Swanson v. Commissioner of Social Security, No. 1:2018cv03199 - Document 17 (E.D. Wash. 2020)

Court Description: ORDER GRANTING 15 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying Plaintiff's Motion for Summary Judgment. Signed by Senior Judge Robert H. Whaley. (SG, Case Administrator)

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Swanson v. Commissioner of Social Security Doc. 17 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 16, 2020 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 MICHELLE DALE S., 8 Plaintiff, No. 1:18-CV-03199-RHW 9 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 COMMISSIONER OF SOCIAL SECURITY, Defendant. Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 13, 15. Plaintiff brings this action seeking judicial review pursuant to 42 15 U.S.C. § 405(g) of the Commissioner of Social Security’s final decision, which 16 denied her application for Disability Insurance Benefits under Title II of the Social 17 Security Act, 42 U.S.C. § 401-434. See Administrative Record (AR) at 1-7, 141- 18 166. After reviewing the administrative record and briefs filed by the parties, the 19 Court GRANTS Defendant’s Motion for Summary Judgment and DENIES 20 Plaintiff’s Motion for Summary Judgment. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 I. Jurisdiction Plaintiff filed her application for Disability Insurance Benefits on October 3 16, 2013. See AR 144, 522-23. She alleged disability beginning on August 23, 4 2013. AR 522. Plaintiff’s application was initially denied on January 7, 2014, see 5 AR 411-13, and on reconsideration on August 7, 2014. See AR 417-18. On 6 September 16, 2014, Plaintiff filed a request for a hearing. AR 422-23. 7 After a continuance request by Plaintiff, a hearing with Administrative Law 8 Judge (“ALJ”) Laura Valente eventually occurred on March 23, 2017. AR 349- 9 387. On August 29, 2017, the ALJ issued a decision concluding that Plaintiff was 10 not disabled as defined in the Act and was therefore ineligible for disability 11 benefits. AR 141-166. On August 13, 2018, the Appeals Council denied Plaintiff’s 12 request for review, AR 1-7, thus making the ALJ’s ruling the final decision of the 13 Commissioner. See 20 C.F.R. § 404.981. On October 11, 2018, Plaintiff timely 14 filed the present action challenging the denial of benefits. ECF No. 1. Accordingly, 15 Plaintiff’s claims are properly before this Court pursuant to 42 U.S.C. § 405(g). 16 17 II. Five-Step Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 18 substantial gainful activity by reason of any medically determinable physical or 19 mental impairment which can be expected to result in death or which has lasted or 20 can be expected to last for a continuous period of not less than twelve months.” 42 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 U.S.C. §§ 423(d)(1)(A). A claimant shall be determined to be under a disability 2 only if the claimant’s impairments are so severe that the claimant is not only 3 unable to do his or her previous work, but cannot, considering claimant’s age, 4 education, and work experience, engage in any other substantial gainful work that 5 exists in the national economy. 42 U.S.C. § 423(d)(2)(A). 6 The Commissioner has established a five-step sequential evaluation process 7 for determining whether a claimant is disabled within the meaning of the Act. 20 8 C.F.R. § 404.1520(a)(4); Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 9 2006). 10 Step one inquires whether the claimant is presently engaged in “substantial 11 gainful activity.” 20 C.F.R. § 404.1520(b). Substantial gainful activity is defined as 12 significant physical or mental activities done or usually done for profit. 20 C.F.R. § 13 404.1572. If the claimant is engaged in substantial activity, he or she is not entitled 14 to disability benefits. 20 C.F.R. § 404.1571. If not, the ALJ proceeds to step two. 15 Step two asks whether the claimant has a severe impairment, or combination 16 of impairments, that significantly limits the claimant’s physical or mental ability to 17 do basic work activities. 20 C.F.R. § 404.1520(c). A severe impairment is one that 18 has lasted or is expected to last for at least twelve months, and must be proven by 19 objective medical evidence. 20 C.F.R. § 404.1508-09. If the claimant does not 20 have a severe impairment, or combination of impairments, the disability claim is ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 denied and no further evaluative steps are required. Otherwise, the evaluation 2 proceeds to the third step. 3 Step three involves a determination of whether one of the claimant’s severe 4 impairments “meets or equals” one of the listed impairments acknowledged by the 5 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 6 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526; 20 C.F.R. § 404 Subpt. P. App. 1 7 (“the Listings”). If the impairment meets or equals one of the listed impairments, 8 the claimant is per se disabled and qualifies for benefits. Id. If the claimant is not 9 per se disabled, the evaluation proceeds to the fourth step. 10 Step four examines whether the claimant’s residual functional capacity 11 enables the claimant to perform past relevant work. 20 C.F.R. § 404.1520(e)-(f). If 12 the claimant can still perform past relevant work, the claimant is not entitled to 13 disability benefits and the inquiry ends. Id. 14 Step five shifts the burden to the Commissioner to prove that the claimant is 15 able to perform other work in the national economy, taking into account the 16 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 17 404.1520(g), 404.1560(c). To meet this burden, the Commissioner must establish 18 that (1) the claimant is capable of performing other work; and (2) such work exists 19 in “significant numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); 20 Beltran v. Astrue, 676 F.3d 1203, 1206 (9th Cir. 2012). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 2 III. Standard of Review A district court’s review of a final decision of the Commissioner is governed 3 by 42 U.S.C. § 405(g). The scope of review under this section is limited, and the 4 Commissioner’s decision will be disturbed “only if it is not supported by 5 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 6 1158-59 (9th Cir. 2012) (citing § 405(g)). In reviewing a denial of benefits, a 7 district court may not substitute its judgment for that of the ALJ. Matney v. 8 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). When the ALJ presents a reasonable 9 interpretation that is supported by the evidence, it is not the role of the courts to 10 second-guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Even if 11 the evidence in the record is susceptible to more than one rational interpretation, if 12 inferences reasonably drawn from the record support the ALJ’s decision, then the 13 court must uphold that decision. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 14 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954-59 (9th Cir. 2002). 15 16 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings 17 and only briefly summarized here. Plaintiff was 44 years old on the alleged date of 18 onset, which the regulations define as a younger person. AR 156, 389; see 20 19 C.F.R. § 404.1563(c). She graduated from high school, completed a physical 20 therapy aide program, and can read, write, and communicate in English. AR 545, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 547, 1404. She has past relevant work as an insurance claims adjuster, an office 2 manager, a payroll clerk, and an inventory clerk. AR 156, 372-74, 535-39. 3 V. The ALJ’s Findings 4 The ALJ determined that Plaintiff was not under a disability within the 5 meaning of the Act at any time from August 23, 2013 (the alleged onset date) 6 through August 29, 2017 (the date the ALJ issued her decision). AR 144, 158. 7 At step one, the ALJ found that Plaintiff had not engaged in substantial 8 gainful activity since the alleged onset date (citing 20 C.F.R. § 404.1571 et seq.). 9 AR 146. 10 At step two, the ALJ found that Plaintiff had the following severe 11 impairments: degenerative disc disease, plantar fasciitis, asthma, and posttraumatic 12 stress disorder (citing 20 C.F.R. § 404.1520(c)). AR 146. 13 At step three, the ALJ found that Plaintiff did not have an impairment or 14 combination of impairments that met or medically equaled the severity of one of 15 the listed impairments in 20 C.F.R. § 404, Subpt. P, Appendix 1. AR 149. 16 At step four, the ALJ found that Plaintiff had the residual functional 17 capacity to perform light work as defined in 20 C.F.R. § 404.1567(b), albeit with 18 some additional limitations. AR 151. With respect to Plaintiff’s physical abilities, 19 the ALJ found that Plaintiff could sit for one hour at a time, and then would need 20 to change position, for a total of six hours in an eight-hour workday. AR 151. She ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 could stand or walk for a total of three hours in an eight-hour workday. AR 151. 2 She could lift and carry 10 pounds frequently and 20 pounds occasionally, 3 occasionally reach overhead bilaterally, and occasionally perform all other postural 4 movements. AR 151. She could occasionally push or pull with her lower left 5 extremity to operate foot pedals. AR 151. She could never climb ladders, ropes, or 6 scaffolds or be exposed to pulmonary irritants, extreme cold, heights, or dangerous 7 moving machinery. AR 151. 8 With respect to Plaintiff’s mental abilities, the ALJ found that Plaintiff had 9 sufficient concentration to understand, remember, and carry out simple, repetitive 10 tasks in two-hour increments with usual breaks throughout an eight-hour workday. 11 AR 151. Given these physical and psychological limitations, the ALJ found that 12 Plaintiff was unable to perform any past relevant work. AR 156. 13 At step five, the ALJ found that in light of Plaintiff’s age, education, work 14 experience, and residual functional capacity, there were jobs that existed in 15 significant numbers in the national economy that she could perform (citing 20 16 C.F.R. § 404.1569). AR 157. These included a touch-up screener and table worker. 17 AR 157. 18 19 20 VI. Issues for Review Plaintiff argues that: (1) the Appeals Council improperly rejected the new medical evidence she submitted with her request for review, (2) the ALJ erred by ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 not including Guillain-Barré syndrome, mixed connective tissue disease, essential 2 tremors, and migraines as severe impairments at step two of the sequential 3 evaluation process, (3) the ALJ improperly discounted Dr. Rox Burkett’s opinion, 4 (4) substantial evidence does not support the ALJ’s step five finding that other jobs 5 existed in significant numbers in the national economy that she could perform, and 6 (5) the ALJ improperly discredited her subjective pain complaint testimony. ECF 7 No. 13 at 4-21. 8 9 VII. Discussion A. The Appeals Council Properly Rejected the New Medical Evidence Plaintiff Submitted with her Request for Review 10 Plaintiff argues that the Appeals Council erroneously rejected the new 11 evidence she submitted with her request for review. ECF No. 13 at 4-5. She 12 specifies three sets of records in particular: (1) an April 2014 cerebrospinal fluid 13 analysis, see AR 234-35, (2) three lumbar imaging studies and Dr. Dave 14 Atteberry’s July 2017 chart note, see AR 22, 31-32, 169, 176, and (3) her 15 November 2017 lumbar fusion operative report, see AR 16-17. ECF No. 13 at 5. 16 The Social Security regulations permit a claimant to submit additional 17 evidence to the Appeals Council. 20 C.F.R. § 404.900(b). The Appeals Council is 18 required to consider new and material evidence if it “relates to the period on or 19 before the date of the [ALJ’s] hearing decision” and “there is a reasonable 20 probability that the additional evidence would change the outcome of the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 decision.” 20 C.F.R. § 404.970(a)(5). Evidence that meets the criteria is to be 2 considered by the Appeals Council and incorporated into the administrative record 3 as evidence, “which the district court must consider when reviewing the 4 Commissioner’s final decision for substantial evidence.” Brewes v. Comm’r of Soc. 5 Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). Pursuant to agency policy, a 6 copy of evidence not meeting the criteria and therefore not considered by the 7 Appeals Council is nonetheless included as part of the certified administrative 8 record filed with this Court, although by law, the rejected evidence falls outside the 9 scope of the Court’s substantial evidence review. See Soc. Sec. Admin. Hrgs., 10 Appeals, & Litig. Law Man. (“HALLEX”), HALLEX § I-3-5-20 (addressing how 11 additional evidence is to be handled). 12 Plaintiff first challenges the Appeals Council’s finding that the April 2014 13 cerebrospinal fluid analysis would not have changed the case’s outcome. ECF No. 14 13 at 5; see AR 234-35. Plaintiff argues that this report would have changed the 15 case’s outcome because it revealed “elevated GD1a and Gd1b antibodies,” which 16 are associated with Guillain-Barré syndrome—a condition the ALJ found that 17 Plaintiff did not have. ECF No. 13 at 5. Plaintiff implies that if the ALJ had the 18 benefit of this report, she would have concluded otherwise. Id. 19 20 The problem with this argument is that multiple treating doctors reviewed this same cerebrospinal fluid analysis yet nevertheless concluded that Plaintiff did ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 not suffer from Guillain-Barré syndrome. Treating physician Martin Backer, M.D., 2 reviewed the report and noted that it only revealed “minimal elevation in the GD1a 3 and GD1b ganglioside antibodies . . . only slightly above the upper limits of 4 normal.” AR 897-98. He then stated, “I do not think she has Guillain-Barré 5 syndrome.” AR 899. Another treating doctor, Marty Brueggemann, M.D., also 6 reviewed the cerebrospinal fluid analysis and noted that it demonstrated only 7 “minor abnormalities.” AR 894. He then opined that Plaintiff’s examination was 8 “inconsistent with” Guillain-Barré syndrome. AR 894. Finally, treating physician 9 Raffaella Betza, M.D.—who also reviewed the analysis—noted that Plaintiff’s test 10 11 for Guillain-Barré syndrome was negative.1 AR 940-41. Relying on these opinions, the ALJ found that Plaintiff did not have 12 Guillain-Barré syndrome. AR 148. Given that all these treating physicians had 13 reviewed and considered the April 2014 cerebrospinal fluid analysis in rendering 14 their opinions, the fact that the ALJ did not have the actual report itself did not 15 change the case’s outcome. The Appeals Council did not err in so concluding. 16 17 18 19 20 1 In her reply, Plaintiff asserts that the presence of the antibodies in her cerebrospinal fluid “confirmed Guillain-Barré Syndrome.” ECF No. 16 at 2. As Dr. Backer explained, this is incorrect. Plaintiff also asserts that Hoan Tran, M.D., “found she had GBS or Miller-Fisher (a variant of GBS).” ECF No. 16 at 2 (citing AR 909). However, Dr. Tran never diagnosed Plaintiff with either of these conditions—he only noted that the “slight[] elevat[ion]”of the antibodies was “associated” with GBS and Miller-Fisher and because of this, he referred Plaintiff for a neurology consultation. See AR 909. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 Next, Plaintiff contests the Appeals Council’s finding that three lumbar 2 imaging studies and Dr. Atteberry’s July 2017 chart note would not have changed 3 the case’s outcome. ECF No. 13 at 5; see AR 22, 31-32, 169, 176. She argues that 4 these records revealed “abutment on the L5 nerve root . . . junctional stenosis at 5 L4-5 . . . [and] an antalgic gait, diminished L5 and L4 sensation, and absent 6 reflexes.” ECF No. 13 at 5. However, Plaintiff fails to explain or point to a medical 7 opinion that explains how these findings functionally limited her in ways that the 8 ALJ had not already accounted for. See AR 152-53. But even assuming they did, it 9 still would not have changed the case’s outcome because these findings related to 10 Plaintiff’s junctional stenosis, which did not meet the 12-month durational 11 requirement for a finding of disability. See Janell S. v. Comm’r of Soc. Sec., No. 12 1:18-CV-03167-MKD, 2019 WL 6121409, at *6 (E.D. Wash. 2019); 20 C.F.R 13 § 404.1505(a). Dr. Atteberry suspected junctional stenosis in July 2017, confirmed 14 it in September 2017, performed a lumbar fusion in November 2017, and the 15 condition had largely resolved by January 2018. See AR 13-18, 31-33. Because 16 Plaintiff fails to meet her burden to demonstrate that this impairment lasted for at 17 least 12 months, she cannot show that the additional evidence would have affected 18 the ALJ’s decision. See Janell S., 2019 WL 6121409, at *6 (holding that evidence 19 submitted to Appeals Council relating to claimant’s ankle surgery, which occurred 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 after the ALJ’s decision, did not affect case’s outcome because the ankle condition 2 resolved nine months after its onset). 3 Finally, Plaintiff challenges the Appeals Council’s rejection of the operative 4 report from her November 2017 lumbar fusion. ECF No. 13 at 5. Plaintiff 5 submitted her lumbar surgery records to the Appeals Council twice. First, she 6 submitted the entire surgical file from Sunnyside Community Hospital, which 7 included her July 2017 appointment note (where Dr. Atteberry suspected stenosis), 8 her imaging reports, her September 2017 follow-up, her operative report and post- 9 operative notes, her evaluation notes, her anesthesia and nursing notes, her 10 discharge reports, and her physical therapy plan of care. See AR 20-140. The 11 Appeals Council examined these records and rejected them on the basis that they 12 did not show a reasonable probability of changing the case’s outcome. AR 2. 13 Plaintiff later submitted a subset of these same surgical records, which only 14 included the operative report and her appointment notes. See AR 13-18. The 15 Appeals Council rejected these on the basis that they did not relate to the period at 16 issue. AR 2. 17 Given that Dr. Atteberry suspected junctional stenosis in July 2017, see AR 18 31-33—which was a month before the ALJ issued her decision—Plaintiff is correct 19 that the Appeals Council erred by rejecting the operative report on the basis that it 20 did not relate to the period at issue. See Taylor v. Comm’r of Soc. Sec. Admin., 659 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 F.3d 1228, 1232-33 (9th Cir. 2011) (finding new evidence relates to the period at 2 issue when it concerns the same ongoing impairments present before the ALJ’s 3 decision); Janell S., 2019 WL 6121409, at *5-6 (holding that claimant’s records for 4 ankle surgery, which occurred after the ALJ’s decision, were nevertheless related 5 to period at issue because the ankle impairment was identified prior to the ALJ’s 6 decision). However, although Plaintiff’s November 2017 operative report does 7 relate to the period at issue, the Appeals Council nevertheless properly concluded 8 that it did not affect the case’s outcome. As discussed above, Plaintiff’s stenosis 9 largely resolved by January 2018 and therefore did not meet the 12-month 10 durational requirement for a finding of disability. Janell S., 2019 WL 6121409, at 11 *6 (holding the same under nearly identical facts). 12 B. The ALJ did not Reversibly Err in Considering Plaintiff’s Impairments at Step Two 13 Plaintiff contends the ALJ improperly evaluated numerous impairments at 14 step two of the sequential evaluation process. ECF No. 13 at 5-10. Specifically, she 15 argues that the ALJ erred in either rejecting the following conditions or finding that 16 they were not severe: (1) Guillain-Barré syndrome, (2) mixed connective tissue 17 disease, (3) essential tremors, and (4) headaches/migraines. Id. 18 At step two in the sequential evaluation, the ALJ must determine whether a 19 claimant has a medically severe impairment or combination of impairments. 20 20 C.F.R. § 404.1520(a)(4)(ii). The claimant has the burden of establishing that he or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 she has a severe impairment. 20 C.F.R. § 404.1512(a). In doing so, the claimant 2 must provide objective medical evidence—a claimant’s statements regarding his or 3 her symptoms are insufficient. 20 C.F.R. § 404.1521. 4 The existence of an impairment does not mean that it is “severe.” Edlund v. 5 Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001). To be severe, an impairment 6 must significantly limit a claimant’s ability to perform basic work activities. 20 7 C.F.R. §§ 404.1520(c), 404.1522(a); Edlund, 253 F.3d at 1159. When arguing on 8 appeal that the ALJ failed to include a severe impairment at step two, a claimant 9 cannot simply point “to a host of diagnoses scattered throughout the medical 10 record.” Cindy F. v. Berryhill, 367 F. Supp. 3d 1195, 1207 (D. Or. 2019). Rather, 11 to establish harmful error, a claimant must specifically identify functional 12 limitations that the ALJ failed to consider in the sequential analysis. Id. 13 1. 14 Plaintiff first argues that the ALJ erred in finding that she did not have Guillain-Barré syndrome 15 Guillain-Barré syndrome. ECF No. 13 at 6-7. However, as discussed above, Dr. 16 Backer, Dr. Brueggemann, and Dr. Betza all reviewed Plaintiff’s April 2014 17 cerebrospinal fluid analysis2 yet nevertheless concluded that she did not suffer 18 from Guillain-Barré syndrome. See AR 894, 897-99, 940-41. Plaintiff cites records 19 20 2 Plaintiff asserts that “[t]here is no indication Dr. Backer saw these lab results.” ECF No. 13 at 7. This is incorrect. See AR 898 (“I reviewed laboratories that she brings from the outpatient setting from her lumbar puncture and she had . . . elevation in the antibodies as mentioned above, which was only slightly above the upper limits of normal.”). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 from Dr. Tran, but he only noted that the “slight[] elevat[ion]” of the antibodies 2 was “associated with” Guillain-Barré syndrome and because of this, he referred 3 Plaintiff for a neurology consultation. See AR 909. Plaintiff does not cite a 4 diagnosis from Dr. Tran or any other medical provider. Accordingly, substantial 5 evidence supports the ALJ’s conclusion that Plaintiff did not have Guillain-Barré 6 syndrome. 7 2. 8 Plaintiff also contests the ALJ’s finding that she “does not have a medically Mixed connective tissue disease 9 determinable auto-immune disorder.”3 AR 148; ECF No. 13 at 7. She cites medical 10 records from Dr. Richard Neiman, Dr. Lawrence Murphy, Dr. Raffaella Betza, and 11 Dr. Henry Kim. ECF No. 13 at 7 (citing AR 1094, 1133-1157, 1330-31). 12 In June 2014, Plaintiff saw Dr. Betza (resident) and Dr. Murphy (attending 13 physician) at Swedish Neurology for tremors and because she was concerned about 14 multiple sclerosis. See AR 1331. They opined that the likelihood of Plaintiff 15 having multiple sclerosis was “vanishingly small” and noted that somatoform 16 disorder was “quite high on [the] differential.” AR 1331. However, they wanted 17 her to “see a rheumatologist to rule out a connective tissue disorder.” AR 1331. 18 They then referred her to rheumatologist Dr. Neiman. AR 1097. 19 20 3 Plaintiff did not list mixed connective tissue disease in her application but did raise it in her opening statement at the hearing. AR 360, 546. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 In September 2014, Dr. Neiman performed a rheumatology evaluation. AR 2 1097. He ordered laboratory work to look for autoimmune diseases. AR 1098. The 3 testing resulted in “borderline findings” for anti-nuclear antibodies and C-reactive 4 proteins. AR 1095. Based on these results, he opined that there was “a slight 5 possibility her problems may be autoimmune.” AR 1096 (emphasis added). In 6 December 2014, Dr. Neiman re-evaluated Plaintiff and again opined, “It is possible 7 this is autoimmune but it is clearly a tentative diagnosis.” AR 1094. 8 In February 2015, Plaintiff had an appointment with Dr. Kim—who she had 9 been seeing for pain management for several years—and she reported that Dr. 10 Neiman had diagnosed her with rheumatoid arthritis, mixed connective tissue 11 disease, and fibromyalgia. AR 1147 (Dr. Kim’s chart note stating: “seeing Dr. 12 Neiman in Seattle; dx with RA and MCTD as well as FMS per pt”), 1149 (“dx of 13 RA, MCTD, and fibromyalgia by rheumatology per pt”). Based on Plaintiff’s 14 report, Dr. Kim added mixed connective tissue disease to the list of her conditions. 15 AR 1133, 1136, 1139. Dr. Kim had never previously noted this condition before, 16 nor did he ever subsequently test or treat her for it. See AR 1132-1160. 17 In sum, Dr. Betza and Dr. Murphy did not diagnose Plaintiff with a 18 connective tissue disorder but rather referred her to Dr. Neiman to rule it out. Dr. 19 Neiman only ever found a “possibility” of the disease and Dr. Kim only listed it as 20 a diagnosis based on Plaintiff’s self-reports. Accordingly, the ALJ properly found ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 that Plaintiff did not have a medically determinable autoimmune disorder. See 2 Belknap v. Astrue, 364 F. App’x 353, 355 (9th Cir. 2010) (physicians’ diagnoses 3 based on claimants’ self-reporting—rather than medical signs and laboratory 4 findings—cannot establish medically determinable impairments); 20 C.F.R. § 5 404.1521 (same); Stewart v. Colvin, 2015 WL 3616082, at *10 (N.D. Ala. 2015) 6 (doctor’s statement that claimant “could possibly have osteoarthritis” was 7 insufficient to establish a medically determinable impairment). 8 3. 9 Plaintiff challenges the ALJ’s characterization of her essential tremors as a Essential tremors 10 symptom of her other conditions rather than as an independent medically 11 determinable impairment. ECF No. 13 at 7-8; see AR 148. Multiple medical 12 providers noted Plaintiff’s tremors, although no one clearly explained their 13 etiology. See AR 940 (Dr. Betza), 943 (Dr. Murphy), 1300, 1306 (ARNP Tweedy), 14 1339, 1342 (Dr. Anne Mai, characterizing the tremors as “mild”). But even 15 assuming the ALJ erred in analyzing Plaintiff’s tremors as a symptom as opposed 16 to an independent impairment, “Plaintiff does not advance a single functional 17 limitation that the ALJ failed to consider in the sequential analysis.” Cindy F., 367 18 F. Supp. 3d at 1207. Other than citing the opinion of Dr. Burkett, which the ALJ 19 properly discounted, see infra at 18-24, Plaintiff fails to identify any limitations 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 stemming from her tremors and therefore fails to demonstrate harmful error. See 2 ECF No. 13 at 9, No. 16 at 4-5 (citing AR 1328-29). 3 4. 4 Finally, Plaintiff disputes the ALJ’s finding that her headaches/migraines, Migraines 5 while medically determinable, were not severe because they did not cause any 6 significant functional limitations. ECF No. 13 at 8; see AR 147. A number of the 7 records to which Plaintiff cites actually support the ALJ’s finding. See AR 873 8 (“She says that the headaches and the frequent migraines that she had been 9 experiencing prior to surgery are reduced both in intensity and frequency.”), 1339 10 (“She has been having recurrence of daily mild headaches since the head injury.”). 11 And in any event, Plaintiff fails to identify any functional limitations put forth by a 12 medical provider that are not her self-reports.4 See ECF No. 13 at 8, 10, No. 16 at 5 13 (citing AR 873, 909, 1197-1200, 1220, 1230, 1339-40). 14 C. The ALJ Properly Discounted Dr. Burkett’s Opinion Plaintiff argues that the ALJ erred by discounting Dr. Rox Burkett’s April 15 16 2017 report. ECF No. 13 at 10-16; see AR 155, 1327-29. 17 /// 18 /// 19 20 4 Plaintiff relies on Phillips v. Berryhill, 2017 WL 2664587, at *4 (W.D. Wash. 2017), see ECF No. 13 at 9-10, No. 16 at 5, but that case is distinguishable because the ALJ had improperly discounted the claimant’s subjective symptom testimony. Phillips, 2017 WL 2664587, at *4. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 1. 2 Title II’s implementing regulations distinguish among the opinions of three Legal principles 3 types of physicians: (1) those who treat the claimant (treating physicians); (2) those 4 who examine but do not treat the claimant (examining physicians); and (3) those 5 who neither examine nor treat the claimant but who review the claimant’s file 6 (non-examining physicians). Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th 7 Cir. 2001); see 20 C.F.R. § 404.1527(c)(1)-(2). 8 To reject a doctor’s opinion, ALJs generally must provide “specific and 9 legitimate reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 10 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ satisfies this standard by “setting out 11 a detailed and thorough summary of the facts and conflicting clinical evidence, 12 stating his [or her] interpretation thereof, and making findings.” Garrison v. 13 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). In contrast, an ALJ fails to satisfy the 14 standard when he or she “rejects a medical opinion or assigns it little weight while 15 doing nothing more than ignoring it, asserting without explanation that another 16 medical opinion is more persuasive, or criticizing it with boilerplate language that 17 fails to offer a substantive basis for his [or her] conclusion.” Id. at 1012-13. 18 2. 19 Dr. Burkett reviewed Plaintiff’s 893-page medical file at the request of her 20 Dr. Burkett’s report and the ALJ’s reasoning counsel. AR 1327. He did not examine Plaintiff. AR 1327. In April 2017, he issued ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 a report outlining his impressions and opinion based on his review of the records. 2 AR 1327. He opined that Plaintiff’s lumbar problems, sacroiliac arthritis, leg pain, 3 and knee problems prevented her from “effectively ambulat[ing]” and limited her 4 to standing for only one or two hours per day. AR 1329. He also opined that 5 Plaintiff’s hand tremors, hand pain, and arm weakness limited her motor skills to 6 50 percent. AR 1329. Given these restrictions, he believed that Plaintiff was unable 7 to perform sedentary work. AR 1329. Finally, he opined that Plaintiff was disabled 8 as defined in the Act in three different ways: (1) she met Listing 1.02 for major 9 joint dysfunction, (2) she met Listing 14.09C for inflammatory arthritis, and (3) 10 11 she lacked sustainable function. AR 1329. The ALJ assigned little weight to Dr. Burkett’s opinion, reasoning that (1) 12 Dr. Burkett only reviewed the record and did not treat or examine Plaintiff, (2) his 13 opinion was inconsistent with much of the medical evidence, and (3) his opinion 14 was inconsistent with Plaintiff’s reported activities, which included actively 15 coaching basketball. AR 155. Generally speaking, these are all legitimate reasons 16 for discounting a medical provider’s opinion. See Holohan, 246 F.3d at 1202 (non- 17 examining physicians’ opinions generally entitled to least weight); 20 C.F.R. § 18 404.1527(c)(4) (“[T]he more consistent an opinion is with the record as a whole, 19 the more weight we will give to that opinion.”); Batson v. Comm’r of Soc. Sec. 20 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (same); Ghanim v. Colvin, 763 F.3d ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 1154, 1162 (9th Cir. 2014) (inconsistencies between physician’s opinion and 2 claimant’s daily activities is legitimate reason to discount that opinion); Morgan v. 3 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600-02 (9th Cir. 1999) (same). 4 3. 5 First, Plaintiff compares Dr. Burkett’s opinion with Dr. Jeffrey Merrill’s Plaintiff’s arguments 6 opinion. ECF No. 13 at 12-14. She compares the dates of their reviews, the number 7 of records they had available, the level of detail in their respective reports, the 8 number of headings they used, their use of citations, etc., and asserts that these 9 various factors made Dr. Burkett’s opinion more persuasive than Dr. Merrill’s. Id. 10 While this may be true, it is the ALJ’s province to weigh the persuasive value of 11 the various medical opinions and the Court’s role is to review for substantial 12 evidence, not to make those determinations in the first instance. Thomas, 278 F.3d 13 at 954-59. 14 Plaintiff also argues that the ALJ erred by not reciting all three ways in 15 which Dr. Burkett believed she was disabled. ECF No. 13 at 14. Even assuming 16 the ALJ was required to do this, the ALJ nevertheless described two 5 of the ways 17 in which Dr. Burkett believed Plaintiff was disabled (Listing 1.02 and lack of 18 sustainable function) and did not address the third (Listing 14.09C) in light of the 19 5 20 Plaintiff asserts that the ALJ only outlined one of the ways in which Dr. Burkett believed her to be disabled. ECF No. 13 at 14. However, the ALJ outlined two of the three. See AR 155. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 fact that she did not find that Plaintiff had inflammatory arthritis, as that listing 2 requires. Compare AR 155, with AR 1329. 3 Plaintiff argues that the ALJ erred in discounting Dr. Burkett’s opinion on 4 the basis that he was a non-examining physician, given that the ALJ also 5 considered other non-examining physicians’ opinions yet did not discount their 6 opinions on the same basis. ECF No. 13 at 14. In this context, this was error, see 7 Yesipovich v. Colvin, 2015 WL 1738299, at *4 (N.D. Cal. 2015), which the 8 Commissioner does not contest. See ECF No. 15 at 9-11. 9 However, the ALJ gave two other reasons for discounting Dr. Burkett’s 10 opinion. The ALJ extensively analyzed the medical record and found that it was 11 generally inconsistent with Dr. Burkett’s opinion. AR 152-53, 155. The ALJ noted 12 Plaintiff’s longitudinal examination findings that regularly revealed full strength in 13 all extremities and muscle groups, normal muscle bulk and tone, normal sensation, 14 no tenderness, intact motor function, and full range of motion in her extremities, 15 hips, and back. AR 152-53. Plaintiff frequently had normal ambulation, gait, 16 station, and movement. AR 152-53. She walked unassisted. AR 153. The ALJ also 17 noted some occasional abnormal examination findings, including positive straight 18 leg raise tests, “slightly decreased” upper extremity strength, spine tenderness, and 19 a mild hand tremor. AR 152. The ALJ acknowledged that these findings 20 demonstrated some impairment, but did not establish severe difficulties. AR 152. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 Plaintiff argues that the ALJ failed to duplicate her prior discussion of the 2 medical evidence in the section in which she discussed Dr. Burkett’s opinion. ECF 3 No. 13 at 14-15. Such repetition is not required. See Lewis v. Apfel, 236 F.3d 503, 4 513 (9th Cir. 2001). Plaintiff also cites a number of abnormal examination findings 5 including an antalgic gait, tremors, reduced sensation, and reduced strength. ECF 6 No. 13 at 15. The ALJ acknowledged these abnormal findings and found they 7 resulted in some limitations, but concluded that the totality of the record generally 8 did not support Dr. Burkett’s restrictive opinion. AR 152. 9 The ALJ also found that Dr. Burkett’s opinion was inconsistent with 10 Plaintiff’s daily activities. See AR 155. In September 2013—after the alleged onset 11 date—Plaintiff reported that she was walking four miles per day for exercise. AR 12 826. In November 2013, she jammed her right ring finger playing basketball and 13 later sought treatment for finger pain. AR 813. In January 2014, she was coaching 14 basketball. AR 885. In May 2014, her orthopedic surgeon noted that she was “very 15 active” and had “been coaching basketball for a long time.” AR 1246. The ALJ 16 reasonably inferred that these activities contradicted Dr. Burkett’s opinion that 17 Plaintiff could not “effectively ambulate,” stand for more than one or two hours 18 per day, or do things that required motor skills above 50 percent. AR 1329. These 19 activities also reasonably contradicted his opinion that Plaintiff met Listing 1.02. 20 AR 1329. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 Plaintiff argues that “[b]ecause only basketball coaching is mentioned, this is 2 the only alleged inconsistency that can be addressed.” ECF No. 13 at 15. Again, 3 the ALJ was not required to duplicate her prior discussion of Plaintiff’s daily 4 activities. See Lewis, 236 F.3d at 513. Plaintiff also argues that the evidence of her 5 daily activities needed to specifically contradict Dr. Burkett’s opinion—i.e., there 6 needed to be direct evidence showing that walking four miles or coaching 7 basketball required her to ambulate, stand for longer than one or two hours per day, 8 etc. ECF No. 13 at 15-16. However, ALJs are entitled to make reasonable 9 inferences. Bisuano v. Colvin, 584 F. App’x 512, 514 (9th Cir. 2014). 10 D. 11 Substantial Evidence Supports the ALJ’s Step Five Finding that Other Jobs Existed in Significant Numbers in the National Economy that Plaintiff Could Perform 12 Plaintiff argues that substantial evidence does not support the ALJ’s step 13 five finding because the vocational expert’s job number estimates were inaccurate. 14 ECF No. 13 at 16-18. She asserts that she performed her own labor market 15 research in Job Browser and that her search produced job number estimates that 16 were significantly lower than the vocational expert’s. Id. at 17. 17 In this case, the vocational expert testified that Plaintiff’s physical residual 18 functional capacity allowed her to perform the jobs of: (1) touch-up screener, of 19 which there are 15,000 jobs nationwide, (2) table worker, of which there are 20 20,000 jobs nationwide, and (3) order clerk, of which there are 20,000 jobs ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 nationwide. AR 384. Relying on this testimony—which the ALJ was entitled to do, 2 see Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2018)—the ALJ found that 3 Plaintiff could perform the first two jobs. 6 AR 157-58. 4 Plaintiff contends that she performed her own labor market research in Job 5 Browser and that her search produced job number estimates that were significantly 6 lower than the vocational expert’s—only 1,353 for touch-up screener and 2,396 for 7 table worker nationwide. ECF No. 13 at 17. However, submitting one’s own 8 research from Job Browser—evidence that is unauthenticated, unsworn, outside of 9 the record, not subject to questioning, and unaccompanied by any analysis or 10 explanation from a vocational expert to put the raw data into context—is not a 11 sufficient basis to undermine the reliability of a testifying vocational expert’s 12 opinion. Helen P. v. Comm. of Soc. Sec., No. 1:18-cv-03236-RHW, ECF No. 17, at 13 9-11 (E.D. Wash. 2020) (Whaley, J.); Martinez v. Colvin, 2015 WL 4270021, at *9 14 (C.D. Cal. 2015); Cardone v. Colvin, 2014 WL 1516537, at *5 (C.D. Cal. 2014); 15 Vera v. Colvin, 2013 WL 6144771, at *22 (C.D. Cal. 2013). 16 E. 17 18 The ALJ did not Improperly Reject Plaintiff’s Subjective Complaints Finally, Plaintiff argues the ALJ erred by discounting the credibility of her testimony regarding her subjective symptoms. ECF No. 13 at 18-21. 19 6 20 The ALJ eliminated the potential job of order clerk after receiving the report from psychiatrist Amy Dowell, M.D., who evaluated Plaintiff after the hearing. AR 157-58; see AR 1402-1410. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 1 ALJs engage in a two-step analysis to determine whether a claimant’s 2 testimony regarding subjective symptoms is credible. Tommasetti v. Astrue, 533 3 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant must produce objective 4 medical evidence of an underlying impairment or impairments that could 5 reasonably be expected to produce some degree of the symptoms alleged. Id. 6 Second, if the claimant meets this threshold, and there is no affirmative evidence 7 suggesting malingering, the ALJ can reject the claimant’s testimony about the 8 severity of his or her symptoms only by offering “specific, clear, and convincing 9 reasons” for doing so. Id. 10 ALJs may consider many factors in weighing a claimant’s credibility, 11 including ordinary techniques of credibility evaluation such as the claimant’s 12 reputation for lying, prior inconsistent statements, and other testimony by the 13 claimant that appears less than candid. Smolen v. Chater, 80 F.3d 1273, 1284 (9th 14 Cir. 1996). They may also consider the claimant’s daily activities. Id. 15 1. 16 As an initial matter, the ALJ found indicia of symptom exaggeration, which Symptom exaggeration 17 is a proper basis for discounting a claimant’s testimony. AR 153; see Benton ex. el. 18 Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). Dr. Backer noted that 19 Plaintiff’s pain was erratic and that she “appear[ed] to want to show weakness, but 20 no objective weakness [was] identified and when asked to oppose my pushing or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26 1 pulling, she [was] able to do it with 5/5 strength in all 4 extremities.” AR 898. He 2 then opined that her alleged diffuse pain did “not seem to follow quite an 3 anatomic/physiologic distribution.” AR 899. Treating surgeon Dr. Atteberry also 4 noted that Plaintiff’s symptoms were “exaggerated” and that she had “been 5 declining for more than a year without good neurologic reason.” AR 910. 6 Plaintiff argues that “[t]he ALJ pointed to no diagnosis of malingering or 7 symptom exaggeration.” ECF No. 13 at 19. While true, no formal diagnosis is 8 required. Richardson v. Astrue, 2011 WL 3273255, at *7, n.5 (W.D. Wash. 2011); 9 Bryant v. Berryhill, 2017 WL 1947426, at *5 (C.D. Cal. 2017). Plaintiff also 10 argues that the erratic symptoms Dr. Backer observed were consistent with 11 Guillain-Barré syndrome. ECF No. 13 at 20. But as discussed above, no provider 12 diagnosed Plaintiff with this condition and three affirmatively opined that she did 13 not have it. See supra at 9-10, 14-15. 14 2. 15 As outlined supra at 22, the ALJ reasoned that Plaintiff’s examination 16 findings throughout the treatment record were generally inconsistent with her 17 alleged level of limitation. AR 152-54. An ALJ may discount a claimant’s 18 subjective symptom testimony on this basis. Carmickle v. Comm’r of Soc. Sec. 19 Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); Tonapetyan v. Halter, 242 F.3d 20 1144, 1148 (9th Cir. 2001). Complaints inconsistent with medical evidence ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 27 1 Plaintiff argues that this was error, pointing to various findings throughout 2 the medical record including low back tenderness, urinary leakage, agitation, “loud 3 speech,” impaired attention, mild uncontrolled eye movements, decreased flexion, 4 headaches, and fainting episodes.7 ECF No. 13 at 18-19. Some of these, such as the 5 headaches and fainting episodes, are citations to Plaintiff’s self-reports rather than 6 objective findings. E.g., AR 1305, 1339-40. And the others, although they are 7 objective findings, do not affect the ALJ’s analysis. Plaintiff testified that she 8 “can’t do anything,” AR 376, which included being unable to do housework, do 9 dishes, cook, grocery shop, “lift anything,” hold a drink, hold a pen, feed herself, 10 or stand for more than a “little while.” AR 364-68, 371, 379-80. The findings to 11 which Plaintiff cites do not alter the ALJ’s conclusion that this testimony was 12 inconsistent with the longitudinal medical evidence. 13 Plaintiff briefly states that the ALJ improperly rejected her subjective pain 14 complaints because she did not produce medical evidence corroborating them. ECF 15 No. 13 at 18. While this would be error, see Burch v. Barnhart, 400 F.3d 676, 680 16 (9th Cir. 2005), this is not what the ALJ did. Rather, the ALJ discredited Plaintiff’s 17 18 19 20 7 Plaintiff also notes that she had several falls and implies that these were due to her physical impairments. ECF No. 13 at 18. But her orthopedic surgeon noted that these were due to accidental trips. See AR 1287 (“[O]ne, where she slipped and banged her shoulder against a door, and the other was she accidently tripped over her 90-year-old grandmother a couple weeks later.”). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 28 1 testimony because the medical records affirmatively contradicted it, which is 2 permissible. 3 3. 4 Finally, the ALJ discounted Plaintiff’s subjective complaints because they Complaints inconsistent with daily activities 5 were belied by her daily activities, which included walking four miles per day, 6 playing basketball, and coaching basketball. AR 154-55. Activities inconsistent 7 with the alleged symptoms are proper grounds for questioning the credibility of 8 subjective complaints. Molina, 674 F.3d at 1113; see also Rollins, 261 F.3d at 857; 9 20 C.F.R. § 404.1529(c)(3)(i). 10 Plaintiff argues that her walking was not inconsistent with her testimony 11 because she was only “walking 4 miles per day in June 2013 (prior to her onset).” 12 ECF No. 13 at 21 (citing AR 829). However, she was still doing so in September 13 2013, after her alleged onset of disability. See AR 826. 8 Plaintiff also argues that 14 “[w]hen she attempted basketball, she had to present to the ER with chest pains 15 and shortness of breath.” ECF No. 13 at 21 (citing AR 770-71). This is incorrect— 16 Plaintiff jammed her finger playing basketball in November 2013 and three weeks 17 later she sought treatment for finger pain, not for chest pain or shortness of breath. 18 See AR 813. The records to which Plaintiff cites relate to an emergency room visit 19 8 20 Plaintiff argues that the ALJ cited to the “social history” portion of the ARNP’s chart note for this fact, but the ARNP regularly updated this portion of her notes to reflect when Plaintiff was not exercising. See AR 814. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 29 1 for an onset of chest pain that occurred while she was sleeping and have nothing to 2 do with her basketball activities. See AR 770-71. Plaintiff fails to demonstrate any 3 error in the way the ALJ considered her daily activities in discounting her 4 subjective complaints. 5 When the ALJ presents a reasonable interpretation that is supported by 6 substantial evidence, it is not the Court’s role to second-guess it. For the reasons 7 discussed above, the ALJ did not err when discounting Plaintiff’s subjective 8 complaint testimony because she provided multiple clear and convincing reasons 9 for doing so. 10 VIII. Order 11 Having reviewed the briefs, the record, and the ALJ’s findings, the Court 12 concludes the Commissioner’s decision is supported by substantial evidence and is 13 free from legal error. 14 Accordingly, IT IS ORDERED: 15 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 16 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is 17 18 GRANTED. 3. 19 20 Judgment shall be entered in favor of Defendant and the file shall be CLOSED. /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 30 1 2 3 4 5 IT IS SO ORDERED. The District Court Executive is directed to enter this Order, forward copies to counsel, and close the file. DATED this March 16, 2020. s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 31

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