Kramer v. Commissioner of Social Security
Filing
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OPINION entered by Judge Richard Mills on 03/28/2016. SEE WRITTEN OPINION. The Court concludes that the ALJ's decision is supported by substantial evidence. Ergo, the Plaintiff's Motion for Summary Judgment (d/e 11 ) is DENIED. The Defendant's Motion for Summary Affirmance (d/e 16 ) is ALLOWED. The Clerk will enter a Judgment affirming the decision of the Commissioner of Social Security. (DM, ilcd)
E-FILED
Tuesday, 29 March, 2016 03:00:45 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
BRIAN C. KRAMER,
Plaintiff,
v.
CAROLYN W. COLVIN,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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NO. 13-3042
OPINION
RICHARD MILLS, U.S. District Judge:
Brian Kramer filed claims for disability insurance benefits and
supplemental security income.
Following denial of the claims, the Plaintiff sought judicial review
under 42 U.S.C. § 405(g).
Pending are two motions: the Plaintiff’s for Summary Judgment and
the Defendant’s for Summary Affirmance.
I. BACKGROUND
Brian Kramer was born on March 24, 1962, and was 39 years old at
the time of his alleged onset date, on April 1, 2001. The Plaintiff, who is
a high school graduate, alleges a number of medical problems.
These
include borderline intellectual functioning, bipolar disorder with psychotic
features, borderline personality disorder, status post right ankle surgery and
chronic pain. The Plaintiff now lives with his father in Florida.
A. Plaintiff’s testimony
The Plaintiff testified at the hearing before Administrative Law Judge
Joseph Rose (the “ALJ”). Prior to moving to Florida, the Plaintiff had done
some seasonal work and a few odd jobs. The Plaintiff decided to file for
disability after being told by his doctor he is “high-strung, bipolar [and]
depressed.” He had also broken his collarbone at work. The Plaintiff
testified his neck gets stiff after working for fifteen to twenty minutes. He
also has had problems with a knee, ankle and heel. The Plaintiff was no
longer taking medication for these problems due to transportation issues.
The Plaintiff testified that “high strung” refers to getting loud at
times. Although he did not know what triggered it, the Plaintiff testified
he had mood swings from being bipolar.
2
At times, the Plaintiff feels
particularly low due to the depression. On those occasions, the Plaintiff
would sit around and not do anything. The Plaintiff testified he took
medication daily for depression and bipolar, which sometimes helped.
The Plaintiff testified that although he has a driver’s license, he does
not own a car so he rode the bus for transportation. He has a couple of
friends with whom he enjoys spending time. The Plaintiff enjoyed hunting
and fishing but has not engaged in those activities in years.
The Plaintiff testified that he has a high school diploma. However,
some records indicate he has a history of special education and cannot spell
and does not read or write. The Plaintiff had trained for a Certified Nurses’
Aid program twenty years earlier. That involved mostly hands-on training
which required him to write only blood pressure readings.
The Plaintiff testified he also felt anxiety tied to his blood pressure.
Counsel observed that Plaintiff was shaking frequently. The Plaintiff stated
he did not know what causes it but he does that “all the time.” The
Plaintiff also reported that he was paranoid, thinking he’s hearing things
and looking around because people are “getting shot and stabbed and you
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can never tell about anything” these days.
The Plaintiff testified that he had not used cocaine, marijuana or
alcohol in about three or four months. He was able to stop using those
substances on his own once he stopped hanging around with the wrong
crowd.
The Plaintiff testified that he does his own shopping. He bathes or
showers at least every other day. The Plaintiff’s father transported him to
the hearing.
Counsel for the Plaintiff presented an exhibit, which was a CT scan
of the Plaintiff’s brain showing mild to moderate cerebral atrophy. He also
introduced evidence of the Plaintiff’s diagnosis of bipolar disorder with
severe psychosis. Counsel further noted that Plaintiff’s Global Assessment
of Functioning (“GAF”) scores were consistently 50 or less.1
B. Medical evidence
According to the American Psychiatric Association’s Diagnostic and
Statistical Manual of Mental Disorders, 4th ed., Text Revision (2000), a GAF
of 41-50 indicates “serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) or any serious impairment in social, occupational,
or school functioning (e.g., no friends, unable to keep a job).”
1
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From January of 2003 through February of 2005, the Plaintiff notes
that he had GAF scores of 45, 48, 49, 52, 52, 49, 50, 50, 50, 58, 60, 55,
60, 56, 60, 44, 55, 60, 55 and 52.
From February of 2007 through August of 2007, the Plaintiff’s GAF
scores were 50, 45, 50, 50, 50, 50, 50 and 50.
From November of 2007 through February of 2010, the Plaintiff’s
GAF scores were 50, 50, 50, 50, 47, 50, 48, 48, 48, 48, 48, 48, 50, 50, 50,
50, 48, 43, 45 and 48.
In June of 2009, examining psychologist Dr. Christopher Jean
observed the Plaintiff was alert, oriented, cooperative and appropriate. Dr.
Jean found the Plaintiff’s attention and concentration were within normal
limits. No gross impairment in memory functioning was noted, based on
the Plaintiff’s ability to recall recent and remote events. He was able to
perform simple mental exercises. Dr. Jean found that Plaintiff is capable of
managing his own funds. Social functioning is marginal based on reports
of limited interactions with the same age peer group. Additionally, Dr. Jean
determined that functional ability is significantly impaired based on the
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Plaintiff’s bipolar features. He determined a GAF of 50.
In July of 2009, state agency consultant Eric Wiener, Ph.D., reviewed
the record and found that Plaintiff had a moderate restriction of activities
of daily living; moderate difficulties in maintaining social functioning;
moderate difficulties in maintaining concentration, persistence and pace;
and no episodes of decompensation of extended duration. Dr. Wiener
noted previous arrests and found that Plaintiff had moderate limits in his
capacity to deal with others, the public and supervisors in an appropriate
manner, given his legal history. Dr. Wiener noted the Plaintiff could follow
simple directions but may require occasional repetition. He is able to
concentrate for two hours out of an eight hour day. The Plaintiff would
perform better in a job with limited work-related changes and clear jobrelated duties specified.
In December of 2009, state agency consultant Pamela D. Green,
Ph.D., reviewed the record and noted that Plaintiff had a moderate
restriction of activities of daily living; moderate difficulties in maintaining
social functioning; moderate difficulties in maintaining concentration,
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persistence or pace; and no episodes of decompensation of extended
duration. Dr. Green noted that Plaintiff would be able to understand and
remember simple instructions, but might have difficulties with more
detailed instructions. She further opined that Plaintiff would be able to
complete simple tasks and work procedures, and make work decisions but
might have difficulty with maintaining attention and concentration for
extended periods and at times may have difficulties following detailed
instructions.
Dr. Green noted that Plaintiff was mentally capable of
performing basic routine tasks on a sustained basis, if he continued taking
his medication. Dr. Green noted the Plaintiff’s history of being socially
inappropriate and difficulty with authority. Accordingly, she opined that
he might prefer to work outside of direct contact with the public.
From June of 2010 through February of 2011, the Plaintiff’s GAF
scores were 50, 50, 50, 50, 50 and 50. The Plaintiff reported taking his
medication but still having mood swings, hearing voices, paranoia when out
in public, some rambling, some anxiety, limited memory and little
socialization.
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In February of 2011, the Plaintiff’s mental status exam from Park
Place Behavioral Health Care showed that Plaintiff was cooperative and his
thought process was logical. The Plaintiff reported being depressed and
said that his anxiety was the same.
In July of 2011, Kenneth L. Hobby, Ph.D., found the Plaintiff to be
cooperative, attentive, appropriate and pleasant. Although the Plaintiff
exhibited no tearfulness, hyperactivity or explosive behavior, Dr. Hobby
noted the Plaintiff’s mood during the interview was a little depressed and
relaxed. He opined that Plaintiff’s mood symptoms have in the past likely
been induced or influenced by substance use.
Dr. Hobby noted no
problems in the Plaintiff’s thought processes or thought content. He found
that Plaintiff appears to have the intellectual capacity to learn some simpler
semi-skilled work-like tasks. Dr. Hobby stated that Plaintiff appeared to be
a rather unusual individual who would likely function well with minimum
supervision. He opined that Plaintiff had the ability to understand, carry
out, and remember basic work-like tasks and had no significant limitations
in his ability to attend and sustain concentration on basic work-like tasks.
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His pace was normal, steady and appropriate for completing such tasks.
On a mental assessment form, Dr. Hobby found no limitations in the
Plaintiff’s abilities to understand, remember and carry out simple
instructions, and to make judgments on simple work-related decisions. Dr.
Hobby indicated mild limitations in the Plaintiff’s abilities to understand,
remember and carry out complex instructions, and to make judgments on
complex work-related instructions.
Dr. Hobby found that Plaintiff’s
interview suggested antisocial and borderline personality traits.
C. ALJ’s decision
The ALJ found that Plaintiff has the following severe impairments:
borderline intellectual functioning, bipolar disorder and status post right
ankle surgery. The ALJ found that Plaintiff does not have an impairment
or combination of impairments that meets or medically equals the severity
of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1.
The ALJ cited the opinions of Drs. Wiener and Green, who assessed
a moderate limitation within the area of functioning. The ALJ relied on the
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opinion of Dr. Hobby, who examined the Plaintiff, and did not identify any
areas in adaptive functioning in which the Plaintiff had significant
limitations. The ALJ agreed with Dr. Hobby that Plaintiff’s limitation as
to social functioning is no more than mild. The ALJ gave significant weight
to the state agency opinions as to the Plaintiff’s mental limitations, though
he accorded the greatest weight to the opinion of Dr. Hobby.
The ALJ
determined that Plaintiff had moderate difficulties with regard to
concentration, persistence or pace.
The ALJ further found that the Plaintiff had the residual functional
capacity to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) with the following limitations: occasional climbing of ramps,
stairs, ropes, ladders, and scaffolds. The Plaintiff would be limited to
occasional balancing; limited to frequent stooping, kneeling, crouching and
crawling; limited to frequent overhead reaching with the right upper
extremity; due to moderate limitations in concentration, persistence or
pace.
The ALJ found that Plaintiff is limited to understanding and
remembering simple 1-2 step instructions and carrying out simple 1-2 step
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routine and repetitive tasks; and was limited to occasional interaction with
the public.
The ALJ noted no episodes of decompensation of an extended
duration. Because the Plaintiff’s mental impairments had not caused at
least two “marked” limitations or one “marked” limitation and “repeated”
episodes of decompensation, each of extended duration, the ALJ found that
the “paragraph B” criteria (“paragraph D” criteria of listing 12.05) are not
satisfied. The ALJ also found the evidence did not establish the presence
of “paragraph C” criteria.
The ALJ found that Plaintiff was unable to perform any past relevant
work. The Plaintiff had previously worked as a plumbing supervisor and air
conditioning installer.
Based on the Plaintiff’s age, education, work experience and RFC, the
ALJ found there were jobs that exist in significant numbers in the national
economy that Plaintiff can perform.
The ALJ presented the vocational expert with the following
hypothetical: (1) an individual of the claimant’s age, education and work
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experiences; (2) limited to light work as defined by the regulations; (3) only
occasional climbing of ramps and stairs, ladders, ropes or scaffolds, and
balancing; (4) frequent stooping, kneeling, crouching and crawling; (5)
frequent overhead reaching with right upper extremity; (6) limited to
understanding and remembering simple one and two-step routine and
repetitive tasks; and (7) only occasional interaction with the public. The
vocational expert testified that although such an individual could not do
the Plaintiff’s past relevant work, he could perform jobs such as tagger and
street cleaner.
The ALJ also presented the vocational expert with a second
hypothetical: (1) an individual of the claimant’s age, education and work
experiences and (2) who is unable to engage in sustained work activity on
a regular and consistent basis. The vocational expert testified no work
would be available to an individual with such limitations.
Based on the testimony of the vocational expert, the ALJ found that
Plaintiff would be able to perform jobs such as tagger and street cleaner,
both of which qualify as light work at the unskilled level. The vocational
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expert testified there are approximately 289,000 jobs nationally and 7,900
in Florida as a tagger. There are approximately 525,000 jobs nationally and
20,000 in Florida as a street cleaner.
Based on the foregoing, on September 12, 2011, the ALJ found that
Plaintiff had not been under a disability, as defined in the Social Security
Act, since April 1, 2001.
On January 22, 2013, the Appeals Council issued a decision finding
no basis to review the ALJ’s decision.
II. DISCUSSION
A. Standard of review
When, as here, the Appeals Council denies review, the ALJ’s decision
stands as the final decision of the Commissioner. See Schaaf v. Astrue, 602
F.3d 869, 874 (7th Cir. 2010). The Act specifies that “the findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive.” 42 U.S.C. § 405(g). “Substantial evidence”
is defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Yurt v. Colvin, 758 F.3d 850, 856 (7th
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Cir. 2014) (citations omitted). Although the Court’s task is not to re-weigh
evidence or substitute its judgment for that of the ALJ, the ALJ’s decision
“must provide enough discussion for [the Court] to afford [the Plaintiff]
meaningful judicial review and assess the validity of the agency’s ultimate
conclusion.” Id. at 856-57.
The Plaintiff contends that the decision of the Commissioner is not
supported by substantial evidence. The Plaintiff alleges: (1) the ALJ erred
in determining the Plaintiff’s combination of mental impairments did not
equal Listing 12.04 or 12.06; (2) although the ALJ found that Plaintiff has
severe mental impairments, his RFC assessment does not consider how
these impairments affect his functional ability as required by SSR 96-8p;
and (3) the ALJ erred by not finding the Plaintiff’s testimony to be
substantially credible.
B. Plaintiff’s impairments and Listing 12.04
The Plaintiff notes that while the ALJ found that Plaintiff’s mental
impairments satisfied the diagnostic criteria of Listing (of Impairments)
12.04 or 12.06, he found that Plaintiff’s mental impairments did not meet
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the Part B criteria. Part B requires the Plaintiff’s impairments result in two
of the following four criteria: (1) marked restriction of activities of daily
living; (2) marked difficulties in maintaining social functioning; (3) marked
difficulties in maintaining concentration, persistence or pace; and (4)
repeated episodes of decompensation, each of extended duration. See 20
C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(b). The Plaintiff contends there
is evidence of marked difficulties in each of the first three criteria.
As the Commissioner notes, Listing 12.06 references anxiety-related
disorders. Although the Plaintiff has reported anxiety, it does not appear
that any medical source has diagnosed him with anxiety. Accordingly, the
Court concludes that Listing 12.06 is not at issue in this case.
The Plaintiff must show that his condition satisfied all of the specific
criteria of Listing 12.04 or that it was at least equal in severity and duration
to the criteria. See Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004)
(stating that an “applicant must satisfy all of the criteria in the Listing in
order to receive an award of disability insurance benefits and supplemental
security income under step three.”).
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The Plaintiff alleges that the objective evidence supports marked
limitations in the three functional areas, as well as episodes of
decompensation. However, the ALJ discussed at length his findings that
Plaintiff had mild restrictions in activities of daily living; mild difficulties
in social functioning; moderate difficulties with concentration, persistence
or pace; and no episodes of decompensation of extended duration. In
evaluating the Plaintiff’s mental condition, the ALJ’s decision cited evidence
in the record, including objective medical evidence, opinion evidence and
other evidence in concluding that Plaintiff’s impairments did not meet or
medically equal Listing 12.04.
The Plaintiff has not shown that he meets all of the specified criteria
of Listing 12.04.
The evidence does not establish that his mental
impairments meet or equal the listing. Accordingly, the Court concludes
that the ALJ’s findings are supported by substantial evidence.
C. Plaintiff’s mental impairments and RFC
The Plaintiff alleges that, although the ALJ determined he has severe
mental impairments, his RFC assessment does not consider how these
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impairments affect his functional ability as required by Social Security
Ruling 96-8p. The Plaintiff has a history of a GAF score of 50 or below.
Additionally, little consideration is given to the Plaintiff’s borderline
intellectual functioning, brain atrophy and history of special education.
The Plaintiff contends the RFC finding does not account for all of his
limitations based on the objective evidence and testimony.
The record shows that the ALJ considered the evidence related to the
Plaintiff’s impairments and accounted for these limitations due to moderate
limitations in concentration, persistence or pace. The Plaintiff was limited
to understanding and remembering simple 1-2 step instructions and
carrying out simple 1-2 step routine and repetitive tasks, and limited to
occasional interaction with the public.
The Plaintiff does not identify what additional limitations are
necessary due to his borderline intellectual functioning, brain atrophy and
history of special education. He does not cite evidence supporting his
claims that he was unable to work.
The ALJ cited the mental health medical evidence and non-medical
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evidence which showed that Plaintiff had the ability to work despite his
impairments. He considered the Plaintiff’s mental status exams at Park
Place Behavioral Center, which the ALJ found showed the Plaintiff was
alert, oriented and cooperative. The ALJ found that despite the Plaintiff’s
“mild to moderate” cerebral atrophy shown in an earlier CT scan, the
Plaintiff performed within the borderline range of intelligence during his
exam with Dr. Hobby.
The ALJ found that Plaintiff’s psychiatric symptoms decreased with
abstinence from substances and compliance with medication and treatment.
Dr. Hobby had opined that Plaintiff’s symptoms in the past may have been
induced or influenced by substance abuse. Accordingly, the ALJ’s RFC
finding is supported by objective medical evidence.
The ALJ gave little consideration to the Plaintiff’s GAF scores, stating
that while they were considered, the scores had little bearing upon the
overall assessment of the Plaintiff’s ability to perform the mental
requirements of work activities.
The ALJ’s summary dismissal of the GAF scores is troubling in that
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it reflects an apparent tendency of some administrative law judges to
discount evidence which is favorable to claimants. Here, although the most
recent GAF scores were consistently 50 or less, the ALJ does not mention
any specific scores. In Czarnecki v. Colvin, 595 F. App’x 635 (7th Cir.
2015), the Seventh Circuit observed:
The ALJ did not mention any of the GAF scores from any
physicians who examined Czarnecki, even though all of her
GAF scores after the alleged onset of disability were between 40
and 50. As in another recent case, the problem here was the
ALJ’s “larger general tendency to ignore or discount” favorable
evidence, “which included GAF scores from multiple physicians
suggesting a far lower level of functioning” than the ALJ
assigned.
Id. at 643 (citation omitted).
However, the Commissioner correctly alleges that an ALJ need not
give any weight to a GAF score. See Denton v. Astrue, 596 F.3d 419, 425
(7th Cir. 2010) (“GAF scores . . . are measures of both severity of
symptoms and functional level.
Because the final GAF rating always
reflects the worse of the two, the score does not reflect the clinician’s
opinion of functional capacity.
Accordingly, nowhere do the Social
Security regulations or case law require an ALJ to determine the extent of
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an individual’s disability based entirely on his GAF score.”) (citations and
internal quotations omitted).
As the Court has noted, however, ALJ does address other evidence in
the record which supports the finding that Plaintiff has only mild limits in
activities of daily living and social functioning. Specifically, the ALJ’s
reliance on Dr. Hobby’s opinion was reasonable and supported by evidence
in the record. The ALJ also gave consideration to the opinions of Drs.
Wiener and Green who found that, despite certain limitations, the Plaintiff
was capable of work.
The ALJ properly accommodated the Plaintiff’s limitations by
restricting the Plaintiff to work with limitations to understanding and
remembering simple 1-2 step instructions, carrying out 1-2 step routines
and repetitive tasks, and occasional interaction with the public, i.e., not
requiring a high degree of concentration, persistence or pace. The ALJ
reasonably relied on the opinions of Drs. Wiener and Green and properly
incorporated the limitation regarding interaction with the public into his
RFC finding.
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The ALJ also discussed the Plaintiff’s daily activities and routine,
which also support the mental RFC finding.
For these reasons, the Court concludes that the ALJ appropriately
evaluated the evidence and explained his rationale based on the facts of the
record.
Thus, he built a logical bridge between his decision and the
evidence. The Court concludes that the ALJ’s RFC finding is supported by
substantial evidence.
D. ALJ’s credibility finding as to Plaintiff
The Plaintiff notes that the ALJ used boilerplate credibility language
that is found in many unfavorable decisions. The ALJ stated:
After careful consideration of the evidence, the undersigned
finds that the claimant’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms;
however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above
residual functional capacity assessment.
See Tr. 23. The United States Court of Appeals for the Seventh Circuit has
criticized this or similar language that frequently appears in ALJ’s opinions
as “meaningless boilerplate.” See Parker v. Astrue, 597 F.3d 920, 922 (7th
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Cir. 2010).
The use of the often-criticized boilerplate language by itself is not
enough to warrant reversal and support a finding of disability. The use of
such language is harmless if the ALJ provides additional reasons for his
finding. See Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012); Shideler
v. Astrue, 688 F.3d 306, 311-12 (7th Cir. 2011). Thus, a remand is not
necessary if the ALJ’s credibility assessment is otherwise supported.
Here, the ALJ did consider the objective medical evidence and other
evidence in finding that Plaintiff’s complaints were not entirely credible.
Pursuant to the applicable regulations, the ALJ considered the Plaintiff’s
medication, effectiveness of treatment, record inconsistencies and his
activities of daily living.
The ALJ determined that the mental health
evidence in the record was inconsistent with the Plaintiff’s allegations
regarding the severity of his impairments. Upon considering the evidence,
the ALJ determined that even though the objective medical evidence
supported a finding that Plaintiff had limiting mental impairments, the
record did not support the Plaintiff’s alleged inability to perform any work.
22
The ALJ also considered the Plaintiff’s compliance with medication
and treatment for his mental symptoms and determined that Plaintiff’s
symptoms decreased with abstinence from substances. The ALJ also found
that Plaintiff’s exaggeration of physical limitations eroded his overall
credibility based on the record as a whole. The ALJ also considered the
Plaintiff’s daily activities in evaluating his credibility.
The Court concludes that the ALJ’s credibility finding regarding the
Plaintiff’s limitations was reasonable and supported by evidence in the
record. Accordingly, substantial evidence supports the ALJ’s credibility
finding.
III. CONCLUSION
For all of these reasons, the Court concludes that the ALJ’s decision
is supported by substantial evidence.
Ergo, the Plaintiff’s Motion for Summary Judgment [d/e 11] is
DENIED.
The Defendant’s Motion for Summary Affirmance [d/e 16] is
ALLOWED.
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The Clerk will enter a Judgment affirming the decision of the
Commissioner of Social Security.
ENTER: March 28, 2016
FOR THE COURT:
s/Richard Mills
Richard Mills
United States District Judge
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