Opinion
No. 2:19-CV-00024-FL
12-17-2020
Michael Brooks, Plaintiff, v. Andrew Saul, Commissioner of Social Security, Defendant.
Memorandum & Recommendation
Plaintiff Michael Brooks challenges Administrative Law Judge ("ALJ") Gary Brockington's denial of his application for social security income. Brooks claims that ALJ Brockington erred in (1) failing to accord proper weight to the disability rating by the Department of Veterans Affairs ("VA") and (2) evaluating the medical opinion evidence. Both Brooks and Defendant Andrew Saul, Commissioner of Social Security, have moved for judgment on the pleadings in their favor. D.E. 24, 28.
After reviewing the parties' arguments, the court has determined that ALJ Brockington erred in his determination. The undersigned cannot conclude that ALJ Brockington offered enough reasons to accord less than substantial weight to the VA disability finding. And his evaluation of the medical opinion evidence warrants further consideration. The undersigned magistrate judge thus recommends that the court grant Brooks's motion, deny the Commissioner's motion, and remand this matter to the Commissioner's for further consideration.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In May 2016, Brooks applied for disability benefits, alleging a disability that began in July 2008. After the Social Security Administration denied his claim at the initial level and upon reconsideration, Brooks appeared before ALJ Brockington for a hearing to determine whether he was entitled to benefits. ALJ Brockington determined Brooks had no right to benefits because he was not disabled. Tr. at 15-26.
ALJ Brockington found that Brooks's osteoarthritis in his bilateral shoulders and knees, right shoulder dysfunction, obstructive sleep apnea ("OSA"), gastroesophageal reflux disease ("GERD"), insomnia, obesity, depressive disorder, anxiety disorder, and post-traumatic stress disorder ("PTSD") were severe impairments. Tr. at 18. ALJ Brockington also found that Brooks's impairments, either alone or in combination, did not meet or equal a Listing impairment. Id.
ALJ Brockington then determined that Brooks had the RFC to perform medium work with some limitations. Tr. at 20. He can occasionally push, pull, and operate hand controls with his right upper extremity. Id. Brooks can frequently push, pull, and operate foot controls with his bilateral lower extremities. Id. Brooks can occasionally climb ramps and stairs, but he cannot climb ladders, ropes, or scaffolds. Id. Brooks can frequently stoop, kneel, and crouch, and he can occasionally crawl. Id. He can frequently reach, but never overhead, with his right upper extremity, but he can frequently reach overhead with his left upper extremity. Id.
Brooks can have occasional exposure to poorly ventilated areas and to pulmonary irritants such as dust, odors, fumes, and gases. Id. He can occasionally be exposed to unprotected heights or hazardous moving, mechanical parts. Id.
Brooks is limited to simple, routine, repetitive tasks not performed at a production rate pace. Id. He can make simple, work-related decisions. Id. Brooks can have occasional interaction with the public and frequent interaction with coworkers and supervisors. Id. And he would be off task no more than ten percent of the workday, together with normal breaks. Id.
ALJ Brockington concluded that Brooks could not perform his past relevant work as a security guard. Tr. at 24. But considering his age, education, work experience, and RFC, ALJ Brockington found that jobs existed in significant numbers in the national economy that Brooks could perform. Tr. at 25. These include salvage laborer, machine package sealer, and floor waxer. Id. Thus, ALJ Brockington found that Brooks was not disabled. Tr. at 26.
After unsuccessfully seeking review by the Appeals Council, Brooks commenced this action in July 2019. D.E. 1.
II. Analysis
A. Standard for Review of the Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it is equivalent to a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Brooks is an Army veteran who has received treatment for several impairments. During service, Brooks fell while repelling from a training tower, dislocating his shoulder. And he has suffered from anxiety and PTSD after witnessing the death of a fellow soldier. Tr. at 296.
A 2009 x-ray of Brooks's right shoulder showed widening of the acromioclavicular ("AC") joint without cephalocaudal subluxation, degenerative changes of the AC joint, and moderate glenohumeral arthrosis. Tr. at 1096. Seven years later, x-rays revealed moderate degenerative changes in the glenohumeral joint on the right side with mild degenerative changes to the AC joint on the left side. Tr. at 1090.
A May 2016 x-ray of Brooks's left knee showed mild medial joint space narrowing and osteophytosis. Tr. at 310. Nine months later, Dr. Phillip Lenoach, an orthopedist, evaluated Brooks. Tr. at 1491. Dr. Lenoach noted an antalgic gait and significant tenderness in Brooks's right knee. Id. He remarked that an MRI two months earlier showed changes in the medial tibial plateau and significant degenerative changes in the cartilage. Id.
In February 2018, Brooks underwent an evaluation at Riverside Orthopedics. Tr. at 1280-83. A right knee x-ray showed mild to moderate osteoarthritis with medial joint space narrowing. Id. Providers assessed Brooks with primary osteoarthritis of the right knee and administered an injection. Id.
Since 2016, Brooks has received regular mental health treatment. Tr. at 1288-1557. Brooks has reported symptoms including anxiety, depression, irritability, anger, and trouble with focus and concentration. Id. Providers have assessed Brooks with PTSD and major depressive disorder. Id. His treatment has included medications, psychotherapy, and group therapy. Id.
Dr. Harold Smuckler, Brooks's primary care provider, issued a Medical Source Statement in March 2017. Tr. at 1098-99. Dr. Smuckler remarked that a 2016 x-ray showing moderate degenerative changes in the glenohumeral joint on the right and degenerative changes in the AC joint on the left limited Brooks's ability to reach, lift, pull, or carry. Id. Dr. Smuckler also observed that the 2016 MRI revealing tricompartmental changes in the left knee, coupled with Brooks's reports of intermittent knee pain that worsened with activity or weight-bearing limited his ability to stand or walk for more than ten minutes at a time. Id.
Because OSA left him with frequent fatigue and diminished focus, Dr. Smuckler concluded that Brooks could not multitask or perform intellectually demanding tasks or memory-based activities. Id. And Dr. Smuckler concluded that the combination of physical and mental impairments rendered Brooks unable to engage in competitive employment. Id.
Dr. Manana Lapidus, a psychiatrist, issued a Medical Source Statement in April 2017. Tr. at 1103-05. Brooks's symptoms included poor memory, depressed mood, insomnia, low energy, poor concentration, and psychomotor retardation. Id. Brooks also had problems with dysregulated mood, irritability, trouble controlling his anger, and difficulty being around others. Id.
Dr. Lapidus noted Brooks's diagnoses of PTSD, severe and recurrent major depressive disorder, anxiety disorder, and a mood disorder. Id. Although medication had been partly beneficial, Brooks remained anxious and experience disturbed sleep, lack of motivation, low energy, poor concentration, flashbacks, and an increased startle response. Id. Dr. Lapidus found that Brooks may be unemployable because of his symptoms. Id.
In July 2018, the VA assessed Brooks with a combined disability rating of 100%. Tr. at 296-302. This included a 70% rating for depressive and anxiety disorders, and a 60% rating for recurrent right shoulder dislocation with degenerative arthritis. Id. The VA also found that Brooks was entitled to individual unemployability, effective March 2016. Id.
D. Veterans Affairs Disability Rating
Brooks contends that ALJ Brockington erred in failing to accord substantial weight to the VA disability decision, arguing that ALJ Brockington's reasons to assign limited weight to this evidence ignores Fourth Circuit case law. The Commissioner asserts that ALJ Brockington's determination supports his decision to give the VA disability rating less than substantial weight. The court finds that ALJ Brockington's explanation for assigning the VA disability determination less than substantial weight does not withstand scrutiny under controlling law in this Circuit.
As provided by 20 C.F.R. § 404.1504 and further explained in Social Security Ruling ("SSR") 06-03p, "a determination made by another agency that [the claimant is] disabled or blind is not binding on" the Social Security Administration. 20 C.F.R. § 404.1504. Rather, "the ultimate responsibility for determining whether an individual is disabled under Social Security law rests with the Commissioner." SSR 06-03p.
The Fourth Circuit has addressed the value of disability findings by other agencies. Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012). It noted that while not binding on the SSA, "another agency's disability determination 'cannot be ignored and must be considered.'" Bird, 699 F.3d at 343. The Fourth Circuit observed that often times the disability assessments of other agencies such as the VA serve the same governmental purpose of providing benefits to persons unable to work, evaluate a claimant's ability to perform full-time work, analyze a claimant's functional limitations, and require extensive medical documentation to support the claims. Bird, 699 F.3d at 343. The Fourth Circuit therefore concluded that "in making a disability determination, the SSA must give substantial weight to a VA disability rating[.]" Id. Assigning less weight to another governmental agency's disability determination may be warranted "when the record before the ALJ clearly demonstrates that such a deviation is appropriate." Id.; see also Woods v. Berryhill, 888 F.3d 686, 692 (4th Cir. 2018) (extending Bird's holding to state agency disability determinations).
General differences between VA disability ratings and Social Security disability determinations are not a sufficient basis for discrediting VA disability ratings. Because these differences exist in all cases, allowing an ALJ to discount a VA disability rating for this reason would eviscerate the presumptive standard established in Bird. See Nguyen v. Colvin, No. 5:14-CV-227-D, 2015 WL 5062241, at *6-7 (E.D.N.C. Aug. 10, 2015) (discussing the Commissioner's analysis of an Office of Personnel Management ("OPM") disability rating and noting "the reasons cited by the Commissioner—different rules and different standards—would apply to every case and thus cannot be relied upon to avoid scrutiny of the OPM's decision under Bird's new presumptive standard"), adopted, 2015 WL 5089060 (E.D.N.C. Aug. 27, 2015).
ALJ Brockington determined that the VA disability rating which found Brooks 90% disabled—including 50% disabled for his shoulder conditions and 70% disabled for his anxiety disorder—rendering him individually unemployable, deserved limited weight. Tr. at 24. ALJ Brockington remarked that the VA and SSA disability programs are different, in part because the VA does not follow a five-step evaluation analysis, determine a claimant's RFC, or assess the claimant's ability to perform other work. Id. Citing Bird, ALJ Brockington concluded that it was appropriate to deviate from the substantial weight presumed due to the VA disability finding. Id.
The VA later increased these percentages were to 70% for his mental health conditions and 60% for his shoulder impairments, for a combined disability rating of 100%. Tr. at 296-302.
Brooks contends that ALJ Brockington's finding violates Bird. Brooks points out that referencing "different programs" or that the disability finding is not binding on the Commissioner's assessment does not offer adequate explanations to justify a deviation from the substantial weight presumed due for disability findings by other agencies. The court agrees that ALJ Brockington's consideration of this evidence goes against Fourth Circuit precedent and warrants more review.
ALJ Brockington's explanation of why he assigned no significant evidentiary weight to the VA disability assessment fails to "clearly demonstrate" that deviation was proper. While Bird permits an ALJ to assign lesser weight to a VA disability finding, the reasons for doing so must be sound. See Nguyen, 2015 WL 5062241, at *6-7. So, although ALJ Brockington cited Bird, he did not abide by its holding.
And ALJ Brockington's review of the medical evidence does not rehabilitate his flawed consideration of the VA disability rating. ALJ Brockington's consideration of the VA disability rating does not suggest that Brooks's impairments improved or he had other evidence which the VA lacked. Although ALJ Brockington noted that medical evidence and hearing testimony supported a finding that Brooks could perform a reduced range of medium work, he did not evaluate that medical evidence against the VA disability decision or explain how the evidence supported his conclusion but not that of the VA.
It is not for the reviewing court to weigh the evidence but merely to conclude whether the ALJ's finding has the support of substantial evidence. Here, it does not.
Given that the VA premised its disability finding upon many of the same records ALJ Brockington considered, it is hard to determine how opposite conclusions resulted where no meaningful explanation is offered to support the divergence. Differing results between the two disability inquiries may be appropriate. But where the proffered explanations are cursory, the undersigned cannot conclude that substantial evidence warrants assigning only no significant evidentiary weight to another disability determination
Mindful of the parallel purpose and inquiry of the VA and SSA programs, coupled with the substantial weight presumed due to the VA finding under Bird, further consideration of the VA disability determination(s) is warranted here. See Northern v. Colvin, Case No. 1:15-CV-445, 2016 WL 5956636, at *4 (M.D.N.C. Oct. 12, 2016) (remanding case in which ALJ gave VA disability determination limited weight, noting noted essentially normal-to-moderate physical findings, normal mental status examination, wide and varying activities of daily living, and a GAF score reflective of only moderate limitations. The court found that ALJ "summarily dismissed" VA conclusion finding that claimant was 100% disabled "without either parsing that conclusion into its component findings or considering the rationale behind those findings."); Gannon v. Colvin, C/A No. 9:15-3250-RMG-BM, 2016 WL 5339698, at *6-7 (D.S.C. Aug. 22, 2016) (the ALJ's minimal discussion of the VA rating was not enough to show that a deviation from a finding of substantial weight was appropriate, and remanded for a more proper weighing under the methodology outlined in Bird), adopted by 2016 WL 5338504 (Sept. 21, 2016); Riggins v. Colvin, Case No. 0:15-2429-BHH-PJG, 2016 WL 4249509, at *4 (D.S.C. July 25, 2016) (remanding matter where the ALJ's "limited reasons and discussion as to the finding that the VA determination was entitled to little weight because court could not determine whether the conclusion was supported by substantial evidence."). While the ALJ may conclude that the VA decision is not entitled to substantial weight, she must sufficiently explain any reason to deviate so as to allow a reviewing court to determine whether that finding is supported by substantial weight.
In sum, the lack of sufficient reasoning to deviate from the VA disability finding and to decline to afford substantial weight to it warrants remand under Bird. Thus, the court finds in Brooks's favor on this issue.
On remand, the ALJ might well conclude on this record that Brooks's approval for VA disability benefits deserves significant, lesser, or no weight. But that analysis is for the ALJ to perform in the first instance as it is not the role of a reviewing court to substitute its own analysis of the evidence. Persaud v. Colvin, No. 2:12-CV-661, 2014 WL 198922, at *11 (E.D. Va. Jan. 14, 2014). --------
E. Medical Opinion Evidence
Brooks also asserts that ALJ Brockington erred in considering Dr. Smuckler's Medical Source Statement. The Commissioner contends that ALJ Brockington properly explained why this provider's evaluation deserved only limited weight. The undersigned finds that ALJ Brockington's consideration of this medical opinion lacks the support of substantial evidence.
"Medical opinions are statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [a claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). An ALJ must consider all medical opinions in a case in determining whether a claimant is disabled. See id. §§ 404.1527(c), 416.927(c); Nicholson v. Comm'r of Soc. Sec., 600 F. Supp. 2d 740, 752 (W.D. Va. 2009) ("Pursuant to 20 C.F.R. §§ 404.1527(b), 416.927(b), an ALJ must consider all medical opinions when determining the disability status of a claimant.").
Opinions of treating physicians and psychologists on the nature and severity of impairments must be given controlling weight if they are well supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996); Ward v. Chater, 924 F. Supp. 53, 55-56 (W.D. Va. 1996); SSR 96-2p, 1996 WL 374188 (July 2, 1996). Otherwise, the opinions are to be given significantly less weight. Craig, 76 F.3d at 590. In determining the weight to be ascribed to an opinion, the ALJ should consider the length and nature of the treating relationship, the supportability of the opinions, their consistency with the record, any specialization of the source of the opinions, and other factors that tend to support or contradict the opinions. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
The ALJ's "decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the [ALJ] gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p, 1996 WL 374188, at *5; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Ashmore v. Colvin, No. 0:11-2865-TMC, 2013 WL 837643, at *2 (D.S.C. Mar. 6, 2013) ("In doing so [i.e., giving less weight to the testimony of a treating physician], the ALJ must explain what weight is given to a treating physician's opinion and give specific reasons for his decision to discount the opinion.").
Opinions from "other sources" who do not qualify as "acceptable medical sources" cannot be given controlling weight but are evaluated under the same factors used to weigh the assessments of physicians and psychologists. SSR 06-03p, 2006 WL 2329939, at *2, 4 (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (identifying "other sources"). An ALJ must explain the weight given opinions of "other sources" and the reasons for the weight given. SSR 06-03p, 2006 WL 2329939, at *6; Napier v. Astrue, No. TJS-12-1096, 2013 WL 1856469, at *2 (D. Md. May 1, 2013).
Similarly, evaluations from sources who neither treat nor examine a claimant are considered under the same basic standards as evaluations of medical opinions from treating providers whose assessments are not given controlling weight. See 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e). The ALJ must explain the weight given to these opinions. Id.; Casey v. Colvin, No. 4:14-CV-00004, 2015 WL 1810173, at *3 (W.D. Va. Mar. 12, 2015), adopted by, 2015 WL 1810173, at *1 (Apr. 21, 2015); Napier, 2013 WL 1856469, at *2.
More weight is generally given to the opinion of a treating source over the opinion of a non-treating examining source. Similarly, the opinion of an examining source is typically given more weight than the opinion of a non-examining source. See 20 C.F.R. §§ 404.1527(c)(1), (2), 416.927(c)(1), (2). Under appropriate circumstances, however, the opinions of a non-treating examining source or a non-examining source may be given more weight than those of a treating source. See, e.g., Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001) (affirming ALJ's attribution of greater weight to the opinions of a non-treating examining physician than to those of a treating physician); SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources.").
Opinions from medical sources on issues reserved to the Commissioner, such as disability, deserve no special weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); SSR 96-5p, 1996 WL 374183, at *2, 5 (July 2, 1996). But the ALJ must still evaluate these opinions and give them appropriate weight. SSR 96-5p, 1996 WL 374183, at *3 ("[O]pinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator must evaluate all evidence in the case record that may have a bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner.").
As noted above, Dr. Smuckler was Brooks's primary care provider. He found that Brooks had a limited ability to reach, lift, pull, or carry, could walk or stand for only ten minutes at a time, and could not multitask or perform intellectually demanding tasks or memory-based activities. ALJ Brockington gave limited weight to these conclusions, finding that they conflicted with the evidence and were not expressed in vocationally relevant terms. Tr. at 23. But ALJ Brockington offered no further explanation in his consideration of Dr. Smuckler's assessment.
The undersigned cannot conclude that substantial evidence supports ALJ Brockington's evaluation of Dr. Smuckler's opinion. First, at least one of his findings, that Brooks can stand or walk for ten minutes at a time, is expressed in vocational terms. Thus, ALJ Brockington erred in rejecting all of Dr. Smuckler's findings on this basis.
The undersigned cannot agree that Dr. Smuckler's assessment conflicts with the other evidence. ALJ Brockington did not identify the evidence contradicting Dr. Smuckler's conclusions. A review of his decision reveals several pieces of evidence that confirm a finding that Brooks is limited by his impairments and attendant symptoms relating to his knees, shoulders, and mental abilities. And objective testing and examinations have borne out Brooks's allegations of limited functional ability.
Although ALJ Brockington limited Brooks's reaching, he failed to discuss Dr. Smuckler's restrictions in lifting, pulling, or carrying. It is not unreasonable that Brooks's shoulder impairment and related symptoms, on which there is significant evidence, would affect other postural movements, as Dr. Smuckler found. Despite the contrary evidence in the record, ALJ Brockington did not address the limitations that Dr. Smuckler assessed. This constitutes error and justifies remand. See Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (finding that remand may be appropriate where an ALJ fails to assess a claimant's capacity to perform relevant functions, despite contradictory evidence in the record).
The RFC may or may not reflect the mental limitations Dr. Smuckler found, because ALJ Brockington's review of these restrictions is cursory. So it is unclear whether he adopted, rejected, or overlooked the limitation. In such circumstances, remand is appropriate. See Woods, 888 F.3d at 694 ("The ALJ concluded that [Plaintiff] could perform "medium work" and summarized evidence that he found credible, useful, and consistent. But the ALJ never explained how he concluded—based on this evidence—that [Plaintiff] could actually perform the tasks required by "medium work," such as lifting up to 50 pounds at a time, frequently lifting or carrying up to 25 pounds, or standing or walking for six hours.").
In sum, the undersigned cannot conclude that substantial evidence supports ALJ Brockington's consideration of Dr. Smuckler's assessment. The court should thus remand the matter for further consideration of this issue.
III. Conclusion
For all these reasons, the undersigned recommends that the court grant Brooks's Motion for Judgment on the Pleadings (D.E. 24), deny Saul's Motion for Judgment on the Pleadings (D.E. 28), and remand this matter to the Commissioner's for further consideration.
The Clerk of Court must serve a copy of this Memorandum and Recommendation ("M&R") on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals. Dated: December 17, 2020
/s/_________
Robert T. Numbers, II
United States Magistrate Judge