Siegfried v. Saul, No. 2:2020cv00244 - Document 17 (E.D. Wash. 2021)

Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 14 AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 15 . The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Siegfried v. Saul Doc. 17 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.676 Page 1 of 29 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 DAKOTA SAMUEL S., NO. 2:20-CV-0244-TOR Plaintiff, 8 9 10 v. ANDREW M. SAUL, Commissioner of Social Security, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment (ECF Nos. 14-15). This matter was submitted for consideration without 15 oral argument. The Court has reviewed the administrative record and the parties’ 16 completed briefing, and is fully informed. For the reasons discussed below, the 17 Court DENIES Plaintiff’s motion and GRANTS Defendant’s motion. 18 JURISDICTION 19 The Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com Case 2:20-cv-00244-TOR 1 2 ECF No. 17 filed 06/17/21 PageID.677 Page 2 of 29 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 4 limited: The Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 7 relevant evidence that “a reasonable mind might accept as adequate to support a 8 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 9 substantial evidence equates to “more than a mere scintilla[,] but less than a 10 preponderance.” Id. (quotation and citation omitted). In determining whether this 11 standard has been satisfied, a reviewing court must consider the entire record as a 12 whole rather than searching for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 15 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 16 rational interpretation, [the court] must uphold the ALJ’s findings if they are 17 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 18 F.3d 1104, 1111 (9th Cir. 2012), superseded by regulation on other grounds. 19 Further, a district court “may not reverse an ALJ’s decision on account of an error 20 that is harmless.” Id. An “error is harmless where it is ‘inconsequential to the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.678 Page 3 of 29 1 ultimate nondisability determination.’” Id. at 1115 (citation omitted). The party 2 appealing the ALJ’s decision generally bears the burden of establishing that it was 3 harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 4 5 FIVE STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 6 the meaning of the Social Security Act. First, the claimant must be unable “to 7 engage in any substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of not less than 12 10 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 11 impairment must be “of such severity that [he or she] is not only unable to do [his 12 or her] previous work[,] but cannot, considering [his or her] age, education, and 13 work experience, engage in any other kind of substantial gainful work which exists 14 in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 15 The Commissioner has established a five-step sequential analysis to 16 determine whether a claimant satisfies the above criteria. See 20 §§ 17 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 18 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 19 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.679 Page 4 of 29 1 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 2 404.1520(b), 416.920(b). 3 If the claimant is not engaged in substantial gainful activities, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 6 claimant suffers from “any impairment or combination of impairments which 7 significantly limits [his or her] physical or mental ability to do basic work 8 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 9 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 10 11 however, the Commissioner must find that the claimant is not disabled. Id. At step three, the Commissioner compares the claimant’s impairment to 12 several impairments recognized by the Commissioner to be so severe as to 13 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 14 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 15 severe than one of the enumerated impairments, the Commissioner must find the 16 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 17 If the severity of the claimant’s impairment does meet or exceed the severity 18 of the enumerated impairments, the Commissioner must pause to assess the 19 claimant’s “residual functional capacity.” Residual functional capacity, defined 20 generally as the claimant’s ability to perform physical and mental work activities ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.680 Page 5 of 29 1 on a sustained basis despite his or her limitations (20 C.F.R. §§ 404.1545(a)(1), 2 416.945(a)(1)), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in 5 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv), 6 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the 7 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 8 404.1520(f), 416.920(f). If the claimant is incapable of performing such work, the 9 analysis proceeds to step five. 10 At step five, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing other work in the national economy. 12 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 13 the Commissioner must also consider vocational factors such as the claimant’s age, 14 education and work experience. Id. If the claimant is capable of adjusting to other 15 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 16 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 17 work, the analysis concludes with a finding that the claimant is disabled and is 18 therefore entitled to benefits. Id. 19 20 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.681 Page 6 of 29 1 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 2 capable of performing other work; and (2) such work “exists in significant 3 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); 4 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 5 ALJ’S FINDINGS 6 On September 22, 2017, Plaintiff filed applications for Title II period of 7 disability and disability insurance benefits and for Title XVI supplemental security 8 income. Tr. 233-243. The applications were denied initially, Tr. 130-136, and on 9 reconsideration, Tr. 143-148. Plaintiff appeared at a hearing before an 10 administrative law judge (“ALJ”) on May 23, 2019. Tr. 31-69. At the hearing, 11 Plaintiff amended his alleged onset date from March 24, 1995 to February 1, 2017. 12 Tr. 15. On June 26, 2019, the ALJ denied Plaintiff’s claims. Tr. 12-30. 13 At step one of the sequential evaluation process, the ALJ found Plaintiff had 14 not engaged in substantial gainful activity since February 1, 2017, the alleged onset 15 date. Tr. 17. At step two, the ALJ found Plaintiff had the following severe 16 impairments: depression, anxiety, personality disorder, adult attention deficit 17 hyperactive disorder (“ADHD”), and posttraumatic stress disorder (“PTSD”). Tr. 18 18. At step three, the ALJ found Plaintiff did not have an impairment or 19 combination of impairments that meets or medically equals the severity of a listed 20 impairment. Tr. 18-19. The ALJ then found Plaintiff had the RFC to perform a ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.682 Page 7 of 29 1 full range of work at all exertional levels with the following nonexertional 2 limitations: 3 4 5 6 7 8 9 10 11 12 13 Regarding mental abilities, the claimant has the ability to understand, remember or apply information that is simple and routine, commensurate with SVP 2. Regarding interaction with others, the claimant would work best in an environment in proximity to, but not close cooperation, with co-workers and supervisors, and should work in an environment away from the public. The claimant does, however, have the ability to interact appropriately with others. Regarding the ability to concentrate, persist or maintain pace, the claimant has the ability with legally required breaks, to focus attention on work activities and stay on task at a sustained rate; complete tasks in a timely manner; sustain an ordinary routine; regularly attend work; and work a full day without needing more than the allotted number or length of rest periods. Regarding the ability to adapt or manage; the claimant would work best in an environment that is routine and predictable, but does have the ability to respond appropriately, distinguish between acceptable and unacceptable work performance; or be aware of normal hazards and take appropriate cautions. Tr. 19. At step four, the ALJ found Plaintiff has no past relevant work. Tr. 23. At 14 step five, the ALJ found that, considering Plaintiff’s age, education, work 15 experience, RFC, and testimony from a vocational expert, there were other jobs 16 that existed in significant numbers in the national economy that Plaintiff could 17 perform such as laundry worker II, small parts assembly, and printed circuit board 18 assembly. Tr. 23-24. The ALJ concluded Plaintiff was not under a disability, as 19 defined in the Social Security Act, from February 1, 2017 through June 26, 2019, 20 the date of the ALJ’s decision. Tr. 24-25. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 Case 2:20-cv-00244-TOR 1 ECF No. 17 filed 06/17/21 PageID.683 Page 8 of 29 On January 8, 2020, the Appeals Council denied review, Tr. 1-6, making the 2 ALJ’s decision the Commissioner’s final decision for purposes of judicial review. 3 See 42 U.S.C. § 1383(c)(3). 4 5 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 period of disability, disability insurance benefits, and supplemental security 7 income benefits under Title II and Title XVI of the Social Security Act. Plaintiff 8 raises the following issues for this Court’s review: 9 1. Whether the ALJ properly evaluated Plaintiff’s symptom testimony; 10 2. Whether the ALJ properly weighed the medical opinion evidence; 11 3. Whether error, if any, was harmless; and 12 4. What the is the proper remedy. 13 14 15 16 17 18 ECF No. 14 at 15. DISCUSSION A. Plaintiff’s Symptom Testimony Plaintiff contends the ALJ failed to rely on clear and convincing reasons to discredit his symptom testimony. ECF No. 14 at 15-18. An ALJ engages in a two-step analysis to determine whether to discount a 19 claimant’s testimony regarding subjective symptoms. Social Security Ruling 20 (“SSR”) 16-3p, 2016 WL 1119029, at *2. “First, the ALJ must determine whether ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.684 Page 9 of 29 1 there is ‘objective medical evidence of an underlying impairment which could 2 reasonably be expected to produce the pain or other symptoms alleged.’” Molina, 3 674 F.3d at 1112 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). 4 “The claimant is not required to show that her impairment ‘could reasonably be 5 expected to cause the severity of the symptom she has alleged; she need only show 6 that it could reasonably have caused some degree of the symptom.’” Vasquez, 572 7 F.3d at 591 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 8 2007)). 9 Second, “[i]f the claimant meets the first test and there is no evidence of 10 malingering, the ALJ can only reject the claimant’s testimony about the severity of 11 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 12 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 13 omitted). General findings are insufficient; rather, the ALJ must identify what 14 symptom claims are being discounted and what evidence undermines these claims. 15 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 16 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 17 explain why he or she discounted claimant’s symptom claims). “The clear and 18 convincing standard is the most demanding required in Social Security cases.” 19 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r 20 of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 Case 2:20-cv-00244-TOR 1 ECF No. 17 filed 06/17/21 PageID.685 Page 10 of 29 Factors to be considered in evaluating the intensity, persistence, and limiting 2 effects of a claimant’s symptoms include: (1) daily activities; (2) the location, 3 duration, frequency, and intensity of pain or other symptoms; (3) factors that 4 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and 5 side effects of any medication an individual takes or has taken to alleviate pain or 6 other symptoms; (5) treatment, other than medication, an individual receives or has 7 received for relief of pain or other symptoms; (6) any measures other than 8 treatment an individual uses or has used to relieve pain or other symptoms; and (7) 9 any other factors concerning an individual’s functional limitations and restrictions 10 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7-8; 20 C.F.R. 11 §§ 416.929(c)(3), 416.929(c)(3). The ALJ is instructed to “consider all of the 12 evidence in an individual’s record,” “to determine how symptoms limit ability to 13 perform work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 14 The ALJ found Plaintiff’s impairments could reasonably be expected to 15 cause the alleged symptoms; however, Plaintiff’s statements concerning the 16 intensity, persistence, and limiting effects of those symptoms were not entirely 17 consistent with the evidence. Tr. 20. 18 1. Malingering 19 Malingering, or exaggeration of symptoms, is a specific and convincing 20 reason to discount allegations. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.686 Page 11 of 29 1 Cir. 2001). A finding of malingering must be supported by affirmative evidence. 2 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 3 The ALJ found that Plaintiff tended to exaggerate his symptoms based on 4 Plaintiff’s responses to questions in testing and the opinion of Dr. Toews. Tr. 21- 5 22. The ALJ noted Dr. Toews testified that the Plaintiff’s answers on the 6 Personality Assessment Inventory (“PAI”) indicated that his symptoms “were 7 likely exaggerated.” Tr. 20 (citing Tr. 361-370). The ALJ also cited to Dr. 8 Genthe’s notes that the Plaintiff’s responses to the PAI “raises the question if the 9 information he provided verbally can be taken at face value,” and that “it is 10 possible that the information he provided today exaggerates the actual degree of 11 his mental health problems.” Tr. 21 (citing Tr. 365). During the PAI, Plaintiff 12 gave wrong answers to common questions, stating that there were 375 weeks in a 13 year and spelling “world” as “would.” Tr. 21. During subsequent mental status 14 testing, Plaintiff also offered “obvious” incorrect answers, stating that he did not 15 know who the president was or how much change you would receive from 78 cents 16 out of a dollar – a question he previously answered correctly. Tr. 22 (citing Tr. 17 361-370, 532-539). 18 19 Plaintiff argues that the ALJ erred “by determining that [Plaintiff] exaggerated the PAI when the test results were skewed by his low reading 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.687 Page 12 of 29 1 ability.”1 ECF No. 14 at 17. As discussed infra, Dr. Toews found that there was 2 no definitive diagnosis of an intellectual disability. It is the ALJ’s responsibility to 3 resolve conflicts in the medical evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 4 (9th Cir. 1995). Plaintiff’s low reading ability does not overturn the ALJ’s rational 5 interpretation of the remaining evidence in the record. Burch, 400 F.3d at 679 6 (“Where evidence is susceptible to more than one rational interpretation, it is the 7 ALJ’s conclusion that must be upheld.”). Plaintiff’s obviously wrong answers to questions, including to questions he 8 9 previously answered correctly, is evidence of malingering. The opinions of Dr. 10 Toews and Dr. Genthe regarding Plaintiff’s likely exaggeration are also relevant. 11 Dr. Toews found that Plaintiff was likely exaggerating in multiple areas. Tr. 38- 12 39. While Dr. Genthe did not make a definitive diagnosis of malingering, he noted 13 that Plaintiff showed “a high degree of impression management of mental health 14 symptoms … [which] in turn raises the question if the information he provided 15 verbally can be taken at face value…. Although no diagnostic code of malingering 16 was given, it is possible that the information he provided today exaggerates the 17 18 1 There is no evidence that Plaintiff misunderstood the questions and a low 19 reading ability does not explain Plaintiff’s inconsistent responses that he provided 20 in the verbal sections of the exam. ECF No. 15 at 10. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.688 Page 13 of 29 1 actual degree of his mental health problems.” Tr. 365. The validity of the test 2 results also noted that “[Plaintiff] may not have answered in a completely 3 forthright manner; the nature of his responses might lead the evaluator to form a 4 somewhat inaccurate impression of the client based upon the style of responding 5 described below. [Plaintiff’s] response patterns are unusual in that they indicate a 6 defensiveness about particular personal shortcomings as well as an exaggeration of 7 certain problems.” Tr. 367. The ALJ cited to affirmative evidence of 8 malingering; therefore, the “clear and convincing” standard does not apply. 9 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). This finding is supported by 10 substantial evidence. Nonetheless, as discussed infra, the ALJ gave other specific 11 reasons to discount Plaintiff’s credibility that satisfy the “clear and convincing” 12 standard. 13 2. Medical Opinion 14 The ALJ found that Plaintiff’s alleged symptoms inconsistent with the 15 medical expert’s testimony. Tr. 20-21. The ALJ may discount a claimant’s 16 statements if the claimant’s subjective testimony is contradicted by medical 17 opinion evidence. See Carmickle, 533 F.3d at 1161. 18 Here, the ALJ noted reliance on the opinion of Dr. Jay M. Toews, Ed.D., a 19 licensed psychologist with more than 50 years of experience. TR. 20. Dr. Toews 20 noted several concerns regarding diagnoses, including an intellectual disability and ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.689 Page 14 of 29 1 PTSD, that were made without any record of appropriate assessments or testing. 2 See Tr. 37-38. Regarding the intellectual disability diagnosis, Dr. Toews found 3 that Dr. Genthe “did not provide any evidence by way of either achievement 4 testing or cognitive assessments of any kind” to support his diagnosis of an 5 intellectual disability.” Tr. 20. Dr. Toews further testified that while Plaintiff had 6 a history of diagnosed ADHD, he functioned well in the classroom and there was 7 “no strong concern” regarding his behavior. Id. (citing Tr. 338-370). Regarding 8 the PTSD diagnosis, Dr. Toews stated that mental status exams were within normal 9 limits and the Frontier Behavioral Health (“FBH”) records “provided no basis for 10 the diagnosis, they did no assessments … I could not find evidence of any clinical 11 assessments of PTSD.” Id. Regarding the ADHD diagnosis, Dr. Toews testified 12 that ADHD should be ruled out since the claimant was not taking medications as 13 prescribed. Tr. 20-21. Dr. Toews noted that Plaintiff’s mental status exams were 14 within normal limits, primary care records found Plaintiff “doing very well” 15 managing his mental health, and one record stated that Plaintiff “was making 16 excuses for why he was unable to do things.” Tr. 20-21. Dr. Toews testified that 17 this evidence is consistent with Plaintiff’s prior answers on the PAI that indicates 18 symptomatic exaggeration, as discussed supra. Tr. 21. 19 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 Case 2:20-cv-00244-TOR 1 ECF No. 17 filed 06/17/21 PageID.690 Page 15 of 29 The ALJ reasonably concluded that the medical expert testimony 2 contradicted Plaintiff’s claims of debilitating impairments. This finding is 3 supported by substantial evidence. 4 3. Course of Treatment 5 The ALJ found Plaintiff’s alleged symptoms inconsistent with his course of 6 treatment. Tr. 22. The claimant’s course of treatment is a relevant factor in 7 determining the severity of alleged symptoms. 20 C.F.R. §§ 416.929(c)(3), 8 416.929(c)(3). The unexplained or inadequately explained failure to seek 9 treatment or follow a prescribed course of treatment may serve as a basis to 10 discount a claimant’s alleged symptoms. Orn v. Astrue, 495 F.3d 625, 638 (9th 11 Cir. 2007). 12 Here, the ALJ found that Plaintiff’s course of treatment inconsistent with his 13 disability allegations. Tr. 21. The ALJ noted that primary care records show that 14 Plaintiff was being treated with sertraline for his reports of anxiety and depressive 15 symptoms but at other visits he denied symptoms of depression and was PHQ-9 16 negative. Tr. 21. The ALJ found that the FBH records consistently note Plaintiff 17 to be noncompliant with taking his prescribed medications. Tr. 21. Dr. Toews 18 noted, even with noncompliance, the claimant had normal mental status exams, 19 was well-groomed, with appropriate psychomotor activity, good eye contact, 20 cooperative attitude, normal speech and thought content, euthymic mood, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.691 Page 16 of 29 1 congruent affect, and denial of any suicidal ideation. Cognitive function was good 2 with normal memory.” Tr. 21. 3 Plaintiff argues that Plaintiff “was compliant with his medications” because 4 he testified that “many of the medications did not help his symptoms, at all, and 5 that he had side effects from other medications.” ECF No. 14 at 16. Plaintiff 6 frequently did not take his psychiatric medication for various reasons but Plaintiff 7 preferred marijuana against his providers’ advice. See Tr. 410, 414, 417, 434, 440, 8 451, 511, 584. For example, one provider stated “Plaintiff refuses to take 9 medications because he is living in a van. We have quite a discussion about what 10 that had to do with his taking his medications and in the end it came out basically 11 he just doesn’t want [to] take any pills. He doesn’t think he can remember to take 12 them and makes excuses for why he can’t take them and why he can’t help himself 13 why he can’t get a job.” Tr. 511. However, he often reported no side effects and 14 stated that his medications were helpful. See Tr. 403, 410, 434, 440, 502, 549. It 15 is the ALJ’s responsibility to resolve conflicts in the medical evidence. Andrews v. 16 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Plaintiff’s explanation does not 17 overturn the ALJ’s rational interpretation of the remaining evidence in the record. 18 Burch, 400 F.3d at 679 (“Where evidence is susceptible to more than one rational 19 interpretation, it is the ALJ’s conclusion that must be upheld.”). 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.692 Page 17 of 29 1 The ALJ reasonably concluded that Plaintiff’s noncompliance with taking 2 prescribed medications was inconsistent with the severity of symptoms Plaintiff 3 alleged. This finding is supported by substantial evidence. 4 4. Objective Medical Evidence 5 The ALJ found Plaintiff’s symptom complaints inconsistent with the 6 objective medical evidence in the record. Tr. 21. An ALJ may not discredit a 7 claimant’s symptom testimony and deny benefits solely because the degree of the 8 symptoms alleged is not supported by objective medical evidence. Burch v. 9 Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); Rollins v. Massanari, 261 F.3d 853, 10 856-857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); 11 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). However, the objective medical 12 evidence is a relevant factor, along with the medical source’s information about the 13 claimant’s pain or other symptoms, in determining the severity of a claimant’s 14 symptoms and their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 15 404.1529(c)(2); 416.929(c)(2). Mental status examinations are objective measures 16 of an individual’s mental health. Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 17 2017). 18 The ALJ detailed why Plaintiff’s reported level of disabling symptoms 19 conflicted with the objective medical evidence. Regarding the intellectual 20 disability, the ALJ noted that while there was a pre-existing diagnosis of ADHD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.693 Page 18 of 29 1 prior to the alleged onset date, school behavioral observations found Plaintiff “on 2 task the majority of the time.” Tr. 21 (citing Tr. 347). Regarding Dr. Genthe’s 3 assessment, Dr. Genthe noted that the PAI “raises the question if the information 4 [Plaintiff] provided verbally can be taken at face value,” and that “it is possible that 5 the information he provided today exaggerates the actual degree of his mental 6 health problems.” Tr. 21. (citing Tr. 365). Regarding Plaintiff’s mental status 7 exams, Dr. Genthe found Plaintiff well-groomed, good hygiene, cooperative, 8 friendly, fully oriented, accurately able to recall 4/4 words immediately but only 9 1/4 after 5 minutes, and was able to make changes in the abstract; however, 10 Plaintiff also gave “apparent wrong answers to common questions,” as discussed 11 supra. Tr. 21. (citing Tr. 365-367). The ALJ also found that as of May 2018, 12 Plaintiff reported that “he is doing well managing mental health issues, is still open 13 with FBH, and sees MH therapist routinely.” Tr. 21 (citing ex. 6F, pg. 4). Overall, 14 the ALJ found the objective medical evidence as showing Plaintiff as presenting 15 with normal mental status exams and without any significant objective worsening 16 in symptoms. Tr. 21-22. 17 Plaintiff does not initially contest this finding, but rather solely asserts that 18 the “ALJ discounted [Plaintiff’s] testimony because the ME testified that he had 19 normal mental status examinations.” ECF No. 14 at 16. In reply, Plaintiff cites to 20 examples where Plaintiff presented with fragmented thought process, increased ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.694 Page 19 of 29 1 rate of speech, anxious and depressed mood, confused and conflicting thoughts, 2 and passive suicidal ideation. ECF No. 16 at 8-9. It is the ALJ’s responsibility to 3 resolve conflicts in the medical evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 4 (9th Cir. 1995). Plaintiff’s citations do not overturn the ALJ’s rational 5 interpretation of the remaining evidence in the record. Burch, 400 F.3d at 679 6 (“Where evidence is susceptible to more than one rational interpretation, it is the 7 ALJ’s conclusion that must be upheld.”). 8 9 The ALJ reasonably concluded that this evidence was inconsistent with Plaintiff’s allegations of disabling mental health conditions. Tr. 23. This finding 10 is supported by substantial evidence. While a different interpretation could be 11 made as to whether some objective medical evidence conflicted with Plaintiff’s 12 reported level of debilitating symptoms, the ALJ articulated several other 13 supported grounds for discounting Plaintiff’s reported symptoms. See Carmickle 14 v. Commissioner, 533 F.3d 1155, 1163 (9th Cir. 2008); Vertigan v. Halter, 260 15 F.3d 1044, 1050 (9th Cir. 2001) (upholding the ALJ where “the ALJ here 16 considered other factors and found additional reasons for discrediting Plaintiff’s 17 subjective symptom testimony.”). 18 5. Daily Activities 19 The ALJ found that Plaintiff’s alleged symptoms were inconsistent with his 20 daily activities. Tr. 23. The ALJ may consider a claimant’s activities that ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.695 Page 20 of 29 1 undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a 2 substantial part of the day engaged in pursuits involving the performance of 3 exertional or non-exertional functions, the ALJ may find these activities 4 inconsistent with the reported disabling symptoms. Fair v. Bowen, 885 F.2d 597, 5 603 (9th Cir. 1989); Molina, 674 F.3d at 1113. “While a claimant need not 6 vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit a 7 claimant’s testimony when the claimant reports participation in everyday activities 8 indicating capacities that are transferable to a work setting” or when activities 9 “contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112- 10 11 13 (internal citation and quotation marks omitted). Here, the ALJ found Plaintiff’s allegations inconsistent with the longitudinal 12 record and his own testimony. Tr. 22. Plaintiff alleges memory difficulties, 13 difficulties reading, ongoing panic attacks, audio hallucinations, and social anxiety. 14 Tr. 22. First, the ALJ found “while [Plaintiff] has alleged social anxiety and 15 debilitating panic attacks, he met his live-in girlfriend and the mother of his child 16 on a city bus, indicating an ability to interact with others, including strangers in a 17 public setting. Id. Moreover, their first date was at a rock concert, typically a 18 crowded venue that would trigger [Plaintiff’s] alleged social phobia and panic.” 19 Id. Second, the ALJ noted that this inconsistency is “consistent with evidence of 20 symptoms of exaggeration as documented by personality testing and pointed out by ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.696 Page 21 of 29 1 Dr. Toews.” Id. Overall, the ALJ found “[Plaintiff] is much more functional than 2 alleged, and has not demonstrated a need for functional limitations exceeding those 3 already considered by the RFC.” Id. 4 The ALJ reasonably concluded that these activities contradicted Plaintiff’s 5 claims of debilitating impairments. This finding is supported by substantial 6 evidence. While a different interpretation could be made as to whether these 7 activities are consistent with Plaintiff’s ability to sustain fulltime work, the ALJ 8 articulated several other supported grounds for discounting Plaintiff’s reported 9 symptoms. See Carmickle v. Commissioner, 533 F.3d 1155, 1163 (9th Cir. 2008); 10 see Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (upholding the ALJ 11 where “the ALJ here considered other factors and found additional reasons for 12 discrediting Plaintiff’s subjective symptom testimony.”). 13 The ALJ’s conclusion based on several findings that Plaintiff’s subjective 14 symptom testimony conflicted with the evidence was clear, convincing, and 15 properly supported by substantial evidence. 16 17 B. Medical Evidence Plaintiff argues that the ALJ improperly considered and weighed the 18 opinions of examining and non-examining physicians, relying on Ninth Circuit law 19 that predates new regulations. ECF No. 14 at 19-20. 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.697 Page 22 of 29 1 As an initial matter, for claims filed on or after March 27, 2017, new 2 regulations apply that change the framework for how an ALJ must evaluate 3 medical opinion evidence. 20 C.F.R. §§ 404.1520c, 416.920c(c); see also 4 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 5 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017). The ALJ applied the new 6 regulations because Plaintiff filed his Title II and XVI claims after March 27, 7 2017. See Tr. 15, 19. 8 9 Under the new regulations, the ALJ will no longer “give any specific evidentiary weight … to any medical opinion(s).” Revisions to Rules, 2017 WL 10 168819, 82 Fed. Reg. 5844-01, 5867-68. Instead, an ALJ must consider and 11 evaluate the persuasiveness of all medical opinions or prior administrative medical 12 findings from medical sources. 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b). 13 The factors for evaluating the persuasiveness of medical opinions and prior 14 administrative medical findings include supportability, consistency, relationship 15 with the claimant, specialization, and “other factors that tend to support or 16 contradict a medical opinion or prior administrative medical finding” including but 17 not limited to “evidence showing a medical source has familiarity with the other 18 evidence in the claim or an understanding of our disability program’s policies and 19 evidentiary requirements.” 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 Case 2:20-cv-00244-TOR 1 ECF No. 17 filed 06/17/21 PageID.698 Page 23 of 29 The ALJ is required to explain how the most important factors, 2 supportability and consistency, were considered. 20 C.F.R. §§ 404.1520c(b)(2), 3 416.920c(b)(2). These factors are explained as follows: 4 5 6 7 8 (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. (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. 9 10 11 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). The ALJ may, but is not required to, explain how “the other most persuasive 12 factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. 13 § 416.920c(c)(b)(2). However, where two or more medical opinions or prior 14 administrative findings “about the same issue are both equally well-supported … 15 and consistent with the record … but are not exactly the same,” the ALJ is required 16 to explain how “the most persuasive factors” were considered. 20 C.F.R. 17 § 416.920c(c)(b)(2). 18 The parties dispute whether Ninth Circuit law that predates that new 19 regulations apply. ECF No. 15 at 4; ECF No. 16 at 2. The Ninth Circuit currently 20 requires the ALJ to provide “clear and convincing” reasons for rejecting the ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.699 Page 24 of 29 1 uncontradicted opinion of either a treating or examining physician. Lester v. 2 Chater, 81 F.3d 821, 830 (9th Cir. 1995). When a treating or examining 3 physician’s opinion is contradicted, the Ninth Circuit held the medical opinion can 4 only “be rejected for specific and legitimate reasons that are supported by 5 substantial evidence in the record.” Id. at 830-31 (internal citation omitted). 6 At this time, the Ninth Circuit has not addressed whether these standards still 7 apply when analyzing medical opinions under the new regulations. For purposes 8 of the present case, the Court finds that resolution of this issue is unnecessary. See 9 Allen T. v. Saul, No. EDCV 19-1066-KS, 2020 WL 3510871, at *3 (C.D. Cal. June 10 29, 2020) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Services, 11 545 U.S. 967, 981-82 (2005) (“[T]he Court is mindful that it must defer to the new 12 regulations, even where they conflict with prior judicial precedent, unless the prior 13 judicial construction ‘follows from unambiguous terms of the statute and thus 14 leaves no room for agency discretion.’”)). 15 1. Dr. Jay Toews, Ed.D 16 The ALJ found Dr. Toews’ opinion persuasive on the basis that it was well 17 supported and consistent with other evidence in the record. Tr. 22. Dr. Toews 18 opined that Plaintiff could perform simple and routine work, with superficial 19 interactions with the public, and in proximity to but not with coworkers, and in a 20 routine work environment. Tr. 22. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 Case 2:20-cv-00244-TOR 1 ECF No. 17 filed 06/17/21 PageID.700 Page 25 of 29 Regarding supportability, the ALJ noted that Dr. Toews gave thorough and 2 detailed testimony, referencing each exhibit and explaining why Plaintiff met or 3 did not meet various criteria for the alleged impairments. Tr. 22. First, Dr. Toews 4 explained how Plaintiff’s ADHD and PTSD were diagnosed prior to the amended 5 alleged onset date, and then carried forward despite a lack of objective testing or 6 objective basis for the diagnosis. Id. Second, Dr. Toews found these diagnoses 7 suspect as Plaintiff was not compliant with taking prescribed medications and 8 over-reported symptoms as indicated on Dr. Genthe’s personality testing. Id. 9 (citing Tr. 338-360, 361-370, 371-401, 402-491, 492-504, 505-531, 532-539). 10 Regarding consistency, the ALJ found Dr. Toews findings were consistent 11 with Plaintiff’s mental status exam that were generally “normal” and Plaintiff 12 testimony of public interactions that indicated he is more functional in social 13 situations than he alleged, such as riding the bus, meeting his girlfriend on the bus, 14 and attending a rock concert. Tr. 22 (citing Tr. 574-587); see also Tr. 45-52. 15 16 The ALJ’s finding that Dr. Toews’ opinion is persuasive is supported by substantial evidence. 17 2. Dr. Thomas Genthe, Ph.D. 18 The ALJ found Dr. Genthe’s opinion not fully persuasive as not supported 19 nor consistent with the record. Tr. 23. Dr. Genthe opined that Plaintiff is 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.701 Page 26 of 29 1 markedly limited in adapting to changes, maintaining appropriate behavior, and 2 completing a normal workday/week without interference from symptoms. Tr. 23. 3 Regarding supportability, Dr. Genthe did not review other records outside of 4 his own assessments based on Plaintiff’s reports. Tr. 21-22; see also Tr. 361, 532. 5 The ALJ noted that the PAI results demonstrated that Plaintiff exaggerated in 6 symptoms in both exams and gave poor effort in mental status testing, reporting 7 375 weeks in a year, unable to spell “world,” not knowing the president, and 8 incorrectly answering questions he previously answered correctly. Tr. 23. Dr. 9 Genthe even noted that Plaintiff’s responses showed a “high degree of impression 10 management, Plaintiff may have a diagnosis of malingering, and that it was 11 possible the information Plaintiff provided exaggerated his actual degree of mental 12 health problems. Tr. 365. Dr. Genthe also relied on a diagnosis of an intellectual 13 disability that was not established through any assessment in either in his 14 examination or treatment records. Tr. 20, 22, 36-42. 15 Regarding consistency, the ALJ noted that while Plaintiff’s symptoms could 16 reasonably cause some limitations in his functioning, Dr. Genthe’s finding of 17 marked limitations is not supported by the record or Plaintiff’s own reported level 18 of function, such as using public transportation, caring for his infant, and attending 19 appointments. Tr. 23. This is consistent with Ninth Circuit law that a medical 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26 Case 2:20-cv-00244-TOR ECF No. 17 filed 06/17/21 PageID.702 Page 27 of 29 1 opinion may be rejected by the ALJ if it is inadequately supported. Bray v. 2 Comm’r of Soc. Sec. Admin, 554 F.3d at 1219, 1228. 3 4 The ALJ’s finding that Dr. Genthe’s opinion is not fully persuasive is supported by substantial evidence. 5 3. Michael Regets, Ph.D. and Lisa Hacker, M.D. 6 The ALJ found the medical consultants’ psychological assessments 7 persuasive as consistent with and supported by the record. Tr. 23. Dr. Regets and 8 Dr. Hacker opined Plaintiff has moderate limits in social interaction. Id. 9 Regarding supportability, the ALJ found Plaintiff’s symptomatic reports are 10 tempered by his poor effort and symptom exaggeration which supports that 11 “moderate” limitations in concentration, persistence, and pace cannot be 12 reasonably established. Id. The ALJ also noted that these findings are supported 13 by Plaintiff’s mental status exams that lack veracity, the records that are “broadly 14 normal,” and the prior school records that did not indicate loss of the ability to 15 concentrate. Id. (citing Tr. 338-360, 361-370, 402-491, 492-504, 532-539, 574- 16 587). Regarding consistency, the ALJ found the opinions consistent with the 17 testimony of Dr. Toews and the longitudinal record that establishes Plaintiff’s 18 diagnoses of panic disorder and depressive disorder with symptoms including 19 panic attacks and depressed mood. Id. 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 27 Case 2:20-cv-00244-TOR 1 ECF No. 17 filed 06/17/21 PageID.703 Page 28 of 29 The ALJ’s finding that the medical consultants’ psychological assessments 2 are persuasive is supported by substantial evidence. 3 4. Merry Alto, M.D. and Gordon Hale, M.D. 4 The ALJ found the medical consultants’ physical assessments persuasive as 5 consistent with and supported by the record. Tr. 23. Dr. Alto and Dr. Hale opined 6 that there is insufficient evidence to establish any medically determinable 7 impairments. Tr. 23. 8 9 Regarding supportability and consistency, the ALJ noted that the finding is supported by the objective record and is unrebutted by Plaintiff. Id. (citing Tr. 10 371-401, 505-531, 574-587). The ALJ further noted that while Plaintiff has 11 various physical complaints, the allegation of symptoms alone is insufficient to 12 establish a physically determinable impairment. Id. 13 14 The ALJ’s finding that the medical consultants’ physical assessments are persuasive is supported by substantial evidence. 15 CONCLUSION 16 Having reviewed the record and the ALJ’s findings, this Court concludes the 17 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 18 // 19 // 20 // ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 28 Case 2:20-cv-00244-TOR 1 ECF No. 17 filed 06/17/21 PageID.704 Page 29 of 29 ACCORDINGLY, IT IS HEREBY ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED. 3 2. Defendant’s Motion for Summary Judgment (ECF No. 15) is 4 5 6 7 GRANTED. The District Court Executive is directed to enter this Order, enter judgment accordingly, furnish copies to counsel, and CLOSE the file. DATED June 17, 2021. 8 9 THOMAS O. RICE United States District Judge 10 11 12 13 14 15 16 17 18 19 20 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 29

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