Koenig v. Colvin, No. 2:2013cv00412 - Document 25 (E.D. Wash. 2014)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTOIN FOR SUMMARY JUDGMENT - denying 15 Motion for Summary Judgment; granting 22 Motion for Summary Judgment. Signed by Senior Judge Fred Van Sickle. (CC, Case Administrator)

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Koenig v. Colvin Doc. 25 1 2 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 5 GARY L. KOENIG, NO: CV-13-0412-FVS 6 Plaintiff, 7 8 9 10 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT CAROLYN W. COLVIN, Defendant. 11 BEFORE THE COURT are the parties’ cross motions for summary 12 judgment. ECF Nos. 15 and 22. This matter was submitted for consideration 13 without oral argument. Plaintiff was represented by Donald C. Bell. Defendant was 14 represented by Thomas M. Elsberry. The Court has reviewed the administrative 15 record and the parties’ completed briefing and is fully informed. For the reasons 16 discussed below, the court grants Defendant’s Motion for Summary Judgment and 17 denies Plaintiff’s Motion for Summary Judgment. 18 JURISDICTION 19 Plaintiff Gary L. Koenig protectively filed for disability insurance benefits 20 on January 24, 2011 (Tr. 242-243), and supplemental security income (“SSI”) on ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 January 26, 2011 (Tr. 244-249). Plaintiff alleged an onset date of September 11, 2 2007. Tr. 242, 244. Benefits were denied initially (Tr. 192-195) and upon 3 reconsideration (Tr. 198-201). Plaintiff requested a hearing before an 4 administrative law judge (“ALJ”), which was held before ALJ Marie Palachuk on 5 August 8, 2012. Tr. 64-103. Plaintiff was represented by counsel and testified at 6 the hearing. Id. Medical experts Donna M. Veraldi, Ph.D. and Harvey Alpern, 7 M.D. testified. Tr. 70-78. Vocational expert K. Diane Kramer also testified. Tr. 97- 8 102. The ALJ denied benefits (Tr. 7-28) and the Appeals Council denied review. 9 Tr. 1. The matter is now before this court pursuant to 42 U.S.C. § 405(g). 10 STATEMENT OF FACTS 11 The facts of the case are set forth in the administrative hearing and 12 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, 13 and will therefore only be summarized here. 14 Plaintiff was 51 years old at the time of the hearing. Tr. 79. He completed 15 his GED. Tr. 80. Plaintiff’s most recent employment was stacking apple boxes in a 16 packing house. Tr. 83-84. Plaintiff testified that previous employment included 17 seasonal work as a bailer at a floral place (Tr. 86), seasonal work at a fish hatchery 18 (Tr. 86-88), and a fire protection helper (Tr. 89-90). Previous to these jobs Plaintiff 19 worked in the logging industry for 10-15 years. Tr. 84-85. Plaintiff claims 20 disability based on scoliosis, COPD, hypertension, back and neck problems, anger ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 and concentration. Tr. 198. He testified that he has dull throbbing pain on a daily 2 basis; GERD; and trouble sleeping. Tr. 91-96. He experiences side effects from his 3 medication including drowsiness. Tr. 92. Plaintiff testified he has not walked more 4 than 50-60 feet in two or three years, and cannot lift. Tr. 93. 5 6 STANDARD OF REVIEW A district court's review of a final decision of the Commissioner of Social 7 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 8 limited: the Commissioner's decision will be disturbed “only if it is not supported 9 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 10 1158–59 (9th Cir.2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 11 relevant evidence that “a reasonable mind might accept as adequate to support a 12 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 13 substantial evidence equates to “more than a mere scintilla[,] but less than a 14 preponderance.” Id. (quotation and citation omitted). In determining whether this 15 standard has been satisfied, a reviewing court must consider the entire record as a 16 whole rather than searching for supporting evidence in isolation. Id. 17 In reviewing a denial of benefits, a district court may not substitute its 18 judgment for that of the Commissioner. If the evidence in the record “is susceptible 19 to more than one rational interpretation, [the court] must uphold the ALJ's findings 20 if they are supported by inferences reasonably drawn from the record.” Molina v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 Astrue, 674 F.3d 1104, 1111 (9th Cir.2012). Further, a district court “may not 2 reverse an ALJ's decision on account of an error that is harmless.” Id. at 1111. An 3 error is harmless “where it is inconsequential to the [ALJ's] ultimate nondisability 4 determination.” Id. at 1115 (quotation and citation omitted). The party appealing 5 the ALJ's decision generally bears the burden of establishing that it was harmed. 6 Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 7 8 9 FIVE–STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within the meaning of the Social Security Act. First, the claimant must be “unable to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than twelve 13 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant's impairment must be 14 “of such severity that he is not only unable to do his previous work[,] but cannot, 15 considering his age, education, and work experience, engage in any other kind of 16 substantial gainful work which exists in the national economy.” 42 U.S.C. § 17 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 20 404.1520(a)(4)(i)-(v); 416.920(a)(4) (i)-(v). At step one, the Commissioner ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 considers the claimant's work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 2 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. § § 4 404.1520(b); 416.920(b). 5 If the claimant is not engaged in substantial gainful activities, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant's impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 8 claimant suffers from “any impairment or combination of impairments which 9 significantly limits [his or her] physical or mental ability to do basic work 10 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 11 416.920(c). If the claimant's impairment does not satisfy this severity threshold, 12 however, the Commissioner must find that the claimant is not disabled. Id. 13 At step three, the Commissioner compares the claimant's impairment to 14 several impairments recognized by the Commissioner to be so severe as to 15 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 16 404.1520(a)(4)(iii); 416.920(a) (4)(iii). If the impairment is as severe or more 17 severe than one of the enumerated impairments, the Commissioner must find the 18 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416 .920(d). 19 20 If the severity of the claimant's impairment does meet or exceed the severity of the enumerated impairments, the Commissioner must pause to assess the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 claimant's “residual functional capacity.” Residual functional capacity (“RFC”), 2 defined generally as the claimant's ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 4 404.1545(a)(1); 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 5 analysis. 6 At step four, the Commissioner considers whether, in view of the claimant's 7 RFC, the claimant is capable of performing work that he or she has performed in 8 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 9 If the claimant is capable of performing past relevant work, the Commissioner 10 must find that the claimant is not disabled. 20 C.F.R. § § 404.1520(f); 416.920(f). 11 If the claimant is incapable of performing such work, the analysis proceeds to step 12 five. 13 At step five, the Commissioner considers whether, in view of the claimant's 14 RFC, the claimant is capable of performing other work in the national economy. 20 15 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a) (4)(v). In making this determination, the 16 Commissioner must also consider vocational factors such as the claimant's age, 17 education and work experience. Id. If the claimant is capable of adjusting to other 18 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § § 19 404.1520(g)(1); 416.920(g) (1). If the claimant is not capable of adjusting to other 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 work, the analysis concludes with a finding that the claimant is disabled and is 2 therefore entitled to benefits. Id. 3 The claimant bears the burden of proof at steps one through four above. 4 Lockwood v. Comm'r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir.2010). If 5 the analysis proceeds to step five, the burden shifts to the Commissioner to 6 establish that (1) the claimant is capable of performing other work; and (2) such 7 work “exists in significant numbers in the national economy.” 20 C.F.R. § § 8 404.1560(c); 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir.2012). 9 10 ALJ’S FINDINGS At step one, the ALJ found Plaintiff has not engaged in substantial gainful 11 activity since September 11, 2007, the application date. Tr. 12. At step two, the 12 ALJ found Plaintiff has the following severe impairments: left shoulder, neck and 13 upper back strain, chronic; chronic obstructive pulmonary disease (COPD) 14 possibly secondary to asbestos exposure; hypertension, controlled; 15 gastroesophageal reflux disease (GERD), controlled; left knee osteoarthritis; 16 Achilles tendinitis; anti-social personality disorder; alcohol dependence by history, 17 questionable continued use; and marijuana continued use. Tr. 12. At step three, the 18 ALJ found that Plaintiff does not have an impairment or combination of 19 impairments that meets or medically equals one of the listed impairments in 20 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 C.F.R. Part 404, Subpt. P, App’x 1. Tr. 13. The ALJ then found that Plaintiff had 2 the RFC 3 4 5 6 7 8 9 to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except maximum two hour stand and walk at one time; occasionally climb ramps and stairs, balance, kneel, stoop, crouch, and crawl; never climb ladders, ropes or scaffolds; occasional bilateral overhead reaching; avoid concentrated exposure to extreme cold, humidity, vibration, hazardous machinery and heights; and all exposure to respiratory irritants; able to understand, remember and carry out simple routine and repetitive tasks; able to sustain concentration, persistence and pace on simple routine and repetitive tasks; no interaction with the public; and only occasional superficial (defined as non-collaborative) interaction with coworkers and supervisors. Tr. 15. At step four, the ALJ found Plaintiff is unable to perform any past relevant 10 work. Tr. 22. At step five, the ALJ found that considering the Plaintiff’s age, 11 education, work experience, and RFC, there are jobs that exist in significant 12 numbers in the national economy that Plaintiff can perform. Tr. 23. The ALJ 13 concluded that Plaintiff has not been under a disability, as defined in the Social 14 Security Act, from September 11, 2007, through the date of the decision. Tr. 24. 15 ISSUES 16 The question is whether the ALJ’s decision is supported by substantial 17 evidence and free of legal error. Specifically, Plaintiff asserts (1) the ALJ erred in 18 her application of res judicata; (2) the ALJ failed to properly credit the treatment 19 records and opinions of Dr. Michael Bordner, Dr. Catherine A. MacLennan, and 20 Deborah Fisher, PA-C; (3) the ALJ improperly rejected Plaintiff’s testimony ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 concerning his limitations; and (4) the ALJ’s step five findings are flawed. ECF 2 No. 15 at 14-20. Defendant argues (1) the ALJ did not improperly apply res 3 judicata to Plaintiff’s prior claim; (2) the ALJ properly evaluated the medical 4 evidence of record; (3) the ALJ properly found Plaintiff’s subjective complaints 5 not fully credible; and (4) the ALJ’s step five findings were supported by 6 substantial evidence. ECF No. 22 at 2-19. 7 8 9 DISCUSSION A. Res Judicata In October 2007, Plaintiff filed a claim alleging disability beginning on 10 September 11, 2007, the same alleged onset date claimed in the instant case. Tr. 11 107. This previous claim resulted in an unfavorable decision finding that Plaintiff 12 was capable of light work through April 9, 2010, the date of that decision. Tr. 104- 13 117. During the hearing, Plaintiff’s counsel and the ALJ had the following 14 discussion regarding Plaintiff’s alleged onset date: 15 16 17 18 19 20 ALJ: Okay, lastly, [Plaintiff’s counsel], I needed to cover something with you with regards to the onset date. I’ve read your brief and I’m somewhat confounded by your procedural statements so let me tell you what my position is. There is an ALJ decision that was issues [sic] on April 9, 2010. My understanding that was appealed to the Appeals Council who affirmed the ALJ’s decision. That has subsequently been appealed to the U.S. District Court. ATTY: No – ALJ: As far as I’m concerned, anything prior to that ALJ decision is res judicata. If the district court chooses to take action on a case or remand the case they will be dealing with all time periods prior to that ALJ decision. Therefore, I am going to issue a procedural ruling that everything prior to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 5 that decision is res judicata and the only authority I have becomes effective as of April 10, 2010. ATTY: Your Honor, I’ve discussed that issue with my client. Also, I would advise, and I think I set it out in my pre-hearing, there was no appeal filed in the U.S. District Court in this case. ALJ: Oh, I thought there was an appeal filed. ATTY: No appeals, no, and we’ve discussed that issue and he’s aware that you cannot under current regulations apparently issue a decision going back to prior to April 10, 2010. 6 Tr. 67-68. Plaintiff argues the ALJ improperly applied the doctrine of res judicata. 7 ECF No. 15 at 15-16. First, the court notes that Plaintiff appears to concede at the 8 hearing that the ALJ is not required to consider evidence prior to April 10, 2010. 9 Tr. 68. However, in his briefing, Plaintiff fails to acknowledge that “[t]he 2 3 4 10 Commissioner may, as she did here, apply res judicata to bar reconsideration of a 11 period with respect to which she has already made a determination, by declining to 12 reopen the prior application.” Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995). 13 Second, Plaintiff is correct that it is well settled in the Ninth Circuit that the 14 principle of res judicata should not be rigidly applied in administrative 15 proceedings. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). In Chavez, 16 however, the court held that “in order to overcome the presumption of continuing 17 nondisability arising from the first [ALJ’s] findings of nondisability, [Plaintiff] 18 must prove ‘changed circumstances’ indicating a greater disability.” Id. As noted 19 by Defendant, “the ALJ [in this case] did not hold Plaintiff to a presumption of 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 continuing nondisability and, therefore, it is clear she did not apply res judicata to 2 the prior finding of nondisability.” ECF No. 22 at 5. 3 Third, as persuasively argued by Defendant, despite the ALJ’s declared 4 intent to apply res judicata at the hearing, her written decision considers “on the 5 merits” the issue of Plaintiff’s disability during the already adjudicated period, and 6 is therefore a de facto reopening of the prior period for judicial review. See Lester, 7 81 F.3d at 827 n.3. The ALJ’s decision considers a substantial amount of evidence 8 from the already adjudicated period prior to April 10, 2010, including: x-rays from 9 2008 (Tr. 335-336); medical opinions from the already adjudicated time period (Tr. 10 301-310); and treatment records dated prior to April 2010 (Tr. 321-324, 334, 343- 11 344). See ECF No. 22 at 4-5. Moreover, the written decision consistently refers to 12 the onset date as September 11, 2007, and never directs any revision of the onset 13 date. Tr. 10, 12, 24. 14 Most notably, despite Plaintiff’s repeated argument that the ALJ erred by 15 applying res judicata because she failed to consider medical opinions from 16 Deborah Fisher, PA-C assessed in July 2008 and January 2010 (Tr. 301-310), these 17 opinions are included in the record and accorded weight in the ALJ’s decision.1 Tr. 18 1 19 judicata, she “violated the ‘other source rule’.” ECF No. 23 at 4. The court 20 assumes Plaintiff is referring to the weight given to Ms. Fisher’s medical opinions. Plaintiff asserts, in the alternative, that if the ALJ did not improperly apply res ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 22. Plaintiff is correct that the ALJ notes two of the opinions were “completed 2 prior to the Res Judicata finding that the claimant could do light work.” Tr. 22. 3 However, as discussed in detail below, despite this reference to a res judicata 4 finding, the ALJ does consider these prior opinions and they are included as part of 5 Plaintiff’s overall medical records. For all of these reasons, the ALJ did not 6 improperly apply res judicata in this case. 7 8 9 B. Credibility In social security proceedings, a claimant must prove the existence of physical or mental impairment with “medical evidence consisting of signs, 10 symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908; 416.927. A claimant's 11 statements about his or her symptoms alone will not suffice. Id. Once an 12 impairment has been proven to exist, the claimant need not offer further medical 13 evidence to substantiate the alleged severity of his or her symptoms. Bunnell v. 14 Sullivan, 947 F.2d 341, 345 (9th Cir.1991) (en banc). As long as the impairment 15 “could reasonably be expected to produce [the] symptoms,” the claimant may offer 16 a subjective evaluation as to the severity of the impairment. Id. This rule 17 recognizes that the severity of a claimant's symptoms “cannot be objectively 18 verified or measured.” Id. at 347 (quotation and citation omitted). 19 The court will consider this issue along with the other medical opinion evidence in 20 Section C. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 If an ALJ finds the claimant's subjective assessment unreliable, “the ALJ 2 must make a credibility determination with findings sufficiently specific to permit 3 [a reviewing] court to conclude that the ALJ did not arbitrarily discredit claimant's 4 testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.2002). In making this 5 determination, the ALJ may consider, inter alia: (1) the claimant's reputation for 6 truthfulness; (2) inconsistencies in the claimant's testimony or between his 7 testimony and his conduct; (3) the claimant's daily living activities; (4) the 8 claimant's work record; and (5) testimony from physicians or third parties 9 concerning the nature, severity, and effect of the claimant's condition. Id. Absent 10 any evidence of malingering, the ALJ's reasons for discrediting the claimant's 11 testimony must be “specific, clear and convincing.” Chaudhry v. Astrue, 688 F.3d 12 661, 672 (9th Cir.2012) (quotation and citation omitted). 13 Plaintiff argues the ALJ improperly rejected Plaintiff’s testimony concerning 14 his limitations. ECF No. 15 at 18-19. The ALJ found Plaintiff’s “statements 15 concerning the intensity, persistence and limiting effects of these symptoms are not 16 credible to the extent they are inconsistent with the … residual functional capacity 17 assessment.” Tr. 16. The ALJ listed multiple reasons in support of the adverse 18 credibility finding. 19 20 First, the ALJ found “many inconsistencies between the claimant’s statements and the objective medical evidence that undermine the claimant’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 credibility.” Tr. 21. Subjective testimony cannot be rejected solely because it is not 2 corroborated by objective medical findings, but medical evidence is a relevant 3 factor in determining the severity of a claimant’s impairments. Rollins v. 4 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Further, in evaluating credibility, 5 the ALJ may consider inconsistencies in Plaintiff’s testimony or between his 6 testimony and his conduct. Thomas, 278 F.3d at 958-59; see also Smolen v. Chater, 7 80 F.3d 1273, 1284 (9th Cir. 1996) (ALJ may consider prior inconsistent 8 statements concerning symptoms in considering credibility). Plaintiff argues “the 9 record is replete with objective medical evidence of impairments that reasonably 10 could be expected to produce pain,” and the ALJ’s reasoning “improperly 11 considers that medical evidence which is favorable to her decision.” ECF No. 15 at 12 18-19. Plaintiff correctly notes that medical records reveal “spinal spondylosis and 13 scoliosis, scarring of the lungs, and pleural effusion.” ECF No. 15 at 19 (citing 14 323-24, 335, 336, 350). However, contrary to Plaintiff’s argument that the ALJ 15 improperly considered evidence unfavorable to her decision, all of these diagnoses 16 are specifically referenced in the ALJ’s decision. Tr. 17. 17 In addition, the ALJ relied on several inconsistencies between Plaintiff’s 18 testimony at the hearing and the medical evidence. Plaintiff testified that in 2007 19 he walked a mile a day with his dogs but “it slowly got shorter and shorter and 20 shorter,” and currently he can only walk 50 or 60 feet. Tr. 93. However, in March ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 2011 Plaintiff reported to Dr. MacLennan that he gets regular exercise walking his 2 dog close to a mile every day, and assessed his own physical limitations as 3 “walking no more than a mile in 45 minutes,” standing “quite a while,” and sitting 4 “a while but he fidgets and moves back and forth all the time.” Tr. 340. Plaintiff 5 also testified that physical therapy only relieves his pain for the one hour he is 6 being treated. Tr. 82. However, a number of physical therapy progress notes 7 indicate he reported his pain is better; the therapist reports he is progressing well; 8 and he reported in December 2011 that physical therapy helps. Tr. 373-376, 383. 9 Moreover, Plaintiff wore a rigid cervical collar to the hearing but testified he does 10 not wear it “24/7” and “[i]t does work sometimes.” Tr. 91-92. However, medical 11 records in December 2011 note that Plaintiff “was cautioned against using the rigid 12 cervical collar on a frequent basis. He says this was suggested by his [primary care 13 physician] but I could not find anything in the notes regarding its use.” Tr. 384. 14 Finally, Plaintiff testified that his pain medication makes him drowsy (Tr. 92-93), 15 but also testified that he has difficulty sleeping (Tr. 96). The only side effect 16 Plaintiff reported to his primary care physician was constipation. Tr. 334. All of 17 these inconsistencies between Plaintiff’s testimony and the objective record were 18 properly considered by the ALJ, and they did not form the sole basis for her 19 adverse credibility finding. Moreover, while evidence in the record could be 20 interpreted more favorably to the Plaintiff, “where evidence is susceptible to more ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 than one rational interpretation, it is the [Commissioner’s] conclusion that must be 2 upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also Andrews v. 3 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)(“[t]he ALJ is responsible for 4 determining credibility”). 5 Although not addressed by Plaintiff in his briefing, the ALJ offered several 6 additional clear and convincing reasons for discounting Plaintiff’s credibility. The 7 court notes that these reasons were not raised with specificity in Plaintiff’s opening 8 brief. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th 9 Cir. 2008) (the court may decline to address issues not raised with specificity in 10 Plaintiff’s briefing). First, the ALJ found that “[d]espite subjective complaints of 11 pain, [Plaintiff’s] treatment has been largely conservative in nature.” Tr. 17. 12 “[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 13 testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 14 751 (9th Cir. 2007) (noting claimant’s physical ailments were treated with an over- 15 the-counter pain medication). In support of this argument, the ALJ cites to Ms. 16 Fisher’s completed DSHS physical evaluation noting that Plaintiff had no current 17 treatment. Tr. 17 (citing Tr. 302). Ms. Fisher also opined that with treatment, 18 Plaintiff’s ability to work should be reevaluated in six months. Tr. 304. In March 19 2010, Plaintiff reported he was having problems with his right Achilles and “may 20 have walked a bit further than usual.” Tr. 334. He was assessed with mild Achilles ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 tendonitis and conservative care was recommended. Id. This was a clear and 2 convincing reason to find the Plaintiff not credible. 3 Second, the ALJ correctly noted that despite Plaintiff’s report to consultative 4 psychologist Dr. MacLennan that he has always had anger and been depressed, the 5 record does not include any evidence of treatment for his alleged mental health 6 problems. Tr. 21. Unexplained, or inadequately explained, failure to seek treatment 7 may be the basis for an adverse credibility finding unless there is a showing of a 8 good reason for the failure. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). 9 However, an ALJ “must not draw any inferences about an individual’s symptoms 10 and their functional effects from a failure to seek or pursue regular medical 11 treatment without first considering any explanations that the individual may 12 provide, or other information in the case record, that may explain infrequent or 13 irregular medical visits or failure to seek medical treatment.” Social Security 14 Ruling (“SSR”) 96-7p at *7 (July 2, 1996), available at 1996 WL 374186. Plaintiff 15 testified that his medical insurance only covers a certain number of visits for 16 physical therapy, but he does not indicate any restriction that would explain his 17 failure to seek mental health treatment. Tr. 81-82. This was a clear and convincing 18 reason to find Plaintiff not credible. 19 20 Finally, the ALJ found evidence of improvement of his physical symptoms when treated with medication and physical therapy. Tr. 17-19. An ALJ may rely on ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 the effectiveness of treatment to support an adverse credibility finding. See 2 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999) 3 (ALJ relied on report that Plaintiff’s symptoms improved with the use of 4 medication). Here, the ALJ cited treatment records in 2009 and 2010 interpreting 5 CT scans as showing stability and improvement of nodules and a “tree-in-bud 6 pattern” when compared with previous objective testing. Tr. 321, 325. In 2010, 7 Plaintiff reported he had “not had any acute exacerbation in the last 1 year.” Tr. 8 325. The ALJ also cited repeated notations in the medical records that Plaintiff’s 9 hypertension, COPD, and GERD are controlled with medication. Tr. 307, 343, 10 352. Finally, the ALJ noted that physical therapy records in 2011 indicate Plaintiff 11 made improvement with treatment. Tr. 19. Specifically, the ALJ cited treatment 12 notes indicating that Plaintiff “made gains” (Tr. 364), “improved overall strength” 13 (Tr. 367), and was “progressing well” and reporting his “pain is better” (Tr. 373). 14 Plaintiff argues the ALJ erred in this reasoning because she “fails to appreciate the 15 difference in treatment/improvement from treatment in [Plaintiff’s] lower back as 16 opposed to his neck, upper back, shoulders, and headaches.” ECF No. 23 at 6-8. 17 Plaintiff is correct that physical therapy records consistently note Plaintiff’s reports 18 of pain and weakness in his upper spine and neck, as well as tension headaches. Tr. 19 358-367. However, the ALJ’s decision did acknowledge that despite improvement, 20 “he still has difficulty with upper body strength and weakness across his upper ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 back that leads him to the tension cervical pain that he has and headaches. Tr. 19. 2 Moreover, even assuming this reasoning was unsupported by the overall record, 3 any error was harmless because, as discussed above, the ALJ articulated clear and 4 convincing reasons for her adverse credibility finding that were supported by 5 substantial evidence. See Carmickle, 533 F.3d at 1162-63. 6 For all of these reasons, and having thoroughly reviewed the record, the 7 court concludes that the ALJ supported her adverse credibility finding with 8 specific, clear and convincing reasons supported by substantial evidence. 9 10 C. Medical Opinions There are three types of physicians: “(1) those who treat the claimant 11 (treating physicians); (2) those who examine but do not treat the claimant 12 (examining physicians); and (3) those who neither examine nor treat the claimant 13 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 14 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir.2001)(citations omitted). 15 Generally, a treating physician's opinion carries more weight than an examining 16 physician's, and an examining physician's opinion carries more weight than a 17 reviewing physician's. Id. If a treating or examining physician's opinion is 18 uncontradicted, the ALJ may reject it only by offering “clear and convincing 19 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 20 1211, 1216 (9th Cir.2005). Conversely, “[i]f a treating or examining doctor's ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 2 providing specific and legitimate reasons that are supported by substantial 3 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830–831 (9th Cir.1995)). 4 Plaintiff argues the ALJ failed to properly credit the treatment records and opinions 5 of Dr. Catherine A. MacLennan and Deborah Fisher, PAC.2 ECF No. 15 at 17-18. 6 1. Dr. Catherine A. MacLennan 7 In March 2011, Dr. MacLennan completed a consultative psychological 8 evaluation of Plaintiff. Tr. 337-341. She diagnosed “alcohol dependency by 9 history, quit, and now he drinks in alleged moderation,” and antisocial personality 10 disorder. Tr. 340. Dr. MacLennan opined that Plaintiff’s “personality would be a 11 problem in any work setting.” Tr. 341. She also opined that Plaintiff 12 2 13 Bordner’s treatment record indicating that Plaintiff had “severe chronic neck and 14 upper back pain as well.” ECF No. 15 at 17 (citing Tr. 343). However, as correctly 15 noted by Defendant, the ALJ expressly considered Dr. Bordner’s treatment records 16 in her decision, and at step two found “left shoulder, neck and upper back strain, 17 chronic” was a severe impairment. Tr. 12, 18. Moreover, the record does not 18 include discussion or an opinion by Dr. Bordner as to any work-related limitations. 19 See Tr. 334, 343-344, 349, 352. Thus, Plaintiff fails to show harmful error by the 20 ALJ in considering Dr. Bordner’s treatment notes. Plaintiff cursorily argues that the ALJ erred by failing to credit Dr. Michael ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 2 3 4 5 6 7 is apparently able to function in an independent manner in terms of his activities of daily living …. [Plaintiff] is able to reason. He has very poor judgment by history, and poor executive functioning skills…. There was no indication of difficulty following or participating in conversation. He understands what is said to him and generally remembers what is said. He probably has difficulty with sustained concentration, pace and persistence. He is able to sustain focused attention long enough to ensure the timely completion of tasks (e.g. in everyday household routines)…. [Plaintiff’s] social interactions in general are restricted and limited…, and he has difficulty getting along with others. This indicates it is likely he would not be able to get along with others in a work setting. He has problems with authority, would not be able to interact with the public, or respond appropriately to supervisors.” 8 Tr. 341. Finally, Dr. MacLennan opined that Plaintiff’s “physical pain interferes 9 with his ability to persist through the workday in other than sedentary 10 employment.” Tr. 341. The ALJ accorded weight to Dr. MacLennan’s opinion 11 because “she had the opportunity to examine the [Plaintiff] and her opinion is 12 generally consistent with the totality of the record. However, the [ALJ] does not 13 accept her opinion that the [Plaintiff’s] physical pain interferes with his ability to 14 persist through the workday in other than sedentary employment as she is not a 15 specialist in this field.” Tr. 22. Plaintiff argues that “[b]y isolating only the portions 16 of Dr. MacLennan’s report that supported her decision and not considering 17 evidence in the report favorable to [Plaintiff]/the report as a whole, the ALJ erred.” 18 ECF No. 15 at 18. 19 20 As an initial matter, while Plaintiff cites to portions of Dr. MacLennan’s findings, he does not analyze how this medical opinion was erroneously rejected or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 inconsistent with the RFC. See Carmickle, 533 F.3d at 1161 n.2 (court may decline 2 to address any issue not raised with specificity in Plaintiff’s briefing). Moreover, 3 contrary to Plaintiff’s argument that the ALJ did not consider evidence favorable to 4 the Plaintiff, the ALJ’s decision fully recounts all of Dr. MacLennan’s findings, 5 including evidence that Plaintiff has difficulty with sustained concentration, 6 “frightens and alienates others,” has problems with authority and interacting with 7 the public, and does not cope well with stress. Tr. 19. While this could be 8 interpreted more favorably to the Plaintiff, it is susceptible to more than one 9 rational interpretation, and therefore the ALJ’s conclusion must be upheld. See 10 Burch, 400 F.3d at 679. Finally, and most significantly, the ALJ did not reject Dr. 11 MacLennan’s opinion as to Plaintiff’s mental health limitations. 3 Rather, she 12 3 13 interferes with his ability to persist through the workday in other than sedentary 14 employment as she is not a specialist in this field.” Tr. 22 (emphasis added). 15 However, Plaintiff does not challenge Dr. MacLennan’s opinion as to Plaintiff’s 16 physical limitations with specificity in his opening brief, rather, he confines his 17 argument entirely to Dr. MacLennan’s opinion regarding Plaintiff’s mental health 18 limitations. Thus, the court declines to address this issue. See Carmickle, 533 F.3d 19 at 1161 n.2 (court may decline to address any issue not raised with specificity in 20 Plaintiff’s briefing). The ALJ did reject Dr. MacLennan’s opinion that “Plaintiff’s physical pain ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 accorded Dr. MacLennan’s opinion weight and included the restrictions opined by 2 Dr. MacLennan in the RFC, as follows: “able to understand, remember and carry 3 out simple routine and repetitive tasks; able to sustain concentration, persistence 4 and pace on simple and routine tasks; no interaction with the public; and only 5 occasional superficial (defined as non-collaborative) interaction with coworkers 6 and supervisors.” Tr. 15. Plaintiff’s briefing also does not identify with specificity 7 any discrepancy between Dr. MacLennan’s opinion and the RFC. See Carmickle, 8 533 F.3d at 1161 n.2. Thus, even assuming that the ALJ improperly “rejected” Dr. 9 MacLennan’s opinion, any error was harmless. Molina, 674 F.3d at 1115 (error is 10 harmless “where it is inconsequential to the [ALJ’s] ultimate nondisability 11 determination”). 12 2. Deborah Fisher, PAC 13 In July 2008, on Plaintiff’s first visit with Ms. Fisher, she noted diagnoses of 14 recurrent pleural effusion, COPD, and thoracic scoliosis. Tr. 303. Ms. Fisher noted 15 that Plaintiff had no current treatment and was still under evaluation for pleural 16 effusion. Tr. 302. She noted under “examination results” that Plaintiff “self limited 17 due to pain” and refused range of motion testing in his shoulders, back and hips 18 due to subjective reports of pain. Tr. 17, 302. Ms. Fisher assessed his overall work 19 level as sedentary. Tr. 303. In January 2010, Ms. Fisher again assessed Plaintiff’s 20 overall work level as sedentary and noted that he had restricted postural activities ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 due to pain that should be “performed on a seldom to occasional basis.” Tr. 18, 2 309. She noted diagnoses of scoliosis with chronic pain, COPD, GERD, HTN, and 3 a shoulder rotator cuff tear. Tr. 309. She noted that once Plaintiff has 4 recommended treatment, his ability to work should be reevaluated in 6 months. Tr. 5 310. In December 2010, Ms. Fisher completed a brief 2-page DSHS evaluation 6 opining that Plaintiff was able to stand or sit for 2 hours in an 8 hour workday; and 7 lift 15 pounds occasionally and 5 pounds frequently. Tr. 329. An accompanying 8 treatment note indicated that Plaintiff had decreased range of motion in his upper 9 extremities and cervical spine; but had full range of motion of his lumbar spine. Tr. 10 331. Finally, in December 2011, Ms. Fisher opined that Plaintiff had work 11 restrictions of lifting a maximum of ten pounds occasionally and 2 pounds 12 frequently. Tr. 379. The accompanying treatment note indicated decreased range of 13 motion to thoracic spine with rotation, swelling in the lift knee, and decreased 14 range of motion to the neck and both upper extremities. Tr. 384. Ms. Fisher opined 15 that Plaintiff should avoid prolonged standing and sitting with frequent position 16 changes. Tr. 384. 17 As a physician assistant, Ms. Fisher is not an “acceptable medical source” 18 within the meaning of 20 C.F.R. § 416.913(a). Instead, Ms. Fisher qualifies as an 19 “other source” as defined in 20 C.F.R. § 416.913(d). Molina v. Astrue, 674 F.3d 20 1104, 1111 (9th Cir. 2012). The ALJ need only provide “germane reasons” for ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 disregarding Ms. Fisher’s opinion. Molina, 674 F.3d at 1111. However, the ALJ is 2 required to “consider observations by nonmedical sources as to how an impairment 3 affects a claimant's ability to work.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th 4 Cir. 1987). Factors for considering opinion evidence from “other sources” include: 5 length and nature of treatment relationship; how well the source explains an 6 opinion and presents evidence in support of the opinion; how consistent the 7 opinion is with medical evidence; and whether the source has a specialty or 8 expertise. SSR 06-03p (Aug. 9, 2006), available at 2006 WL 2329939 at *4. 9 The ALJ gave “little weight” to Ms. Fisher’s opinions. Tr. 22. First, 10 Plaintiff argues the ALJ failed to “properly afford the requisite heightened weight 11 to [Plaintiff’s] treating physician(s).” ECF No. 15 at 16. Plaintiff identifies Ms. 12 Fisher as Plaintiff’s treating medical provider, however, a review of the record 13 reveals that Ms. Fisher only examined Plaintiff for the purposes of four discrete 14 DSHS evaluations over the course of four years. Tr. 301, 307, 329, 379. Moreover, 15 Ms. Fisher’s evaluations specifically note that she did not provide ongoing care to 16 the Plaintiff. Tr. 304, 310. Second, Plaintiff generally argues that the ALJ erred by 17 failing to properly credit Ms. Fisher’s assessment that Plaintiff had “several 18 functional limitations and his work level [was] sedentary.” ECF No. 15 at 17. 19 However, Plaintiff does not specifically address any of the multiple reasons given 20 by the ALJ for rejecting Ms. Fisher’s opinion. See Carmickle, 533 F.3d at 1161 n.2 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 25 1 (court may decline to address any issue not raised with specificity in Plaintiff’s 2 briefing). 3 First, the ALJ found that Ms. Fisher’s opinion was “based in significant part 4 upon the claimant’s unreliable subjective allegations.” Tr. 22. In support of this 5 argument, the ALJ cited Ms. Fisher’s note that Plaintiff “self limited due to pain” 6 and refused to do range of motion testing due to alleged pain. Tr. 302, 308. “An 7 ALJ may reject a treating physician’s opinion if it is based ‘to a large extent’ on a 8 claimant’s self-reports that have been properly discounted as incredible.” 9 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). This was a germane 10 11 reason for the ALJ to reject Ms. Fisher’s opinion. Second, the ALJ found that “[t]he evaluation forms completed during [Ms. 12 Fisher’s] DSHS evaluations were completed by checking boxes and contain few 13 objective findings in support of the degree of limitation opined.” Tr. 22. “[A]n ALJ 14 need not accept the opinion of a doctor if that opinion is brief, conclusory, and 15 inadequately supported by clinical findings.” Thomas, 278 F.3d at 957; see also 16 Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (permissible to reject check-box 17 evaluations that do not contain any explanation of the bases of the conclusions). 18 The ALJ also cites to Ms. Fisher’s notes indicating that Plaintiff was able to walk 19 on heel and toes without difficulty (Tr. 347), and findings of normal strength and 20 gait and intact reflexes (Tr. 383-384). See Bayliss, 427 F.3d at 1216 (discrepancy ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 26 1 between treating physician’s opinion and clinical notes justified rejection of 2 opinion). In his reply brief Plaintiff argues Ms. Fisher’s “opinions were not 3 conclusory and do, in fact, contain explanations of the evidence relied on.” ECF 4 No. 23 at 9. Specifically, Plaintiff cites to portions of Ms. Fisher’s evaluation in 5 December 2011 reflecting Plaintiff’s reports of neck pain and occasional left arm 6 numbness, his diagnosis of thoracic scoliosis, and the range of motion evaluation 7 chart included with her evaluation. Tr. 383-384. However, subjective reports from 8 Plaintiff are not objective clinical findings; and the range of motion evaluation, 9 unaccompanied by narrative explanation, is the only support for the limitations 10 assessed by Ms. Fisher. Tr. 381-382. Further, as noted by the ALJ, Plaintiff largely 11 refused to participate in range of motion evaluations completed in July 2008 and 12 January 2010. The overall medical evidence could be susceptible to more than one 13 rational interpretation, and therefore the ALJ’s conclusion must be upheld. See 14 Burch, 400 F.3d at 679. 15 As a final matter, although not addressed by either party, the ALJ noted that 16 Plaintiff “saw Ms. Fisher to be evaluated or reevaluated for public assistance 17 eligibility, or for benefit eligibility review, under state rules. The results of these 18 procedures and evaluations do not demonstrate ‘disability’ for the purposes of this 19 analysis.” Tr. 22. The ALJ is correct that the final decision on the issue of 20 disability is reserved to the Commissioner. See §§ 404.1527(d)(3), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 27 1 416.927(d)(3)(“[w]e will not give any special significance to the source of an 2 opinion on issues reserved to the Commissioner.”); Soc. Sec. Ruling (“SSR”) 96- 3 5p, available at 1996 WL 374183 at *2 (July 2, 1996) (“treating source opinions 4 on issues that are reserved to the Commissioner are never entitled to controlling 5 weight or special significance.”). However, this is not a germane reason for 6 rejecting Ms. Fisher’s opinion. The regulations require that every medical opinion 7 will be evaluated regardless of its source. See 20 C.F.R. §§ 404.1527(c), 8 416.927(c). Furthermore, it is improper for an ALJ to consider the purpose for 9 which a medical report is obtained. Lester, 81 F.3d at 832. However, this error was 10 harmless because, as discussed above, the ALJ articulated germane reasons for 11 rejecting Ms. Fisher’s opinions that were supported by substantial evidence. See 12 Carmickle, 533 F.3d at 1162-63. 13 14 D. Step Five Last, Plaintiff argues the ALJ “did not properly credit” the medical opinions 15 and Plaintiff’s subjective testimony; and therefore erred at step five by posing an 16 incomplete hypothetical to the vocational expert. ECF No. 15 at 19-20. Plaintiff is 17 correct that “[i]f an ALJ’s hypothetical does not reflect all of the claimant’s 18 limitations, the expert’s testimony has no evidentiary value to support a finding 19 that the claimant can perform jobs in the national economy.” Bray v. Comm’r of 20 Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)(citation and quotation ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 28 1 marks omitted). However, as discussed in detail above, the ALJ’s rejection of the 2 Dr. MacLennan and Ms. Fisher’s medical opinions, and Plaintiff’s subjective 3 testimony, was supported by the record and free of legal error. The hypothetical 4 proposed to the vocational expert contained the limitations reasonably identified by 5 the ALJ and supported by substantial evidence in the record. The ALJ did not err at 6 step five. 7 8 9 10 CONCLUSION After review the court finds the ALJ’s decision is supported by substantial evidence and free of harmful legal error. ACCORDINGLY, IT IS HEREBY ORDERED: 11 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 12 2. Defendant’s Motion for Summary Judgment, ECF No. 22, is 13 14 GRANTED. The District Court Executive is hereby directed to enter this Order and 15 provide copies to counsel, enter judgment in favor of the Defendant, and CLOSE 16 the file. 17 18 19 DATED this 6th day of November, 2014. s /Fred Van Sickle Fred Van Sickle Senior United States District Judge 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 29

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