Ekstedt v. Kijakazi, No. 2:2020cv00269 - Document 18 (E.D. Wash. 2021)
Court Description: ORDER GRANTING 14 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING 13 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. File is CLOSED. Signed by Judge Rosanna Malouf Peterson. (SG, Case Administrator)
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Ekstedt v. Kijakazi Doc. 18 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Sep 28, 2021 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 TRACY RAY E., NO: 2:20-CV-00269-FVS 8 Plaintiff, 9 v. 10 KILOLO KIJAKAZI, COMMISSIONER OF SOCIAL SECURITY, 1 11 12 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Defendant. 13 14 BEFORE THE COURT are the parties’ cross motions for summary judgment. 15 ECF Nos. 13 and 14. This matter was submitted for consideration without oral 16 argument. The Plaintiff is represented by Attorney David L. Lybbert. The Defendant 17 18 19 20 21 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further action need be taken to continue this suit. See 42 U.S.C. § 405(g). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 is represented by Special Assistant United States Attorney Ryan Lu. The Court has 2 reviewed the administrative record, the parties’ completed briefing, and is fully 3 informed. For the reasons discussed below, the Court GRANTS Defendant’s Motion 4 for Summary Judgment, ECF No. 14, and DENIES Plaintiff’s Motion for Summary 5 Judgment, ECF No. 13. 6 JURISDICTION 7 Plaintiff Tracy Ray E. 2 filed for disability insurance benefits on September 1, 8 2017, and for supplemental security income on October 18, 2017, alleging an onset 9 date of February 12, 2017, in both applications. Tr. 181-92. Benefits were denied 10 initially, Tr. 117-20, and upon reconsideration, Tr. 123-28. A hearing before an 11 administrative law judge (“ALJ”) was conducted on July 23, 2019. Tr. 32-64. 12 Plaintiff was represented by counsel and testified at the hearing. Id. The ALJ denied 13 benefits, Tr. 12-31, and the Appeals Council denied review. Tr. 1. The matter is now 14 before this Court pursuant to 42 U.S.C. §§ 405(g); 1383(c)(3). 15 BACKGROUND 16 The facts of the case are set forth in the administrative hearing and transcripts, 17 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. Only the most 18 pertinent facts are summarized here. 19 20 21 2 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first name and last initial. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 Plaintiff was 44 years old at the time of the hearing. See Tr. 203. He did some 2 college courses during the relevant period, and was on the honor roll. Tr. 38-39. He 3 lives with his wife, two young children, and three older children. Tr. 40-41. Plaintiff 4 has work history as a cook, lubrication servicer, horticultural worker, brake operator, 5 and exterminator. Tr. 51-55. 6 Plaintiff testified that he had both of his hips replaced at the age of 38. Tr. 41. 7 He reported that he is able to sit for a maximum of one hour, stand for 10-15 minutes, 8 “can’t even walk a full block without taking a break,” cannot lift his children, cannot 9 crouch, can stoop and bend with pain, can lift and carry 10 pounds without 10 aggravating his back or hip; and sleeps three to five hours a night. Tr. 42, 47-48. 11 Plaintiff also reported low back pain, depression, anxiety, difficulty with focus and 12 concentration, and irritability. Tr. 43-45. He spends three-quarters to seven-eighths 13 of the day in a resting posture, elevates his legs three to four times a day for 30-45 14 minutes at a time; and at least twice a week he is unable to help with shopping or 15 excursions with his family. Tr. 45-46. 16 STANDARD OF REVIEW 17 A district court’s review of a final decision of the Commissioner of Social 18 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 19 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 20 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 21 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 2 citation omitted). Stated differently, substantial evidence equates to “more than a 3 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 4 In determining whether the standard has been satisfied, a reviewing court must 5 consider the entire record as a whole rather than searching for supporting evidence in 6 isolation. Id. 7 In reviewing a denial of benefits, a district court may not substitute its 8 judgment for that of the Commissioner. If the evidence in the record “is susceptible 9 to more than one rational interpretation, [the court] must uphold the ALJ’s findings if 10 they are supported by inferences reasonably drawn from the record.” Molina v. 11 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not 12 reverse an ALJ’s decision on account of an error that is harmless.” Id. An error is 13 harmless “where it is inconsequential to the [ALJ’s] ultimate nondisability 14 determination.” Id. at 1115 (quotation and citation omitted). The party appealing the 15 ALJ’s decision generally bears the burden of establishing that it was harmed. 16 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 17 FIVE-STEP EVALUATION PROCESS 18 A claimant must satisfy two conditions to be considered “disabled” within the 19 meaning of the Social Security Act. First, the claimant must be “unable to engage in 20 any substantial gainful activity by reason of any medically determinable physical or 21 mental impairment which can be expected to result in death or which has lasted or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 can be expected to last for a continuous period of not less than twelve months.” 42 2 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s impairment must be 3 “of such severity that he is not only unable to do his previous work[,] but cannot, 4 considering his age, education, and work experience, engage in any other kind of 5 substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 6 423(d)(2)(A), 1382c(a)(3)(B). 7 The Commissioner has established a five-step sequential analysis to determine 8 whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)- 9 (v), 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 10 work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is 11 engaged in “substantial gainful activity,” the Commissioner must find that the 12 claimant is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b). 13 If the claimant is not engaged in substantial gainful activity, the analysis 14 proceeds to step two. At this step, the Commissioner considers the severity of the 15 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 16 claimant suffers from “any impairment or combination of impairments which 17 significantly limits [his or her] physical or mental ability to do basic work activities,” 18 the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the 19 claimant’s impairment does not satisfy this severity threshold, however, the 20 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(c), 21 416.920(c). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 At step three, the Commissioner compares the claimant’s impairment to severe 2 impairments recognized by the Commissioner to be so severe as to preclude a person 3 from engaging in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 4 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 5 enumerated impairments, the Commissioner must find the claimant disabled and 6 award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 7 If the severity of the claimant’s impairment does not meet or exceed the 8 severity of the enumerated impairments, the Commissioner must pause to assess the 9 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 10 defined generally as the claimant’s ability to perform physical and mental work 11 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 12 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 13 analysis. 14 At step four, the Commissioner considers whether, in view of the claimant’s 15 RFC, the claimant is capable of performing work that he or she has performed in the 16 past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the 17 claimant is capable of performing past relevant work, the Commissioner must find 18 that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the 19 claimant is incapable of performing such work, the analysis proceeds to step five. 20 21 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the claimant is capable of performing other work in the national economy. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, the 2 Commissioner must also consider vocational factors such as the claimant’s age, 3 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 4 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 5 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 6 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 7 work, analysis concludes with a finding that the claimant is disabled and is therefore 8 entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 9 The claimant bears the burden of proof at steps one through four. Tackett v. 10 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the 11 burden shifts to the Commissioner to establish that (1) the claimant is capable of 12 performing other work; and (2) such work “exists in significant numbers in the 13 national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. Astrue, 14 700 F.3d 386, 389 (9th Cir. 2012). 15 ALJ’S FINDINGS 16 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful 17 activity since February 12, 2017, the alleged onset date. Tr. 17. At step two, the ALJ 18 found that Plaintiff has the following severe impairments: bilateral hip replacements 19 in 2013 currently with loose hardware of the left hip, diabetes, chronic kidney 20 disease, and obesity. Tr. 17. At step three, the ALJ found that Plaintiff does not have 21 an impairment or combination of impairments that meets or medically equals the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 severity of a listed impairment. Tr. 19. The ALJ then found that Plaintiff has the 2 RFC 3 4 5 6 7 to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he can lift and/or carry up to 10 pounds frequently; he can stand or walk for approximately 2 hours and sit for approximately 6 hours per workday with normal breaks; he can occasionally climb ramps or stairs; he can never climb ladders, ropes, or scaffolds; he can occasionally balance, stoop, kneel, and crouch; he can never crawl; he must avoid concentrated exposure to excessive vibration and workplace hazards such as working with dangerous machinery and working at unprotected heights. 8 Tr. 19. At step four, the ALJ found that Plaintiff is unable to perform any past 9 relevant work. Tr. 24. At step five, the ALJ found that considering Plaintiff’s age, 10 education, work experience, and RFC, there are other jobs that exist in significant 11 numbers in the national economy that Plaintiff can perform, including: elections 12 clerk, document preparer, and callout operator. Tr. 25. On that basis, the ALJ 13 concluded that Plaintiff has not been under a disability, as defined in the Social 14 Security Act, from February 12, 2017, through the date of this decision. Tr. 26. 15 16 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 17 her disability insurance benefits under Title II of the Social Security Act and 18 supplemental security income benefits under Title XVI of the Social Security Act. 19 ECF No. 13. Plaintiff raises the following issues for this Court’s review: 20 1. Whether the ALJ erred at step two; 21 2. Whether the ALJ erred at step three; ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 3. Whether the ALJ properly considered Plaintiff’s symptom claims; and 2 4. Whether the ALJ properly considered the medical opinion evidence. 3 4 5 DISCUSSION A. Step Two To be considered “severe” at step two of the sequential analysis, an impairment 6 must significantly limit an individual’s ability to perform basic work activities. 20 7 C.F.R. §§ 404.1520(c), 416.920(c); see also Smolen v. Chater, 80 F.3d 1273, 1290 8 (9th Cir.1996). “An impairment or combination of impairments can be found ‘not 9 severe’ only if the evidence establishes a slight abnormality that has ‘no more than a 10 minimal effect on an individual[’]s ability to work.’” Id. at 1290. Plaintiff bears the 11 burden to establish the existence of a severe impairment or combination of 12 impairments, which prevent him from performing substantial gainful activity, and 13 that the impairment or combination of impairments lasted for at least twelve 14 continuous months. 20 C.F.R. §§ 404.1505, 404.1512(a); Edlund v. Massanari, 253 15 F.3d 1152, 1159-60 (9th Cir. 2011). However, step two is “a de minimus screening 16 device [used] to dispose of groundless claims.” Smolen, 80 F.3d at 1290. “Thus, 17 applying our normal standard of review to the requirements of step two, we must 18 determine whether the ALJ had substantial evidence to find that the medical evidence 19 clearly established that [Plaintiff] did not have a medically severe impairment or 20 combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 Here, the ALJ resolved step two in Plaintiff’s favor, finding Plaintiff has the 2 following severe impairments: bilateral hip replacements in 2013 currently with loose 3 hardware of the left hip, diabetes, chronic kidney disease, and obesity. Tr. 17. 4 Despite this finding, Plaintiff generally argues that the ALJ erred by concluding that 5 Plaintiff’s depression and lumbar back pain were not severe impairments. This 6 argument is unavailing for several reasons. First, as to his alleged mental health 7 impairments, Plaintiff fails to address the ALJ’s specific assessment of the areas of 8 Plaintiff’s mental functioning known as the “paragraph B” criteria, which included 9 findings of no limitation in understanding, remember, or applying information; no 10 limitation in interacting with others; mild limitation in concentrating, persisting, or 11 maintaining pace; and no limitation in adapting or managing himself. Tr. 18-19; see 12 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) 13 (court may decline to address issue not raised with specificity in Plaintiff’s briefing). 14 Second, Plaintiff generally cites mental status examination findings that found 15 he was disheveled/unkempt, had flat affect, had poor perception and memory, and 16 had depressed mood. ECF No. 13 at 15-16 (citing Tr. 770, 787, 810, 822, 827, 834, 17 836, 839, 841, 845, 851, 861). However, the Court notes these same mental status 18 examinations consistently noted appropriate behavior and good memory; and both the 19 clinician and Plaintiff repeatedly reported making progress toward their goals. See id. 20 Moreover, the ALJ specifically found that Plaintiff’s mental health complaints were 21 “out of proportion to the objective medical evidence of record,” and in support of this ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 finding the ALJ cited evidence of mild mental status examination findings by Dr. 2 Genthe, frequent denials of depression and “negative” findings for depression, and 3 findings of normal/intact mood and affect during medical visits. Tr. 18, 341, 357, 4 415, 421, 425-26, 430, 440-41, 452, 507, 591, 630, 635, 769-70, 775. Thus, 5 regardless of evidence that could be considered more favorable to Plaintiff, the ALJ’s 6 finding that Plaintiff’s claimed mental impairment were non-severe was supported by 7 substantial evidence. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) 8 (“[W]here evidence is susceptible to more than one rational interpretation, it is the 9 [Commissioner’s] conclusion that must be upheld.”). 10 In addition, the ALJ found that Plaintiff’s alleged back pain caused no more 11 than minimal impact on basic work activities. Tr. 18. In support of this finding, the 12 ALJ cited a June 2018 MRI of the lumbar spine that showed multilevel degenerative 13 disc disease, physical therapy notes indicating that Plaintiff’s symptoms are more 14 consistent with hip pathology rather than lumbar spine, and physical examinations 15 indicating negative straight leg raise tests and normal neurological examination 16 findings. Tr. 18 (citing Tr. 690, 701, 710-11, 716, 743-44, 879, 902, 908). Plaintiff 17 argues the ALJ “reversibly erred” by finding his back pain was not a severe 18 impairment at step two, and cited evidence that (1) the June 2018 MRI results also 19 showed moderate-severe degeneration of the facets at L4-5, severe facet degeneration 20 at L5-S1, and moderate spinal stenosis; and (2) a 2018 treatment note included 21 findings of diminished range of motion and “mild” tenderness to palpation in left SI ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 joint. ECF No. 13 at 176-17 (citing Tr. 701-03). However, the Court’s review of the 2 same records from June 2018 also indicate that Plaintiff had no significant tenderness 3 in his lumbar spine, and the MRI results indicated no acute abnormality, no definite 4 impingement upon the traversing nerve roots, and slight/mild impingement upon 5 nerve roots. Tr. 702-03. Thus, as above, despite evidence that could be considered 6 more favorable to Plaintiff, it was reasonable for the ALJ to find Plaintiff’s back pain 7 was not a severe impairment at step two. See Burch, 400 F.3d at 679. 8 9 Finally, even assuming, arguendo, that the ALJ erred in finding that Plaintiff’s back pain and mental health impairments were non-severe, any error is harmless 10 because Plaintiff fails to identify how these alleged impairments result in limitations 11 beyond those included in the assessed RFC. See Lewis v. Astrue, 498 F.3d 909, 911 12 (9th Cir. 2007) (holding that ALJ’s failure to list plaintiff’s bursitis as a severe 13 impairment at step two was harmless where ALJ considered limitations caused by the 14 condition at step four); see also Molina, 674 F.3d at 1115 (error is harmless “where it 15 is inconsequential to the [ALJ’s] ultimate nondisability determination). As discussed 16 below, the ALJ properly weighed the opinion evidence and Plaintiff’s symptom 17 claims; and as a result, the RFC incorporated the limitations supported by substantial 18 evidence in the record. The Court finds no error at step two. 19 20 21 B. Step Three At step three of the sequential evaluation of disability, the ALJ must determine if a claimant's impairments meet or equal a listed impairment. 20 C.F.R. §§ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 416.920(a)(4)(iii), 404.1520(a)(4)(iii). The Listing of Impairments “describes for 2 each of the major body systems impairments [which are considered] severe enough to 3 prevent an individual from doing any gainful activity, regardless of his or her age, 4 education or work experience.” 20 C.F.R. §§ 416.925, 404.1525. To meet a listed 5 impairment, a claimant must establish that he meets each characteristic of a listed 6 impairment relevant to his claim. 20 C.F.R. §§ 416.925(d), 404.1525(d). If a 7 claimant meets the listed criteria for disability, he will be found to be disabled. 20 8 C.F.R. §§ 416.920(a)(4)(iii), 404.1520(a)(4)(iii). The claimant bears the burden of 9 establishing he meets a Listing. Burch, 400 F.3dat 683. 10 Each Listing sets forth the “symptoms, signs, and laboratory findings” that 11 must be established in order for claimant's impairment to meet the Listing. Tackett, 12 180 F.3d at 1099. “For a claimant to show that his impairment matches a Listing, it 13 must meet all of the specified medical criteria. An impairment that manifests only 14 some of those criteria, no matter how severely, does not qualify.” Sullivan v. Zebley, 15 493 U.S. 521, 530 (1990) (emphasis in original). Here, the criteria for Listing 1.02A 16 “major dysfunction of a joint” are satisfied when there is evidence of “a gross 17 anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, 18 instability) and chronic joint pain and stiffness with signs of limitation of motion or 19 other abnormal motion of the affected joint(s), and findings on appropriate medically 20 acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the 21 affected joint(s),” with “[i]nvolvement of one major peripheral weight-bearing joint ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 (i.e. hip, knee, or ankle), resulting in an inability to ambulate effectively.” See 20 2 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02A. 3 The ALJ found that “the record does not establish the medical signs, 4 symptoms, laboratory findings or degree of functional limitation required to meet or 5 equal the criteria of” Listing 1.02 “major dysfunction of a joint.” Tr. 19. Plaintiff 6 argues that the ALJ erred at step 3 by failing to properly assess whether he met or 7 equaled Listing 1.02 for major dysfunction of a weight-bearing joint. ECF No. 13 at 8 17-19. In support of this argument, Plaintiff generally references several diagnostic 9 studies that indicate loosening of his hip replacement hardware, causing “instability 10 within both of his major weight bearing joints, the condition being worse on the left 11 side. His records are replete with complaints of chronic joint pain in both hips, left 12 worse than right.” ECF No. 13 at 18. Plaintiff also cites two April 2017 treatment 13 notes indicating painful range of motion in his left hip, loss of motor strength, 14 tenderness, and loosening of his hip prosthesis causing pain and difficulty walking; a 15 December 2017 treatment note indicating reduced range of motion and tenderness; a 16 May 2018 treatment note indicating decreased range of motion and motor strength; 17 and a June 2018 treatment note observing antalgic gait, positive Faber and Fair tests, 18 and weakness in the left leg. ECF No. 13 at 18-19 (citing Tr. 300, 312, 507, 689, 19 701). 20 21 “A boilerplate finding is insufficient to support a conclusion that a claimant’s impairment does not” meet or equal a listed impairment. Lewis v. Apfel, 236 F.3d ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 503, 512 (9th Cir. 2001). An ALJ must make specific findings regarding why a 2 plaintiff does not meet all the Listing requirements. See id. at 512–13. However, 3 even if an ALJ makes a boilerplate finding that an impairment does not meet a 4 Listing, this Court will not reverse where the ALJ made sufficiently detailed findings 5 in other portions of her decision. See Lewis, 236 F.3d at 513. Moreover, where a 6 Listing has multiple requirements that an impairment must satisfy, even if an ALJ 7 does not make findings about each Listing requirement, the ALJ’s decision is 8 sufficiently specific if the ALJ discussed and evaluated evidence that one of the 9 requirements was not met. See id. Here, as noted by Defendant, in order to meet 10 Listing 1.02, “Plaintiff had to demonstrate, among other requirements, that his 11 impairments resulted in ‘an inability to ambulate effectively.’” 20 C.F.R. Pt. 404, 12 Subpt. P, App. 1, § 1.02A. “Ineffective ambulation is defined generally as having 13 insufficient lower extremity functioning . . . to permit ambulation without the use of 14 a hand-held assistive device(s) that limits the functioning of both upper extremities.” 15 20 C.F.R. Part 404, Subpt P, App. 1, 1.00(B)(2)(b)(1). “Examples of ineffective 16 ambulation include, but are not limited to, the inability to walk without the use of a 17 walker, two crutches or two canes, the inability to walk a block at a reasonable pace 18 on rough or uneven surfaces, [or] the inability to carry out routine ambulatory 19 activities, such as shopping and banking[.]” Id. at 1.00(B)(2)(b)(2). 20 In his reply brief, Plaintiff cites his testimony that he could not walk a full 21 block without resting and opinion evidence assessing marked limitations in Plaintiff’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 ability to walk and stand. ECF No. 15 at 7; Tr. 42, 46, 508, 777. However, as 2 discussed below, the ALJ properly concluded that the opinion evidence was not 3 persuasive, and discounted Plaintiff’s symptom claims. Additionally, the record fails 4 to show that Plaintiff’s ambulation required the use of a hand-held assistive device 5 that limited functioning of both upper extremities; nor does it include evidence, aside 6 from Plaintiff’s own testimony, that he was unable to walk a block at a reasonable 7 pace. Rather, as noted by the ALJ in the decision, the record demonstrates that while 8 he was noted to have an antalgic gait, Plaintiff was capable of ambulating effectively 9 without aids. See Tr. 21, 300 (noting Plaintiff can bear weight on the injured 10 extremity), 701 (5/5 leg strength), 777 (opining Plaintiff could walk for 1 hour out of 11 an 8-hour workday), 775 (orthopedic surgeon noting that Plaintiff may need “more of 12 a light sedentary job,” but at his age, “a painful hip replacement should not merit 13 Social Security”). Finally, as indicated in the ALJ’s decision, Plaintiff was able to 14 care for his wife and family when she had a difficult pregnancy, take classes that 15 required him to sit and walk around a campus, play in a heavy metal band, drive, and 16 do things around the house. Tr. 22-23, 333, 432, 615, 633, 794, 807, 845, 899. Based 17 on the foregoing, Plaintiff fails to show error in the ALJ’s conclusion that his 18 impairments did not meet or medically equal Listing 1.02A. 19 20 21 C. Plaintiff’s Symptom Claims An ALJ engages in a two-step analysis when evaluating a claimant’s testimony regarding subjective pain or symptoms. “First, the ALJ must determine whether ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 16 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, 674 3 F.3d at 1112 (internal quotation marks omitted). “The claimant is not required to 4 show that his impairment could reasonably be expected to cause the severity of the 5 symptom he has alleged; he need only show that it could reasonably have caused 6 some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 7 (internal quotation marks omitted). 8 9 Second, “[i]f the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant’s testimony about the severity of 10 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 11 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal citations 12 and quotations omitted). “General findings are insufficient; rather, the ALJ must 13 identify what testimony is not credible and what evidence undermines the claimant’s 14 complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); 15 Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a 16 credibility determination with findings sufficiently specific to permit the court to 17 conclude that the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear 18 and convincing [evidence] standard is the most demanding required in Social 19 Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting 20 Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 Here, the ALJ found Plaintiff’s medically determinable impairments could 2 reasonably be expected to cause some of the alleged symptoms; however, Plaintiff’s 3 “statements concerning the intensity, persistence and limiting effects of these 4 symptoms are not entirely consistent with the medical evidence and other evidence in 5 the record” for several reasons. Tr. 20. First, the ALJ found that Plaintiff “testified 6 to minimal daily activities including spending ¾ of his day resting as well as having 7 his wife take care of him and their children. However, the record indicates he is more 8 functional than alleged.” Tr. 22. A claimant need not be utterly incapacitated in 9 order to be eligible for benefits. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); 10 see also Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (“the mere fact that a 11 plaintiff has carried on certain activities . . . does not in any way detract from her 12 credibility as to her overall disability.”). Regardless, even where daily activities 13 “suggest some difficulty functioning, they may be grounds for discrediting the 14 [Plaintiff’s] testimony to the extent that they contradict claims of a totally debilitating 15 impairment.” Molina, 674 F.3d at 1113. 16 In support of this finding, the ALJ cited Plaintiff’s reports that he was “hoping 17 to find a job soon” in March 2017, and he was “going away with a friend for a couple 18 days to the beach.” Tr. 22, 418. The record also contains evidence, as cited by the 19 ALJ, that Plaintiff was voluntarily postponing his hip surgery “in order to be able to 20 care for his wife and family”; he attended “retraining” courses that required him to do 21 “a lot of sitting and walking around [a college] campus”; he consistently reported that ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 he was able to play guitar in a band despite his physical limitations; and he was able 2 to do things around the house. Tr. 22-23, 333 (plays in a heavy metal band), 432 3 (postponed surgery to care for his wife and family, and plays in heavy metal band), 4 615 (despite difficulty walking, he is taking classes that require him to “do quite a bit 5 of sitting and walking around campus”), 633 (he has been in school for a while, and 6 he put off his revision surgery because his wife “needed him as a caregiver and for 7 transportation”), 794 (able to play music even with his physical limitations), 807 (was 8 playing with his band), 845 (enjoys playing music and socializing with his band), 899 9 (he is able to do things around the house). 10 Plaintiff generally argues that the ALJ “improperly discredited” the Plaintiff 11 because “[t]here are not findings of the amount of time devoted to such activities nor 12 the strength demands or mental demands,” and “[n]one of these activities take up a 13 substantial portion of his day or indicate transferability to a work environment where 14 there is no opportunity to take breaks for rest and medication.” ECF No. 13 at 13. 15 However, the Court finds it was reasonable for the ALJ to conclude that Plaintiff’s 16 documented activities, including taking care of his wife and young children, 17 attending classes as part of job retraining, and playing guitar in a band, was 18 inconsistent with his allegations of debilitating functional limitations. Molina, 674 19 F.3d at 1113 (Plaintiff’s activities may be grounds for discrediting Plaintiff’s 20 testimony to the extent that they contradict claims of a totally debilitating 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 impairment). This was a clear and convincing reason to discredit Plaintiff’s symptom 2 claims. 3 In addition, the ALJ found that Plaintiff’s claimed physical limitations were 4 inconsistent with medical evidence, including evidence that Plaintiff’s medication 5 was helping him improve his functioning. Tr. 20-23. The Court may decline to 6 address issues not raised with specificity in Plaintiff’s opening brief. Carmickle, 533 7 F.3d at 1161 n.2; see also Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (the Court 8 may not consider on appeal issues not “specifically and distinctly argued” in the 9 party’s opening brief). Despite Plaintiff’s waiver, the Court will briefly review the 10 additional reasons given by the ALJ to discount Plaintiff’s symptom claims. 11 The ALJ found that Plaintiff has some physical limitations, but those 12 limitations do not preclude all work activity; and the ALJ noted improvement in 13 Plaintiff’s diabetes and hip pain with medication compliance. Tr. 21-23. In support 14 of this finding, the ALJ set out medical evidence, including x-rays showing normal 15 alignment and no fracture of left hip, ability to bear weight on his hip, lack of 16 assistive device, unrestricted hip range of motion but with pain at endpoint, 5/5 17 strength in lower extremities, normal alignment and no fracture in his hip, and normal 18 neurological examination findings. Tr. 21-22, 297-300, 650 (negative straight leg 19 test), 665, 686 (noting x-rays of left hip look “improved”), 688-89, 692, 695-96, 701, 20 746, 775, 879, 884. The ALJ also relied on consistent reports from Plaintiff 21 throughout the relevant adjudicatory period that his function was improved with ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 medication compliance. Tr. 22-23, 314, 317, 324, 343, 413, 418, 423, 498, 879, 903. 2 An ALJ may not discredit a claimant’s pain testimony and deny benefits solely 3 because the degree of pain alleged is not supported by objective medical evidence. 4 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 5 F.2d 341, 346-47 (9th Cir. 1991); Fair, 885 F.2d at 601. However, the medical 6 evidence is a relevant ant factor in determining the severity of a claimant’s pain and 7 its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 404.1529(c)(2). In 8 addition, a favorable response to treatment can undermine a claimant's complaints of 9 debilitating pain or other severe limitations. See Tommasetti v. Astrue, 533 F.3d 10 1035, 1040 (9th Cir. 2008); see Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 11 1006 (9th Cir. 2006) (conditions effectively controlled with medication are not 12 disabling for purposes of determining eligibility for benefits). The lack of 13 corroboration of Plaintiff’s claimed limitations by the medical evidence, including 14 evidence of improvement with medication, was a clear, convincing, and unchallenged 15 reason for the ALJ to discount Plaintiff’s symptom claims. 16 17 18 The Court concludes that the ALJ provided clear and convincing reasons, supported by substantial evidence, for rejecting Plaintiff’s symptom claims. D. Medical Opinions 19 For claims filed on or after March 27, 2017, new regulations apply that change 20 the framework for how an ALJ must evaluate medical opinion evidence. Revisions to 21 Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. The new 2 regulations provide that the ALJ will no longer “give any specific evidentiary weight 3 . . .to any medical opinion(s) . . .” Revisions to Rules, 2017 WL 168819, 82 Fed. 4 Reg. 5844, at 5867-68; see 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, an ALJ 5 must consider and evaluate the persuasiveness of all medical opinions or prior 6 administrative medical findings from medical sources. 20 C.F.R. §§ 404.1520c(a) 7 and (b), 416.920c(a) and (b). The factors for evaluating the persuasiveness of 8 medical opinions and prior administrative medical findings include supportability, 9 consistency, relationship with the claimant (including length of the treatment, 10 frequency of examinations, purpose of the treatment, extent of the treatment, and the 11 existence of an examination), specialization, and “other factors that tend to support or 12 contradict a medical opinion or prior administrative medical finding” (including, but 13 not limited to, “evidence showing a medical source has familiarity with the other 14 evidence in the claim or an understanding of our disability program’s policies and 15 evidentiary requirements”). 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). 16 Supportability and consistency are the most important factors, and, therefore, 17 the ALJ is required to explain how both factors were considered. 20 C.F.R. §§ 18 404.1520c(b)(2), 416.920c(b)(2). Supportability and consistency are explained in the 19 regulations: 20 21 (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 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 2 (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. 3 4 5 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). The ALJ may, but is not 6 required to, explain how the other factors were considered. 20 C.F.R. §§ 7 404.1520c(b)(2), 416.920c(b)(2). However, when two or more medical opinions or 8 prior administrative findings “about the same issue are both equally well-supported . . 9 . and consistent with the record . . . but are not exactly the same,” the ALJ is required 10 to explain how “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” 11 were considered. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). 12 Plaintiff argues the ALJ erroneously considered the opinions of Allen Noble, 13 P.A.C. and Michael Tolley, M.D. 3 ECF No. 13 at 7-10. In April 2017, Mr. Noble 14 15 16 17 18 19 20 21 3 In his opening brief, Plaintiff generally argues that the ALJ improperly assessed the RFC, and therefore posed an incomplete hypothetical to the vocational expert, because she failed to consider the marked limitations assessed by Thomas Genthe, Ph.D. ECF No. 13 at 14 (citing Tr.768). However, Plaintiff fails to identify or challenge any of the ALJ’s reasons for finding Dr. Genthe’s opinion only somewhat persuasive; thus, the Court declines to consider this issue. See Carmickle, 533 F.3d at 1161 n.2. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 wrote a letter indicating that Plaintiff had worsening pain in his left thigh, a bone scan 2 showed loosening of the prosthesis in the femur that was causing pain and difficulty 3 walking, and “[h]e would benefit from any assistance that DSHS could provide given 4 his ability to work currently with his medical condition is very limited.” Tr. 312. 5 Mr. Noble also opined that Plaintiff’s “workability would be sedentary or very 6 limited.” Tr. 312. In December 2017, Mr. Noble and Dr. Tolley jointly opined that 7 Plaintiff had “marked” limitations in his ability to sit, stand, walk, lift, and carry; and 8 his “overall work level” was sedentary. Tr. 508. In June 2018, Mr. Noble wrote a 9 single sentence letter opining that Plaintiff was able to work 15-20 hours without 10 heaving lifting or frequent walking/standing. Tr. 764. And in June 2019, Mr. Noble 11 opined that Plaintiff was able to sit for 3-4 hours in an 8-hour workday; stand for 1 12 hour in an 8-hour workday; walk for 1 hour in an 8-hour workday; occasionally lift 13 up to 10 pounds; seldom carry up to 5 pounds and “never” carry more; and never 14 stoop, squat, crawl, climb, or push foot controls. Tr. 777-78. Finally, Mr. Noble 15 “agreed” that Plaintiff would need more than the scheduled breaks of 10 minutes or 16 more throughout the day, was likely to miss or work or leave early at least 2-3 17 months due to flare-ups of symptoms, and was unlikely to tolerate production level 18 sorting, assembly, or inspection. Tr. 779. 19 The ALJ found Mr. Noble’s opinions “minimally persuasive” for several 20 reasons. Tr. 23. As an initial matter, Plaintiff argues that Mr. Noble and Dr. Tolley 21 “were treating doctors and their opinions are entitled to substantial weight. If not ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 contradicted in the record, the opinion is entitled to controlling weight when 2 supported by substantial evidence.” ECF No. 13 at 9 (citing SSR 96-2). Plaintiff 3 also generally argues that the ALJ’s reasons are “insufficient” because “she notes that 4 she finds the statements of [Mr.] Noble are ‘minimally persuasive’ yet elects to 5 ignore them as she believes that they are inconsistent with medical evidence and the 6 [Plaintiff’s] guitar playing.” ECF No. 13 at 8. Plaintiff’s argument is inapposite. As 7 noted by Defendant, “[b]ecause Plaintiff applied for benefits after March 27, 2017, 8 the ALJ correctly applied [the] new regulations in evaluating the medical opinion 9 evidence in this case.” ECF No. 14 at 9. The new regulations provide that the ALJ 10 will no longer “give any specific evidentiary weight . . . to any medical 11 opinion(s).” Revisions to Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; 12 see 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, an ALJ must consider and 13 evaluate the persuasiveness of all medical opinions or prior administrative medical 14 findings from medical sources. 20 C.F.R. §§ 404.1520c(a) and (b), 416.920c(a) and 15 (b). In particular, supportability and consistency are the most important factors; and 16 therefore, the ALJ is required to explain how both factors were considered. 20 17 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). 18 The Court may decline to consider this issue because Plaintiff fails to raise any 19 specific challenge to the ALJ’s consideration of the medical opinion evidence under 20 the new regulations. See Carmickle, 533 F.3d at 1161 n.2 (court may decline to 21 address issue not raised with specificity in Plaintiff’s briefing). Nonetheless, the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 25 1 Court additionally notes that the ALJ properly considered Mr. Noble’s and Dr. 2 Tolley’s opinions. Tr. 23. As to Mr. Noble’s opinion, the ALJ considered 3 supportability and consistency and found that (1) his opinion referenced a previous 4 bone scan showing loosening of Plaintiff’s hip hardware, but examination notes also 5 observe full strength of the lower extremities and uses no assistive device for 6 ambulation; (2) Mr. Noble’s “extreme assessments” of only “seldom” carrying five 7 pounds and other manipulative limitations are inconsistent with medical evidence and 8 Plaintiff’s ability to play guitar; and (3) the assessed limitations are inconsistent with 9 evidence that Plaintiff has “remained quite functional despite his hip impairment” 10 including driving, caring for his wife and family, and playing guitar in a band. Tr. 11 23. 12 In addition, the ALJ separately considered the December 2017 opinion co- 13 signed by Mr. Noble and Dr. Tolley, and found it “persuasive to the extent that it is 14 consistent with a limitation to sedentary exertion.” Tr. 23, 508. However, as to the 15 general assessment that Plaintiff has “difficulties lifting, carrying, standing, bending, 16 squatting, sitting for prolonged periods, standing for prolonged periods, walking for 17 prolonged periods, etc.,” the ALJ correctly found that Mr. Noble and Dr. Tolley “did 18 not quantify these limitations which undercuts the reliability of their opinion.” Tr. 23. 19 See, e.g., Turner v. Comm'r of Soc. Sec. Admin., 613 F.3d 1217, 1223 (9th Cir. 2010) 20 (where physician's report did not assign any specific limitations or opinions in 21 relation to an ability to work, “the ALJ did not need to provide . . . for rejecting [the] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 26 1 report because the ALJ did not reject any of [the report's] conclusions”). Moreover, 2 the ALJ noted that Plaintiff’s activities of daily living including driving, attending 3 classes, and caring for his wife and children, were inconsistent with the severity of 4 the assessed limitations. Tr. 23. 5 Plaintiff generally cites treatment notes indicating difficulty with weight 6 bearing, decreased strength in lower extremities, loss of range of motion in his back 7 and loss of hip flexor strength, and positive Faber and Fair testing of his hips 8 bilaterally. ECF No. 13 at 8 (citing Tr. 689, 701). However, as noted above, Plaintiff 9 fails to assert any challenge to the ALJ’s findings under the new regulations. See 10 Carmickle, 533 F.3d at 1161 n.2. Moreover, regardless of evidence in the overall 11 record that could be considered more favorable to Plaintiff, it was reasonable for the 12 ALJ to find Mr. Noble and Dr. Tolley’s opinions were unsupported and inconsistent 13 with the longitudinal record, and therefore only minimally persuasive. See Burch, 400 14 F.3d at 679. Based on the foregoing, the Court finds no error in the ALJ’s 15 consideration of the medical opinion evidence. 16 CONCLUSION 17 A reviewing court should not substitute its assessment of the evidence for the 18 ALJ’s. Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must defer to 19 an ALJ’s assessment as long as it is supported by substantial evidence. 42 U.S.C. § 20 405(g). As discussed in detail above, the ALJ properly considered step two and step 21 three, provided clear and convincing reasons to discount Plaintiff’s symptom claims, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 27 1 and properly considered the medical opinion evidence. After review the court finds 2 the ALJ’s decision is supported by substantial evidence and free of harmful legal 3 error. 4 Accordingly, IT IS HEREBY ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 7 IT IS SO ORDERED. The District Court Executive is hereby directed to 8 enter this Order and provide copies to counsel, enter judgment in favor of the 9 Defendant, and CLOSE the file. 10 DATED September 28, 2021. 11 12 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 13 14 15 16 17 18 19 20 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 28
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