Megyese v. Commissioner of Social Security
MEMORANDUM DECISION AND ORDER Petitioner's Petition for Review (Dkt. 2 ) and Motion for Summary Judgment (Dkt. 15 ) are DENIED. The decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety, with prejudice. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
Case No. 1:13-cv-00356-REB
MEMORANDUM DECISION AND
CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration,
Now pending before the Court is Patricia Megyese’s Petition for Review (Dkt. 2) and
Motion for Summary Judgment (Dkt. 15), seeking review of the Social Security
Administration’s final decision to deny her claim for Title II Social Security Disability benefits
and Supplemental Security Income payments. The action is brought pursuant to 42 U.S.C.
§ 405(g). Having carefully reviewed the record and otherwise being fully advised, the Court
enters the following Memorandum Decision and Order:
I. ADMINISTRATIVE PROCEEDINGS
On January 26, 2011, Patricia Megyese (“Petitioner”) filed an application for Social
Security Disability benefits and Supplemental Security Income benefits, alleging a disability
onset date of February 1, 2009. Petitioner’s claims were initially denied, and denied again on
reconsideration on June 22, 2011. On July 22, 2011, Petitioner timely filed a Request for
Hearing before an Administrative Law Judge (“ALJ”). On May 31, 2012, ALJ John T. Molleur
held a hearing in Boise, Idaho, at which time Petitioner, represented by attorney Jessica Bublitz,
appeared and testified. A vocational expert, Anne F. Aastum, also appeared and testified.
MEMORANDUM DECISION AND ORDER - 1
On July 5, 2012, the ALJ issued a decision denying Petitioner’s claims, finding that
Petitioner was not disabled within the meaning of the Social Security Act. Petitioner timely
requested review from the Appeals Council. On July 26, 2013, the Appeals Council denied
Petitioner’s request for review, making the ALJ’s decision the final decision of the
Commissioner of Social Security. AR 1-3.
Having exhausted her administrative remedies, Petitioner timely filed the instant action,
arguing that the ALJ erred (1) by finding that Petitioner can stand and/or walk for a total of six
hours in an eight-hour workday; (2) by failing to accord “proper weight” to the opinion of a
physician’s assistant; and (3) by “improperly rejecting” Petitioner’s complaints. See Pet.’s Brief,
(Dkt. 16). Petitioner therefore requests that the Court enter a judgment “affirming, modifying, or
reversing” the Commissioner’s decision. See id. at p. 1.
II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. 42 U.S.C. § 405(g); Matney ex. rel. Matney v. Sullivan, 981
F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990).
Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42
U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ’s factual
decisions, they must be upheld, even when there is conflicting evidence. Hall v. Sec’y of Health,
Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
“Substantial evidence” is defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec’y of Health & Human
MEMORANDUM DECISION AND ORDER - 2
Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less
than a preponderance (see Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975);
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)), and “does not mean a large or
considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a whole
to determine whether it contains evidence that would allow a reasonable mind to accept the
conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019.
The ALJ is responsible for determining credibility and resolving conflicts in medical testimony
(see Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)), resolving ambiguities (see Vincent ex.
rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)), and drawing inferences
logically flowing from the evidence (see Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.
1982)). Where the evidence is susceptible to more than one rational interpretation in a disability
proceeding, the reviewing court may not substitute its judgment or interpretation of the record
for that of the ALJ. Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir.
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s
construction of the Social Security Act is entitled to deference if it has a reasonable basis in law.
See id. However, reviewing federal courts “will not rubber-stamp an administrative decision that
is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying
the statute.” Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
MEMORANDUM DECISION AND ORDER - 3
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a
sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§
404.1520, 416.920) - or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) - within
the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). SGA is
defined as work activity that is both substantial and gainful. “Substantial work activity” is work
activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a),
416.972(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not
a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA,
disability benefits are denied, regardless of how severe her physical/mental impairments are and
regardless of her age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If
the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ
found that Petitioner has not engaged in substantial gainful activity since January 26, 2011,
Petitioner’s application date. AR 84.
The second step requires the ALJ to determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is severe and meets the duration
requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination
of impairments is “severe” within the meaning of the Social Security Act if it significantly limits
an individual’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c).
MEMORANDUM DECISION AND ORDER - 4
An impairment or combination of impairments is “not severe” when medical and other evidence
establish only a slight abnormality or a combination of slight abnormalities that would have no
more than a minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921.
If the claimant does not have a severe medically determinable impairment or combination of
impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the
ALJ determined that Plaintiff’s diabetes with retinopathy and neuropathy, left shoulder strain,
and history of substance abuse were severe impairments. AR 84.
The third step requires the ALJ to determine the medical severity of any impairments;
that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
answer is yes, the claimant is considered disabled under the Social Security Act and benefits are
awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor
equal one of the listed impairments, the claimant’s case cannot be resolved at step three and the
evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner’s impairments,
while severe, do not meet or medically equal, either singly or in combination, the criteria
established for any of the qualifying listed impairments. AR 84.
The fourth step of the evaluation process requires the ALJ to determine whether the
claimant’s residual functional capacity is sufficient for the claimant to perform past relevant
work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s residual functional
capacity is his ability to do physical and mental work activities on a sustained basis despite
limitations from his impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual’s
past relevant work is work performed within the last 15 years or 15 years prior to the date that
MEMORANDUM DECISION AND ORDER - 5
disability must be established; also, the work must have lasted long enough for the claimant to
learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b),
404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner has the residual
functional capacity to perform a limited range of unskilled light work. She can stand/walk for
six hours and sit for six hours in an eight-hour workday, but cannot climb ladders, ropes, or
scaffolds, or be at unprotected heights. She can only occasionally reach overhead with her left
upper extremity, but can frequently bend, stoop, kneel, crawl, and crouch. AR 85. Additionally,
she is unable to perform any past relevant work. AR 87.
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of his impairments, the burden shifts to the Commissioner to show
that the claimant retains the ability to do alternate work and to demonstrate that such alternate
work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th
Cir. 1993). If the claimant is able to do other work, she is not disabled; if the claimant is not able
to do other work and meets the duration requirement, she is disabled. Here, the ALJ found that
Petitioner is capable of performing work found in significant numbers within the relevant
economy, such as housekeeping and working as a router. AR 88. Therefore, based on
Petitioner’s age, education, work experience, and residual functional capacity, the ALJ
concluded that Petitioner was not under a disability as defined in the Social Security Act from
January 26, 2011 through the date of his decision. AR 89.
MEMORANDUM DECISION AND ORDER - 6
The Court will consider Petitioner’s arguments in an order that differs from how
Petitioner presented them because, as a threshold matter, the ALJ’s credibility finding impacts
the other issues raised, as they pertain to this decision on appeal.
Petitioner takes issue with the ALJ’s credibility finding. See Pet.’s Brief (Dkt. 16). The
ALJ found, “[a]fter careful consideration of the evidence,” that Petitioner’s medically
determinable impairments could reasonably be expected to cause the alleged symptoms, but that
her “statements concerning the intensity, persistence and limiting effects of these symptoms are
not credible to the extent they are inconsistent with the . . . residual functional capacity
assessment”. AR 85.
As the trier of fact, the ALJ is in the best position to make credibility determinations and,
for this reason, his determinations are entitled to great weight. See Anderson v. Sullivan, 914
F.2d 1121, 1124 (9th Cir. 1990). In evaluating credibility, the ALJ may consider the claimant’s
reputation, inconsistencies either in testimony or between testimony and conduct, daily
activities, past work record, and testimony from physicians and third parties concerning the
nature, severity, and effect of the alleged symptoms. See Light v. Social Security Admin., 119
F.3d 789, 791 (9th Cir. 1997). Ultimately, “credibility decisions are the province of the ALJ.”
Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Nonetheless, the ALJ must make reasoned
and defensible decisions about discrediting a claimant’s testimony. Among other things, the
ALJ must make specific findings stating clear and convincing reasons for doing so. See Holohan
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v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 722
(9th Cir. 1998)).
Here, the ALJ concluded first from the record before him that the Petitioner had “not
been particularly compliant with her diabetes care.” AR 86. “[U]nexplained, or inadequately
explained, failure to seek treatment or follow a prescribed course of treatment” may be
considered in weighing a claimant’s credibility. Orn v. Astrue, 495 F.3d 625, 636 (9th Cir.
2007). The Petitioner was incarcerated for part of the time she claims disability and therefore
did not have complete control over her own medical care. However, when not incarcerated and
being treated for her diabetes, her provider made particular note that Petitioner’s condition had
“[d]eteriorated” but she was “not fully complying with diet or directions” (AR 319 (11/29/11
visit)); “admits she has been eating more carbs than she should” (AR 315); and that most of her
“high blood sugars occur when she eats inappropriate foods” (AR 332 (9/2/11 visit)).1
Petitioner’s medical provider also advised her to quit smoking and prescribed medication which
Petitioner did not pick up, stating: “I don’t know why, I just haven't done it!” AR 325. Thus,
there is evidence in the medical record supporting the ALJ’s view that Petitioner had not been
particularly compliant with her medical care.
Additionally, the ALJ properly considered the absence of objective medical evidence to
support some of Petitioner’s claimed limitations, notwithstanding Petitioner’s testimony to the
contrary, when assessing her credibility. Compare AR 28 (Petitioner’s testimony that she had
reported back pain and trouble walking at visits other than the last visit) with the medical records
Petitioner indicated that she was agreeable to trying her medication at mealtime for
better control of her diabetes and was advised how to do it. AR 319.
MEMORANDUM DECISION AND ORDER - 8
(AR 274-319). See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (lack of medical
evidence cannot be sole basis for discounting pain testimony, but can be considered in credibility
analysis); 20 C.F.R. § 416.929(a) (in determining disability, “we consider all your symptoms,
including pain, and the extent to which your symptoms can reasonably be accepted as consistent
with the objective medical evidence, and other evidence.”); Johnson v. Shalala, 60 F.3d 1428,
1434 (9th Cir. 1995) (“contradictions between claimant’s testimony and the relevant medical
evidence” provided clear and convincing reason to reject Petitioner’s subjective symptom
Petitioner contends that she often complained of shoulder pain; however, the first notes in
her medical record regarding back pain appeared the same day she asked her physician’s
assistant (“PA”) to complete a disability assessment for purposes of filing a claim for disability.
AR 309-10. Even though the Petitioner relies heavily upon the physician’s assistant who most
often treated her to support her argument on appeal, the disability assessment form contains
instances which suggest strongly that the provider was skeptical of portions of Petitioner’s self
history, including this statement: “[Petitioner] feels she cannot walk more than a block without
significant back pain, which has never been discussed.” AR 309 (emphases added). The ALJ
had entirely supportable reasons to conclude that this comment and the first mention of
significant back pain not having occurred until the PA was asked to complete the disability
assessment made Petitioner “less than fully credible” as to such allegations of back pain and
limitations upon walking. AR 87. Similarly, even though the ALJ did not provide multiple
reasons for making his credibility determination in the direction that he did, the reasons that he
did describe are sufficient as a matter of law for his finding that Petitioner’s testimony was not
MEMORANDUM DECISION AND ORDER - 9
Of course, the Petitioner has sought to highlight evidence auguring in favor of a more
favorable view of her credibility than that reached by the ALJ. The ALJ was not swayed by such
evidence, and although the Petitioner would ask the Court here to be so swayed, the ALJ’s
decision to doubt Petitioner’s credibility in denying disability benefits has clear and convincing
reasons in support. As required by controlling law, the ALJ will not be second-guessed here as
to his credibility determination.2 See Batson v. Comm’r of Social Security Admin., 359 F.3d
1190, 1193 (9th Cir. 2004) (“[T]he Commissioner’s findings are upheld if supported by
inferences reasonably drawn from the record, and if evidence exists to support more than one
rational interpretation, we must defer to the Commissioner’s decision.”) (internal citations
omitted). Therefore, the Court will not substitute its judgment when the evidence in the record
can support the ALJ’s findings.
The ALJ also commented that Petitioner contended a “cost issue” prevented her from
being particularly complaint with her diabetes care, AR 86, but the Court finds this comment
does not support the ALJ’s credibility finding. Petitioner should not be penalized for any issues
the cost of medicine might have caused for her ability to comply. However, the ALJ
appropriately relied on medical records revealing that Petitioner’s compliance issue related also
to diet and indicating that Petitioner might have improved her prognosis by following the PA’s
diet recommendations. Moreover, at the hearing, it appears Petitioner was concerned with her
future ability to afford her medications and did not contend she had not been compliant with the
PA’s recommendations due to a cost issue. She testified that she was worried about how to pay
for her medications because she had been on a “homeless grant” but “that’s done with.” She
asked the ALJ if there was a way for her to get assistance with her medications while she waited
for the ALJ’s decision and the ALJ responded that he thought there were programs out there for
diabetics. AR 53. Petitioner again expressed concern, noting that she takes several medications
each day, and not just for diabetes, and she wanted to find a way to help pay for that because her
grant expired. AR 54. This exchange describes a concern with affording medications going
forward, not an assertion that Petitioner had not in the past been compliant with her P.A.’s
instructions because of the cost of her diabetes medication.
MEMORANDUM DECISION AND ORDER - 10
The ALJ’s Treatment of the PA’s Opinion
Petitioner also argues that the ALJ failed to accord proper weight to opinion evidence
offered by Physician’s Assistant Julia Barcelo (“PA”). Pet’s Br., pp. 2-3 (Dkt. 16). Petitioner
first claims that the PA’s opinion should be given controlling weight because “there was no
contradictory evidence in the file.” Id. at p. 3. However, the assessments of two reviewing
physicians were consistent with the ALJ’s residual functional capacity assessment, particularly
with regard to Petitioner’s ability to stand or walk for six hours in an eight hour workday. (AR
The ALJ appropriately treated the PA as an “other source” and did not error in giving
“little weight” to her medical opinion. AR 87. The Court acknowledges that a legal rule which
does not give the same deference to a physician assistant as to a treating physician arguably is
another of the medical care conundrums that sometimes hamper disability applicants. Disability
applicants are often among those least able to pay for medical care and so therefore may also be
among those who sometimes cannot afford to seek medical care even when in need, or may be
among those most often seen in the low-income clinics and by medical professionals other than a
medical doctor, such as a PA. Nonetheless, for reasons not necessarily undermined by the
circumstances described above, physician’s assistants are defined as “other sources,” and are not
entitled to the same deference as physicians. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.
2012) (citations and internal quotation marks omitted).3
The Court also recognizes that there are good reasons for recognizing the opinion of a
physician’s assistant who provides regular treatment to a patient. However, the regulations at
this time do not require an ALJ to treat a physician assistant’s medical opinion the same as that
of a treating physician.
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Importantly, the ALJ “may discount testimony from these other sources if the ALJ gives
reasons germane to each witness for doing so.” Id. (quoting Turner v. Comm'r of Soc. Sec., 613
F.3d 1217, 1224 (9th Cir. 2010) (internal quotation marks omitted)). The ALJ concluded that
some of the limitations the PA assessed were based on Petitioner’s self reports which were less
than credible. AR 87. The ALJ further reasoned that the PA’s opinion was undermined by the
lack of evidence that Petitioner had ever presented with or been treated for difficulties associated
with an alleged inability to walk significant distances, and that neither the PA and Petitioner
described any explanation as to why Petitioner could not tolerate stress in the workplace. Id.
These reasons are germane and support the ALJ’s consideration of the PA’s opinion in this case.
Moreover, even if the disability opinion had been that of a physician rather than the
physician assistant, a material conflict between treatment notes and a treating provider’s opinion
may constitute an adequate reason to discredit the opinions of a treating physician or another
treating provider. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009)
(explaining that a conflict with treatment notes is a specific and legitimate reason to reject
treating physician's opinion). Petitioner’s report of significant back pain, that she claimed
limited her ability to walk, was based on her self report, yet there is no indication in the medical
records that Petitioner had a back condition that would cause such pain. Petitioner was diagnosed
with neuropathy and had some diminished sensation in her feet, but it was back pain – not foot
pain or foot problems – which she gave as the reason she could not walk more than one block.
AR 309. From the view of the ALJ, the medical records contained “no mention of an inability to
walk distances” from these conditions, “except for [Petitioner’s] own report. AR 87.
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Petitioner’s Alleged Impairments and Her Residual Function Capacity
The ALJ’s Residual Function Capacity (“RFC”) found that Petitioner can stand and/or
walk for a total of six hours in an eight-hour work day. The Petitioner contends that finding is
not supported by substantial evidence. Pet’s Br., pp. 1-2 (Dkt. 16). An RFC determination
identifies the “most” that a claimant can do, given her impairments and limitations. Social
Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *1. In assessing a claimant’s residual
functional capacity, the ALJ must consider the whole record and weigh the medical and
testimonial evidence. Id. See also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
Part and parcel with her diabetes, Petitioner has diabetic complications now and may
have worsening complications in the future that could affect her ability to work. The ALJ
acknowledged as much, explaining that Petitioner “does experience some level of pain and
limitations,” but he concluded that such limitations as of the time he made his decision are not
completely disabling (AR 87). The ALJ set out the limitations claimed by the Petitioner, such as
an inability to walk significant distances, but found that “the lack of documentation of treatment
for this problem until . . . [the PA was asked] to complete the [disability] questionnaire renders
[her] allegations less than fully credible.” AR 87. As previously set out, the ALJ properly
supported his credibility determination and rejected portions of the PA’s opinion. And his
decision in that regard is buttressed for purposes of this review by the fact that the state agency
medical consultants came up with the same RFC assessment with regard to Petitioner’s ability to
stand and/or walk for a total of six hours in an eight-hour workday. AR 62-64; 73-75.
For all these reasons, the Court is not persuaded that by Petitioner’s argument that the
ALJ failed to properly assess the full impact of her diabetes and other conditions. There is
MEMORANDUM DECISION AND ORDER - 13
substantial (even if not unequivocal) evidence that supports the ALJ’s decision rejecting
Petitioner’s claim that she could not walk more than a block or more than 6 hours in an eighthour workday. There is substantial (even if not unequivocal) evidence that supports the manner
in which the ALJ weighed the evidence, the manner in which the ALJ drew conclusions from
such evidence, and his final decisions upon the legal issues that turned upon such evidence was
consistent with the applicable standards of law. In such a setting, there is no place for this Court
to substitute its judgment for that of the ALJ’s, even if this Court were persuaded that
Petitioner’s assessment of the record and the ALJ’s handling of the same was the better of two
different viewpoints, both supported by the same record. See Richardson, 402 U.S. at 401; see
also Matney, 981 F.2d at 1019.
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences
from facts and determining credibility. See Allen, 749 F.2d at 579; Vincent ex. rel. Vincent, 739
F.2d at 1394; Sample, 694 F.2d at 642. If the evidence is susceptible to more than one rational
interpretation, one of which is that put forward by the ALJ, a reviewing court may not substitute
its interpretation for that of the ALJ. See Key, 754 F.2d at 1549. Here, the ALJ’s decision as to
Petitioner’s alleged disability is based on proper legal standards and supported by substantial
evidence. Therefore, the Court concludes that the decision that Petitioner is not disabled within
the meaning of the Social Security Act is supported by substantial evidence in the record and is
based upon an application of proper legal standards.
Accordingly, the Commissioner’s decision is affirmed.
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Based on the foregoing, Petitioner’s Petition for Review (Dkt. 2) and Motion for
Summary Judgment (Dkt. 15) are DENIED. The decision of the Commissioner is AFFIRMED,
and this action is DISMISSED in its entirety, with prejudice.
DATED: January 28, 2015.
Honorable Ronald E. Bush
U. S. Magistrate Judge
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