Villanueva Cabrera v. Astrue
Filing
26
ORDER by Judge Philip A. Brimmer on 3/26/15. ORDERED: The decision of the Commissioner that plaintiff Felix J. Villanueva Cabrera was not disabled is AFFIRMED. (kpreu)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-01559-PAB
FELIX J. VILLANUEVA CABRERA,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on plaintiff Felix J. Villanueva Cabrera’s complaint
[Docket No. 1], filed on June 15, 2012. Plaintiff seeks review of the final decision of
defendant Carolyn W. Colvin (the “Commissioner”) denying plaintiff’s claim for
supplemental security income under Title II of the Social Security Act (the “Act”), 42
U.S.C. §§ 401-33. 1 The Court has jurisdiction to review the Commissioner’s final
decision under 42 U.S.C. § 405(g).
I. BACKGROUND
On May 18, 2010, plaintiff applied for disability and disability insurance benefits
under Title II of the Act. R. at 17. Plaintiff alleged that he had been disabled since
August 1, 2008. Id. After an initial administrative denial of his claim, plaintiff received a
hearing before an Administrative Law Judge (“ALJ”) on October 27, 2011. Id. On
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The Court has determined that it can resolve the issues presented in this
matter without the need for oral argument.
November 7, 2011, the ALJ issued a decision denying plaintiff’s claim. R. at 30.
The ALJ found that plaintiff had the following severe impairments: “(1)
Degenerative disc disease of the lumbar spine, status post L5-SI laminectomy and
diskectomy; (2) Radiculopathy of the right lower extremity; (3) Right elbow olecranon
chip fracture; (4) Major depressive disorder; (5) Post-traumatic stress disorder (PTSD);
and (6) Obesity.” R. at 19-20 (citation omitted). The ALJ concluded that these
impairments, alone or in combination, did not meet one of the regulations’ listed
impairments, R. at 21, and ruled that plaintiff had the residual functional capacity
(“RFC”) to
perform sedentary work as defined in 20 CFR 404.1567(a) except the
claimant must have a sit/stand option; cannot work at unprotected heights;
cannot deal with the general public; and cannot perform complex tasks, such
that he is limited to work with an svp [“Specific Vocational Preparation”] of 2
or less.
R. at 22. Based upon this RFC and in reliance on the testim ony of a vocational expert
(“VE”), the ALJ concluded that plaintiff was unable to perform any past relevant work, R.
at 28, and that plaintiff was not disabled as “the claimant is capable of making a
successful adjustment to other work that exists in significant numbers in the national
economy.” R. at 29.
The Appeals Council denied plaintiff’s request for review of this denial. R. at 1.
Consequently, the ALJ’s decision is the final decision of the Commissioner.
II. ANALYSIS
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
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determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). T he district court may not reverse
an ALJ simply because the court may have reached a different result based on the
record; the question instead is whether there is substantial evidence showing that the
ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.
1990). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence is not
substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). T he district
court will not “reweigh the evidence or retry the case,” but must “meticulously examine
the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty, 515
F.3d at 1070. Nevertheless, “if the ALJ failed to apply the correct legal test, there is a
ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993).
B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous period
of twelve months that prevents the claimant from performing any substantial gainful
work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,
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[a]n individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and (5)
whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point in
the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of
Health and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisf ied her burden of
establishing a prima facie case of disability under steps one, two, and four, the burden
shifts to the Commissioner to show the claimant has the residual functional capacity
(RFC) to perform other work in the national economy in view of her age, education, and
work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005);
see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). W hile the claimant has the
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initial burden of proving a disability, “the ALJ has a basic duty of inquiry, to inform
himself about facts relevant to his decision and to learn the claimant’s own version of
those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
C. The ALJ’s Decision
1. Medical Opinions
Plaintiff argues that the ALJ failed to apply the correct legal standard in assigning
weight to the opinions of Dr. James Martin and Dr. Sara Sexton and that the weight
assigned to each opinion was not based on substantial evidence. Docket No. 17 at 16.
A treating physician’s opinion is entitled to controlling weight so long as it is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence” in the record. 20 C.F.R.
§ 404.1527(c)(2). The Tenth Circuit has articulated a two-step test for determining
whether the opinion of a treating source is entitled to controlling weight:
An ALJ must first consider whether the opinion is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques.” SSR
96–2p, 1996 WL 374188, at *2 (quotations omitted). If the answer to this
question is “no,” then the inquiry at this stage is complete. If the ALJ finds
that the opinion is well-supported, he must then confirm that the opinion is
consistent with other substantial evidence in the record. Id. In other words,
if the opinion is deficient in either of these respects, then it is not entitled to
controlling weight. Id.
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). “A f inding that a treating
source’s medical opinion is not entitled to controlling weight does not mean that the
opinion is rejected. It may still be entitled to deference and be adopted by the
adjudicator.” SSR 96-2p, 1996 W L 374188, at *1 (July 2, 1996). The level of
deference accorded a non-controlling opinion of a treating physician depends on a
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number of factors, including the length of the treating relationship, the nature and extent
of the relationship, the supportability of the opinion and its consistency with the record
as a whole, and the physician’s medical specialization. 20 C.F.R. § 404.1527(c)(2)-(6).
An ALJ need not expressly discuss the application of each factor to each medical
opinion, so long as the ALJ’s opinion is “sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th
Cir. 2007) (internal citations omitted). “When a treating physician’s opinion is
inconsistent with other medical evidence, the ALJ’s task is to examine the other
physicians’ reports to see if they outweigh the treating physician’s report, not the other
way around.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (internal
citations omitted).
“Unless a treating source’s opinion is given controlling weight, the administrative
law judge must explain in the decision the weight give to the opinions of a State agency
medical . . . consultant.” 20 C.F.R. § 416.927(e)(2)(ii). Given the weaker ties between
claimants and non-treating physicians, the opinions of such physicians “are weighed by
stricter standards, based to a greater degree on medical evidence, qualifications, and
explanations for the opinions, than are required of treating sources.” SSR 96-6p, 1996
WL 374180, at *2 (July 2, 1996). “[B]ecause nonexamining sources have no examining
or treating relationship with [claimants], the weight [an ALJ] will give their opinions will
depend on the degree to which they provide supporting explanations for their opinions”
and “the degree to which these opinions consider all of the pertinent evidence in [a]
claim, including opinions of treating and other examining sources.” 20 C.F.R.
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§ 404.1527(c)(3).
Omitting a sufficiently thorough explanation for the weight given to the opinion of
a treating physician (if given less than controlling weight) or for the weight given the
opinion of a nonexamining physician is grounds for remand. See Frey v. Bowen, 816
F.2d 508, 515 (10th Cir. 1987) (remanding denial of benefits because ALJ improperly
rejected the treating physician’s opinion and relied instead on the findings of a nontreating physician, which the court found to be “of suspect reliability”); Andersen v.
Astrue, 319 F. App’x 712, 728 (10th Cir. 2009) (remanding denial of benefits where ALJ
failed to indicate weight accorded to treating physicians’ opinion and failed to supply
“good reasons” for according them that weight).
a. Dr. Martin
Plaintiff argues that the ALJ failed to consider or discuss the 20 C.F.R.
§ 404.1527(c) factors. Docket No. 17 at 16. 2 The Court disagrees. The ALJ
acknowledged that Dr. Martin was a treating physician and noted the length of the
treating relationship, which corresponds to the first factor. R. at 27-28. The ALJ found
Dr. Martin’s opinion to be inconsistent “with the claimant’s treatment history or mental
status exam findings, which, as noted above, suggest only moderate limitations,” which
corresponds to the fourth factor. Id. Although the ALJ does not re-weigh the evidence
in the context of discussing Dr. Martin’s opinion, the ALJ makes reference to his
discussion of reports by other treating providers, which was extensive and thorough and
2
Although plaintiff cites to the factors listed in SSR 06-03p, 2006 W L 2329939
(Aug. 9, 2006), the regulation states the factors it lists are taken from 20 C.F.R.
§ 404.1527. SSR 06-03p, 2006 W L 2329939, at *3.
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which supports the ALJ’s finding that plaintiff was not as limited as Dr. Martin indicated.
R. at 25. The ALJ also noted that the report contained an internal inconsistency ,
namely, that plaintiff’s GAF score3 in Dr. Martin’s report indicated that plaintiff had only
moderate symptoms, whereas Dr. Martin’s recommended limitations suggested that
plaintiff suffered severe symptoms. R. at 27. The ALJ also found that Dr. Martin’s
ultimate conclusions lacked support because, although Dr. Martin began treating
plaintiff in 2010, Dr. Martin’s recommended limitations cover a period from 2008 to
present. R. at 28. The ALJ noted that Dr. Martin’s failure to explain the evidence
supporting his conclusions concerning plaintiff’s limitations prior to their treating
relationship “significantly detracts from the persuasiveness of the opinion.” Id. The ALJ
is not required to expressly apply all of the 20 C.F.R. § 404.1527 factors, but the ALJ in
this case discussed issues related to three of the factors. Moreover, in declining to give
Dr. Martin’s opinion controlling weight, the ALJ determined that Dr. Martin’s opinion was
not “consistent with other substantial evidence in the record.” See Watkins, 350 F.3d at
1300. The Court finds that the ALJ applied the correct legal standard in declining to
give Dr. Martin’s opinion controlling weight and sufficiently stated the weight given to Dr.
Martin’s opinion and the reasons for it. See Hackett v. Barnhart, 395 F.3d 1168, 1174
(10th Cir. 2005).
The Court also finds that the weight given to Dr. Martin’s opinion was supported
by substantial evidence. Plaintiff does not point to any specific evidence that would
3
The GAF “is a subjective determination based on a scale of 1–100 of ‘the
clinician’s judgment of the individual’s overall level of functioning.” Salazar v. Barnhart,
468 F.3d 615, 624 n. 4 (10th Cir. 2006).
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overwhelm the evidence relied on by the ALJ. See Musgrave, 966 F.2d at 1374. As
noted above, plaintiff consistently reported to his treating physicians that he was able to
do his own cooking and cleaning, manage medications and money, use public
transportation, and drive himself. R. at 811, 853. Plaintiff reported that he could follow
written and spoken instructions well and that he got along with authority figures. R. at
223-24. According to Dr. Brad Marten, who plaintiff visited for a consultative
psychological examination in June 2010, plaintiff’s thought process appeared organized
and clear and he denied any history of interpersonal conflict or difficulty. R. at 341-42.
The ALJ gave Dr. Marten’s opinion great weight. R. at 26. This evidence supports the
ALJ’s conclusion that the limitations proposed by Dr. Martin were too severe in light of
the evidence in the record and the inconsistencies in Dr. Martin’s report. According ly,
the Court finds that the ALJ’s decision to afford Dr. Martin’s opinion little weight is
supported by substantial evidence.
b. Dr. Sexton
Plaintiff argues that the ALJ improperly rejected portions of Dr. Sexton’s opinion
which were consistent with other treating and examining sources. Docket No. 17 at 1617. Specifically, plaintiff argues that the ALJ improperly disregarded Dr. Sexton’s
opinion that plaintiff’s “symptoms of anxiety and depression may interfere w/ his
completion of a normal workday/workweek or cause inconsistent pace.” Id. (citing R. at
78). Plaintiff, however, mischaracterizes Dr. Sexton’s opinion. Dr. Sexton’s opinion
goes on to say that “when work does not require more than simple instructions, ordinary
routines, or simple work decision making, limitations of attendance and pace will not
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prevent his completing a workday/workweek.” R. at 78 (emphasis added). Dr. Sexton’s
opinion on absenteeism is not, as plaintiff argues, entirely supported by Dr. Martin’s
opinion, which concluded that plaintiff would miss four or more days of work a month.
R. at 977. Thus, the Court rejects plaintiff’s argument on this issue. The ALJ gave Dr.
Sexton’s opinion moderate weight, explaining that Dr. Sexton’s opinion was not
persuasively reasoned and, with respect to her opinion that plaintiff was unable to
interact with co-workers, unsupported by the evidence. R. at 28. In the absence of a
specific objection to the ALJ’s reasoning or the evidentiary support for the ALJ’s
conclusion, the Court finds that the ALJ properly explained his decision to afford
moderate weight to Dr. Sexton’s opinion and that the ALJ’s decision was supported by
substantial evidence.
2. Credibility
Plaintiff argues that the ALJ erred in assessing plaintiff’s subjective complaints of
pain. Docket No. 17 at 18-19. 4 Specifically, plaintiff argues that the ALJ failed to apply
the correct legal standard and that his credibility assessment was not based upon
substantial evidence. Id. at 18-19.
“Credibility determinations are peculiarly the province of the finder of fact, and
[the Court] will not upset such determinations when supported by substantial evidence.”
Diaz v. Sec’y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990). “The
possibility of drawing two inconsistent conclusions from the evidence does not prevent
an administrative agency’s findings from being supported by substantial evidence.” Lax
4
Plaintiff does not appear to challenge the ALJ’s credibility findings concerning
plaintiff’s complaints concerning mental limitations. See id. at 20-21.
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v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Zoltanski v. F.A.A., 372 F.3d
1195, 1200 (10th Cir. 2004)). Accordingly, the Court may not “displace the agenc[y’s]
choice between two fairly conflicting views, even though the [C]ourt would justifiably
have made a different choice had the matter been before it de novo.” Id.
However, “[f]indings as to credibility should be closely and affirmatively linked to
substantial evidence and not just a conclusion in the guise of findings.” Huston v.
Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988) (f ootnote omitted). In assessing a
claimant’s credibility, an ALJ must consider the following factors, in addition to the
objective medical evidence:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain or
other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received
for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back, standing
for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996); see also 20 C.F.R. 404.1529(c)(4)
(“We will consider whether there are any inconsistencies in the evidence and the extent
to which there are any conflicts between your statements and the rest of the evidence
. . . .”). “One strong indication of the credibility of an individual’s statements is their
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consistency, both internally and with other information in the case record.” SSR 96-7p,
1996 WL 374186, at *5.
As a threshold matter, plaintiff argues that most of the reasons the ALJ gave for
rejecting plaintiff’s testimony regarding pain related to the lack of objective evidence.
Docket No. 17 at 20. Plaintiff claims that plaintiff was not required to produce objective
medical evidence of pain and, as such, that the ALJ erred in f ailing to consider plaintiff’s
subjective complaints. Docket No. 17 at 20. Plaintiff quotes Huston v. Bowen, 838
F.2d 1125 (10th Cir. 1988), arguing that “‘if an impairment is reasonably expected to
produce some pain, allegations of disabling pain emanating from that impairment are
sufficiently consistent to require consideration of all relevant evidence.’” Id. at 1129
(quoting Luna v. Bowen, 834 F.2d 161, 164 (10th Cir. 1987)).
The Court disagrees with plaintiff’s characterization of the ALJ’s decision. The
ALJ agreed with plaintiff that his medically determinable impairments could be expected
to cause the symptoms alleged, thus triggering the ALJ’s duty to consider all relevant
evidence of pain. See Huston, 838 F.2d at 1129. The ALJ extensively discussed and
considered the objective medical evidence, which he concluded “[did] not necessarily
correlate to the degree of the alleged severity of these symptoms.” R. at 24. However,
to the extent plaintiff argues that the ALJ erred in entirely failing to consider subjective
evidence, the Court finds no support for such an argument in either the ALJ’s decision
or the record. The ALJ specifically noted plaintiff’s subjective allegations of pain, R. at
23, and then compared those allegations to the objective medical evidence, plaintiff’s
efforts to control his pain, treatment history, R. at 25, and plaintiff’s daily activities, R. at
26. The Court rejects plaintiff’s argument that the ALJ’s treatment of plaintiff’s
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testimony is reversible error.
To the contrary, the ALJ carefully set forth the reasons supporting his negative
credibility assessment. First, he referenced the objective medical evidence, including
MRIs and other tests, that the ALJ concluded “dem onstrate some abnormalities of the
lumbar spine, most prominent at L4-5 and L5-S1.” R. at 24. But the ALJ also noted
that the evidence showed no recurrent herniations or frank impingement of the nerve
roots and noted that there was little suggestion that nerve damage was ongoing. Id.
The ALJ discussed the observations reported by plaintiff’s treating providers, which
supported the existence of reasonable limitations, but also indicated that plaintiff
retained significant strength in the lower extremities and that his leg pain was not as
constant as alleged. R. at 25. The ALJ also noted plaintiff’s treatment history and
attempts to secure treatment, but found that such efforts did not overcome other
inconsistencies. Id. With regard to medication side effects, the ALJ found that
plaintiff’s failure to complain of side effects to his treating physicians undermined the
credibility of his complaints. Id. Although plaintiff correctly points out that he
complained to Kimberly Shurtleff of sleepiness while taking Effexor and that he shied
away from taking narcotics “to avoid addiction,” R. at 289, 301, such evidence is
insufficient to overwhelm the ALJ’s finding. See Musgrave, 966 F.2d at 1374.
Moreover, on March 7, 2011, plaintiff reported that his current medications were
effective. R. at 822. Finally, the ALJ discussed plaintiff’s daily activities and noted that
plaintiff went to church every day and took a trip to Texas in 2001. R. at 26. However,
plaintiff’s suggestion that this was the ALJ’s only reason for discounting plaintiff’s
testimony is incorrect. See Docket No. 17 at 21. The ALJ noted inconsistencies in
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plaintiff’s reported ability to engage in daily activities detracted from his credibility. R. at
26. For example, on June 16, 2010, Plaintiff completed a function report where he
stated that his daily activities consisted of eating breakfast, taking medications,
attending appointments, and resting. R. at 218. Plaintiff indicated that he could not
drive or handle money. R. at 221. Plaintiff checked boxes indicating his illness affected
his memory and concentration and his ability to walk, sit, bend, kneel, climb stairs, and
complete tasks. R. at 223. Plaintiff reported that he could follow written and spoken
instructions well and that he got along with authority figures. R. at 223-24. However, in
early 2011, Plaintiff reported to his treating provider that he was able to do his own
cooking, cleaning, manage medications and money, use public transportation, and drive
himself. R. at 811, 853. The ALJ correctly noted that while evidence of a claimant’s
daily activities “may be considered, along with medical testimony, in determining
whether a person is entitled to disability benefits,” such daily activities do not “in
themselves establish that a person is able to engage in substantial gainful activity.”
Talbot v. Heckler, 814 F.2d 1456, 1462 (10th Cir. 1987). Althoug h the ALJ did not
engage in a factor-by-factor analysis of evidence relating to plaintiff’s credibility, such
formality is not required. See White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001)
(holding that formalistic factor-by-factor recitation of the evidence is not required in
evaluating the claimant’s credibility). The Court cannot conclude that the ALJ f ailed to
apply the correct legal standard.
Plaintiff argues that the evidence that the ALJ referred to as detracting from
plaintiff’s allegations actually supports plaintiff’s allegations. Docket No. 17 at 19-20.
Plaintiff’s argument asks the Court to re-weigh the evidence, which the Court will not
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do. See Flaherty, 515 F.3d at 1070. Moreover, for the foregoing reasons, the Court
finds that the ALJ’s credibility inference was permissible and supported by substantial
evidence and cannot be displaced by the Court’s own interpretation of the record. See
Raymond v. Astrue, 621 F.3d 1269, 1272-73 (10th Cir. 2009).
3. Residual Functional Capacity
Plaintiff argues that the ALJ erred in refusing to consider the combined effects of
plaintiff’s physical and mental impairments and that his RFC assessment was not
based upon substantial evidence. Docket No. 17 at 17. RFC is “the maximum degree
to which the individual retains the capacity for sustained performance of the physicalmental requirements of jobs.” 20 C.F.R. Pt. 404, subpt. P, App. 2, § 200.00(c). T he
ALJ is required to assess a claimant’s RFC based upon all the relevant evidence in the
record. 20 C.F.R. § 404.1545(a)(1). The ALJ must consider all medically determinable
impairments, even those that are not severe, as well as the claimant’s overall ability to
“meet the physical, mental, sensory, and other requirements of work.”
§ 404.1545(a)(1)-(4).
The ALJ specifically considered all of plaintiff’s “medically determinable
impairments.” R. at 23. However, plaintiff does not specifically indicate how the ALJ
erred in failing to consider the combined effects of plaintiff’s physical and mental
impairments. Instead, plaintiff argues that the ALJ erred in failing to include specific
physical limitations and specific mental limitations in his RFC assessment, namely, (1)
that the ALJ erred in failing to assign any reaching, fingering, or handling restrictions or
consider plaintiff’s elbow olecranon chip fracture and (2) that the ALJ erred in not
including limitations from Dr. Sexton’s opinion. Docket No. 17 at 18. Thus, the Court
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interprets plaintiff’s argument not as a challenge to the ALJ’s combined RFC finding,
but as separate challenges to the ALJ’s findings concerning physical and mental
limitations.
Plaintiff argues that the ALJ failed to assign any reaching, fingering, or handling
restrictions despite objective findings of cubital tunnel syndrome and that the ALJ failed
to consider his right elbow injury. Docket No. 17 at 18. Plaintiff cites to a June 7, 2010
report completed by Rebecca Hawkins where plaintiff was assessed with symptoms
“consistent with Cubital tunnel syndrome [and] triceps tendonitis.” R. at 386. However,
the report also states that, although “Current Functional Performance is moderately
limited,” plaintiff had “Good” rehabilitation potential. Id. Moreover, beyond this single
diagnosis, plaintiff fails to cite to a more recent diagnosis or more recent symptoms
consistent with manipulative restrictions, and the Court has found no such evidence in a
review of the record. Dr. Alan Ketelhohn’s opinion did not indicate that plaintif f had
manipulative limitations and plaintiff’s daily activities do not support his claim of
manipulative restrictions. See R. at 26, 76. Right arm x-rays and other exams were
generally normal. R. at 244, 376. The Court cannot conclude that a single diagnosis,
in June 2010, is evidence that overwhelms the ALJ’s RFC findings.
With respect to plaintiff’s elbow injury, the ALJ noted that a nerve conduction
study revealed no abnormalities of the right upper extremity, but the ALJ found no
evidence of a nerve injury. R. at 24. The ALJ also noted that plaintiff received an
injection in his elbow, which plaintiff reported was effective. R. at 25. The Court cannot
conclude that the ALJ overlooked plaintiff’s elbow condition or that the ALJ’s omission
of manipulative limitations from plaintiff’s RFC was not based upon substantial
16
evidence.
Plaintiff argues that the ALJ erred in failing to include any of the limitations
proposed by Dr. Sexton in plaintiff’s RFC. Docket No. 17 at 18. However, as discussed
above, the ALJ gave Dr. Sexton’s opinion only moderate weight. He was not required
to adopt her opinion in its entirety in forming plaintiff’s RFC. See Chapo v. Astrue, 682
F.3d 1285, 1288 (10th Cir. 2012) (holding that ALJ is charged with determining
claimant’s RFC and the RFC is not required to directly correspond with “a specific
medical opinion on the functional capacity in question”).5
4. VA Disability Rating
Plaintiff argues that the ALJ failed to adequately consider the VA disability rating
and that the ALJ’s assessment of the VA disability rating was not based on material
evidence. Docket No. 17 at 23. Plaintiff cites Baca v. Department of Health & Human
Servs., 5 F.3d 476, 480 (10th Cir.1993), for the proposition that a VA disability rating
may provide evidence that plaintiff was disabled under the Act. Docket No. 17 at 24-25.
On that point, plaintiff is correct: “[e]vidence is anything you or anyone else submits to
us or that we obtain that relates to your claim,” which “includes . . . [d]ecisions by any
governmental or nongovernmental agency about whether you are disabled . . . .” 20
C.F.R. § 416.912(b)(5). Therefore, plaintiff properly argues that the ALJ was required
to consider the VA’s determination. See Baca, 5 F.3d at 480. However, the ALJ also
appropriately noted that a determination of disability by the VA and a determination of
disability under the Act are not one and the sam e. See Jones v. Barnhart, 53 F. App’x
5
To the extent plaintiff argues that the ALJ’s RFC finding was inconsistent with
the jobs suggested by the VE, plaintiff’s argument will be considered below.
17
45, 47 (10th Cir. 2002) (“Just as the former determinations did not preclude Mr. Jones
from attempting to obtain disability benefits from the Commissioner, neither did they
compel the Commissioner to automatically grant those benefits. Simply put, the
workers’ compensation and veterans administration proceedings are entirely different
and separate from a claim under the Social Security Act, with different parties, different
evidentiary standards, and different bodies of law governing their outcomes.”); Pruett v.
Apfel, 153 F.3d 728 (table), 1998 WL 380506, at *1 (10th Cir. July 08, 1998) (“In [the
ALJ’s] decision, he analyzed the treatment records of VA physicians and stated that the
conclusion of nondisability was made after a consideration of the entire record.”);
Justice v. Chater, 86 F.3d 1166 (table), 1996 W L 270965, at *2 (10th Cir. May 22,
1996) (“Although the Secretary is required to consider another agency’s disability
determination, the other agency’s determination has been made based on different
rules, and is not binding on the Secretary. Here, the ALJ fully considered the Veterans
Administration’s rating in making his decision.”) (citations omitted); 20 C.F.R. § 416.904
(providing that a “decision by any nongovernmental agency or any other governmental
agency about whether [a claimant is] disabled . . . is based on its rules and is not [the
Commissioner’s] decision about whether [a claimant is] disabled . . . . [The
Commissioner] must make a disability . . .determination based on social security law.
Therefore, a determination made by another agency that [a claimant is] disabled . . . is
not binding on [the Commissioner].”).
Plaintiff suggests that, “[w]hen coupled with the litany of physical impairments
and their resultant work related limitations, Mr. Villanueva’s combined [VA disability]
rating of 90 percent may provide evidence that he was disabled within the meaning of
18
the [Act],” Docket No. 17 at 24-25, but he “‘has not pointed to any specific factual
finding or evidence in the [VA’s] disability determination that should have changed the
[ALJ’s] decision.’” Breneiser v. Astrue, 231 F. App’x 840, 845 (10th Cir. 2007)
(alterations in original) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir.
2005)). “The ALJ was not required to adopt the VA’s conclusion,” and, because the
ALJ’s consideration of the VA’s decision was otherwise sufficient, the Court “reject[s]
this claim of error.” Id. The ALJ described the VA’s conclusions in his opinion, noted
that they “ha[d] some relevance to the claimant’s ability to perform work,” and gave
them moderate weight. R. at 27; see Kralicek v. Apfel, 229 F.3d 1164 (table), 2000 W L
1153288, at *3 (10th Cir. Aug. 15, 2000) (“The ALJ referenced the VA’s disability
determination at the hearing; documentation of the determination was in the record;
and, in his decision, the ALJ stated that the conclusion of nondisability was made after
a consideration of the entire record. The fact that the ALJ drew a different conclusion
concerning Mr. Kralicek’s condition does not constitute legal error. Although it would
have been preferable for the ALJ to be more explicit in his discussion of the VA
disability rating, the lack of detail is not reversible error under the circumstances
presented by this case.” (citations omitted)). As such, the Court rejects plaintiff’s
argument that the ALJ failed to adequately consider the VA’s disability determination.
5. Reasoning Level
Plaintiff argues that the ALJ failed to apply the correct legal standard at step five.
Docket No. 17 at 22. Specifically, plaintiff argues that the ALJ improperly determined
that plaintiff could perform work as a surveillance system monitor, which, although it
19
says an SVP of two or less, requires reasoning and language General Education
Development (“GED”) levels of three. Id. at 23. Plaintiff cites to Hackett v. Barnhart,
395 F.3d 1168, 1176 (10th Cir. 2005), f or the proposition that a GED reasoning level of
three is inconsistent with simple, routine work tasks. Docket No. 17 at 23.
GED levels “embrace[ ] those aspects of education (formal and informal) which
are required of the worker for satisfactory job performance. This is education of a
general nature which does not have a recognized, fairly specific occupational objective.
Ordinarily, such education is obtained in elementary school, high school, or college.”
Dictionary of Occupational Titles (“DOT ”), Appx. C. § III (4th ed. rev.1991); see also
Malusa v. Astrue, 2009 WL 2707219, at *4–5 (D.Ariz. Aug. 25, 2009). Level three
reasoning is defined by the DOT as the ability to “[a]pply commonsense understanding
to carry out instructions furnished in written, oral, or diagrammatic form” and to “[d]eal
with problems involving several concrete variables in or from standardized situations.”
DOT, Appx. C § III. Level two reasoning is defined as the ability to “[a]pply
commonsense understanding to carry out detailed but uninvolved written or oral
instructions” and to “[d]eal with problems involving a few concrete variables in or from
standardized situations.” Id. In Hackett, the ALJ determined that plaintiff retained “the
attention, concentration, persistence and pace levels required for simple and routine
work tasks.” 395 F.3d at 1176. The Hackett court stated that the plaintiff’s RFC
“seems inconsistent with the demands of level-three reasoning” and concluded that
level two reasoning “appear[ed] more consistent with Plaintiff’s RFC” limitation to
“simple and routine work.” Id. The court remanded the case to “allow the ALJ to
20
address the apparent conflict between Plaintiff’s inability to perform more than simple
and repetitive tasks and the level-three reasoning required by the jobs identified as
appropriate for her by the VE.” Id.
The Court turns to plaintiff’s argument concerning Hackett. Whereas the
plaintiff’s RFC in Hackett limited her to “simple and routine work tasks,” plaintiff’s RFC
here contains no such limitation. Cf. Hackett, 395 F.3d at 1176. The ALJ’s RFC finding
stated that plaintiff “cannot perform complex tasks, such that he is limited to work with
an svp of 2 or less,” but did not explicitly limit plaintiff to simple tasks. R. at 22. Plaintiff
provides the Court with no basis upon which to conclude that the ALJ’s finding that
plaintiff could not complete complex tasks is the equivalent of a finding that he is limited
to performing only simple tasks. Cf. Jones v. Comm’r of Soc. Sec., 2013 WL 5965684,
at *6 (N.D. Ohio Nov. 8, 2013) (affirming ALJ’s finding that claimant could “perform or
complete simple to moderate tasks”). Had the ALJ intended to limit plaintiff to simple
tasks, he presumably would have said so in his RFC finding. Hackett is therefore
distinguishable.
This interpretation of plaintiff’s RFC is consistent with the ALJ’s discussion of
plaintiff’s mental status. The ALJ stated: “The claimant’s mental status exam findings
suggests some impairment in the ability to perform complex tasks, but his normal recall
and fairly intact concentration indicates that he should be able to perform simple tasks
associated with unskilled work.” R. at 26. The ALJ found, at step three, that plaintiff
has only a “moderate limitation in this area of functioning.” R. at 22. When addressing
a hypothetical question to the VE, the ALJ defined “no complex tasks” as “SVP 2 or
21
less.” R. at 58. In light of the ALJ’s specific RFC finding, the ALJ did not foreclose
upon plaintiff’s ability to perform tasks other than complex ones or otherwise limit
plaintiff to “simple tasks” that would be inconsistent with level three reasoning. Thus,
the Court does not find plaintiff’s RFC to be inconsistent with level three reasoning.
Plaintiff argues that the ALJ implicitly limited plaintiff to jobs that required only
simple tasks by limiting plaintiff to jobs with an SVP of 2 or less. Docket No. 17 at 18,
23. Specific vocational preparation (“SVP”) is defined as “the amount of lapsed time
required by a typical worker to learn the techniques, acquire the information, and
develop the facility needed for average performance in a specific job-worker situation.”
DOT, Appx. C § II; see also 20 C.F.R. § 656.3. “This training may be acquired in a
school, work, military, institutional, or vocational environment. It does not include the
orientation time required of a fully qualified worker to become accustomed to the
special conditions of any new job.” DOT, Appx. C § II. An SVP level of two indicates
that a typical worker could learn a particular job within 30 days. Id. However, the
“DOT’s explanation of SVP suggests that SVP relates to the vocational preparation
required to perform a job and does not address whether a job entails simple tasks,
while the [GED], particularly the GED reasoning level, pertains to the complexity of a
job.” Estrada v. Barnhart, 417 F. Supp. 2d 1299, 1302 n.3 (M.D. Fla. 2006); accord
Cooper v. Barnhart, 2004 WL 2381515, at *4 (N.D. Okla. Oct. 15, 2004); Hall-Grover v.
Barnhart, 2004 WL 1529283, at *4 (D. Maine April 30, 2004) (“SVP ratings speak to
the issue of the level of vocational preparation necessary to perform the job, not directly
to the issue of a job’s simplicity, which appears to be more squarely addressed by the
22
GED ratings”). Thus, by limiting plaintiff to jobs with an SVP of two, the ALJ did not
explicitly or implicitly limit plaintiff to performing only “simple tasks.” The Court finds no
error in the ALJ’s findings on this issue.
Plaintiff also argues that plaintiff has never attained level three GED reasoning
levels. Docket No. 17 at 26. In response, def endant argues that plaintiff earned a
Bachelor of Arts degree and vocational training in the military. Docket No. 22 at 32.
Defendant cites Mounts v. Astrue, 479 F. App’x 860, 868 (10th Cir. 2012)
(unpublished), in support of her argument that plaintiff failed to provide any evidence
that he did not retain the level three reasoning necessary to perform the job of
surveillance systems monitor. See id. (“There is no genuine dispute that Mounts
retained the GED to perform the jobs . . . as testified to by the VE”.). Plaintiff did not file
a reply brief and, as such, fails to dispute defendant’s argument on this point. Upon
review, the Court agrees with defendant. Plaintiff has a college education and
substantial military career. Although he currently suffers from mental limitations, there
is insufficient evidence upon which to conclude that the ALJ erred in finding that plaintiff
had retained sufficient function to “[a]pply commonsense understanding to carry out
instructions furnished in written, oral, or diagrammatic form” and to “[d]eal with problems
involving several concrete variables in or from standardized situations.” DOT, Appx. C
§ III.
The ALJ’s finding that plaintiff had reasoning levels sufficient to perform the job
of surveillance system monitor is supported by substantial evidence. Plaintiff stated in
his function report that he could follow written and spoken instructions well. R. at 223.
The ALJ gave great weight to the opinion of Dr. Marten. R. at 26. During Dr. Marten’s
23
examination, plaintiff was able to recall three out of three words after three and five
minutes and, although he could not count backwards from 100, he was able to count
down from 20 by three with mildly slow pace and labored process. Id. He could not
spell the word “world” backwards, but was able to spell “cat” and displayed an average
grasp of factual information. Id. Plaintiff also reported nightmares, hallucinations, and
some problems recalling conversations and tasks. R. at 341-42. Dr. Marten concluded
that plaintiff had intact immediate and delayed auditory memory recall, but moderate
impairment in his ability to concentrate on more complex tasks. R. at 343. Dr. Marten
concluded that this may result in moderate difficulty in complying with more complex
instructions or directions in a workplace setting, suggesting that plaintiff could
experience moderate difficulty in “his ability to actively attend to more complex
instructions and/or directions presented to him auditorially, in workplace settings. Mr.
Cabrera otherwise evidenced adequate levels of pace and sustained persistence
throughout this examination, based on observation.” Id.
Plaintiff argues that the ALJ gave moderate weight to Dr. Sexton’s opinion and
did not explicitly disagree with her opinion that plaintiff was moderately limited in his
ability to carry out detailed instructions and maintain attention and concentration for
extended periods. Docket No. 17 at 23 (citing R. at 76). Although the ALJ did not
explicitly reject that portion of Dr. Sexton’s opinion, the ALJ, as explained above,
sufficiently justified his decision to give Dr. Sexton’s opinion moderate weight and the
ALJ’s decision was supported by substantial evidence. The adoption of Dr. Marten’s
opinion functioned as an implicit rejection of portions of Dr. Sexton’s more extreme
limitations. The ALJ is not required to explicitly reject each portion of a medical
24
source’s opinion with which he disagrees. The Court finds that plaintiff’s mental RFC
limitations were supported by substantial evidence.
6. Step Three
Plaintiff argues that the ALJ erred at step three by failing to find that his
impairments met the requirements of Listing 1.04 and failing to sufficiently explain his
reasoning. Docket No. 17 at 13-14. Defendant responds that plaintiff failed to meet his
burden of providing medical findings equal in severity and duration to the criteria in the
listing and that the ALJ sufficiently explained his decision. Docket No. 22 at 16, 19.
“At step three, the ALJ considers whether a claimant’s medically severe
impairments are equivalent to a condition listed in the appendix of the relevant disability
regulation.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quotation and
citation omitted). Listing 1.04 consists of:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis,
vertebral fracture), resulting in compromise of a nerve root (including cauda
equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory
or reflex loss and, if there is involvement of the lower back, positive straightleg raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report
of tissue biopsy, or by appropriate medically acceptable imaging, manifested
by severe burning or painful dysesthesia, resulting in the need for changes
in position or posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by
25
findings on appropriate medically acceptable imaging, manifested by chronic
nonradicular pain and weakness, and resulting in inability to ambulate
effectively, as defined in 1.00B2b.
20 C.F.R. Pt. 404, Subpt. P, app. 1.
Plaintiff appears to limit his arguments to the issues of “root nerve impingement
and arachnoiditis,” which correspond with the ALJ’s consideration of 1.04A and 1.04B.
Docket No. 17 at 15. 6 Nonetheless, the ALJ did not err in finding that plaintiff did not
meet the requirements of Listing 1.04. The ALJ concluded: “The claimant’s condition
does not meet the requirements of Listing 1.04 because there is no evidence of nerve
root compression characterized by a neuro-anatomic distribution of pain, motor loss
accompanied by sensory or reflex loss; or spinal arachnoiditis, or lumbar spinal stenosis
resulting in pseudoclaudication.” R. at 21. The ALJ specifically mentioned Listing 1.04
and expressed his findings in terminology mirroring listing 1.04. Cf. Clifton v. Chater, 79
F.3d 1007, 1009 (10th Cir. 1996) (“the ALJ did not discuss the ev idence or his reasons
for determining that appellant was not disabled at step three, or even identify the
relevant Listing”). Plaintiff cites to various MRI results that he claims demonstrate that
his impairments meet Listing 1.04. Docket No. 17 at 14-15. However, “[m]erely being
diagnosed with a condition named in a listing and meeting some of the criteria will not
qualify a claimant for presumptive disability under the listing.” McCoy v. Astrue, 648
F.3d 605, 611-12 (8th Cir. 2011). The listings define those impairments that would
“prevent an adult, regardless of his age, education, or work experience, from performing
6
Although plaintiff cites to an MRI that demonstrated moderate to severe lateral
stenosis, plaintiff does not appear to challenge the ALJ’s finding that he did not suffer
from lumbar spinal stenosis with the severity required to meet Listing 1.04. Docket No.
17 at 14-15.
26
any gainful activity, not just ‘substantial gainful activity.’” Sullivan v. Zebley, 493 U.S.
521, 532 (1990). Plaintiff’s citations to isolated phrases contained within MRI results is
insufficient to show that plaintiff met all the criteria for a finding of disability under Listing
1.04 and does not overwhelm the ALJ’s consideration of the MRI results, in their
entirety, as well as other medical evidence. See Musgrave, 966 F.2d at 1374. The
Court cannot conclude that the ALJ committed reversible error at step three.
Moreover, even if the ALJ’s decision at step three were insufficiently explained,
the ALJ’s findings at steps four and five “clearly reject any notion that Claimant suffers
from” the requirements of Listing 104 and, therefore, do not compel a remand. See
Fischer-Ross v. Barnhart, 431 F.3d 729, 734 (10th Cir. 2005). The ALJ noted that
plaintiff’s MRI from September 2008 revealed a herniated nucleus pulposus at L5-S1
with effacement of the left S1 nerve root and potential effacement of the right L5 nerve
root and left L4 nerve root. R. at 24 (citing R. at 499). In October 2008, an MRI
revealed minimal bulging at L4-5, but no significant canal stenosis and a left paracentral
disk extrusion at L5-SI with marked narrowing of the left lateral recess. Id. (citing R. at
604). A June 2009 MRI revealed early degenerative changes of the discs from L2-3
through L5S1, with displacement most severe at L5-S1. Id. (citing R. at 597). Plaintiff
underwent a diskectomy and laminectomy of L5-SI on June 25, 2009. R. at 24. An
August 2009 MRI revealed postoperative changes at L5-S1 with the possibility of
residual or recurrent disc material. R. at 563. A November 2009 MRI revealed postsurgical changes at L5-S1, but the granulation tissue surrounding the descending S1
nerve root and to a lesser degree the left L5 nerve root is stable. R. at 491. An EMG
27
test suggested chronic radicular disease at the right L4 level, but the examining
physician stated “I reviewed an MRI scan from 11/16/2009, that looked quite good.” R.
at 274. A March 2010 MRI revealed a left S1 traversing nerve root at the L5-S1 level,
posterior clumping of the nerve roots with a redundancy below L4-5, and post–surgical
granulation tissue at L5-S1. R. at 271.
Based on this evidence, the ALJ found that the medical evidence demonstrated
some “abnormalities of the lumbar spine, most prominent at L4-5 and L5-S1.” R. at 24.
The ALJ noted that, since his surgery, the L5-S1 disc appears stable although “soft
tissue granulation causes foraminal narrowing and another disc bulge at L4-5 causes
some neuroforaminal narrowing at that level as well.” Id. The ALJ also noted that
recurrent herniations or frank impingement of the nerve roots had not been visualized
and that there was no “active denervation,” which suggested that “nerve damage has
not been ongoing.” Id. The ALJ reviewed exam findings which indicated that plaintiff
suffered decreased sensation in the right lower extremity, tenderness to palpation of the
lumbar spine, limited range of motion of the lumbar spine, and positive straight leg raise
on the right. R. at 24-25. The ALJ stated that, while the exam findings could
reasonably cause some limitations in the ability to walk, stand, or lift heavy objects,
most exams have also revealed normal motor strength in the lower extremities, normal
reflexes, and no spasms. R. at 25. The ALJ noted that exams differ on plaintiff’s gait
and ability to ambulate. Id. The ALJ found that the exam findings suggest that plaintiff
“retains significant strength in the lower extremities, and thus should be able to perform
some moderate amount of lifting and carrying” and that plaintiff’s leg symptoms are not
as constant as he alleges, suggesting an ability to stand and walk for at least two out of
28
eight hours. Id. The ALJ’s confirmed findings at steps four and five “conclusively
preclude Claimant’s qualification under the listings at step three.” See Fischer-Ross,
431 F.3d at 735.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff Felix J. Villanueva
Cabrera was not disabled is AFFIRMED.
DATED March 26, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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