RIVERA v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION. Signed by Judge Robert B. Kugler on 3/22/2018. (tf, )
UNPUBLISHED OPINION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
Jose L. RIVERA,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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Civil No. 17-1593 (RBK)
OPINION
KUGLER, United States District Judge:
This matter comes before the Court upon the appeal of Plaintiff Jose L. Rivera for review
of the final decision of the Commissioner of Social Security. (Doc. No. 1.) The Commissioner
denied Plaintiff’s application for Social Security Disability Insurance Benefits, finding Plaintiff
was not disabled as defined by the Social Security Act. As explained below, the decision of the
Commissioner is AFFIRMED.
I.
THE FACTS
Plaintiff’s History
We begin by recounting the relevant history of Plaintiff Jose L. Rivera. Born in 1968,
Plaintiff never obtained an education beyond the eighth grade, and never obtained a GED. (R.
493.) At approximately the time of the decision that we review today, Plaintiff was living at his
niece’s home (R. 130), where he did “a little laundry,” never cooked meals, and babysat, but mostly
did, in his own words, “nothing.” (R. 133.) Plaintiff has stated he enjoys reading the paper. (R.
497.)
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Plaintiff has worked as a janitor, factory worker, post care maker, machine operator, and
gas station attendant in the past. (R. 38, 489.) The ALJ found that claimant has not engaged in
substantial gainful activity since 2008. (R. 25.)
Plaintiff has some serious medical problems. He has a loss of vision in his right eye due to
a childhood injury and reportedly experiences headaches and dizziness when he looks or focuses.
(R. 29.) Plaintiff is obese, has a history of drug abuse, and suffers from hepatitis C and septic
arthritis. (R. 25.) Although there are gaps in Plaintiff’s treatment record, Plaintiff received
methadone treatment until at least July 2015. (R. 112, 620.) Notes also reveal that Plaintiff used
heroin in June 2012 and March 2014. (R. 944, 948.)
Plaintiff has also had cardiovascular health problems in the recent past. In 2008, he was
hospitalized for lower extremity pain and swelling. (R. 642.) Testing revealed severe mitral
regurgitations with vegetation, and an abscess on the mitral valve. (R. 642.) Plaintiff was treated
for his endocarditis and underwent surgery. (R. 642-43.) At least one doctor has noted that
Plaintiff’s endocarditis was “probably secondary to a contaminated needle.” (R. 102.) A September
2009 examination with Thierry Momplaisir, M.D., revealed normal examination findings,
including normal extremities, pulmonary sounds, and blood pressure, as well as a regular heartbeat.
(R. 609.) Dr. Momplaisir recorded similar findings in December 2008. (R. 606.) In 2009, state
agency physician Joseph Michel, M.D., reviewing Plaintiff’s prior application for social security
benefits, noted that Plaintiff could occasionally lift twenty pounds; frequently lift ten pounds; sit
for six hours in an eight-hour day; stand or walk for six hours in an eight-hour day; push and pull
on an unlimited basis; and occasionally perform postural activities; and should “avoid concentrated
exposure” to “hazards.” (R. 613-16.)
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In August 2009, a psychologist, Dr. Lewis Lazarus, diagnosed Plaintiff as having a learning
disorder “not otherwise specified.” (R. 622.) Dr. Lazarus also estimated that Plaintiff “functioned
at best within the borderline range” of intelligence, “with a limited and well below average general
fund of knowledge.” (R. 621.) He also found that Plaintiff’s memory skills were compromised
with respect to recent memory and new learning, and that Plaintiff’s attention and concentration
were “marked by difficulties with persistence.” (R. 621.) Plaintiff “was able to perform counting
and simple calculations, but was very poor in doing Serial 3s.” (R. 621.) Plaintiff was also “able
to correctly repeat six digits in the same order of presentation” but “only three digits in the reverse
condition consistently and correctly.” (R. 621.) Dr. Lazarus also observed that Plaintiff had a
depressed and apathetic affect, full orientation, fair insight and judgment, and demonstrated
appropriate eye contact, fluent and clear speech, and coherent and goal-oriented thought processes.
(R. 621.) Dr. Lazarus diagnosed a depressive disorder, and, after learning about Plaintiff’s
extensive history of substance abuse, also diagnosed polysubstance abuse in sustained full
remission. (R. 621.) In response to these, Dr. Lazarus recommended vocational assessment and
rehabilitation for Plaintiff’s physical condition as well as for his cognitive and learning limitations.
(R. 622.) Dr. Lazarus believed that Plaintiff was “capable of effectively managing funds at this
time” but “some supervision is recommended in light of his questionable reasoning and judgment
as well as suspected limited level of intellectual functioning.” (R. 622.)
In September 2009, a non-examining state agency psychiatrist, Dr. Nenuca Bustos,
determined that Plaintiff had a mild restriction of his activities of daily living; mild difficulties
maintaining social functioning; moderate difficulties maintaining concentration, persistence, or
pace; and no episodes of deterioration or decompensation of extended duration. (R. 633.) The
psychiatrist stated that a residual functional capacity assessment was necessary. (R. 623.)
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In January 2010, Plaintiff was hospitalized for sudden shortness of breath. (R. 698.) He
tested positive for influenza A and was treated with Tamiflu, as well as other medications.
(R. 695-98.) Diagnoses notes indicated he had hepatitis C as well. (R. 736.) On separate occasions
that year, Plaintiff received emergency treatment for bacterial pneumonia and also treatment for
chest pain. (R. 882-83.)
In December 2011, treatment notes revealed that Plaintiff was snorting heroin after he had
run out of a drug, Coumadin, prescribed to him for his heart. (R. 809.) In January 2012, treatment
notes indicate that Plaintiff complained that the mother of his three children was frequently sick,
“so the ‘burden’ of the kids is always on him.” (R. 808.)
On March 9, 2013, Rosemarie Bialecki, D.O., attending to Plaintiff when he was
completing disability paperwork, noted that Plaintiff was non-compliant with his Coumadin
treatment and advised him to go to the hospital for blood testing, which Plaintiff declined. (R.
1005.) Plaintiff sought hospital treatment six days later because he had not taken Coumadin in
months. (R. 818.) He was admitted, and an echocardiogram revealed minor pulmonary
hypertension. (R. 972.) Later that year, Plaintiff also sought treatment for cellulitis on his lower
extremities. (R. 907.)
In July 2014, Plaintiff sought emergency treatment for a rash that developed after he chased
a soccer ball, apparently concerned for his heart. (R. 967.) In November 2014, Ken Klausman,
M.D., examined Plaintiff. He noted Plaintiff walked with a moderate limp and had no far vision in
his right eye, but did not make any other remarkable physical findings. (R. 857.) As for
neurological issues, Dr. Klausman diagnosed right eye blindness, obesity, back pain, right ankle
arthropathy, depression, hepatitis C, and status-post heart valve replacement. (R. 858.) He opined
that Plaintiff could continuously lift up to fifty pounds and continuously carry up to ten pounds;
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sit for five hours without interruption; stand for thirty minutes without interruption; walk for thirty
minutes without interruption; sit for a total of eight hours in an eight-hour day; stand for a total of
one hour in an eight-hour day; walk for a total of one hour in an eight-hour day; continuously reach
in all directions, handle, finger, feel, push, and pull with both hands; never use his right foot to
operate foot controls; continuously use his left foot to operate foot controls; never climb ladders,
ropes or scaffolds; occasionally climb ramps and stairs; frequently balance, kneel, stoop, crouch,
and crawl; never read fine print; have occasional exposure to unprotected heights and moving
mechanical parts; continuously operate a motor vehicle; have continuous exposure to humidity,
wetness, dust, odors, pulmonary irritants, fumes, extreme cold, and vibrations; have frequent
exposure to loud conditions; and he could shop; travel without a companion; walk without a
wheelchair, walker, two canes, or crutches; walk a block at a reasonable pace on rough or uneven
surfaces; use public transportation; climb a few steps with a single hand rail; prepare simple meals
and feed himself; care for his personal hygiene; and sort, handle, and use paper and files. (R. 865.)
In January 2015, Jay Rubenstone, D.O., examined Plaintiff due to complaints of shortness
of breath. (R. 974-79.) Dr. Rubenstone recorded normal examination findings and referred Plaintiff
for an electrocardiogram, further recommending that Plaintiff continue Coumadin therapy, lose
weight, and stop smoking. (R. 975, 978.) The electrocardiogram results revealed a mildly dilated
atrium but were otherwise normal. (R. 982-84.) January 2015 treatment notes from East Camden
Medical Center reveal that Plaintiff was not complaint with his Coumadin treatment. (R. 986.) A
transthoracic echocardiogram revealed borderline left ventricular hypertrophy and mild tricuspid
regurgitation, but was otherwise normal. (R. 1035.)
In February 2015, Richard W. Cohen, M.D., opined that Plaintiff had a mild restriction of
his activities of daily living; mild difficulties maintain social functioning; moderate difficulties
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maintaining concentration, persistence, or pace; and no episodes of deterioration or
decompensation of extended duration. (R. 108-09.)
In March 2015, an agency physician, Dr. Alexander Hoffman, examined Plaintiff. (R.
1012.) He observed that Plaintiff appeared disheveled and spoke with slurred speech. (R. 1012.)
Dr. Hoffman opined that Plaintiff could occasionally lift and carry up to ten pounds; sit for up to
five hours in an eight-hour day; stand for two hours in an eight-hour day; walk up to two hours in
an eight-hour day; occasionally use both hands for reaching in all directions, fingering, feeling,
handling, pushing, and pulling; occasionally operate foot controls with both feet; never climb
ladders or scaffolds, but occasionally perform all other postural activities; have occasional
exposure to mechanical parts and no exposure to unprotected heights, dusts, fumes, pulmonary
irritants, extreme cold, and vibrations; have moderate exposure to noise; and he could shop; travel
without a companion; walk without an assistive device; walk at a reasonable pace on rough or
uneven surfaces; use public transportation; climb without a handrail; prepare a meal and feed
himself; care for his hygiene, and sort, handle, and use paper and files. (R. 1014-20.)
In July 2015, Dr. Rubenstone recorded normal examination findings and counseled
Plaintiff to lose weight and stop smoking tobacco. (R. 1040.) August 2015 treatment notes also
revealed an audible mid-systolic click, but otherwise normal findings. (R. 1066.)
Procedural History
Plaintiff first filed in 2008 for Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C. §§ 416(i), 423(d), and for Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act 42 U.S.C. §§ 1382, 1382c. (Pl. Br. at 1.) Plaintiff’s
applications were initially denied in January 2009 and again on reconsideration in October 2009.
(Id.)
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Plaintiff reapplied for DIB and SSI in April 2011, stating that he had been disabled since
June 17, 2008. (R. 369, 376.) After being denied initially and on reconsideration, Plaintiff
requested a de novo hearing with an Administrative Law Judge. (R. 227-40.) On February 26,
Plaintiff appeared before ALJ Joseph M. Hillegas. (R. 122-24.) ALJ Hillegas found that Plaintiff
was not disabled at step five of the Social Security Administration’s sequential disability analysis.
See 20 C.F.R. § 303.1520(g). (R. 195-96.) On September 19, 2014, the Appeals Council granted
Plaintiff’s request for review of ALJ Hillegas’s decision and remanded for readjudication. (R. 20204.)
On February 25, 2015, Plaintiff appeared with counsel and testified at a new hearing held
before ALJ Jonathon L. Wesner (henceforth “the ALJ”). (R. 102-04.) Richard Cohen, M.D.,
testified as a medical expert. (R. 102-04, 107-11.) To further flesh out an undeveloped record, the
ALJ requested, and obtained in March 2015, the report of consultative examiner Alexander
Hoffman, M.D. (R. 1012.) Plaintiff sought a supplemental hearing to address the vocational issues
raised by Dr. Hoffman’s report. (R. 533.) On August 15, 2015, Plaintiff appeared again with
counsel and testified at a supplemental hearing. (R. 48-50.) In addition, a vocational expert, Louis
Szollosy, also testified. (R. 48-50, 81-91, 93-100.)
The September 9, 2015 Decision
In consideration of Plaintiff’s history, the ALJ found that Plaintiff was not disabled on
September 9, 2015. (R. 25-39.) The ALJ first determined that Plaintiff had not engaged in
substantial gainful activity since his June 17, 2008 alleged onset date, and had thereby satisfied
step one of the disability analysis. See 20 C.F.R. § 404.1520(b). (R. 25.) The ALJ next found that
Plaintiff had satisfied step two and had the following “severe” impairments: endocarditis, heart
valve replacement, depression, polysubstance abuse, hepatitis C, septic arthritis of the lower
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extremity, obesity, and limited vision in his right eye. (R. 25.) Proceeding to step three, the ALJ
determined that Plaintiff did not have an impairment or combination of impairments that met or
equaled the requirements of a Listed impairment. See 20 C.F.R. § 4040.1520(d). (R. 26.)
The ALJ then made a residual functional capacity (“RFC”) assessment to determine the
most that Plaintiff could do despite the limiting effects of his impairments. § 404.1545. (R. 29.)
According to the ALJ, Plaintiff could
lift and/or carry less than 10 pounds occasionally; sit for five hours total in an
eight-hour workday; stand for two hours total in an eight-hour workday; walk for
two hours total in an eight-hour workday; occasionally use his bilateral upper
extremities to reach, handle, finger, feel, and push and/or pull; occasionally operate
foot controls with his bilateral lower extremities; occasionally climb stairs and
ramps, balance, stoop, kneel, crouch, and crawl; never climb ladders or scaffolds;
occasionally tolerate exposure to moving mechanical parts, humidity and wetness,
dusts, odors, fumes, and pulmonary irritants, extreme cold, vibrations, and never
tolerate exposure to unprotected heights and operating a motor vehicle. He can meet
the mental demands associated with unskilled work but is precluded from meeting
the increased mental demand associated with semi-skilled and skilled work.
Additionally, he cannot perform tasks involving depth perception or binocular
vision.
(R. 29.) The ALJ reached this formulation of RFC by interpreting the expansive medical record
outlined above.
At step four, the ALJ determined that Plaintiff could not perform any past relevant work.
(R. 38.) The ALJ also noted that at the time of the alleged disability onset, Plaintiff was 40 years
old, defined as a “younger individual” under 20 C.F.R. §§ 404.1563 and 416.964. (R. 38.)
At step five, the ALJ noted that if Plaintiff had the RFC to perform the full range of light
work, a finding of “not disabled” would by directed by Medical Vocational Rule 202.17. (R. 39.)
However, the ALJ found that the Plaintiff was subject to additional limitations, and instead the
ALJ relied on the vocational expert’s opinion. (R. 39.) The ALJ asked the vocational expert, “after
considering the record as a whole,” to assume a hypothetical individual with Plaintiff’s vocational
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characteristics who could perform light work; sit for five hours in an eight-hour day; stand for two
hours in an eight-hour day; walk for two hours in an eight-hour day; never climb ladders or
scaffolding but occasionally perform other postural activities; occasionally reach, handle, finger,
feel, push and pull with the upper extremities; must avoid hazards; and who could not perform
activities requiring far acuity or depth perception. (R. 81-98.) The vocational expert testified that
he believed the hypothetical individual would be capable of performing the representative
occupations of surveillance monitor and call-out operator. (R. 86.) On reliance on the testimony,
the ALJ concluded, given Plaintiff’s age, education, work experience, and RFC, Plaintiff would
be able to perform the requirements of representative occupations, “such as a surveillance systems
monitor” or a “call-out operator,” unskilled jobs with a sedentary exertional level existing in
numbers of 90,000 and 20,000 nationally, respectively. (R. 39.) Consequently, the ALJ found that
Plaintiff, considering his particular situation, was capable of making a successful adjustment to
other work that exists in significant numbers in the national economy and was, therefore, “not
disabled.” (R. 39.)
Unsatisfied with this outcome, Plaintiff filed this action pursuant to 42 U.S.C. § 405(g).
We review.
II.
STANDARD OF REVIEW
When reviewing the Commissioner’s final decision, this Court is limited to determining
whether the decision was supported by substantial evidence, after reviewing the administrative
record as a whole. Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014) (citing 42 U.S.C. § 405(g)).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000). Substantial evidence is
“more than a mere scintilla but may be somewhat less than a preponderance of the evidence.” See,
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e.g., Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). Courts may not set aside the
Commissioner’s decision if it is supported by substantial evidence, even if this court “would have
decided the factual inquiry differently.” Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001).
When reviewing a matter of this type, this Court must be wary of treating the determination
of substantial evidence as a “self-executing formula for adjudication.” Kent v. Schweiker, 710 F.2d
110, 114 (3d Cir. 1983). This Court must set aside the Commissioner’s decision if it did not take
into account the entire record or failed to resolve an evidentiary conflict. See Schonewolf v.
Callahan, 927 F. Supp. 277, 284–85 (D.N.J. 1997) (citing Gober v. Matthews, 574 F.2d 772, 776
(3d Cir. 1978)). Evidence is not substantial if “it really constitutes not evidence but mere
conclusion,” or if the ALJ “ignores, or fails to resolve, a conflict created by countervailing
evidence.” Wallace v. Sec’y of Health & Human Servs., 722 F.2d 1150, 1153 (3d Cir. 1983) (citing
Kent, 710 F.2d at 114). A district court’s review of a final determination is a “qualitative exercise
without which our review of social security disability cases ceases to be merely deferential and
becomes instead a sham.” Kent, 710 F.2d at 114.
III.
DISCUSSION
Plaintiff challenges the Commissioner’s determination under two major headings. First, he
argues that the ALJ posed an improper hypothetical question to the vocational expert. Second,
Plaintiff argues that the ALJ lacked substantial evidence to conclude that Plaintiff could work as a
surveillance system monitor or call-out operator. Plaintiff argues that those positions, as defined
by the standards relied on by the vocational expert, are beyond his abilities.
The ALJ’s Hypothetical Question Is Not Reversible Error
Plaintiff argues that when the ALJ posed the hypothetical question to the vocational expert,
asking whether a hypothetical individual could perform light work consistent with his RFC, the
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ALJ neglected to ask whether that individual could “occasionally tolerate exposure to . . . dusts,
odors, fumes, and pulmonary irritants.” (R. 81.) Plaintiff appears to argue that this omission, which
is in the RFC but not in the line of questioning asked of the vocational expert, invalidates the ALJ’s
reliance on the vocational expert’s testimony. Because the words “dust,” “odors,” “fumes,” and
“pulmonary irritants” do not appear in the hearing transcript of the vocational expert’s testimony,
Plaintiff argues that the Commissioner failed to carry its burden of production and remand is
warranted.
“A hypothetical question must reflect all of a claimant’s impairments that are supported
by the record; otherwise the question is deficient and the expert's answer to it cannot be considered
substantial evidence.” Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987). The ALJ did not
ask about the risk of airborne irritants. However, the occupations identified by the vocational
expert—surveillance system monitor or call-out operator—do not, as defined by the Selected
Characteristics of Occupations, a companion to the Dictionary of Occupational Titles used by the
Social Security Administration,1 involve exposure to these risks. Thus even if the ALJ had asked
about these risks, it would have made no difference to the analysis. Because an error is harmless
where the ALJ “would have reached the same conclusion notwithstanding his initial error,”
Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994), we find the ALJ’s question, even if
insufficient, did not give rise to an error and the ALJ appropriately relied on the vocational expert’s
testimony to reach his conclusion.
1
See SCODICOT 04.02.03 (surveillance system monitor); SCODICOT 237 (call-out operator).
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Substantial Evidence Supports the ALJ’s Finding that Plaintiff Could Perform
Work as Either a Surveillance System Monitor or as a Call-Out Operator
Plaintiff objects to the ALJ’s finding that he could perform the various skill levels required
for work as a surveillance system monitor or call-out operator. Per the Dictionary of Occupation
Titles, both occupations require “Language: Level 3”:
Language: Level 3 - READING: Read a variety of novels, magazines, atlases, and
encyclopedias. Read safety rules, instructions in the use and maintenance of shop
tools and equipment, and methods and procedures in mechanical drawing and
layout work.
DICOT 237.367-014; DICOT 379.367-010.
Both positions also require “Reasoning: Level 3”:
Reasoning: Level 3 - Apply commonsense understanding to carry out instructions
furnished in written, oral, or diagrammatic form. Deal with problems involving
several concrete variables in or from standardized situations.
DICOT 237.367-014; DICOT 379.367-010.
In addition, being a call-out operator requires “Math: Level 2”:
Math: Level 2 - Add, subtract, multiply, and divide all units of measure. Perform
the four operations with like common and decimal fractions. Compute ratio, rate,
and percent. Draw and interpret bar graphs. Perform arithmetic operations
involving all American monetary units.
DICOT 237.367-014.
We find the ALJ had substantial evidence to support his conclusion that Plaintiff could
perform these occupations. The ALJ considered the entire record, and the record indicates, among
many other things, that Plaintiff liked to read the newspaper. (R. 497.) Although Plaintiff objects
and argues his own disability filings are riddled with spelling and typographical errors, the Court
observes that, even assuming Plaintiff is as inarticulate as he makes himself out to be, an inability
to write well does not suggest a complete inability to “read a variety of novels, magazines, atlases,
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and encyclopedias.” Furthermore, the job description for a surveillance system monitor is exactly
what it sounds like—someone who surveils systems, most likely at a desk, watching a screen—
and is notably bereft of any explicit reference to reading ability. See DICOT 379.367-010. We find
the ALJ had substantial evidence to conclude Plaintiff could perform this position as to his reading
ability; by extension, we also find the ALJ had substantial evidence to conclude Plaintiff could do
the reasoning required of those positions, i.e., “apply commonsense understanding to carry out
instructions.”
With respect to the call-out operator occupation, Plaintiff argues he lacks the rudimentary
math skills necessary to perform this position, and that the ALJ lacked substantial evidence to find
otherwise. Once again, we disagree. For one, the vocational expert opined Plaintiff was able to
perform this position. For another, the record before the ALJ has ample evidence which the ALJ
could have interpreted, and did interpret, as showing Plaintiff was at least capable of performing
this. Although Plaintiff argues Dr. Lazarus’s clinical finding showed Plaintiff was very poor at
doing Serial 3s and was subject to some intellectual impairments, the ALJ relied on other findings,
such as those by Drs. Bustos and Klausman, that were inconsistent with Dr. Lazarus’s finding. He
also reviewed Plaintiff’s statements that he could perform daily activities of living, such as
babysitting or watching television, which indicate a basic level of functioning. The ALJ is not
obliged to apply the reasoning of any particular examining doctor in the face of inconsistent
evidence. We therefore find he had substantial evidence to support his determination.
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IV.
CONCLUSION
The Commissioner’s decision is AFFIRMED. An order follows.
Dated: March 22, 2018
/s Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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