Harden v. Colvin
OPINION AND ORDER OVERRULING Plaintiff's Objections to Report and Recommendation, and Adopting 24 Report and Recommendation. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-12394
HON. TERRENCE G. BERG
HON. STEPHANIE D. DAVIS
COMMISSIONER OF SOCIAL
OPINION AND ORDER OVERRULING PLAINTIFF’S
OBJECTIONS TO REPORT AND RECOMMENDATION
(DKT. 25) AND ADOPTING REPORT AND RECOMMENDATION
This is a Social Security appeal brought pursuant to 42 U.S.C.
§ 405(g). At issue is whether the Administrative Law Judge (“ALJ”) erred
as a matter of law in finding that Plaintiff was not eligible to receive
Social Security benefits and whether that finding is supported by
substantial evidence on the record as a whole.
Before the Court is Magistrate Judge Stephanie Dawkins Davis’s
August 24, 2017 Report and Recommendation (hereinafter “R&R”) (Dkt.
24). Magistrate Judge Davis concluded that the ALJ’s denial of Social
Security disability benefits was correct and therefore recommends that
the Court deny Plaintiff’s motion for summary judgment (Dkt. 16), grant
Defendant’s motion for summary judgment (Dkt. 21), and affirm the
findings of the Commissioner. Dkt. 24, Pg. ID 979. Plaintiff Sherry
Harden filed Objections to the Magistrate’s R&R (Dkt. 25).
The relevant facts in this case were summarized in Magistrate Judge
Davis’s R&R, Dkt. 24, Pg. IDs 956-65, and those facts are adopted for
purposes of this order. Plaintiff raises four objections to the R&R, Dkt.
25, to which the Commissioner has responded. Dkt. 26. For the reasons
stated below, Plaintiff’s objections are OVERRULED, Judge Davis’s
R&R is AFFIRMED, Plaintiff’s motion for summary judgment is
DENIED, defendant’s motion for summary judgment is GRANTED, and
the findings of the Commissioner are AFFIRMED.
STANDARD OF REVIEW
Any party may object to and seek review of an R&R, but must act
within fourteen days of service of the R&R. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b)(2). Failure to file specific objections constitutes a waiver
of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Filing
objections which raise some issues but fail to raise others with specificity
will not preserve all objections a party has to an R&R. Willis v. Secretary
of HHS, 931 F.2d 390, 401 (6th Cir. 1991). The district court must make
a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made. 28
U.S.C. § 636(b)(1)(c). The district court judge may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the
magistrate judge. Id.
As noted in Judge Davis’s R&R, “[i]n enacting the social security
administrative agency handles claims, and the judiciary merely reviews
the agency determination for exceeding statutory authority or for being
arbitrary and capricious.” Dkt. 24, Pg. ID 965 (citing Sullivan v. Zebley,
493 U.S. 521 (1990)). Accordingly, this Court has original jurisdiction to
review the Commissioner’s final administrative decision pursuant to 42
U.S.C. § 405(g). In so reviewing, this Court “must affirm the
Commissioner has failed to apply the correct legal standard or has made
findings of fact unsupported by substantial evidence in the record.”
Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005).
Substantial evidence is “such relevant evidence as a reasonable mind
might accept to support the ALJ’s conclusion.” Bass v. McMahon, 499
F.3d 506, 509 (6th Cir. 2007) (quotation marks omitted) (quoting Foster
v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)). This substantial evidence
standard is less exacting than the preponderance of evidence standard.
See Bass, 499 F.3d at 509 (citing Bell v. Comm’r of Soc. Sec., 105 F.3d
244, 246 (6th Cir. 1996)). The reviewing court may not reverse the
Commissioner’s decision merely because it disagrees or because “there
exists in the record substantial evidence to support a different
conclusion.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th
recommendation that the Court deny Plaintiff’s motion for summary
judgment, grant Defendant’s motion for summary judgment, and affirm
the findings of the Commissioner. Dkt. 24, Pg. ID 979.
1. The R&R erred in recommending a finding that the ALJ
properly evaluated Plaintiff’s foot condition and the effects of
her foot surgery;
2. The R&R erred in recommending a finding that the ALJ
provided good reasons supported by substantial evidence for
rejecting Plaintiff’s credibility;
3. The R&R erred in recommending a finding that
Czesnowski’s opinion concerning Plaintiff’s limitations was
not a “medical opinion” and that the ALJ properly evaluated
4. The R&R erred in recommending a finding that the ALJ had
no duty to inquire about apparent conflicts between the
Vocational Expert (“VE”) testimony and the Dictionary of
Occupational Titles (“DOT”).
Dkt. 25. The Court will address each objection in turn.
A. Objection 1: The R&R erred in recommending a finding that
the ALJ properly evaluated Plaintiff’s foot condition and
the effects of her foot surgery.
Plaintiff objects to the R&R’s finding that the ALJ properly evaluated
Plaintiff’s os peroneum foot condition and the effects of surgery on her
foot relating to that condition. Dkt. 25, Pg. ID 983-87. More specifically,
[C]ontrary to the Magistrate Judge’s statement, the ALJ largely
ignored Ms. Harden’s painful os peroneum or the effects of her
surgery, not even finding these to be severe impairments or
explaining how the RFC finding accounted for them. Ms. Harden
has correctly argued that the ALJ failed to provide analysis of the
conditions, failed to explain how the RFC finding accounted for
them if at all, and failed to base the RFC finding on all the relevant
medical and other evidence in the case as required.”
Dkt. 25, Pg. IDs 984-85.
Although Plaintiff underwent surgery to correct her os peroneum
condition, Plaintiff maintains that the surgery was botched, resulting in
permanent nerve damage and numbness, which Plaintiff argues the ALJ
failed to give appropriate weight. Dkt. 25, Pg. ID 986-87. Plaintiff
specifically takes issue with Judge Davis’s statement that the ALJ not
only mentioned the condition and surgery, but provided a full description
and discussion of it. Dkt. 25, Pg. ID 983. Plaintiff argues that the ALJ’s
mere summarization is not equivalent to a careful analysis, and the ALJ
failed to explain how these conditions affected Plaintiff’s residual
functional capacity (RFC). Dkt. 25, Pg. IDs 984-95.
The Commissioner replies by arguing that the ALJ adequately
addressed Plaintiff’s foot condition and the resulting surgery in its
decision. Dkt. 26, Pg. ID 1001 (referencing Dkt. 21, Pg. IDs. 920-21). The
Commissioner cites the ALJ’s specific discussion of Plaintiff’s os
peroneum condition, the surgery Plaintiff received for that condition,
Plaintiff’s state thereafter, and the impact on the ALJ’s decision. Dkt. 26,
Pg. ID 1001 (citing Dkt. 21, Pg. IDs 5-9, 22-25).
Plaintiff’s argument that the ALJ merely summarized Plaintiff’s 20132015 medical history as it pertained to plaintiff’s left foot/ankle condition
is not well taken. A review of the ALJ’s decision shows that it contains
an analysis of Plaintiff’s os peroneum condition and an explanation of its
impact on the ALJ’s determination of Plaintiff’s residual functional
capacity (“RFC”). The ALJ’s fifth finding addresses Plaintiff’s RFC. Dkt.
11-2, Pg. ID 65-70. There, the ALJ explains that she determined
Plaintiff’s RFC “after careful consideration of the entire record” including
consideration of “all symptoms and the extent to which these symptoms
can reasonably be accepted as consistent with the objective medical
evidence and other evidence.” Dkt. 11-2, Pg. ID 65. Indeed, after
providing background to Plaintiff’s os peroneum condition and surgery,
the ALJ highlighted that within six months after surgery, Plaintiff
reported pain improvement; that in May 2014, Plaintiff’s primary care
physician noted that Plaintiff’s urine drug screen was negative for opiate
medications; and that Plaintiff would no longer be prescribed any
controlled substances. Dkt. 11-2, Pg. ID 67. The ALJ found that “[t]his
suggests that the claimant was exaggerating the extent of her pain and
other limitations in an effort to obtain her medication of choice, rather
than due to an exacerbation of her symptoms.” Dkt. 11-2, Pg. ID 67.
Furthermore, the ALJ noted that Plaintiff’s post-surgery actions—
specifically, the lack of any complaints of foot pain between July 2014
and December 2014 and during subsequent appointments with Dr.
Czesnowski—“suggest that the claimant’s surgery was successful at
resolving her left foot/ankle issues.” Dkt. 11-2, Pg. ID 68. The ALJ also
Furthermore, while the claimant did seek out treatment for her
foot/ankle pain from a specialist in January 2014 . . . the record also
reflects that she experienced significant pain improvement within
a year of surgery, a conclusion supported by Dr. Czesnowski’s
records. Therefore, it is determined that the claimant’s foot/ankle
problems never consistently prevented the limited range of
sedentary work described above.”
Dkt. 11-2, Pg. ID 68.
Upon reviewing Plaintiff’s objection and the underlying record, the
Court finds that Plaintiff’s first objection is not well founded. Plaintiff’s
objection that the ALJ committed reversible legal error by failing to
properly evaluate her os peroneum and Plaintiff’s 2014 surgery to correct
that condition is belied by the record. The record shows that the ALJ
based her findings regarding Plaintiff’s foot condition on the entire
record, including Plaintiff’s surgery to correct the condition, Plaintiff’s
behavior after the surgery—such as Plaintiff’s lack of complaints of foot
pain shortly thereafter and evidence suggesting significant pain
improvement within a year of surgery—and evidence suggesting Plaintiff
stopped taking pain medications in May 2014. Dkt. 11-2, Pg. ID 65, 67.
This evidence reflects “such relevant evidence as a reasonable mind
might accept to support the ALJ’s conclusion.” See Bass, 499 F.3d at 509
(6th Cir. 2007). Thus, the Court finds that the ALJ’s decision regarding
Plaintiff’s os peroneum condition and its impact on Plaintiff’s RFC is
supported by substantial evidence. This Court therefore OVERRULES
plaintiff’s objection and AFFIRMS Magistrate Judge Davis’s finding
that the ALJ properly evaluated Ms. Harden’s os peroneum foot condition
and the effects of her foot surgery.
B. Objection 2: The R&R erred in recommending a finding that
the ALJ provided good reasons supported by substantial
evidence for rejecting Plaintiff’s credibility.
Plaintiff argues that the ALJ failed to provide “good reasons”
supported by substantial evidence for rejecting her credibility. Dkt. 25,
Pg. ID 987. Plaintiff specifically takes issue with how the ALJ and Judge
Davis considered Plaintiff’s part-time employment and other activities as
indications of her functionality, which they found to weigh against
Plaintiff’s credibility. Dkt. 25, Pg. ID 988. Plaintiff contends that the ALJ
mischaracterized Plaintiff’s testimony regarding the nature and extent
to which she drives. Dkt. 25, Pg. Id 988. According to the ALJ, Plaintiff
stated that she drives at least twice per week, however the trial
transcript indicates Plaintiff testified that she drives “Maybe twice a
week, maybe. If I have to do something.” Dkt. 11-2, Pg. ID 84. Plaintiff
also argues that the R&R puts forward a “vague proposal that any
invocation of part-time work by an ALJ to discount credibility is
automatically proper,” and urges the court to not adopt the R&R. Dkt.
25, Pg. ID 988.
In response, the Commissioner argues that Plaintiff has failed to
establish that the Court should take the “extraordinary step of striking
down the ALJ’s credibility determination.” Dkt. 26, Pg. ID 1001. Indeed,
as Magistrate Judge Davis noted, “‘it is of course for the ALJ, and not the
reviewing court, to evaluate the credibility of witnesses, including that of
claimant . . . [though] such determinations must find support in the
record.’” Dkt. 24, Pg. ID 972 (citing Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 247 (6th Cir. 2007); see also Schmiedebusch v. Comm’r of Soc.
Sec., 536 Fed. Appx. 637, 649 (6th Cir. 2013) (“We accord an ALJ’s
credibility determinations great weight and deference, and are limited to
evaluating whether the ALJ’s explanations for partially discrediting a
claimant’s testimony are reasonable and supported by substantial
evidence in the record.”)). Relying on the authorities cited in its motion
for summary judgment, the Commissioner argues that the ALJ properly
weighed Plaintiff’s part-time work and other significant evidence in
finding Plaintiff’s disability allegations less than fully credible. Dkt. 26,
Pg. IDs 1001-02 (referencing Dkt. 21, Pg. IDs 9-14).
Ultimately, the ALJ found that Plaintiff’s activities and behavior
suggested a level of functionality greater than her claimed disabilities
would permit. Dkt. 11-2, Pg. ID 66. This Court affirms Magistrate Judge
Davis’s recommendation that the ALJ properly exercised discretion in
considering part time work performed by Plaintiff during the alleged
disability period when assessing Plaintiff’s credibility. Dkt. 24, Pg. ID
972. As cited by both parties, 20 C.F.R. §§ 404.1571, 416.971 provides
that an ability to perform work at less than the substantial gainful
activity level “may show that you are able to do more work than you
actually did.” Id.
As detailed above, on substantial evidence review, reviewing courts
uphold the agency’s inferences regardless of whether another reasonable,
and even a potentially opposite, inference could have been drawn. See,
e.g., Young v. Sec’y of Health & Human Servs., 787 F.2d 1064, 1066 (6th
Cir. 1986). Here, the Court finds substantial evidence supports the ALJ’s
credibility determination. As Judge Davis’s R&R explains:
[T]he ALJ’s finding that Plaintiff’s credibility was reduced was based
on the combination of several factors, with no one factor being
determinative. For instance, the ALJ found that plaintiff provided
inconsistent information regarding the effectiveness of opiate
mediation for her pain (Tr. 36), reported extreme symptoms, including
being “barely able to walk,” despite the fact that emergency room
personnel observed her ambulating with no difficulty (Id.), received
only routine and/or conservative treatment for the allegedly disabling
impairments, and went months without receiving any treatment. Id.
Dkt. 24, Pg. ID 973.
Plaintiff points to other evidence before the ALJ that could weigh in
favor of a different credibility finding than the one the ALJ reached. Dkt.
25, Pg. ID 989-90. Even so, the issue before this Court is whether the
ALJ’s decision is supported by substantial evidence in the record, not
whether another finding may also be supported by the evidence. See
McClanahan, 474 F.3d at 833. Although Plaintiff is correct that the ALJ
somewhat misstated Plaintiff’s testimony by saying that she drives “at
least twice per week,” when she actually testified she drove “maybe twice
a week” but only when she needed to do so, this error is not material
where the ALJ relied on several other factors as well. It does not appear
that this mischaracterization had a significant impact on the ALJ’s
credibility finding, or on Magistrate Judge Davis’s finding affirming the
same. As cited above, Judge Davis affirmed the ALJ’s credibility
determination based on a “combination of several factors” with no one
factor being determinative. Dkt. 24, Pg. ID 973. Thus, the Court finds
that the record contains substantial evidence upon which the ALJ could
rely in discounting Plaintiff’s credibility. This Court therefore
OVERRULES Plaintiff’s second objection and AFFIRMS Judge Davis’s
recommendation that the ALJ did not err in assessing Plaintiff’s
C. Objection 3: The R&R erred in recommending a finding that
Dr. Czesnowski’s opinion concerning Plaintiff’s limitations
was not a “medical opinion” and that the ALJ properly
Plaintiff also argues that the ALJ erred by discounting the opinions of
Dr. Czesnowski. Dkt. 25, Pg. IDs 992-994. Specifically, Plaintiff argues
that Dr. Czesnowski’s statements plainly identify the medical and
functional limitations he agrees are experienced by Plaintiff as a result
of her condition, and therefore constitute a “medical opinion.” Dkt. 25,
Pg. ID 993. Plaintiff argues that the ALJ and Magistrate Judge Davis
improperly concluded that Dr. Czesnowski’s statements were not a
medical opinion and further that the ALJ’s reasons for discrediting Dr.
Czesnowski’s opinion are not supported by substantial evidence. Id.
The Commissioner replies by referencing the argument in its motion
for summary judgment, Dkt. 21, that the ALJ offered extensive reasons
for assigning “very little weight” to Dr. Czesnowski’s opinion. Dkt. 21, Pg.
ID 930. The Commissioner argues the ALJ reasonably concluded that Dr.
Czesnowski’s opinion merely repeated plaintiff’s allegations, rather than
providing a medical opinion pursuant to SSR 03-3p. Id.
The Sixth Circuit has held that it is not improper for an ALJ to
consider whether a physician has identified objective medical findings to
support a medical opinion. See Price v. Comm’r of Soc. Sec., 342 Fed.
Appx. 172, 176 (6th Cir. 2009). Reviewing Dr. Czesnowski’s March 13,
2015 medical source statement, Dkt. 11-7, Pg. IDs 572-78, and her
treatment records, it is clear they do not contain objective medical
findings, such as physical exam results, x-ray findings, lab tests, or
similar test results that address and explain how the nature and severity
of Plaintiff’s impairments restrict or impact her ability to work. This
Court agrees with Magistrate Judge Davis’ finding that the medical
source statement reflects a “recitation of plaintiff’s subjective reports of
symptoms and restrictions, and a series of checked off functional
limitations without supporting explanation or clinical records.” Dkt. 24,
Pg. ID 976-77. In response to instructions to provide the medical or
clinical findings to support the physician’s assessment or limitations and
why, Dr. Czesnowski responds with statements referencing Plaintiff’s
descriptions of her symptoms and history. Dkt. 11-7, Pg. IDs 572-78.
While medical history is one of the sources that a physician may
reference, the report lacks any objective determinations about the nature
and severity of Plaintiff’s symptoms. There is no medical opinion from
Dr. Czesnowski addressing what the Plaintiff can still do despite her
impairment(s) and physical/mental restrictions, nor is there any
explanation for her conclusions. Although Dr. Czesnowski’s treatment
records from prior visits indicate some clinical findings,1 these records
lack any medical findings as to the impact of Plaintiff’s condition on her
ability to work. The Magistrate Judge was justified in giving Dr.
Czesnowski’s opinion less weight.
Thus, upon reviewing the record, Plaintiff’s objections, and
Defendant’s reply, this Court OVERRULES Plaintiff’s third objection
and AFFIRMS Magistrate Judge’s recommendation that substantial
For instance, Dkt. 11-8, Pg. ID 581 is a medical record documenting Plaintiff’s
visit to Dr. Czesnowski on December 8, 2014, where Dr. Czesnowski identifies
“Lumbar paraspinal muscle tenderness noted on exam” and “muscle spasms noted
on exam.” Id. However, in Dr. Czesnowski’s subsequent medical source statement,
Dkt. 11-7, Pg. IDs 572-78, Dr. Czesnowski refers to Plaintiff’s own recitation of her
symptoms and her history of prior diagnoses. Dkt. 11-7, Pg. IDs 572-78.
evidence supports the ALJ’s decision to discount the opinions of Dr.
D. Objection 4: The R&R erred in recommending a finding
that the ALJ had no duty to inquire about apparent
conflicts between the Vocational Expert (“VE”) testimony
and the Dictionary of Occupational Titles (“DOT”).
Plaintiff’s fourth objection argues that the ALJ failed to question the
VE regarding an alleged apparent conflict between the VE’s testimony
and the Dictionary of Occupational Titles for the three jobs that the VE
testified plaintiff could perform. Dkt. 25, Pg. IDs 994-95. Plaintiff argues
that the three jobs relied upon by the ALJ require level 3 reasoning,
which is in conflict with the ALJ’s RFC finding limiting Ms. Harden to
unskilled jobs that involve only “simple, routine tasks.” Dkt. 25, Pg. ID
The Commissioner again rested on the arguments advanced in her
motion for summary judgment, Dkt. 21, Pg. IDs 18-22, where she
contended that the ALJ fulfilled her obligation under SSR 00-4p by
requesting that the VE inform the ALJ if his testimony was inconsistent
with the DOT. Dkt. 26, Pg. ID 1002. The Commissioner also argues that
while some courts have found that jobs with a DOT reasoning level of 3
are not consistent with a mental RFC limitation to simple and routine
work, the “great majority of courts have ruled to the contrary.” Dkt. 21,
Pg. ID 934 (citing Moran v. Comm’r of Social Security, 40 F. Supp. 3d
896, 930-31 & n.14 (E.D. Mich. 2014)).
The Sixth Circuit has found that, as a matter of law, the ALJ fulfills
her duty under SSR 00-4p by asking the VE to identify conflicts with the
DOT and by considering and resolving any such conflicts. See Lindsley v.
Comm’r of Social Security, 560 F.3d 601, 605-06 (6th Cir. 2009). Here,
the ALJ specifically asked the VE to inform her if any of the VE’s
testimony was inconsistent with the DOT. Dkt. 11-2, Pg. ID 117. The VE
replied that he would do so. Id. Indeed, immediately thereafter, the VE
informed the ALJ that the “sit/stand” option was not addressed by the
DOT, and that any response to questions about the sit/stand option would
be based on the VE’s “experience and observations in the labor market.”
Plaintiff takes issue with the R&R’s reliance on Kepke v. Commr. Of
Soc. Sec., 636 Fed. Appx. 625, 637 (6th Cir. 2016)—an unpublished
opinion—for the proposition that ALJs are not required to investigate to
determine the accuracy of a VE’s testimony, especially when the claimant
fails to bring any conflict to the attention of the ALJ. Dkt. 25, Pg. ID 995.
However, Kepke reflects good law. Here, since neither the VE nor
plaintiff’s attorney brought up a potential conflict between the RFC and
the DOT reasoning level of the identified jobs, the ALJ did not commit
error by relying on the VE’s testimony.
Moreover, Plaintiff’s argument that there is an “apparent conflict”
between the ALJ’s RFC finding (limiting Ms. Harden to unskilled jobs
that involve only simple routine tasks) and the DOT “level 3” reasoning
requirement for the three jobs the VE testified plaintiff could perform
also lacks merit. The Sixth Circuit has found that the ALJ and consulting
VEs are not bound by the DOT in making disability determinations
because the Social Security regulations do not obligate them to rely on
the DOT’s classifications. See Wright v. Massanari, 321 F.3d 611, 616
(6th Cir. 2003) (citing Conn v. Secretary of Health & Human Services, 51
F.3d 607, 610 (6th Cir. 1995)). In addition, in an unpublished opinion, the
Sixth Circuit has rejected the proposition that jobs requiring reasoning
levels two or three are inconsistent as a matter of law with a limitation
to unskilled jobs using simple, routine tasks. Monateri v. Comm’r of Soc.
Sec., 436 Fed. Appx. 434, 446 (6th Cir. 2011).2 Dkt. 21, Pg. ID 934. Upon
reviewing the record, Plaintiff’s objections, and the Commissioner’s reply,
this Court finds that: 1) the ALJ fulfilled its obligation to inquire about
conflicts with the VE under SSR 00-4p; 2) the applicable Social Security
regulations do not require the ALJ or VE to adopt the DOT’s
characterization of occupations; and 3) neither the VE nor Plaintiff’s
attorney raised the potential conflict between the RFC and DOT
Nevertheless, the Court acknowledges that a circuit split exists about whether
“reasoning level three” positions are consistent with limitations to simple and
routine work. As explained in Moran v. Commissioner of Social Sec., while many
circuits find no inconsistency, some courts have found that a level three reasoning
requirement precludes simple and routine work. 40 F. Supp. 3d, 896, 931-932 (E.D.
Mich. 2014) (explaining the circuit split and collecting cases). As stated, however,
the Sixth Circuit has held that neither the Commissioner nor the VE has an
obligation to employ the DOT, and there is no precedent that requires the
Commissioner to align DOT ‘reasoning levels’ with RFC classifications. Id. (citing
Monateri, 436 Fed. Appx. at 446).
reasoning level of the identified jobs. Thus this Court AFFIRMS
Magistrate Judge Davis’s R&R that the ALJ did not commit error in
relying on the VE’s testimony in this regard and OVERRULES
Plaintiff’s fourth objection.
The Court has carefully reviewed the Magistrate Judge’s Report and
Recommendation, and finds the R&R well-reasoned and supported by the
relevant law. The Court will therefore adopt it as this Court’s findings of
fact and conclusions of law.
Accordingly, Plaintiff’s objections are OVERRULED, Magistrate
Judge Davis’s Report and Recommendation is ADOPTED. Defendant’s
motion for summary judgment is GRANTED, and this case is
Dated: September 29, 2017
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served on September 29, 2017.
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