Delles v. Commissioner Social Security Administration

Filing 15

Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter to the Commissioner pursuant to sentence four, 42 U.S.C. § 405(g), for the immediate calculation and payment of benefits to Plaintiff. Signed on 04/20/2016 by Judge Anna J. Brown. See attached Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

THOMAS F. DELLES,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
SHERWOOD J. REESE
Drew L. Johnson, P.C.
Eugene, OR 97401
[phone]
Attorney for Plaintiff
BILLY J. WILLIAMS
Acting United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
CATHERINE ESCOBAR
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104-7075
[phone]
Attorneys for Defendant

1 - OPINION AND ORDER

6:15-CV-00674-BR
OPINION AND ORDER

BROWN, Judge.
Plaintiff Thomas F. Delles seeks judicial review of a final
decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's application for
Disability Insurance Benefits (DIB) under Title II of the Social
Security Act (Act) and for Supplemental Security Income (SSI)
under Title XVI of 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 REVERSES the
decision of the Commissioner and REMANDS this matter to the
Commissioner pursuant to sentence four, 42 U.S.C. § 405(g), for
the immediate calculation and payment of benefits.

ADMINISTRATIVE HISTORY
Plaintiff protectively filed his applications on March 6,
2012, and alleged a disability onset date of March 1, 2008.
Tr. 137-44.1

The applications were denied initially and on

reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on December 10, 2013.

Tr. 26-48.

Plaintiff was represented by an attorney.

At the hearing
During the hearing

Plaintiff amended his disability onset date to May 21, 2010.

1

Citations to the official transcript of record filed by
the Commissioner on October 20, 2015, are referred to as "Tr."
2 - OPINION AND ORDER

Tr. 13.

Plaintiff and a vocational expert (VE) testified.

The ALJ issued a decision on December 20, 2013, in which he
found Plaintiff is not disabled.

Tr. 10-25.

That decision

became the final decision of the Commissioner on March 13, 2013,
when the Appeals Council denied Plaintiff's request for review.
Tr 1-4.

See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On April 21, 2015, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner’s decision.

BACKGROUND
Plaintiff was born on May 21, 1960, and was 50 years old on
the alleged amended onset of disability.

He completed a GED and

has past relevant work experience in construction as a gutter
installer.

Tr. 32, 74, 163.

Plaintiff alleges disability due to “avulsion injury to
right heel, right arm problems.”

Tr. 163.

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 his inability "to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which . . . has lasted or can be expected to
3 - OPINION AND ORDER

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
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).

42

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).
when the evidence is susceptible to more than one rational

4 - OPINION AND ORDER

Even

interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS
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
impairment or combination of impairments.

20 C.F.R.

§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

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).
F.3d at 724.

20 C.F.R.

See also Keyser, 648

The criteria for the listed impairments, known as

5 - OPINION AND ORDER

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
regular and continuing basis despite his limitations.
§§ 404.1520(e) 416.920(e).
96-8p.

20 C.F.R.

See also Social Security Ruling (SSR)

“A 'regular and continuing basis' means 8 hours a day,

for 5 days a week, or an equivalent schedule."

SSR 96-8p, at *1.

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 he 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.

6 - OPINION AND ORDER

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.

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 (SGA) since his May 21, 2010,
alleged onset date.

Tr. 15.

Plaintiff met the insured status

requirements of the Social Security Act through March 31, 2015.
At Step Two the ALJ found Plaintiff has severe impairments
of left foot pain/left plantarateral foot mass, status post left
heel latissimus dorsi graft, and right hip pain secondary to
antalgic gait.

Tr. 15.

At Step Three the ALJ found Plaintiff’s impairments do not
meet or equal any listed impairment.

Tr. 16.

The ALJ found

Plaintiff has the RFC for a full range of light work and can lift
and carry 20 pounds frequently and ten pounds occasionally.

He

can sit, stand, and walk for six hours each in an eight-hour day.
He requires the option to sit or stand at will while still
performing essential tasks.

7 - OPINION AND ORDER

Tr. 16.

At Step Four the ALJ found Plaintiff is incapable of
performing past relevant work as a construction worker, but
Plaintiff retains the ability to perform other jobs that exist in
the national economy and, therefore, is not disabled.

Tr. 19.

DISCUSSION
Plaintiff contends the Commissioner erred by (1) failing at
Step Two to find degenerative changes at the lumbosacral junction
is a severe impairment; (2) improperly finding Plaintiff’s
testimony was not fully credible; (3) erroneously finding a
significant number of positions exist at the light-exertion level
that allow for an at-will sit/stand option; and (4) failing to
provide a legally sufficient explanation for an inconsistency
between the Dictionary of Occupational Titles and VE’s testimony.
Because the second issue is dispositive, the Court need not
address the latter assertions.
I.

Step Two
Plaintiff contends the ALJ erred at Step Two by failing to

find moderate degenerative changes at the lumbrosacral junction
is a severe impairment.
At Step Two the ALJ determines whether the claimant has a
medically severe impairment or combination of impairments.
Keyser, 648 F.3d at 724..

The Social Security Regulations and

Rulings, as well as the case law that applies them, discuss the
8 - OPINION AND ORDER

Step Two severity determination in terms of what is "not severe."
According to the regulations, "an impairment is not severe if it
does not significantly limit [the claimant's] physical ability to
do basic work activities."

20 C.F.R. § 404.1521(a).

Basic work

activities are "abilities and aptitudes necessary to do most
jobs, including, for example, walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying or handling."

20

C.F.R. § 404.1521(b).
The Step Two inquiry is a de minimis screening device to
dispose of groundless claims.

Keyser, 648 F.3d at 724.

An

impairment or combination of impairments can be found "not
severe" only if the evidence establishes a slight abnormality
that has "no more than a minimal effect on an individual's
ability to work."

SSR 85-28.

See also Yuckert v. Bowen, 841

F.2d 303, 306 (9th Cir 1988)(adopting SSR 85-28).

A physical or

mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings and cannot
be established on the basis of a claimant's symptoms alone.

20

C.F.R. § 404.1508.
The ALJ noted the diagnosis of moderate degenerative change
at the lumbosacral junction, but he did not find the change was
severe and did not identify any functional limitations arising
from the diagnosis.

Tr. 18, 268.

Plaintiff argues the

degenerative changes caused him to experience back pain, which

9 - OPINION AND ORDER

further supports his testimony that he sits and lies down to
relieve pain.

Plaintiff, however, did not assert he suffers from

back pain, did not mention back pain at his hearing, and did not
identify any functional limitations arising from back pain.
On this record the Court concludes the ALJ did not err at
Step Two.
II.

Credibility of Plaintiff’s Testimony
Plaintiff contends the ALJ erred when he found Plaintiff’s

testimony was not fully credible.

The ALJ is responsible for

determining credibility, resolving conflicts in medical
testimony, and for resolving ambiguities.

Andrews v. Shalala, 53

F.3d 1035, 1039 (9th Cir. 1995).

See also Vasquez v. Astrue, 547

F.3d 1101, 1104 (9th Cir. 2008).

The ALJ's findings, however,

must be supported by specific, cogent reasons.
Chater, 157 F.3d 715, 722 (9th Cir. 1998).

Reddick v.

See also Holohan v.

Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001).

Unless there is

affirmative evidence that shows the claimant is malingering, the
Commissioner's reason for rejecting the claimant's testimony must
be "clear and convincing."

Id.

The ALJ must identify the

testimony that is not credible and the evidence that undermines
the claimant's complaints.
relies must be substantial.
F.3d at 1208.

Id.

The evidence on which the ALJ

Id. at 724.

See also Holohan, 246

General findings (e.g., "record in general"

indicates improvement) are an insufficient basis to support an
10 - OPINION AND ORDER

adverse credibility determination.
See also Holohan, 246 F.3d at 1208.

Reddick, 157 F.3d at 722.
The ALJ must make a

credibility determination with findings sufficiently specific to
permit the court to conclude that the ALJ did not arbitrarily
discredit the claimant's testimony.

Thomas v. Barnhart, 278 F.3d

947, 958 (9th Cir. 2002).
When deciding whether to accept a claimant's subjective
symptom testimony, "an ALJ must perform two stages of analysis:
the Cotton analysis and an analysis of the credibility of the
claimant's testimony regarding the severity of her symptoms."
Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
Under the Cotton test, a claimant who alleges
disability based on subjective symptoms "must
produce objective medical evidence of an underlying impairment which could reasonably be
expected to produce the pain or other symptoms
alleged." Bunnell, 947 F.2d at 344 (quoting
42 U.S.C. § 423(d)(5)(A) (1988)); Cotton, 799
F.2d at 1407-08. The Cotton test imposes only
two requirements on the claimant:(l) she must
produce objective medical evidence of an
impairment or impairments; and (2) she must
show that the impairment or combination of
impairments could reasonably be expected to
(not that it did in fact) produce some degree
of symptom.
Smolen, 80 F.3d at 1282.

See also Carmickle v. Comm’r Soc. Sec.

Admin., 533 F.3d 1155, 1160 (9th Cir. 2008).
A.

Plaintiff’s Function Report and Pain Questionnaire

Plaintiff completed an Adult Function Report on April 17,
2012.

Tr. 181-89.

He asserted he could not walk or stand for

11 - OPINION AND ORDER

more than 10-15 minutes.

Tr. 181.

Plaintiff lives alone,

cooks, does dishes and laundry, and watches television.

Tr. 182.

He prepares daily meals, which takes two or three hours, and does
cleaning and laundry for one to two hours daily.

Tr. 183-84.

Plaintiff does not have a driver’s license and travels by
bicycle.

He shops for groceries once a month for two or three

hours.
Plaintiff has trouble lifting, squatting, bending, standing,
reaching, walking, and stair climbing.

Tr. 186.

He “cannot be

on [his] feet for more than 10-15 min. at a time without sitting
to relieve the pain.”
walking.

Tr. 186.

He uses a prescribed cane when

Tr. 187.

On April 24, 2012, Plaintiff completed a Pain and Fatigue
Questionnaire.

Tr. 190.

He described aching pain in his left

foot, right hip, and right shoulder when standing and walking,
which is relieved by sitting.

He stated he does not require

daily rests or naps, but he needs to rest between activities.

He

can be active for 10-15 minutes before requiring rest.
B.

Plaintiff’s Testimony

At the December 2013 hearing Plaintiff testified he last
worked in November 2010 in a gutter installation shop.

Tr. 32.

He bent “elbows,” swept the floor, and put away inventory.
lifted 25-30 pounds and was on his feet most of the time.

He
He

held various positions in the company and had worked as a gutter

12 - OPINION AND ORDER

installer for the company since 1994. He worked about two months
in the shop full-time before he was laid off because he could not
stand long enough to do the work.

Tr. 33.

Plaintiff takes “aspirin every now and then.”

Id.

He was

in a motorcycle accident in 1988 and had muscle and skin grafts
to his left heel.

One leg is shorter than the other, and it

causes him to walk in a way that resulted in bursitis in his
right hip.

Tr. 34.

He has had daily pain in his left foot and

right hip for three or four years.

His average pain level is

seven or eight out of ten, but he takes only aspirin because
“all’s I have to do is sit down, get – put the weight – get the
weight off of my feet and my hip.”

Tr. 34.

He has discussed surgery with his doctors, but they don’t
know whether the skin graft will take again.

Tr. 35.

over-the-counter orthotics that do not provide relief.

He has
Although

he has a customized shoe, “there’s no way I can keep the weight
off my foot if I’m standing on it.
or what the padding is.”
pounds and carry ten.

Tr. 36.

No matter what the shoe is,
He thinks he can lift 50

He uses a cane (which is not prescribed)

if he is going to be walking a lot.

He can sit for about 30

minutes before he needs to stand or to move to relieve his hip
pain.

Tr. 37.

He can stand or walk for ten to fifteen minutes.

He spends a “couple hours” a day lying down because “[t]ired I
guess, the pain too, from the hip and to keep the weight off the

13 - OPINION AND ORDER

foot.

It’s either sit down or lay down.

I do both.”

Id.

Plaintiff lives in a trailer on a friend’s property and does
not pay any rent.
cigarettes.

Tr. 38.

Tr. 37, 40.

He drives three blocks daily to get

He does not have any income except from

buying items at garage sales and reselling them at flea markets.
Tr. 38.

He spends about two hours a week buying and selling

things.

He receives food stamps and medical insurance under the

Oregon Health Plan, which was effective the month after the
hearing.

Tr. 39.

Plaintiff has a growth on his left foot about the size of a
marble.

Doctors are not sure if they can help him.

has been referred to physical therapy.

Tr. 40.

He

He does not want pain

medication because his foot is numb, and he is concerned that he
would not know if he hurt it.

Tr. 41.

C. The ALJ’s Findings Regarding the Credibility of
Plaintiff’s Testimony
The ALJ found Plaintiff’s testimony was not entirely
credible regarding the intensity, persistence, and limiting
effects of his symptoms.

The ALJ relied on Plaintiff’s lack of

treatment; the opinion of Daniel Lincoln, M.D.; Plaintiff’s daily
activities; and Plaintiff’s inconsistent statements.
1.

Tr. 17-18.

Lack of Treatment

It is not proper to discredit a claimant for not
obtaining treatment he cannot afford.

14 - OPINION AND ORDER

Orn v. Astrue, 495 F.3d

625, 638 (9th Cir. 2007).

The ALJ noted Plaintiff sought little

medical treatment during the period of his alleged disability.
Tr. 17.

Plaintiff, however, testified he had minimal income, and

he did not obtain medical insurance until three weeks posthearing.

Tr. 39.

financial aid.

He received some care from Urgent Care through

Tr. 40.

sitting or lying down.

He was able to relieve his pain by
Tr. 37, 40, 234.

On this record the Court concludes Plaintiff’s lack of
treatment is not a clear or convincing reason for the ALJ to find
Plaintiff's testimony was less than fully credible.
2.

Dr. Lincoln’s Opinion

Dr. Lincoln examined Plaintiff on May 12, 2012.
Tr. 234-38.

Dr. Lincoln noted Plaintiff “walks with an abnormal

gait, only bearing weight on the ball of his left foot.”
Tr. 235.

Plaintiff was able to stand from a seated position and

walk to the examination table without difficulty.

Dr. Lincoln

noted Plaintiff reported he experiences pain within 10-15 minutes
of walking or standing, which is relieved by rest and elevation.
Tr. 238, 234.

Dr. Lincoln found Plaintiff had normal motor

strength and no limitations in walking or standing.

Tr. 238.

Dr. Lincoln concluded he could not “find an objective
justification for limiting [Plaintiff’s] standing or walking.”
Tr. 238.
The ALJ pointed out that Dr. Lincoln “did not note any

15 - OPINION AND ORDER

objective clinical basis for the claimant not to be able to bear
weight on his left heel.”

Tr. 18.

A claimant, however, need not

present clinical or diagnostic evidence to support the severity
of his pain.

Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir.

1990)(“. . . it is the very nature of excess pain to be out of
proportion to the medical evidence.”).
On this record the Court concludes the lack of medical
support for the severity of Plaintiff’s pain is not a clear and
convincing reason for the ALJ to find Plaintiff’s testimony was
less than fully credible.

See Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995).
3.

Plaintiff’s Daily Activities

The ALJ found Plaintiff’s “activities show that he
would be capable of working” with his RFC.

Tr. 18.

The

activities include cooking, doing chores, personal care, driving,
visiting garage sales, riding a bicycle, and shopping monthly.
There are two grounds permitted for using daily
activities to form the basis of an adverse credibility
determination:

1) because the activities contradict other

testimony or 2) because the activities meet the threshold for
transferable work skills.

Orn, 495 F.3d at 639.

Sporadic

activities “punctuated with rest” are not inconsistent with
disability.

Reddick, 157 F.3d at 722-23.

Neither the ALJ nor

the Commissioner points to any contradiction with other testimony
16 - OPINION AND ORDER

nor does the record reflect Plaintiff’s daily activities meet the
threshold for transferable skills.
On this record the Court concludes Plaintiff’s daily
activities are not clear or convincing reasons for the ALJ to
find Plaintiff’s testimony was less than fully credible.
4. Inconsistent Statements
When assessing credibility the ALJ is allowed to
consider the consistency of a claimant’s statements.
at *5.

See also Thomas, 278 F.3d at 958.

SSR 96-7p,

The ALJ, however,

noted Plaintiff’s December 2013 testimony that he lies down for a
couple of hours daily because he is tired and experiencing pain.
The ALJ found Plaintiff’s testimony was contradicted by
Plaintiff’s April 2012 assertion that he does not require daily
rests or naps.

Tr. 18.

Plaintiff, however, also stated in his

April 2012 Pain Questionnaire that he can be active for 10-15
minutes before requiring rest between activities.
In summary, on this record the Court concludes the ALJ erred
when he found Plaintiff's testimony was less than fully credible
because the ALJ failed to provide legally sufficient reasons
convincing reasons for doing so.

REMAND
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
17 - OPINION AND ORDER

utility of further proceedings.
1179 (9th Cir. 2000).

Harman v. Apfel, 211 F.3d 1172,

When "the record has been fully developed

and further administrative proceedings would serve no useful
purpose, the district court should remand for an immediate award
of benefits."

Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.

2004).
The decision whether to remand this case for further
proceedings or for the payment of benefits is a decision within
the discretion of the court.

Harman, 211 F.3d 1178.

The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."

Harman, 211 F.3d at 1178.

The

Court should grant an immediate award of benefits when:
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting . . .
evidence, (2) there are no outstanding issues
that must be resolved before a determination
of disability can be made, and (3) it is
clear from the record that the ALJ would be
required to find the claimant disabled were
such evidence credited.
Id.

The second and third prongs of the test often merge into a

single question:

Whether the ALJ would have to award benefits if

the case were remanded for further proceedings.

Id. at 1178 n.2.

The Court has concluded the ALJ erred when he rejected
Plaintiff’s testimony.

If credited, that testimony establishes

that Plaintiff is disabled.

Thus, the Court concludes Plaintiff

is disabled based on this medical record and no useful purpose
18 - OPINION AND ORDER

would be served by a remand of this matter for further
proceedings.

See Harman, 211 F.3d at 117.

Accordingly, the Court remands this matter for the immediate
calculation and award of benefits.

CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter to the Commissioner pursuant
to sentence four, 42 U.S.C. § 405(g), for the immediate
calculation and payment of benefits to Plaintiff.
IT IS SO ORDERED.
DATED this 20th day of April, 2016.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

19 - OPINION AND ORDER