Schwarz v. US Social Security Administration, Acting Commissioner

Filing 10

///ORDER denying 6 Motion to Reverse Decision of Commissioner; and granting 9 Motion to Affirm Decision of Commissioner. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Prudence Louise Schwarz,
Claimant
v.

Case No. 16-cv-163-SM
Opinion No. 2017 DNH 167

Nancy A. Berryhill, Acting Commissioner,
Social Security Administration,
Defendant

O R D E R

Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Prudence Schwarz, moves to reverse or vacate the Acting
Commissioner’s decision denying her applications for Disability
Insurance Benefits under Title II of the Social Security Act and
Supplemental Security Income Benefits under Title XVI.
U.S.C. §§ 423, 1381-1383c (collectively, the “Act”).

See 42

The Acting

Commissioner objects and moves for an order affirming her
decision.

For the reasons discussed below, claimant’s motion is
denied, and the Acting Commissioner’s motion is granted.

Factual Background
I.

Procedural History.
In May of 2013, claimant filed applications for Disability

Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”), alleging that she was disabled and had been unable to
work since October 20, 2011.

Claimant was 31 years old at the

time and had acquired sufficient quarters of coverage to remain
insured through September 30, 2013.

Those applications were

denied and claimant requested a hearing before an Administrative
Law Judge (“ALJ”).

In December of 2014, claimant, her attorney, and an
impartial vocational expert appeared by video conferencing
before an ALJ, who considered claimant’s applications de novo.
Six weeks later, the ALJ issued his written decision, concluding
that claimant was not disabled, as that term is defined in the
Act, at any time prior to the date of his decision.
then requested review by the Appeals Council.
denied.

Claimant

That request was

Accordingly, the ALJ’s denial of claimant’s

applications for benefits became the final decision of the
Acting Commissioner, subject to judicial review.

Subsequently,

claimant filed a timely action in this court, asserting that the
ALJ’s decision is not supported by substantial evidence.

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Claimant then filed a “Motion to Reverse Decision of the
Commissioner” (document no. 6).

In response, the Acting

Commissioner filed a “Motion for an Order Affirming the Decision
of the Commissioner” (document no. 9).

Those motions are

pending.

II.

Stipulated Facts.
Pursuant to this court’s Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts which, because
it is part of the court’s record (document no. 8), need not be
recounted in this opinion.

Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review
I.

“Substantial Evidence” and Deferential Review.
Pursuant to 42 U.S.C. § 405(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.”

Factual findings and credibility

determinations made by the Commissioner are conclusive if
supported by substantial evidence.
1383(c)(3).

See 42 U.S.C. §§ 405(g),

See also Irlanda Ortiz v. Secretary of Health &

Human Services, 955 F.2d 765, 769 (1st Cir. 1991).

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Substantial

evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”

Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

Importantly, it

is something less than a preponderance of the evidence, so the
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.

Consolo v.

Federal Maritime Comm’n., 383 U.S. 607, 620 (1966).

See also

Richardson v. Perales, 402 U.S. 389, 401 (1971).

II.

The Parties’ Respective Burdens.
An individual seeking SSI and/or DIB benefits is disabled

under the Act if he or she is unable “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.”

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U.S.C. § 423(d)(1)(A).

The

See also 42 U.S.C. § 1382c(a)(3).

Act places a heavy initial burden on the claimant to establish
the existence of a disabling impairment.

See Bowen v. Yuckert,

482 U.S. 137, 146-47 (1987); Santiago v. Secretary of Health &
Human Services, 944 F.2d 1, 5 (1st Cir. 1991).

To satisfy that

burden, the claimant must prove, by a preponderance of the
evidence, that her impairment prevents her from performing her

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former type of work.

See Gray v. Heckler, 760 F.2d 369, 371

(1st Cir. 1985); Paone v. Schweiker, 530 F. Supp. 808, 810-11
(D. Mass. 1982).

If the claimant demonstrates an inability to

perform her previous work, the burden shifts to the Commissioner
to show that there are other jobs in the national economy that
she can perform, in light of her age, education, and prior work
experience.

See Vazquez v. Secretary of Health & Human

Services, 683 F.2d 1, 2 (1st Cir. 1982).

See also 20 C.F.R. §§

404.1512(f) and 416.912(f).

In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant’s subjective claims of pain and
disability, as supported by the testimony of the claimant or
other witnesses; and (3) the claimant’s educational background,
age, and work experience.

See, e.g., Avery v. Secretary of

Health & Human Services, 797 F.2d 19, 23 (1st Cir. 1986);
Goodermote v. Secretary of Health & Human Services, 690 F.2d 5,
6 (1st Cir. 1982).

Ultimately, a claimant is disabled only if

her:

physical or mental impairment or impairments are of
such severity that [she] is not only unable to do
[her] previous work but cannot, considering [her] age,
education, and work experience, engage in any other
kind of substantial gainful work which exists in the
national economy, regardless of whether such work

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exists in the immediate area in which [she] lives, or
whether a specific job vacancy exists for [her], or
whether [she] would be hired if [she] applied for
work.

42 U.S.C. § 423(d)(2)(A).

See also 42 U.S.C. § 1382c(a)(3)(B).

With those principles in mind, the court reviews claimant’s
motion to reverse and the Acting Commissioner’s motion to affirm
her decision.

Background - The ALJ’s Findings
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory
five-step sequential evaluation process described in 20 C.F.R.
§§ 404.1520 and 416.920.
U.S. 20, 24 (2003).

See generally Barnhart v. Thomas, 540

Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment
since her alleged onset of disability: October 20, 2011.
Rec. at 18.

Admin.

Next, he concluded that claimant suffers from the

following severe impairments: “a right should impingement, s/p
multiple surgeries; bilateral carpal tunnel syndrome, s/p
surgery; degenerative disc disease (cervical and lumbar spines)
and obesity.”

Id.

But, the ALJ determined that claimant’s

impairments, whether considered alone or in combination, did not
meet or medically equal one of the impairments listed in Part

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404, Subpart P, Appendix 1 of the regulations.

Admin. Rec. at

23.

Next, the ALJ concluded that claimant retained the residual
functional capacity (“RFC”) to perform the exertional demands of
“sedentary” work, subject to the following limitations: “she is
able to perform overhead reaching with the right upper extremity
occasionally (up to a maximum of 1/3 of the workday); to perform
all postural activities occasionally; and to perform grasping
and handling with the bilateral upper extremities frequently (up
to a maximum of 2/3 of the workday).”

Admin. Rec. at 24.

In

light of those restrictions, the ALJ concluded that claimant was
not capable of performing any past relevant work.

Id. at 28.

See also Id. at 55-56 (vocational expert’s testimony about
claimant’s work history).

At the final step of the analysis, the ALJ considered
whether there are any jobs in the national economy that claimant
might perform.

Relying upon the testimony of the vocational

expert, the ALJ concluded that, notwithstanding claimant’s
exertional and non-exertional limitations, “the claimant is
capable of making a successful adjustment to other work that
exists in significant numbers in the national economy.”
29-30.

Consequently, the ALJ concluded that claimant was not

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Id. at

“disabled,” as that term is defined in the Act, through the date
of his decision.

Discussion
Claimant challenges the ALJ’s decision on two grounds,
asserting that he erred: (1) by failing to give substantial
weight to the opinion of a treating physician, who opined that
she could only “rarely” reach in any direction (including
overhead); and (2) by concluding, without the benefit of a
supporting medical opinion, that claimant could perform
activities that require grasping and handling for up to twothirds of a workday.

I.

Treating Source Opinions.
In discussing the weight that will be ascribed to the

opinions of “treating sources,” the pertinent regulations
provide:

Generally, we give more weight to opinions from [the
claimant’s] treating sources, since these sources are
likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [the
claimant’s] medical impairment(s) . . . When we do
not give the treating source’s opinion controlling
weight, we apply the factors listed [in this section]
in determining the weight to give the opinion. We
will always give good reasons in our notice of
determination or decision for the weight we give [the
claimant’s] treating source’s opinion.

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20 C.F.R. ' 404.1527(c)(2).

See also Social Security Ruling,

Policy Interpretation Ruling Titles II and XVI: Giving
Controlling Weight to Treating Source Medical Opinions, SSR 962p, 1996 WL 374188 (July 2, 1996).

Importantly, however, there

is no per se rule requiring the ALJ to give greater weight to
the opinion of a treating source.

To be entitled to controlling

weight, a treating source’s opinions must be “well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and [cannot be] inconsistent with the other
substantial evidence in [the] case record.”

20 C.F.R. §

404.1527(c)(2).

Here, claimant asserts that the ALJ should have accepted
the opinion of her primary care physician, Kenton Powell, M.D.,
who, in completing a Medical Source Statement, checked a box
that indicates claimant has the ability to “rarely” reach in any
direction (including overhead).

Medical Source Statement (dated

November 6, 2014), Admin. Rec. at 746.

According to claimant,

the ALJ improperly discounted that opinion and gave too much
weight to the opinions of a non-examining physician and a
consultative examining physician.

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In September of 2013, Peter Loeser, M.D., conducted a
consultative examination of claimant.

The only “positive

findings” he reported were: “Moderate pain with movement of
right shoulder, but intact range of motion.

Mild pain on

palpation of the right glenohumeral joint without crepitus,
effusion, or atrophy of the supporting musculature.”
Rec. at 424.

Admin.

In his “assessment” of claimant’s physical

condition, Dr. Loeser concluded:

Bilateral shoulder pain: There are subjective findings
related to the patient’s right shoulder, but otherwise
there were no significant finding[s] on physical
examination. There is no available supporting
documentation for these symptoms; however there are
several office visits for other issues (including
other pain related musculoskeletal symptoms) without
mention of shoulder pain or related findings. Though
the patient states these symptoms are having a
significant impact on her overall ability to function,
there is insufficient evidence to support this
conclusion.

Id.

Subsequently, on November 17, 2013, a non-examining state

agency physician, Burton Nault, M.D., reviewed claimant’s thenavailable medical records and concluded that she retained the
RFC to perform light work, Id. at 78, with no more than
“occasional overhead reaching with the right shoulder,” id.
also Id. at 76 (noting that claimant should “avoid more than
occ[asional] overhead reaching with right shoulder”).

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See

The opinions of both Dr. Loeser and Dr. Nault are
consistent with the medical evidence as well as claimant’s
reported daily activity.

For example, in September of 2013,

claimant underwent a consultative psychological examination by
Anna Hutton, Psy.D.

At that time, she reported that a “typical

day” consisted of the following:

Ms. Schwarz wakes up between 5 and 6. She gets the
children ready for school. She drives one of the
children to his school. She then does grocery
shopping and does laundry and cleans the house. She
picks up food for dinner and picks up one son from
school. She gets him started on his homework and goes
to the bus stop to pick up the other children. She
gets dinner ready for the family then gets her
children in the showers and ready for bed. She has
story time with the children and gets the children in
bed by 7:30. Her husband goes to bed around 8. She
then has a bit of “me time” to reply to emails. She
spends time completing paperwork for her children’s
school, getting things prepared for the next morning
and she goes to bed around 11. There are typically at
least 2 doctor’s appointments a week for herself or
one of her family members.

Admin. Rec. at 429.

And, based upon her examination of

claimant, Dr. Hutton concluded that the “degree of assistance”
claimant required with the following activities of daily living
was “appropriate” - household activities, shopping, cooking,
transportation, paying bills, maintaining her residence, and
daily grooming and hygiene.

Id.

See also Id. at 199 (in her

statement about her activities of daily living, dated July 6,
2013, claimant stated that despite the fact that it “hurts a lot

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to try and play sports,” she “plays basketball and football with
the kids” about “once a week or so”).

Nevertheless, says claimant, subsequent medical records
which were not available to Dr. Nault and Dr. Loeser demonstrate
that she suffers from more substantial physical limitations.
Consequently, she says the ALJ erred in giving so much weight to
the opinions of those physicians and should, instead, have
deferred to those of her treating physician.

The court is,

however, constrained to disagree.

The medical evidence of record relating to the period
between October of 2013 and November of 2014 (the most recent
evidence submitted prior to claimant’s hearing) is largely
consistent with the opinions expressed by both Dr. Nault and Dr.
Loeser.

The pain and other symptoms of claimant’s carpal tunnel

syndrome (discussed more fully below) were almost entirely
resolved by surgery.

And, as the ALJ noted, her shoulder pain

appears to have been largely intermittent and transitory frequently brought on by either trauma or over-exertion:

While the claimant is noted to experience some
intermittent flare-ups of spinal pain (and shoulder
pain) throughout the period under review, including
subsequent to a reported motor vehicle accident in
June of 2012 (as well as after a sledding incident in
February of 2013; after lifting wood in September of

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2013; and after riding an amusement ride in July of
2014), her temporary exacerbations are noted to
resolve within a period of less than 12 months.

Admin. Rec. at 25 (citations omitted).

Indeed, during an annual

physical evaluation by Dr. Kenton in October of 2014, claimant
reported ”no numbness, tingling, loss of sensation, weakness or
function of limbs,” and no musculoskeletal weakness or pain, at
rest or with movement.

Admin. Rec. at 753.

And, Dr. Kenton

reported that claimant retained full range of motion in her neck
and she retained strength in both her “upper and lower
extremities” at “5/5.”

Id. at 756.

While there is certainly some evidence of mild spinal
stenosis and cervical radiculopathy, a consulting neurologist
examined claimant, reviewed and her diagnostic imaging, and
opined that “it is unlikely that the cervical pathology present
is causing all of her current symptoms, . . . . [and] it is most
probable that she is experiencing somatization on top of her
chronic neck pain.”

Consult Note of Vijay Thadani, M.D. (dated

July 31, 2014), Admin. Rec. at 772.

He recommended conservative

treatment and opined that, “the best course of action at this
point is reassurance and validation of her experiences, as well
as physical therapy to regain function.”

Id.

Although Dr.

Thadani recommended both “PT [physical therapy] and rehab to

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regain function,” id., there is no indication in the record that
claimant sought or obtained any physical therapy or
rehabilitative services.

Finally, it bears noting that the ALJ specifically
acknowledged that he was aware that new medical evidence became
part of the record after Dr. Nault and Dr. Loeser prepared their
reports.

See Admin. Rec. at 27.

And, based upon that new

evidence, the ALJ gave claimant “the benefit of the doubt and
[found] that her reported ongoing pain symptoms credibly limit
her to the performance of a range of sedentary exertion work
with some postural and grasping/handling limitations.”

Id.

That is to say, based upon the new medical evidence, the ALJ
concluded that claimant’s impairments imposed upon her slightly
greater restrictions than the “light” work RFC to which Dr.
Nault opined.

Given the record evidence, the court cannot conclude that
the ALJ’s conclusion about claimant’s reaching ability, or his
decision to rely upon the expert opinions of Dr. Nault and Dr.
Loeser, is unsupported by substantial evidence.

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II.

RFC and Grasping/Handling Limitations.
Next, claimant asserts that the ALJ erred in concluding

that she retains the RFC to “frequently” perform activities that
require grasping and/or handling of objects.

In support of that

argument, claimant notes that while Dr. Nault opined that
claimant’s ability to handle objects was “unlimited,” id. at 90,
her treating physician opined that she was limited to only
“occasional” handling of objects, id. at 746.

And, although the

ALJ gave “great weight” to the opinions of Dr. Nault, he
concluded that claimant did not have an “unlimited” ability to
handle objects.

Once again, crediting claimant’s “reported

ongoing pain symptoms,” the ALJ determined that she did, indeed,
have slightly greater limitations than those to which Dr. Nault
opined.

Claimant challenges those findings, saying the ALJ
impermissibly “chart[ed] a middle course” between Dr. Nault’s
opinion (i.e., an “unlimited” ability to handle objects) and the
opinion of her treating physician, Dr. Powell (i.e., an ability
to handle object only “occasionally”).
18.

Claimant’s memorandum at

By doing so, says claimant, the ALJ arrived at an RFC that

was unsupported by a medical opinion.

And, “lacking a

supporting assessment from a medical expert, the ALJ should
either have recontacted the [claimant’s] treating sources

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concerning the limitations imposed by her impairments or ordered
her to undergo [another] consultative examination by a medical
professional.”

Id. at 20-21.

According to claimant, “the ALJ’s

failure to do either was a significant legal error.”

Id.

But, the ALJ’s determination of claimant’s limitations is
supported by substantial evidence in the record (including, for
example, claimant’s entirely positive response to carpal tunnel
release surgery) and there was no need to seek a second
consultative examination.

See, e.g., Childers v. Colvin, No.

14-CV-270-JL, 2015 WL 4415129, at *2 (D.N.H. July 17, 2015) (“It
is generally true that an ALJ is not qualified to interpret raw
medical data in functional terms.

But even assuming the ALJ

committed such an error, it is harmless where, as here, the RFC
finding is more favorable to a claimant than the medical record
supports.

Against this backdrop, the fact that the ALJ gave

[claimant] the benefit of the doubt in concluding that her
physical RFC was more limited than the physicians’ assessment
should not be used to discount the ALJ’s determination.”)
(citations and internal punctuation omitted).

This is not a situation in which the ALJ proceeded in the
absence of an RFC assessment by a medical expert, or relied upon
a “single decisionmaker.”

Consequently, claimant’s reliance

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upon Levesque v. Colvin, 2014 WL 4531743, 2014 DNH 191 (D.N.H.
Sept. 11, 2014) is misplaced.

Instead, as was the case in

Childers, the ALJ considered the additional record evidence,
gave claimant the benefit of the doubt, credited (to some
degree) her subjective complaints of pain, and concluded that
her RFC was more limited than Dr. Nault believed.

As it relates

to claimant’s ability to handle/grasp objects, the additional
medical evidence reveals that claimant obtained substantial
relief from right and left carpal tunnel surgeries, which were
performed in August (right wrist) and September (left wrist) of
2014.

See Admin. Rec. at 613, 625-28.

See also Id. at 743

(“Patient has done well after surgery with no apparent
complications.”).

And, by September of 2014, she was reported

to have “strength 5/5 right and left upper and lower
extremities” with “sensation to light touch in ext[remities]
intact.”

Id. at 760.

By October of 2014, she reported that,

although she engaged in “no formal exercise” she was,
nevertheless, “active” and had “returned to full daily
activities.”

Id. at 742.

Additionally, her extremity joints

were normal, id. at 756; her neck had full range of motion, id.
at 751, 756; she had 5/5 upper extremity strength with normal
sensation, id. at 756; her musculoskeletal range of motion was
normal, id. at 751; and she had no complaints except those

17 

related to a transitory infection of her left wrist (following
carpal tunnel surgery), id. at 743, 751.

The ALJ properly considered the medical evidence added to
the record after Dr. Nault conducted his review and concluded
that it demonstrated that claimant’s ability to handle/grasp
objects was slightly more limited than Dr. Nault had opined.
Given the circumstances of this case, that was not error.

There

is substantial evidence to support the ALJ’s conclusion that
claimant retains the ability to engage in such activities
“frequently” (that is, up to two-thirds of a work day).

Finally, as the Commissioner notes, even if the ALJ had
accepted Dr. Kenton’s opinion that claimant can handle objects
only “occasionally,” that would not have affected the outcome of
the case.

At claimant’s hearing, the vocational expert

testified that one of the sedentary jobs she could perform is
that of a “telephone solicitor” (DOT number 299.357-014).
job requires only “occasional” handling of objects.

That

See

Dictionary of Occupational Titles, Telephone Solicitor, 1991 WL
672624 (1991).

And, the vocational expert testified that there

is a “significant number” of those jobs in the regional and
national economy (i.e., 1,000 and 160,000, respectively).

See

generally, Dashnaw v. Astrue, No. 10-CV-456-SM, 2011 WL 5040708,

18 

at *6 (D.N.H. Oct. 24, 2011) (“The vocational expert testified
that more than 30,000 positions exist in the national economy
for the three sedentary jobs identified by the ALJ.

That is a

‘significant number’ of jobs in the national economy”) (citing
Vining v. Secretary of Health & Human Services, 720 F. Supp. 2d
126, 137 (D.Me. 2010)).

Conclusion
Judicial review of the ALJ’s decision is both limited and
deferential.

This court is not empowered to consider claimant’s

application de novo, nor may it undertake an independent
assessment of whether she is disabled under the Act.
Consequently, the issue before the court is not whether it
believes claimant is disabled.

Rather, the permissible inquiry

is “limited to determining whether the ALJ deployed the proper
legal standards and found facts upon the proper quantum of
evidence.”

Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).

Provided the ALJ’s findings are properly supported by
substantial evidence - as they are in this case - the court must
sustain those findings even when there may also be substantial
evidence supporting the contrary position.

Such is the nature

of judicial review of disability benefit determinations.

See,

e.g., Tsarelka v. Secretary of Health & Human Services, 842 F.2d
529, 535 (1st Cir. 1988) (“[W]e must uphold the [Commissioner’s]

19 

conclusion, even if the record arguably could justify a
different conclusion, so long as it is supported by substantial
evidence.”); Rodriguez v. Secretary of Health & Human Services,
647 F.2d 218, 222 (1st Cir. 1981) (“We must uphold the
[Commissioner’s] findings in this case if a reasonable mind,
reviewing the evidence in the record as a whole, could accept it
as adequate to support his conclusion.”).

Having carefully reviewed the administrative record and the
arguments advanced by both the Acting Commissioner and claimant,
the court concludes that there is substantial evidence in the
record to support the ALJ’s determination that claimant was not
“disabled,” as that term is used in the Act, at any time prior
to the date of the ALJ’s decision (January 29, 2015).

The ALJ’s

assessment of claimant’s ability to reach, his discussion of the
weight afforded to the opinions of claimant’s treating
physician, and his conclusions about claimant’s ability to grasp
and handle objects, are all well-reasoned and adequately
supported by substantial documentary evidence.

For the foregoing reasons, as well as those set forth in
the Acting Commissioner’s legal memorandum, claimant’s motion to
reverse the decision of the Commissioner (document no. 6) is
denied, and the Acting Commissioner’s motion to affirm her

20 

decision (document no. 9) is granted.

The Clerk of the Court

shall enter judgment in accordance with this order and close the
case.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
August 30, 2017
cc:

Peter K. Marsh, Esq.
Terry L. Ollila, AUSA 

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