Cole v. Astrue, No. 5:2012cv04406 - Document 15 (N.D. Cal. 2013)
Court Description: ORDER granting 13 Defendant's Motion for Summary Judgment; Denying 12 Plaintiff's Motion for Summary Judgment. Signed by Judge Edward J. Davila on 9/3/2013. (ejdlc2, COURT STAFF) (Filed on 9/3/2013)
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Cole v. Astrue Doc. 15 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT United States District Court For the Northern District of California 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 13 14 15 16 17 18 19 20 RUSSELL C. COLE, ) ) Plaintiffs, ) ) v. ) ) CAROLYN W. COLVIN, Acting ) Commissioner, Social Security Administration, ) ) Defendant. ) ) ) ) Case No.: 5:12-CV-04406-EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [Re: Docket Nos. 12, 13] Plaintiff Russell C. Cole brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c) to 21 obtain review of the Social Security Administration’s final decision finding Plaintiff “not disabled” 22 and denying his claim for disability benefits. Plaintiff seeks an order reversing the final decision of 23 the Administration and awarding benefits, or alternatively remanding for further administrative 24 proceedings. Presently before the Court are the parties’ cross-motions for summary judgment. 25 Having considered the parties’ papers and the administrative record, the Court grants Defendant’s 26 Motion for Summary Judgment, and denies Plaintiff’s Motion for Summary Judgment. 27 28 1 Case No.: 5:12-CV-04406-EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Dockets.Justia.com 1 I. BACKGROUND 2 a. Procedural History 3 On March 17, 2006, Plaintiff filed an application for a period of disability and disability 4 insurance benefits, alleging disability beginning January 24, 2005. Administrative Record (“AR”) 5 at 172. The claim was denied initially on June 26, 2006, and again upon reconsideration on March 6 9, 2007. Id. Thereafter, Plaintiff filed a request for hearing on April 24, 2007. Id. Plaintiff 7 appeared and testified at a hearing before Administrative Law Judge (“ALJ”) Thomas J. Gaye on 8 June 12, 2008. Id. at 172-78. Plaintiff, represented by attorney Harvey P. Sackett, testified on his 9 own behalf. Id. at 172. Judge Gaye also heard testimony from vocational expert (“VE”) Thomas United States District Court For the Northern District of California 10 Linvill, who testified that Plaintiff would be able to perform the requirements of representative 11 occupations such as a security guard and parking lot attendant. Id. at 177. In a written decision 12 dated July 25, 2008, Judge Gaye found, after recounting the medical evidence and testimony, that 13 Plaintiff was not disabled. Id. 14 Subsequently, Plaintiff asked the Appeals Council to review the July 25, 2008 decision. Id. 15 at 181. In connection with the request for review, Plaintiff submitted the consultative narrative 16 report of Dr. Martin L. Fishman, dated July 14, 2008. Id. The Appeals Council vacated the 17 decision and remanded the case for further proceedings in an order dated April 12, 2010. Id. at 18 181-82. In its remand order, the Appeals Council directed the ALJ to consider the report of Dr. 19 Fishman and resolve issues pertaining to the subject matter of Plaintiff’s residual functional 20 capacity (“RFC”). Id. 21 On remand, Plaintiff, appeared and testified at a hearing held on December 1, 2010 before 22 ALJ Regina L. Sleater. Id. at 34-44. Attorney Betty Herrera, a partner of Mr. Sackett, appeared on 23 behalf of Plaintiff. Id. at 128. Also appearing were W. Benton Boone, MD, a medical expert, and 24 Darlene T. McQuary, a VE. Id. Judge Sleater asked McQuary whether jobs exist in the national 25 economy for an individual with Plaintiff’s age, education, work experience, and RFC. Id. at 43. 26 McQuary testified that Plaintiff would be able to perform a number of occupations such as 27 usher/ticket taker and agricultural sorting and grading. Id. 28 2 Case No.: 5:12-CV-04406-EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1 In a decision dated January 25, 2011, Judge Sleater concluded that Plaintiff was not 2 disabled. Id. at 44. Judge Sleater concluded that, based on the testimony of the VE and the record, 3 Plaintiff was capable of making a successful adjustment to other work that exists in significant 4 numbers in the national economy. Id. Plaintiff’s application for a period of disability and 5 disability insurance benefits was denied. Id. 6 After the decision was issued, Plaintiff filed another request for review of the ALJ’s 7 decision with the Appeals Council. Id. at 27-30. The Appeals Council denied review on July 24, 8 2012. Id. at 1. The ALJ’s decision became final, and Plaintiff then commenced this action for 9 judicial review. United States District Court For the Northern District of California 10 b. Plaintiff’s Age and Educational, Vocational, and Medical History 11 Plaintiff was born on March 1, 1949. Id. at 175. He was 55 years old on the alleged onset 12 date of the disability. Id. He has a high school education plus two years of college. Id. Plaintiff’s 13 past work experience consists of 25 years as a division supervisor for public transportation. Id. at 14 218. Plaintiff’s longitudinal medical record shows a history of treatment for ocular myasthenia 15 since 1982. Id. at 37. Over the years, Plaintiff’s condition was managed with stereoids and 16 generally involved partial ptosis of the eye. Id. 17 On June 10, 2006, Charles Fracchia, M.D. performed an internal medicine consultative 18 evaluation. Id. at 175. Plaintiff’s chief complaint was that he could not lift his left eyelid and his 19 vision was limited to his right eye only. Id. He reported that initially his right eyelid closed for 20 approximately one year and then opened but in November 2005 his left eyelid closed. Id. Plaintiff 21 reported that he started taking prednisone in 1984 and that it helped him for about 22 years. Id. He 22 said that he has not been on medication since November 2005. Id. On examination, his left eye 23 vision was 20/200 and right eye vision was 20/30. Id. He had obvious lid droop on his left eye 24 completely obscuring his pupil. Id. Dr. Fracchia diagnosed left lid droop secondary to myasthenia 25 gravis. Id. Dr. Fracchia found that Plaintiff was unlimited in sitting, standing, and walking, could 26 lift 50 pounds occasionally and 25 pounds frequently, and had no postural limitations. Id. at 176. 27 With regards to visual limitations, Dr. Fracchia found that Plaintiff can only see through his right 28 3 Case No.: 5:12-CV-04406-EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1 eye with no vision practically in his left eye and complains that his vision tires very quickly when 2 he uses his right eye alone. Id. A Disability Determinations Services (“DDS”) physician reviewed Plaintiff’s medical 3 4 records and found that Plaintiff had no exertional limitations and was limited to activities that do 5 not require good bilateral vision. Id. However, on reconsideration a DDS physician felt that, 6 because Plaintiff has 20/30 vision in his right eye, Plaintiff was unlimited with the only limitation 7 of avoiding activities requiring good binocular vision such as commercial flying and commercial 8 driving. Id. On March 20, 2008, Plaintiff was characterized as having become steroid resistant to the 9 United States District Court For the Northern District of California 10 benefits of steroid use for this condition. Id. at 37. On April 1, 2008, Plaintiff was examined by an 11 ophthalmologist at Kaiser Permanente Medical Center. Id. At the time, Plaintiff’s visual acuity 12 was 20/20 in the right eye and 20/20 in the left eye with the eyelid up. Id. Plaintiff was diagnosed 13 with having presbyopia and total ptosis of the left eye. Id. Plaintiff’s treatment consisted of 14 getting over the counter eyeglasses for each eye to read the computer screen and to otherwise wear 15 prescribed glasses. Id. The record documented that Plaintiff’s vision was correctible in the left 16 eye. Id. At the time, there was no other documented pathology which affected the left or right eye. 17 Id. 18 II. LEGAL STANDARD 19 a. Standard for Reviewing the ALJ’s Decision 20 Pursuant to 42 U.S.C. § 405(g), the Court has authority to review an ALJ decision. The 21 Court’s jurisdiction, however, is limited to determining whether the denial of benefits is supported 22 by substantial evidence in the administrative record. Id. A district court may only reverse the ALJ 23 decision if it is not supported by substantial evidence or if the decision was based on legal error. 24 Id.; accord Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). “Substantial evidence” is 25 more than a scintilla, but less than a preponderance. Thomas v. Barnhart, 278 F.3d 947, 954 (9th 26 Cir. 2002). The standard requires relevant evidence that a “[r]easonable mind might accept as 27 adequate to support a conclusion.” Vertigan, 260 F.3d at 1049 (citing Richardson v. Perales, 402 28 4 Case No.: 5:12-CV-04406-EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1 U.S. 389, 401 (1971)). To determine whether substantial evidence supports a finding, the 2 reviewing court “must review the administrative record as a whole, weighing both the evidence 3 that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. 4 Chater, 157 F.3d 715, 720 (9th Cir. 1996). The Court must uphold the ALJ’s conclusion if it is one 5 of several rational interpretations of the evidence. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 6 2005); see also Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). 7 b. Standard for Determining Disability 8 The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can 10 United States District Court For the Northern District of California 9 be expected to result in death or which has lasted or can be expected to last for a continuous period 11 of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). The impairment must also be so 12 severe that a claimant is unable to do her previous work, and cannot “engage in any other kind of 13 substantial gainful work which exists in the national economy,” given her age, education, and work 14 experience. 42 U.S.C. § 423(d)(2)(A). “The claimant carries the initial burden of proving a 15 disability.” Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005). If the claimant proves a 16 prima facie case of disability, then the Commissioner has the burden of establishing that she can 17 perform “a significant number of other jobs in the national economy.” Thomas, 278 F.3d at 955. 18 “The Commissioner can meet this burden through the testimony of a vocational expert or by 19 reference to the Medical Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” Id. 20 21 22 The ALJ evaluates Social Security disability cases using a five-step evaluation process. 20 C.F.R. §§ 404.1520, 416.920. 1) The ALJ must first determine whether the claimant is presently engaged in 23 substantially gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the claimant is not 24 disabled; otherwise the evaluation proceeds to step two. 25 2) The ALJ must determine whether the claimant has a severe impairment or 26 combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not 27 disabled; otherwise the evaluation proceeds to step three. 28 5 Case No.: 5:12-CV-04406-EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1 3) The ALJ must determine whether the claimant’s impairment or combination of 2 impairments meets or medically equals the requirements of the Listing of Impairments, 20 C.F.R. 3 §§ 20 C.F.R. § 404.1520(d), 416.920(d). If so, the claimant is disabled; otherwise the analysis 4 proceeds to step four. 5 4) The ALJ must determine the claimant’s residual functional capacity despite 6 limitations from the claimant’s impairments. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the 7 claimant can still perform work that the individual has done in the past, the claimant is not 8 disabled. If he cannot perform the work, the evaluation proceeds to step five. 20 C.F.R. §§ 9 404.1520(f), 416.920(f). United States District Court For the Northern District of California 10 5) In this step, the Commissioner has the burden of demonstrating that the claimant is 11 not disabled. Considering a claimant’s age, education, and vocational background, the 12 Commissioner must show that the claimant can perform some substantial gainful work in the 13 national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g). 14 15 III. DISCUSSION Plaintiff requests that this Court reverse the ALJ’s final decision and remand the case to the 16 Social Security Administration for an award of benefits. See Docket Item No. 12, Pl’s Mot. for 17 Summ. J. Alternatively, Plaintiff requests that this case be remanded for further administrative 18 proceedings to re-adjudicate the issues. Id. Plaintiff does not challenge the ALJ’s determinations 19 at steps one through four of the evaluation process; at issue here is the ALJ’s conclusion at step 20 five. Id. 21 22 23 a. The ALJ Properly Relied on the Vocational Expert’s Testimony in Finding that Plaintiff Could Perform Alternate Occupations Substantial evidence in the record supports the ALJ’s conclusion at step five that, 24 considering the Plaintiff’s age, education, experience, and RFC, there exist a significant number of 25 jobs in the national economy that Plaintiff can perform. The burden of demonstrating that a 26 claimant can perform alternate occupations can be met by asking the VE a hypothetical question 27 that reflects all of the claimant’s limitations. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 28 6 Case No.: 5:12-CV-04406-EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1 2005). When a VE considering all of the claimant’s restrictions testifies that a claimant could 2 perform specific jobs in significant numbers in the economy, the Commissioner has met his 3 burden. Id. 4 To determine whether Plaintiff was able to perform alternate occupations, the ALJ asked VE McQuary a series of hypotheticals that encompassed Plaintiff’s limitations. AR at 158-62. 6 McQuary testified that someone with Plaintiff’s RFC would be able to perform jobs such as 7 agricultural sorting and grading, Dictionary of Occupational Titles (DOT) 529.687-186 and usher, 8 DOT 344.677-014. Id. at 160-61. McQuary stated that there were approximately 1,500 local and 9 500,000 national agricultural sorting and grading jobs and approximately 10,000 local and 102,330 10 United States District Court For the Northern District of California 5 national usher jobs. Id. No explanation was provided as to how she had arrived at these numbers, 11 and neither the ALJ nor Plaintiff’s counsel asked McQuary to provide one. Id. at 156-66. Based 12 on McQuary’s testimony and the record, the ALJ concluded that, considering the Plaintiff’s age, 13 education, work experience, and RFC, the Plaintiff is capable of making a successful adjustment to 14 other work that exists in significant numbers in the national economy. Id. at 44. 15 Plaintiff objects to the ALJ’s reliance on McQuary’s testimony because, Plaintiff alleges, 16 McQuary’s testimony was “equivocal” and “tentative and indefinite.” Pl’s Mot. for Summ. J at 14, 17 16. When asked by Plaintiff’s counsel whether Plaintiff would have an issue performing the 18 agricultural sorting job because of objects coming from the left, McQuary responded that it was 19 “impossible to say” but acknowledged that if the job involved an assembly line “there could be 20 instances where something might be coming from the left.” AR at 162. When asked if Plaintiff 21 would have an issue performing the usher job because of Plaintiff’s lack of depth perception, 22 McQuary responded that “[i]t would depend on the setup . . . [b]ut, if it is a very steep kind of 23 seating arrangement, that could be a problem.” Id. at 163. 24 Plaintiff fails to mention that, further in the testimony, the ALJ directly questioned 25 McQuary as to whether Plaintiff could perform the agricultural sorting and usher jobs. Id. at 165. 26 McQuary unequivocably answered in the affirmative. Id. Plaintiff does not dispute the accuracy 27 of the hypothetical question the ALJ posed to the vocational expert. Thus, the vocational expert’s 28 7 Case No.: 5:12-CV-04406-EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT testimony in response to the ALJ’s complete hypothetical question, without more, was substantial 2 evidence supporting the ALJ’s determination that plaintiff was able to perform work which exists 3 in significant numbers in the national economy. See Bayliss, 427 F.3d at 1218 (“A [vocational 4 expert's] recognized expertise provides the necessary foundation for his or her testimony. Thus, no 5 additional foundation is required.”). Furthermore, Plaintiff’s objection to McQuary’s testimony is 6 at most an interpretation of the evidence that differs from the ALJ’s. For this Court to adopt 7 Plaintiff’s interpretation and reverse the ALJ’s decision would exceed this Court’s authority. 8 Where the evidence is susceptible to more than one rational interpretation, it is the ALJ’s 9 conclusion that must be upheld. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th 10 United States District Court For the Northern District of California 1 Cir. 1999). Therefore, this Court finds that McQuary’s testimony constituted substantial evidence 11 for the ALJ’s finding that Plaintiff has the ability to perform alternate occupations. 12 13 14 b. The New Evidence Submitted to the Appeals Council does not Render the ALJ’s Decision Unsupported by Substantial Evidence Following the ALJ’s decision denying benefits, Plaintiff submitted to the Appeals Council a 15 consultative vocational report written by Malcolm Brodzinsky. Pl’s Mot. for Summ. J. at 13. 16 Brodzinsky’s report asserts that someone with Plaintiff’s RFC would be unable to perform either of 17 the jobs identified in McQuary’s testimony. AR at 263. The Appeals Council denied review, 18 noting that it had considered the additional evidence submitted by Plaintiff, but that this 19 information did not provide a basis for changing the ALJ’s decision. Id. at 1–5. In determining 20 whether to grant review, the Appeals Council must consider any new and material evidence 21 submitted to it relating “to the period on or before the date of the [ALJ’s] hearing decision.” 20 22 C.F.R. § 416.1470(b). When, as here, the Appeals Council does consider the additional evidence 23 but denies review, the additional evidence becomes part of the administrative record for purposes 24 of this Court’s analysis. Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161–63 (9th Cir. 25 2012). Thus, this Court must engage in an “overall review” of the ALJ’s decision, including the 26 new evidence, to determine whether the decision was “supported by substantial evidence” and was 27 “free of legal error.” Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). 28 8 Case No.: 5:12-CV-04406-EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Brodzinsky’s report differs from McQuary’s testimony primarily in two respects. First, 1 2 Brodzinsky asserts that there exist generally fewer agricultural sorting and usher jobs, regionally 3 and nationally, than did McQuary’s testimony. AR at 264-68. Second, Brodzinsky asserts that 4 both the agricultural sorting and usher jobs, “based upon the physical requirements of the job[s] as 5 usually performed,” would not be appropriate for an individual with Plaintiff’s RFC. Id. at 265-67. 6 Regarding the agricultural sorting job, Brodzinsky states that there could be problems for Plaintiff 7 if the job involved a conveyer belt or if Plaintiff would be faced with objects arriving from the left, 8 but Brodzinsky “was unable to obtain actual information on this.” Id. at 267. Regarding the usher 9 job, Brodzinsky stated that ushers typically walk in darkened environments and could trip over United States District Court For the Northern District of California 10 objects on the left or have difficulty observing customers or employees approaching from the left. 11 Id. at 264. 12 This Court is not convinced that Brodzinsky’s report renders the ALJ’s decision 13 unsupported by substantial evidence. An ALJ may properly rely on a VE’s testimony regarding 14 occupational issues. See 20 C.F.R. § 416.966(e) (authorizing ALJs to rely on vocational expert 15 testimony to determine occupational issues); Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 16 2001) (testimony of qualified vocational expert constitutes substantial evidence). Additionally, the 17 Ninth Circuit has held that where the ALJ relies on proper evidence in concluding that there are 18 jobs in the national economy that a claimant can perform, the Appeals Council is free to reject 19 contradictory evidence obtained after an adverse administrative decision. See Gomez v. Chater, 74 20 F.3d 967, 972 (9th Cir. 1996) (finding that the Appeals Council appropriately rejected the report of 21 claimant’s vocational expert, which stated that no jobs were available that claimant could perform, 22 when the ALJ had properly relied on the Medical–Vocational Guidelines to find that such jobs did 23 exist). 24 Furthermore, Brodzinsky’s report contains little new information that the ALJ did not 25 already consider. During cross-examination, McQuary was asked whether the Plaintiff may have 26 problems performing the job of agricultural sorter because of objects coming from the left. AR at 27 162. McQuary was also questioned as to whether the usher job may be a problem because of 28 9 Case No.: 5:12-CV-04406-EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1 Plaintiff’s difficulty with depth perception. Id. at 163. There is no indication that Brodzinsky had 2 any better an understanding of Plaintiff’s limitations than did McQuary or that McQuary was less 3 qualified than Brodzinsky. In fact, Brodzinsky’s only source of information regarding Plaintiff 4 appears to be the 11-page decision of the ALJ. Id. at 263. 5 At best, Plaintiff has presented evidence sufficient to support an alternative finding 6 regarding the number of relevant jobs available in the economy. That is not enough to warrant 7 remand. It is within the Commissioner’s discretion to resolve any conflicts and ambiguities in the 8 evidence and the Commissioner’s decision must be upheld where the evidence is susceptible to 9 more than one rational interpretation. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). United States District Court For the Northern District of California 10 See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the evidence is susceptible to 11 more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 12 conclusion must be upheld.”). 13 14 15 c. The ALJ’s Identification of Additional Occupations Other than those Suggested by the Vocational Expert does not Constitute Reversible Error Plaintiff contends that the ALJ “wrongly acted as her own vocational expert” in identifying 16 additional occupations that Plaintiff could perform. Pl’s Mot. for Summ. J. at 16-18. The ALJ, in 17 her decision, noted that in addition to the agricultural sorting and usher jobs identified by 18 McQuary, Plaintiff could also perform the jobs of scale operator, basket filler, and Mexican food 19 maker. AR at 44. The ALJ did not elicit VE testimony in making this finding. Id. However, this 20 Court takes no position as to whether the ALJ committed an error in identifying additional 21 occupations because, as discussed above, her reliance on McQuary’s testimony alone was 22 sufficient evidence for concluding that Plaintiff could perform alternate occupations. Even if the 23 ALJ’s identification of additional occupations constituted error, Plaintiff has cited no authority 24 authorizing this Court to reverse an ALJ’s decision when the decision is otherwise supported by 25 substantial evidence. 26 27 28 10 Case No.: 5:12-CV-04406-EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 1 2 IV. CONCLUSION For the foregoing reasons, the Court DENIES Plaintiff’s Motion for Summary Judgment, 3 and GRANTS Defendant’s Motion for Summary Judgment. 4 IT IS SO ORDERED 5 Dated: September 3, 2013 6 7 _________________________________ EDWARD J. DAVILA United States District Judge 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Case No.: 5:12-CV-04406-EJD ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
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