Logsdon-James v. Commissioner, Social Security Administration
Filing
17
Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter with prejudice. Signed on 06/11/2015 by Judge Anna J. Brown. See attached 19 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LAURIE LEE LOGSDON-JAMES,
6:14-cv-00845-BR
Plaintiff,
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
KATHRYN TASSINARI
DREW L. JOHNSON
1700 Valley River Drive
Eugene, OR 97401
(503) 686-1969
Attorneys for Plaintiff
BILLY J. WILLIAMS
Acting United States Attorney
RONALD K. SILVER
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204
(503) 727-1000
1
OPINION AND ORDER
DAVID MORADO
Office of the General Counsel
JEFFREY R. MCCLAIN
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
(206) 615-2732
Attorneys for Defendant
BROWN, Judge.
Plaintiff Laurie Lee Logsdon-James seeks judicial review of
a final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's
applications for Supplemental Security Income (SSI) and
Disability Insurance Benefits DIB) under Titles XVI and II of
the Social Security Act (the Act).
This Court has jurisdiction
to review the Commissioner's final decision pursuant to 42
U.S.C. § 405(g).
Following a review of the record, the Court AFFIRMS the
decision of the Commissioner and DISMISSES this matter.
ADMINISTRATIVE HISTORY
Plaintiff previously applied for Disability Insurance
Benefits, but that claim was denied by an Administrative Law
Judge (ALJ) on August 2, 2007.
1
Tr. 11.1
Citations to the official transcript of record filed by
the Commissioner on September 29, 2014, are referred to as
"Tr."
2
OPINION AND ORDER
Plaintiff filed her current applications for DIB and SSI
on September 28, 2010, alleging a disability onset date of
August 1, 2003.
Tr. 156.2
Plaintiff's applications were denied
initially and on reconsideration, and she requested a hearing.
Tr. 121-25, 128-33.
hearing.
Tr. 32.
On October 16, 2012, an ALJ conducted a
Plaintiff, Plaintiff's husband, and a
vocational expert (VE) testified at the hearing, and Plaintiff
was represented by an attorney.
On November 8, 2012, the ALJ issued her written opinion in
which she found Plaintiff is not disabled and, therefore, is not
entitled to benefits.
Tr. 11-23.
On March 28, 2014, the
Appeals Council denied Plaintiff's request for review, and the
ALJ's decision became the final decision of the Commissioner.
Tr. 1-4.
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
BACKGROUND
Plaintiff was 49 years old on September 30, 2011, her date
last insured.
Tr. 21.
Plaintiff dropped out of high school
after completing the tenth grade and later earned a GED.
Tr. 38, 377.
Plaintiff has past relevant work experience as a
rural mail carrier.
2
Tr. 57.
Because of Plaintiff's prior application and denial of
benefits, the current period at issue begins August 3, 2007.
Tr. 11.
3
OPINION AND ORDER
Plaintiff alleges disability due to major depression,
anxiety, obsessive compulsive disorder, obesity, cervical
degenerative disc disease, reactive airway disease, and carpaltunnel syndrome.
Except when noted, Plaintiff does not challenge the ALJ's
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ's summary of the
medical evidence.
See Tr. 14-16, 19-20.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110
To meet this burden, a claimant must
demonstrate her inability "to engage in any substantial gainful
activity by reason of any medical determinable physical or
mental impairment which . . . has lasted or can be expected to
last for a continuous period of not less than 12 months."
U.S.C. § 423(d)(1)(A).
42
The ALJ must develop the record when
there is ambiguous evidence or when the record is inadequate to
allow for proper evaluation of the evidence.
McLeod v. Astrue,
640 F.3d 881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari,
276 F.3d 453, 459-60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
4
OPINION AND ORDER
supported by substantial evidence in the record as a whole.
44
U.S.C. § 405(g); see also Brewes v. Comm'r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
"relevant evidence that a reasonable mind might accept as
adequate to support a conclusion."
Molina, 674 F.3d at 1110-11
(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
It is more than a mere scintilla [of
evidence] but less than a preponderance."
Id. (citing
Valentine, 574 F.3d at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner's
findings if they are supported by inferences reasonably drawn
from the record.
Cir. 2012).
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th
The court may not substitute its judgment for that
of the Commissioner.
(9th Cir. 2006).
5
OPINION AND ORDER
Widmark v. Barnhart, 454 F.3d 1063, 1070
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the
Commissioner determines the claimant is engaged in substantial
gainful activity.
20 C.F.R. §§ 404.1520(a)(4)(I),
416.920(a)(4)(I).
See also Keyser v. Comm’r of Soc. Sec., 648
F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the
Commissioner determines the claimant does not have any medically
severe impairments or combination of impairments.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
20 C.F.R.
See also Keyser, 648
F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
648 F.3d at 724.
20 C.F.R.
See also Keyser,
The criteria for the listed impairments, known
as Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
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OPINION AND ORDER
regular and continuing basis despite her limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.
See also Social Security Ruling
“A 'regular and continuing basis' means 8 hours a
day, for 5 days a week, or an equivalent schedule."
at *1.
20 C.F.R.
SSR 96-8p,
In other words, the Social Security Act does not require
complete incapacity to be disabled.
Taylor v. Comm’r of Soc.
Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
416.920(a)(4)(iv).
20 C.F.R. §§ 404.1520(a)(4)(iv),
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a)(4)(v).
20 C.F.R. §§ 404.1520(a)(4)(v),
See also Keyser, 648 F.3d at 724-25.
Here
the burden shifts to the Commissioner to show a significant
number of jobs exist in the national economy that the claimant
can perform.
Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d
1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this
burden through the testimony of a VE or by reference to the
Medical-Vocational Guidelines set forth in the regulations at 20
C.F.R. part 404, subpart P, appendix 2.
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OPINION AND ORDER
If the Commissioner
meets this burden, the claimant is not disabled.
20 C.F.R. §§
404.1520(g)(1), 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity from her potential onset date of
August 3, 2007, through her date last insured of September 30,
2011.
Tr. 13.
At Step Two the ALJ found Plaintiff has the following
severe impairments:
reactive airway disease; right carpal-
tunnel syndrome status post release; obesity; cervical
degenerative disc disease; major depressive disorder; anxiety;
cannabis abuse; and obsessive-compulsive disorder.
Tr. 13.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.
Tr. 15.
The ALJ found Plaintiff has the RFC to
perform light work in that she can lift and carry
25 pounds occasionally and 10 pounds frequently,
stand and walk up to six hours of an eight-hour
workday and has no limitation on sitting. She
can
occasionally climb ladders, ropes and
scaffolds, and
occasionally crawl and kneel. She
can have no
exposure to unprotected heights. She
can frequently
use the right upper extremity for grasping, reaching,
feeling and manipulating.
The claimant can have no
exposure to extremes in temperature. Exposure to
gasses, fumes, dusts,
etc., is to be no greater
than that generally
found in an ordinary office
environment. Work should be isolated, with no public
contact, occasional coworker contact, no group tasks,
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OPINION AND ORDER
and occasional supervisor contact. She can
understand, remember and carry out only simple
instructions that can be learned in 30 days or
less.
Tr. 17.
At Step Four the ALJ concluded the Plaintiff was unable to
perform her past relevant work as a rural mail carrier.
Tr. 21.
At Step Five the ALJ concluded there were jobs that existed in
significant numbers in the national economy that the claimant
could have performed.
Tr. 21.
Specifically, the ALJ found
Plaintiff, in light of her RFC, would have been able to perform
the requirements of representative occupations such as office
helper, mail clerk (private business), and security guard.
Tr. 22.
Accordingly, the ALJ found Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when she (1) failed to
give clear and convincing reasons for rejecting Plaintiff's
testimony; (2) failed to include the mental limitations
identified by William A. McConochie, Ph.D., an examining
psychologist, in the RFC assessment; (3) failed to give proper
consideration to the opinion of Alison Prescott, Ph.D., another
examining psychologist; (4) failed to credit portions of the
opinions of the reviewing agency psychologists; and (5) failed
to meet her burden to prove that Plaintiff retains the ability
to perform "other work" in the national economy.
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OPINION AND ORDER
I.
Reasons for Rejecting Plaintiff's Testimony
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and she must show the
impairment or combination of impairments could reasonably be
expected to produce some degree of symptom.
1403, 1407 (9th Cir. 1986).
Cotton, 799 F.2d
The claimant, however, need not
produce objective medical evidence of the actual symptoms or
their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if she provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995)).
General assertions that the claimant's
testimony is not credible are insufficient.
Id.
The ALJ must
identify "what testimony is not credible and what evidence
undermines the claimant's complaints."
Id. (quoting Lester, 81
F.3d at 834).
The ALJ found Plaintiff's "medically determinable
impairments could reasonably be expected to cause the alleged
symptoms," but he concluded Plaintiff's "statements concerning
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OPINION AND ORDER
the intensity, persistence and limiting effects of these
symptoms are not credible."
Tr. 18.
The ALJ found Plaintiff's "self-reports to treating sources
and her presentation at consultative examinations and at hearing
are not consistent with her alleged degree of limitation."
Tr. 20.
The ALJ noted at appointments with treating sources
that Plaintiff "reported being happy, depression was mild,
anxiety was well controlled with medications and she was
observed to be very pleasant," which the ALJ found "consistent
with her demeanor at hearing--she was quite social and chatty,
laughing at times, and did not exhibit any signs of anxiety in a
very stressful situation with people with whom she was
unfamiliar."
Tr. 20 (citations to record omitted).
The ALJ noted there was a significant contrast between
Plaintiff's reports of a "'high' degree of depression and
anxiety in the records of Mr. Johnson at Options Counseling
during about five months of counseling" and Plaintiff's report
two months later to Robert Carolan, M.D.
Tr. 19.
Dr. Carolan
described Plaintiff as "very frank about her problems and they
are not overly severe," and he termed her condition "long-term
mild depression."
Tr. 19.
The ALJ also stated in September 2011, just prior to
Plaintiff's date last insured, Plaintiff "reported she
'generally feels happy,'" and even though she had "self-
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OPINION AND ORDER
diagnosed herself with PTSD," she "has accepted the situation
and is attempting to move on."
Tr. 19.
In 2012 the ALJ also
noted "Plaintiff reported that anxiety was well controlled with
Effexor, that she intermittently used Ativan and that while she
could be happier, she did not want an increase in medications."
Tr. 19 (citations to the record omitted).
The ALJ further pointed out that Plaintiff had maintained
typical daily activities despite her alleged social limitations.
Tr. 19.
The ALJ also noted Plaintiff alleged more difficulties
in terms of social and task completion in a 2010 function report
than she had in a 2007 function report, and, at the same time,
she alleged she had the same problems for many years.
Tr. 18.
The ALJ stated "[t]his suggests she may be attempting to portray
herself as more limited after being denied benefits several
times."
Tr. 18.
The Court concludes the ALJ correctly identified multiple
inconsistencies in the record between Plaintiff's allegations,
statements to treatment providers, and clinical presentations.
The Court, therefore, concludes the ALJ did not err when he
rejected Plaintiff's testimony in part because the ALJ provided
legally sufficient reasons supported by substantial evidence in
the record for doing so.
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OPINION AND ORDER
II.
Dr. McConochie's Opinion
Plaintiff argues the ALJ erred by failing to include
limitations identified by Dr. William McConochie in Plaintiff's
RFC assessment and in the hypothetical question to the VE.
Dr. McConochie stated in his report that Plaintiff has
moderate impairment in her ability to sustain concentration,
attention, and persistence and in her ability to engage in
appropriate social interaction to the degree that it would cause
an employer to warn such an employee that dismissal would be
imminent if the behavior did not improve.
Plaintiff contends although the ALJ acknowledged
Dr. McConochie's opinion and stated she was giving his
assessment "significant weight," the ALJ, nonetheless, only
partially addressed Dr. McConochie's opinion in her assessment
of Plaintiff's RFC.
Plaintiff argues the ALJ did not fully
address Plaintiff's limitations in appropriate social
interaction and failed to include any limitations in
concentration, persistence, and pace.
The ALJ, however, incorporated Dr. McConochie's assessment
of Plaintiff's moderate social limitations by limiting Plaintiff
to "isolated" work with "no public contact, occasional coworker
contact, no group tasks, and occasional supervisor contact."
Tr. 17.
13
Thus, the ALJ rationally interpreted the social
OPINION AND ORDER
limitations indicated by Dr. McConochie and accounted for them
in her assessment of Plaintiff's RFC.
The ALJ also found Plaintiff had moderate difficulties with
regard to concentration, persistence, or pace.
Tr. 16.
Accordingly, the ALJ included in his assessment of Plaintiff's
RFC that Plaintiff can "understand, remember and carry out only
simple instructions that can be learned in 30 days or less."
Tr. 17.
A moderate limitation in concentration, persistence, or
pace is adequately reflected in a restriction to simple work
when a medical opinion has translated that moderate restriction
into the more specific functional limitation.
Stubbs-Danielson
v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008).
See also Sabin
v. Astrue, 337 F. App'x 617, 621 (9th Cir. 2009)("[T]he end
result of [Plaintiff's] moderate difficulties as to
[concentration, persistence, and pace] was that she could do
simple and repetitive tasks on a consistent basis.").
Under
Stubbs-Danielson, the question then "is whether the ALJ's
assessment of Plaintiff's RFC and his hypothetical to the VE are
supported by substantial evidence in the record."
Saylor v.
Astrue, Case No. 3:10-cv-01313-JE, 2012 WL 3597423, at *4 (D.
Or., Aug. 20, 2012).
Here Sandra L. Lundblad, Psy.D., and Megan D. Nicoloff,
Psy.D., both opined Plaintiff did not have any significant
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OPINION AND ORDER
limitations in her ability to maintain attention and
concentration; to carry out short and simple instructions, or to
perform 1-3 step tasks.
Tr. 99, 117.
Dr. McConochie noted
Plaintiff demonstrated "adequate attention and concentration for
a [sic] simple tasks."
Tr. 445.
Bill Hennings, Ph.D., also
opined Plaintiff "is able to understand and follow simple
tasks."
Tr. 473.
Dr. Prescott stated Plaintiff "showed good
short term memory" and "good concentration," and she "appeared
to be of Average intellectual function and is aware she is
fairly intelligent."
Tr. 593.
Thus, the Court concludes on this record that the ALJ did
not err because the ALJ's assessment of Plaintiff's RFC and the
hypothetical to the VE were supported by substantial evidence in
the record and were appropriately limited to simple and routine
work, and the ALJ adequately incorporated Dr. McConochie's
opinion into the Step Three and RFC findings.
III. Dr. Prescott's Opinion
Plaintiff also argues the ALJ erred by failing to fully
credit the opinion of Dr. Prescott, examining psychologist.
An ALJ may reject an examining or treating physician's
opinion when it is inconsistent with the opinions of other
treating or examining physicians if the ALJ makes "findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record."
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OPINION AND ORDER
Thomas v.
Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)(quoting Magallanes
v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).
When the medical
opinion of an examining or treating physician is uncontroverted,
however, the ALJ must give "clear and convincing reasons" for
rejecting it.
Thomas, 278 F.3d at 957; see also Lester, 81 F.3d
at 830–32.
The ALJ gave Dr. Prescott's opinion "some weight."
Tr. 20.
Specifically, the ALJ accepted Dr. Prescott's opinion that
Plaintiff should avoid contact with the public and have limited
contact with co-workers due to her "'significant' impairment in
adaptive functioning in terms of social/interpersonal domains,"
and the ALJ reflected this part of Dr. Prescott's opinion in the
ALJ's assessment of Plaintiff's RFC.
Tr. 20.
The ALJ, however, rejected Dr. Prescott's conclusion that
Plaintiff "would not likely function well dealing with the
public or around coworkers/supervision" because "these vague
limitations are not entirely consistent with the claimant's
self-reported level of activity and continued independence
despite her alleged extreme socially based restrictions."
Tr. 20.
Moreover, as the ALJ noted, the limitations identified
by Dr. Prescott were "vague" and did not provide a specific
functional limitation that would be useful in formulating the
RFC assessment.
16
Finally, to the extent that Dr. Prescott's
OPINION AND ORDER
opinion may be construed as precluding any contact with
coworkers or supervisors, it appears to conflict with
Dr. McConochie's finding of moderate restriction in social
functioning.
On this record the Court concludes the ALJ did not err when
he gave only "some weight" to Dr. Prescott's opinion because the
ALJ provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
IV.
Reviewing Agency Psychologists' Opinions
Plaintiff also argues the ALJ erred by failing to credit
portions of the opinions of reviewing agency psychologists Drs.
Lundblad, Nicoloff, and Henning.
The Commissioner concedes the
ALJ erred by not discussing their opinions, but contends the
error does not merit reversal of the ALJ's decision.
The court may not reverse an ALJ's decision based on an
error that is harmless, and it is the claimant's burden to
establish error and to show that it was harmful.
F.3d at 1111.
Molina, 674
Here Plaintiff has failed to meet her burden to
show harmful error with respect to the ALJ's failure to comment
on the reviewing agency psychologists' reports.
See Ludwig,
l681 F.3d at 1054 (error is harmless when the claimant fails to
show at least a substantial likelihood of prejudice).
See also
Molina, 674 F.3d at 1115 (error is harmless when it is
inconsequential to the nondisability determination in light of
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OPINION AND ORDER
the record as a whole); Carmickle v. Comm'r, Soc. Sec. Admin.,
533 F.3d 1155, 1162 (9th Cir. 2008)(error is harmless if the
nondisability determination remains supported despite the
error).
Plaintiff contends Drs. Lundblad and Nicoloff concluded
Plaintiff was "moderately" limited in accepting instructions and
responding appropriately to criticism by supervisors.
117.
Tr. 99,
Plaintiff argues the ALJ erred because the limitation in
Plaintiff's RFC to "occasional" supervisor contact does not
address Plaintiff's limitations in responding appropriately to
supervisor criticism.
Both Drs. Lundblad and Nicoloff
concluded, however, that despite Plaintiff's moderate limitation
and the fact that she "would do better in an individual work
environment," she "is capable of occasional general public,
coworker, supervisory contact."
Tr. 99, 118.
Thus, the ALJ's
restriction of Plaintiff to "no group tasks" and only occasional
supervisor contact accounted for the limitations described.
Plaintiff argues Dr. Henning opined Plaintiff would be able
to sustain adequate attention, concentration, and pace "in a
slow pace setting," which the ALJ failed to mention in her
decision and failed to incorporate into her assessment of
Plaintiff's RFC or the hypothetical to the VE.
Tr. 473.
As
noted, however, the ALJ's assessment of Plaintiff's RFC and the
hypothetical to the VE were supported by substantial evidence in
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OPINION AND ORDER
the record and were appropriately limited to simple and routine
work.
Accordingly, any error the ALJ made in failing to
articulate a specific reason to afford Dr. Henning's opinion
less weight was harmless, and Plaintiff has not demonstrated the
outcome would have been different.
V.
Plaintiff's Ability to Perform "Other Work" in the National
Economy
Plaintiff argues the ALJ erred at Step Five based on his
evaluation of Plaintiff's credibility and the medical opinion
evidence.
Plaintiff contends if the ALJ had properly credited
Dr. McConochie's opinion, Plaintiff's credibility, and the
reviewing agency psychologists' opinions, the resulting
hypothetical the ALJ would have proposed to the VE would have
eliminated Plaintiff's ability to perform the jobs identified.
As noted, however, the Court finds the ALJ did not err in these
respects.
Accordingly, the ALJ's Step Five finding is correct.
CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 11th day of June, 2015.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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OPINION AND ORDER
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