Adkins v. SSA
Filing
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OPINION & ORDER: For reasons herein, (1) Denying 9 MOTION for Judgment on the Pleadings by Cathy J. Adkins filed by Cathy J. Adkins; (2) Granting 12 MOTION for Summary Judgment by SSA w/Supporting Memorandum filed by SSA; (3) decision of t he Commissioner is AFFIRMED pursuant to Sentence four of 42:405(g) as it was supported by substantial evidence and was decided by proper legal standards; (4) a Judgment consistent with this Opinion & Order will be entered contemporaneously. Signed by Judge Karl S. Forester on 9/2/2011.(CMR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
CIVIL ACTION NO. 10-76-KSF
CATHY J. ADKINS
v.
PLAINTIFF
OPINION & ORDER
MICHAEL J. ASTRUE,
Commissioner of Social Security
DEFENDANT
***********
Plaintiff, Cathy J. Adkins, brought this action pursuant to 42 U.S.C. § 405(g) to obtain
judicial review of an administrative decision of the Commissioner of Social Security denying her
claim for period of disability and disability insurance benefits (“DIB”) and Supplemental Security
Income (“SSI”). The Court, having reviewed the record, will affirm the Commissioner’s decision,
as it is supported by substantial evidence.
I.
OVERVIEW OF THE PROCESS
In determining whether a claimant has a compensable disability under the Social Security
Act, the regulations provide a five-step sequential process which the administrative law judge must
follow. 20 C.F.R. § 404.1520(a)-(e); see Walters v. Commissioner of Social Security, 127 F.3d 525,
529 (6th Cir. 1997). The five steps, in summary, are as follows:
(1)
If the claimant is currently engaged in substantial gainful activity, she is not
disabled.
(2)
If the claimant is not doing substantial gainful activity, her impairment must
be severe before she can be found disabled.
(3)
If the claimant is not doing substantial gainful activity and is suffering from
a severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and her impairment meets or equals a listed
impairment, the claimant is presumed disabled without further inquiry.
(4)
If the claimant’s impairment does not prevent her from doing past relevant
work, she is not disabled.
(5)
Even if the claimant’s impairment does prevent her from doing her past
relevant work, if other work exists in the national economy that
accommodates her residual functional capacity and vocational factors (age,
education, skills, etc), she is not disabled.
Id. The burden of proof is on the claimant throughout the first four steps of this process to prove
that she is disabled. Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987). If the administrative law
judge reaches the fifth step without a finding that the claimant is not disabled, then the burden shifts
to the Commissioner to consider her residual functional capacity, age, education, and past work
experience to determine if she could perform other work. If not, she would be deemed disabled. 20
C.F.R. § 404.1520(f). Importantly, the Commissioner only has the burden of proof on “the fifth step,
proving that there is work available in the economy that the claimant can perform.” Her v.
Commissioner of Social Security, 203 F.3d 388, 391 (6th Cir. 1999).
II.
PROCEDURAL BACKGROUND AND THE ADMINISTRATIVE DECISION
Plaintiff filed her applications for benefits on October 26, 2007 [TR 136, 144, 149].
Plaintiff’s applications were denied initially and again on reconsideration [TR 88, 92, 95]. After a
hearing before an Administrative Law Judge (“ALJ”) on July 24, 2009 [TR 26], the ALJ issued an
unfavorable decision on September 24, 2009 [TR 10-25]. Plaintiff’s request for review to the
Appeals Council was denied on June 10, 2010, and this decision of the ALJ now stands as the final
decision of the Commissioner [TR 1-3].
At the time the ALJ rendered his decision, Plaintiff was 38 years old [TR 24]. She has a high
school education, is able to read and is able to communicate in English [TR 24, 33-34]. Plaintiff has
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past relevant work experience as a housekeeper, cashier, stocker and seamstress [TR 24, 35-37].
Plaintiff claims that her ability to work is limited due to heart problems, carpal tunnel syndrome,
pulmonary artery, varicose veins, irritable bowel syndrome, foot surgery and depression [TR 160].
Plaintiff alleges that she became disabled on January 28, 2007 and that she stopped working because
she had foot surgery and was unable to return to work [TR 160].
The ALJ began his analysis by determining that Plaintiff has met the insured status
requirements of the Social Security Act through September 30, 2011 [TR 12]. At step one, the ALJ
found that Plaintiff has not engaged in any substantial gainful activity since January 28, 2007, the
alleged onset date [TR 12]. At step two, the ALJ determined that Plaintiff suffers from the following
severe impairments: carpal tunnel syndrome; bilateral venous insufficiency; plantar fascitis and heal
spur (left foot); obesity; asthma; degenerative joint disease (right knee); and depression [TR 12].
Continuing on to the third step, the ALJ determined that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals any of the listed impairments [TR 1416].
Reviewing the entire administrative record and considering Plaintiff’s testimony, the ALJ
described Plaintiff’s residual functional capacity (“RFC”) as follows:
[Plaintiff] is limited to lifting and/or carrying 20 pounds occasionally, 10 pounds
frequently, limited to standing and/or walking a maximum of two hours per day and
would not be pushing or pulling with the left leg. Non-exertional limitations are as
follows. She may only occasionally climb, balance, stoop, crouch, kneel or crawl;
and is not to climb ladders, ropes or scaffolds. She is to avoid work in excessive
dust, fumes or gases, temperature extremes or high humidity. She is to avoid
constant or repetitive motion of the right hand or wrist. Given the claimant’s history
of left feel [sic] spur plantar fasciitis [sic] resulting in a degree of left foot pain, it is
not unremarkable to find this individual is moderately limited in the ability to
maintain attention and concentration for extended periods. As to the claimant’s
depression, the claimant’s ability to understand, retain and follow instructions is
good; her ability to sustain attention to perform repetitive tasks is fair; to maintain
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attention and concentration is fair; her ability to relate to other people is fair; her
ability to tolerate stress and pressure associated with day to day work activity is fair.
[TR 16].
In making this RFC determination, the ALJ considered and made reductions based upon
Plaintiff’s demeanor as a witness [TR 21]. The ALJ considered his observations of Plaintiff while
she testified, her demeanor, the way she answered the questions, and all of the other factors that go
into assessing a witness’ credibility, and found Plaintiff’s credibility as a witness to be fair and her
demeanor during the hearing consistent with the limitations established in her RFC [TR 21]. For
example, although Plaintiff alleged an extensive list of impairments, the ALJ found that there is not
a significant treatment history supporting these allegations in Plaintiff’s evidence of record [TR 2122]. In addition, at the hearing, although Plaintiff denied that she had ever been arrested [TR 22, 64],
the ALJ noted that Plaintiff had a history of arrest for fighting [TR 22, 433]. Moreover, Plaintiff
previously pled guilty to defrauding the government to receive Social Security benefits illegally [TR
22]. Over the course of eleven years, Plaintiff was overpaid $80,000 [TR 22, 225-231]. For all of
these reasons, the ALJ found Plaintiff’s testimony excessive and not fully credible [TR 22].
At step four of the analysis, considering the testimony of the Vocational Expert (the “VE”),
the ALJ found that Plaintiff could not perform her past relevant work [TR 24]. Nevertheless, at step
five the ALJ concluded that, based on Plaintiff’s age, education, work experience, and residual
functional capacity, as well as the testimony of the VE, Plaintiff is capable of making a successful
adjustment to other work that exists in significant numbers in the national economy [TR 24-25].
Therefore, the ALJ determined that Plaintiff has not been under a disability, as defined in the Social
Security Act, from January 28, 2007 through the date of the ALJ’s decision. [TR 25].
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The ALJ’s decision that Plaintiff is not disabled became the final decision of the
Commissioner when the Appeals Commission subsequently denied her request for review on June
10, 2010 [TR 1-3]. Plaintiff has exhausted her administrative remedies and filed a timely action in
this Court. This case is now ripe for review under 42 U.S.C. § 405(g).
I.
GENERAL STANDARD OF REVIEW
The decision of the Commissioner must be supported by substantial evidence. Varley v.
Secretary of Health and Human Services, 820 F.2d 777, 779 (6th Cir. 1987). Once the decision of
the Commissioner is final, an appeal may be taken to the United States District Court pursuant to 42
U.S.C. § 405(g). Judicial review of the Commissioner’s decision is restricted to determining
whether it is supported by substantial evidence and was made pursuant to the proper legal standards.
See Cutlip v. Secretary of Health and Human Services, 25 F.3d 284, 286 (6th Cir. 1994).
“Substantial evidence” is defined as “more than a scintilla of evidence but less than a preponderance;
it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Id. In reviewing the decision of the Commissioner, courts are not to conduct a de novo review,
resolve conflicts in the evidence, or make credibility determinations. See id. Rather, the court must
affirm the Commissioner’s decision so long as it is supported by substantial evidence, even if the
court might have decided the case differently. See Her, 203 F.3d at 389-90. However, the court
must review the record as a whole, and must take into account whatever in the record fairly detracts
from its weight. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
II.
ANALYSIS
On appeal, Plaintiff argues that the ALJ’s determination was not based on substantial
evidence or decided by the proper legal standards. First, she claims that the ALJ did not properly
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consider the combined impact of her impairments. Second, she claims that the ALJ did not properly
consider her pain and credibility. However, a review of the administrative record reveals that the
ALJ’s decision was based on substantial evidence and was decided by the proper legal standards.
A.
The ALJ Considered the Combined Effect of Plaintiff’s Impairments in Determining
that Plaintiff Does Not Have an Impairment or Combination of Impairments that
Meets or Medically Equals a Listed Impairment
First, Plaintiff contends that, in determining whether Plaintiff’s impairments met or medically
equaled a listed impairment, the ALJ failed to consider the combined effect of her impairments.
Plaintiff does not argue that the evidence relied upon by the ALJ in making his findings was flawed;
rather, she argues that the ALJ did not consider all of Plaintiff’s various impairments in making his
findings. Specifically, Plaintiff argues that the ALJ failed to consider her migraines, sleep apnea and
asbestosis; that the extent of her foot condition was dismissed; and that Plaintiff’s pain would have
more than just a moderate impact on her attention and concentration. However, the ALJ specified
that he considered Plaintiff’s “combination of impairments,” including those deemed not severe,
when determining that she did not meet any listing [TR 14, 16]. This circuit has specifically held
that “[a]n ALJ’s individual discussion of multiple impairments does not imply that he failed to
consider the effect of the impairments in combination, where the ALJ specifically refers to a
‘combination of impairments’ in finding that the plaintiff does not meet the listings.” Loy v.
Secretary of Health and Human Services, 901 F.2d 1306, 1310 (6th Cir. 1990)(quoting Gooch v.
Secretary of Health and Human Services, 833 F.2d 589, 592 (6th Cir. 1987)). For this reason alone,
Plaintiff’s arguments fail.
Moreover, the ALJ actually made specific factual findings about Plaintiff’s migraines, sleep
apnea, asbestosis, foot condition and her pain. Indeed, the ALJ noted that Plaintiff alleged problems
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with migraine headaches, but found that this impairment was not severe [TR 14]. The ALJ noted
that an MRI in April 2001 and a CT in early 2006 were both negative [Id.]. In addition, the ALJ
noted that Plaintiff made no complaint about migraines at the hearing and she does not take any
headache medicine, such as Imitrex, Topamax or Maxalt [Id.]. Although the ALJ did not repeat his
discussion of Plaintiff’s migraines in conjunction with his step three findings, “[t]he mere failure to
discuss every single impairment under the step three analysis is not a procedural error.” Bledsoe v.
Barnhart, 165 Fed.Appx. 408, 411, 2006 WL 229795 (6th Cir., Jan. 31, 2006)(unpublished). In
addition, the ALJ also specifically discussed Plaintiff’s allegations of asthma, sleep apnea and
asbestosis and reasonably incorporated limitations resulting from those impairments into his RFC
finding [TR16-17, 19]. Finally, Plaintiff complains that the ALJ dismissed the extent of her foot
condition and did not adequately consider the extent of her pain. However, the ALJ thoroughly
discussed Plaintiff’s foot condition and her pain, including the opinion of Dr. Steven Lawrence, MD,
[TR 14, 16-20, 22-23] and reasonably incorporated limitations resulting from Plaintiff’s foot
condition and her pain into his RFC finding [TR 16]. Thus, contrary to Plaintiff’s arguments, the
ALJ did consider the combined impact of Plaintiff’s impairments when determining that Plaintiff
does not have an impairment or combination of impairments that meets or medically equals a listed
impairment, including Plaintiff’s migraine headaches, sleep apnea, asbestosis, foot condition and
pain. Instead, a review of the ALJ’s opinion reveals that the ALJ properly considered Plaintiff’s
condition as a whole. There is no indication that the ALJ parceled out any of Plaintiff’s
impairments; rather, the ALJ properly discussed all of Plaintiff’s impairments in reaching his
decision and the ALJ’s findings with respect to the severity of these impairments are supported by
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substantial evidence. See Gooch v. Secretary of Health and Human Services, 833 F.2d 589, 591-92
(6th Cir. 1987).
B.
The ALJ’s Findings Regarding Plaintiff’s Pain, Complaints of Fatigue and
Credibility are Supported by Substantial Evidence
Next, Plaintiff claims that the ALJ erred by failing to adequately consider Plaintiff’s pain,
complaints of fatigue, and credibility. Plaintiff argues that the ALJ improperly relied too heavily on
Plaintiff’s indictment in finding her not credible and that there is objective evidence from Plaintiff’s
medical records that bolsters her allegations of pain. Plaintiff relies on her subjective allegations of
disabling pain and on her medical, therapy and sleep study records as objective evidence of
underlying conditions that could reasonably be expected to produce her alleged disabling pain,
fatigue and impairments. Thus, she argues that the ALJ’s conclusion that she is not disabled is not
supported by the evidence.
A plaintiff’s subjective statements of pain or other symptoms, taken alone, cannot support
a finding of disability. 20 C.F.R. § 404.1529 (a)-(e). See also Tyra v. Secretary of Health and
Human Services, 896 F.2d 1024, 1030 (6th Cir. 1990). The Sixth Circuit Court of Appeals has
developed a two-prong test to evaluate a claimant’s assertions of disabling pain:
First, we examine whether there is objective medical evidence of an underlying
medical condition. If there is, we then examine: (1) whether objective medical
evidence confirms the severity of the alleged pain arising from the condition; or (2)
whether the objectively established medical condition is of such a severity that it can
reasonably be expected to produce the alleged disabling pain.
Walters, 127 F.3d at 531(citations omitted).
In addition, “in evaluating complaints of pain, an ALJ may properly consider the credibility
of the claimant.” Id. (citing Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 538 (6th
Cir. 1981), cert. denied, 461 U.S. 957 (1983)). Although an ALJ’s assessment of a claimant’s
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credibility must be supported by substantial evidence, “an ALJ’s findings based on the credibility
of the applicant are to be accorded great weight and deference, particularly since an ALJ is charged
with the duty of observing a witness’s demeanor and credibility.” Walters, 127 F.3d at 531 (citations
omitted).
In support of her arguments, Plaintiff cites to Dr. Lawrence’s notes that conservative and
surgical treatment had failed with regards to Plaintiff’s foot condition [TR 469]. She also states that
her pain continued after her January 30, 2007 surgery for her foot and cites to an April 18, 2007
physical therapy record indicating that she continued to have edema and gait deviations with
decreased weight bearing to the left heel [TR 319-321, 355]. She also cites to a February 2008
medical record from Dr. Eugene DeGiorgio opining that Plaintiff had a fibrous union between the
navicular and the calcaneus [TR 464-465], as well as an MRI showing edema at the peroneus longus
tendon [TR 503]. Plaintiff argues that these records show significant impairment to her foot that
continued despite surgery. However, in this case, there is no dispute that Plaintiff has a foot
impairment. Rather, the relevant inquiry is the extent of the pain and, accordingly, any limitations
resulting from this impairment. Although the records cited by Plaintiff confirm that she has a foot
impairment and that she reported to her doctors that she was experiencing pain, none of the records
relied upon by Plaintiff provide objective medical evidence confirming the severity of the pain that
she alleges. See Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)(the mere diagnosis of arthritis
says nothing about the severity of the condition); Foster v. Bowen, 853 F.2d 483, 489 (6th Cir.
1988)(a claimant diagnosed with dysthymic disorder must nevertheless establish that the condition
was disabling).
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To be sure, the ALJ recognized that Plaintiff’s foot condition does cause her pain and, as a
result, reasonably incorporated limitations resulting from this pain into Plaintiff’s RFC. Specifically,
the ALJ found that Plaintiff should be limited to the following: lifting and/or carrying 20 pounds
occasionally, 10 pounds frequently; standing and/or walking a maximum of two hours per day; no
pushing or pulling with the left leg; she may only occasionally climb, balance, stoop, crouch, kneel
or crawl; and she is not to climb ladders, ropes or scaffolds [TR 16]. The ALJ’s findings in this
regard are supported by substantial evidence. At the hearing, Plaintiff testified that her sitting and
lifting is not limited by her condition [TR 44-45]. Dr. W.R. Stauffer opined that Plaintiff could
occasionally lift 20 pounds, frequently lift 10 pounds (although not repetitively), could stand or walk
two hours in an eight hour day and could sit for up to six hours in an eight hour day [TR 439].
Similarly, consultant Dr. Timothy Gregg, M.D., opined that Plaintiff could occasionally lift 20
pounds, frequently lift 10 pounds, stand and/or walk about six hours in an eight hour day and sit for
about six hours in an eight hour day [TR 457]. Thus, substantial evidence supports the ALJ’s
findings regarding the degree of limitation resulting from Plaintiff’s foot condition. Moreover, this
evidence is not contradicted by any objective evidence contained in the medical records relied upon
by Plaintiff.
In addition, Plaintiff cites to records from sleep studies revealing that Plaintiff suffered from
sleep apnea and chest x-rays showing asbestosis [TR 582, 589]. According to Plaintiff, these
conditions support her complaints of fatigue and shortness of breath. Again, although the medical
records referred to by Plaintiff document that she had sleep apnea and asbestosis, they do not confirm
her allegations of the severity of her alleged symptoms, particularly that she was suffering from
disabling fatigue. Thus, Plaintiff has failed to establish any total disability resulting from the alleged
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diagnosis, as there is simply no evidence in the record that Plaintiff’s alleged sleep apnea and
asbestosis are disabling. See Higgs, 880 F.2d at 863; Foster, 853 F.2d at 489. Rather, the evidence
shows that, despite being diagnosed with asthma, sleep apnea and asbestosis, Plaintiff had not had
any significant treatment interventions, nor is there any evidence of hospitalizations, emergency
room visits, or steroid use due to respiratory problems [TR 19, 21]. In fact, Plaintiff’s treating
physician noted that Plaintiff’s asthma was well controlled by her prescribed medication and that she
had even, non-labored breathing with no rubs or diminished breath sounds [TR 21, 582].
Dr.
Michael Ehrie and Dr. Stauffer both found that Plaintiff should avoid exposure to chemicals, fumes,
odors, dust, gases and poor ventilation [TR 22-23, 274, 439]. However, the ALJ reasonably
accounted for and incorporated these limitations into Plaintiff’s RFC [TR 16]. The ALJ’s findings
with respect to Plaintiff’s sleep apnea and asbestosis are supported by substantial evidence and are
not contradicted by the records relied upon by Plaintiff.
Plaintiff also cites to the vein ligation that was performed on her right leg in May 2004 [TR
52, 53, 248]. Again, although the medical record cited by Plaintiff confirms that she had vein
ligation on her right leg in May 2004, it fails to offer any objective proof confirming the severity of
pain in her right leg. In fact, at the hearing, Plaintiff testified that this surgery eliminated the pain
in her right leg and that, although she still experiences swelling in both legs, she no longer gets the
kind of ache that led to the vein ligation [TR 53]. With respect to the swelling, she further testified
that, although she has been instructed to wear support hose to help with her symptoms, she chooses
not to because the hose are uncomfortable [Id.]. Thus, considering this testimony and other evidence
in the record, the ALJ’s conclusions with respect to Plaintiff’s right leg pain are supported by
substantial evidence.
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In determining that Plaintiff’s subjective allegations of disabling pain resulting from her foot
and leg conditions, as well as disabling fatigue from her respiratory symptoms, are not credible, the
ALJ reasonably considered Plaintiff’s demeanor as a witness, her prior history of pleading guilty to
defrauding the government, and her testimony regarding her daily activities. As noted above, an ALJ
may “consider the credibility of a claimant when making a determination of disability.” Cruse v.
Commissioner of Social Security, 502 F.3d 532, 542 (6th Cir., Sept. 24, 2007)(quoting Jones v.
Commissioner of Social Security, 336 F.3d 469, 476 (6th Cir. 2003)). In fact, “an ALJ’s findings
based on the credibility of the applicant are to be accorded great weight and deference, particularly
since an ALJ is charged with the duty of observing a witness’s demeanor and credibility.” Walters,
127 F.3d at 531. In addition, an ALJ is justified in considering Plaintiff’s “ability to conduct daily
life activities in the face of his claim of disabling pain.” Warner v. Commissioner of Social Security,
375 F.3d 387, 392 (6th Cir. 2004). See also 20 C.F.R. § 404.11529(c)(3); SSR 96-7p, 1996 WL
374186 at *3; Cruse, 502 F.3d at 542 (“An ALJ may also consider household and social activities
engaged in by the claimant in evaluating the claimant’s assertion of pain or ailments.”)(quoting
Walters, 127 F.3d at 532). It is within the province of the ALJ to resolve conflicts in the evidence
and decide questions of credibility. Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003).
Plaintiff has failed to dispute the ALJ’s reasons for rejecting her testimony. Inasmuch as Plaintiff
has failed to explain how the ALJ’s credibility finding was not supported by substantial evidence,
the Court will not disturb the ALJ’s credibility finding.
For these reasons, Plaintiff has failed to meet her burden of proving that her impairments met
or medically equaled a listed impairment or that her conditions caused disabling limitations. The
record contains substantial evidence in support of the ALJ’s determination that Plaintiff does not
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have an impairment or combination of impairments that meets or medically equals a listed
impairment, his assessment of Plaintiff’s ability to work, and his finding that Plaintiff’s allegations
of disabling pain and fatigue were not totally credible. Upon review, the Court finds that substantial
evidence supports the ALJ’s findings and his conclusion that Plaintiff is not disabled.
C.
This Case is Not Appropriate for Remand
Plaintiff argues that, even if the Court cannot conclude that the ALJ erred and that Plaintiff
should be found disabled, the Court should remand the case to the ALJ for the taking of additional
evidence. However, Plaintiff offers no explanation of why this case is appropriate for remand.
Accordingly, the Court finds that remand is not necessary.
IV.
CONCLUSION
For the reasons set forth above, the Court, being fully and sufficiently advised, hereby
ORDERS as follows:
(1)
the plaintiff’s motion for summary judgment [DE #9] is DENIED;
(2)
the Commissioner’s motion for summary judgment [DE #12] is GRANTED;
(3)
the decision of the Commissioner is AFFIRMED pursuant to sentence four of 42
U.S.C. § 405(g) as it was supported by substantial evidence and was decided by
proper legal standards; and
(4)
a judgment consistent with this Opinion & Order will be entered contemporaneously.
This September 2, 2011.
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