Gutierrez v. Commissioner Social Security Administration, No. 3:2012cv02016 - Document 22 (D. Or. 2014)
Court Description: OPINION AND ORDER. For the reasons stated above, the Commissioner's final decision denying benefits to plaintiff is AFFIRMED. IT IS SO ORDERED. Signed on 03/24/2014 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON CONNIE GUTIERREZ Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. BRUCE BREWER P.O. Box 421 West Linn, OR 97068 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Ave., Suite 600 Portland, OR 97204-2902 L. JAMALA EDWARDS Social Security Administration Office of the General Counsel 701 Fifth Ave., Suite 2900, M/S 221A Seattle, WA 98104 Attorneys for Defendant 1 - OPINION AND ORDER Case No. 3:12-cv-02016-MA OPINION AND ORDER MARSH, Judge Plaintiff Connie Gutierrez seeks judicial review of the final of decision the Commissioner of denying Security Social her applications for a period of disability benefits and disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C §§ and 401-403, Supplemental Income Security (SSI) disability benefits under Title XVI of the Social Security Act, 42 This Court has jurisdiction pursuant to 42 U.S.C. §§ 1381-1383f. U.S.C. For the reasons that follow, this court affirms 405(g). § the decision of the Commissioner. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff protectively filed an application for a period of disability and disability insurance benefits on September 17, 2009. Plaintiff security protectively income on filed January an 11, application 2010. In supplemental for her applications, plaintiff alleges disability beginning September 12, 2009, due to chronic pain in her hips, knees, ankles, feet and low back. Plaintiff's claims were denied initially and on reconsideration. Plaintiff filed a request for a hearing before an administrative law judge (ALJ). An ALJ held a hearing on May 5, 2011, at which plaintiff appeared with her attorney and testified. expert, Amberly M. Ruck, also appeared and testified. 2011, the ALJ issued an unfavorable decision. 2 - OPINION AND ORDER A vocational On May 19, The Appeals Council denied her request for review, therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review. Plaintiff was 52 years old on the date of the hearing and has caregiver, past relevant work as a a dietaiy aide/food service worker, and a housekeeper. THE ALJ'S DISABILITY ANALYSIS At step one, the ALJ found that plaintiff had not engaged in any substantial gainful activity since her alleged onset date. found ALJ the two, step impairments: severe following the At degenerative joint disease of both hips and knees, and obesity. At have an the three, step impairment Listing. or ALJ found combination of that plaintiff impairments does that not meet or equal a The ALJ found that plaintiff has the residual functional capacity (RFC) to perform light work except that she can lift 20 pounds occasionally and ten pounds frequently, she can stand and walk for four hours total in an eight hour work day, she has no limitations with sitting, and can only occasionally crawl, climb or kneel. At step four, the ALJ found perform her past relevant work. that plaintiff At step five, is unable to the ALJ concluded that plaintiff is not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff contends that the following errors were committed: 3 - OPINION AND ORDER (1) the ALJ failed to properly evaluate her credibility; (2) the ALJ failed to properly evaluate the testimony of Patricia Buckley, P.A.-C/N.D., her treating physician assistant; (3) the ALJ failed to properly credit the lay testimony of Thomas Valdez, plaintiff's ex-husband; and (4) the ALJ erroneously relied on the vocational testimony of Ms. Ruck because it diverged from the Dictionary of Occupational Titles. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 405(g); Andrews v. Shalala, 53 F.3d 1035, 1039 42 U.S.C. (9th Cir. § 1995). ¢substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.; Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). The court must weigh all the evidence, supports or detracts from the Commissioner's decision. Heckler, 807 F.2d 771, 772 decision must be upheld, (9th Cir. 1986). whether it Martinez v. The Commissioner's even if the evidence is susceptible to more than one ratio~al interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F. 3d 1190, 1193 (9th Cir. 2004); Andrews, 53 F. 3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; ¢the court may not 4 - OPINION AND ORDER Edlund v. substitute its judgment for that of the Commissioner." Massanari, 253 F. 3d 1152, 1156 (9th Cir. 2001). DISCUSSION I. The ALJ Did Err in Evaluating Plaintiff's Credibility Standards A. determine To a whether regarding testimony claimant's subjective pain or symptoms is credible, an ALJ must perform two 20 C.F.R. stages of analysis. is stage a threshold in test §§ 404.1529, which the 416.929. The first claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Smolen v. Chater, 80 F. 3d 1273, 1282 (9th Cir. 1996). At the second stage of the credibility analysis, absent affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the symptoms. Carmickle v. Commissioner, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.2007). The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that arbitrarily discredit the claimant's testimony. F.3d at 1039; 2002), Thomas v. Barnhart, did not Tommasetti, 533 the 278 F.3d 947, ALJ 958 (9th Cir. Factors the ALJ may consider when making such credibility 5 - OPINION AND ORDER determinations claimant's treatment objective the include history, the medical claimant's evidence, the daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain and medication, relevant character evidence. Tommasetti, 533 F.3d at 1039. B. Analysis At the hearing, plaintiff testified that she has had ongoing knee problems which caused her stop working in December of 2009. Plaintiff stated that her right leg went numb while working her shift as a school janitor. Plaintiff stated that she tried to work as a hotel front desk clerk, but that job caused her hips to hurt from sitting too long, and that while standing, her knee would "lock up" and swell. Plaintiff testified that while working as a hotel housekeeper in 2007, she was hit on the head with a metal object. Plaintiff testified that a friend told her that she may have had a ministroke and to seek treatment. Plaintiff stated that since being hit on the head, she has difficulty finding words, gets overwhelmed easily and can have panic attacks when in a crowd. Plaintiff testified that she has gained 43 pounds since she has stopped working 2009, and currently weighs 276 pounds and is five feet four inches tall. Plaintiff stated that her knees swell with exercise, and that she must recline to alleviate the pain and swelling. Plaintiff testified that she can drive, but prefers not 6 - OPINION AND ORDER to because her knees lock up. Plaintiff is able to grocery shop, but must lean on the cart for support in case her knee gives out. Plaintiff stated that she sleeps in a recliner because it is more comfortable. Plaintiff stated that she elevates her legs for a couple of hours each day, periodically throughout the day. 2010 Function Report, In a January 30, plaintiff described that she is able to perform all self care, and that she is more since her head injury. forgetful Plaintiff described that she cooks meals, taking 45 to 90 minutes. Plaintiff stated that she does not do yard work, but does clean the house or do laundry for 45 minutes at a time before needing to rest. Plaintiff described that she can easily loose her balance, has low energy, and tires easily. Plaintiff stated that she can walk one city block before has no difficulty paying attention, needing to rest, can follow written instructions ftexactly,H has some difficulty with spoken instructions, and has no difficulty getting along with others. In a Pain Fatigue and Questionnaire, plaintiff described having pain that reaches from her lower back to her toes, and that sitting or walking for an hour or more causes pain. stated that any continuous exacerbates her pain. sitting, walking, or Plaintiff standing Plaintiff stated that she takes three or four naps each day, lasting from 20 minutes to two hours in length. Plaintiff also described that she can only be active for four hours before needing to rest. 7 - OPINION AND ORDER In the decision, the determinable medically concluded ALJ impairments that that could plaintiff has reasonably be expected to produce some symptoms, but that plaintiff's statements concerning the intensity, persistence, and limiting effects of those symptoms are not entirely credible. Contrary to plaintiff's assertion, clear and convincing reasons, the ALJ provided three citing specific record evidence, which undermine her subjective complaints. activities of daily living 1. The ALJ found that plaintiff's wide range of activities of daily living are inconsistent with the level of disability she alleges. For example, the ALJ discussed that plaintiff is capable of performing all household chores (with breaks), she drives a car with manual transmission, works in the yard, raises chickens, helps her children with school work, and cooks full meals. The ALJ also noted that plaintiff regularly talks with friends, and plays cards and games board findings are with wholly members. friends and family supported by substantial The evidence ALJ' s in the record. I reject plaintiff's argument that the ALJ erred by failing to find that plaintiff engaged in the activities of daily living for See Vertigan v. Halter, 2 60 F. 3d a "substantial part" of each day. 1044, 1050 (9th Cir. 2001). My careful review of the record reveals that the ALJ's findings readily meet this standard. 8 - OPINION AND ORDER In this case, plaintiff indicated that on a typical day, she rises at 5 a.m., has breakfast, gets children her off to school, then returns home to clean and do laundry for 45 minutes before needing to rest. After school, plaintiff reported she assists her children with homework and drives them to their activities. Additionally, as the ALJ correctly noted, plaintiff reported that she is able to Moreover, plaintiff reported prepare meals for 45 to 90 minutes. to her physician assistant that the pain in her legs is at its worst after she is in the car for a "few hours" or working in the Tr. 335. yard caring for her 20 chickens. Based on this significant evidence in the record, I conclude that the ALJ could discredit plaintiff because her level of activity is inconsistent with the degree of impairment that she alleges. See Berry v. Astrue, 622 F.3d 1228, 1235 (9th Cir. 2010) (inconsistencies between self-reported symptoms and activities supported adverse credibility finding); Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) ("[e]ven where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent they contradict claims of a totally debilitating impairment"). Accordingly, the ALJ provided a clear and convincing reason, supported by substantial evidence, for rejecting plaintiff's subjective symptom statements. /Ill !Ill 9 - OPINION AND ORDER 2. The lack of objective medical evidence ALJ found plaintiff's objective medical record inconsistent with her allegations of debilitating symptoms. was When the claimant's own medical record undercuts her assertions, the ALJ may rely on that contradiction to discredit the claimant. 481 Astrue, F.3d 742, 750-51 (9th Cir. 2007); Parra v. Morgan v. Commissioner Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). The ALJ's findings are supported by substantial evidence in the To be sure, the record contains very few medical records record. prior to plaintiff filing her social security applications in 2010. As the ALJ noted, plaintiff's emergency room records relating to her on-the-job injury in 2007 revealed normal neurological test results. Additionally, the ALJ discussed that plaintiff was examined by Zachary Steinberg, M.D., on February 11, 2010. Dr. Steinberg's notes indicate that plaintiff reported she has suffered knee and yet she The ALJ noted that Dr. hip pain since 2005 that limited her ability to walk, admitted not receiving any treatment. Steinberg observed normal gait and strength in plaintiff's legs, and that Dr. Steinberg found no objective explanation for the plaintiff's reported loss of sensation in her right ankle. Dr. opined that Steinberg diagnosed plaintiff with bursitis, and plaintiff had no functional limitations due to her back and knee pain. Tr. 309-313. 10 - OPINION AND ORDER The ALJ also discussed that plaintiff established care with Ms. Buckley, her treating physician assistant ip April of 2010. Ms. Buckely's treatment notes indicate that plaintiff reported she was not taking any medication for her knee pain and hip pain at that time. Tr. 326-27. In an April 27, 2010 follow-up treatment note, t Ms. Buckley indicated that plaintiff acknowledged difficulty --· with weight control, and understood contributing to her knee pain. take ibuprofen for pain. that her weight gain was Ms. Buckley advised plaintiff to Tr. 329. In June and July of 2010, Ms. Buckley discussed cortisone injections for plaintiff's knee and hip pain, as well as diet modification, increased exercise and physical The ALJ discussed that Ms. therapy. Buckley's January 7, 2011 treatment note shows that plaintiff reported decreased hip pain with physical therapy. The ALJ accurately stated that Tr. 337. Ms. Buckley recommended treating plaintiff's knee pain and swelling Tr. with ibuprofen, naproxen, and ice. 329, 335, 340. The ALJ discussed imaging showing that plaintiff has some degeneration in her knees. Additionally, the ALJ accurately discussed a March 28, 2011 examination conducted by Robert Earl Clinic. at the Legacy Bone Mr. Earl's evaluation revealed normal gait and that she ambulated well. plaintiff continue therapy, P.A., As the ALJ indicated, conservative alternating heat 11 - OPINION AND ORDER and Mr. treatment, ice, weight Earl recommended including loss, physical and over-the- counter anti-inflammatorie s and Tr. 367-69. naproxen) . In ibuprophen as such (NSAIDs, short, the ALJ concluded reasonably that the minimal objective medical evidence in the record is inconsistent with the degree plaintiff's of symptoms subjective and appropriately discounted her credibility on this basis. 3. The conservative treatment ALJ also discounted of all- conservative treatment disabling pain in light of the minimal, evidenced in the record. allegations plaintiff's A conservative course of treatment is a permissible negative inference sufficient to discount a claimant's testimony regarding the severity of an impairment. 533 F.3d at 1039; Parra, 481 F.3d at 750-51. reflects that plaintiff concerning her hip pain. responded Tr. 337. well to Tommasetti, Indeed, the record physical therapy As the ALJ discussed, plaintiff reported extreme chest pain that completly resolved with a rib manipulation and Maalox. As discussed above, plaintiff's treatment providers consistently recommended only conservative treatment such as physical therapy, weight loss, ibuprofen, and naproxen, and ice for her knee pain. the record reveals that Ms. one- ¢.veek dose of hydrocodone Additionally, Buckley provided plaintiff a increased knee pain with exercise. for Despite her allegations of disabling pain, there is no evidence in the record that plaintiff presently takes anything other than over-the-counter medication for 12 - OPINION AND ORDER pain. The ALJ's findings are supported by substantial evidence, and thus, the ALJ reasonably discounted plaintiff's credibility on Tommasetti, 533 F.3d at 1040. this basis. In summary, justifying the the ALJ made specific findings decision to disbelieve plaintiff's allegations of the intensity, Taken as a whole, persistence and limiting effects of her pain. the ALJ's reasons for rejecting plaintiff's pain testimony are clear and convincing and are supported by substantial evidence in the record. II. The ALJ Did Not Err in Evaluating the Opinion of Ms. Buckley complains Plaintiff that ALJ the improperly opinion of her physician assistant, Ms. Buckley. the rejected In a May 13, 2011 letter, Ms. Buckley opined that plaintiff has: severe medial moderately to moderate narrowing in the patellofemoral joint space left knee and some fragmentation of the tibial She has been tuberosity of the right knee. referred to orthopedics for these problems . . . . . She is certainly unable to be on her feet for four hours a day five days a week. Tr. 371. prevents Ms. her Buckley also from that noted her exercising, knee plaintiff's obesity contributes pain to her condition, and that plaintiff's condition was unlikely to improve. Plaintiff contends that the ALJ provided inadequate reasons to Buckley's discount Ms. properly credited, opinion, plaintiff 13 - OPINION AND ORDER is and that disabled when the under opinion the is Medical- Vocational Guidelines (the "Gridsn) . Plaintiff's arguments fail for multiple reasons. First, under the social security regulations governing the weight to be accorded to medical opinions, "acceptable medical sourcesn include licensed physicians and licensed psychologists, but not (d) (1). (d) (1), 416.913 (a), "other sources. n Id. the existence of a information severity of from a See assistants. physician 20 C.F.R. §§ 404.1513(a), Physician assistants are deemed to be "Othern medical sources may not establish medically determinable impairment, but, the insight into the ability to other sources claimant's may provide impairments and especially where the evidence is complete and detailed. 06-03p, available at 2006 WL 2329939, *4-5. work, See SSR The record does not show that Ms. Buckley worked under a physician's close supervision. See Molina, 674 F.3d at 1111-(noting that a physician assistant who works under supervision of a physician may be deemed an acceptable medical source) . Thus, the ALJ accurately found that Ms. Buckley was an "other sourcen under the regulations, and as such, the ALJ was required only to provide a germane reason for discounting her opinion. See, (9th Cir. Bruce v. As true, 557 F.3d 1113, 1115-16 2009) (explaining standard for lay witness testimony); Turner v. 1223-24 (9th Cir. Commissioner Soc. Sec. Admin., 2010) (same) . 14 - OPINION AND ORDER 613 F.3d 1217, Second, contrary to plaintiff's suggestion, the ALJ did not discount opinion Buckley's Ms. solely because is she not an acceptable medical source, nor did the ALJ fail to give her opinion See of plaintiff's impairments consideration. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (an ALJ must explain. why "significant probatiVe" evidence has been To be sure, the ALJ's decision throughly discussed all rejected) of Ms. Buckley's treatment notes and her opinion letter, and gave it less weight because her opinion was objective medical evidence, which inconsistent with other showed minimal limitations. Inconsistency with other objective medical evidence is an adequate reason to discount a physician's opinion. See Molina, 674 F.3d at 1112 (giving less weight to physician assistant opinion where it conflicted with opinion of a physician). Here, the ALJ gave plaintiff the benefit of the doubt concerning her alleged pain and incorporated Ms. Buckley's opinion that plaintiff could not stand and walk for more than four hours into the RFC, but otherwise rejected Ms. Buckley's described limitations. Third, as discussed more thoroughly above, the ALJ could reasonably conclude that Ms. Buckley's opinion concerning greater limitations was inconsistent with other objective medical evidence in the record. For example, the ALJ discussed that Dr. Steinberg opined that plaintiff had no functional limitations resulting from her knee and hip pain. 15 - OPINION AND ORDER And, as the ALJ discussed, Mr. Earl found that plaintiff plaintiff's had a normal neuromuscular gait, evaluation well, ambulated was essential Moreover, Mr. Earl advised that plaintiff exercise, discounted Ms. Buckley's opinion. Molina, that normal. lose weight, Based on the lack take ibuprofen and naproxen, and ice her knees. of objective medical evidence in the record, and the ALJ reasonably 674 F.3d at 1112. I find no error in the ALJ's evaluation of the medical evidence. Lastly, plaintiff's contention that when Ms. Buckley's opinion is credited, plaintiff is disabled under the Grids misses the mark. Plaintiff's lifting restriction falls in the ftlight" work category. See 20 C.F.R. § 404.1567(b) (defining ftlight" as work that ftinvolves lifting no more than 20 pounds at a time, with frequent lifting or carrying of objects weighing up to 10 pounds"). challenge the ALJ's findings concerning her Plaintiff does not lifting ability. Generally speaking, to be considered capable of the full range of light work, a claimant must be capable of a good deal of walking, usually up to six hours a day. case, however, 20 C.F.R. § 404.1567(b). In this the ALJ determined that plaintiff could perform ftlight work as defined in 20 C.F.R. § 404.1567(b) except ... stand Tr. 19 (emphasis and walk four hours total in an eight hour day." added) . Thus, the ALJ concluded that plaintiff was capable of a modified range of light work, not sedentary work. Therefore, because plaintiff's exertional limitations did not fall completely within a particular Grid rule, 16 - OPINION AND ORDER the ALJ used the Grids as a expert. framework, and appropriately consulted a vocational In short, I conclude that the Thomas, 278 F.3d at 960. ALJ did not err in evaluating Ms. Buckley's opinion and properly applied the Grids as a framework and took from testimony the vocational expert. III. The ALJ Did Not Err in Evaluating the Lay Testimony Lay witness testimony as to a cla1mant's symptoms or how an impairment affects his ability to work is competent evidence, which the ALJ must take into account. See Bruce, 557 F. 3d at 1115; Stout v. Commissioner, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The ALJ is required to account for competent lay witness testimony, and if it rejected, is provide germane reasons for doing so. Valentine, 574 F.3d at 694. Plaintiff's ex-husband, Thomas Valdez, provided a third party function report, limitations. Tr. describing 197-204. plaintiff's activities and Mr. Valdez described that plaintiff gets the kids ready for school, breaks, daily performs household chores with and then naps for the remainder of the day. Mr. Valdez stated that plaintiff can prepare meals, but becomes tired, that pain interrupts plaintiff's sleep. Mr. and Valdez stated that plaintiff socializes with friends, plays cards, watches television, can follow instructions, and tires easily when climbing stairs or walking long distances. 17 - OPINION AND ORDER The ALJ thoroughly discussed Mr. Valdez's function report and found that his statements were credible to the extent that they described his observations, but discounted his testimony because it was undermined by the discussed concluded that As evidence and ALJ the above, lack of objective medical evidence. did it the analyzed support not medical greater limitations. Inconsistency with the medical testimony is a germane reason to Bayliss v. Barnhart, 427 F.3d discount Mr. Valdez's lay testimony. 1211, 1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 512 (9th Additionally, I conclude that Mr. Valdez's testimony Cir. 2001). largely echoes plaintiff's testimony that the ALJ appropriately Thus, discounted. even if the ALJ erred in evaluating the lay it was inconsequential to the ultimate nondisability determination. See any testimony, Molina, 674 F.3d such at claimant's rejecting 1117-18 harmless was error (ALJ's testimony because reasons well-supported apply equally to lay for witness testimony describing the same limitations); Valentine, 574 F.3d at 694 IV. (same) . The ALJ Did Not Err at Step Five In step five, the Commissioner must show that the claimant can do other work that exists in the national economy. F.3d at 1043. The Commissioner can satisfy this Andrews, 53 burden by eliciting the testimony of a vocational expert with a hypothetical question that sets out all of the claimant's limitations that are 18 - OPINION AND ORDER Tackett v. supported by substantial evidence. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). Plaintiff information complains from the that the vocational ALJ expert Dictionary of Occupational Titles. erred that in relying diverged from upon the According to plaintiff, light work requires plaintiff to be on her feet for six hours a day, yet the ALJ's RFC limits plaintiff to four hours. Plaintiff contends that the ALJ failed obtain to an explanation for the divergence from the vocational expert under SSR 00-04p, which requires an ALJ ask a vocational expert whether her testimony conflicts with the Dictionary of Occupational Titles. 1149, 1153-54 (9th Cir. 2007). Massachi v. Astrue, 486 F.3d I disagree. Here, in the ALJ's hypothetical to the vocational expert, the ALJ inquired whether jobs existed in the national economy with an RFC including the plaintiff's restrictions, should not stand or walk for four hours. and that the person Tr. 51. The vocational expert responded that the position of office helper did not require standing or walking for more than four hours, and that the office helper position also permitted an individual to change positions from sitting to standing at least response to the ALJ's questioning, that her testimony Occupational Titles. 19 - OPINION AND ORDER was Tr. hourly. in the vocational expert stated consistent 52. Additionally, with Thus, the the ALJ Dictionary performed of the appropriate inquiry under SSR 00-04p, and plaintiff's contention otherwise is rejected. Having found no error in the ALJ's credibility determination or evaluation of the medical evidence, I conclude that the RFC was based upon all of plaintiff's limitations the ALJ found credible and supported by substantial evidence, and therefore, the ALJ could rely upon the vocational expert's testimony. The ALJ did not err at Step Five. CONCLUSION For the reasons stated above, the Commissioner's final decision denying benefits to plaintiff is AFFIRMED. IT IS SO ORDERED. DATED this :Z t{ day of MARCH, 2014. Malcolm F. Marsh United States District Judge 20 - OPINION AND ORDER
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