Janssen v. Colvin (previously Astrue), No. 2:2012cv00502 - Document 25 (E.D. Wash. 2013)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - denying 15 Motion for Summary Judgment; and granting 20 Motion for Summary Judgment. Signed by Senior Judge Fred Van Sickle. (CC, Case Administrator)

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Janssen v. Colvin (previously Astrue) Doc. 25 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 ANITA M. JANSSEN, NO: CV-12-502-FVS Plaintiff, 8 v. 9 10 11 CAROLYN W. COLVIN, Acting Commissioner of Social Security, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 12 Before the Court are cross-motions for summary judgment, ECF Nos. 15, 13 20. The Court has reviewed the motions, the memoranda in support, the Plaintiff’s 14 reply memorandum, and the administrative record. 15 JURISDICTION 16 Plaintiff Anita M. Janssen protectively filed an application for Supplemental 17 Security Income (“SSI”) on April 22, 2009. (Tr. 20, 165-67.) Plaintiff initially 18 alleged an onset date of April 22, 2003; however, Plaintiff orally amended her 19 onset date to April 22, 2009, the application date. (Tr. 49, 165.) Benefits were 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 denied initially and on reconsideration. On April 19, 2010, Plaintiff timely 2 requested a hearing before an administrative law judge (“ALJ”). (Tr. 88-90.) A 3 hearing was held before ALJ Caroline Siderius on January 20, 2011. (Tr. 34-43.) 4 The Plaintiff was unrepresented at the January 20 hearing and decided at the 5 hearing that she would benefit from the services of counsel. Ms. Janssen retained 6 the services of Maureen Rosette, and a second hearing was held on May 16, 2011. 7 (Tr. 44.) At that hearing, testimony was taken from vocational expert Thomas 8 Polsin; and the claimant, Ms. Janssen. (Tr. 44.) On June 6, 2011, ALJ Siderius 9 issued a decision finding Plaintiff not disabled. (Tr. 20-29.) The Appeals Council 10 denied review. (Tr. 1-3.) This matter is properly before this Court under 42 11 U.S.C. § 405(g). 12 STATEMENT OF THE CASE 13 The facts of this case are set forth in the administrative hearing transcripts 14 and record and will only be summarized here. The Plaintiff was thirty-one years 15 old when she applied for benefits and was thirty-three years old when ALJ Siderius 16 issued her decision. The Plaintiff currently is unemployed and lives in a trailer 17 with her two children. The Plaintiff has not worked since leaving a job at a call 18 center in 2003. The Plaintiff describes myriad conditions that keep her from 19 finding employment, including ankle pain, back pain, migraines, and various 20 mental health restrictions that affect her ability to be social in a work setting. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 2 STANDARD OF REVIEW Congress has provided a limited scope of judicial review of a 3 Commissioner’s decision. 42 U.S.C. § 405(g). A court must uphold the 4 Commissioner’s decision, made through an ALJ, when the determination is not 5 based on legal error and is supported by substantial evidence. See Jones v. 6 Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The 7 [Commissioner’s] determination that a claimant is not disabled will be upheld if 8 the findings of fact are supported by substantial evidence.” Delgado v. Heckler, 9 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). Substantial 10 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 11 1119 n.10 (9th Cir. 1975), but less than a preponderance. McCallister v. Sullivan, 12 888 F.2d 599, 601-02 (9th Cir. 1989) (citing Desrosiers v. Secretary of Health and 13 Human Services, 846 F.2d 573, 576 (9th Cir. 1988)). Substantial evidence “means 14 such evidence as a reasonable mind might accept as adequate to support a 15 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). 16 “[S]uch inferences and conclusions as the [Commissioner] may reasonably draw 17 from the evidence” will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 18 (9th Cir. 1965). On review, the court considers the record as a whole, not just the 19 evidence supporting the decisions of the Commissioner. Weetman v. Sullivan, 877 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 F.2d 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 2 1980)). 3 It is the role of the trier of fact, not this court, to resolve conflicts in 4 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 5 rational interpretation, the court may not substitute its judgment for that of the 6 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 7 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 8 still be set aside if the proper legal standards were not applied in weighing the 9 evidence and making a decision. Brawner v. Sec’y of Health and Human Services, 10 839 F.2d 432, 433 (9th Cir. 1988). Thus, if there is substantial evidence to support 11 the administrative findings, or if there is conflicting evidence that will support a 12 finding of either disability or nondisability, the finding of the Commissioner is 13 conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 14 15 SEQUENTIAL PROCESS The Social Security Act (the “Act”) defines “disability” as the “inability to 16 engage in any substantial gainful activity by reason of any medically determinable 17 physical or mental impairment which can be expected to result in death or which 18 has lasted or can be expected to last for a continuous period of not less than 12 19 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 20 Plaintiff shall be determined to be under a disability only if his impairments are of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 such severity that Plaintiff is not only unable to do his previous work but cannot, 2 considering Plaintiff’s age, education and work experiences, engage in any other 3 substantial gainful work which exists in the national economy. 42 U.S.C. 4 §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both 5 medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 6 (9th Cir. 2001). 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a claimant is disabled. 20 C.F.R. § 416.920. Step one 9 determines if he or she is engaged in substantial gainful activities. If the claimant 10 is engaged in substantial gainful activities, benefits are denied. 20 C.F.R. §§ 11 404.1520(a)(4)(i), 416.920(a)(4)(i). 12 If the claimant is not engaged in substantial gainful activities, the decision 13 maker proceeds to step two and determines whether the claimant has a medically 14 severe impairment or combination of impairments. 20 C.F.R. 15 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant does not have a severe 16 impairment or combination of impairments, the disability claim is denied. 17 If the impairment is severe, the evaluation proceeds to the third step, which 18 compares the claimant’s impairment with a number of listed impairments 19 acknowledged by the Commissioner to be so severe as to preclude substantial 20 gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 C.F.R. § 404, Subpt. P, App. 1. If the impairment meets or equals one of the listed 2 impairments, the claimant is conclusively presumed to be disabled. 3 If the impairment is not one conclusively presumed to be disabling, the 4 evaluation proceeds to the fourth step, which determines whether the impairment 5 prevents the claimant from performing work he or she has performed in the past. 6 If the plaintiff is able to perform his or her previous work, the claimant is not 7 disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the 8 claimant’s residual functional capacity (“RFC”) assessment is considered. 9 If the claimant cannot perform this work, the fifth and final step in the 10 process determines whether the claimant is able to perform other work in the 11 national economy in view of his or her residual functional capacity and age, 12 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 13 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 14 The initial burden of proof rests upon the claimant to establish a prima facie 15 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 16 (9th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial 17 burden is met once the claimant establishes that a physical or mental impairment 18 prevents him from engaging in his or her previous occupation. The burden then 19 shifts, at step five, to the Commissioner to show that (1) the claimant can perform 20 other substantial gainful activity, and (2) a “significant number of jobs exist in the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 national economy” which the claimant can perform. Kail v. Heckler, 722 F.2d 2 1496, 1498 (9th Cir. 1984). 3 4 ALJ’S FINDINGS At step one of the five-step sequential evaluation process, the ALJ found that 5 Plaintiff has not engaged in substantial gainful activity since April 22, 2009, the 6 application date and amended onset date. (Tr. 22.) At step two, the ALJ found 7 that Plaintiff had the severe impairments of: (1) status-post left ankle injury, (2) 8 obesity, and (3) anti-social personality disorder. (Tr. 22.) The ALJ found that 9 none of the Plaintiff’s impairments, taken alone or in combination, met or 10 medically equaled any of the impairments listed in Part 404, Subpart P, Appendix 11 1 of 20 C.F.R. (Tr. 22.) The ALJ determined that the Plaintiff had the RFC to 12 perform sedentary work subject to a variety of non-exertional limitations. (Tr. 24.) 13 Based on these limitations, the ALJ found that claimant could not perform any 14 relevant past work. (Tr. 28.) At step five, the ALJ, relying on the testimony of a 15 vocational expert, found that the Plaintiff could perform jobs that exist in 16 significant numbers in the national economy. (Tr. 28-29.) Accordingly, the ALJ 17 found that the Plaintiff was not under a disability for purposes of the Act. (Tr. 29.) 18 ISSUES 19 20 The Plaintiff argues that the ALJ’s decision is not supported by substantial evidence or free of legal error because the ALJ failed to appropriately consider Ms. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 Janssen’s subjective complaint testimony. The Plaintiff further argues that the ALJ 2 failed provide adequate reasons for rejecting the opinions of Ms. Janssen’s 3 examining and reviewing medical sources. 4 5 6 DISCUSSION Subjective Complaint Testimony When the ALJ finds a claimant's statements as to the severity of 7 impairments, pain, and functional limitations are not credible, the ALJ must make 8 a credibility determination with findings sufficiently specific to permit the court to 9 conclude the ALJ did not arbitrarily discredit claimant's allegations. Thomas v. 10 Barnhart, 278 F.3d 947, 958-959 (9th Cir. 2002); Bunnell v. Sullivan, 947 F.2d 11 341, 345-46 (9th Cir. 1991) (en banc). It is well settled, however, that an ALJ 12 cannot be required to believe every allegation of disabling pain, even when 13 medical evidence exists that a claimant’s condition may produce pain. “Many 14 medical conditions produce pain not severe enough to preclude gainful 15 employment.” Fair v. Bowen, 885 F.2d 597, 603(9th Cir. 1989). Although an 16 adjudicator may not reject a claimant’s extreme symptom complaints solely on a 17 lack of objective medical evidence, medical evidence is a relevant factor to 18 consider. SSR 96-7p. 19 If there is no affirmative evidence that the claimant is malingering, the ALJ 20 must provide “clear and convincing” reasons for rejecting the claimant's symptom ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 testimony. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). The ALJ 2 engages in a two-step analysis in deciding whether to admit a claimant’s subjective 3 symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 4 2007); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Under the first step, 5 the ALJ must find the claimant has produced objective medical evidence of an 6 underlying “impairment,” and that the impairment, or combination of impairments, 7 could reasonably be expected to cause “some degree of the symptom.” 8 Lingenfelter, 504 F.3d at 1036. Once the first test is met, the ALJ must evaluate 9 the credibility of the claimant and make specific findings supported by “clear and 10 11 convincing” reasons. Id. In addition to ordinary techniques of credibility evaluation, the ALJ may 12 consider the following factors when weighing the claimant's credibility: the 13 claimant’s reputation for truthfulness; inconsistencies either in his allegations of 14 limitations or between his statements and conduct; daily activities and work record; 15 and testimony from physicians and third parties concerning the nature, severity, 16 and effect of the alleged symptoms. Light v. Social Sec. Admin., 119 F.3d 789, 792 17 (9th Cir. 1997); Fair, 885 F.2d at 597 n.5. 18 The ALJ may also consider an unexplained failure to follow treatment 19 recommendations and testimony by the claimant “that appears less than candid.” 20 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). As explained by the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 Commissioner in a policy ruling, the ALJ need not totally reject a claimant's 2 statements; he or she may find the claimant's statements about pain to be credible 3 to a certain degree, but discount statements based on his interpretation of evidence 4 in the record as a whole. SSR 96-7p. The ALJ may find a claimant’s abilities are 5 affected by the symptoms alleged, but “find only partially credible the individual’s 6 statements as to the extent of the functional limitations.” Id. 7 Although credibility determinations are the province of the ALJ, and “the 8 court may not engage in second-guessing,” Thomas, 278 F.3d at 959, the court has 9 imposed on the Commissioner a requirement of specificity. Connett v. Barnhart, 10 340 F.3d 871, 873 (9th Cir. 2003); Dodrill v. Shalala, 12 F.3d 915, 917 (9th Cir. 11 1993). Even if the record includes evidence to support a credibility determination, 12 the reasons must be articulated with specificity by the ALJ in his decision. The 13 court cannot infer lack of credibility or affirm credibility findings “based on 14 evidence the ALJ did not discuss.” Connett, 340 F.3d at 874. Further, the 15 reviewing court cannot make independent findings to support the ALJ’s decision. 16 Id. 17 In this case, ALJ Siderius found no evidence of malingering. Additionally, 18 the ALJ concluded that the “claimant’s medically determinable impairments could 19 reasonably be expected to cause some of the alleged symptoms.” (Tr. 24.) 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 Accordingly, to affirm ALJ Siderius’ credibility determination, the record must 2 provide clear and convincing reasons supporting an adverse credibility finding. 3 The ALJ provided multiple bases in support of her adverse credibility 4 finding. Ms. Janssen testified at the May 16, 2011, hearing that she could only sit 5 for “[a]n hour or so.” (Tr. 56.) However, Ms. Janssen had earlier expressed to 6 examining psychologist W. Scott Mabee, Ph.D., that she “spends most of the day . 7 . . playing her computer game.” (Tr. 291.) As the ALJ noted, computer games are 8 typically played while sitting. (Tr. 25.) The ALJ also noted that Ms. Janssen lives 9 independently, takes care of her eight-year- and twelve-year-old children, has no 10 restrictions on dressing, bathing, or other hygiene tasks, is able to attend school- 11 related functions, and is able to go out on her own. (Tr. 25.) Those activities stand 12 in contrast to the limitations described in Ms. Janssen’s testimony. 13 The ALJ also relied on the fact that Ms. Janssen gave reasons other than 14 disability for her lack of work over the eight years prior to the hearing. (Tr. 25.) 15 For example, when Ms. Janssen was asked why she left her last job at a call center, 16 she stated that her “ex-husband worked at the same spot and we were having 17 issues.” (Tr. 50.) Similarly, Ms. Janssen reported to Dr. Mabee that she had not 18 worked since 2002 “primarily due to having to deal with ‘legal stuff’ to keep her 19 children.” (Tr. 293.) The ALJ also noted that Ms. Janssen’s testimony about her 20 disability was belied by the fact that she completed an online associates degree in ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 accounting in 2009. (Tr. 25.) As a result of the foregoing, the Court finds that the 2 ALJ provided clear and convincing reasons to find Ms. Janssen’s subjective 3 testimony as to her limitations not credible. 4 The Plaintiff takes issue with the ALJ’s failure to specifically address the 5 Plaintiff’s testimony that she needs to frequently lie down. While it is true that an 6 ALJ “must specifically identify the testimony she or he finds not to be credible,” 7 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001), ALJ Siderius did just 8 that when she identified Ms. Janssen’s testimony as to the limiting effects of her 9 ailments as not credible. (Tr. 24-25.) Ultimately, the basis for the specificity 10 requirement is to ensure that a reviewing court can conclude that an ALJ’s 11 credibility determination was not arbitrary. Thomas v. Barnhart, 278 F.3d 947, 12 958 (9th Cir. 2002). Given the ALJ’s detailed reasons for rejecting Ms. Janssen’s 13 subjective testimony, the Court finds that the ALJ did not arbitrarily determine that 14 Ms. Janssen’s limitations testimony is not credible. Accordingly, the Court affirms 15 the ALJ’s credibility determination. 16 Medical Evidence 17 In evaluating a disability claim, the adjudicator must consider all medical 18 evidence provided. A treating or examining physician’s opinion is given more 19 weight than that of a non-examining physician. Benecke v. Barnhart, 379 F.3d 20 587, 592 (9th Cir. 2004). If the treating physician's opinions are not contradicted, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 they can be rejected by the decision-maker only with clear and convincing reasons. 2 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted, the ALJ may 3 reject the opinion with specific, legitimate reasons that are supported by substantial 4 evidence. See Flaten v. Secretary of Health and Human Serv., 44 F.3d 1453, 1463 5 (9th Cir. 1995). In addition to medical reports in the record, the testimony of a 6 non-examining medical expert selected by the ALJ may be helpful in her 7 adjudication. Andrews, 53 F.3d at 1041 (citing Magallanes v. Bowen, 881 F.2d 8 747, 753 (9th Cir. 1989). Testimony of a medical expert may serve as substantial 9 evidence when supported by other evidence in the record. Id. 10 Historically, the courts have recognized conflicting medical evidence, the 11 absence of regular medical treatment during the alleged period of disability, and 12 the lack of medical support for doctors’ reports based substantially on a claimant’s 13 subjective complaints of pain as specific, legitimate reasons for disregarding the 14 treating physician’s opinion. Flaten, 44 F.3d at 1463-64; Fair v. Bowen, 885 F.2d 15 597, 604 (9th Cir 1989). The ALJ need not accept a treating source opinion that is 16 “brief, conclusory and inadequately supported by clinical finding.” Lingenfelter v. 17 Astrue, 504 F.3d 1028, 1044-45 (citing Thomas v. Barnhart, 278 F.3d 947, 957 (9th 18 Cir. 2002)). Where an ALJ determines a treating or examining physician’s stated 19 opinion is materially inconsistent with the physician’s own treatment notes, 20 legitimate grounds exist for considering the purpose for which the doctor’s report ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 was obtained and for rejecting the inconsistent, unsupported opinion. Nguyen v. 2 Chater, 100 F.3d 1462, 1464 (9th Cir. 1996.) Rejection of an examining medical 3 source opinion is specific and legitimate where the medical source’s opinion is not 4 supported by his own medical records and/or objective data. Tommasetti v. Astrue, 5 533 F.3d 1035, 1041 (9th Cir. 2008). 6 Ms. Janssen argues that ALJ Siderius did not give sufficient weight to the 7 testimony of Robert E. Rust, M.D., who examined her ankle on October 5, 2009. 8 (Tr. 244-246.) However, Dr. Rust opined that Ms. Janssen could engage in 9 sedentary work and found very little in the way of non-exertional limitations. (Tr. 10 245.) Dr. Rust’s conclusions are consistent with the ALJ’s RFC determination, 11 which limited Ms. Janssen to sedentary work and limited her need to walk. (Tr. 12 24.) 13 Ms. Janssen also cites to the report of non-examining physician Ward E. 14 Dickey, M.D., in support of her argument that the ALJ failed to give appropriate 15 weight to the medical evidence. ECF No. 15 at 9. However, ALJ Siderius 16 incorporated nearly verbatim all of the restrictions identified by Dr. Dickey in the 17 RFC. Compare (Tr. 248-255) with (Tr. 24.) The one possible deviation noted in 18 the record is that Dr. Dickey’s report contains a checked box asserting that Ms. 19 Janssen can stand or walk for “at least 2 hours in an 8-hour workday,” (Tr. 249), 20 while ALJ Siderius concluded that Ms. Janssen was limited to no more than three ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 hours of walking or standing in an eight-hour workday. (Tr. 24.) However, the 2 next highest option that Dr. Dickey could have chosen was the option that Ms. 3 Janssen could stand for “about six hours in an 8-hour workday.” (Tr. 249.) Given 4 that Dr. Dickey’s conclusion was that Ms. Janssen could walk or stand for “at 5 least” two hours, and Dr. Dickey implicitly rejected a conclusion that Ms. Janssen 6 could stand for “about six hours,” a finding that Ms. Janssen could stand for three 7 hours is consistent with Dr. Dickey’s opinion. Accordingly, the ALJ appropriately 8 weighed Dr. Dickey’s report. 9 The final report cited to by Ms. Janssen in support of her argument is the 10 report of examining psychologist Dr. Mabee. Dr. Mabee opined that Ms. Janssen 11 suffered from various mental health diagnoses, including major depression and a 12 pain disorder. (Tr. 292.) Dr. Mabee also noted that Ms. Janssen suffered 13 “moderate” limitations in her ability carry out detailed instructions, maintain 14 attention, maintain attendance, interact appropriately with the public, and accept 15 instructions. (Tr. 295-96.) However, Dr. Mabee’s report defines a “moderate” 16 limitation as one that does not prevent the patient from working at a satisfactory 17 level. (Tr. 295.) Given the Dr. Mabee’s conclusion that none of Ms. Janssen’s 18 limitations preclude her from performing satisfactory work, the Court finds that 19 ALJ Siderius’ RFC determination is consistent with Dr. Mabee’s opinion. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 Therefore, ALJ Siderius appropriately weighed the medical testimony, and the 2 ALJ’s conclusion is supported by substantial evidence and free of legal error. 3 Accordingly, IT IS HEREBY ORDERED: 4 1. The Plaintiff’s motion for summary judgment, ECF No. 15, is DENIED. 5 2. The Defendant’s motion for summary judgment, ECF No. 20, is 6 GRANTED. 7 3. JUDGMENT shall be entered for the Defendant. 8 IT IS SO ORDERED. 9 The District Court Executive is hereby directed to enter this Order, to 10 11 provide copies to counsel, and to close this file. DATED this 25th of November 2013. 12 13 14 s/Fred Van Sickle Fred Van Sickle Senior United States District Judge 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16

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