Smith v. Commissioner Social Security Administration
Filing
29
Opinion and Order: For the foregoing reasons, the ALJs decision is free of legal error and supported by substantial evidence. The Commissioners final decision is therefore affirmed. Signed on 1/18/2018 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TODD ANDREW SMITH,
No. 6:16-cv-01297-MC
Plaintiff,
v.
OPINION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Defendant.
_______________________________________
MCSHANE, Judge:
Plaintiff, Todd Andrew Smith, brings this action for judicial review of the Commissioner
of Social Security’s decision denying his application for Supplemental Security Income and
Disability Insurance Benefits.
This Court has jurisdiction under 42 U.S.C. §§ 405(g) and
1383(c)(3).
On October 23, 2012, Mr. Smith filed an application for Supplemental Security Income
and Disability Insurance Benefits. After a hearing, an Administrative Law Judge determined that
Mr. Smith was not disabled under the Social Security Act. Mr. Smith now contends that the
Administrative Law Judge erred (1) in weighing the medical opinion of treating psychiatrist
Bryan D. Yates, (2) in crediting at step 3 a limitation on social functioning and then excluding
that limitation from his residual functional capacity, and (3) in rejecting portions of the lay
opinion testimony of physical therapist Tom Zomerschoe. Because the Commissioner of Social
Security’s decision is based on proper legal standards and supported by substantial evidence, it is
AFFIRMED.
Page 1 – OPINION AND ORDER
STANDARD OF REVIEW
A reviewing court shall affirm the decision of the Commissioner of Social Security
(“Commissioner”) if her decision is based on proper legal standards and the legal findings are
supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm’r Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence is ‘more than a mere
scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012)
(quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether
substantial evidence exists, the district court must review the administrative record as a whole,
weighing both the evidence that supports and detracts from the decision of the Administrative
Law Judge (“ALJ”). Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).
DISCUSSION
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof
rests upon the claimant to meet the first four steps. If the claimant satisfies her burden with
respect to the first four steps, the burden then shifts to the Commissioner for step five. 20 C.F.R.
§ 404.1520. At step five, the Commissioner’s burden is to demonstrate that the claimant is
capable of making an adjustment to other work after considering the claimant’s Residual
Functional Capacity (“RFC”), age, education, and work experience. Id.
In the present case, the ALJ found that Mr. Smith was not disabled. She first determined
that Mr. Smith remained insured for Disability Insurance Benefits (“DIB”) until December 31,
Page 2 – OPINION AND ORDER
2012. Tr. 39.1 Next, at step one of the sequential evaluation, the ALJ found that Mr. Briceno
had not engaged in substantial gainful activity since November 30, 2007, the alleged onset date
of disability. Tr. 39. At step two, the ALJ determined that Mr. Smith had the following severe
impairments: thoracic degenerative disc disease with mild scoliosis, mild cervical degenerative
disc disease, mild diverticulitis, hearing loss, attention deficit disorder (“ADD”), and major
depressive disorder. Tr. 39-40. At step three, the ALJ found that Mr. Smith did not have an
impairment or combination of impairments that met or medically equaled the severity of listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 40-41.
Before moving to step four, the ALJ found that Mr. Smith had the RFC to perform a
reduced range of light work. Tr. 41. This included lifting and carrying 20 pounds occasionally
and 10 pounds frequently, standing and/or walking for 4 hours per 8-hour workday, and sitting
for 6 hours per 8-hour workday. Tr. 41. In addition, Mr. Smith could not climb ladders, ropes,
or scaffolds, and could not be exposed to workplace hazards such as unprotected heights or
dangerous machinery. Tr. 41. Mr. Smith was also required to perform the majority of his work
tasks in front of his body and could not engage in sustained overhead work. Tr. 41. He further
required a15-minute break every two hours and could not be exposed to loud noise. Tr. 41.
Finally, with respect to his mental abilities, Mr. Smith could only understand, remember, and
carry out simple instructions that could be learned in 30 days or less. Tr. 41.
At step four, relying on the testimony of a Vocational Expert, the ALJ found that Mr.
Smith was unable to perform past relevant work as a hospice nurse or general nurse. Tr. 45. At
step 5, after considering his age, education, work experience, and RFC, the ALJ determined that
Mr. Smith was capable of performing jobs existing in significant numbers in the national
economy, including electronics work, electronics accessories assembler, and storage facility
1
“Tr.” refers to the Transcript of Social Security Administrative Record provided by the Commissioner.
Page 3 – OPINION AND ORDER
rental clerk. Tr. 46. Having made this determination, the ALJ concluded that Mr. Smith was not
disabled within the meaning of the Social Security Act and did not qualify for benefits. Tr. 46.
Mr. Smith challenges the ALJ’s non-disability determination on three grounds. First, he
argues that the ALJ failed to properly weigh the medical opinion of treating psychiatrist Brian D.
Yates and, in doing so, ignored functional limitations contained therein. Pl.’s Br. 3-10. Second,
Mr. Smith argues that the ALJ erred by crediting at step 3 a limitation on social functioning
identified by Dr. Yates and then excluding that limitation from the RFC. Pl.’s Br. 10-13.
Finally, Mr. Smith argues that the ALJ improperly rejected portions of the testimony by his
physical therapist Tom Zomerschoe. Pl.’s Br. 10. The Court addresses each objection in turn.
I. Weight Assigned to the Opinion of Dr. Yates.
Mr. Smith first argues that the ALJ failed to properly weigh the opinion of Dr. Yates.
Pl.’s Br. 3-10. The medical opinion of a treating physician is entitled to controlling weight if it is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in [the claimant’s] case record.”
20 C.F.R. §
404.1527(c)(2). An opinion is inconsistent if the record contains other substantial evidence
which “contradicts or conflicts with the opinion.” SSR 96-2p, 1996 WL 374188, at *3. When a
treating physician’s opinion is not controlling, it must be “weighted according to factors such as
the length of the treatment relationship, supportability, consistency with the record, and
specialization of the physician.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing
20 C.F.R. § 404.1527(c)(2)-(6)). In the alternative, a non-controlling opinion may be rejected in
full if it is “contradicted by another doctor’s opinion” and the ALJ “provid[es] specific and
legitimate reasons . . . supported by substantial evidence.”2 Ryan v. Comm’r of Soc. Sec., 528
2
Mr. Smith likely waived the argument that Dr. Yates’s opinion was uncontradicted by another treating or
examining medical source, and thus subject to the higher “clear and convincing reasons” standard, by failing to raise
Page 4 – OPINION AND ORDER
F.3d 1194, 1198 (9th Cir. 2008). An ALJ “meet[s] this burden by setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).
As a threshold matter, the ALJ did not fully reject the opinion of Dr. Yates. Pl.’s Br. 5;
Def.’s Br. 15. Instead, she expressly assigned the opinion “little weight.” Tr. 44. The ALJ was
therefore not obligated to—though nevertheless did—justify her determination with “specific
and legitimate reasons.” See SSR 96-02p, 1996 WL 374188, at *5. Second, the ALJ was not
required to separately discount and then assign a weight to Dr. Yates’s opinion. Pl.’s Br. 7-8.
Neither the regulations nor case law support imposing such a burden on the ALJ’s analytical
process. There is no reason an ALJ may not focus her analysis on the ultimate question of
weight, provided that she still both meets her burden for declining to assign the opinion
controlling weight and justifies the weight assigned.3 Finally, the ALJ was not required to
expressly discuss each factor listed in 20 C.F.R. § 404.1527(c). Pl.’s Br. 8. Instead, an ALJ
need only justify the weight assigned to a treating source’s opinion with “specific reasons . . .
supported by the evidence in the case record.” SSR 96-02p, 1996 WL 374188, at *5; see also
Harris v. Colvin, 584 Fed. Appx. 526, 527 n.1 (9th Cir. 2014) (unpublished) (holding that an
ALJ is not “required to specifically reference each factor”); Oldham v. Astrue, 509 F.3d 1254,
1258 (10th Cir. 2007) (same); Kottke v. Colvin, No. 6:15-cv-00927, 2016 WL 4374774, at *7 (D.
Or. Aug. 15, 2017) (same).
it in his opening brief. Bray v. Comm’r of Soc. Sec., 554 F.3d 1219, 1226 n.7 (9th Cir. 2009). In any event, as
described infra, Dr. Yates’s opinion was contradicted and the ALJ at least implied as much.
3
According to Mr. Smith, “[t]he ALJ’s reasoning only pertains to whether the doctor’s opinion should be given
controlling weight, not whether it should be given any weight . . . .” Pl.’s Br. 7. However, as noted above, the ALJ
expressly assigned the opinion “little weight” and justified that determination in her subsequent analysis. Tr. 44-45.
The ALJ was not required to separately reject and then weigh the opinion—the reasons for assigning little weight to
the opinion equally justified declining to assign it controlling weight.
Page 5 – OPINION AND ORDER
Here, the ALJ provided two specific and legitimate reasons, both supported by substantial
evidence, for discounting and assigning little weight to the opinion of Dr. Yates. Tr. 44-45.
First, the ALJ discounted the opinion because it was “inconsistent with Dr. Yates’ [sic] own
treatment notes and mental status examinations.” Tr. 44-45. Dr. Yates treated Mr. Smith on
December 11, 2012, January 24, 2013, and March 21, 2013. Tr. 522, 525, 577. In his initial
notes, the only ones recorded during the alleged period of disability, Dr. Yates assessed that Mr.
Smith had “low level [sic] chronic depression.” Tr. 525. Although he opined that further
examination might reveal some unusual circumstance, he questioned how Mr. Smith could have
“disabling ADHD but have been able to graduate from nursing school without treatment.” Tr.
525. On the second and third visits, Dr. Yates never noted any worsening of symptoms or
clarifying
circumstances
regarding
Mr.
Smith’s
“improvement” in concentration, mood, and energy.
alleged
Tr. 578.
ADHD,
instead
observing
Despite these findings, the
assessment forms completed by Dr. Yates in July 2013 described depression and ADHD so
severe that Mr. Smith could not “maintain significant employment.” Tr. 610. It was at least
rational for the ALJ to conclude that this assessment was inconsistent with the notes recorded by
Dr. Yates. These inconsistencies are a specific and legitimate reason to discount and assign
minimal weight to the opinion of a treating physician. See Ghanim v. Colvin, 763 F.3d 1154,
1161 (9th Cir. 2014); 20 C.F.R. § 404.1527(c)(3).4
Second, the ALJ discounted the opinion of Dr. Yates because the other “medical
evidence of record” failed to “corroborate” its content. Tr. 45. The ALJ provided an extensive
discussion of the medical record and competing evaluations of two other treating sources, which
he cross referenced in his discussion of Dr. Yates’s opinion. Tr. 42-45. For example, during the
4
Unlike in Trevizo, the case relied on by Mr. Smith, the ALJ cited to specific portions of the treating physician’s
notes and those notes were not “wholly consistent” with the claimant’s physical limitations and course of treatment.
Trevizo, 871 F.3d at 677.
Page 6 – OPINION AND ORDER
period of alleged disability, the ALJ noted that Mr. Smith’s mental impairments were
consistently documented as mild to moderate, with otherwise “normal mental status findings.”
Tr. 42, 289 (finding ADHD “controlled” with medication), 423 (noting normal mental status),
438 (documenting responsiveness to medications), 454 (“[Plaintiff] appears to be functioning
relatively well.”), 619 (noting normal mental status besides some anxiety).
Similarly, Dr.
Charles Reagan, who treated Mr. Smith’s mental impairments from 2001 to 2008, assigned
Global Assessment Functioning scores between 60 and 70, “suggesting only modest
impairment.” Tr. 42, 263-67. Rebecca Duffy, a psychiatric-mental health nurse practitioner who
treated Mr. Smith after Dr. Reagan, also noted that Mr. Smith’s mental status appeared normal
and concluded that Mr. Smith could still “hold a job.” Tr. 413. It was, as such, reasonable for
the ALJ to interpret the medical record as inconsistent with the opinion of Dr. Yates and this was
a specific and legitimate reason to discount it. See 20 C.F.R. § 404.1527(c)(4).
The ALJ also discounted Dr. Yates’s opinion because it covered only the last month of
Mr. Smith’s insured status and because Mr. Smith participated in health care appointments. Tr.
45. It is true that Mr. Smith had no problems participating in healthcare appointments and that
the opinion only covered the last nineteen days of his insured status. The Court agrees with Mr.
Smith, however, that it is unreasonable to discount Dr. Yates’s opinion on these bases. Although
the length of a treatment relationship is a legitimate reason for discrediting an opinion, see 20
C.F.R. § 404.1527(c)(2)(i), the Court fails to see how an opinion is entitled to less weight solely
because it covers a period closer to the claimant’s date last insured. Similarly, it would make
little sense to penalize claimants for seeking and receiving treatment from a physician. This is
not a legitimate reason for discounting the opinion of a treating source. Nevertheless, these
errors are harmless because the ALJ’s determination is otherwise based on specific and
Page 7 – OPINION AND ORDER
legitimate reasons supported by substantial evidence in the record. Carmickle v. Comm’r Soc.
Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). As such, her opinion is entitled to deference.
II. Exclusion of Social Functioning Limitations from RFC
Mr. Smith next argues that the ALJ erred in omitting his social functioning limitations
from the RFC. Pl.’s Br. 11. The RFC is the most a claimant can do, despite her physical or
mental impairments. 20 C.F.R. §§ 404.1545, 404.945. In formulating an RFC, the ALJ must
consider all medically determinable impairments and evaluate “all of the relevant medical and
other evidence,” including the claimant’s testimony. 20 C.F.R. § 404.1545; see also SSR 96-8p,
1996 WL 374184, at *3. Nevertheless, only limitations supported by substantial evidence must
be incorporated into the RFC. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2009). In
addition, the RFC reflects only a claimant’s concrete functional limitations resulting from her
medical impairments, not the impairments themselves. SSR 96-8p, 1996 WL 374184, at *6. To
that end, “[t]he limitations identified in the ‘paragraph B’ . . . criteria are not an RFC
assessment” and are strictly “for rat[ing] the severity of mental impairment(s) at steps 2 and 3.”
SSR 96-8p, 1996 WL 374184, at *4.
An ALJ is therefore not required to incorporate
impairments identified at step three if she finds that substantial evidence of “concrete workrelated” limitations stemming from those impairments is lacking. Rogers v. Comm’r of Soc.
Sec., 490 Fed. Appx. 15, 17-18 (9th Cir. 2012).
At step three, the ALJ determined that Mr. Smith had moderate difficulties in social
functioning. Tr. 40. She expressly based this conclusion on Mr. Smith’s testimony that he “selfisolates” due to depression. Tr. 40. The ALJ did not, as Mr. Smith alleges, adopt Dr. Yates’s
opinion at step three and the RFC was not required to mirror her step three conclusions with
Page 8 – OPINION AND ORDER
respect to the “broad categories” found in the paragraph B criteria. Rogers, 490 Fed. Appx. at
17-18; SSR 96-8p, 1996 WL 374184, at *4. To the contrary, the ALJ specifically addressed Mr.
Smith’s relevant symptom testimony and discounted its credibility by noting inconsistencies with
his activities of daily living and medical record, as well as by pointing to Mr. Smith’s less-thancandid statements about marijuana cultivation. See, e.g., Tr. 40 (“He is able to go out alone and
does grocery shopping for his family.”), 42 (“Despite his impairments, the claimant described
fairly average daily activities.”), 44 (“[H]e initially claimed [his marijuana plants] died because
he could not focus, but later admitted the plants died from an infection he is aware regularly
affects the plant roots.”). These are clear and convincing reasons, each supported by substantial
evidence, for discrediting Mr. Smith’s testimony and omitting additional limitations on social
functioning from the RFC. See generally Molina v. Astrue, 674 F.3d 1104, 1163 (9th Cir. 2012)
(holding that an ALJ may assess credibility based on, among other things, ordinary techniques of
evaluation, activities of daily living, medical evidence, and inconsistencies in testimony).
Despite Mr. Smith’s allegation that the ALJ based her step three social functioning
conclusion on the opinion of Dr. Yates, that opinion falls short of identifying concrete vocational
limitations which would be relevant to the RFC. Pl.’s Br. 11. Specifically, when a medical
source opinion does not prescribe any particular functional limitation on a claimant, the ALJ is
not required to assume that the medical source intended any such limitation to be included.
Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010). Here, the narrative
portion of Dr. Yates’s assessment says nothing about concrete vocational limitations. Tr. 610. It
is not, as Mr. Smith asserts, the ALJ’s responsibility to “translate the limitations of moderate
social functioning . . . into concrete limitations.” Pl.’s Br. 12; see also Garner v. Colvin, 626
Fed. Appx. 699, 703 (9th Cir. 2015) (affirming ALJ decision where the RFC only reflected
Page 9 – OPINION AND ORDER
limitations described in the narrative portion of the assessment).
In any event, as already
discussed, even if the assessment did prescribe concrete vocational limitations, the ALJ assigned
little weight to the opinion of Dr. Yates and properly supported this finding with specific and
legitimate reasons.5 See supra pp. 4-8. Because the ALJ properly discounted the symptom
testimony of Mr. Smith, and adequately accounted for the limitations assessed by Dr. Yates, it
was proper to exclude Mr. Smith’s social functioning impairments from the RFC.
III. Lay Opinion Testimony of Tom Zomerschoe.
Finally, Mr. Smith argues that the ALJ improperly rejected the lay opinion testimony of
physical therapist Tom Zomerschoe. Pl.’s Br. 13-15. In general, “lay witness testimony . . . is
competent evidence that an ALJ must take into account.” Molina v. Astrue, 674 F.3d 1104, 1114
(9th Cir. 2012) (citations omitted). To reject such testimony, an ALJ must provide specific
“reasons germane to each witness.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (citations
omitted). An ALJ may not disregard competent lay witness testimony “without comment.”
Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1993). Nevertheless, an ALJ’s failure to
provide germane reasons is harmless error if it is “inconsequential to the ultimate nondisability
determination.” Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008).
It is, for instance, harmless error when an ALJ ignores portions of lay witness testimony if that
testimony is contradicted by other properly credited “substantial evidence” or “cumulative of
other testimony that the ALJ properly rejected.” Molina, 674 F.3d at 1120; cf. Stout v. Comm’r
Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir.2006) (finding reversible error where the lay
opinion was “uncontradicted” and “consistent with medical evidence”).
5
Further, to the extent Mr. Smith could allege any error with respect to his social functioning impairment, the Court
agrees with the Commissioner that it would most likely be harmless since at least one of the jobs identified by the
VE, i.e., Electronics Worker, requires minimal social interaction. Electronics Worker, U.S. Dep’t Labor, Dictionary
of Occupational Titles, #726.687-010, available at 1991 WL 679633.
Page 10 – OPINION AND ORDER
Mr. Smith argues that the ALJ failed to assign a weight to Mr. Zomerschoe’s opinion,
effectively rejecting it without any germane reasons. Pl.’s Br. 13. Mr. Zomerschoe testified as
follows: “Patient should avoid prolonged sitting activities. He should avoid all overhead
repetitive activities and avoid all twisting activities. He should also avoid lifting over 20 [lbs]
and avoid frequent lifting of 10 [lbs], otherwise there are no limitations.” Tr. 333. With respect
to the restriction on prolonged sitting, the ALJ clearly stated that the restriction was “inconsistent
with the claimant’s own testimony [that] he spends most the day sitting,” as well as “the findings
on examination[ ] and the imaging studies.” Tr. 44. A conflict with other evidence in the record
is a germane and specific reason for discounting lay opinion testimony. 20 C.F.R §
404.1527(c)(4); see also Lewis, 236 F.3d at 511 (conflicting medical evidence); Rollins v.
Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (conflicting symptom testimony). The ALJ’s
finding with respect to restrictions on sitting, which was also supported by substantial evidence
in the record, see Tr. 13, 43-44, 372-75, 378, is therefore without error.
Mr. Smith is correct, however, in noting that the ALJ never expressly rejected the
restrictions on twisting and overhead activities. Pl.’s Br. 14. Nevertheless, this error is harmless.
As reiterated by the Ninth Circuit in Molina, it is not “per se prejudicial” for an ALJ to omit
individualized reasons for discounting lay witness testimony. 674 F.3d at 1117. Instead, failure
to discuss lay testimony is harmless error if “the testimony is contradicted by more reliable
medical evidence that the ALJ credited.” Id. at 1119. The proper question, therefore, is whether
the record, “as a whole,” supports the ALJ’s nondisability determination. Id. at 1121. Here, the
ALJ assigned the greatest weight to the opinion of treating physician Raymond Nolan. Tr. 44.
Dr. Nolan’s opinion concluded that Mr. Smith is able to perform “occasional . . . twisting” and
assessed no limitation on overhead reaching. Tr. 43. This testimony, the ALJ further noted, was
Page 11 – OPINION AND ORDER
“consistent with the treatment records as a whole and the claimant’s reported activity levels.”
Tr. 44. As such, Mr. Zomerschoe’s lay opinion was contradicted by other “substantial evidence”
in the record, including “more reliable medical evidence.” Molina, 674 F.3d at 1119-20. Under
the principle articulated in Molina, the ALJ’s error was therefore harmless. Cf. Alaska Dep’t of
Envtl. Conservation v. EPA, 540 U.S. 281, 286 (2004) (holding that, even when an agency
“explains its decision with less than ideal clarity,” a reviewing court must uphold the decision “if
the agency’s path may reasonably be discerned”).
Finally, Mr. Smith argues that, even if the ALJ rejected Mr. Zomerschoe’s testimony, this
Court cannot make a final determination as to the legal validity of that rejection because the
record is incomplete.
Pl.’s Br. 14.
He basis this argument on the pagination of Mr.
Zomerschoe’s opinion, the bottom of which is marked as “page 3,” but which includes no “page
1” or “page 2.” Pl.’s Br. 14 (citing Tr. 333). He also speculates that the ALJ was privy to
additional information because, despite the opinion being undated, she noted that it was rendered
in January 2012. Pl’s Br. 14 (citing Tr. 43).
To begin, the date of Mr. Zomerschoe’s opinion is reflected at other points in the record
and it is immaterial from where the ALJ ascertained that date. See, e.g., Tr. 360. More
important, however, it was the responsibility of Mr. Smith, not the Commissioner, to furnish any
missing evidence. See 20 C.F.R. § 404.1512. In particular, an ALJ is only required to further
develop a record if it contains “ambiguous evidence” or the ALJ “finds that [it] is inadequate to
allow for proper evaluation of the evidence.” Tonpetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.
2001). There was, however, nothing ambiguous about the record and no contrary finding by the
Page 12 – OPINION AND ORDER
ALJ; the restrictions assessed by Mr. Zomerschoe were perfectly clear and rejected by the ALJ
based on factors extraneous to the opinion itself. Mr. Smith received a full and fair hearing.6
CONCLUSION
For the foregoing reasons, the ALJ’s decision is free of legal error and supported by
substantial evidence. The Commissioner’s final decision is therefore AFFIRMED.
IT IS SO ORDERED.
DATED this 18th day of January, 2018.
/s/ Michael J. McShane________
Michael J. McShane
United States District Judge
6
It would also be a clear waste of judicial and agency resources to remand the case simply to retrieve what appears
to be a missing cover page when all relevant portions of the testimony were included.
Page 13 – OPINION AND ORDER
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