503 F.Supp.2d 1226 (2007)
Laurie YOUNG and Amber McMillin, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
CERNER CORPORATION, Defendant.
No. 06-0321-CV-W-NKL.
United States District Court, W.D. Missouri, Western Division.
January 18, 2007.
*1227 Alan G. Crone, James J. Webb, Jr., Crone & Mason, PLC, Memphis, TN, Michael F. Brady, Overland Park, KS, Thomas H. Brill, Mission Hills, KS, for Plaintiffs.
Katherine R. Sinatra, Lori Renee Schultz, Shook Hardy & Bacon LLP-Grand, Kansas City, MO, for Defendant.

ORDER
LAUGHREY, District Judge.
Plaintiffs Laurie Young ("Young") and Amber McMillin ("McMillin") are former employees of Defendant Cerner Corporation ("Cerner"). Cerner considered both to be exempt employees under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., meaning that they were salaried and did not receive overtime pay for working more that 40 hours per week. Plaintiffs bring this putative representative action under the FLSA to recover overtime pay on behalf of all past and present "Staff Associates" treated as exempt by Cerner from April 14, 2003, forward. Pending before the Court, is Plaintiffs' Motion for Conditional Certification of Representative Action [Doc. # 39]. For the reasons set forth below, the. Motion is denied.
I. Factual Background
Cerner is in the healthcare information technology business, providing software to more than 1,500 healthcare organizations ranging from single-doctor practices to entire countries. The company employs approximately 5,700 associates, each of whom works in various sub  and sub-sub-divisions of 17 Center Organization Units such as Intellectual Property (IP) Solution Sales, Client. Operations, IP Knowledge and Discovery, and Functional Operations. More than 1000 Cerner associates hold a management or supervisory position.
Cerner classifies all of its employees in one of seven compensation levels, with Level 7 being the lowest tier. Plaintiff Young worked for Cerner as a Level 6 software engineer from September 2004 to October 2005. She served on a team with approximately 10 other associates. Her duties and responsibilities included writing and configuring computer code. She was expected to define client needs, provide input to functional design and engage in testing and troubleshooting. Young admits that she did not perform her job in a satisfactory manner because she did not have the skills, knowledge or experience necessary to meet the expectations of her position. She also admits that Cerner misunderstood the extent of her knowledge and experience when she was hired. She "felt like [she] had a kindergartner's level of experience . . . and was thrown into a college level. . . ." Young Depo., p. 63:11-18. Young submitted her letter of resignation on September 20, 2005.
Plaintiff McMillin worked for Cerner from November 2003 to July 2004 as a Level 7 business analyst on the Cerner Technologies Operations Team. She was required to research, analyze and make recommendations for process changes and increasing efficiency across Cerner. Her specific job duties and responsibilities were determined in large part by the project on which she was working. For example, she was in charge of creating and launching the Cerner Technologies Virtual Binder, an internal web page used by Cerner *1228 Technologies associates. For that project, she interviewed executives and key associates to create the necessary web pages and design the website to meet each Group's needs. She was also the project manager on the Freight Analysis project, the objective of which was to determine a freight calculation that Cerner could charge its clients to ensure that Cerner did not lose or benefit from freight costs, and to examine risks before the project was deployed to eliminate or decrease risk to Cerner. Her recommendations and strategy are still being used by Cerner Technologies today.
When McMillin began working for the company in April 2001 in a different capacity than she worked at times relevant to this law suit, she received a document called "Compass Culture" during orientation which classified Level 7 and Level 6 employees, the lowest two levels, as ."Staff Associates." This document is no longer used by Cerner and has not been in circulation since 2001. Other than its appearance in Compass Culture, neither Plaintiff can recall the term "staff associate" ever being used in any Cerner publication or by any Cerner personnel.
Plaintiffs seek to represent "All present or former employees of Cerner Corporation employed as Staff Associates (Level 7 and Level 6 employees) who worked over 40 hours a week and who were also treated as exempt employees under the FLSA at any time from April 14, 2003, to the present date." Such a class would include over 4,500 current and former exempt Cerner associates who were compensated at Level 6 or 7 from April 2003 to the present. These 4,500-plus associates work in different facilities and countries and hold more than 300 different titles with diverse job duties and responsibilities. Cerner considers all members of the putative class to fall within one or more of the following FLSA exemptions: Executive, Administrative, Professional, Computer Professional, Creative Professional, and Outside Sales. Examples of members of the putative class include Dr. Prajesh Kothawala, M.D., a Medical Research Associate; Kendrick Cummings, a Sales Executive; and Michelle Fisher, Corporate Legal Counsel.
Plaintiffs request expedited court-supervised notice procedures that come with conditional certification to broaden their search for other past and present Cerner employees who may want to opt in.
II. FLSA Certification
Section 7 of the FLSA mandates that an employer may not subject non-exempt employees to a work week in excess of 40 hours unless the employee is compensated for her overtime with additional pay of at least one and one half times her regular hourly wage. 29 U.S.C. § 207. The Act also provides that any employer who violates this restriction "shall be liable to the employee or employees affected in the amount of their . . . unpaid overtime compensation . . . and in an additional equal amount as liquidated damages." 29 U.S.C. § 216(b). An action to recover the overtime and liquidated damages may be maintained "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." Id.
Although the FLSA permits a kind of collective action, such an action is considerably different than a class action certified under Fed.R.Civ.P. 23. Davis v. NovaStar Mortg., Inc., 408 F.Supp.2d 811, 814-815 (W.D.Mo.2005). In an FLSA collective action, a similarly situated employee does not become a plaintiff (and is not bound by a subsequent judgement) "unless he gives his consent in writing to become such a party" in the court where the action is pending. 29 U.S.C. § 216(b). Thus, FLSA collective actions are "opt-in" rather *1229 than "opt-out." Davis, 408 F.Supp.2d at 815.
The Eighth Circuit has not yet adopted a standard for determining whether plaintiffs and the class they wish to represent are "similarly situated" but other courts in the Western District of Missouri have used a two-step approach. See id.; Garner v. Regis Corp., 2004 U.S. Dist. LEXIS 29167, Case No. 03-5037-CV-SW-SWH (W.D.Mo., Aug. 5, 2004)(Order granting plaintiffs' motion for conditional certification of collective action). Reported district court cases in other circuits appear to take a similar approach. See Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J.1987); Brooks v. BellSouth Telecommunications, Inc., 164 F.R.D. 561, 568 (N.D.Ala.1995). This approach has been used in other circuits with opt-in collective actions under the ADEA. See Thiessen v. General Elec. Capital Corp., 267 F.3d 1095, 1102-03 (10th Cir.2001); Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001).
Under this two-step approach, a plaintiff moves for conditional certification for notice purposes early in the litigation, and defendants may move for de-certification at the close of discovery. Davis, 408 F.Supp.2d at 815. Conditional certification in the first step "requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan." Id. (internal quotation omitted). Although the standard is a lenient one, plaintiffs must present more than mere allegations; i.e., some evidence to support the, allegations is required. See Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir.1996); Freeman v. Wal-Mart Stores, Inc., 256 F.Supp.2d 941, 944 (W.D.Ark.2003). The burden is on the plaintiffs to demonstrate that they and the potential opt-in plaintiffs are substantially similar. See Grayson, 79 F.3d at 1096. Plaintiffs need show only that their positions are similar, not identical, to the positions of the potential class members. See Hipp, 252 F.3d at 1217.
III. Analysis
Although Plaintiffs are required to present "nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan," Davis, 408 F.Supp.2d at 815, they have failed to meet even this lenient standard.
The proposed class includes "All present or former employees of Cerner Corporation employed as Staff Associates (Level 7 and Level 6 employees) who worked over 40 hours a week and who were also treated as exempt employees under the FLSA at any time from April 14, 2003, to the present date." Plaintiffs' basis for including all 4,500 Level 7 and Level 6 employees is a 2001 orientation" document entitled "Compass Culture" that refers to all employees at the two lowest compensation levels as "staff associates." The Document further labels those at compensation Levels 5 and 4 as "Team Leaders", those at Levels 3 and 2 as "Managers" and those at Level 1 as "Directors." It then discusses what is expected from Cerner employees of different compensation levels in terms of seven "Attributes of Cerner Leaders" including "Leads Through Vision," "Passion for our Clients," etc. For example, Compass Culture states that with regard to the "Leads Through Vision" attribute, a Level 7 or 6 Staff Associate
 Understands Cerner's Vision and how their work interlocks with and contributes to it
 Demonstrates flexibility and openness to change
 Actively generates creative ideas & thoughts to expedite reaching the vision

*1230  Recongnizes mental paradigms that prevent creative thought applies expanding thinking.
By comparison, a Level 5 or 4 Team Leader
 Ensures all team members understand Cerner's vision and how their work interlocks with and contributes to it
 Helps team members understand the need for change and how it will benefit them
 Is a creative source of ideas that challenge the status quo
 Can identify implications and document "key solution" requirements
 Can build business case for proposed solutions.
Compass Culture does not discuss particular job duties for any position within Cerner and it has not been in use since 2001.
Plaintiffs also submit "Role Profiles" for each of their positions which purportedly describe differences within the position at different compensation levels. For example, the role profile for McMillin's position of Business Analyst contains the following, as well as other, "Key Differences by Level":
Level 7
 Achieves competence and meets the performance standards of the Key Responsibilities.
 Gathers data for strictly defined or, recurring task, calculations using standard tools effectively.
 Analyzes data and problem solves using quantitative and qualitative analysis.
Level 6
 Fully meets the performance standards of a Level 7, plus the following:
 Organizes project details to present to team lead both formally and informally.
 Emerging as go to person.
 Proposes parameter guidelines and moves away from the recurring tasks.
Level 5
 Fully meets the performance standards of a Level 6, plus the following:
 Leads project teams.
 Makes observations and defines problem statements.
 Filters information and makes presentations based on analysis.
 Negotiates outcomes.
The "Key Responsibilities" referenced under Level 7 above appear earlier in the Business Analyst profile and do not distinguish between Levels 7 through 3. Listed among these "Key Responsibilities" are
 Researches industry practices, methods, resolutions.
 Draws relevant conclusions and makes recommendations.
 Analyzes data, thinks critically, quantitatively and qualitatively.
 Coordinates multiple inputs and priorities and organizes into a presentable/organized system.
It is not at all clear from these documents how the lowest two tiers of "staff associates" are distinguished in terms of their job responsibilities, especially given the fact that the "Key Responsibilities" section of the profile does not distinguish between Levels 7 through 3. Moreover, a note at the bottom of the profile reads, "This Role Profile seeks to broadly define role parameters for use in performance management, recruiting, development and other processes. It cannot provide details about individual positions at Cerner." As with the "Compass Culture" handout, there is nothing in the role profiles to explain how one's position at a particular compensation level would correspond with the exemptions of the FLSA.
Cerner currently employs 1,599 Level 7 associates and 1,264 Level 6 associates, *1231 of whom it considers all but 244 exempt under the FLSA. To warrant certification of the class proffered, Plaintiffs must offer a substantial allegation that the other 2,619 current Level 7 and 6 employees, and roughly 2000 others who held the same positions at some point since April 2003, are similarly situated. But other than being paid at the same compensation levels, Plaintiffs have not alleged a single common policy or practice governing all these employees. Their job responsibilities are so varied that it is hard to conceive of a single policy that could govern them all. Indeed, Plaintiffs' job responsibilities are so dissimilar from each other's as to make their inclusion in the same class problematic. Young's position as a software engineer required her to write computer code, lead design reviews, test programs and resolve failures of specific software applications. Cerner maintains that her job description places her within the software engineers exemption at 29 CFR § 541.400. Any analysis of the merits of that claim, though not at issue at this early stage, would necessary involve a review of her job description and responsibilities. But such a detailed analysis would have absolutely no bearing on McMillin's claim-since the Plaintiffs do not allege that Cerner considers her to fall within the same exemption as Young. As Plaintiffs' inclusion in the same class would require two separate inquiries by the Court to resolve the merits of their case, it cannot be said that they are so similarly situated as to warrant certification as representatives of a single class.
Plaintiffs' declarations state that they performed similar duties to the other team members with whom they worked. McMillin worked with three associates; Young, with ten. Perhaps if they limited the class to these other employees who performed the same jobs as they, certification of two classes, one for each position, may have been warranted. But Plaintiffs putative class sweeps within its ambit all Level 7 and Level 6 associates whom Cerner considers exempt, regardless of what their job duties are or what exemption they allegedly fall under.
For example, if the proposed class were certified, Young and McMillin would represent Prajesh Kothawala, M.D., a Level 6 Research Associate in the LifeSciences Services Group. Dr. Kothawala interprets and synthesizes research data and documentation into written reports for internal and external use and authors manuscripts and technical reports for clients, which are frequently submitted to journals for publication. He participates in business development and client support activities and addresses client questions regarding various topics of interest, such as osteoporosis drugs. Plaintiffs would also represent Kendrick Cummings, a Level 6 Sales Executive in the Technology Specialty Sales Group, who has an engineering degree from the Georgia Institute of Technology and is responsible for identifying potential purchasers of Cerner software. Cummings is the primary marketing and sales contact who interacts with clients and potential clients, traveling two to three days per week to work at client sites. He is paid a base salary plus commission, performs his job duties without direct supervision and has the authority to bind Cerner. Plaintiffs' putative class would also includes Michelle Fisher, a lawyer in Cerner's legal department who is compensated at Level 6. Fisher was hired to negotiate client contracts, including software licensing agreements, equipment and sublicensing agreements, nondisclosure agreements and development agreements. She is also engaged in providing general advice on legal and business matters, including the Health Insurance Portability and Accountability Act ("HIPAA") and Sunshine Law *1232 requests. Each of these employees would necessitate an individualized inquiry into their FLSA exemption status. None is similarly situated to Plaintiffs. Their only common ground  which is the basis for Plaintiffs' putative class  is that they are all compensated at Level 7 or Level 6. And Plaintiffs only basis for asserting that Level 7 and Level 6 associates are similarly situated is an orientation document which does not describe any job duties and which hasn't been in use since 2001.
A perusal of recent district court decisions granting and denying certification further militates against certification in this case. In Freeman v. Wal-Mart Stores, Inc., the plaintiff sought certification of a class consisting of "other salaried Wal-Mart employees, below officer-level, [who] worked in excess of 40 hours per week without overtime compensation." 256 F.Supp.2d 941, 943 (D.Ark.2003). In rejecting certification, that court held
Plaintiffs view seems to be that all salaried Wal-Mart employees below officer level are similarly situated no matter what the nature of their duties: the employees are similarly situated simply because they claim violations of the law by the same employer. Adopting Plaintiff s position would require us to conclude that if an employer has two or more non-officer, salaried employees who allegedly are not being paid overtime as required by the Act, then a collective action would be appropriate under 216(b). On the other hand, Wal-Mart has offered affidavits indicating that the class proposed by Plaintiff includes more than 7,000 current and former employees and that there are material differences in the duties and responsibilities of those employees. Plaintiff does not dispute this, but contends that it is inappropriate to engage in such detailed analysis at this stage of the litigation. We do not agree. Id. at 945. The present Plaintiffs offer a similar justification for certification, namely that everyone compensated at the same salary level as they are is similarly situated regardless of their job responsibilities. Far from promoting judicial economy, certification of such a class would require the Court to entertain myriad individualized analyses of whether employees in particular jobs were properly exempted by Cerner. Plaintiffs have pointed to no single policy that would obviate such an extensive and individualized analysis.
By contrast, the Plaintiffs in Davis v. NovaStar Mortg., Inc., sought certification of a proposed class of "loan originators" who performed the same essential job duties and responsibilities  collecting information to complete loan applications and forwarding applications to an underwriting department for an approval decision. 408 F.Supp.2d 811, 814 (W.D.Mo. 2005). Moreover, in Davis, the decision to classify all loan originators as exempt was part of a company-wide plan implemented at the direction of the company's president, and nineteen loan originators chose to join in the case before notice was issued. Id. at 816-17. Unlike Davis, there is no single job description or exemption rationale at issue in the present case.
In Boyle v. Barber & Sons, Co., plaintiff sought certification of a class of approximately 7-10
[f]ormer and present nonsupervisory employees . . . who at any time since July 2000 to the present date, have performed services as operators, loaders, drillers, crushers, mechanics, or other general labor, and have been required to clock in and clock out of work on a regular basis, and during any of said times have worked in excess of forty hours in any regular pay period, but have not received overtime compensation *1233 in an amount equal to one and half times their regular hourly rates of pay for the hours worked in addition to the minimum required forty hour workweek.
2004 U.S. Dist. LEXIS 29168, *2-4 (W.D.Mo.2004). In that case, plaintiff alleged that the other employees were similarly situated because all work at the same physical location; all performed manual labor related to production and delivery at the quarry; all had the same hours, 6:00 a.m. to 5:00 p.m. six days per week; all their hours were kept by a common time clock; all had the same supervisors; only one exercised any supervision over the other employees; all were paid by the same party on the same date; and all were classified as exempt even though they were required to time in and out daily. Id at * 8-9. In granting conditional certification in that case, the district court distinguished Freeman:
The putative class in Freeman involved approximately 7,000 plaintiffs from Wal-Mart stores across the nation, with different supervisors and multitudes of different duties. Such a class would be unmanageable. Here, even if all potential class members opted in, the class would only include about 10 people. Furthermore, plaintiff has alleged that all the proposed class members worked the same hours, had the same supervisors, and were given the same reasons why they were not given overtime payments.
Id. at * 11.
The facts of the instant case resemble those in Freeman far more so than those of Davis or Boyle. Plaintiffs seek to certify a class over 4,500 employees which includes doctors, lawyers, sales representatives, and many others. They have failed to meet even their lenient burden to establish that these fellow employees are similarly situated to their own jobs as business analysts and software engineers. Because they have not alleged even the minimal requirements of a collective action under 29 U.S.C. § 216(b), certification must be denied as to the proffered class.
Finally, Plaintiffs suggested the possibility of certifying a smaller class during a recent discovery teleconference, but they have not asked for certification of a smaller, more focused class in their briefing or presented a narrower class description for the Court to consider. With no alternative currently before the Court to the broad class of all Level 7 and Level 6 associates as defined in the Plaintiffs' pending motion, the Court cannot entertain the possibility certifying a more limited class nut sponte.
IV. Conclusion
Accordingly, it is hereby
ORDERED that Plaintiffs' Motion for Conditional Certification of Representative Action [Doc. # 39] is DENIED.


            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. PD-0992-15

                        ANTWAIN MAURICE BURKS, Appellant

                                                 v.

                                   THE STATE OF TEXAS

                       ORDER REGARDING REPRESENTATION
                              FORT BEND COUNTY

               This order was delivered per curiam.

                                           ORDER

       Appellant was convicted of tampering with evidence in cause number 12-DCR-061196 in

the 400th District Court of Fort Bend County. Appellant was sentenced to confinement for 16

years. The court of appeals affirmed the judgment of the trial court. Burks v. State, No. 14-14-

00166-CR (Tex. App. — Houston, delivered July 21, 2015). The Appellant’s Pro se petition for

discretionary review was granted by this Court on November 25, 2015. Appellant is entitled to

representation before this Court at this time. See Article 1.051(a)(d)(2), V.A.C.C.P. It appears that
                                                                               BURKS -2

Appellant is without representation in this court. Accordingly, the trial court is ordered to determine

if Appellant is currently represented by counsel, and if so, to inform this court who represents

Appellant. If Appellant is not currently represented by counsel and desires counsel, the trial court

must first determine whether Appellant is indigent. If the trial court finds Appellant is indigent, that

court shall appoint an attorney to represent Appellant before this court in regard to PDR No. PD-

0992-15, in accord with the provisions of Articles 1.051 and 26.04, V.A.C.C.P. Any hearing

conducted pursuant to this order shall be held within 30 days of the date of this order. The trial

court's order appointing counsel, any findings of fact, affidavits, or transcription of the court

reporter's notes and any other supplementation of the record shall be returned to this court within 45

days of the date of this order.

IT IS SO ORDERED THIS THE 25th DAY OF NOVEMBER, 2015

DO NOT PUBLISH


633 F.Supp. 671 (1986)
Sophie GARTMANN, Plaintiff,
v.
SECRETARY OF the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
No. CV 84-2638.
United States District Court, E.D. New York.
April 28, 1986.
*672 *673 Robert & Schneider by Ira S. Schneider and Steven P. Lerner, Hempstead, N.Y., for plaintiff.
Reena Raggi, U.S. Atty. by Thomas Roberts, Asst. U.S. Atty., Brooklyn, N.Y., for defendant.

MEMORANDUM AND ORDER
WEXLER, District Judge.
Plaintiff Sophie Gartmann ("Gartmann") brings this action under §§ 205(g) and 1869(b) of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g) and 1395ff, for review of a determination of the Secretary of Health and Human Services ("Secretary") which denied plaintiff's application for payment of post-hospital extended care services benefits under Title XVIII of the Act, 42 U.S.C. §§ 1395-1395zz. Specifically, plaintiff seeks reversal of the Secretary's determination that Gartmann is not eligible for reimbursement for services rendered at the Cliffside Nursing Home for a one hundred day period beginning July 23, 1982. The parties have now cross-moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

I.
Before the Court turns to the specific facts of this case, it will perhaps be useful to outline briefly the statutory and regulatory scheme that underlies plaintiff's claim. In 1965, Congress added a new Title XVIII to the Social Security Act for the specific purpose of providing a coordinated and comprehensive approach to health insurance and medical care to the aged. 1965 U.S.Code Cong. and Ad.News 1943; Turecamo v. C.I.R., 554 F.2d 564, 571 (2d Cir. 1977). Given the heading "Health Insurance for Aged and Disabled," Title XVIII is more commonly known as the Medicare statute. In relevant part, the Medicare statute provides for reimbursable hospital and skilled nursing facility insurance benefits. 42 U.S.C. §§ 1395-1395i-2 ("Medicare Part A"). The statute establishes a number of specific categories of services for which reimbursement may, under appropriate circumstances, be mandated, namely, inpatient hospital services, post-hospital extended care services, home health services, and, "in lieu of certain other benefits," hospice care. 42 U.S.C. § 1395d(a).
Plaintiff in the case at bar seeks benefits for post-hospital extended care services. Part C of the Medicare statute sets forth definitions of both "extended care services" and "post-hospital extended care services." 42 U.S.C. § 1395x(h) provides:
The term "extended care services" means the following items and services furnished to an inpatient of a skilled *674 nursing facility and (except as provided in paragraphs (3) and (6)) by such skilled nursing facility
(1) nursing care provided by or under the supervision of a registered professional nurse;
(2) bed and board in connection with the furnishing of such nursing care;
(3) physical, occupational, or speech therapy furnished by the skilled nursing facility or by others under arrangements with them made by the facility;
(4) medical social services;
(5) such drugs, biologicals, supplies, appliances, and equipment, furnished for use in the skilled nursing facility, as are ordinarily furnished by such facility for the care and treatment of inpatients;
(6) medical services provided by an intern or resident-in-training of a hospital with which the facility has in effect a transfer agreement (meeting the requirements of subsection (l) of this section), under a teaching program of such hospital approved as provided in the last sentence of subsection (b) of this section, and other diagnostic or therapeutic services provided by a hospital with which the facility has such an agreement in effect; and
(7) such other services necessary to the health of the patients as are generally provided by skilled nursing facilities;
excluding, however, any item or service if it would not be included under subsection (b) of this section if furnished to an inpatient of a hospital.
42 U.S.C. § 1395x(i) states:
The term "post-hospital extended care services" means extended care services furnished an individual after transfer from a hospital in which he was an inpatient for not less than 3 consecutive days before his discharge from the hospital in connection with such transfer. For purposes of the preceding sentence, items and services shall be deemed to have been furnished to an individual after transfer from a hospital, and he shall be deemed to have been an inpatient in the hospital immediately before transfer therefrom, if he is admitted to the skilled nursing facility (A) within 30 days after discharge from such hospital, or (B) within such time as it would be medically appropriate to begin an active course of treatment, in the case of an individual whose condition is such that skilled nursing facility care would not be medically appropriate within 30 days after discharge from a hospital; and an individual shall be deemed not to have been discharged from a skilled nursing facility if, within 30 days after discharge therefrom, he is admitted to such facility or any other skilled nursing facility.[1]
Any expenses incurred for items or services which are not "reasonable and necessary" for diagnosis or treatment are specifically excluded from coverage under the Act, as are expenses for "custodial care". 42 U.S.C. §§ 1395y(a)(1)(A) and (9). Custodial care is defined in the regulations promulgated under Title XVIII as "any care which does not meet the definition of extended care." 42 C.F.R. § 405.310(g).[2]*675
*676 The costs of post-hospital extended care services are reimbursable only if a physician certifies that such services "are or were required to be given because the individual needs or needed on a daily basis skilled nursing care.... or other skilled rehabilitation services, which as a practical matter can only be provided in a skilled nursing facility on an inpatient basis." 42 U.S.C. § 1395f(a)(2)(C).
Furthermore, the Act requires that each participating state establish "utilization review committees" ("URC's") to assure that patients will receive neither a greater nor *677 lesser level of care than they need. 42 U.S.C. § 1395x(k); 42 C.F.R. § 405.1137; Kuebler v. Secretary of the United States Dep't of Health and Human Services, 579 F.Supp. 1436, 1440 (E.D.N.Y.1984). Such committees must include at least two physicians, and may also include other professional personnel such as registered nurses or medical social workers. 42 U.S.C. § 1395x(k); 42 C.F.R. § 405.1137; 1965 U.S.Cong.Code and Ad.News 1943, 1988. An attending physician may not be a member of a URC that is conducting a review of his patient's care. 42 C.F.R. § 405.1137(b)(3); Kraemer v. Heckler, 737 F.2d 214, 216 (2d Cir.1984). The Senate Report on the Medicare statute states, "Hospitals and extended care facilities participating in the program would be required to have in effect a utilization review plan providing for a review of admissions to the institution, lengths of stays, and the medical necessity for services provided with the objective of promoting the efficient use of services and facilities." 1965 U.S.Cong.Code and Ad.News 1943, 1988. Post-hospital extended care services Medicare benefits are available only if a URC determines that such services are medically necessary. 42 U.S.C. § 1395f(a)(7); 42 C.F.R. § 405.1137. Before a URC can find that further services are not necessary, it must afford a patient's attending physician an opportunity for consultation with the committee. 42 U.S.C. § 1395x(k)(4); 42 C.F.R. § 405.1137; Hultzman v. Weinberger, 495 F.2d 1276 (3d Cir.1974).
If an individual meets all of the above requirements, Medicare will cover post-hospital extended care services "for up to 100 days during any spell of illness." 42 U.S.C. § 1395d(a)(2)(A).[3] It is reimbursement for services rendered by the Cliffside Nursing Home during such a one hundred day period that Gartmann seeks in this lawsuit.

II.
Plaintiff is an 87 year old woman who was born October 25, 1898. On July 14, 1982, she was admitted to Hillcrest General Hospital, where congestive heart failure, a left cerebral vascular accident, aphasia, and hypertension were diagnosed.
On July 23, 1982, plaintiff was transferred to the Cliffside Nursing Home ("Cliffside"), a skilled nursing facility.[4] The patient transfer form indicates that at the time of her transfer Gartmann was suffering from a cerebral vascular accident, right hemiplegia, and aphasia, required a low salt diet and help feeding herself, and needed "total care," which included complete assistance in toileting, bathing and dressing. Her behavior was withdrawn and her mental status forgetful and confused. Plaintiff lacked any communicative ability, as she could not speak or write, and could not understand speaking, writing or gestures. Furthermore, upon her transfer to Cliffside, Gartmann exhibited a sudden onset of dyspnea and a rapid ventricular rate. In his progress notes, Dr. Kreitman, plaintiff's attending physician, stated that on the date of her admission to the nursing home, plaintiff's ailments included congestive heart failure, atrial fibrillation, pulmonary infiltrate, and urinary tract infection.
Upon Gartmann's admission to Cliffside, Dr. Kreitman certified that post-hospital extended care facility services were required because of Gartmann's need for skilled nursing care on a continuing basis for the conditions for which she had been receiving in-patient hospital services at Hillcrest General Hospital. Dr. Kreitman recertified that extended care was necessary on August 6, 1982, noting the need for *678 treatment of right hemiplegia, cerebral vascular accident, and atrial fibrillation. On September 5, 1982, and again on October 5, 1982, Dr. Kreitman certified that continued extended care was necessary for rehabilitation post cerebral vascular accident.[5]
The record contains a number of pages of nurses' notes covering the period between July 23, 1982 and August 29, 1982. These notes indicate, inter alia, that Gartmann was unable to make her needs known due to her aphasia, and was incontinent of both urine and feces. Plaintiff required assistance in all activities of daily living, and attempts at toilet training proved unsuccessful. Her right leg and hand were paralyzed and, after plaintiff was found attempting to climb out of her wheelchair, a doctor[6] had recommended that she be restrained in her chair for her own safety. Plaintiff's bedrest position was changed every two hours to prevent pressure sores and breakdown of her skin. Each shift administered skin care to all of Gartmann's bony prominences and an excoriation the size of a silver dollar on the sacral area of her right buttocks was treated with Neosporin powder twice per day in an attempt to prevent further breakdown and irritation. Ampicillin was prescribed for plaintiff's congestion and coughing. In an attempt to prevent contracture, nurses performed motion exercises on all extremities and kept Gartmann's paralyzed leg and hand in good alignment. Plaintiff's shoulder tended to dislocate, necessitating the administration of a sling for support. Podiatry care was required for diagnosed arteriosclerosis obliterans.
A URC evaluated plaintiff on August 5, 1982 and September 9, 1982.[7] Both evaluations concluded, based on assessments completed July 27, 1982 and September 9, 1982, respectively, that the written orders of the attending physician and plan of care documented that the nursing and therapy that were being provided were necessary, plaintiff could not, as a practical matter, be cared for on an outpatient or home care basis, and that she was medically qualified to be covered by SNF care and should not be considered for another level of care. In describing the patient's condition requiring skilled nursing supervision, the evaluations noted, in part, that plaintiff was aphasic and incontinent and was unable to make her needs known. Plaintiff's medical assessment predictor score on each of the evaluations was 458.[8]
On August 25, 1982, defendant issued a Notice of Medicare Claim Determination informing plaintiff that the services rendered at Cliffside were not covered by Medicare. Plaintiff requested reconsideration and, on July 14, 1983, it was determined that the initial decision was correct. Plaintiff then requested a hearing, which was held on January 23, 1984 before an Administrative Law Judge who considered the case de novo.
In a decision dated January 31, 1984, the ALJ found that the services rendered by Cliffside were "supportive and custodial in nature and did not require the presence of skilled personnel." Accordingly, the ALJ held that the services were excluded from coverage under the Act.
The ALJ placed primary reliance for his decision on the testimony of Dr. Nathaniel *679 Reich, a medical advisor for the Social Security Administration who was present at the hearing at the request of the ALJ. Dr. Reich testified as a physician who had reviewed the evidence of record but had never actually examined or professionally treated Gartmann. Based on this review, Dr. Reich concluded that plaintiff's physical condition was such that she did not require skilled nursing care but could adequately have been cared for at a lower level of care than that provided by an SNF. Dr. Reich also opined that the drugs which plaintiff received did not have to be administered by skilled personnel. Similarly, the periodic turning of plaintiff's body to reduce the possibility of ulceration could have been done by unskilled individuals.
The ALJ determined that the certification by the URC was "of little probative value" because it was not signed by a doctor,[9] and did not discuss the relevance of Dr. Kreitman's certifications. The ALJ stated, "[T]he medical advisor is the best individual to evaluate the medical evidence because the medical evidence needs a skilled and impartial advisor to determine the level of care."
The ALJ's ruling that Gartmann is not entitled to reimbursement became the final decision of the Secretary when the Appeals Council denied review in a decision dated May 3, 1984. Plaintiff then filed suit in this Court pursuant to 42 U.S.C. §§ 405(g) and 1395ff.

III.

A.
Courts have developed a number of principles which govern judicial review of final determinations of the Secretary regarding entitlement to benefits under the Act. First, the proper legal standard for determining the need for skilled nursing care involves consideration of the patient's condition as a whole, rather than an analysis of the specific services provided. E.g., Kellerman v. Heckler, No. CV 85-3823 (S.D.N.Y. March 11, 1986) [Available on WESTLAW, DCTU database]; Kuebler, 579 F.Supp. at 1438; Klofta v. Mathews, 418 F.Supp. 1139, 1142-44 (E.D.Wis.1976); Ridgely v. Secretary of the Dep't of Health, Education and Welfare, 345 F.Supp. 983, 989 (D.Md.1972), aff'd, 475 F.2d 1222 (4th Cir.1973). In assessing the patient's condition, a court is to use a common sense, non-technical approach. Howard v. Heckler, 618 F.Supp. 1333, 1335 (E.D.N.Y.1985). Second, the remedial purpose of the Act requires that it be broadly construed. E.g., Coe v. Secretary of Health, Education and Welfare, 502 F.2d 1337, 1340 (4th Cir.1974); Howard, 618 F.Supp. at 1335; Ridgely, 345 F.Supp. at 993. Care must be taken "not to disentitle old, chronically ill and basically helpless, bewildered and confused people ... from the broad remedy which Congress intended to provide our senior citizens." Ridgely, 345 F.Supp. at 993.
A final determination by the Secretary as to an individual's entitlement to benefits is generally conclusive if supported by substantial evidence on the record as a whole. 42 U.S.C. §§ 405(g) and 1395ff; Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978); Fineberg v. Secretary of Health, Education and Welfare, 363 F.Supp. 1382 (W.D.N.Y.1973). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). A reviewing court, therefore, is compelled to accept the Secretary's supported findings of fact. A court, however, is not bound by the Secretary's conclusions or interpretations of law, or an application of an incorrect legal standard. E.g., Kuebler, 579 F.Supp. at 1438; Sokoloff v. Richardson, 383 F.Supp. 234, 236 (E.D.N.Y.1973); Ridgely, 345 F.Supp. at *680 988. As one court noted, "Before the insulation of the substantial evidence test comes into play, it must first be determined that the facts of a particular case have been evaluated in light of correct legal standards." Klofta, 418 F.Supp. at 1141.

B.
Applying these principlies to the case at bar, it is clear that the Secretary's denial of reimbursement cannot withstand scrutiny. The ALJ found that the services which Gartmann received were supportive, custodial, and did not require the presence of skilled personnel, and held that plaintiff was therefore not entitled to Medicare benefits. The ALJ noted some of Gartmann's physical ailments, but focused his analysis not on plaintiff's condition but on the specific services provided her.
The various services rendered plaintiff at Cliffside may very well have constituted "skilled" rather than "custodial" care under the Act and its accompanying regulations, notwithstanding the ALJ's conclusion and interpretation of the law. In any event, in resting his holding upon the nature of the specific services rendered plaintiff, the ALJ failed to apply the correct legal standard. During the period in question, plaintiff was an aphasic, confused woman in her mid eighties who was afflicted with, among other ailments, hemiplegia, congestive heart failure, and atrial fibrillation, had suffered a cerebral vascular accident, was incontinent and had a large excoriation on her buttocks, was completely unable to communicate or make her needs known, and required "total care." Considering plaintiff's condition as a whole, the Court finds that Gartmann indisputedly required skilled nursing care and services and therefore was entitled to Medicare coverage.

C.
Even if the Court were to put to one side the Secretary's reliance on an improper legal standard in making a final determination that Gartmann should not be reimbursed under the Act, reversal of the Secretary's decision would still be required, for the record fails to contain the substantial evidence necessary to support the Secretary's conclusion. The ALJ rested his decision almost entirely on the testimony of Dr. Reich, a reviewing medical advisor who had never examined plaintiff, and failed even to mention the diagnoses and repeated certifications of needed skilled care made by Dr. Kreitman, plaintiff's treating physician. While the opinion of a medical advisor is admissible into evidence, Richardson, 401 U.S. at 402, 91 S.Ct. at 1428, and such an opinion may constitute substantial evidence if it is supported by the findings or opinions of an examining physician, Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 223 (1st Cir.1981) (widow's benefits); Kyle v. Cohen, 449 F.2d 489, 491-92 (4th Cir.1971); or, a plaintiff's own testimony, Warnke v. Harris, 619 F.2d 412, 416, rehearing denied, 624 F.2d 1098 (5th Cir.1980), the record in the instant case contains no evidence sufficiently supportive of Dr. Reich's testimony as to raise his opinion to the level of substantial evidence requiring affirmance of the ALJ's ruling.
By contrast, Dr. Kreitman's conclusion that skilled nursing care was required is entitled to great weight. See, e.g., Kuebler, 579 F.Supp. at 1440; Breeden v. Weinberger, 377 F.Supp. 734, 737 (M.D.La.1974); Ridgely, 345 F.Supp. at 991-92. It is a well-settled rule in Social Security disability cases that the expert medical opinion of a patient's treating physician is to be accorded deference by the Secretary and is binding unless contradicted by substantial evidence. E.g., Schisler v. Heckler, 787 F.2d 76, 81 (2d Cir.1986); Bluvband v. Heckler, 730 F.2d 886, 893 (2d Cir.1984); Eiden v. Secretary of Health, Education and Welfare, 616 F.2d 63, 64 (2d Cir.1980). This rule may well apply with even greater force in the context of Medicare reimbursement. The legislative history of the Medicare statute makes clear the essential role of the attending physician in the statutory scheme: "The physician is to be the key figure in determining utilization *681 of health services." 1965 U.S.Code Cong. and Ad.News, 1943, 1986. See also, e.g., Hultzman, 495 F.2d at 1279; Kuebler, 579 F.Supp. at 1440; Breeden, 377 F.Supp. at 737; Reading v. Richardson, 339 F.Supp. 295, 300-01 (E.D.Mo.1972).
The ALJ's decision is further undermined by his rejection of the URC evaluations. His determination that the URC reports were "of little probative value" displays a complete lack of understanding of the importance the Medicare statute assigns such committees. The ALJ evinced the view that the reviewing physician, as a "skilled and impartial advisor," was the best individual to evaluate the medical evidence and determine the proper level of care. Under the Medicare provisions, however, this is precisely the purpose of the URC. The legislative history highlights Congress' intention that URC's, as organizations a step removed from the patient, attending physician, and Social Security Administration, perform a dual function. The Senate Report stresses that utilization review is to be carried out in a manner that avoids unnecessary medical costs without sacrificing the needs of the patients themselves. 1965 U.S.Code Cong. & Ad.News 1943, 1987-88. URC's, therefore, are designed to act as a control on governmental health care costs,[10] while at the same time ensuring that patients' rights are not trampled upon. This Court has previously recognized the value and persuasive nature of URC decisions. As the Court observed in Kuebler:
These committees include independent physicians and are intended to ensure economical, efficient use of medical facilities and prevent unnecessary Medicare payments without substituting bureaucratic goals for medical judgment. Hultzman v. Weinberger, 495 F.2d at 1280-81. The Secretary has used the determinations of URC's in previous cases to support a denial of medical payments. Hayner v. Weinberger, [382 F.Supp. 762, 764 (E.D.N.Y.1974)]. The Secretary should not now be heard to preemptorily discount the findings and recommendations of the URC because they do not serve her purposes. See, Hultzman v. Weinberger, 495 F.2d at 1281.
579 F.Supp. at 1440.
Wilbur Cohen, Under-Secretary of the Department of Health, Education and Welfare at the time Congress was considering the Medicare legislation, went even further in his evaluation of the effect of URC determinations upon the Secretary. In executive hearings before the House Ways and Means Committee, Cohen testified, "If the [utilization] review board makes a mistake, there is nothing we can do about it." In response to questioning, Cohen agreed that a URC's decision would be equivalent to a "supreme court decision." Executive Hearings on H.R. 1 Before the House Comm. on Ways and Means, 89th Cong., 1st Sess., at 68 (1965), quoted in Hultzman, 495 F.2d at 1280.
Additionally, the ALJ's argument that in Gartmann's particular case the probative value of the URC reports is negated by the fact that they were not signed by a doctor is not justified. It is true that "H. Friedman," a registered nurse, signed the evaluation forms. Friedman, however, was a member of the URC and, under the Secretary's own regulations, professional personnel besides physicians may properly be members of URCs and may screen cases using criteria established by physician members of the committee. 42 C.F.R. §§ 405.1137(b)(1) and (d)(2).
The Secretary's denial of reimbursement, therefore, is not supported by substantial evidence. Dr. Reich's testimony, in and of itself, is not sufficient to bind the Court to the ALJ's conclusions. Furthermore, the Court holds that, at least absent a showing by the Secretary that in a given case the statutory system requiring *682 dual certification by an attending physician and a URC has broken down, where both an attending physician and a URC certify that an individual requires post-hospital extended care services, these determinations shall be binding upon the Secretary.

IV.
For the reasons stated above, the Court concludes that Gartmann is eligible for reimbursement for services rendered at the Cliffside Nursing Home for a one hundred day period beginning July 23, 1982. Accordingly, the Court hereby orders that plaintiff's motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) is granted and defendant's motion for judgment under Rule 12(c) is denied. The Clerk of the Court is directed to enter judgment in favor of plaintiff, reversing the Secretary's determination and awarding reimbursement for post-hospital extended care services provided by the Cliffside Nursing Home for the one hundred day period commencing July 23, 1982.
SO ORDERED.
NOTES
[1]  "Skilled nursing facility" ("SNF") is defined in § 1395x(j). The parties do not appear to contest that the facility at which plaintiff was cared for falls within the definition established by the statute.
[2]  42 U.S.C. § 1395hh grants the Secretary the power to promulgate regulations necessary to carry out the administration of the Medicare program. 42 C.F.R. §§ 409.30-.36 further define the requirements of post-hospital extended care covered by the Act. The regulations provide, in part:

REQUIREMENTS FOR COVERAGE OF POST-HOSPITAL SNF CARE
§ 409.30 Basic requirements.
Posthospital SNF care, including SNF-type care furnished in a hospital that has a swingbed approval, is covered only if the beneficiary meets the requirements of this section and only for days when he or she needs and receives care of the level described in § 409.31.
(a) Pre-admission requirements. The beneficiary must
(1) Have been hospitalized in a participating or qualified hospital, for medically necessary inpatient hospital care, for at least 3 consecutive calendar days, not counting the day of discharge; and
(2) Have been discharged from the hospital in a month for which he or she was entitled to hospital insurance benefits, in accordance with Part 408 of this chapter.
....
§ 409.31 Level of care requirement.
(a) Definition. As used in this section, "skilled nursing and skilled rehabilitation services" means services that:
(1) Are ordered by a physician;
(2) Require the skills of technical or professional personnel such as registered nurses, licensed practical (vocational) nurses, physical therapists, occupational therapists, and speech pathologists or audiologists; and
(3) Are furnished directly by, or under the supervision of, such personnel.
(b) Specific conditions for meeting level of care requirements. (1) The beneficiary must require skilled nursing or skilled rehabilitation services, or both, on a daily basis.
(2) Those services must be furnished for a condition
(i) For which the beneficiary received inpatient hospital services; or
(ii) Which arose while the beneficiary was receiving care in a SNF or swing-bed hospital for a condition for which he or she received inpatient hospital services.
(3) The daily skilled services must be ones that, as a practical matter, can only be provided in a SNF, on an inpatient basis.
§ 409.32 Criteria for skilled services and the need for skilled services.
(a) The service must be so inherently complex that it can be safely and effectively performed only by, or under the supervision of, professional or technical personnel.
(b) A condition that does not ordinarily require skilled services may require them because of special medical complications. Under those circumstances, a service that is usually non-skilled (such as those listed in § 409.33(d)) may be considered skilled because it must be performed or supervised by skilled nursing or rehabilitation personnel....
(c) The restoration potential of a patient is not the deciding factor in determining whether skilled services are needed. Even if full recovery or medical improvement is not possible, a patient may need skilled services to prevent further deterioration or preserve current capabilities....
§ 409.33 Examples of skilled nursing and rehabilitation services.
(a) Services that could qualify as either skilled nursing or skilled rehabilitation services  (1) Overall management and evaluation of care plan. The development, management, and evaluation of a patient care plan based on the physician's orders constitute skilled services when, because of the patient's physical or mental condition, those activities require the involvement of technical or professional personnel in order to meet the patient's needs, promote recovery, and ensure medical safety. This would include the management of a plan involving a variety of personal care services when, in light of the patient's condition, the aggregate of those services requires the involvement of technical or professional personnel. For example, an aged patient with a history of diabetes mellitus and angina pectoris who is recovering from an open reduction of a fracture of the neck of the femur requires, among other services, careful skin care, appropriate oral medications, a diabetic diet, an exercise program to preserve muscle tone and body condition, and observation to detect signs of deterioration in his or her condition or complications resulting from restricted, but increasing, mobility. Although any of the required services could be performed by a properly instructed person, such a person would not have the ability to understand the relationship between the services and evaluate the ultimate effect of one service or the other. Since the nature of the patient's condition, age, and immobility create a high potential for serious complications, such an understanding is essential to ensure the patient's recovery and safety. Under these circumstances, the management of the plan of care would require the skills of a nurse even though the individual services are not skilled. Skilled planning and management activities are not always specifically identified in the patient's clinical record. Therefore, if the patient's overall condition would support a finding that recovery and safety can be assured only if the total care is planned, managed, and evaluated by technical or professional personnel, it would be appropriate to infer that skilled services are being provided.
....
(b) Services that qualify as skilled nursing services. (1) Intravenous, intramuscular, or subcutaneous injections and hypodermoclysis or intravenous feeding;
(2) Levin tube and gastrostomy feedings;
(3) Nasopharyngeal and tracheostomy aspiration;
(4) Insertion and sterile irrigation and replacement of catheters;
(5) Application of dressings involving prescription medications and aseptic techniques;
(6) Treatment of extensive decubitus ulcers or other widespread skin disorders;
(7) Heat treatments which have been specifically ordered by a physician as part of active treatment and which require observation by nurses to adequately evaluate the patient's progress;
(8) Initial phases of a regimen involving administration of medical gases;
(9) Rehabilitation nursing procedures, including the related teaching and adaptive aspects of nursing, that are part of active treatment, e.g., the institution and supervision of bowel and bladder training programs.
(c) Services which would qualify as skilled rehabilitation services. (1) Ongoing assessment of rehabilitation needs and potential: Services concurrent with the management of a patient care plan, including tests and measurements of range of motion, strength, balance, coordination, endurance, functional ability, activities of daily living, perceptual deficits, speech and language or hearing disorders;
(2) Therapeutic exercises or activities: Therapeutic exercises or activities which, because of the type of exercises employed or the condition of the patient, must be performed by or under the supervision of a qualified physical therapist or occupational therapist to ensure the safety of the patient and the effectiveness of the treatment;
(3) Gait evaluation and training: Gait evaluation and training furnished to restore function in a patient whose ability to walk has been impaired by neurological, muscular, or skeletal abnormality;
(4) Range of motion exercises: Range of motion exercises which are part of the active treatment of a specific disease state which has resulted in a loss of, or restriction of, mobility as evidenced by a therapist's notes showing the degree of motion lost and the degree to be restored;
(5) Maintenance therapy: Maintenance therapy, when the specialized therapist is required to design and establish a maintenance program based on an initial evaluation and periodic reassessment of the patient's needs, and consistent with the patient's capacity and tolerance. For example, a patient with Parkinson's disease who has not been under a rehabilitation regimen may require the services of a qualified therapist to determine what type of exercises will contribute the most to the maintenance of his present level of functioning.
(6) Ultrasound, short-wave, and microwave therapy treatment by a qualified physical therapist;
(7) Hot pack, hydrocollator, infrared treatments, paraffin baths, and whirlpool: Hot pack, hydrocollator, infrared treatments, paraffin baths, and whirlpool in particular cases where the patient's condition is complicated by circulatory deficiency, areas of desensitization, open wounds, fractures, or other complications, and the skills, knowledge, and judgment of a qualified physical therapist are required; and
(8) Services of a speech pathologist or audiologist when necessary for the restoration of function in speech or hearing.
(d) Personal care services. Personal care services which do not require the skills of qualified technical or professional personnel are not skilled services except under the circumstances specified in § 409.32(b). Personal care services include, but are not limited to, the following:
(1) Administration of routine oral medications, eyedrops, and ointments;
(2) General maintenance care of colostomy and ileostomy;
(3) Routine services to maintain satisfactory functioning of indwelling bladder catheters;
(4) Changes of dressings for noninfected postoperative or chronic conditions;
(5) Prophylactic and palliative skin care, including bathing and application of creams, or treatment of minor skin problems;
(6) Routine care of the incontinent patient, including use of diapers and protective sheets;
(7) General maintenance care in connection with a plaster cast;
(8) Routine care in connection with braces and similar devices;
(9) Use of heat as a palliative and comfort measure, such as whirlpool and hydrocollator;
(10) Routine administration of medical gases after a regimen of therapy has been established;
(11) Assistance in dressing, eating, and going to the toilet;
(12) Periodic turning and positioning in bed; and
(13) General supervision of exercises which have been taught to the patient; including the actual carrying out of maintenance programs, i.e., the performance of the repetitive exercises required to maintain function do not require the skills of a therapist and would not constitute skilled rehabilitation services (see paragraph (c) of this section). Similarly, repetitious exercises to improve gait, maintain strength, or endurance; passive exercises to maintain range of motion in paralyzed extremities, which are not related to a specific loss of function; and assistive walking do not constitute skilled rehabilitation services.
....
[3]  42 U.S.C. § 1395x(a) defines "spell of illness:"

The term "spell of illness" with respect to any individual means a period of consecutive days
(1) beginning with the first day (not included in a previous spell of illness) (A) on which such individual is furnished inpatient hospital services or extended care services, and (B) which occurs in a month for which he is entitled to benefits under part A, and
(2) ending with the close of the first period of 60 consecutive days thereafter on each of which he is neither an inpatient of a hospital nor an inpatient of a skilled nursing facility.
[4]  See supra note 1.
[5]  In a December 10, 1982 certification, Dr. Kreitman specified that SNF in-patient care was necessary because of ailments including cerebral vascular accident, aphasia, atrial fibrillation, and congestive heart failure, and noted that an indefinite period of continued SNF care would be required. Dr. Kreitman again certified the indefinite continued need for SNF care on February 8, 1983 and specified that "total care" was necessary due to "multiple" medical problems. Dr. Kreitman once again recertified the need for SNF care on April 12, 1983. These three additional recertifications, while perhaps relevant as evidence that plaintiff required a lengthy period of post-hospital extended care services, dated, of course, beyond the reimbursable one hundred day period.
[6]  The doctor's name is not legible in the notes.
[7]  The URC also evaluated Gartmann on July 8, 1982, prior to the one hundred day period for which plaintiff seeks reimbursement.
[8]  A score of 180 or greater indicates the need for skilled nursing care. 10 N.Y.C.R.R. 415.1(a)(2). See also Record at 124, 131.
[9]  The ALJ also dismissed the worth of the URC evaluation because "it did not concern the time period at issue." Apparently, the ALJ failed to observe that the record contained three separate URC reports, of which only the earliest was prepared outside the period at issue in the case. See supra note 7 and accompanying test.
[10]  Government pays for over half of the costs of nursing home care. Rx for the Elderly: Legal Rights (and Wrongs) Within the Health Care System, 20 Harv.Civ.Rt.-Civ.Lib.L.Rev. 425, 466 (1985).


30 F.Supp.2d 274 (1998)
Jaime RODRIGUEZ, Plaintiff,
v.
Salvatore ABBATIELLO, Jr., Defendant.
No. 3:97-CV-00201 (WWE).
United States District Court, D. Connecticut.
October 26, 1998.
*275 Wesley S. Spears, Hartford, CT, for Plaintiff.
Jeffrey G. Schwartz, Law Offices of Scott B. Clendaniel, Hartford, CT, for Defendant.
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR JUDGMENT AFTER TRIAL AND PLAINTIFF'S MOTION FOR AWARD OF PUNITIVE DAMAGES
EGINTON, Senior District Judge.

INTRODUCTION TO PART ONE: MOTION FOR JUDGMENT AFTER TRIAL
This civil action, in its essence, is a police misconduct case, brought pursuant to 42 U.S.C. Section 1983 and state law. A four day jury trial was held in June. The jury found in favor of plaintiff Rodriquez on the state law claim of assault and/or battery, and further determined that punitive damages should be awarded, in an amount to be determined by the Court. Defendant Abbatiello *276 moves for Judgment After Trial, pursuant to Federal Rules of Civil Procedure 50(b)(1)(c), 51 and 52. He asserts that the jury's verdict in favor of the plaintiff is barred by the doctrine of sovereign immunity; there was plain error in the jury charge as to punitive damages; and, finally, punitive damages are not available in a case of negligent assault.

LEGAL ANALYSIS

I. The Standards of Review As Applied

A. Federal Rule of Civil Procedure 50(a)(2)

Rule 50(a)(2) provides:
(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and facts on which the moving party is entitled to judgment.
The purpose of requiring that specific grounds be stated in such a motion is to fully apprise the trial court of the movant's position. Ralston Purina Co. v. Parsons Feed & Farm Supply, Inc., 364 F.2d 57, 59-60 (8th Cir.1966) (failure to state specific grounds relied upon sufficient basis in and of itself for denial thereof). The provision of this Rule that a motion made thereunder shall state the specific grounds therefor is mandatory and, generally speaking, may not be waived. Budge Mfg. Co. v. United States, 280 F.2d 414, 415-16 (3d Cir.1960). See also Cruz v. Local Union No. 3 of Intern. Broth., 34 F.3d 1148 (2d Cir.1994) (this procedural requirement may not be waived as a pure technicality); Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir.), cert. denied 148 L.R.R.M. (BNA) 2177 (1993) (relief from the specificity requirement is available only to avoid manifest injustice to the moving party.)
A review of the transcript in the present case reveals that defendant's motions consisted of the following at the close of the plaintiff's case:
MR. SCHWARTZ: Okay. I also would like to make, for the record, a motion for dismissal of the case based on the evidence submitted so far.
At the end of the case, Mr. Schwartz restated his earlier motion:
MR. SCHWARTZ: The only motion I have is just a renewal of a motion for judgment and/or dismissal for insufficiency or on the weight of the evidence as to these counts.
These motions do not "specify the judgment sought and the law and the facts on which the moving party is entitled to judgment." Fed.R.Civ.P. 50(a)(2). As noted above, the purpose of requiring that specific grounds be stated in such a motion is to fully apprise the trial court of the movant's position. Plainly, these two de minimis "motions" fall woefully short of the mandatory requirements of Rule 50(a)(2). In the present case, the trial court was left to discern for itself exactly what evidence was allegedly insufficient and what boundaries of law remained unfilled or unsatisfied, as there was no direction from the moving attorney. The facts and law upon which the moving party should have fully delineated were completely absent. As no manifest injustice will result to the moving party, for this reason alone, this Motion may be denied. See Samuels and Cruz, supra.
The Court will, however, in a sense of judicial equity, consider defendant's other claims with the caveat that such is legally unnecessary under Fed.R.Civ.P. 50(a)(2). Accordingly, the treatment of the other claims will be brief.

B. Federal Rule of Civil Procedure 50(b)

Because a judgment as a matter of law intrudes upon the rightful province of the jury, it is highly disfavored. The Court of Appeals for the Second Circuit has repeatedly emphasized that, when confronted with such a motion, the court must carefully scrutinize the proof with credibility assessment made against the moving party and all inferences drawn against the moving party. Luciano v. The Olsten Corp., 110 F.3d 210, 214-15 (2d Cir.1997); EEOC v. Ethan Allen, Inc., 44 F.3d 116, 119 (2d Cir.1994). A district court may not grant a motion for judgment as a matter of law unless "the evidence is such that ... there can be one conclusion as *277 to the verdict that reasonable [persons] could have reached." Cruz, 34 F.3d at 1154-55. See also U.S. v. One Parcel of Property Located at 121 Allen Place, Hartford, Connecticut, 75 F.3d 118 (2d Cir.1996); Samuels, 992 F.2d at 14.
This is patently not such a case. The jury could have reasonably found, under the instructions given on assault and battery, that the force used by the officer, which resulted in a head injury requiring eighteen stitches and led to blurred visions and headaches, was manifestly an assault and battery under Connecticut law

C. The Doctrine of Qualified Immunity

Turning now to the specific points raised in defendant's motion for judgment, we first consider the doctrine of qualified immunity, which the moving papers misstate as sovereign immunity.
Connecticut courts describe the conduct deserving of qualified immunity as that of "the performance of governmental acts as distinguished from ministerial acts. Government acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature..... On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action" and are not deserving of qualified immunity. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185, (1988). The sine qua non is the existence of a public/private duty. Only the taking of an action which inures to the benefit of the public is qualifiedly immune. See Gordon, 208 Conn. at 166-170, 544 A.2d 1185, and cases collected therein. A strictly private act, in contradistinction, has been recognized where it would be apparent to a public officer that his or her actions would likely to subject an identifiable person to imminent harm. Shore v. Stonington, 187 Conn. 147, 153, 444 A.2d 1379 (1982).
The defendant is not qualifiedly immune under the facts of this case. The distinction between a duty owed to the public and that owed to an identified individual could not be clearer than herein. It should have been manifestly clear to defendant that the extreme beating he rained upon plaintiff clearly violated Connecticut law.

D. The Jury Charge

In his Motion for Judgment After Trial defendant also asserts that certain instructions in the jury charge on punitive damages were erroneous, in that they applied a federal, rather than a state, charge on the requirements for such damages. However, a review of the trial transcript reveals that counsel did not except to the charge. Rather, the only discourse regarding punitive damages was as follows, as defense counsel was setting forth his exceptions:
MR. SCHWARTZ: And with respect to the amount of punitive damages as to any of the state claims, 8 through 12 would be that. I believe
THE COURT: Well, that's up to me to assess, but the jury has to tell me to do that and then I  I take evidence from the parties on  what the lawyers  what the costs are.
MR. SCHWARTZ: Under any of the state law?
THE COURT: State law.
MR. SCHWARTZ: Correct.
THE COURT: Yeah.
MR. SCHWARTZ: Okay. Also  and if that's  the procedure, I think that's appropriate and I don't have any exceptions.
Absent a proper and timely exception, the present objection to the jury charge on punitive damages is deemed to have been waived.

E. The Availability of Punitive Damages For Negligent Assault

The defendant's final contention is that punitive damages are not available on a claim for negligent assault.
Connecticut courts have consistently stated that "[i]n order to award punitive or exemplary damages, evidence must reveal a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Collens v. New Canaan Water *278 Co., 155 Conn. 477, 489, 234 A.2d 825 (1967), quoted in Venturi v. Savitt, Inc., 191 Conn. 588, 592, 468 A.2d 933 (1983) and Berry v. Loiseau, 223 Conn. 786, 811, 614 A.2d 414 (1992). If the evidence discloses that a defendant was recklessly indifferent to the rights of a plaintiff, an actual intention to do harm is not necessary. Collens, 155 Conn. at 490, 234 A.2d 825.
Because an assault and battery may be committed in three ways  first, if committed willfully or voluntarily, and therefore intentionally; second, done under circumstances showing a reckless regard of the consequences; third, committed negligently  a complaint which only puts a defendant on notice that the plaintiff is allegedly seeking damages for a garden-variety "assault and battery", would be insufficient for the grant of punitive damages. Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985).
Defendant's conduct falls into the second of the three Markey strictures, i.e., this assault and battery was clearly done under circumstances showing a reckless disregard of the consequences. This complaint is laden with such charges  a laceration to plaintiff's head requiring eighteen stitches, blurred vision and headaches, for example. By incorporating the earlier counts of the complaint, defendant is legally bound to have recognized that the assault and battery he was being charged with was done with a reckless disregard of the consequences of his physical abuse of Plaintiff. As in the Markey case, this complaint went beyond a "mere bare bones allegation of assault and battery." Markey at 78, 485 A.2d 1305. The complaint "charges by reasonable inference that the defendant willfully assaulted the plaintiff. At the very least it charges that he wantonly did so." Id. at 78-79, 485 A.2d 1305. See, e.g., Complaint at ¶¶ 1, 10, 18, 20 (defendant acted "unreasonably, unlawfully and with intentional malicious and/or wanton disregard of plaintiff's rights"), ¶ 26. The complaint, when reviewed as a whole, as the Court must, gave the defendant sufficient notice that he was being charged with aggravated conduct. Markey, 195 Conn. at 79, 485 A.2d 1305. Accordingly, punitive damages are available in this case.
The claim under Fed.R.Civ.P. 51 is likewise denied. As there is no briefing on Rule 52, and the Court is left to conjecture over its applicability, the claim is deemed waived.

PART TWO:

PLAINTIFF'S MOTION FOR PUNITIVE DAMAGES
"In Connecticut, punitive damages are available and consist of a reasonable expense properly incurred in the litigation; Shupack v. Gordon, 79 Conn. 298, 303, 64 A. 740 (1906); less taxable costs. Triangle Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 127, 222 A.2d 220 (1966)." Markey, 195 Conn. at 80, 485 A.2d 1305. Accordingly, the Court must determine what fee is reasonable and which of the costs submitted are taxable.
Calculation of the amount of attorneys' fees to be granted is often referred to as the "lodestar." Such a calculation requires the Court to determine the number of hours reasonably spent on the litigation and to exclude hours which are excessive, redundant or otherwise unreasonable. Calculation of the lodestar also requires the Court to determine the "prevailing market rates" for the types of services rendered. There exists a strong presumption that the lodestar figure represents a reasonable fee. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). Limited success at trial must be taken into consideration and may rebut this presumption, however.
After thorough and detailed review of the hours spent by plaintiff's counsel, the Court finds that none were unreasonable, unnecessary or duplicative. Similarly, in addition to their own affidavits of fee request amounts, plaintiff's counsel have submitted a very detailed affidavit of an attorney practicing in the identical market place, in the identical field. Resultantly, the Court finds that $250 per hour for lead counsel and $150 for his associate are eminently reasonable fees.
*279 Notwithstanding, the Court must take into account the fact that Plaintiff prevailed on just one of the four Counts of his Complaint. In doing so, however, the Court is mindful of the similarity of much of the evidence presented, as well as the overlap in some portions of the law. Accordingly, the Court holds that the "reasonable expenses properly incurred in this litigation" equals $23,006.25 for attorney's fees and $425.70 in nontaxable costs, in accordance with the itemized list of expenses, for a total in punitive damages of $23,431.95

CONCLUSION
For the reasons set forth herein, the Motion For Judgment After Trial [Doc. No. 31] is hereby DENIED. The Motion for Award of Punitive Damages [Doc. No. 34] is GRANTED IN PART, in the amount of $23,431.95.
The Clerk is directed to close this file.
SO ORDERED.


                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0250n.06

                                            No. 10-3199                                    FILED
                                                                                Apr 20, 2011
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                  )
                                                           )
       Plaintiff-Appellee,                                 )
                                                           )
v.                                                         )   ON APPEAL FROM THE UNITED
                                                           )   STATES DISTRICT COURT FOR
DEON RAY,                                                  )   THE NORTHERN DISTRICT OF
                                                           )   OHIO
       Defendant-Appellant.                                )
                                                           )
                                                           )

       Before: MARTIN, SUHRHEINRICH, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. In May 2007, Deon Ray pled guilty to distributing or

possessing with intent to distribute cocaine and crack cocaine, unlawfully transporting firearms, and

being a felon in possession of a firearm. See 18 U.S.C. § 841(a)(1), (b)(1)(C); 18 U.S.C. § 922(g)(1).

The district court sentenced Ray under U.S. Sentencing Guidelines § 2D1.1. The court applied a

two-level upward departure for firearm possession, a three-level downward departure for acceptance

of responsibility, and a two-level downward departure for substantial assistance. This yielded a

recommended guidelines range of 92 to 115 months. The court sentenced Ray to 115 months’

imprisonment.

       The Sentencing Commission thereafter retroactively amended § 2D1.1, reducing the base

offense levels for crack-cocaine offenses. Ray moved to reduce his sentence under 18 U.S.C.
No. 10-3199
United States v. Ray

§ 3582(c)(2), which provides that district court judges “may reduce the term of imprisonment” for

defendants who were sentenced “based on a sentencing range that has subsequently been lowered

by the Sentencing Commission . . . if such a reduction is consistent with applicable policy

statements.” The government responded by arguing—despite clear evidence to the contrary—that

Ray had been sentenced as a career offender under U.S.S.G. § 4B1.1 and was thus ineligible for

sentence modification. See United States v. Perdue, 572 F.3d 288, 292-93 (6th Cir. 2009). The

district court issued a form order denying Ray’s § 3582 motion with almost no explanation.

       On appeal, Ray’s appointed counsel inexplicably concedes that Ray was sentenced as a career

offender. He argues that Ray nonetheless qualifies for a sentence reduction because United States

v. Booker, 543 U.S. 220 (2005), rendered all the sentencing guidelines advisory. Not only does this

argument fail under Perdue and Dillon v. United States, 130 S. Ct. 2683 (2010), but it is contradicted

by the record: the district court, the government, and defense counsel all agreed at the sentencing

hearing that Ray did not qualify as a career offender.

       District courts have discretion to grant or deny § 3582 motions after conducting a two-step

inquiry. First, the court must determine the defendant’s eligibility for a sentence reduction and the

extent of the reduction authorized by U.S.S.G. § 1B1.10. Dillon, 130 S. Ct. at 2691. Second, if the

defendant is eligible, the court must consider the factors listed in 18 U.S.C. § 3553(a) and determine

whether a reduction “is warranted in whole or in part under the particular circumstances of the case.”

See id. at 2692. We conduct de novo review if the district court finds the defendant ineligible under

step one of the inquiry. See United States v. Payton, 617 F.3d 911, 913 (6th Cir. 2010). Otherwise,

we review the district court’s denial of a § 3582 motion for an abuse of discretion. See id. at 912.

                                                 -2-
No. 10-3199
United States v. Ray

       Here, we have no information on the district court’s reasons for denying Ray’s motion. In

its form order, the court merely checked the “denied” box, filled in Ray’s original sentencing

information, and stated that the “order is subject to [the] prohibition contained in USSG Sec.

1B1.10(b)(2)(C)”—a provision that does not seem relevant here. It is thus unclear whether the

district court found Ray ineligible for a reduction or whether it denied the motion as an exercise of

discretion after considering § 3553(a) factors. We therefore reverse the district court’s order and

remand for reconsideration and clarification.

                                                -3-


557 F.3d 879 (2009)
UNITED STATES of America, Appellee,
v.
Mohamad ELZAHABI, Appellant.
No. 08-1755.
United States Court of Appeals, Eighth Circuit.
Submitted: November 11, 2008.
Filed: March 5, 2009.
*881 Paul C. Engh, argued, Minneapolis, MN, Peter B. Wold, III and Aaron Morrison, Minneapolis, MN, on the brief, for appellant.
John W. VanLonkhuyzen, AUSA, argued, Washington, DC, W. Anders Folk, AUSA, Minneapolis, MN, on the brief, for appellee.
*882 Before WOLLMAN, BEAM, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
A jury convicted Mohamad Kamal Elzahabi on three counts of knowingly possessing and using a fraudulently obtained immigration document in violation of 18 U.S.C. § 1546(a). The district court[1] sentenced him to time served and two years of supervised release. Elzahabi appeals, claiming that the court should have suppressed his incriminating statements, and that the evidence was insufficient. Jurisdiction being proper under 28 U.S.C. § 1291, this court affirms.

I.

A.
Elzahabi, a citizen of Lebanon, entered the United States in May 1984 on an F-1 student visa. He coordinated with a club manager to pay a performer $5,000 to marry him. After their marriage in 1984, they held a joint bank account, but never lived together or exchanged rings, and had sexual contact once, for which Elzahabi paid.
Elzahabi filed for permanent residency on April 3, 1986, based upon the marriage. At the time, the couple indicated they lived together and she had taken Elzahabi's last name. She later testified that this information was false. Elzahabi received a green card in June 1986 which he used three times during 2001 and 2002, resulting in the three counts charged.

B.
In April 2004, the FBI, believing that Elzahabi was dangerous, began investigating his links with suspected terrorists. A police officer, Sergeant Andrew Smith, befriended Elzahabi. Elzahabi told Smith he was interested in obtaining U.S. citizenship. Smith offered to arrange a meeting with FBI agents to assist with his citizenship. Elzahabi agreed.
Elzahabi met with Smith and FBI agents Harry Samit and Chris O'Leary on the evening of April 16 to discuss citizenship. After preliminary discussion, the agents invited him to continue the interview at their field office, which Elzahabi accepted. Elzahabi and the agents arrived at the FBI office at about 1:00 a.m. on April 17. The agents informed Elzahabi that the interview was voluntary, that he did not have to continue speaking with them, and that he could change his mind at any time about talking to them.
The agents interviewed Elzahabi in the break room of the FBI office from 1:00 a.m. until 6:00 or 7:00 a.m. on April 17. The agents asked about his marriage. Elzahabi replied, "This is against me one-hundred percent. Let's put that aside." The agents immediately stopped questioning about the marriage, but continued the interview. At the end of the interview, the agents thanked Elzahabi for his cooperation, reminding him the interview was voluntary. The agents offered him the option of terminating the interview and going home, or staying at a hotel at the FBI's expense, with more interviews the next evening. Elzahabi accepted the second option. Two agents accompanied him at all times during his hotel stay.
The second interview occurred on April 17 between 7:00 p.m. and midnight. Before questioning, the agents informed Elzahabi that the interview was voluntary, that he could stop talking at any time, and *883 that he had the right to an attorney if he desired. Elzahabi replied that he did not need an attorney, expressing eagerness to continue the interview.
The interviews continued until May 4. For all interviews after April 17, agents advised Elzahabi of his Miranda rights. On April 19 and May 3, he made incriminating statements about his marriage. On May 4, Elzahabi decided to terminate the interviews. The agents stopped the questioning, and released him. Later that day, Elzahabi was arrested by federal agents on an unrelated warrant.

II.
Before trial, Elzahabi moved to suppress statements he made during his interviews with the agents, arguing that their failure to give him Miranda warnings at the outset of questioning on April 17 rendered all his statements inadmissible. The district court denied the motion, ruling that the agents had no obligation to give Miranda warnings because Elzahabi was not in custody.[2]
This court reviews for clear error a district court's factual determinations supporting a denial of a motion to suppress, and its conclusions of law, including the ultimate question of custody, de novo. United States v. Flores-Sandoval, 474 F.3d 1142, 1144 (8th Cir.2007); United States v. Ollie, 442 F.3d 1135, 1137 (8th Cir.2006). This court reverses a denial of a motion to suppress only if the decision "is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made." Flores-Sandoval, 474 F.3d at 1144, quoting United States v. Harper, 466 F.3d 634, 643 (8th Cir.2006).

A.
Law enforcement officials must administer Miranda warnings before interrogating individuals in their custody. United States v. Brave Heart, 397 F.3d 1035, 1038 (8th Cir.2005). An individual is in custody when placed under formal arrest, or when his or her freedom is restricted to a degree akin to formal arrest. Ollie, 442 F.3d at 1137. Whether Elzahabi was in custody turns on whether, under the totality of the circumstances he faced at the time of his questioning, a reasonable person in his position would have felt free to end the interrogation and leave. See Brave Heart, 397 F.3d at 1038-39.
In United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990), this court identified six factors to consider in determining whether an individual is in custody for the purposes of Miranda: (1) whether the suspect was informed that he or she was free to leave and that answering was voluntary; (2) whether the suspect possessed freedom of movement; (3) whether the suspect initiated contact or voluntarily acquiesced; (4) whether strong-arm tactics or strategies were employed; (5) whether the atmosphere was police-dominated; or, (6) whether the suspect was placed under arrest at the end of questioning. Id. These factors are not exclusive; custody "cannot be resolved merely by counting up the number of factors on each side of the balance and rendering a decision accordingly." United States v. Czichray, 378 F.3d 822, 827-28 (8th Cir.2004). The "most obvious and effective means of demonstrating that a suspect has not been taken into custody" is an express advisement that the suspect is not under arrest and that his participation in questioning is voluntary. Brave Heart, 397 F.3d at 1039, quoting Griffin, 922 F.2d at 1349.
*884 The district court correctly held that the agents made clear to Elzahabi that he was free to leave the interview, and that his answering was voluntary. See Ollie, 442 F.3d at 1138. Before the first interview on April 17, the agents advised him that his participation was voluntary and that he could terminate the interview whenever he wished. The agents repeated this advice before questioning him again on the evening of April 17. An "explicit assertion that the defendant may end the encounter .... generally removes any custodial trappings from the questioning." Id. The district court properly concluded that the repeated and explicit advice by the agents weighed heavily toward a finding of non-custodial status.
Elzahabi counters that a reasonable person would not have felt free to terminate the April 17 interviews because they took place in the break room of the FBI field office. The critical inquiry is not whether the interview took place in a coercive environment, but rather whether the defendant's "freedom to depart was restricted in any way." See United States v. LeBrum, 363 F.3d 715, 720 (8th Cir.2004) (en banc), quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Elzahabi presented no evidence that the agents restrained his freedom of movement during questioning. Where there is no clear indication that the defendant's freedom to depart is restricted, a police station interview is non-custodial. Id. at 723.
Elzahabi also contends that in determining custody, deceit should weigh heavily against the government. However, "the coercive aspects of a police interview are largely irrelevant to the custody determination except where a reasonable person would perceive the coercion as restricting his or her freedom to depart." Id. at 721. Elzahabi claims that deceit by Smith and the agents led him to believe that he was consulting FBI agents to discuss citizenship. As in LeBrum, whatever coercion existed in this case would not be perceived by a reasonable person as restricting his freedom to depart. Id. at 722. The agents repeatedly advised Elzahabi he was free to leave, they never physically restrained him, and never placed him in handcuffs. The district court correctly concluded that Elzahabi was not in custody on April 17.

B.
Elzahabi alternatively argues that the failure of the agents to advise him of his Miranda rights on April 17 tainted his subsequent Mirandized interviews, in violation of Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). Seibert requires that a court determine whether an officer's interrogation technique was a "designed," "deliberate," or "calculated" circumvention of Miranda. United States v. Black Bear, 422 F.3d 658, 664 (8th Cir.2005), citing Seibert, 542 U.S. at 618, 124 S.Ct. 2601 (Kennedy, J., concurring).
The totality of the circumstances does not support the conclusion that the FBI used a deliberate strategy of staged interrogations. See Black Bear, 422 F.3d at 664. The agents advised Elzahabi before each interview on April 17 that his participation was voluntary and that he could stop questioning at any time. Before the second interview, they added that he had the right to have an attorney present. Further, the only statements used at trial came several days after the non-Mirandized statements were made on April 17. See Id. This court rejects Elzahabi's assertion that the FBI's failure to Mirandize him before the April 17 interviews tainted subsequent interrogations.

*885 III.
Elzahabi claims that there was insufficient evidence to support a guilty verdict under § 1546(a). This court reviews the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the jury verdict and giving the verdict the benefit of all reasonable inferences. United States v. Birdine, 515 F.3d 842, 844 (8th Cir.2008). This court reverses "only if no reasonable jury could have found the defendant[ ] guilty." United States v. Johnson, 450 F.3d 366, 372 (8th Cir.2006).
Section 1546(a) makes it a crime to possess or use an alien registration receipt card, knowing it "to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained." 18 U.S.C. § 1546(a).
As in the district court,[3] Elzahabi argues that the evidence was insufficient because the prosecution failed to prove that his marriage was invalid. In Lutwak v. United States, the Court considered convictions for conspiring to commit immigration fraud in violation of § 1546. The Court upheld their convictions despite the formal validity of the marriages:
"We do not believe that the validity of the marriages is material. No one is being prosecuted for an offense against the marital relation.... [W]hen one of the aliens stated that he was married, and omitted to explain the true nature of his marital relationship, his statement did, and was intended to, carry with it implications of a state of facts which were not in fact true."
344 U.S. 604, 611-12, 73 S.Ct. 481, 97 L.Ed. 593 (1953).
Elzahabi relies on two cases distinguishing Lutwak. See United States v. Diogo, 320 F.2d 898, 905 (2d Cir.1963); United States v. Lozano, 511 F.2d 1, 5-6 (7th Cir.1975). The Diogo court recognized Lutwak, but reasoned that § 1546 encompassed two distinct offensesconcealment of a material fact and false representation. 320 F.2d at 902. According to the Diogo majority, Lutwak prohibited considering the validity of the marriage only where the charges alleged concealment of a material fact. Id. at 904. On the false representation charges before it, the Diogo court reversed the convictions because the prosecution "failed ... to sustain its burden of [] proving that the marriages were void at the time appellant's representations concerning the marital status were made." Id. at 909; see also Lozano, 511 F.2d at 5 ("[W]e choose to follow the reasoning of the Second Circuit [in Diogo] and to vacate the judgment and sentence on [the false statement] counts.").
Other courts have questioned Diogo's reasoning. See United States v. Yum, 776 F.2d 490 n. 2 (4th Cir.1985) ("We reject the reasoning of [Diogo and Lozano] and follow that of the Supreme Court in Lutwak."); United States v. Bolden, 23 M.J. 852, 854-55 (A.F.C.M.R.1987) (following the Diogo dissent and Yum), aff'd 28 M.J. 127 (C.M.A.1989); cf. Diogo, 320 F.2d at 909 (Clark, J., dissenting).
The Lutwak court favorably discussed United States v. Rubenstein, 151 F.2d 915 (2d Cir.1945). 344 U.S. at 612-13, 73 S.Ct. 481. In that case, the Second Circuit upheld a conviction of conspiring to bring an alien into the country by false representations, false documents, and concealment of material facts, even though the marriage was valid.[4]Rubenstein, 151 F.2d at 918. *886 Neither Lutwak nor Rubenstein draws a distinction between false representation and concealment charges.
This court need not choose among the circuits because the present case is a concealment offense not distinguishable from Lutwak. See Diogo, 320 F.2d at 903 ("It is conceded by the Government that the basic substantive offense with which the present indictment charges each of the appellants is that of making false representations with respect to his marital statute."); Lozano, 511 F.2d at 5 ("[T]hese indictments turn on whether it was a false statement to say that petitioner was married...."). In the present case, Elzahabi was indicted and prosecuted on a concealment charge. See United States v. Pantelopoulos, 336 F.2d 421, 424 (2d Cir.1964) (following Lutwak where "[u]nlike United States v. Diogo, there was no charge in this case that the conspirators had falsely represented the alien's marital status."). The government presented evidence at trial that Elzahabi obtained his green card by concealing the nature of his marriage. The government established that he then used his green card three times during 2001 and 2002. A reasonable juror could conclude that there was sufficient evidence to find Elzahabi guilty beyond a reasonable doubt. See United States v. Amahia, 825 F.2d 177, 182 (8th Cir.1987) (rejecting an insufficiency claim where the defendant entered a sham marriage and lied to INS agents).
Elzahabi also argues that his marriage was statutorily legal in 1984, before the Immigration Marriage Fraud Amendments of 1986 were enacted. See Pub.L. No. 89-236, 79 Stat. 911 (October 3, 1965); Pub.L. 99-639, 100 Stat. 3537 (Nov. 10, 1986). While the 1986 amendments did change certain provisions in immigration law, they did not change the language or elements of § 1546. Upholding the defendants' convictions in Lutwak, the Court stated in 1953 that "Congress did not intend to provide aliens with an easy means of circumventing [its] system by fake marriages in which neither of the parties ever intended to enter into the marital relationship." 344 U.S. at 611, 73 S.Ct. 481.
Elzahabi next challenges the denial of his jury instruction defining marriage consistent with Diogo and Lozano. A defendant is entitled to a theory-of-defense instruction that is timely requested, supported by the evidence, and correctly states the law. United States v. Claxton, 276 F.3d 420, 423 (8th Cir.2002). This court concludes that Diogo and Lozano do not completely state the law for this case. The district court committed no error in denying the instruction. See United States v. Johnson, 278 F.3d 749, 752 (8th Cir.2002) (affirming jury instructions if, as a whole, they "fairly and adequately submitted the issues to the jury").

IV.
The judgment of the district court is affirmed.
NOTES
[1]  The Honorable John R. Tunheim, United States District Judge for the District of Minnesota.
[2]  United States v. Elzahabi, 502 F.Supp.2d 915 (D.Minn.2007).
[3]  United States v. Elzahabi, 517 F.Supp.2d 1121 (D.Minn.2007).
[4]  The defendant in Rubenstein was convicted under 8 U.S.C. § 220(c), the precursor to 18 U.S.C. § 1546. See Lutwak, 344 U.S. at 608, 73 S.Ct. 481.