Reese v. Social Security, Commissioner of

Filing 24

OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 19 AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 22 - Signed by Magistrate Judge Mona K. Majzoub. (LHos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SHARI LYNN REESE,
Plaintiff,
v.

Civil Action No. 16-cv-13931
Magistrate Judge Mona K. Majzoub

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
______________________________/
OPINION AND ORDER
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [19] AND
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [22]
Under 42 U.S.C. § 405(g), Plaintiff Shari Lynn Reese seeks judicial review of Defendant
Commissioner of Social Security’s determination that she is not entitled to Social Security
benefits. (Docket no. 1.) Before the Court are Plaintiff’s Motion for Summary Judgment
(docket no. 19) and Defendant’s Motion for Summary Judgment (docket no. 22). With consent
of the parties, this case has been referred to the undersigned for final judgment in accordance
with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (Docket no. 17.) The Court
has reviewed the pleadings and dispenses with a hearing pursuant to Eastern District of Michigan
Local Rule 7.1(f)(2).
I.

PROCEDURAL HISTORY
On October 18, 2012, Plaintiff applied for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income Benefits (“SSI”) on the basis of alleged physical and mental
impairments.

(TR 161-71.) The Social Security Administration initially denied Plaintiff’s

claims. (TR 96-103.) On May 27, 2015, Plaintiff appeared with a representative and testified at

a hearing before Administrative Law Judge (ALJ) Stephen Marchioro. (TR 32.) On August 19,
2015, the ALJ issued an unfavorable decision on Plaintiff’s claims. (TR 32-67.) Plaintiff
requested a review of the ALJ’s decision with the Appeals Council, which was denied on
September 1, 2016. (TR 1-6.) On November 4, 2016, Plaintiff commenced this action for
judicial review, and the parties filed cross motions for summary judgment, which are currently
before the Court. (Docket no. 19; docket no. 22.)
III.

HEARING TESTIMONY AND MEDICAL EVIDENCE
Plaintiff sets forth a brief procedural history of this matter as well as a short summary of

the relevant medical records. (Docket no. 19, pp. 3-15.) The ALJ summarized Plaintiff’s
medical records (TR 17-25), and Defendant deferred to the ALJ’s summary (docket no. 22, p. 4).
Having conducted an independent review of Plaintiff’s medical record and the hearing transcript,
the undersigned finds that there are no material inconsistencies among these recitations of the
record. Therefore, in lieu of re-summarizing this information, the undersigned will incorporate
the above-cited factual recitations by reference and will also refer and cite to the record as
necessary to address the parties’ arguments.
IV.

ADMINISTRATIVE LAW JUDGE’S DETERMINATION
The ALJ determined that Plaintiff did not engage in substantial gainful activity since

October 4, 2012, the alleged onset date. (TR 16.) In addition, the ALJ found that Plaintiff had
the following severe impairments: “cerebrovascular accident (CVA) and late effects of
cerebrovascular disease.” (Id. at 17.) Nevertheless, the ALJ concluded that Plaintiff did not
have an impairment or combination of impairments that met or medically equaled the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (TR 18.) In addition,
the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform

2

light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she can occasionally
climb ramps and stairs, occasionally climb ladders/ropes/scaffolds, frequently balance, stoop,
kneel, crouch, and occasionally crawl, that she must avoid frequent exposure to excessive
vibration, and that she is limited to simple, routine and repetitive work tasks with no production
or pace work. (TR 18.) On the basis of this determination, the ALJ posed a hypothetical to the
Vocational Expert (“VE”), who testified Plaintiff is capable of performing past relevant work as
a housekeeper/cleaner. (TR 25.) Consequently, the ALJ concluded that Plaintiff was not under a
disability, as defined in the Social Security Act, at any time since October 4, 2012, the alleged
onset date. (TR 25.)
V.

LAW AND ANALYSIS
A.

Standard of Review

Pursuant to 42 U.S.C. § 405(g), this Court has jurisdiction to review the Commissioner’s
final decisions. Judicial review of the Commissioner’s decisions is limited to determining
whether his findings are supported by substantial evidence and whether he employed the proper
legal standards. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Walters v. Comm’r, 127
F.3d 525, 528 (6th Cir. 1997). Substantial evidence is more than a scintilla but less than a
preponderance; it is “‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Richardson, 402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)); Walters, 127 F.3d at 528. It is not the function of this Court to try
cases de novo, resolve conflicts in the evidence, or decide questions of credibility. See Brainard
v. Sec’y of Health and Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745
F.2d 383, 387 (6th Cir. 1984).

3

In determining the existence of substantial evidence, the court must examine the
administrative record as a whole. See Kirk v. Sec’y of Health and Human Servs., 667 F.2d 524,
536 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983). If the Commissioner’s decision is
supported by substantial evidence, it must be affirmed, even if the reviewing court would decide
the matter differently, Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if
substantial evidence also supports the opposite conclusion. See Her v. Comm’r, 203 F.3d 388,
389-90 (6th Cir. 1999); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (noting
that the substantial evidence standard “presupposes that there is a zone of choice within which
the decisionmakers can go either way, without interference by the courts”). “But ‘[a]n ALJ’s
failure to follow agency rules and regulations denotes a lack of substantial evidence, even where
the conclusion of the ALJ may be justified based upon the record.’” Gayheart v. Comm’r of Soc.
Sec., 710 F.3d 365, 374 (6th Cir. 2013) (quoting Cole v. Astrue, 661 F.3d 931, 937 (6th Cir.
2011)).
B.

Framework for Social Security Determinations

Plaintiff’s Social Security disability determination was made in accordance with a fivestep sequential analysis. In the first four steps, Plaintiff was required to show that:
(1)

Plaintiff was not presently engaged in substantial gainful employment; and

(2)

Plaintiff suffered from a severe impairment; and

(3)

the impairment met or was medically equal to a “listed impairment;” or

(4)

Plaintiff did not have the residual functional capacity (RFC) to perform relevant
past work.

See 20 C.F.R. § 404.1520(a)-(f). If Plaintiff’s impairments prevented Plaintiff from doing past
work, the Commissioner, at step five, would consider Plaintiff’s RFC, age, education, and past
work experience to determine if Plaintiff could perform other work. If not, Plaintiff would be
4

deemed disabled. See id. at § 404.1520(g). The Commissioner has the burden of proof only on
“the fifth step, proving that there is work available in the economy that the claimant can
perform.” Her, 203 F.3d at 391. To meet this burden, the Commissioner must make a finding
“supported by substantial evidence that [Plaintiff] has the vocational qualifications to perform
specific jobs.” Varley v. Sec’y of Health and Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
This “substantial evidence” may be in the form of vocational expert testimony in response to a
hypothetical question, “but only ‘if the question accurately portrays [Plaintiff’s] individual
physical and mental impairments.’” Id. (citations omitted).
C.

Analysis

Plaintiff raises four objections to the decision of the ALJ. (Docket no. 19.) First,
Plaintiff asserts that the ALJ failed to address a statement from Plaintiff’s former employer. (Id.
at 16-17.) Second, Plaintiff contends that the ALJ erred by concluding that Plaintiff performed
past relevant work as a housekeeper. (Id. at 17-18.) Third, Plaintiff argues that the ALJ failed to
give proper weight to the opinion of Plaintiff’s treating physician, Dr. Loretta Leja. (Id. at 1819.) Finally, Plaintiff submits that the ALJ considered improper factors in weighing Plaintiff’s
credibility. (Id. at 19-20.)
1. Statement of Plaintiff’s Former Employer
Plaintiff contends that the ALJ erred by failing to consider a letter written by Melanie
Kelso, Plaintiff’s former employer, which stated that Plaintiff “does not seem to have the stamina
that she once did,” “seems to forget things at times that she never did before,” and “is having a
hard time doing the job.” (Docket no. 19, p. 16; TR 197.) Plaintiff submits that “this letter was
from a long-term employer who explained why Plaintiff no longer could perform the job that the
ALJ concluded that she could do.” (Docket no. 19, p. 17.)

5

Plaintiff’s former employer is considered a “non-medical source.” See Titles II & XVI:
Considering Opinions & Other Evidence from Sources Who Are Not “Acceptable Med. Sources”
in Disability Claims, SSR 06-03p (S.S.A. Aug. 9, 2006). Although there is a distinction between
what an adjudicator must consider and what the adjudicator must explain in the disability
determination or decision, the adjudicator generally should explain the weight given to opinions
from these “other sources,” or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the outcome of the case. Id.
Although the ALJ does not expressly address Ms. Kelso’s letter, the decision nevertheless
allows the reviewer to follow the ALJ’s reasoning. Ms. Kelso’s statement employs vague and
open-ended language that fails to tie Plaintiff’s asserted difficulties to any particular medical
condition. Furthermore, the statement lacks a clear timeline. For example, Ms. Kelso states that
Plaintiff is having a hard time “since [Plaintiff’s] health problems.”

However, Plaintiff

continued to work for Ms. Kelso throughout the 2013 season, after her CVA episode in October
of 2012. (TR 42.) Accordingly, Ms. Kelso’s statement is supplanted by more specific and
authoritative medical evidence, which is discussed below.
2. Past Relevant Work
Plaintiff asserts that the ALJ erred by determining that Plaintiff performed “past relevant
work” as a housekeeper. (Docket no. 19, p. 16.) According to Plaintiff, this conclusion is
inconsistent with the ALJ’s determination that substantially similar work after the alleged date of
disability did not qualify as “substantial gainful activity.” (Id.)
The ALJ explained that “past relevant work” means work performed (1) within fifteen
years prior to the date on which disability must be established, (2) that was substantial gainful

6

activity (“SGA”), and (3) lasted long enough for the claimant to learn to do it. (TR 16.) The
ALJ found that the Plaintiff’s prior work as a housekeeper qualified as past relevant work. (TR
25.)
Plaintiff contends that her “earnings from 2001 forward show a maximum yearly income
of $6,338.75 (in 2001) when the SGA standard for that year was $8,800.00.”

However,

Defendant submits that Plaintiff’s housekeeping work was SGA in 1997, 1998 and 1999.
Comparing Plaintiff’s wages to the SGA levels in those years confirms Defendant’s assertion.
Plaintiff earned $6523.58 in 1997, $8634.97 in 1998, and $9364.67 in 1999, (TR 181) each of
which exceeds the SGA level in the relevant year ($6000.00 in 1997 and 1998, and $7200 in
1999). See 20 C.F.R. § 404.1574.
Plaintiff contends that her earnings should “be averaged over the entire period of work
which requires evaluation.” However, as Plaintiff acknowledges, such averaging is appropriate
only where “an individual’s pattern of work is continuous without significant change in work
patterns or earnings, and there was no change of SGA earnings levels during the period
involved.” From 1997 through the alleged onset date, the SGA level changed several times, and
Plaintiff experienced significant changes in earnings. Accordingly the ALJ properly declined to
average Plaintiff’s wages over the course of Plaintiff’s entire tenure as a housekeeper, and
properly determined that Plaintiff’s housekeeping work was “past relevant work.”
3. Treating Physician Dr. Leja
Next, Plaintiff contends that the ALJ failed to give adequate weight to the opinion of
Plaintiff’s treating physician, Dr. Loretta Leja. (Docket no. 19, pp. 18-19.) In particular,
Plaintiff argues that the ALJ erred by giving little or no weight to Dr. Leja’s opinion(s) that
Plaintiff is disabled. (Id.)

7

Under the treating physician rule, the Commissioner mandates that the ALJ “will” give a
treating source’s opinion controlling weight if it “is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2). If the ALJ declines to give a
treating source’s opinion controlling weight, he must then balance the following factors to
determine what weight to give it: “the length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and specialization of the treating source.”
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R. §
404.1527(d)(2) (2004)).
The ALJ must also “give good reasons in [his] notice of determination or decision for the
weight [given to a] treating source’s opinion.” 20 C.F.R. § 404.1527(c)(2). Such good reasons
must be “supported by the evidence in the case record, and must be 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.” Soc. Sec. Rul. No. 96–2p, 1996 SSR LEXIS 9,
at *12 (Soc. Sec. Admin. July 2, 1996). This requirement is not simply a formality; it is to
safeguard the claimant’s procedural rights, which is intended “to let claimants understand the
disposition of their cases, particularly in situations where a claimant knows that his physician has
deemed him disabled and therefore might be especially bewildered when told by an
administrative bureaucracy that he is not.” Cole v. Astrue, 661 F.3d 931, 937–38 (6th Cir. 2011)
(citing Wilson, 378 F.3d at 544).
Addressing the medical opinions in the record, the ALJ analyzed four separate opinions
by Dr. Leja: (1) a “Medical Needs” statement dated November 6, 2012 (TR 354), (2) a

8

“Statement of Disability” dated January 30, 2013 (TR 374), (3) an “Attending Physician’s
Statement” dated October 23, 2014 (TR 455), and (4) a “Physical Residual Functional Capacity
Assessment Form” dated March 19, 2015 (TR 428). (TR 23-24.)
The November 2012 statement certified that Plaintiff required assistance with “meal
preparation, shopping, laundry and housework” and concluded that Plaintiff could not work at
any job. (TR 354.) The ALJ gave little weight to this statement (and no weight to its conclusion
that Plaintiff should not work) because the opinion lacked “functional analysis” and “detailed
explanation” and because “the duration of [the] restrictions was unclear.” (TR 23.) Review of
the one-page statement confirms the ALJ’s reasons for giving the opinion little or no weight.
Most significantly, this opinion was made approximately one month after Plaintiff’s CVA
episode, and gives no indication regarding the duration of the restrictions. (See TR 354.)
In the January 2013 report, Dr. Leja diagnosed a “cerebral aneurysm” and “coronary
artery disease,” and observed that Plaintiff had decreased visual acuity, unsteady gait, and
decreased short-term memory. Ultimately, Dr. Leja restricted Plaintiff to “less than Sedentary
Physical Capacity.” (TR 374.) Again, the ALJ determined that Dr. Leja “did not provide a
functional assessment or give the duration of [the] restrictions” and assigned little weight to the
opinion. (TR 23.) Although this opinion is slightly more detailed than the November 2012
statement, it nevertheless fails to connect the symptoms (visual difficulties, unsteadiness, poor
memory) to the proposed limitations (no lifting or carrying objects) and expressly states that the
period of the restrictions is “unknown.” (TR 375.)
In the October 2014 statement, Dr. Leja reported that Plaintiff “has back of head pain,
blurred vision, loss of short term memory, etc.” (TR 455.) The opinion also states that Plaintiff
could never kneel or crouch, could occasionally climb, stoop, crawl, reach, and walk, and could

9

frequently balance, sit, and stand. Plaintiff was restricted to sedentary work, and Dr. Leja
expected Plaintiff to return to part-time work in October of 2014. (Id.) The ALJ gave this
opinion “some weight” to the extent that “the claimant retained the ability to perform part-time
work,” but determined that Dr. Leja’s “conclusions that the claimant could never kneel, crouch
or crawl were largely inconsistent with the medical evidence of record and the claimant’s work
effort after her alleged onset date.” (TR 24.) Review of this opinion, which is stated primarily in
a checkbox format on an insurance company template, supports the ALJ’s reasons for giving it
only some weight. Again, Dr. Leja provides no analysis linking the reported symptoms to the
limitations prescribed.
Finally, in March of 2015, Dr. Leja observed that Plaintiff “had a ruptured aneurysm
resulting in [decreased] eyesight, unsteadiness, and very poor short term memory.” (TR 432.)
Based on this diagnosis, Dr. Leja opined that Plaintiff could never climb ladders and scaffolds,
could occasionally climb stairs, balance, stoop, kneel, crouch, and crawl, and could frequently
bend and twist. With regard to daily activities, Dr. Leja reported that Plaintiff could shop, travel
alone, walk without assistance, use public transportation, climb stairs with a handrail, prepare a
simple meal, and handle personal hygiene. (TR 433.) The ALJ gave little weight to this opinion
because it was made on a “box type” form, which lacked reference to medical records, and the
ALJ further observed that Dr. Leja’s treatment records “do not support this extreme level of
impairment.” (TR 24.) Review of the record supports the ALJ’s reasons for discrediting the
March 2015 opinion. Primarily, this opinion lacks any sort of functional analysis that would
explain how the observed symptoms—decreased eyesight, unsteadiness, and short-term memory
issues—support the prescribed limitations, or the opinion that Plaintiff would likely miss three
days of work per month.

10

As discussed above, the ALJ expressed good reasons for giving only partial weight, or
sometimes no weight, to Dr. Leja’s opinions. The ALJ properly determined that Dr. Leja’s
opinions were: (1) conclusory and/or not supported by detailed functional analysis, (2) based
largely on Plaintiff’s own reporting of her symptoms and not supported by objective testing (an
August 28, 2014 MRA of Plaintiff’s brain was “grossly unremarkable” (TR 460)), (3) not
supported by Dr. Leja’s own treatment notes, (4) inconsistent with Plaintiff’s work record since
the alleged onset date, and (5) inconsistent with other medical records and opinions, such as
those of Dr. Theodore Brooks. The ALJ further observed that Dr. Leja’s opinions failed to
meaningfully address the likely duration of Plaintiff’s limitations, which is especially
problematic in light of variations among Dr. Leja’s reports regarding Plaintiff’s symptoms and
restrictions. For example, while Dr. Leja’s opinions of January 2013 and March 2015 refer to
“unsteadiness,” this condition was “not present” in August of 2014, and was not listed as a
symptom in October of 2014. (TR 438, 456.) Furthermore, in November of 2012, Dr. Leja
opined that Plaintiff required assistance with “meal preparation, shopping, laundry and
housework,” but by March of 2015, Dr. Leja reported that Plaintiff could shop, travel alone, walk
without assistance, use public transportation, climb stairs with a handrail, and prepare a simple
meal. (TR 354, 432.)
As set forth above, the ALJ gave good reasons for assigning limited weight to Dr. Leja’s
opinions.
4. Credibility Determination
Plaintiff contends that the ALJ improperly considered two factors in assessing Plaintiff’s
credibility: (1) that Plaintiff received unemployment benefits after the alleged onset date, and
(2) that Plaintiff continued to smoke cigarettes despite Dr. Leja directing her to quit.

11

With respect to the unemployment benefits, the ALJ reasoned that if Plaintiff “were truly
unable to work at any job, that she would then no longer be eligible for unemployment benefits.”
(TR 23.) Plaintiff asserts that her “limited receipt of unemployment benefits . . . should not have
been held against her” because under Michigan law, “an individual could be eligible for both
benefits.” (Docket no. 19, p. 19 (citing Ross v. Acrisure, 2014 WL 3973380 (Mich. Ct. App.
Aug. 14, 2014)).) Conversely, Defendant submits that “[a]pplications for unemployment and
disability benefits are inherently inconsistent” because “[t]here is ‘no reasonable explanation for
how a person can claim disability benefits under the guise of being unable to work, and yet file
an application for unemployment benefits claiming that [she] is ready and willing to work.”
(Docket no. 22, p. 20 (citing Workman v. Comm’r of Soc. Sec., 105 F. App’x 794, 801-02 (6th
Cir. 2004)).)
The primary cases cited by the parties, Ross and Workman, are unpublished decisions,
which the Court will follow only to the extent they are persuasive. See United States v. Sanford,
476 F.3d 391, 396 (6th Cir. 2007) (noting that unpublished opinions are not binding precedent
under the doctrine of stare decisis). Plaintiff also refers to a case in which the Supreme Court
found no inherent conflict between claiming “disability” for the purposes of Social Security
benefits and being able to “perform the essential functions” of one’s job “with . . . reasonable
accommodation” for purposes of the Americans with Disabilities Act. See Cleveland v. Policy
Mgt Sys Corp, 526 U.S. 795, 802–06 (1999). However, the Court in Cleveland cautioned that “a
plaintiff’s sworn assertion in an application for disability benefits that she is, for example,
‘unable to work’ will appear to negate an essential element of her ADA case—at least if she does
not offer a sufficient explanation” and held that “an ADA plaintiff cannot simply ignore the
apparent contradiction that arises out of the earlier SSDI total disability claim.” Id. at 806.

12

In light of this precedent, the Court finds that the ALJ did not err by discrediting Plaintiff
based on her receipt of unemployment benefits after the alleged onset date. Plaintiff offered no
explanation for the “apparent contradiction” of receiving unemployment benefits during an
alleged period of disability. In fact, when the ALJ raised the issue at the hearing on May 27,
2015, Plaintiff stated that she “ha[d]n’t gotten unemployment in the last two years.” (TR 45.)
Plaintiff’s earnings records, which show receipt of unemployment benefits in 2013 and 2014,
prove that statement to be false. (TR 194.) In subsequent briefing, Plaintiff admits to “limited
receipt of unemployment benefits,” but still offers no explanation for the apparent paradox of
simultaneously receiving unemployment benefits and Social Security disability benefits.
Next, Plaintiff asserts that “for the ALJ to take the standard sort of advice that all
physicians give to their patients [i.e., to quit smoking] and turn it into a blot on Plaintiff’s
credibility is wrong.” (Docket no. 19, p. 20.) Plaintiff acknowledges that “Defendant can refer
to some cases that say that such considerations are not prohibited” but insists that “[f]or this ALJ
to assert that Plaintiff is not credible because she cannot stop smoking a substance that is as
addictive as heroin, but is still legal, is ridiculous.” (Id.)
Although this Court appreciates, “the well-known (and easily ascertained) fact that it is
hard to quit smoking because nicotine is addictive” (see docket no. 22, p. 19), Plaintiff advances
no persuasive authority in support of the contention that the ALJ erred by considering Plaintiff’s
failure to quit despite Dr. Leja’s repeated instruction to do so. To the contrary, multiple cases in
the Sixth Circuit (although largely unpublished) have upheld consideration of claimants’ failure
to quit smoking. See Marshall v. Comm’r of Soc. Sec., 2014 WL 2587612, at *2 (E.D. Mich.
June 10, 2014) (“The Sixth Circuit has routinely recognized that ‘[t]he failure to stop smoking
against medical advice can properly be considered in assessing credibility.’”) (citing Hall–Thulin

13

v. Comm'r of Soc. Sec., 1997 WL 144237, at *1 (6th Cir. Mar. 27, 1997) (“It was not improper
for the ALJ and the magistrate judge to consider the plaintiff's smoking history and her two-year
delay in following her physician's advice to quit smoking.”) and Sias v. Secretary of Health and
Human Servs., 861 F.2d 475, 480 (6th Cir. 1988) (relying on the fact that “the claimant admits
that against the advice of his doctor he smokes two packs of cigarettes a day”)).
Accordingly, the ALJ did not err by considering (1) that Plaintiff received unemployment
benefits after the alleged onset date, and (2) that Plaintiff continued to smoke cigarettes despite
Dr. Leja directing her to quit.
VI.

CONCLUSION
For the reasons stated herein, IT IS ORDERED that Plaintiff’s Motion for Summary

Judgment [19] is DENIED, and Defendant’s Motion for Summary Judgment [22] is
GRANTED.

Dated: December 14, 2017

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Opinion and Order was served upon counsel of record
on this date.
Dated: December 14, 2017

s/ Leanne Hosking
Case Manager

14