALJ's hypotheticals incorporated the limitations she established in her specific RFC findings, which included her assessment of Slaughter's credibility. The hypotheticals offered by Slaughter's counsel, however, added several additional limitations that presented Slaughter's condition as being more severe than indicated by the objective medical evidence and other evidence. Relying and accepting "only that part of the testimony of the [VE] that incorporated the limitations in my RFC conclusion," the ALJ reasonably concluded that the VE "did identify occupations that exist in significant numbers that the hypothetical worker [like Slaughter] could perform and sustain." AR 296.

For instance, Slaughter's counsel asked the VE to consider the available occupations for a hypothetical worker who could not push or pull any weight with either upper or lower extremity — even objects as light as a sheet of paper or a file folder. The VE concluded that such a worker could not find any competitive work, but considering that there is no evidence that Slaughter suffers from such extreme limitations, the entire inquiry is irrelevant.

Slaughter has failed to establish that the record contains any conflict between the VE's testimony and the DOT. He alleges that portions of the VE's testimony regarding the types of industry jobs he could perform were inconsistent with the descriptions of those jobs in the DOT. Specifically, Slaughter argues that his condition precludes him from working at ten of the sixteen jobs recited by the VE, thus rendering the VE's testimony unreliable. The court's review of the VE's testimony and the DOT, however, does not reveal any material inconsistencies between the job titles the VE provided and their corresponding DOT descriptions.

The VE identified jobs that claimant could perform by each job's nine-digit DOT occupational code.

Moreover, it is ultimately a moot point whether any discrepancies existed between the VE's testimony and the DOT because the ALJ had no duty to investigate the purported inconsistencies between the two — an allegation that Slaughter raises for the first time on appeal. The VE testified that his testimony was consistent with the DOT, and at no point during the May 1, 2007 hearing did claimant's representative call into question the VE's testimony on this point. Slaughter cannot point to anything in the transcript of the hearing that would indicate to the ALJ any apparent conflict between the VE's testimony and the DOT. This is all the more significant given that the VE was questioned aggressively by Slaughter's representative during the hearing. See AR 641-47. By obtaining and relying upon the VE's uncontradicted testimony, the ALJ satisfied her duty under Social Security Ruling 00-4p to assure that VE testimony is consistent with the DOT. Overman, 546 F.3d at 462-63. The evidence presented at the hearing gave no indication of any obvious conflicts, and thus the ALJ's narrow duty to investigate only apparent conflicts was not triggered. See id.

Since the ALJ's duty to investigate is triggered based upon record evidence and testimony at the hearing, Slaughter's parsing of the occupational codes in his brief does little to bolster his argument. Surely, the ALJ cannot be expected to scrutinize and cross-check each code to make sure the VE accurately represents the descriptions as they appear in the DOT. Such painstaking inquiry would be impracticable, and it would make the VE's testimony repetitive and unnecessary. In sum, even if such a discrepancy existed here, the conflict was not apparent. Slaughter does not point to anything in the record that would have given the ALJ any inkling of a conflict between the VE's testimony and the DOT.

In sum, the VE's testimony at the hearing was not contradicted, and no grounds exist for questioning the reliability of his testimony. Thus, the Commissioner satisfied his burden at step five of the sequential evaluation by "establishing that claimant can perform other work that `exists in significant numbers in the national economy.'" Overman, 546 F.3d at 464 (quoting 20 C.F.R. § 404.1560(c)(2)); see also Britton v. Astrue, 521 F.3d 799, 803 (7th Cir. 2008) (noting that a VE's testimony satisfies the step-five burden only if that testimony is reliable). Based on the foregoing analysis, the court concludes that the ALJ's ruling finding claimant James Slaughter `not disabled' was supported by "substantial evidence in the record as a whole." Walker, 834 F.2d 640.

CONCLUSION AND ORDER

For the foregoing reasons, Slaughter's motion for summary judgment [#22-1] is denied, and the Commissioner's cross-motion [#32] is granted. Slaughter has failed to establish that he was disabled prior to December 31, 2002 (his date last insured), and thus he does not qualify for Title II Social Security benefits. He has also failed to establish that he was disabled at any time since 2003, and thus he does not qualify for supplemental security income under Title XVI of the Act. The clerk is instructed to enter judgment in favor of the defendant. This case is terminated.

Dated: November 5, 2010

15,386.12. (ECF No. 13-3).

but only with respect to Koons' alleged failure to pay off the lien on the 2006 Ford Taurus.

d. Implied Warranty of Merchantability (Count III)

Jones also alleges a breach of the implied warranty of merchantability, as the 2007 Pontiac G6 would not "pass without objection in the trade" because "the contract description [did not] include a clear and conspicuous disclosure that [the Pontiac G6] had previously been used as a short-term rental." (ECF No. 13-2, Am. Compl. ¶ 28). Koons responds that Jones misunderstands the nature of the implied warranty of merchantability. According to Koons, the implied warranty of merchantability is only meant to ensure that goods are substantially free of defects and is not meant to address misrepresentations and omissions like those alleged here. (ECF No. 16, at 9-10).

The implied warranty of merchantability is defined in a Maryland provision taken from the Uniform Commercial Code. See Md. Code Ann., Comm. Law § 2-314.

The Fourth Circuit has explained that the warranty of merchantability under Maryland law is:

implied in the sale of goods by a merchant who deals in goods of that kind. To be merchantable, goods must "[p]ass without objection in the trade under the contract description" and must be fit for the ordinary purpose for which such goods are used. Whether a good is merchantable also depends in part on usage of trade. This definition of merchantability incorporates trade quality standards and the consumer's reasonable expectations into the concept of merchantability.

Robinson v. Am. Honda Motor Co., 551 F.3d 218, 225 (4^th Cir. 2009). There is a long history of applying the implied warranty of merchantability in the used car context. See Diane L. Schmauder, Annotation, Liability on Implied Warranties in Sale of Used Motor Vehicle, 47 A.L.R.5th 677 § 4 (1977). Even so, most — if not all — of these cases contemplate physical defects in automobile that offend the expectations of reasonable consumers. Indeed, the Fourth Circuit has construed the implied warranty to reach only those defects:

The difficulty is that, so far as these plaintiffs are concerned, GM's diesel-equipped cars have served the traditionally recognized purpose for which automobiles are used. Since cars are designed to provide transportation, the implied warranty of merchantability is simply a guarantee that they will operate in a safe condition and substantially free of defects. Thus, where a car can provide safe, reliable transportation, it is generally considered merchantable.

Carlson v. Gen. Motors Corp., 883 F.2d 287, 297 (4^th Cir. 1989); see also Lloyd, 397 Md. at 157 ("[T]he implied warranty of merchantability not only warrants that the automobile will operate effectively, but that it will provide reasonably safe transportation."). Carlson rejects the argument that the implied warranty of merchantability is meant to protect mere consumer expectations that a product holds its value, absent some tangible defect so substantial as to render the automobile virtually useless. Carlson, 883 F.2d at 298. Fundamentally, that is the very argument that Jones advances here, where she contends Koons breached the warranty by failing to inform her of the car's rental car past. (ECF No. 13-2, Am. Compl. ¶ 28). There is no suggestion that the car was unfit for use or otherwise functionally useless. Therefore, Jones' breach of the implied warranty of merchantability claim will be dismissed.

e. Negligent and Intentional Misrepresentations Concerning the Pontiac G6's Prior Status as a Rental Car (Counts IV and VI)

Jones also alleges that Koons' failure to disclose the 2007 Pontiac G6's prior use as a daily rental constituted negligent and intentional misrepresentation. (ECF No. 13-2, Am. Compl. ¶¶ 30-37, 44-51). Koons asks for dismissal because it says these claims lack "key factual allegations," including a failure to allege that Koons was aware of the car's prior use as a daily rental car.

Koons first contends that the amended complaint "lacks factual allegations that would make [Jones'] claims at least plausible[,] . . . [including] the history of the car, such as where when and for how long it was used as a daily rental." (ECF No. 16, at 11). As the court has already explained in addressing Jones' MCPA claim, Jones has alleged sufficient "historical facts" concerning the car's prior history as a daily rental. See supra note 11. The amended complaint states that Enterprise Leasing used the car as a rental, a fact that Koons purportedly failed to disclose.

Koons also argues that Jones failed to allege that it was aware of the car's history. Here again, however, Koons fails to look to the actual elements of negligent and intentional misrepresentation and cites no authorities. Maryland case law makes clear that an action for negligent misrepresentation will lie when a defendant who owes a duty of care to the plaintiff "volunteer[s] an erroneous opinion" with the knowledge that plaintiff will rely on it (and the plaintiff does in fact rely on it to his detriment). Cooper v. Berkshire Life Ins. Co., 148 Md.App. 41, 57 (2002). A plaintiff does not have to prove that defendant actually possessed knowledge of the statement's falsity to assert a claim for negligent misrepresentation. See, e.g., Miller v. Fairchild Indus., Inc., 97 Md.App. 324, 345 (1993) ("Even where deliberate falsehood is lacking or cannot be proven, however, a plaintiff may still state a cause of action for negligent misrepresentation." (emphasis in original)). Indeed, the lack of a scienter requirement is the critical distinction between negligent misrepresentation and claims of fraud, deceit, and intentional misrepresentation. See Doe v. Prudential Ins. Co. of Am., 860 F.Supp. 243, 250 (D.Md. 1993). Thus, the claim premised on negligent misrepresentation will not be dismissed.

Koons' argument, however, is valid as to the intentional misrepresentation claim. In that context, the plaintiff does have to show "that either [the misrepresentation's] falsity was known to [the plaintiff] or the misrepresentation was made with such reckless indifference to truth to impute knowledge to him." Brass Metal Prods., Inc. v. E-J Enters., Inc., 189 Md.App. 310, 353 (2009) (quoting B.N. v. K.K., 312 Md. 135, 149 (1988)); see also VF Corp. v. Wrexham Aviation Corp., 350 Md. 693, 704 (1998). Reckless indifference "arises when the defendant makes the representation even though aware that he does not know whether it is true or false — where he knows that he lacks knowledge as to its truth or falsity — and nonetheless makes the representation without regard to that lack of knowledge." Hoffman v. Stamper, 385 Md. 1, 42 (Md. 2005). Jones has not pled facts showing that Koons either (1) knew the car was previously used as a rental car and nevertheless represented otherwise or (2) was aware that it had no knowledge of the car's

prior history but nevertheless represented that the car was never a rental car. Absent such facts, Jones has failed to state a claim for intentional misrepresentation and that count must be dismissed.

The amended complaint's conclusory suggestions that Koons acted intentionally are the type of "legal conclusions couched as factual allegations" that the court need not accept on a motion to dismiss. Iqbal, 129 S.Ct. at 1950.

f. Negligent and Intentional Misrepresentations Concerning Koons' Alleged Promise to Pay Off the Lien on the 2006 Ford Taurus (Counts VII and IX)

Jones alleges an additional pair of claims based on intentional and negligent misrepresentations, this time based on Koons' representation that it would pay off the lien on Jones' 2006 Ford Taurus. (ECF No. 13-2, Am. Compl. ¶¶ 52-60, 67-71). Unsurprisingly, Koons avers that both these claims fail.

Jones' second intentional misrepresentation claim suffers the same deficiency as her first one. Although she conclusorily alleges that Koons intentionally misrepresented that the lien would be repaid, she does not allege facts establishing that Koons possessed the requisite scienter. Generally, "promissory or predictive statements" such as "I will pay your lien" cannot form the basis for an intentional misrepresentation claim; such statements are actionable only if they are "made with a present intention not to perform them." Miller, 97 Md.App. at 343; accord Edell Assocs., P.C. v. Law Offices of Peter G. Angelos, 264 F.3d 424, 445 (4^th Cir. 2001); Appel v. Hupfield, 198 Md. 374, 379 (1951). There are no facts in the complaint indicating that Koons did not intend to pay the lien at the time it assured Jones that it would. Count seven must be dismissed.

The negligent misrepresentation claim based on the 2006 Ford Taurus lien also does not pass muster. This claim, like the intentional misrepresentation claim, is premised on Koons' promissory statement that it would pay off the lien on the 2006 Ford Taurus. As the Court of Special Appeals of Maryland explained:

A negligent misrepresentation claim based on statements promissory or predictive in nature, however, suffers the same fate as a deceit claim based on such statements. Unless the plaintiff puts forward evidence tending to show that the "promisor" or "predictor" made the statements with the present intention not to perform, the claim is not viable. But any promise that is made with the present intention not to perform or any prediction that is made with present knowledge that the predicted event will not occur is, perforce, an intentional misrepresentation, not a negligent one, and thus cannot sustain an action for negligent misrepresentation.

Miller, 97 Md.App. at 346; accord Plana v. Shoresales, LLC, No. JFRM-03-1227, 2003 WL 21805290, at *6 (D.Md. July 14, 2003). Accordingly, count nine must be dismissed as well.

g. Unjust Enrichment (Counts V and VIII)

Finally, Jones also alleges two unjust enrichment claims, again stemming from Koons' failure to pay off the lien on the trade in car and Koons' failure to disclose the car's former status as a daily rental car. (ECF No. 13-2, Am. Compl. ¶¶ 38-43, 61-66). Koons insists that Jones cannot allege an unjust enrichment claim while also alleging the existence of a written contract. (ECF No. 16, at 12-13).

It is indeed the case that "[i]n Maryland, a claim of unjust enrichment, which is a quasi-contract claim, may not be brought where the subject matter of the claim is covered by an express contract between the parties." Janusz v. Gilliam, 404 Md. 524, 537 (Md. 2008) (quotation marks omitted); see also FLF, Inc. v. World Publ'ns, Inc., 999 F.Supp. 640, 642 (1998) ("It is settled law in Maryland, and elsewhere, that a claim for unjust enrichment may not be brought where the subject matter of the claim is covered by an express contract between the parties."). "Generally, courts are hesitant to deviate from the principle of the rule and allow unjust enrichment claims only when there is evidence of fraud or bad faith, there has been a breach of contract or a mutual rescission of the contract, when rescission is warranted, or when the express contract does not fully address a subject matter." Cnty. Com'rs of Caroline Cnty. v. J. Roland Dashiell Sons, Inc., 358 Md. 83, 101 (2000).

The relevant transaction in the present case would seem to have applicable express contracts. ( See ECF No. 13-3, Exs. 1-3, at 1-6). Nevertheless, the amended complaint does not contend — and Jones does not suggest — that any of these exceptions to the general rule barring quasi-contractual remedies are applicable here. Instead, Jones argues that she should be permitted to plead unjust enrichment as an alternative basis for relief. She notes that Koons has not conceded that there is a valid agreement between Jones and Koons covering the same subject matter.

The court will not dismiss the unjust enrichment claims at this time. Jones is correct that Koons has not conceded the existence of a valid contract. Moreover, the Federal Rules of Civil Procedure allow parties to plead claims in the alternative. See Fed.R.Civ.P. 8(e)(2) ("A party may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal [or] equitable . . . grounds."). Although Jones will not ultimately be able to recover both contractual and quasi-contractual remedies, dismissing the unjust enrichment claims now would be premature. See, e.g., RaceRedi Motorsports, LLC v. Dart Mach., Ltd., 640 F.Supp.2d 660, 666 (D.Md. 2009) (declining to dismiss unjust enrichment claim pled in the alternative where contract terms remained in dispute); MTBR LLC v. D.R. Horton, Inc., No. RDB-07-3363, 2008 WL 3906768, at *12 (D.Md. Aug. 22, 2008) (declining to dismiss quasi-contractual claim where parties did not agree that there was a valid agreement covering same subject matter). The court will not dismiss counts five and eight.

In fact, in response to Prestige's motion to intervene, Koons assumes that it is a party to the Retail Installment Sales Contract, but "does so without waiving or prejudicing its rights to argue to the contrary if and when it is required to answer the complaint in this case." (ECF No. 23, at 4).

B. Motion to Intervene

Prestige, the lienholder of the lien on the 2006 Ford Taurus trade-in car, has moved the court (1) to grant intervention of right under Fed.R.Civ.P. 24(a)(2), or, alternatively, (2) to permit intervention under Fed.R.Civ.P. 24(b)(1)(B). (ECF No. 21). It wishes to bring claims against Koons for breach of contract and tortuous interference with contractual relations. ( See generally ECF No. 21-11, Intervenor Compl.). As noted above, both Jones and Koons oppose. (ECF Nos. 22, 23).

Federal Rule of Civil Procedure 24(a) allows a party to intervene as of right. That rule states, in pertinent part:

On timely motion, the court must permit anyone to intervene who: . . . (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

"[T]o intervene as of right, a movant must show: (1) timely application; (2) an interest in the subject matter of the underlying action; (3) that a denial of the motion to intervene would impair or impede the movant's ability to protect its interest; and (4) that the movant's interest is not adequately represented by the existing parties to the litigation." Pennsylvania Nat'l Mut. Cas. Ins. Co. v. Perlberg, 268 F.R.D. 218, 224-25 (D.Md. 2010). The party seeking to intervene bears the burden of establishing all four requirements. U.S. ex rel. MPA Const., Inc. v. XL Specialty Ins. Co., 349 F.Supp.2d 934, 937 (D.Md. 2004) (citing In re Richman, 104 F.3d 654, 658 (4^th Cir. 1997)). Neither Jones nor Koons suggest that the motion to intervene was untimely, nor could they. Consequently, only the latter three factors must be considered here.

1. Interest in the Subject Matter

Prestige asserts that it has a direct interest in the action because it is a third-party beneficiary to the contracts between Jones and Koons. Such an interest has been held sufficient to justify intervention as of right. See, e.g., Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9^th Cir. 2001); Fifth Third Bank of W. Ohio v. United States, 52 Fed.Cl. 202, 204 (2002). Koons and Jones nevertheless make two arguments in response: Prestige is not a third-party beneficiary and its mere "economic interest" is not a sufficient interest to justify intervention.

In Maryland, "[a]n individual is a third-party beneficiary to a contract if the contract was intended for his or her benefit and it . . . clearly appears that the parties intended to recognize him or her as the primary party in interest and as privy to the promise." Dickerson v. Longoria, 414 Md. 419, 452 (2010) (quotation marks and brackets omitted). A third-party beneficiary may bring suit to enforce the contract even though he is not actually a party to it. Id.

Prestige has adequately alleged that it is a third-party beneficiary to the agreements. One form of third-party beneficiary is a creditor beneficiary, which may be found "where no purpose to make a gift appears and performance of the promise will satisfy an actual or supposed or asserted duty of the promisee." Lovell Land, Inc. v. State Highway Admin., 408 Md. 242, 261 (2009) (quotations omitted). "[I]n order to determine who is a creditor beneficiary, courts should consider the following as controlling factors: the intention of the parties to recognize a person or class as a primary party in interest as expressed in the language of the instrument and consideration of the surrounding circumstances as reflecting upon the parties' intention." Ferguson v. Cramer, 349 Md. 760, 767 (1998). Here, the language and circumstances of the agreement reflect that Prestige was such a creditor beneficiary. The Buyers Order and the Retail Installment Sales Contract between Jones and Koons both provide for a payoff of the lien on the 2006 Ford Taurus. ( See ECF No. 21-11, Intervenor Compl. ¶¶ 17-18). Jones' amended complaint also alleges that the parties intended for Prestige to be paid off. ( See, e.g., ECF No. 13-2, Am. Compl. ¶ 53). Prestige has an interest in getting its promised $13,148 payout from Koons. In short, Prestige is a third-party beneficiary.

The court looks to the language and circumstances that reflect the parties' intention at the time the contract was actually made. Thus, it does not matter that both Jones and Koons (rather self-servingly) protest that the contracts were not intended to benefit Prestige.

Even so, Jones complains that Prestige merely possesses an economic interest insufficient to support intervention. (ECF No. 22, at 4-5). In support, Jones cites Mountain Top Condominium Association v. Dave Stabbert Master Builder Inc., 72 F.3d 361, 366 (3^d Cir. 1995). In Mountain Top, the United States Court of Appeals for the Third Circuit concluded that a "mere economic interest in the outcome of the litigation is insufficient to support a motion to intervene." Id. As Prestige recognizes, however, Mountain Top stands in tension with Fourth Circuit cases allowing intervention where the intervenor asserts an economic interest. See, e.g., JLS, Inc. v. Pub. Serv. Comm'n of W. Virginia, 321 F.App'x 286, 290 (4^th Cir. 2009) (finding movants should have been permitted to intervene as of right where case affected "the amount of income they expected to earn"); Feller v. Brock, 802 F.2d 722, 730 (4^th Cir. 1986) (reversing denial of intervention as of right by individual apple pickers who could receive higher wages as a result of judgment); Teague v. Bakker, 931 F.2d 259, 261-62 (4^th Cir. 1991) (finding class action group was entitled to intervene as of right where judgment would affect group's ability to collect judgment). Prestige does not assert some amorphous general claim of economic interest, but rather seeks to protect its particular right to the benefits of this transaction. That interest is strong enough to support intervention.

Indeed, the Third Circuit recognized that tension in Liberty Mutual Insurance Co. v. Treesdale, Inc., 419 F.3d 216 (3^d Cir. 2005), wherein it rejected a more permissive approach applied by the Fourth Circuit in Teague v. Bakker, 931 F.2d 259 (4^th Cir. 1991). See Liberty Mut. Ins. Co., 419 F.3d at 224 ("[T]he result in Teague is inconsistent with our analysis in Mountain Top.").

The particularlized nature of Presitge's interest ( i.e. an interest in the money that changed hands between Koons and Jones on December 18) might very well be enough to justify intervention even under the more restrictive approach taken by the Third Circuit. See Mountain Top, 72 F.3d at 366 ("While a mere economic interest may be insufficient to intervene, an intervenor's interest in a specific fund is sufficient to entitle intervention in a case affecting that fund.").

2. Impairment of the Interest

Prestige asserts that denial of its motion would impair its ability to protect its interest, as "resolution of the Koons Action may be dispositive of Prestige's claims against Koons for breach of contract." (ECF No. 21-1, at 8). Although Prestige says it could be "collaterally estopped" from pursuing a claim against Koons if the litigation goes forward without it, the court does not need to determine that this litigation would have a formal preclusive effect on a later action brought by Prestige against Koons. "[I]n order to intervene of right, a party need not prove that he would be bound in a res judicata sense by any judgment in the case." Spring Constr. Co., Inc. v. Harris, 614 F.2d 374, 377 (4^th Cir. 1980). Rather, it is enough for a party to show that "the disposition of a case would, as a practical matter, impair the applicant's ability to protect his interest in the transaction." Id.

Prestige's interest could be impaired by the disposition of this action. Hardy-Latham v. Wellons, 415 F.2d 674 (4^th Cir. 1968), provides an example of how. In Hardy-Latham, the defendant sold his candy business with the help of the plaintiff, a business broker. Id. at 676-77. When the broker attempted to collect her commission from the sale's proceeds, the defendant refused to pay; the broker then sued. Id. at 676. Two other parties then intervened, saying that they had also helped in the sale of the business and deserved a portion of the commission. Id. The Fourth Circuit concluded that the two intervenors were appropriately permitted to intervene as of right because they "claim[ed] an interest in both the transaction and the fund which [were] the subject of the main action, and if the entire amount were paid directly to [the plaintiff], their ability to collect their proper share would [have been] as a practical matter [] more difficult." Id. The same is true here: Prestige claims an interest in the trade-in car transaction, and its ability to collect its share would be

made more difficult if Jones is permitted to collect the entire sum. This obstacle to collection is a sufficient impairment to justify intervention as of right.

3. Inadequacy of Representation

Finally, Prestige argues that Jones will not adequately represent its interests. Prestige carries a "minimal" burden of demonstrating that Jones will not adequately represent its interest. Teague, 931 F.2d at 259. Prestige is not obliged to show that representation of its interest will be inadequate, but must demonstrate only that representation may be inadequate. JLS, 321 F.App'x at 289 (citing Trbovich v. UMWA, 404 U.S. 528, 538 n. 10 (1972)). If Prestige is found to have the same ultimate objective as Jones, a presumption arises that Prestige's interests are adequately represented. Commonwealth of Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4^th Cir. 1976). That presumption may be overcome by demonstrating "adversity of interest, collusion, or nonfeasance." Id.

Prestige correctly argues that Jones and Koons seek to impose the wrong standard of "compelling evidence" on Prestige's motion to intervene. A movant is required to offer "compelling evidence" that its interests are inadequately represented only when the party to the suit has a legal obligation to represent the movant's interests. First Penn-Pacific Life Ins. Co. v. William R. Evans, Chtd., 200 F.R.D. 532, 538 (D.Md. 2001). There is no suggestion that Jones has any such obligation to represent Prestige's interests.

Prestige has carried its minimal burden. Both Jones and Koons say that Prestige and Jones share a common objective, but that is not true. To be sure, Jones and Prestige are both battling for the same prize, i.e., the promised lien payoff on the 2006 Ford Taurus. But if Jones wins, she will receive the money for her own use — it will not necessarily be used to pay off the obligation to Prestige. Therefore, Prestige has an independent objective of seeing that its debt is satisfied.

Given the rather antagonistic history between Prestige and Jones, these two parties are not working towards a common goal. Jones filed suit against Prestige in the Circuit Court for Prince George's County seeking cancellation of the debt related to the 2006 Ford Taurus. ( See generally ECF No. 21-3). The case was removed to this court and is now pending before another judge. See Jones v. Prestige Fin. Servs., Inc., 1:10-cv-02136-BEL (D.Md. filed August 4, 2010). There is a certain adversity of interest inherent in the lender-borrower relationship, which has only been exacerbated by Jones' attempts to cancel the lien on the car. Prestige should not be forced to trust that Jones will nevertheless protect its interests in the present case.

In addition, as a corporation, Prestige would appear to have greater financial resources than Jones, an individual plaintiff. That disparity between financial resources may reflect a chance that Jones may be "less vigorous" in asserting her claim. Teague, 931 F.2d at 259. Prestige has also leveled different, and perhaps more effective, challenges to Koons' failure to pay the lien, further suggesting that its interests are not fully represented. JLS, 321 F.App'x at 291.

In sum, because Prestige has established all four factors necessary to support intervention as of right, it will be permitted to intervene as a plaintiff.

Given the court's finding on the issue of intervention as of right, there is no need to address Prestige's alternative request for permissive intervention. That should not suggest that permissive intervention would be inappropriate. To the contrary, there are substantial grounds for allowing permissive intervention here.

III. Conclusion

For the foregoing reasons, Koons' motion to dismiss will be granted in part and denied in part. Prestige's motion to intervene will be granted. A separate order will follow.