CHARITY v. GMAC MORTGAGE INVESTMENTS, INC. (N.D.Ohio 9-14-2010)

LORENZO GARCIA, Magistrate Judge

THIS MATTER is before the Court on Plaintiff Vicki Gillmore ("Gillmore") Motion to Reverse or Remand Administrative Agency Decision, filed April 2, 2010. [Doc. 17, 18.] The Commissioner of Social Security issued a final decision denying benefits, finding that Gillmore was not disabled and not entitled to supplemental security income ("SSI") benefits.

The Commissioner filed a response to Gillmore's Motion [Doc. 19], and Gillmore filed a reply [Doc. 20]. Having considered the pleadings submitted by the parties, the administrative record and the applicable law, the Court recommends that Gillmore's motion be denied and this case be dismissed, with prejudice.

I. PROCEDURAL RECORD

On October 7, 2005, Gillmore applied for SSI [AR 75], alleging she was disabled since June 19, 2005 [AR 14, 115], due to a right elbow injury, right shoulder problems and pain, hand problems, arthritis in her heel, bipolar disorder, schizophrenia, post traumatic stress disorder ("PTSD") and depression. [AR 44, 392, 403.] Gillmore's SSI application was denied at the initial and reconsideration levels. [AR 36, 35, 37, 44.] On November 16, 2007, the ALJ conducted an administrative hearing in Albuquerque, New Mexico, at which Gillmore was represented. [AR 384.] On March 11, 2009, the ALJ issued a decision finding Gillmore not disabled. [AR 14-29.] Thereafter, Gillmore filed a timely request for review. On August 26, 2009, the Appeals Council, after considering additional evidence, denied Gillmore's request for review and upheld the final decision of the ALJ. [AR 3.] On September 25, 2009, Gillmore filed a Complaint for court review of the ALJ's decision. [Doc. 1.]

Gillmore's actual SSI application states she has been disabled since September 29, 1998 [AR 75], when she had an ankle injury and infection. However, this SSI application relates to an injury that allegedly occurred in the workplace on June 18, 2004 [AR 187], after which Gillmore contends she no longer was able to work. Gillmore testified at the ALJ hearing she had not worked since September 28, 2005. [AR 389.] In one of the social security forms, she stated she was unable to work as of June 19, 2005. [AR 119.] The discrepancies in onset dates are unexplained.

The initial social security forms stated that a "right elbow injury" prevented Gillmore from working [AR 118]. However, in the ALJ hearing, she alleged a number of impairments, as listed.

Gillmore was born on March 19, 1965 [AR 75] and was 42 years old at the time of the ALJ hearing. [AR 389.] Gillmore has a high school education and three years of college education at the Technical Vocational Institute (now known as CNM) in Albuquerque, New Mexico. She was studying to attain a business certificate but was four or five courses short of attaining the degree. [AR 198, 324, 389.]

Gillmore's work history includes having been a waitress in the early and late 1990s, a stocker in a grocery store from 1991-1993, a mechanic in 1994-1995, and a mixer and forklift operator for American Gypsum from about January 2004 through mid-June 2005. [AR 119, 126.] Gillmore's earnings history is erratic. In 2005, she earned over $11,000, and in 2004, she earned a high of $25,400. In many other years, her earnings were minimal or nothing at all. [AR 61.]

Gillmore is divorced and has two children, who reside with the father. Gillmore either lives alone in a trailer or with her boyfriend. [AR 107, 157, 198.] Gillmore apparently had a difficult childhood, including having been molested and raped. She later was arrested and convicted for solicitation of first degree murder. She served three years in prison from 1998-2000. [AR 393.] Gillmore was also arrested two times for domestic violence charges. [AR 324-26.]

Although many of the social security or medical records indicate Gillmore denied using drugs, she admits that she used cocaine or methamphetamines for ten years. [AR 326.] She advised the ALJ that she was "clean" since 1993 and denied current drug use. [AR 413-14.]

II. STANDARDS FOR DETERMINING DISABILITY

In determining disability, the Commissioner applies a five-step sequential evaluation process. The burden rests upon the claimant to prove disability throughout the first four steps of this process, and if the claimant is successful in sustaining her burden at each step, the burden then shifts to the Commissioner at step five. If, at any step in the process, the Commissioner determines that the claimant is or is not disabled, the evaluation ends.

20 C.F.R. § 404.1520(a)-(f) (1999); Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).

20 C.F.R. § 404.1520(a)-(f) (1999); Sorenson v. Bowen, 888 F.2d 706, 710 (10th Cir. 1989).

Briefly, the steps are: at step one, claimant must prove she is not currently engaged in substantial gainful activity; at step two, the claimant must prove her impairment is "severe" in that it "significantly limits her physical or mental ability to do basic work activities. . . .;" at step three, the Commissioner must conclude the claimant is disabled if she proves that these impairments meet or are medically equivalent to one of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1 (1999); and, at step four, the claimant bears the burden of proving she is incapable of meeting the physical and mental demands of her past relevant work. If the claimant is successful at all four of the preceding steps, the burden shifts to the Commissioner to prove, at step five, that considering claimant's RFC, age, education and past work experience, she is capable of performing other work.

20 C.F.R. § 404.1520(b) (1999).

20 C.F.R. § 404.1520(c) (1999).

20 C.F.R. § 404.1520(d) (1999). If a claimant's impairment meets certain criteria, that means her impairment is "severe enough to prevent him from doing any gainful activity." 20 C.F.R. § 416.925 (1999).

20 C.F.R. § 404.1520(e) (1999).

One's RFC is "what you can still do despite your limitations." 20 C.F.R. § 404.1545(a). The Commissioner has established RFC categories based on the physical demands of various types of jobs in the national economy. Those categories are: sedentary, light, medium, heavy and very heavy. 20 C.F.R. § 405.1567 (1999).

20 C.F.R. § 404.1520(f) (1999).

At step five, the ALJ can find that the claimant met her burden of proof in two ways: (1) by relying on a vocational expert's testimony; and/or (2) by relying on the "appendix two grids."Taylor v. Callahan, 969 F. Supp. 664, 669 (D. Kan. 1997). For example, expert vocational testimony might be used to demonstrate that the claimant can perform other jobs in the economy. Id. at 669-670. If, at step five of the process, the Commissioner proves other work exists which the claimant can perform, the claimant is given the chance to prove she cannot, in fact, perform that work.

Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991).

In this case, the ALJ relied on testimony from a vocational expert for her finding of non-disability at step five of the analysis. [AR 28-29.] The Court observes that the ALJ mistakenly recited standards applicable in the five-step sequential process. At step five, the ALJ stated that the "claimant generally continues to have the burden of proving disability at this step," although "a limited burden of going forward with the evidence shifts to the Social Security Administration." [AR 16.] This, of course, is an incorrect statement of law.

Most, if not all, of the ALJ decisions presented to this Court recite similar boilerplate language summarizing the five-step process. That summary should be reviewed and revised in accordance with Tenth Circuit law.

The Tenth Circuit Court of Appeals previously explained if the claimant establishes at step four that she cannot return to her past relevant work, the burden of proof shifts to the Commissioner at step five to show the claimant retains the RFC to perform work in the national economy, given her age, education and work experience. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10^th Cir. 2005). In an unpublished opinion, the Tenth Circuit further stated that "[t]he claimant has no burden on step five."Stewart v. Shalala, 999 F.2d 548, at *1 (Table, Text in Westlaw), 1993 WL 261958 (10^th Cir. Jun. 28, 1993) ( citing Thompson v. Sullivan, 987 F.2d 1482, 1491 (10^th Cir. 1993)). Thus, the ALJ's explanation of the claimant's burden at step five is not in accord with circuit law. The ALJ should revise or clarify the summary of the five-step process.

III. STANDARD OF REVIEW

On appeal, the Court considers whether the Commissioner's final decision is supported by substantial evidence, and whether the Commissioner used the correct legal standards. Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004). To be substantial, evidence must be relevant and sufficient for a reasonable mind to accept it as adequate to support a conclusion; it must be more than a mere scintilla, but it need not be a preponderance. Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003); Langley, 373 F.3d at 1118; Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004). The Court's review of the Commissioner's determination is limited. Hamilton v. Sec'y of HHS, 961 F.2d 1495, 1497 (10th Cir. 1992). The Court may not substitute its own judgment for the fact finder, nor re-weigh the evidence. Langley, 373 F.3d at 1118; Hamlin, 365 F.3d at 1214;Hargis v. Sullivan, 945 F.2d 1482, 1486 (10th Cir. 1991). Grounds for reversal also exist if the agency fails to apply the correct legal standards or to demonstrate reliance on the correct legal standards. Hamlin, 365 F.3d at 1114.

It is of no import whether the Court believes that a claimant is or is not disabled. Rather, the Court's function is to determine whether the record as a whole contains substantial evidence to support the Commissioner's decision and whether the correct legal standards were applied. Hamilton, 961 F.2d at 1497-98. In Clifton v. Chater, the Tenth Circuit described, for purposes of judicial review, what the record should show:

The record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence. Rather, in addition to discussing the evidence supporting his decision, the ALJ must discuss the uncontroverted evidence he chooses not to rely upon, as well as the significantly probative evidence he rejects.

Clifton v. Chater, 79 F.3d 1007, 1009-1010 (10th Cir. 1996) (internal citations omitted). If supported by substantial evidence, the decision of the Commissioner is conclusive and must be affirmed.

After "careful consideration of all the evidence" [AR 14], the ALJ denied Gillmore's request for SSI. [AR 14-29.] The ALJ found that Gillmore had not been engaged in substantial gainful activity since September 28, 2005. [AR 16.] The ALJ also found that Gillmore had "a medically severe combination of the following impairments: ankle arthritis, right elbow tendinitis; right dysfunctional shoulder syndrome with shoulder arthritis and spurring, status post repair of partial thickness tear of right AC joint, and mood disorder (major depressive disorder)." [AR 16.]

In so finding, the ALJ noted Gillmore's history of cocaine and methamphetamine use, and her subjective reports to physicians of a history of schizophrenia and bipolar disorder, notwithstanding a lack of any diagnoses in the record from acceptable medical sources. [AR 16.] The ALJ further explained that the mental health diagnoses from Janice Penn, Ph.D.'s office were "totally derivative" of Gillmore's subjective reports of these diagnoses in the past. Moreover, Gillmore was seen presumably by a registered nurse in Dr. Penn office. Dr. Penn herself had a doctorate degree in nursing rather than clinical psychology. Based on the record, the ALJ could not conclude Gillmore had impairments of schizophrenia and bipolar disorder as defined by the Social Security Act. [AR 16.]

At step two, the ALJ decided that the combination of Gillmore's impairments, including her major depressive disorder, were severe impairments. However, the ALJ proceeded to determine, based on the medical records, that Gillmore's mental impairment, standing alone, caused no more than "mild" limitations and therefore, was non-severe. [AR 17-18.] The ALJ further found that none of Gillmore's impairments or combination of impairments met listing criteria. [AR 18.] After comprehensively summarizing the medical records, testimony, and allegations of pain, the ALJ determined Gillmore had the RFC to perform a limited range of sedentary work. [AR 18-27.] Gillmore was unable to perform any of her past relevant work. In considering her younger age, education, work experience, and RFC, the ALJ concluded there were jobs existing in significant numbers in the regional and national economies that Gillmore could perform. In so finding, the ALJ relied on a vocational expert's testimony that Gillmore, with the identified limitations, could perform the sedentary occupations of an addresser, bench hand, and assembler. [AR 28.]

IV. MEDICAL HISTORY AND BACKGROUND

Gillmore supplied two older medical records from 1998 and 2000 to the Appeals Council, that were considered in the Council's denial of the request for review. [AR 6, 367, 375, 377.] Those two records pertained to Gillmore's ankle injury in 1998, and the subsequent treatment and infection. [AR 375, 377.]

The majority of Gillmore's medical records begin in July 2004, just after Gillmore sustained a right elbow injury at work in June 2004. [AR 54.] Gillmore alleged that while working for American Gypsum as a forklift operator, she attempted to clear a jam and ended up hitting her elbow against a piece of metal. Although she continued to work that day and the next, she suffered from increasing pain and swelling of the elbow. After several weeks, her right shoulder also began to hurt. Gillmore apparently continued to work off and on after June 2004 into 2005. She may have been assigned to different positions with American Gypsum during that time frame. She also applied for short term and long term disability, as well as workers' compensation, which she received as of a workers' compensation decision, issued January 8, 2007. [AR 54.]

2004 Medical Records

On July 27, 2004, Gillmore first sought treatment for her right elbow and shoulder. She selected Dr. B.J. Davis, O.D. as her treatment provider. From late July 2004 to December 2004, she saw Dr. Davis about 34 times, sometimes just days apart. Many of Dr. Davis's cursory 18 or 20 word-long treatment notes are illegible. The easiest portions to read are the date, the words — "shoulder," "elbow," "pain," and regular prescriptions for "Lortab." [AR 350-366.]

Some of Dr. Davis's 2004 and 2005 treatment notes, as addressed by the 2006 IME, are summarized later in this recommendation. [AR 187.]

Lortab's generic name: acetaminophen and hydrocodone. "Hydrocodone is in a group of drugs called narcotic pain relievers. Acetaminophen is a less potent pain reliever that increases the effects of hydrocodone. The combination of acetaminophen and hydrocodone (Lortab) is used to relieve moderate to severe pain." www.drugs.com

On October 21, 2006, workers' compensation physicians performed a "Panel Independent Medical Examination" ("IME") of Gillmore, in relation to her claim. The 19-page report, including summaries of examinations by two physicians, is comprehensive. Some of the medical records or correspondence referred to in the "IME" are not part of this administrative record. In addition, the IME report, while acknowledging that Dr. Davis's 2004 and 2005 handwritten notes are difficult to decipher, summarized portions of Dr. Davis's handwritten notes. Gillmore apparently received osteopathic manipulative therapy and diathermy from Dr. Davis, who placed her on off-duty status at times. [AR 189.]

Diathermy is defined as "[t]he therapeutic generation of local heat in body tissues by high-frequency electromagnetic radiation, electric currents, or ultrasonic waves."http://medical-dictionary.thefreedictionary.com

Dr. Davis's note, dated December 30, 2004 [AR 350] indicates that Gillmore had fallen while "four-wheeling" and landed on her tailbone. Apparently, this fall did not contribute to or exacerbate her previous elbow and shoulder injuries.

On several occasions in late 2004, Gillmore also saw a staff member in the office of Janice Penn, Ph.D. On November 9, 2004, Gillmore informed the staff member of previous diagnoses of bipolar disorder and schizophrenia although she was not currently taking any medications for those conditions. She reported that hallucinations had increased after she stopped taking the medications. It is not clear when Gillmore purportedly received these diagnoses, who made the diagnoses, or when medication was prescribed that she later ceased to take. [AR 331.] Gillmore's medical records as of 2004 do not confirm the diagnoses. Gillmore informed Penn's staff that at some point she stopped taking Seroquel because it made her sleepy. [AR 331.] Gillmore was to start taking Zyprexa. [AR 331.]

"This medication is used with or without other medications to treat certain mental/mood conditions (such as bipolar disorder, schizophrenia). Quetiapine [the generic of Seroquel] is known as an anti-psychotic drug (atypical type). It works by helping to restore the balance of certain natural chemicals (neurotransmitters) in the brain." www.webmd.com

Zyprexa "is used to treat certain mental/mood conditions (such as schizophrenia, bipolar mania). It may also be used in combination with other medication to treat depression."www.webmd.com

On November 16, 2004, Gillmore reported to Penn's staff that Zyprexa seemed to be working but she did not want to start Depakote. [AR 331.] On November 22, 2004, Gillmore reported continued positive response to Zyprexa but also said she had an episode of "uncontrollabale crying." Zyprexa was increased. [AR 333.] On December 6, 2004, Gillmore again saw someone in Penn's office and reported stressful events had occurred at work. The pain of her hands and shoulders had increased her depressive symptoms. [AR 333.] The health care provider discussed adding Prozac to the Zyprexa to improve Gillmore's mood, but Gillmore refused because she feared the anti-depressant would have unwanted sexual side effects. [AR 333.]

Depakote "is used to treat seizure disorders, certain psychiatric conditions (manic phase of bipolar disorder), and to prevent migraine headaches." www.webmd.com

2005 Medical Records

Beginning in January 2005 through September 2005, Gillmore saw Dr. Davis on 27 visits, for a total of 61 times over about a year. Again, the records are cursory and partially illegible except for notations as to pain in Gillmore's shoulder, elbow and back. Dr. Davis continued to prescribe Lortab and also, on occasion, prescribed Cymbalta, Flexeril, and Neurontin. Presumably, Dr. Davis continued to provide therapeutic treatment, although Gillmore never reported that any treatment during this time period helped her elbow or shoulder. [AR 337-350.]

Cymbalta or "duloxetine is used to treat major depression and anxiety. In addition, duloxetine is used to relieve nerve pain (peripheral neuropathy) in people with diabetes. It is also used to treat pain caused by a condition called fibromyalgia that affects the muscles, tendons, ligaments, and supporting tissues."www.webmd.com

Flexeril is a muscle relaxant. "It is used along with rest and physical therapy to decrease muscle pain and spasms associated with strains, sprains or other muscle injuries." www.webmd.com

Neurontin or "gabapentin is used with other medications to help control seizures in adults and children (3 years of age and older). It is also used to relieve nerve pain associated with shingles (herpes zoster) infection in adults." www.webmd.com

In January 2005, Gillmore also saw Dr. Penn's staff several times. She complained of feeling "really depressed." She did not think Zyprexa had helped. She had started taking Lamictal. [AR 332.] On January 18, 2005, it appears that Dr. Davis prescribed Lexapro, an anti-depressant, and Cymbalta on February 2, 2005. [AR 348, 349.] An MRI was ordered in February but the results did not show anything "grossly problematic." [AR 347.] Earlier x-rays of Gillmore's shoulder and elbow were unremarkable as well.

Lamictal or "lamotrigine is used alone or with other medications to prevent or control seizures (epilepsy) in people aged 2 and older. It may also be used to help prevent the extreme mood swings of bipolar disorder in people aged 18 and older."www.webmd.com

On September 8, 2005, it was determined that Gillmore reached maximum medical improvement for her injuries, and that as a result of the accident, she was given a 4.99% whole person impairment. She received permanent partial disability benefits. [AR 55.] As of September 8, 2005, there are no other medical records from Dr. Davis.

In October 2005, Gillmore applied for SSI. During an October 7, 2005 interview with disability determination services, she was observed as sullen but cooperative. [AR 116.] Her right arm was in a brace. [AR 116.] She was prescribed an elbow brace.

On November 3, 2005, Gillmore filled out an adult function report. She lived alone in a trailer. [AR 107.] She was able to perform daily activities and personal grooming. She prepared meals, watched television, talked on the telephone, visited her boyfriend, and cared for her two cats. She could not "motorcycle" anymore. [AR 108.] She could dust, vacuum, do the laundry and perform some yard work. [AR 109.] Gillmore went outside two to three times a day. She drove a car, walked, and shopped in stores. She could handle finances. She complained of having trouble lifting, reaching, completing tasks, and using her hands. [AR 112.] Gillmore could not lift more than 2-4 pounds. She did not believe she could pay attention although she was able to follow instructions. She could handle stress. She wore an elbow brace but did not check the box indicating she used a cane. [AR 113-14.]

On November 11, 2005, Gillmore's boyfriend, Martin Montoya, filled out a third-party function report. [AR 96.] He reported that Gillmore could perform the same activities she described in her report. She was not able to lie on her arm or shoulder for long periods due to pain. [AR 97.] Montoya felt she could follow instructions and pay attention. [AR 101.] She got along with authority figures and handled stress fine. [AR 102.] She had a brace or splint, but Montoya did not mark the box indicating Gillmore used a cane. [AR 102.]

On November 25, 2005, Dr. George Higgins completed a physical RFC assessment. [AR 299.] He determined that Gillmore could occasionally lift 20 pounds and frequently lift up to 10 pounds. She could stand, sit or walk 6 hours and was unlimited in the ability to push or pull. Although she alleged right arm and back pain, she performed typical light housework and yardwork. There were frequent limitations in her ability to climb, balance, stoop, kneel and crouch; and occasional limitations in her ability to climb ladders and crawl. Gillmore was limited in reaching in all directions and in handling or fingering. She should not be exposed to extreme cold and hazards. [AR 303.]

On December 23, 2005, Dr. Louis Wynne, Ph.D. performed a psychological examination of Gillmore. [AR 324.] He found Gillmore had poor eye contact and that her affect was flat and blunted, "congruent with depressed and irritable mood." Gillmore claimed she did not know the purpose of the exam or Wynne's speciality. She noted that she had hallucinations in the past but not when taking drugs. Wynne observed Gillmore to have trouble paying attention and concentrating.

Gillmore reported that she was born in Los Angeles and suffered from an abusive childhood. She stated she took "over the counter" drugs for her arm pain, even though she frequently was prescribed narcotic pain killers in 2004-2005. She told Wynne that she had cut her wrists in her early teen years and then 15 or 20 times more. Gillmore was arrested and convicted for solicitation of first degree murder. She served a three-year sentence. [AR 326.] She was arrested two times for domestic violence. Gillmore had seen a mental health professional in her teens and had been admitted for a 90-day drug rehabilitation stay in relation to her use of crystal meth. She also used cocaine for ten years but denied current use.

Wynne questioned her cooperation with the examination. She was not evasive or resistive but appeared to view his questions as intrusive. Still, Wynne did not suspect her to be "malingering." Gillmore appeared to be able to read and understand basic written instructions. Her ability to concentrate and to persist was at least moderately impaired. She was not likely to interact well with the general public and co-workers. She would have difficulty getting along well with supervisors. Wynne diagnosed her with major depression, recurrent, severe, with psychotic features, and polysubstance abuse by history. He assessed her with a GAF of 54. [AR 324-26.] 2006 Medical Records

On January 11, 2006, Dr. Scott Walker completed a Psychiatric Review Technique form. [AR 308.] He found coexisting impairments, those of affective disorders and substance addiction disorders. [AR 308.] With respect to Gillmore's diagnosis of affective disorders, Dr. Walker wrote that a medically determinable impairment was present but it did not satisfy the diagnostic criteria. He further stated: "Major depression vs. Bipolar II (in context of cocaine/meth)." [AR 311.] He noted that the substance abuse disorder was in "alleged remission." [AR 316.]

Regarding functional limitations, Dr. Walker concluded Gillmore had mild restrictions in maintaining social functioning and in maintaining concentration, persistence and pace. He found no other limitations. [AR 318.] In his notes, Dr. Walker commented that Gillmore had described a history of schizophrenia or bipolar diagnoses but that "psychosis while using stimulants could easily be confused with either [diagnosis]." In reviewing medical records, Dr. Walker stated that a primary care provider's February 2005 note indicated Gillmore suffered from depression secondary to work difficulties. Although Gillmore reported previous hallucinations, she did not currently suffer from hallucinations. At this time, Gillmore was not taking any prescription medication. Her GAF was 54. Dr. Walker reasoned that her function reports did not indicate difficulties with concentration or interpersonal relations. Dr. Walker concluded any mental limitation was non-severe. [AR 320.]

On January 17, 2006, Gillmore had a medical appointment with Jenna Hansche at Presbyterian's Southeast Clinic. Gillmore was there to establish a primary care provider. Hansche is a physician's assistant. [AR 287-88.] Gillmore complained of right elbow and shoulder pain that started two years ago. She had worn a brace but it did not help. Hansche noted that Gillmore's primary past medical history was mental health history. She was diagnosed with schizophrenia, bipolar disorder and PTSD by the patient's report. She was not being treated currently for these conditions but was seen by a psychologist and psychiatrist (per reports by Gillmore). She sought a referral to UNM's mental health center. She denied hearing voices, psychosis or hallucinations. Gillmore was not sure of the basis of any of these diagnoses but stated she had a brother with the same problems. Gillmore currently lived alone; both children lived with her ex-husband. She had a boyfriend but he did not live with her. She had smoked cigarettes since she was 13 years old, drank occasionally, and denied any use of drugs. [AR 287.] Hansche prescribed Tylenol #3 for pain and referred Gillmore for mental health treatment.

While Gillmore was in alleged remission from drug use, her denial of any drug use is not accurate based on other reports.

Although Gillmore requested a mental health referral, the records do not indicate she followed up to obtain mental health care at this time.

On January 20, 2006, Gillmore's SSI application was denied. [AR 36.] In the explanation of the denial, the SSA determined that "mentally, no severe MDI can be established." [AR 37.] Physically, she retained the capacity for light level work with limitations. [AR 37.]

On January 23, 2006, Hansche changed Gillmore's prescription for pain to Percocet because she suffered an adverse reaction to Tylenol with codeine. On February 8, 2006, Hansche again prescribed Percocet for the arm/elbow/shoulder pain as Gillmore said it was the only medication that helped. She was taking "one tab" twice a day. [AR 253.]

Percocet "is used to help relieve moderate to severe pain. It contains a narcotic pain reliever (oxycodone) and a non-narcotic pain reliever (acetaminophen)." www.webmed.com

On about February 9, 2006, Gillmore appealed the denial of her SSI application. She alleged her depression was a lot worse. She could not work and had no money since October 2005. However, she complained of no new problems. Her hands were swollen and numb. She stated she had no problems with her personal care, but could not work or ride motorcycles. [AR 90.]

On February 15, 2006, Hansche referred Gillmore to an orthopedic specialist. On April 13, 2006, Gillmore was seen by Dr. Loren Larson, an orthopedic specialist at UNM. Gillmore explained her arm/elbow injury and stated she could not work. She had exhausted short term disability benefits and was applying for long term disability. That request was denied, but she obtained counsel and was also applying for social security benefits. Dr. Larson noted that some tendons had been harvested in the area of the right wrist for a foot reconstruction in 1998. [AR 255.] Dr. Larson observed that Gillmore "seemed" to have significant pain in her right elbow and shoulder. She further noted "certainly appearance of some exaggerated pain during the exam." Dr. Larson recommended physical therapy and prescribed Feldene. [AR 255-56.]

Feldene or "piroxicam is used to reduce pain, swelling, and joint stiffness from arthritis. This medication is known as a nonsteroidal anti-inflammatory drug (NSAID)." www.webmd.com

There is an initial physical therapy note, dated April 17, 2006. [AR 260, 264.] Gillmore was being seen for pain in the right arm and was depressed. She currently was pursuing workers' compensation. Gillmore had difficulty lifting a two-gallon container of milk. She denied taking any medications and was not in counseling. She took things "day by day." She was taking Percocet for pain. [AR 260.]

On April 27, 2006, Gillmore saw Hansche. She had just started physical therapy when she had to go to California because her father passed away. She was unable to attend her next therapy session. Gillmore was taking 3-4 pills of Percocet a day. She was concerned about stopping smoking; she usually smoked a pack a day. Hansche prescribed Percocet again for her tendinitis and bursitis but noted she intended to have Gillmore sign a "pain contract" at the next visit. [AR 247.] There is no corresponding documentation that Gillmore signed a pain contract.

On May 7, 2006, Gillmore was involved in a motor vehicle accident and seen at UNM ER. She was treated for whiplash and prescribed another narcotic-based drug, Vicodin. [AR 233, 237.] X-rays were taken but they were negative. [AR 271.] Gillmore's gate was normal. She suffered from neck and lumbar strain. She was prescribed Percocet. [AR 239, 243.] On May 16, 2006, Donna Tully, P.A., saw Gillmore to follow up on injuries sustained in the accident. Gillmore had seen a chiropractor and would see him five times a week for two weeks. She was taking Percocet and normally took 4 tabs a day, but had increased the amount to 2 tabs, three times daily for neck and back pain. Gillmore was not limping and could walk on her heels and toes. She was assessed with acute cervical sprain, acute lumbar pain with strain and spasm, and chronic elbow pain. She was prescribed Percocet and Baclofen. [AR 244-45.]

Vicodin is also known as Lortab. "This combination medication is used to relieve moderate to severe pain. It contains a narcotic pain reliever (hydrocodone) and a non-narcotic pain reliever (acetaminophen)." www.webmd.com

"Baclofen is used to treat muscle tightness and cramping (spasms) caused by certain conditions such as multiple sclerosis and spinal cord injury/disease. It works by relaxing the muscles." www.webmd.com

On July 10, 2006, Gillmore saw Hansche. She had an appointment to go to court in September related to her workers' compensation claim. She was taking Percocet, one to two tabs every six hours. She stated she was unable to go to physical therapy, because she could not make the copays (of $5.00). She also could not go to the orthopedic specialist because she could not afford those copays either. Chiropractic treatment was helping the injuries suffered in the accident. Hansche prescribed Percocet. [AR 230.]

There are no chiropractic records in the administrative record.

On July 12, 2006, the physical therapist discharged Gillmore from therapy because Gillmore did not make progress and attended no more than two sessions. She did not re-schedule after she failed to appear for therapy on May 5 and May 18. [AR 258.]

On August 16, 2006, Gillmore saw Hansche for a rash on her leg. She had been in the garden and might have been bitten by something. Percocet was prescribed. [AR 228.] On August 23, 2006, Hansche wrote a letter on behalf of Gillmore stating she had severe arm and foot pain and was being treated for these problems. Gillmore was unable to work because of these injuries, for at least the next six months. [AR 263.]

Social security case notes, dated October 3, 2006, indicate that Gillmore had limited range of motion in her neck after the accident but that x-rays of her lumbar back were normal. The back and neck pain were resolving. The right arm became weak after long use. [AR 225.]

On October 21, 2006, an IME was performed, in relation to Gillmore's workers' compensation claim. The report is lengthy and thorough, with respect to treatment of the 2004 work injury, examinations of Gillmore, and testing. The examining panel noted that Dr. Davis diagnosed Gillmore with tendinitis, back pain, and myositis. She was prescribed Lortab and Tylenol. During Dr. Davis's frequent treatment of Gillmore, her symptoms did not improve. She was prescribed Flexeril, Ultracet, and Neurontin in 2004.

Myositis is the general term for swelling of the muscles.http://www.myositis.org

Ultracet "is used to treat moderate short-term pain (5 days or fewer). It contains 2 medications, tramadol and acetaminophen. Tramadol is similar to narcotic pain relievers (opiate-type). It acts on certain centers in the brain to give you pain relief. Acetaminophen is a non-narcotic pain reliever." www.webmd.com

On exam of her elbow, there was no bruising or swelling noted. She initially was restricted from lifting over 15 pounds with her right arm. In September 2004, Dr. Davis released her back to work eight hours a day with the lifting restriction. But, on September 20, 2004, Dr. Davis removed Gillmore from work until October 2004. He prescribed an elbow brace for her and also, Zyprexa. She was given Lortab for pain in October 2004. [AR 187-190.]

The IME panel noted Gillmore's few visits with Dr. Penn [Dr. Penn's staff] regarding mental health issues. The panel also described a Presbyterian Urgent Care note, dated November 15, 2004, when Gillmore had fallen and struck her elbow the day before. The x-ray was normal. She was prescribed Tylenol #3. On November 23, 2004, Dr. Davis prescribed Lortab and performed some therapy. In December 2004, Dr. Penn [her staff] noted Gillmore's depression was worse.

The IME panel discussed a December 12, 2004 medical record, indicating Gillmore had swelling of both hands with pain, after she had thrown 20-pound objects at work. She was issued wrist supports. Dr. Davis released Gillmore to work on December 15, 2004, and indicated it would be a good idea to change jobs. [AR 192.] On December 26, 2004, Gillmore was seen in Urgent Care after she fell from a "four wheeler" earlier that day. She was given injections of pain medications and prescribed Flexeril. [AR 191-92.]

The IME panel also discussed a fitness for duty evaluation performed by Dr. Reeve on March 2, 2005, which is not part of the administrative record. Dr. Reeve reviewed MRI results and opined Gillmore could return to regular work duties. [AR 193.] In April 2005, Dr. Davis prescribed lumbar support, Lexapro, and Lortab. The panel also discussed a Presbyterian Urgent Care note, dated May 30, 2005, where it was noted Gillmore was working at a "third position at her current employment" and wearing braces and back support. She requested either injections or medications for pain. Dr. LaPointe did not prescribe narcotics, nor did he give injections to Gillmore. [AR 193.]

The IME panel noted that Dr. Davis removed Gillmore from work on June 22, 2005, due to pain. Lortab was again prescribed. On June 23, 2005, Dr. Davis completed an additional doctor's statement related to Gillmore's short term disability. He recommended Gillmore be off work for 3.5 weeks to continue therapy and pain medications. This note is not part of the administrative record.

The IME panel discussed a letter written by Dr. Davis on September 8, 2005, in which he stated that Gillmore was diagnosed with right arm tendinitis, bursitis and myositis. She was unable to use her right arm "at all." She continued her prescriptions of Lortab. On November 9, 2005, Dr. Davis signed "disability papers." On December 29, 2005, Dr. Davis filled out a form letter indicating Gillmore was unable to work at all. Her MMI was reached on September 8, 2005 and she was assigned an impairment of 8.5%. [AR 194.] None of these forms or letters from Dr. Davis are part of the administrative record.

The IME panel discussed all of Gillmore's allegations of mental health problems. She was not on any medications for those diagnoses because she stated they would not help or they caused adverse side effects. [AR 197.]

At the time of the panel's examination, Gillmdential Mortgages). However, an advanced discussion of the merits regarding Defendants' alleged violation is unnecessary in light of the Charity I Settlement Agreement. See infra.

Generally, "[a] plaintiff who knowingly and voluntarily agrees to settle his allegations is bound by his agreement." Wyche v. Procter Gamble, 772 F. Supp. 982, 984 (S.D. Ohio 1990) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 n. 15 (1974)). Consequently, a "valid [. . .] settlement bars all right of recovery on the previously existing claim [. . .] and, as a result, any subsequent litigation based upon it is barred." Globe Metallurgical v. Hewelett-Packard Co., 953 F. Supp. 876, 881 (S.D. Ohio 1994) (citing 15a Am. Jur. 2d Contracts § 24), aff'd, 99 F.3d 1139 (6th Cir. 1996). While the Court is mindful of Plaintiff's status as a pro se litigant, in Ohio, pro se litigants are "presumed to have knowledge of the law and correct legal procedure" and are held to the same standard as litigants who retain counsel. Kilroy v. B.H. Lakeshore Co., 111 Ohio App. 3d 357, 363 (Ohio Ct. App. 8th Dist. 1996). Thus, unless a settlement, or a provision of a settlement, is invalid, a pro se plaintiff who negotiates her own settlement is bound by the terms of the settlement. Szabo v. Lepore, Case No. 05-MA-145, 2006 WL 1903131, at *5 (Ohio Ct. App. 7th Dist. July 5, 2006) (holding that the court could not "afford appellant an `out,' so to speak, of a mutually-agreed upon settlement simply because [the plaintiff] chose to proceed with mediation pro se.")

In the instant case, the relevant provision of the Charity I Settlement Agreement provides:

3. Releases. Releasors, hereby unconditionally and irrevocably [. . .] release and forever discharge Releasees from any and all allegations [. . .] whether known or unknown or capable of being known from the beginning of time up to and including the date of this Agreement that are relating to, concerning, or underlying the Loans, the Action, and/or the servicing or administration of such Loans that may be pending or that may be satisfied.

[. . .]

5. Transactional Release. To the extent any allegations arise in connection with entering into this Agreement, Releasors agree to waive and release those allegations [. . .]

( Charity I Settlement Agreement at ¶¶ 3, 5.) The provision forms part of a standard release clause that is not unusual in negotiated settlement agreements. Nothing in the language of the Settlement Agreement, generally, or the release clause, specifically, renders the clause invalid. Therefore, because the allegation asserted by Plaintiff — that Defendants exploited her ignorance of fees during settlement in violation of Ohio consumer protection laws — arises out of the Charity I Settlement Agreement, Plaintiff's allegation is barred the terms of the Settlement Agreement absent a showing by Plaintiff of some other cause for setting aside the language of the Settlement Agreement. See generally, Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio St. 3d 352 (2008) (discussing factors that may contribute to a finding of unconscionability). Here, Plaintiff can point to no evidence in the record that disputes Defendants' contention that she knowingly and voluntarily entered into the Settlement Agreement with Defendants. Consequently, the release clause of the Charity I Settlement Agreement precludes Plaintiff's claim and Defendants' motion for summary judgment on this claim is GRANTED. 4. Plaintiff's Claim: Defendants added Plaintiff's ex-husband to the Junior Loan without Plaintiff's permission in violation of the Charity I Settlement Agreement.

The Settlement Agreement contained the following clause, which Plaintiff signed: "10. Knowing and Voluntary Agreement. The Parties represent that they are represented by counsel of their choosing or that they have independently made their own analysis and decision to enter into this Agreement, and that they consider this Agreement to be fair and reasonable." ( Charity I Settlement Agreement at ¶ 10.)

Plaintiff puts forth two claims arising out of her ex-husband's status as a borrower to the loans, the first of which is Plaintiff's allegation that Defendants added Plaintiff's ex-husband to the post-settlement converted Junior Loan. (Complaint at ¶ 2.) Plaintiff alleges, "no signatures were obtained for [the Junior] [L]oan." ( Id.) Plaintiff's ultimate allegation, presumably, is that, because a co-borrower to the original home equity line of credit failed to sign the modification agreement, the converted loan is fraudulent.

Documents offered in support of summary judgment demonstrate that a quitclaim deed was utilized specifically to allow Plaintiff to unilaterally sign the loan modification agreement that formed part of the Charity I Settlement Agreement. (Defs.' Mem. in Supp. of Mot. for Summ. J., Ex. A12, "Correspondence.") In a conversation between Plaintiff and Defendants' attorney, Plaintiff was informed that the quitclaim deed was needed "in order to go forward with the [Junior Loan] modifications with only [Plaintiff] signing the documents." ( Id.) Thus, it is evident that even prior to the Charity I Settlement Agreement being finalized, Plaintiff was advised of the reason why her ex-husband's signature was unnecessary to execute the loan modification and subsequent conversion. Plaintiff can point to no evidence in the record to the contrary. Additionally, Plaintiff, once again, has failed to establish any damages she sustained as a result of her ex-husband's signature not being required on the Junior Loan modification agreement or the converted loan and, therefore, Defendants' motion for summary judgment on this claim is GRANTED. 5. Plaintiff's Claim: Defendants breached the Charity I Settlement Agreement by failing to remove Plaintiff's ex-husband from the Junior and Senior Loans.

Plaintiff's second allegation arising out of her ex-husband's status as a borrower to the loans is her allegation that Defendants breached the Charity I Settlement Agreement when they failed to release Plaintiff's ex-husband from the Junior and Senior Loans. (Complaint at ¶ 4.) Plaintiff alleges that prior to settlement, Defendants' attorney made specific representations to Plaintiff regarding Plaintiff's post-settlement ability to have her ex-husband released from the Junior and Senior Loans. ( Id.) Plaintiff alleges that Defendants' failure to release her ex-husband from the Junior and Senior Loans constitutes Defendants' breach of the Settlement Agreement. ( Id.) Defendants maintain that the release of Plaintiff's ex-husband was never a term of the Charity I Settlement, and that, even if the issue had been discussed during the Charity I negotiations, such extrinsic evidence is barred by the parole evidence rule. (Defs.' Mem. in Supp. of Mot. for Summ. J. at 16-17.)

The parol evidence rule, as adopted by Ohio, "states that `absent fraud, mistake or other invalidating cause, the parties' final written integration of their agreement may not be varied, contradicted or supplemented by evidence of prior or contemporaneous oral agreements, or prior written agreements.'" Galmish v. Cicchini, 90 Ohio St. 3d 22, 27 (2000) (quoting 11 Williston on Contracts 569-70, § 33.4 (4 Ed. 1999)). The parol evidence rule is recognized not as a rule of evidence, but a rule of substantive contract law. Id. Thus, extrinsic evidence is excluded not for "the reasons ordinarily requiring exclusion, based on the probative value of such evidence or the policy of its admission" but because the evidence "cannot serve to prove what the agreement was, this being determined as a matter of law to be the writing itself." Id. The principal purpose of the parol evidence rule is to protect the integrity of written contracts and to ensure their "stability, predictability, and enforceability[.]" Id. Therefore, the rule "effectuates a presumption that a subsequent written contract is of a higher nature than earlier statements, negotiations, or oral agreements by deeming those earlier expressions to be merged into or superseded by the written document." Id. at 28 (internal citation omitted).

Despite the rule's presumption against the introduction of extrinsic evidence, the parol evidence rule does not prohibit extrinsic evidence under all circumstances. Thus, "a party [is not prohibited] from introducing parol or extrinsic evidence for the purpose of proving fraudulent inducement." Id. Were the contrary true, the rule would "in effect hold that the maxim that fraud vitiates every transaction is no longer the rule; and such a principle would in a short time break down every barrier which the law has erected against fraudulent dealing." Id.

When a party seeks to introduce parol or extrinsic evidence of fraud, "the proffered evidence of fraud must show more than a mere variation between the terms of the written and parol agreement[.]" Id. at 28. In cases where promissory fraud is alleged, as in the instant case, "`the rule excluding parol evidence of collateral promises to vary a written contract does not apply where such contract is induced by promises fraudulently made, with no intention of keeping them.'" Id. at 29 (quoting 37 Am. Jur. 2d Fraud and Deceit § 452). Nevertheless, "the parol evidence rule does apply `to such promissory fraud if the evidence in question is offered to show a promise which contradicts an integrated written agreement. Unless the false promise is either independent of or consistent with the written instrument, evidence thereof is inadmissible.'" Id. at 30 (internal citation omitted).

An examination of the Charity I Settlement Agreement reveals the following consideration:

2. Settlement Consideration:

a. GMACM shall:

i. Modify the Loans pursuant to the Loan Modification Agreements, attached as Exhibits A and B; and

ii. Amend credit going back to April 2008

b. Claimant shall:

i. Pay $1,881.64 to GMACM by August 20, 2008;

ii. Dismiss the Action with prejudice within ten days of the Date of Agreement; and

iii. Release GMACM, ditech, and ResCap as provided for in Paragraph 3

( Charity I Settlement Agreement at ¶ 2.) As evidenced, the formal recitation of consideration between the parties does not contain any reference to Plaintiff's ex-husband. A further examination of the Loan Modification Agreements reveals the same. (Defs.' Mem. in Supp. of Mot. for Summ. J. Ex. A10-11.) Therefore, the Charity I Settlement Agreement lacks any term or textual reference consistent with Plaintiff's allegation that her ex-husband's removal from the junior and Senior Loans was a part of the settlement. Consequently, the only manner in which Defendants could be found to have breached the Charity I Settlement Agreement with respect to Plaintiff's allegation regarding her ex-husband is if there is other extrinsic, admissible evidence that demonstrates the ex-husband's removal became a part of the agreement through some other method.

The Charity I Settlement Agreement contains an integration clause, which states:

13. Complete Agreement. The Parties further agree, declare and represent that no promise, inducement, representation, or agreement not herein expressed has been made to any Party or caused them to enter this Agreement. The Agreement contains the entire agreement between the Parties and the terms of the Agreement are contractual and not a mere recital. This is a fully integrated agreement. It may not be altered or modified by oral agreement or representation or otherwise except by a writing of subsequent date hereto signed by all parties in interest at the time of the alteration or modification.

( Charity I Settlement Agreement at ¶ 13.) The integration clause makes clear that the Charity I Settlement Agreement was intended by both parties to be a fully integrated agreement. Thus, extrinsic evidence of a collateral promise inconsistent with the written embodiment of the Charity I settlement will be barred by the parol evidence rule absent a showing of fraud.

Plaintiff alleges that she was informed in writing prior to entering into the Charity I Settlement that — after settlement — her ex-husband could be removed from the Junior and Senior Loans. (Complaint at ¶ 4.) Plaintiff alleges that the terms were not included in the settlement and that this constitutes fraud. Plaintiff offers no proof of these allegations.

In contrast (and in direct contravention) to Plaintiff's bald assertion, however, Defendants present evidence of an email exchange between Defendant's attorney and Plaintiff. In relevant part, an email dated July 22, 2008, approximately one month before the Charity I settlement, states:

As for removal of your ex-husband, this is not something that will be part of the settlement agreement or the terms of same, nor is this something my clients can do just based on your statements in the e-mail correspondence.

(Correspondence.) Thus, contrary to Plaintiff's allegation of fraud, the email indicates that Plaintiff was fully aware that removal of her ex-husband's name from the loans would not be part of the Charity I Settlement Agreement. The correspondence contains no other collateral guarantees or promises as to the contents of the formal Charity I Settlement Agreement. Consequently, a review of the evidence properly before the Court reveals no evidence of any agreement or conduct between Plaintiff and Defendants that would have the effect of making Plaintiff's ex-husband's removal from the loans a term of the Charity I Settlement Agreement. Accordingly, Defendants' motion for summary judgment on the issue is GRANTED. 6. Plaintiff's Claim: Defendants caused Plaintiff duress and violated Ohio Unconscionable Consumer Sales Acts or Practices by initiating foreclosure proceedings against Plaintiff during settlement negotiations.

Plaintiff's final allegation arising out of the Charity I Settlement Agreement is that Defendants violated Ohio Rev. Code §§ 1345.03-31, 1345.04-05 by initiating foreclosure proceedings against her during settlement negotiations preceding the settlement in Charity I. (Complaint at ¶ 4.) Plaintiff also contends that the initiation of the foreclosure proceeding placed her under duress, and "caused her to "[agree] to several terms that [she] had objected to in writing." ( Id.) Defendants do not deny that foreclosure proceedings were commenced during settlement negotiations, but insist that they had a legal right to do so and because of this legal right, Plaintiff's duress allegation fails as a matter of law. (Defs.' Mem. in Supp. of Mot. for Summ. J. at 17-19.)

An examination of the statutes Defendants are alleged to have violated reveals no applicable statutory provision that, from the record, Defendants could possibly be construed to have violated. Neither Ohio Rev. Code § 1345.03 (Unconscionable Acts or Practices Generally) nor § 1345.031 (Unconscionable Acts of Practices Concerning Residential Mortgages) contain any provision relating to the initiation of foreclosure proceedings during settlement negotiations relating to a residential mortgage, nor any provision that could be construed as generally relating to economic duress or undue influence. Ohio Rev. Code § 1345.04 (Jurisdiction) and § 1345.05 (Consumer Protection Powers and Duties of the Attorney General) are also inapplicable. Thus, unless Defendants' conduct surrounding the settlement in Charity I constitutes duress, this component of Plaintiff's allegation fails.

As for Plaintiff's allegation of duress, Ohio has held that a person who alleges to have been subjected to economic duress must demonstrate "that he or she was subjected to `a wrongful or unlawful act or threat'" and that it "`deprive[d] the victim of his unfettered will.'" Blodgett v. Blodgett, 49 Ohio St. 3d 243, 246 (1990) (quoting 13 Williston on Contracts (3 Ed. 1970) 704, Section 1617); see also Local 17 Int'l Ass'n of Bridge, Structural Ornamental Iron Workers Pension Fund v. Mooney Welding, 993 F. Supp. 615, 619 (N.D. Ohio 1997). "`Merely taking advantage of another's financial difficulty is not duress. Rather, the person alleging financial difficulty must allege that it was contributed to or caused by the one accused of coercion.'" Blodgett, 49 Ohio St. 3d at 246 (quoting 13 Williston on Contracts 708, § 1617 (3d ed. 1970)). Furthermore, Ohio has held that "[i]t is never duress to threaten to do that which a party has a legal right to do" and that "the fact that a threat was made of a resort to legal proceedings to collect a claim which was at least valid in part constitutes neither duress nor fraud such as will avoid liability on a compromise agreement." Gallagher v. Lederer, 86 Ohio App. 181, 183 (Ohio Ct. App. 1st Dist. 1949) (quoting 25 Am. Jur. 2d Duress and Undue Influence § 21).

In the instant case, Plaintiff's allegation fails in light of Defendants' legal right to initiate foreclosure proceedings. It is undisputed that shortly after Plaintiff filed Charity I, she ceased making payments on the mortgage loan and home equity line of credit she had received from Defendants. After Plaintiff failed to make payments on either loan for four months, Plaintiff was in default, and Defendants initiated a foreclosure proceeding pursuant to their rights under the Junior Loan, Senior Loan, and LOC Agreement. (Defs.' Mem. in Supp. of Mot. for Summ. J. at 5.) Thus, while Plaintiff may be correct in her assessment that the foreclosure action placed her at a "disadvantage in negotiations," because she had defaulted on her loans, Defendants had a legal right to initiate foreclosure proceedings, and this component of Plaintiff's claim fails as a matter of law. Consequently, Defendants' motion for summary judgment on this component of Plaintiff's claim is GRANTED.

B. Allegations Arising Out of Defendants' Conduct with Respect to Plaintiff's Applications in 2008 and 2009 to Refinance Loans Owned and/or Serviced by Defendants.

Plaintiff's remaining allegations all arise out of Defendants' alleged conduct surrounding Plaintiff's applications for homeowner assistance programs and/or refinancing made in January, March, and July of 2009. Plaintiff sets forth a myriad of allegations, however, all of her allegations may be distilled into two general categories: (1) allegations arising out of Defendants' alleged failure to provide accurate notice to Plaintiff pursuant to various federal statutes, and (2) allegations arising out of Defendants' alleged discrimination towards Plaintiff. Plaintiff's allegations will be addressed in turn below. 1. Plaintiff's Claim: Defendants violated the reporting requirements of the Fair Housing Act, Equal Credit Opportunity Act, Federal Trade Commission Act, and the Fair Credit Reporting Act.

At the outset, the Court notes that the remaining allegations arise out Plaintiff's alleged attempts to take advantage of various governmental stimulus programs. Participation in these programs, however, does not give rise to causes of action. The Emergency Economic Stabilization Act of 2008 ("EESA") was signed into law on October 3, 2008. Section 110 of the EESA authorizes the Treasury Department to enact homeowner assistance programs. 12 U.S.C. § 5220. The EESA does not give rise to private causes of action. See Mangosing v. Wells Fargo Bank, N.A., Case No. CV-09-0602-PHX-FJM, 2009 WL 1456783, at *1 (D. Ariz. May 22, 2009).

In her Complaint, Plaintiff alleges that defendants' violated the reporting and notification requirements contained in numerous federal statutes, including the Fair Housing Act (FHA), 42 U.S.C. §§ 3601- 3631 (2006), Equal Credit Opportunity Act (ECOA), 15 U.S.C. § 1691 (2006), Federal Trade Commission Act (FTCA), 15 U.S.C §§ 41- 58 (2006), and Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 (2006). (Complaint at ¶¶ 1, 3.) Plaintiff also insists that Defendants violated the Truth in Lending Act (TILA), 15 U.S.C §§ 1601- 1667 (2006), Consumer Credit Protection Act (CCPA), 15 U.S.C §§ 1601- 1613 (2006), and the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601-2613 (2006). (Pl.'s Response Brief at 5-7). Defendants maintain that Plaintiff's Complaint contains only conclusory allegations and consequently, that it violates general rules of pleading and should fail as a matter of law. (Defs.' Mem. in Supp. of Mot. for Summ. J. at 20-23). Notwithstanding this deficiency, Defendants also attempt to substantively respond to each "claim" alleged by Plaintiff. ( Id.)

Plaintiff's "allegations" with respect to the Defendant's purported violations of the Truth in Lending Act, Consumer Credit Protection Act, and the Real Estate Settlement Procedures Act do not appear in the Complaint, but, instead, appear for the first time in Plaintiff's Response Brief. Plaintiff never sought leave to add these allegations. Despite the fact that these allegations have not been properly plead, and in an abundance of caution, the Court will address the arguments relating to these particular statutes.

As a threshold matter, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief[,]" Fed.R.Civ.P. 8(a)(2), in order to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). Although this pleading standard does not require great detail, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level [. . .]." Twombly, 550 U.S. at 555 (citing authorities). In other words, "Rule 8(a)(2) still requires a `showing,' rather than a blanket assertion, of entitlement to relief." Id. at 556, n. 3 (criticizing the Twombly dissent's assertion that the pleading standard of Rule 8 "does not require, or even invite, the pleading of facts").

While pro se litigants are generally afforded a more lenient pleading standard, this standard is not without its limits. See Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989); Sutphin v. McFaul, No. 1:07 CV 933, 2007 U.S. Dist. LEXIS 51195, at *8 (N.D. Ohio July 16, 2007). Accordingly, "[d]istrict courts are not required to conjure up questions never squarely presented to them or to construct full blown allegations from sentence fragments" because "[t]o do so would `require . . . [the courts] to explore exhaustively all potential allegations of a pro se plaintiff, . . . [and] would . . . transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.'" Sutphin, No. 1:07 CV 933, 2007 U.S. Dist. LEXIS 51195, at *8-9 (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1277-78 (4th Cir. 1985)). In Levine v. Citibank, plaintiff alleged multiple violations of the FCRA, however, inter alia, failed to "cite any specific provision of the FCRA which [the d]efendant allegedly violated." Levine v. Citibank, No. 07CV2032 (CAB), 2008 U.S. Dist. LEXIS 5702 at *6 (S.D. Cal. Jan. 24, 2008). The court held that the allegation failed to meet the requirements of Fed.R.Civ.P 8 because "under Fed.R.Civ.P. 8, [the d]efendant need not guess which provision of law [the p]laintiff is suing under, but instead must be put on fair notice of such allegation(s)." Id. (citing Twombly, 127 S. Ct. at 1964).

In the instant case, Plaintiff alleges in her Complaint that Defendants violated the notification requirements of the FHA, ECOA, FTCA, and FCRA. With respect to three of these statutes — the FHA, ECOA, and FCRA — Plaintiff does not provide any guidance as to the specific provision of the statute under which she is seeking relief, but instead couches her allegations in conclusory terms. The result is that Defendants (and the Court) are left to guess which portions of the statutes they are accused of violating. This does not satisfy even the liberal pleading standard afforded to pro se litigants.

See, e.g., Complaint at ¶ 4 ("DEFENDANT is in default under all required rules of the Fair Housing Act (Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988), 42 U.S.C. §§ 3601- 3619; the Equal Credit Opportunity Act, 15 U.S.C. § 1691-691f; and the Federal Trade Commission Act, 15 U.S.C. §§ 45(A)(1), 45(m)(1)(A), 49, 53(b), 56(a), and 57(b). [sic] Fair Credit Reporting Act. DEFENDANT failed to give any explanation as refusal to follow through with contract, refusal to issue notice of eligibility/ineligibility, with total disregard to PLAINTIFF, and therefore, a Civil Rights violation is constituted to have taken place.")

Despite these failures, Plaintiff does levy one allegation against Defendants that "contains the specific provision of law [P]laintiff is suing under." Levine, 2008 U.S. Dist. LEXIS 5702, at *6. Specifically, Plaintiff alleges that Defendants violated sections 45(a)(1), 45(m)(1)(A), 49, 53(b), 56(a), and 57(b) of the FTCA, however, this allegation is also insufficient to survive summary judgment. Though the allegation does state the specific provision of law under which [P]laintiff is suing, the allegation merely concludes that Defendants are guilty of violating the provisions — without articulating any identifiable reason to support Plaintiff's allegation.

Generally this Court would grant leave to amend when a request for relief is struck pursuant to Fed.R.Civ.P. 8. However, with respect to Plaintiff's allegations under the FHA, ECOA, FCRA, FTCA and — despite not appearing in the Complaint — Plaintiff's attempt to seek relief under TILA, CCPA, and RESPA, granting leave to amend would ultimately be futile. "Futility, alone, can constitute a satisfactory ground for denying a motion for leave to amend." See generally, Wiedbrauk v. Lavigne, 174 Fed. Appx. 993 (6th Cir. 2006) (affirming denial of motion to amend when amendment would have been futile). As correctly asserted by Defendants, the FHA and FCRA do not require a response to an applicant after submitting an application for refinance. Additionally, "no private cause of action exists under the FTCA." Sharwell v. Selva, 4 Fed. App'x 226, 227 (6th Cir. 2001) (citing Holloway v. Bristol-Myers Corp., 485 F.2d 986, 988 (D.C. Cir. 1973)). Thus, Plaintiff's "claim" that Defendants violated the FTCA fails as a matter of law. Furthermore, though the ECOA requires creditors to notify applicants of adverse action in certain circumstances, 15 U.S.C. § 1691(d) (2006), Defendants complied with this requirement when applicable to Plaintiff's applications. (Defs.' Mem. in Supp. of Mot. for Summ. J. Ex. D-1, "Credit Denial.")

Plaintiff's attempts to seek relief under TILA, CCPA, and RESA are also futile. Even if Plaintiff's potential allegations under TILA, CCPA, and RESPA were properly pled in accordance with Fed.R.Civ.P. 8, Plaintiff has failed to articulate any harm that would amount to damages caused by Defendants' alleged failure to comply with each statute.

For these reasons, Defendants' motion for summary judgment with respect to all of Plaintiff's allegations arising out of Defendants' alleged violation of the reporting and notification requirements of the FHA, ECOA, FTCA, and FCRA is GRANTED. 2. Plaintiff's Claim: Defendants unlawfully discriminated against Plaintiff in violation of the Fair Housing Act and Equal Credit Opportunity Act.

Plaintiff alleges that that Defendants unlawfully discriminated against her in violation of the FHA and ECOA when Defendants "aware that Plaintiff was African American [. . .] cancelled Plaintiff's loan applications without just cause, failed to respond to requests by Plaintiff, and failed to issue notification as to why they would not afford Plaintiff equal treatment as any other race and class of individuals would reasonably receive." (Pl.'s Response Brief at 7). Defendants maintain in their Reply that the loan representatives who interacted with Plaintiff had no way of knowing Plaintiff's race because Plaintiff failed to disclose her race on each loan application, and even if the representatives did have knowledge of her race it would be insufficient to create a genuine issue of material fact as to Defendants' knowledge of her race. (Defs.' Reply at 7-10; Defs.' Mot. for Summ. J. Ex. D, Affidavit of Ardeshir Khoei at ¶ 8.)

The ECOA was created with the purpose to "`eradicate credit discrimination waged against women, especially married women whom creditors traditionally refused to consider for individual credit.'" Midkiff v. Adams County Reg'l Water Dist., 409 F.3d 758, 771 (6th Cir. 2005) (quoting Mays v. Buckeye Rural Elec. Coop., Inc., 277 F.3d 873, 876 (6th Cir. 2002)). In accordance with this purpose, the ECOA provides that it shall be unlawful "for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction-(1) on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract)[.]" 15 U.S.C. § 1691(a)(1) (2006). Thus, in order for Plaintiff's allegation to withstand summary judgment, Plaintiff must present "significant probative evidence in support of [her] complaint to defeat the motion for summary judgment." Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993).

In the instant case, Plaintiff has failed to present "significant probative evidence" that Defendants used her race as a basis for rejecting the applications she made under various homeowner assistance plans. Defendants argue, and Plaintiff admits, that Plaintiff did not specify her race on any loan applications submitted to Defendants. Plaintiff nevertheless asserts that because she submitted a driver's license photo and her race was disclosed in loan paperwork in 2004 and 2005, Defendants knew this information and used it to unlawfully discriminate against her because of her race during the pendency of her applications years later. Nothwithstanding Plaintiff's unsupported speculation to the contrary, Defendants have supported their motion with unrefuted evidence that race played no role in the decision. ( See Khoei Aff. at ¶ 8.)

Even accepting plaintiff's unsupported theory as true — that Defendants sifted through old applications and loan documents in search of evidence of Plaintiff's race — plaintiff has failed to offer any evidence that Defendants used this knowledge as a basis for rejecting her loan applications.

As for Plaintiff's allegation that Defendants unlawfully discriminated against her in violation of the Fair Housing Act, Plaintiff has failed to satisfy even the liberal pleading standard afforded to pro se litigants. See Wells, 891 F.2d at 594; Sutphin, 2007 U.S. Dist. LEXIS 51195, at *8 (holding that pro se plaintiffs are generally afforded a liberal pleading standard, though not a standard without limits). Plaintiff's allegation is conclusory and falls short of providing Defendants with adequate notice as to which provision of the FHA Plaintiff seeks relief under. Furthermore, even if Plaintiff's allegation were properly pled, it would ultimately be futile for the same reasons previously advanced.

Thus, because there exists no genuine issue of material fact as to Plaintiff's allegations under the FHA or ECOA, Defendants' motion for summary judgment on the issue is GRANTED.

III. CONCLUSION

For the reasons set forth above, Defendants' motion for summary judgment is GRANTED as to all of Plaintiff's claims and allegations. This case is closed.

IT IS SO ORDERED.

Dated: September 14, 2010