Schriver v. Colvin
Filing
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ORDER Granting Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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5 KEITH EUGENE SCHRIVER, JR.,
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Plaintiff,
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v.
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No. 2:14-CV-0143-JTR
ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
9 CAROLYN W. COLVIN,
10 Commissioner of Social Security,
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Defendant.
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BEFORE THE COURT are cross-Motions for Summary Judgment. ECF
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No. 14, 16. Attorney Dana C. Madsen represents Keith Eugene Schriver, Jr.
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(Plaintiff); Special Assistant United States Attorney Franco L. Becia represents the
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Commissioner of Social Security (Defendant). The parties have consented to
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proceed before a magistrate judge. ECF No. 7. After reviewing the administrative
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record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for
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Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment.
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JURISDICTION
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Plaintiff filed applications for a period of disability, Disability Insurance
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Benefits and Supplemental Security Income (SSI) on October 7, 2008, alleging
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disability since July 15, 2006, due to heart issues, headaches, and problems with
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his left ankle, right knee, right elbow and lower back. Tr. 155. The applications
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were denied initially and upon reconsideration. Administrative Law Judge (ALJ)
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R.J. Payne held a hearing on February 26, 2010, Tr. 31-67, and issued an
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unfavorable decision on March 11, 2010, Tr. 16-27. The Appeals Council denied
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review and Plaintiff thereafter commenced action in federal court. On September
ORDER GRANTING DEFENDANT’S MOTION . . . - 1
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12, 2011, Magistrate Judge James P. Hutton granted Plaintiff’s motion for
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summary judgment and remanded the matter on one specific issue: A new step
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five determination with the assistance of a vocational expert. Tr. 372-388.
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The Appeals Council entered an order of remand on April 3, 2012, Tr. 404-
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406, and ALJ Payne held a new hearing on August 2, 2012, Tr. 389-403. The ALJ
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issued another unfavorable decision on August 24, 2012, Tr. 349-360, and the
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Appeals Council declined further action on March 20, 2014, Tr. 334-337. The
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August 24, 2012, decision thus became the final decision of the Commissioner,
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which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff
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filed this action for judicial review on May 14, 2014. ECF No. 1, 4.
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STATEMENT OF FACTS
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The facts of this case have not changed since Judge Hutton’s September 12,
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2011, remand order. Tr. 372-388. No new or updated medical records have been
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submitted, other than a one-page document indicating Plaintiff was taking no
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medications, Tr. 447, and no new or additional testimony was elicited from
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Plaintiff or any medical professionals, Tr. 389-403.
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Plaintiff was born on July 24, 1962, and was 43 years old on the alleged
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onset date, July 16, 2006. Tr. 359. Plaintiff completed high school and has
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worked as a vineyard laborer, hotel houseman, and warehouse worker. Tr. 40-44,
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160, 167.
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Plaintiff testified at the first administrative hearing that his ankle hurts daily,
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he has constant headaches and occasional back pain, and an elbow injury prevents
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lifting. Tr. 47-48, 50. Plaintiff reported he has had vision problems since
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childhood. He can only see with one eye at a time and has no binocular vision.
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Plaintiff testified he suffers heart palpitations five to six times a month and about
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three times a month this issue causes him to blackout. Tr. 51-53. Plaintiff stated
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he has sleep problems, he can stand one hour and walk two hours, he “nods off”
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after sitting for an hour, and he is able to lift and carry 10-15 pounds. Tr. 54-56,
ORDER GRANTING DEFENDANT’S MOTION . . . - 2
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61. Plaintiff also testified he suffers from depression and has suicidal thoughts
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every few days. He lives alone with his dog in an isolated area without running
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water, electricity, or indoor plumbing. The nearest water source is a half-mile
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from his home. He sees a neighbor about once a month. Tr. 53, 56-60, 63-64.
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At the August 2, 2012, administrative hearing, vocational expert K. Diane
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Kramer (VE) testified. Tr. 392-402. The VE identified Plaintiff’s past relevant
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work as insulation installer; building maintenance laborer; seed packer, laborer;
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and vineyard supervisor, Tr. 393-398, and opined that Plaintiff would not be able
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to perform any of his past relevant work. Tr. 399-400. In response to a
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hypothetical which reflected Plaintiff’s residual functional capacity, the VE
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testified that work existed in significant numbers in the national economy which
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Plaintiff could perform, including the jobs of cleaner I, advertising material
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distributor, and parking lot attendant. Tr. 399-401.
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STANDARD OF REVIEW
The ALJ is responsible for determining credibility, resolving conflicts in
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medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,
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1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo,
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although deference is owed to a reasonable construction of the applicable statutes.
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McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ
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may be reversed only if it is not supported by substantial evidence or if it is based
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on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial
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evidence is defined as being more than a mere scintilla, but less than a
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preponderance. Id. at 1098. Put another way, substantial evidence is such relevant
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evidence as a reasonable mind might accept as adequate to support a conclusion.
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Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to
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more than one rational interpretation, the court may not substitute its judgment for
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that of the ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec.
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Admin., 169 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by
ORDER GRANTING DEFENDANT’S MOTION . . . - 3
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substantial evidence will still be set aside if the proper legal standards were not
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applied in weighing the evidence and making the decision. Brawner v. Secretary
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of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial
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evidence exists to support the administrative findings, or if conflicting evidence
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exists that will support a finding of either disability or non-disability, the ALJ’s
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determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th
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Cir. 1987).
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SEQUENTIAL EVALUATION PROCESS
The Commissioner has established a five-step sequential evaluation process
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for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a),
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416.920(a); see, Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one
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through four, the burden of proof rests upon the claimant to establish a prima facie
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case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This
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burden is met once a claimant establishes that a physical or mental impairment
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prevents him from engaging in his previous occupation. 20 C.F.R. §§
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404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the
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ALJ proceeds to step five, and the burden shifts to the Commissioner to show that
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(1) the claimant can make an adjustment to other work; and (2) specific jobs exist
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in the national economy which claimant can perform. Batson v. Commissioner of
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Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make
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an adjustment to other work in the national economy, a finding of “disabled” is
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made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v).
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ADMINISTRATIVE DECISION
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On August 24, 2012, the ALJ issued a new decision finding Plaintiff was not
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disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff
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had not engaged in substantial gainful activity since July 15, 2006, the alleged
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onset date. Tr. 351. At step two, the ALJ determined Plaintiff had the following
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severe impairments: syncopal episodes due to unknown causes, strabismus,
ORDER GRANTING DEFENDANT’S MOTION . . . - 4
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hypertension, obesity, cardiomyopathy, and history of left ankle sprain. Tr. 351.
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At step three, the ALJ found Plaintiff did not have an impairment or combination
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of impairments that meets or medically equals the severity of one of the listed
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impairments. Tr. 352.
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The ALJ assessed Plaintiff’s RFC and determined he could perform a range
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of light exertion level work (he can sit for two hours at a time, stand for two hours
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at a time, and walk for two hours at a time; he is able to sit for six hours total in an
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eight-hour workday and stand/walk for six hours total in an eight-hour workday,
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with normal breaks; and he can lift/carry 20 pounds occasionally and 10 pounds
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frequently), except that he can only occasionally stoop, crouch, kneel, crawl and
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balance; can only occasionally climb stairs and ramps; can never climb ladders,
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ropes or scaffolds; cannot work around unprotected heights, hazardous machinery
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and open flames; cannot do commercial driving; cannot do work requiring
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binocular vision and can only use one eye at a time; and cannot perform job tasks
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requiring good depth perception or good bilateral peripheral vision. Tr. 353.
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At step four, the ALJ found Plaintiff was unable to perform his past relevant
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work. Tr. 358-359. However, at step five, the ALJ determined that, considering
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Plaintiff’s age, education, work experience and RFC, and based on the testimony
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of the vocational expert, there were other jobs that exist in significant numbers in
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the national economy, including the jobs of cleaner I, advertising material
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distributor and parking lot attendant, that Plaintiff could perform. Tr. 359-360.
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The ALJ thus concluded Plaintiff was not under a disability within the meaning of
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the Social Security Act at any time from July 15, 2006, the alleged onset date,
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through the date of the ALJ’s decision, August 24, 2012. Tr. 360.
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ISSUES
The question presented is whether substantial evidence exists to support the
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ALJ’s decision denying benefits and, if so, whether that decision is based on
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proper legal standards.
ORDER GRANTING DEFENDANT’S MOTION . . . - 5
Plaintiff contends the ALJ erred by (1) improperly discrediting Plaintiff’s
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symptom claims; (2) improperly evaluating the assessment of Dennis R. Pollack,
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Ph.D.; (3) improperly disregarding the opinion of medical expert Reuben Beezy,
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M.D.; and (4) presenting a hypothetical to the vocational expert which failed to
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account for all of Plaintiff’s symptoms.
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DISCUSSION
A.
Plaintiff’s Credibility
Plaintiff first contends the ALJ erred by improperly discrediting his
symptom claims. ECF No. 14 at 8-10. This Court, however, previously concluded
the ALJ did not err in assessing Plaintiff’s credibility. Tr. 386-387.
The law of the case doctrine provides that an appellate court’s decision on a
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legal issue must be followed in all subsequent proceedings in the same case. See
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United States v. Lewis, 611 F.3d 1172, 1179–1180 (9th Cir. 2010). Despite
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Plaintiff’s argument to the contrary, ECF No. 17 at 2, the law of the case doctrine
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precludes the re-litigation of issues settled by a district court’s order prior to
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remand. See Holst v. Bowen, 637 F. Supp. 145, 148 (E.D. Wash. 1986);1 see also
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Pearson v. Chater, 1997 WL 314380, at *3 (N.D. Cal. 1997) (holding that,
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“[u]nder the law of the case doctrine, this court will not re-examine its legal
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decision that the ALJ had sufficient reasons to discount [a medical expert’s]
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In Holst, the social security matter had previously been remanded for
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further proceedings, with instructions to reconsider certain points of law and
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consider additional evidence offered by the claimant. Holst, 637 F. Supp. at 145-
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146. On remand, the ALJ conducted the full sequential analysis, took “prodigious”
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new evidence, and held that the claimant was not disabled. Id. at 146. The district
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court reversed, holding that the fact of the claimant’s disability had become “the
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law of the case and [was] not subject to tampering in further administrative
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proceedings.” Id. at 147.
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testimony”), aff’d, 141 F.3d 1178 (9th Cir. 1998); Ischay v. Barnhart, 383 F. Supp.
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2d 1199, 1216 (C.D. Cal. 2005) (finding the doctrine of the law of the case applies
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to matters remanded for further proceedings); Sanchez v. Astrue, 2012 WL
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3704756 at *13 (C.D. Cal. 2012) (finding the ALJ’s decision exceeded the scope
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of remand because the remand was solely for purposes of permitting the ALJ to re-
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determine whether Plaintiff was disabled at step five, not to revisit the claimant’s
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RFC).
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Plaintiff argues in his reply brief that the law of case doctrine does not apply
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to sentence four remands. ECF No. 17 at 2. Plaintiff cites the Supreme Court case
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of Shalala v. Schaefer, 509 U.S. 292, 299 (1993) in support of his argument in this
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regard. In Schaefer, however, the Supreme Court held for the first time that the
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time for filing an application for fees in Social Security cases begins to run from
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the time the district court enters a judgment remanding the case for further
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administrative proceedings, rather than after a claimant has obtained benefits.
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Schaefer, 509 U.S. at 299-300. Schaefer set forth a new procedure for obtaining
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attorney fees under the Equal Access to Justice Act. It did not address or discuss
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the law of the case doctrine. Schaefer is inapposite.
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Under the law of the case doctrine, a court will generally refuse to
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reconsider an issue that has already been decided by the same court or a higher
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court in the same case. Jefferies v. Wood, 114 F.3d 1484, 1488-1489 (9th Cir.
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1997). Nevertheless, the Court may reconsider a previously decided issue if
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“(1) the decision is clearly erroneous and its enforcement would work a manifest
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injustice, (2) intervening controlling authority makes reconsideration appropriate,
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or (3) substantially different evidence was adduced at a subsequent trial.”
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Jefferies, 114 F.3d at 1489 (footnote omitted) (internal quotation marks omitted).
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Plaintiff fails to assert an exception to the law of the case doctrine that would
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require the Court to reconsider the credibility issue previously decided in this case,
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and, in any event, the Court finds there is no clear error, intervening changes in the
ORDER GRANTING DEFENDANT’S MOTION . . . - 7
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law, or new evidence that would require a refusal to follow the law of the case
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doctrine with respect to this issue.
Judge Hutton concluded the record supported the ALJ’s March 11, 2010,
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adverse credibility finding. Tr. 387. Judge Hutton determined the ALJ’s decision
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provided “clear and convincing reasons for his unchallenged credibility
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assessment, including (1) inconsistent statements; (2) activities inconsistent with
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claimed disabling limitations, and (3) a lack of supporting medical evidence for
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complaints of disabling limitations.” Tr. 386. On remand, the ALJ again found
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Plaintiff not credible to the extent that Plaintiff’s alleged limitations contradicted
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the ALJ’s RFC determination. Tr. 354. The ALJ cited essentially the same factors
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for his credibility assessment that he previously relied upon and that Judge Hutton
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previously affirmed. Tr. 23-25, 354-358, 386-387.
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Under the law of the case doctrine, the Court will not re-examine the legal
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determination that the ALJ provided clear and convincing reasons, supported by
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substantial evidence, for his adverse credibility determination.
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B.
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Dr. Pollack
Plaintiff next contends the ALJ erred by failing to accord weight to Dr.
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Pollack’s assessment. ECF No. 14 at 10-11. Defendant responds that Judge
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Hutton’s remand order determined the ALJ’s reasons for discounting the opinion
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of examining psychologist Pollack were legally sufficient, Tr. 385-388; therefore,
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the law of the case doctrine again precludes the Court from reconsidering the issue.
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ECF No. 16 at 7-13.
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The Court agrees with Plaintiff’s opening brief assertion that the ALJ’s
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comment that Plaintiff’s counsel “is known to continually seek Dr. Pollack’s
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favorable reporting,” ECF No. 14 at 10; Tr. 357, is inappropriate and has “no place
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in the disability evaluation process.” Reed v. Massanari, 270 F.3d 838, 843-844
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(9th Cir. 2001) (quoting Miles v. Chater, 84 F.3d 1397, 1399 (11th Cir. 1996); see
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also Miller v. Commissioner of Soc. Sec. Admin., 172 F.3d 303, 305 (3d Cir. 1999)
ORDER GRANTING DEFENDANT’S MOTION . . . - 8
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(“[I]t is erroneous for an ALJ to reject every report submitted by a certain
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physician . . . simply because the physician often reaches the same conclusion.”)
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(dicta). Nevertheless, the law of the case doctrine precludes the Court from
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reconsidering the ALJ’s rationale for discounting the opinion of examining
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psychologist Pollack.
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Judge Hutton’s order to remand expressly affirmed the ALJ’s rationale for
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discounting Dr. Pollack’s February 2010 opinion. Tr. 385-388. He determined the
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ALJ provided specific, legitimate reasons supported by substantial evidence (a
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complete lack of treatment, contradictory opinions by other professionals, tests
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showing exaggeration, and failing to allege mental limitations until years after
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onset) for rejecting Dr. Pollack’s conclusions. Tr. 387. Since none of the three
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exceptions to the law of the case doctrine are applicable with respect to this issue,
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see Jefferies, 114 F.3d at 1489, the Court will not revisit this prior ruling under the
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law of the case doctrine.
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Even if the doctrine of the law of the case did not apply to the issue
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involving Dr. Pollack, the ALJ’s current reasoning for rejecting the opinion of Dr.
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Pollack, Tr. 356-358, is identical to his prior rationale, Tr. 21-23, and again
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supported. The ALJ provided specific, legitimate reasons, supported by substantial
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evidence, for disregarding Dr. Pollack’s opinions in this case.
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C.
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Dr. Beezy
Plaintiff asserts the ALJ also improperly disregarded medical expert Beezy’s
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testimony regarding Plaintiff’s syncope and blackouts. ECF No. 14 at 11.
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Defendant concedes the ALJ omitted a discussion of Dr. Beezy’s testimony from
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his second decision, but argues this omission is harmless because the ALJ’s RFC
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determination is in accord with the opinion expressed by Dr. Beezy. ECF No. 16
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at 13-16.
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Dr. Beezy testified at the first administrative hearing. Tr. 33-39. Dr. Beezy
stated the record showed Plaintiff has complained of syncope episodes without a
ORDER GRANTING DEFENDANT’S MOTION . . . - 9
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known cause, preceded by heart palpitations, that occur three times a month;
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Plaintiff has a history of hypertension, chest pain, and mild cardiomyopathy as
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well as morbid obesity; there is a reference to heart surgery in the 1990’s; Plaintiff
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has complained of left ankle pain subsequent to slipping on some ice in 2005 and
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2006; Plaintiff has a history of strabismus, left leg surgery due to a fracture, right
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knee surgery for internal derangement, and hernia surgery; and Plaintiff has a
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history of polysubstance abuse prior to 1998. Tr. 22, 34-37. Dr. Beezy opined
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Plaintiff would be limited to light exertion level work with only occasional
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climbing, stooping, kneeling, crouching, crawling and balancing; no ladders, ropes
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or scaffolds; and no work requiring binocular vision or depth perception. Tr. 38.
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Dr. Beezy further opined that Plaintiff should be able to work eight hours a day,
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five days a week. Tr. 39.
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Consistent with Dr. Beezy’s testimony, the ALJ concluded Plaintiff had the
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residual functional capacity to perform light exertion level work, except that he
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could only occasionally stoop, crouch, kneel, crawl and balance; could only
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occasionally climb stairs and ramps; could never climb ladders, ropes or scaffolds;
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could not work around unprotected heights, hazardous machinery and open flames;
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could not perform commercial driving; could not perform work requiring binocular
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vision and could only use one eye at a time; and could not perform job tasks
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requiring good depth perception or good bilateral peripheral vision. Tr. 353. The
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ALJ did not exclude any limitations assessed by Dr. Beezy.
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Even though the ALJ failed to specifically discuss Dr. Beezy’s testimony in
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his second decision, it is clear that the ALJ’s RFC determination does not conflict
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with Dr. Beezy’s assessment of Plaintiff. Consequently, this error was
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“inconsequential to the ultimate non-disability determination” in this case and
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therefore harmless. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (ALJ’s
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failure to include impairment as severe at step two was harmless error where ALJ
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considered the limitations posed by the impairment at step four); Johnson v.
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Shalala, 60 F.3d 1428, 1436 n.9 (9th Cir. 1995) (an error is harmless when the
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correction of that error would not alter the result). An ALJ’s decision will not be
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reversed for errors that are harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th
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Cir. 2005) (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991).
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D.
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Vocational Expert
Plaintiff lastly argues the ALJ erred by not including all of Plaintiff’s
symptoms in the hypothetical posed to the VE. ECF No. 14 at 11-12.
The ALJ may rely on VE testimony if the hypothetical presented to the VE
includes all functional limitations supported by the record and found credible by
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the ALJ. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). An ALJ is not
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obliged to accept the limitations presented by Plaintiff’s representative. Osenbrock
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v. Apfel, 240 F.3d 1157, 1164-1165 (9th Cir. 2001); Martinez v. Heckler, 807 F.2d
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771, 773 (9th Cir. 1986). It is the province of the ALJ to make a final
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determination regarding Plaintiff’s RFC and disability.
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As indicated above, the ALJ concluded Plaintiff could perform light exertion
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level work, with certain exceptions. Tr. 353. The Court finds the ALJ’s rationale
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for this RFC determination was legally sufficient and supported by substantial
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evidence in the record. There is no credible evidence of record supporting greater
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limitations than those determined by the ALJ. The ALJ was thus not required to
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include any further restrictions in the RFC assessment or the hypothetical
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presented to the VE. The hypothetical presented to the VE at the administrative
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hearing and relied upon by the ALJ was proper because it reflected the ALJ’s RFC
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determination, including the restriction that the individual could perform “no work
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requiring binocular vision” and could “only use one eye at a time,” which is a
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reasonable interpretation of the evidence of record. Tr. 399-401.
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In response to the hypothetical which reflected Plaintiff’s RFC, the VE
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testified that work existed in significant numbers in the national economy which
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Plaintiff could perform, including the jobs of cleaner I, advertising material
ORDER GRANTING DEFENDANT’S MOTION . . . - 11
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distributor, and parking lot attendant. Tr. 399-401. Accordingly, the ALJ did not
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err by relying on the VE testimony that an individual with Plaintiff’s profile could
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perform other work that existed in significant numbers in the national economy.
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The ALJ did not err at step five of the sequential evaluation process or by
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concluding Plaintiff was not disabled.
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CONCLUSION
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Having reviewed the record and the ALJ’s findings, the Court finds the
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ALJ’s decision is supported by substantial evidence and free of legal error.
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Accordingly, IT IS ORDERED:
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1.
Defendant’s Motion for Summary Judgment, ECF No. 16, is
GRANTED.
Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED.
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2.
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The District Court Executive is directed to file this Order and provide a copy
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to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant
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and the file shall be CLOSED.
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DATED March 24, 2015.
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_____________________________________
JOHN T. RODGERS
UNITED STATES MAGISTRATE JUDGE
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ORDER GRANTING DEFENDANT’S MOTION . . . - 12
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