Swofford v. Commissioner Social Security Administration
Filing
23
OPINION AND ORDER. For the foregoing reasons, the decision of the ALJ is AFFIRMED. IT IS SO ORDERED. Signed on 07/01/2013 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KENNETH SWOFFORD,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
BRUCE W. BREWER
P.O. Box 421
West Linn, Oregon 97068
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
JORDAN D. GODDARD
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
3:12-cv-00557-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff, Kenneth Swofford, brings this action for judicial
review of a final decision of the Corrunissioner of Social Security
(the Commissioner) denying his application for disability insurance
benefits (DIB) under Title II of the Social Security Act (the Act)
and supplemental security income
Title XVI of the Act.
(SSI) disability benefits under
See 42 U.S.C. §§ 401-434, 1381-1383f.
court has jurisdiction pursuant to 42 U.S.C. § 405(g).
reasons
forth
set
below,
I
affirm
the
decision
final
This
For the
of
the
Commissioner.
PROCEDURAL BACKGROUND
Plaintiff protectively filed applications for SSI and DIB on
December 14 and 19, 2007, respectively, alleging disability due to
"(p]ulmonary embolism, blood clots in [one] lung."
Tr. 152.
applications were denied initially and upon reconsideration.
His
A
hearing was held before an Administrative Law Judge (ALJ) on April
14,
2010,
testified.
at
which
plaintiff
was
represented
by
counsel
and
Vocational Expert (VE) Francis Surruners was also present
throughout the hearing and testified.
On May 7, 2010, the ALJ issued a decision finding plaintiff
not disabled within the meaning of the Act.
Council declined review of the ALJ's decision,
filed a complaint in this court.
Ill
2 - OPINION AND ORDER
After the Appeals
plaintiff timely
FACTUAL BACKGROUND
Born on November 22, 1961, plaintiff was 40 years old on the
alleged onset date of disability and 48 years old on the date of
Plaintiff has a high school equivalency with some
the hearing.
college
coursework,
past
has
and
work
relevant
an
as
outside
Tr. 58, 83-84.
deliverer.
Plaintiff alleges his disabilities became disabling on January
1, 2002.
In addition to the hearing testimony, plaintiff submitted
Tr.
an Adult Function Report.
plaintiff's
Tammy Ladd,
180-87.
Tr. 188-95.
girlfriend, submitted a Third Party Function Report.
Kurt
Brewster,
MD,
examined
comprehensive pulmonary exam.
the
plaintiff
submitted
and
a
Tr. 264-81.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
a
established
sequential
five-step
Bowen v.
process for determining whether a person is disabled.
Yuckert,
482
u.s.
137,
416.920 (a) (4) (i)- (v).
404.1520(a) (4) {i)-(v),
that
Each
step
§§
is
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th
The burden shifts to the Commissioner at Step Five to
Cir. 1999).
show
C.F.R.
20
The claimant bears the burden of proof at
potentially dispositive.
Steps One through Four.
(1987);
140-42
a
significant
number of
jobs
economy that the claimant can perform.
141-42; Tackett, 180 F.3d at 1098.
3 - OPINION AND ORDER
exist
in
See Yuckert,
the
national
482 U.S. at
At Step One, the ALJ determined that plaintiff has not engaged
in
substantial
See 20 C.F.R.
January 1, 2002.
the
activity since
gainful
alleged onset
416.971 et
404.1571 et seq.,
§§
date,
seq.; Tr. 25.
Step
At
thromboembolic
the
Two,
disease
ALJ
with
plaintiff's
that
determined
anticoagulation
chronic
therapy,
degenerative disc disease of the cervical spine, degenerative joint
disease of the left ring finger,
See 20 C.F.R.
severe impairments.
and right ulnar neuropathy are
§§
404.1520(c), 416.920(c); Tr.
26.
At Step Three, the ALJ determined that plaintiff does not have
an impairment or combination of impairments that meet or medically
any
equal
listed
impairment.
See
20
C.F.R.
§§
404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 26-27.
The ALJ found
that
plaintiff has
the
residual
functional
capacity (RFC) to perform sedentary work, except that plaintiff can
only perform tasks that involve no more than two hours of standing
or walking,
and six hours of sitting,
in an eight-hour workday;
must be permitted to sit or stand at will;
must avoid overhead
reaching; and can only occasionally balance, stoop, kneel, crouch,
crawl,
or climb stairs or ramps.
The ALJ limited plaintiff to
frequent handling, fingering, or feeling, and plaintiff must avoid
even moderate exposure to fumes, odors, dusts, or other respiratory
irritants.
Finally,
4 - OPINION AND ORDER
plaintiff must avoid exposure to workplace
hazards, such as moving machinery or unprotected heights.
Tr. 27-
30.
At
perform any
the
Four,
Step
ALJ found
work.
relevant
past
that
20
See
is
unable to
C. F. R.
§§
404. 1565,
that
jobs
plaintiff
416.965; Tr. 30.
At
Step
Five,
however,
the ALJ found
exist
in
significant numbers in the national economy that plaintiff can
perform, including Charge Account Clerk, Addresser, and Assembl~r
of Optical Goods.
See 20 C.F.R.
§§
404.1569, 404.1569(a), 416.969,
416.969(a); Tr. 31.
Accordingly,
the ALJ found that plaintiff was not disabled
within the meaning of the Act.
ISSUES ON REVIEW
Plaintiff
raises
six
issues
First,
on appeal.
plaintiff
claims that the ALJ erred at Step Two by failing to list "nerve
compression" and a herniated cervical disc as severe impairments.
Second, plaintiff maintains that the ALJ erroneously found that
plaintiff's back impairments did not meet the criteria for being a
listed impairment at Step Three.
ALJ
erroneously discredited his
Third, plaintiff argues that the
Fourth,
testimony.
plaintiff
submits that the ALJ cited inadequate reasons to reject the lay
testimony of his girlfriend, Ms.
Ladd.
Fifth,
plaintiff argues
that the ALJ erred by failing to define the frequency of alteration
in
the
"sit/stand
option"
5 - OPINION AND ORDER
the
ALJ
posed
in
the
vocational
failing
to
plaintiff claims that the ALJ erred by
Finally,
hypotheti cal.
explanatio n
an
obtain
from
the
alleged
for
VE
significan t divergenc es from the Dictionary of Occupatio nal Titles
(DOT) .
STANDARD OF REVIEW
The
affirm the
court must
Commissio ner's
if
decision
the
Commissio ner applied proper legal standards and the findings are
supported by substanti al evidence in the
405 (g); Andrews v.
53 E'. 3d 1035,
Shalala,
42 U.S.C.
record.
1039
(9th Cir.
§
1995).
"Substant ial evidence means more than a mere scintilla but less
than a preponder ance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusio n."
court must
weigh all
of
the
evidence,
whether
detracts from the Commissio ner's decision.
807 E'.2d 771, 772 (9th Cir. 1986).
to
more
than
one
rational
decision must be upheld.
supports
The
or
Martinez v. Heckler,
If the evidence is susceptib le
interpreta tion,
Andrews,
it
Id.
the
Commissio ner's
53 E'.3d at 1039-40.
If the
evidence supports the Commissio ner's conclusion , the Commissio ner
must be affirmed;
"the court may not substitute its judgment for
that of the Commissio ner."
1156 (9th Cir. 2001).
Ill
Ill
Ill
6 - OPINION AND ORDER
Edlund v. Massanari ,
253 E'.3d 1152,
DISCUSSION
I.
Step Two
Plaintiff
first
argues
that
the
ALJ
erroneously
omitted
plaintiff's herniated cervical disc and C-7 nerve root compression
at
Step
Two.
degenerative
impairment.
This
disc
argument
disease
Tr. 26.
of
lacks
the
merit.
cervical
The
spine
ALJ
as
a
listed
severe
Degenerative disc disease is a general term
used to describe degenerative changes in spinal discs that can
result in herniated discs and pressure on spinal nerve roots.
3
Robert
K.
Ausman
&
Dean E.
Edition§§ 4:1, 4:38 (1989).
Snyder,
Medical
See
Library Lawyers
Thus, the ALJ adequately incorporated
plaintiff's herniated disc and nerve root compression at Step Two
by listing degenerative disc disease as a severe impairment.
The
ALJ also adequately incorporated plaintiff's limitations caused by
his herniated disc and C-7 nerve root compression into the RFC.
Thus, even if the ALJ erred in failing to specifically list these
conditions at Step Two - which he did not - any such error would be
harmless.
II.
See Lewis v. Astrue, 498 F. 3d 909, 911 (9th Cir. 2007).
Step Three
Plaintiff next argues that the ALJ erred at Step Three by
failing to find that plaintiff's upper back impairments met the
spinal
disorder
listing
in
20
C.F.R.
Subpart
P
App.
1.
Specifically, plaintiff argues that the record contains evidence
7 - OPINION AND ORDER
that establishes that plaintiff's condition meets listing 1.04(A).
I disagree.
For a condition to qualify as a listed impairment at Step
Three, the plaintiff must demonstrate that the condition meets "all
of the specified criteria.
of those criteria,
Sullivan
v.
An impairment that manifests only some
no matter how severely,
Zebley,
493
U.S.
521,
does not qualify."
(1990)
(emphasis
condition
meets
530
in
original) .
Plaintiff
requirements
argues
of
that
listing
his
back
1. 04 (A) . 1
Listing
1. 04 (A)
the
applies
to
disorders of the spine resulting in compromise of a nerve root or
the spinal cord, with:
Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower
back, positive straight-leg raising test (sitting and
supine) [ .]
20 C.F.R.
pt.
404,
subpt.
P,
App.
1
(emphasis added).
The ALJ
found that plaintiff had not exhibited any motor loss.
This finding is supported by substantial evidence.
Tr.
27.
After examining
plaintiff, Dr. Brewster found that plaintiff had shown "[n]o fine
or gross motor deficits by history or exam."
Tr. 273.
During the
examination, plaintiff demonstrated full motor strength.
1
See tr.
Although there are two additional sets of criteria that
can satisfy listing 1.04, plaintiff only argues that 1.04(A) is
applicable to this case.
I agree.
8 - OPINION AND ORDER
272.
Thus, the ALJ did not err in finding that plaintiff's back
impairments
did
not
meet
listing
1. 04 (A) .
The
ALJ
properly
concluded that plaintiff was not disabled at Step Three.
III. The RFC
A.
Rejection of Plaintiff's Testimony
In deciding whether to accept subjective symptom testimony, an
ALJ must perform two stages of analysis.
416.929.
evidence
First,
the
claimant
of an underlying
must
20 C.F.R. §§ 404.1529,
produce
impairment
that
expected to produce the symptoms alleged.
F. 3d 1273, 1281-82 (9th Cir. 1996).
objective
medical
could reasonably be
Smolen v. Chater,
80
Second, absent a finding of
malingering, the ALJ can reject the claimant's testimony about the
severity of his
symptoms only by offering
convincing reasons for doing so.
specific,
clear and
Id. at 1281.
If an ALJ finds that the claimant's testimony regarding his
subjective symptoms is unreliable, the "ALJ must make a credibility
the
reasons
why
the
testimony
is
determination
citing
unpersuasive.''
Morgan v. Apfel, 169 F. 3d 595, 599 (9th Cir. 1999).
In doing so, the ALJ must identify what testimony is credible and
what
testimony
undermines
the
claimant's
complaints,
and make
"findings sufficiently specific to permit the court to conclude
that
the
ALJ
testimony."
did
not
arbitrarily
discredit
[the)
claimant's
Thomas v. Barnhart, 278 F. 3d 947, 958 (9th Cir. 2002).
The ALJ may rely upon ordinary techniques of credibility evaluation
9 - OPINION AND ORDER
in weighing the claimant's credibility.
Tommasetti v. Astrue, 533
F. 3d 1035, 1039 (9th Cir. 2008).
At
the
hearing,
plaintiff
testified
that
his
difficulty
breathing and recurrent pulmonary embolisms are his'most limiting
conditions.
Tr. 62.
Accordingly, plaintiff testified that he has
difficulty
walking
more
inclines.
Tr.
68-69.
62,
than
50
feet
or
climbing
stairs
and
Plaintiff stated that his next most
serious limitation was the herniated disc in his left shoulder,
which caused him to lose feeling in his fingers and down his arm.
Tr. 62-63.
Plaintiff reported that he can take care of personal
hygiene and shop for himself, but cannot do any household chores.
Tr. 66-67.
Plaintiff stated that he can only sit and stand for two
hours out of every day, and has to spend much of the rest of the
day lying down.
plaintiff
Tr.
said he
When asked how much he could lift,
69-70.
could not
lift
a
gallon of milk.
Tr.
71.
Plaintiff testified that he has difficulty grasping with his hands
and engaging in fine finger manipulation.
Tr. 71-72.
In his Adult Function Report, plaintiff stated that he wakes
at about 10:00 am,
until 11: 30 am.
eats breakfast,
Tr.
180.
and then watches television
He lays on the couch with his feet
elevated for thirty minutes "numerous [times] a day."
Plaintiff
reported he takes a one-and-a-half to two hour nap around 3:00 pm.
Id.
When he wakes, he eats dinner, watches television, and goes to
bed around midnight.
10 - OPINION AND ORDER
Plaintiff reported that he wakes up
during the night with severe neck pain and cannot get back to
sleep.
Tr.
181.
Plaintiff stated that he cannot do yard work
because of difficulty breathing and his herniated disc.
83.
Tr. 182-
Plaintiff checked that his conditions affect his abilities to
lift,
squat, bend, stand, reach, walk,
sit,
kneel, climb stairs,
remember, concentrate, use his hands, and get along with others.
Tr. 185.
In addition, plaintiff stated that he could only walk ten
to fifteen yards before requiring a five minute break. Id.
The
ALJ
discredited
plaintiff's
testimony
because
his
subjective complaints are not fully supported by objective medical
findings,
plaintiff
elected
conservative
treatment
for
his
conditions, worked after the alleged onset date of disability, quit
his most recent job prior to the alleged onset date for reasons
unrelated to disability,
and worked full time for several years
after the diagnosis of his cardiopulmonary condition.
Tr. 27-30.
I
clear
find
these
reasons,
taken
together,
constitute
and
convincing reasons to discredit plaintiff's testimony.
The ALJ first noted that plaintiff's subjective complaints
were not
record.
a
fully supported by objective evidence
in the medical
This finding is supported by substantial evidence.
claimant's
subjective
complaints may
not
be
rejected
While
solely
because they are not fully corroborated by objective evidence, lack
of such corroboration is one factor that may be considered.
Thomas, 278 F.3d at 960.
11 - OPINION AND ORDER
See
Plaintiff alleged that he could only walk approximately ten to
fifteen yards before requiring rest to catch his breath.
185.
Tr. 68,
Yet, at his pulmonary examination, plaintiff walked for 13
minutes on a slight incline before feeling fatigued,
and did so
without a significant increase in his rate of respiration.
270, 273.
Tr.
With respect to his breathing difficulties, an October
2008 spirometry test showed "minimal obstructive lung defect."
353.
Dr.
Brewster also noted that plaintiff had a "borderline"
elevated respiration rate at rest,
significantly
sounds."
Tr.
on
exertion,
and
but that it did not increase
plaintiff
had
"normal
breath
Tr. 273.
As the ALJ noted, with respect to plaintiff's allegations of
right shoulder pain, plaintiff exhibited a full range of motion and
had an unremarkable x-ray.
also noted,
Tr. 340, 349.
In addition, as the ALJ
a nerve conduction velocity study revealed a nerve
dysfunction or injury in the right elbow of "moderate severity,"
that plaintiff chose to treat conservatively by wearing a neoprene
sleeve.
Tr. 395-96.
subjective
The ALJ appropriately discredited plaintiff's
complaints
in
part
because
they
were
not
fully
consistent with objective medical evidence.
The ALJ also rejected plaintiff's subjective testimony because
plaintiff
conditions.
chose
to
pursue
conservative
treatment
for
his
A conservative course of treatment is a proper basis
on which to reject a claimant's testimony of severe impairment.
12 - OPINION AND ORDER
Parra v.
above,
Astrue,
481 F. 3d 742,
plaintiff
conservatively
avoidance
of
"wish[ed]
with
elbow
751
to
avoidance
treat
of
flexion."
(9th Cir.
[his
Tr.
396.
was
offered neck
surgery to
herniated disc, but he ultimately refused.
on
neuropathy]
the
Plaintiff
elbow
help
and
received a
Similarly,
prescription for a neoprene sleeve.
plaintiff
ulnar
pressure
As noted
2007).
in 2006,
symptoms
from
his
Tr. 338, 343, 389.
The
ALJ reasonably concluded that plaintiff's election of conservative
treatment for his impairments was inconsistent with his testimony
of debilitating symptoms.
The
ALJ
also
noted
that
plaintiff's
work
inconsistent with his allegations of disability.
plaintiff
alleged
disability
beginning
history
is
As the ALJ noted,
January
1,
2002,
but
testified that he performed full time maintenance for Diamond Lake
Improvement Company from May through November 2002.
Tr. 60, 152. 2
Additionally, the ALJ noted that plaintiff first experienced lung
problems in 1979, but worked for many years thereafter.
Compare
Tr. 265, 268 (noting lung impairments first diagnosed in 1979) with
Tr. 172-79 (describing partial work history).
noted,
Finally, as the ALJ
plaintiff left the job immediately preceding his alleged
2
Plaintiff misses the mark in arguing that the ALJ's
citation of this fact was invalid because plaintiff is limited to
receiving past benefits beginning in 2005 due to a prior
disability adjudication. The ALJ's reference to 2002 work was
not part of a substantial gainful activity analysis.
Rather, the
ALJ properly cited plaintiff's 2002 work as inconsistent with his
allegation of disability beginning January 1, 2002.
13 - OPINION AND ORDER
onset
date
because
of disability not
because
"[i]rreconcilable
of
management."
Tr.
of
health problems,
differences
[with]
the
but
new
61; see Burton v. Massanari, 268 F. 3d 824, 828
(9th Cir. 2001)
(rejecting a claimant's testimony in part because
he
after
left
a
job
The
reasons) .
ALJ
being
laid
reasonably
off,
cited
rather
than
for
inconsistency
health
between
plaintiff's work history and disability allegations in discrediting
plaintiff's testimony.
taken
together,
In sum, I conclude that the above reasons,
constitute
clear
and
convincing
reasons
for
discrediting plaintiff's testimony.
B.
Rejection of Lay Testimony
Plaintiff next argues that the ALJ improperly rejected the
testimony of Tammy Ladd,
plaintiff's girlfriend.
Lay testimony
regarding a claimant's symptoms or how an impairment affects his
ability to work is competent evidence that an ALJ must take into
account.
Molina v. Astrue,
674 F. 3d 1104, 1114
(9th Cir. 2012).
To discount lay witness testimony, the ALJ must give reasons that
are germane to the witness.
Id.
Ms. Ladd lives with plaintiff and spends time with him every
day.
Tr. 188.
She reported that plaintiff "[d]oesn't do much.
has a hard time breathing when he is active."
Id.
He
Ms. Ladd stated
that plaintiff "doesn't sleep through the night," and that his
"legs
[and]
neck hurt often."
Tr. 189.
Additionally, Ms. Ladd
reported that plaintiff lives a largely sedentary, solitary life.
14 - OPINION AND ORDER
See tr.
189-93.
Ms.
Ladd checked that plaintiff's
conditions
affect his abilities to lift, squat, bend, stand, reach, walk, sit,
kneel, climb stairs, remember, concentrate, understand, use hands,
and get along with others.
Tr.
193.
She further reported that
plaintiff can only walk 20 to 30 feet before he must rest for five
to ten minutes.
The
ALJ
Id.
rejected
Ms.
Ladd's
testimony
because
it
was
inconsistent with medical and other evidence indicating plaintiff
is capable of greater functioning.
amply supported by the record.
Tr.
30.
This conclusion is
As the ALJ noted, plaintiff himself
reported to treating physician David Weingarten, M.D., that he can
walk up two flights of stairs without stopping and is able to do
some minimal yard work.
Tr. 340.
The ALJ reasonably found that
this report of modest exertion was inconsistent with Ms.
report
of extreme debilitation.
In addition,
Ladd's
as the ALJ also
noted, Ms. Ladd's reports are inconsistent with the findings of Dr.
Brewster.
Notably, Ms. Ladd's statement that plaintiff needs five
to ten minutes of rest after walking 20 to 30 feet is inconsistent
with plaintiff's ability to walk on a slight incline for 13 minutes
without a significantly increased rate of respiration.
281.
Tr.
264-
I conclude that the ALJ cited germane reasons, supported by
substantial record evidence, to reject Ms. Ladd's opinion.
Ill
Ill
15 - OPINION AND ORDER
III. Vocational Expert Testimony
A.
The "Sit/Stand" Option
Plaintiff next argues that the VE's testimony was inadequate
because the vocational hypothetical only contained a "sit/stand
option, • whereas the final RFC required that plaintiff be permitted
to "sit or stand at will.•
In addition, plaintiff argues that the
ALJ was required to specify for how much time plaintiff could sit
or stand in the "sit/stand option.•
This argument
is without
merit.
Plaintiff has cited no authority,
and the court has found
none, for the proposition that a "sit/stand option• is inconsistent
with a restriction to "sit or stand at will. •
dictates that a
Rather, common sense
"sit/stand option• means exactly what it says;
plaintiff must have the option to either sit or stand at work.
This
is consistent with a
requirement
ability to "sit or stand at will.•
that plaintiff have
the
The vocational hypothetical and
RFC were consistent in this respect.
B.
Alleged Deviations from the DOT
Plaintiff next argues that the VE testimony was inadequate
because the vocational hypothetical assumed a
person who could
never lift ten pounds, yet the VE's jobs finding assumed a person
who could perform sedentary work, which requires lifting up to ten
pounds.
I disagree.
16 - OPINION AND ORDER
In the vocational hypothetical the ALJ posed at the hearing,
the ALJ stated plaintiff is "limited in lifting .
less than 10
pounds both occasionally as well as frequently."
Tr.
85.
After
this hypothetical, the VE clarified, "[t]hat would be at sedentary
level," to which the ALJ responded affirmatively.
Tr. 8 6.
The ALJ
was aware, as he wrote in his opinion, that sedentary work required
the ability to lift up to ten pounds.
Tr. 27.
It is clear from
the transcript as a whole that the ALJ and VE both understood the
lifting limitation to be consistent with a limitation to sedentary
work. 3
The jobs cited by the VE and relied upon in the written
decision are consistent with this understanding.
Because each of
the jobs cited by the VE require only a sedentary exertional level,
the VE did not deviate from the DOT in finding that plaintiff could
perform those jobs under the vocational hypothetical.'
Thus,
also
alleged
reject
plaintiff's
final
argument
that
the
above
I
3
I acknowledge that the ALJ's initial verbal recitation was
unclear as to whether he was limiting plaintiff to lifting up to
ten pounds, or limiting plaintiff to lifting some lesser amount.
Because imprecise verbal statements are unavoidable in any live
hearing, I look to the transcript as a whole to determine whether
the ALJ and VE had a common understanding about the limitations
posed in the hypothetical.
In this instance, I conclude that
they did, and that understanding was reflected in the ultimate
RFC.
4
Plaintiff also argues that the "sit/stand option" deviated
from the DOT.
The DOT, however, does not include such postural
requirements.
The ALJ was entitled to rely on the VE's expertise
in this respect.
17 - OPINION AND ORDER
inconsistencies make the ALJ's decision unsupported by substantial
evidence.
CONCLUSION
For
the
foregoing
reasons,
the
decision
of
the
ALJ
AFFIRMED.
IT IS SO ORDERED.
DATED this ~ day of July, 2013.
Malcolm F. Marsh
~
United States District Judge
18 - OPINION AND ORDER
is
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