Day v. Kijakazi, No. 1:2021cv03061 - Document 18 (E.D. Wash. 2022)

Court Description: ORDER DENYING 15 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING 16 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Case is closed. Signed by Chief Judge Stanley A Bastian. (AY, Case Administrator)

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Day v. Kijakazi Doc. 18 Case 1:21-cv-03061-SAB ECF No. 18 filed 02/02/22 PageID.805 Page 1 of 12 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 2 Feb 02, 2022 3 SEAN F. MCAVOY, CLERK 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 JESSICA D., 1 10 Plaintiff, 11 v. No. 1:21-CV-03061-SAB 12 COMMISSIONER OF SOCIAL ORDER DENYING 13 SECURITY, 2 PLAINTIFF’S MOTION FOR Defendant. 14 SUMMARY JUDGMENT; 15 GRANTING DEFENDANT’S 16 MOTION FOR SUMMARY 17 JUDGMENT 18 19 Before the Court are cross-motions for summary judgment. ECF Nos. 15, 20 16. The motions were heard without oral argument. Plaintiff is represented by D. 21 James Tree; Defendant is represented by Sarah Moum and Timothy M. Durkin. 22 23 24 1 Pursuant to the recommendation of the Committee on Court Administration and 25 Case Management of the Judicial Conference of the United States, Plaintiff’s name 26 is partially redacted. 27 2Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 28 2021. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~1 Dockets.Justia.com Case 1:21-cv-03061-SAB ECF No. 18 filed 02/02/22 PageID.806 Page 2 of 12 Plaintiff brings this action seeking judicial review of the Commissioner of 1 2 Social Security’s final decision denying her application for Supplemental Security 3 Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1382. After 4 reviewing the administrative record and briefs filed by the parties, the Court is now 5 fully informed. For the reasons set forth below, the Court denies Plaintiff’s Motion 6 for Summary Judgment and grants Defendant’s Motion for Summary Judgment. 7 I. Jurisdiction On December 31, 2018, Plaintiff filed an application for supplemental 8 9 security income. Plaintiff alleged a disability onset date of January 1, 2001. At the 10 hearing, Plaintiff amended her alleged onset of disability to the filing date of her 11 application. Plaintiff’s application was denied initially and on reconsideration. On 12 13 October 3, 2019, Plaintiff requested a hearing before an Administrative Law Judge 14 (“ALJ”). On August 26, 2020, Plaintiff appeared and testified at a video hearing 15 held before ALJ Raymond Souza. DT North, vocational expert, also appeared by 16 telephone. The ALJ issued a decision on September 23, 2020, finding that Plaintiff 17 was not disabled. Plaintiff requested review by the Appeals Council; the Appeals Council 18 19 denied the request on March 2, 2021. The Appeals Council’s denial of review 20 makes the ALJ’s decision the “final decision” of the Commissioner of Social 21 Security, which this Court is permitted to review. 42 U.S.C. § 405(g), 22 1383(c)(1)(3). Plaintiff filed a timely appeal with the United States District Court for the 23 24 Eastern District of Washington on April 26, 2021. ECF No. 1. The matter is before 25 this Court pursuant to 42 U.S.C. § 405(g). 26 27 II. Five-Step Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 28 substantial gainful activity by reason of any medically determinable physical or ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~2 Case 1:21-cv-03061-SAB ECF No. 18 filed 02/02/22 PageID.807 Page 3 of 12 1 mental impairment which can be expected to result in death or which has lasted or 2 can be expected to last for a continuous period of not less than twelve months.” 42 3 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 4 under a disability only if their impairments are of such severity that the claimant is 5 not only unable to do their previous work, but cannot, considering claimant’s age, 6 education, and work experiences, engage in any other substantial gainful work that 7 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 8 Commissioner has established a five-step sequential evaluation process to 9 determine whether a person is disabled in the statute. See 20 C.F.R. §§ 10 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 11 Step One: Is the claimant engaged in substantial gainful activities? 20 12 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work 13 done for pay and requires compensation above the statutory minimum. Keyes v. 14 Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in 15 substantial activity, benefits are denied. 20 C.F.R. § 404.1520(b), 416.920(b). If 16 the claimant is not, the ALJ proceeds to step two. 17 Step Two: Does the claimant have a medically-severe impairment or 18 combination of impairments? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A 19 severe impairment is one that lasted or must be expected to last for at least 12 20 months and must be proven through objective medical evidence. Id. §§ 404.1509, 21 416.909. If the claimant does not have a severe impairment or combination of 22 impairments, the disability claim is denied. Id. § 404.1520(a)(4)(ii), 23 416.920(a)(4)(ii). If the impairment is severe, the evaluation proceeds to the third 24 step. 25 Step Three: Does the claimant’s impairment meet or equal one of the listed 26 impairments acknowledged by the Commissioner to be so severe as to preclude 27 substantial gainful activity? 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If 28 the impairment meets or equals one of the listed impairments, the claimant is ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~3 Case 1:21-cv-03061-SAB ECF No. 18 filed 02/02/22 PageID.808 Page 4 of 12 1 conclusively presumed to be disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the 2 impairment is not one conclusively presumed to be disabling, the evaluation 3 proceeds to the fourth step. 4 Before considering to the fourth step, the ALJ must first determine the 5 claimant’s residual functional capacity. An individual’s residual functional 6 capacity is their ability to do physical and mental work activities on a sustained 7 basis despite limitations from her impairments. 20 C.F.R. §§ 404.1545(a)(1), 8 416.945(a)(1). The residual functional capacity is relevant to both the fourth and 9 fifth steps of the analysis. 10 Step Four: Does the impairment prevent the claimant from performing work 11 she has performed in the past? 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 12 If the claimant is able to perform their previous work, they are not disabled. 20 13 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant cannot perform this work, the 14 evaluation proceeds to the fifth and final step. 15 Step Five: Is the claimant able to perform other work in the national 16 economy in view of her age, education, and work experience? 20 C.F.R. §§ 17 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 18 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 19 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 20 establishes that a physical or mental impairment prevents them from engaging in 21 their previous occupation. Id. At step five, the burden shifts to the Commissioner 22 to show that the claimant can perform other substantial gainful activity. Id. 23 24 III. Standard of Review The Commissioner’s determination will be set aside only when the ALJ’s 25 findings are based on legal error or are not supported by substantial evidence in the 26 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 27 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 28 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~4 Case 1:21-cv-03061-SAB ECF No. 18 filed 02/02/22 PageID.809 Page 5 of 12 1 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 2 evidence is “such relevant evidence as a reasonable mind might accept as adequate 3 to support a conclusion.” Richardson, 402 U.S. at 401. 4 A decision supported by substantial evidence will be set aside if the proper 5 legal standards were not applied in weighing the evidence and making the decision. 6 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 7 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 8 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 9 1050, 1055 (9th Cir. 2006). The Court must uphold the ALJ’s denial of benefits if 10 the evidence is susceptible to more than one rational interpretation, one of which 11 supports the decision of the administrative law judge. Batson v. Barnhart, 359 F.3d 12 1190, 1193 (9th Cir. 2004). It “must consider the entire record as a whole, 13 weighing both the evidence that supports and the evidence that detracts from the 14 Commissioner’s conclusion, and may not affirm simply by isolating a specific 15 quantum of supporting evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 16 2017) (quotation omitted). “If the evidence can support either outcome, the court 17 may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019. 18 For claims filed on or after March 27, 2017, 3 like the present claim, new 19 regulations apply regarding the evaluation of medical evidence. Revisions to Rules 20 Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). 21 The new regulations eliminate any semblance of a hierarchy of medical opinions 22 and state that the agency does not defer to any medical opinions. 20 C.F.R. 23 §§ 404.1520c(a), 416.920c. Specifically, the rules eliminate the agency’s “treating 24 source rule,” which gave special deference to certain opinions from treating 25 26 3 For claims filed prior to March 27, 2017, an ALJ was to give more weight to “those 27 physicians with the most significant clinical relationship with the plaintiff.” 28 Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008). ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~5 Case 1:21-cv-03061-SAB ECF No. 18 filed 02/02/22 PageID.810 Page 6 of 12 1 sources. 82 Fed. Reg. at 5853. In articulating the ALJ’s consideration of medical 2 opinions for persuasiveness, the ALJ considers the following factors: (1) 3 Supportability and (2) Consistency; (3) Relationship with the claimant, including 4 (i) length of treatment relationship; (ii) Frequency of examinations; (iii) purpose of 5 the treatment relationship; (iv) extend of the treatment relationship; (v) 6 examination relationship; (4) Specialization; and (5) Other factors, including 7 whether the medical source has familiarity with the other evidence or an 8 understanding of SSA’s disability program’s policies and evidentiary requirements. 9 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The most important factors in evaluating 10 the persuasiveness of medical opinions are supportability and consistency. 20 11 C.F.R. §§ 404.1520c(a), 416.920c(a). 12 Supportability and consistency are further explained in the regulations: 13 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 20 C.F.R. §§ 404.1520c(c); 416.920c(c). When a medical source provides multiple medical opinions, the ALJ must articulate how it considered these opinions in a single analysis applying the abovelisted factors. 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1). If equally persuasive medical opinions about the same issue are both equally well-supported and consistent with the record, but are not exactly the same, the ALJ must articulate how it considered the other most persuasive factors in making its decision. 20 C.F.R. §§ 404.1520c(c)(3), 416.920c(c)(3). 28 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~6 Case 1:21-cv-03061-SAB 1 2 ECF No. 18 filed 02/02/22 PageID.811 Page 7 of 12 IV. Statement of Facts The facts have been presented in the administrative record, the ALJ’s 3 decision, and the briefs to this Court. Only the most relevant facts are summarized 4 herein. 5 Plaintiff was 35 years old on the date the application was filed. She attended 6 school through the eighth grade. She has worked for brief periods as a pizza prep 7 cook and a motel housekeeper. Plaintiff has anxiety that causes vomiting, panic 8 attacks and tunnel vision. She has difficulty being around other people and grocery 9 shopping. 10 Plaintiff has suffered from drug addiction in the past but has been clean and 11 sober since 2017. She also has criminal history and has spent time in jail. She 12 completed her latest probation in 2018. She began mental health treatment after she 13 was released and living in a sober house. 14 15 V. The ALJ’s Findings On September 23, 2020, the ALJ issued an opinion affirming denial of 16 benefits. 17 At step one, the ALJ found that Plaintiff has not engaged in substantial 18 gainful activity since December 31, 2018. AR 18. 19 At step two, the ALJ found that Plaintiff had the following severe 20 impairments: anxiety, posttraumatic stress syndrome (PTSD), gastroesophageal 21 reflux disease (GERD), and asthma. AR 18. 22 At step three, the ALJ found that Plaintiff did not have an impairment or 23 combination of impairments that meets or medically equals the severity of one of 24 the listed impairments. AR 19. Ultimately, the ALJ concluded that Plaintiff has a 25 residual function capacity (“RFC”) to perform: medium work as defined in 20 CFR 416.967(c) except the claimant 26 must have no exposure to poorly ventilated areas, no use of hazardous 27 machinery, or exposure to unprotected heights. The claimant is able to 28 remember, understand, and carry out simple and routine instructions ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~7 Case 1:21-cv-03061-SAB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ECF No. 18 filed 02/02/22 PageID.812 Page 8 of 12 and tasks consistent with the learning and training requirements of SVP levels 1 and 2 type jobs. She is limited to only occasional changes in the work setting. She can have only occasional interaction with the general public, coworkers, and supervisors. AR 23. At step four, the ALJ found that Plaintiff has no past relevant work. AR 26. At step five, the ALJ found that Plaintiff was not disabled and capable of performing work that exists in significant numbers in the national economy, including auto detailer, hand packager, and cleaner II. AR 30. VI. Issues for Review (1) Whether the ALJ properly assessed Plaintiff’s symptom testimony. (2) Whether the ALJ properly assessed the medical opinion evidence. VII. Discussion (1) Whether the ALJ properly assessed Plaintiff’s symptom testimony The ALJ found that while Plaintiff’s medically determinable impairments could reasonably be expected to cause the alleged symptoms, her statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record. Specifically, the ALJ believed that Plaintiff’s description of her symptoms was out of proportion with her performance on the mental status examinations. The ALJ relied on the fact that in contrast to Plaintiff’s allegations and testimony of extremely limiting mental health symptoms, the notations in her treatment records showed only minimal psychiatric difficulties. The ALJ concluded that Plaintiff’s relatively benign presentation did not corroborate her description of marked/severe social, cognitive, and mental dysfunction. The ALJ further noted that Plaintiff’s treatment records show little evidence of ongoing treatment for her mental complaints, they show that she improved with minimal intervention, and her responsiveness to minimal treatment was inconsistent with her allegations. The ALJ noted that 28 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~8 Case 1:21-cv-03061-SAB ECF No. 18 filed 02/02/22 PageID.813 Page 9 of 12 1 Plaintiff’s testimony and statements to providers has come across as very 2 exaggerated and at times evasive. The ALJ concluded the intensity and persistence 3 of her symptoms are less limiting that alleged. Finally, the ALJ noted that some of 4 her stressors were situations, which appeared to be eliminated when she moved 5 into a new residence. 6 The ALJ is responsible for making credibility determinations. Lingenfelter v. 7 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). An ALJ engages in a two-step 8 analysis to determine whether a claimant’s testimony regarding subjective pain or 9 symptoms is credible. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 10 “First, the ALJ must determine whether the claimant has presented objective 11 medical evidence of an underlying impairment ‘which could reasonably be 12 expected to produce the pain or other symptoms alleged.’” Id. (quoting 13 Lingenfelter, 504 F.3d at 1036). In this analysis, the claimant is not required to 14 show that her impairment could reasonably be expected to cause the severity of the 15 symptom she has alleged; she need only show that it could reasonably have caused 16 some degree of that symptom. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 17 1996). 18 Once a claimant has produced evidence of an impairment, the ALJ may not 19 discredit testimony regarding symptoms simply by asserting that they are 20 unsupported by objective evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 21 (9th Cir. 2006). Rather, the ALJ must provide specific, cogent reasons to find that 22 the claimant is not credible. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) 23 (citing Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)). If the ALJ’s 24 credibility finding is supported by substantial evidence in the record, the Court 25 may not engage in second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th 26 Cir. 2002). The Court will affirm the ALJ’s reasoning so long as it is clear and 27 convincing. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 28 Here, the ALJ provided clear and convincing reasons for his findings. The ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~9 Case 1:21-cv-03061-SAB ECF No. 18 filed 02/02/22 PageID.814 Page 10 of 12 1 ALJ reviewed Plaintiff’s symptom allegations and found they were not entirely 2 consistent with the evidence of record, including her own reports, clinical findings 3 and her treatment history. As such, the ALJ’s findings and conclusions regarding 4 Plaintiff’s symptom testimony are supported by substantial evidence in the record. 5 6 (2) Whether the ALJ properly assessed the medical opinion evidence The ALJ found DSHS psychological examiner, Tasmyn Bowes, PsyD’s 7 January 18, 2018 opinion persuasive, but found her later November 2018 opinion 8 that indicated marked limitations was not supported by her mental health 9 examination because it showed greater capabilities than opined. The ALJ noted 10 that Dr. Bowes did not review any records, suggested a possible duration of less 11 than 12 months, and indicated that once situational/essential needs, such as 12 housing, were addressed, vocational training would minimize or eliminate barriers 13 to employment. The ALJ also noted Dr. Bowes’s opinion regarding marked 14 limitations was not consistent with Plaintiff’s responsiveness to minimal treatment, 15 observations of treating providers, and Plaintiff’s statements regarding the limiting 16 effects of her symptoms. 17 As set forth above, the ALJ must determine the persuasiveness of the 18 medical provider’s opinion. The ALJ is responsible for resolving ambiguities in the 19 medical evidence and for translating and incorporating medical opinions into a 20 succinct residual functional capacity (RFC) assessment. Tommasetti v. Astrue, 533 21 F.3d 1035, 1041 (2008). 22 Plaintiff argues the ALJ did not properly account for Dr. Bowes’ opinions of 23 moderate limitation in attendance or maintaining appropriate behavior. The ALJ 24 limited Plaintiff to workplaces with only occasional changes in the work setting 25 and occasional interaction with the public, coworkers, and supervisors, which 26 addresses Plaintiff’s anxiety, including her ability to attend work and maintain 27 appropriate behavior. Notably, Dr. Bowes did not state that Plaintiff would miss a 28 certain number of days per month or would be unable to maintain appropriate ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~10 Case 1:21-cv-03061-SAB ECF No. 18 filed 02/02/22 PageID.815 Page 11 of 12 1 behavior for a certain amount of time per month. 2 The ALJ’s assessment of Dr. Bowes’ opinions are supported by the record. 3 The ALJ properly incorporated Dr. Bowes’ limitations set forth in her earlier 4 opinion in the RFC. Additionally, the ALJ’s conclusion that Dr. Bowes’ later 5 opinion was not persuasive is supported by the record. The ALJ noted that while 6 Plaintiff presented as dysphoric, all other findings were within normal limits. The 7 ALJ noted that just ten days prior to Dr. Bowes’ examination where Plaintiff stated 8 her anxiety was “really bad,” she told her treatment provider that she felt stable and 9 her anxiety was not bad. The ALJ also relied on the fact that Dr. Bowes suggested 10 a possible duration of less than 12 months and indicated that vocational training 11 would partially minimize or eliminate barriers to employment. This conclusion is 12 consistent with the Social Security Act and regulations. 13 In sum, substantial evidence supports the ALJ’s decision that Plaintiff is not 14 disabled. 15 Accordingly, IT IS HEREBY ORDERED: 16 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 17 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is 18 GRANTED. 19 3. The decision of the Commissioner is AFFIRMED. 20 4. Judgment shall be entered in favor of Defendant and against Plaintiff. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~11 Case 1:21-cv-03061-SAB 1 5. ECF No. 18 filed 02/02/22 PageID.816 Page 12 of 12 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the 2 District Court Executive is directed to substitute Kilolo Kijakazi for Andrew M. 3 Saul as the defendant in this suit. See 42 U.S.C. § 405(g). 4 IT IS SO ORDERED. The District Court Executive is hereby directed to 5 file this Order, provide copies to counsel, and close the file. 6 DATED this 2nd day of February 2022. 7 8 9 10 11 12 Stanley A. Bastian Chief United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~12

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