Donovan v. Saul

Filing 23

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 16 AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 20 . The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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JACQUELINE D.,
Plaintiff,

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v.
COMMISSIONER OF SOCIAL
SECURITY,

NO. 2:20-CV-0365-TOR
ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT AND GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

Defendant.
BEFORE THE COURT are the parties’ cross-motions for summary

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judgment (ECF Nos. 16, 20). These matters were submitted for consideration

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without oral argument. The Court has reviewed the administrative record and the

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parties’ completed briefing and is fully informed. For the reasons discussed below,

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Plaintiff’s Motion for Summary Judgment (ECF No. 16) is DENIED, and

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Defendant’s Motion for Summary Judgment (EFC No. 20) is GRANTED.

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JURISDICTION

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The Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 1

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STANDARD OF REVIEW
A district court’s review of a final decision of the Commissioner of Social

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Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is

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limited: The Commissioner’s decision will be disturbed “only if it is not supported

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by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153,

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1158–59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence”

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means relevant evidence that “a reasonable mind might accept as adequate to

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support a conclusion.” Id. at 1159 (quotation and citation omitted). Stated

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differently, substantial evidence equates to “more than a mere scintilla[,] but less

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than a preponderance.” Id. (quotation and citation omitted). In determining

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whether this standard has been satisfied, a reviewing court must consider the entire

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record as a whole rather than searching for supporting evidence in isolation. Id.

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In reviewing a denial of benefits, a district court may not substitute its

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judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152,

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1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one

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rational interpretation, [the court] must uphold the ALJ’s findings if they are

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supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674

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F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an

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ALJ’s decision on account of an error that is harmless.” Id. An “error is harmless

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where it is ‘inconsequential to the ultimate nondisability determination.’” Id. at
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AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
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1115 (citation omitted). The party appealing the ALJ’s decision generally bears

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the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 396,

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409–10 (2009).

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FIVE STEP SEQUENTIAL EVALUATION PROCESS
A claimant must satisfy two conditions to be considered “disabled” within

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the meaning of the Social Security Act. First, the claimant must be unable “to

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engage in any substantial gainful activity by reason of any medically determinable

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physical or mental impairment which can be expected to result in death or which

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has lasted or can be expected to last for a continuous period of not less than 12

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months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s

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impairment must be “of such severity that [he or she] is not only unable to do [his

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or her] previous work[,] but cannot, considering [his or her] age, education, and

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work experience, engage in any other kind of substantial gainful work which exists

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in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

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The Commissioner has established a five-step sequential analysis to

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determine whether a claimant satisfies the above criteria. See 20 §§

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404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v). At step one, the Commissioner

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considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i),

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416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the

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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
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Commissioner must find that the claimant is not disabled. 20 C.F.R. §§

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404.1520(b), 416.920(b).

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If the claimant is not engaged in substantial gainful activities, the analysis

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proceeds to step two. At this step, the Commissioner considers the severity of the

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claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the

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claimant suffers from “any impairment or combination of impairments which

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significantly limits [his or her] physical or mental ability to do basic work

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activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c),

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416.920(c). If the claimant’s impairment does not satisfy this severity threshold,

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however, the Commissioner must find that the claimant is not disabled. Id.
At step three, the Commissioner compares the claimant’s impairment to

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several impairments recognized by the Commissioner to be so severe as to

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preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§

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404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more

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severe than one of the enumerated impairments, the Commissioner must find the

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claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d).

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If the severity of the claimant’s impairment does meet or exceed the severity

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of the enumerated impairments, the Commissioner must pause to assess the

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claimant’s “residual functional capacity.” Residual functional capacity (“RFC”),

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defined generally as the claimant’s ability to perform physical and mental work
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
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activities on a sustained basis despite his or her limitations (20 C.F.R. §§

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404.1545(a)(1), 416.945(a)(1)), is relevant to both the fourth and fifth steps of the

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analysis.

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At step four, the Commissioner considers whether, in view of the claimant’s

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RFC, the claimant is capable of performing work that he or she has performed in

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the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv),

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416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the

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Commissioner must find that the claimant is not disabled. 20 C.F.R. §§

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404.1520(f), 416.920(f). If the claimant is incapable of performing such work, the

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analysis proceeds to step five.
At step five, the Commissioner considers whether, in view of the claimant’s

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RFC, the claimant is capable of performing other work in the national economy.

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20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination,

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the Commissioner must also consider vocational factors such as the claimant’s age,

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education and work experience. Id. If the claimant is capable of adjusting to other

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work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§

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404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other

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work, the analysis concludes with a finding that the claimant is disabled and is

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therefore entitled to benefits. Id.

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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 5

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The claimant bears the burden of proof at steps one through four above.

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to

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step five, the burden shifts to the Commissioner to establish that (1) the claimant is

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capable of performing other work; and (2) such work “exists in significant

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numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2);

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Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012).

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ALJ’S FINDINGS

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On April 19, 2018, Plaintiff filed an application for Title II disability

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insurance benefits and Title XVI supplemental security income benefits, alleging

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an onset date of March 15, 2017. Tr. 16. The application was initially denied and

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denied again on reconsideration. Id. Plaintiff appeared at a hearing before an

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administrative law judge (“ALJ”) on February 13, 2020. Id. The ALJ denied

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Plaintiff’s claim on February 28, 2020. Tr. 13.

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As a threshold matter, the ALJ found Plaintiff would meet the insured status

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requirements of the Social Security Act through December 31, 2020. Tr. 18. At

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step one of the sequential evaluation analysis, the ALJ found Plaintiff had not

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engaged in substantial gainful activity after March 15, 2017, the alleged onset date.

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Id. At step two, the ALJ found Plaintiff had the following severe impairments:

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morbid obesity; congenital abnormality right hand; Dupuytren’s contracture left

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hand; status-post carpal tunnel release February 2017; mild supraspinatus tendinitis
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 6

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left shoulder; chronic headaches; mood disorder; and anxiety disorder. Tr. 18–19.

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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 a listed impairment.

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Tr. 21. The ALJ then found Plaintiff had a residual functional capacity to perform

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light work with the fowling limitations:

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[Plaintiff] can occasionally push/pull with the bilateral upper
extremities; never crawl or climb ladders, ropes, or scaffolds;
occasionally reach overhead with the left upper extremity;
occasionally handle and finger with the left hand, and the right hand is
used primarily as an “assist”; she is able to maintain concentration,
persistence and pace for two-hour intervals between regularly
scheduled breaks; should be in an environment with no more than
simple, routine changes and no fast-paced production rate of work.
Tr. 23.
At step four, the ALJ found Plaintiff was capable of performing past relevant

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work as an assistant manager. Tr. 29. However, based on the vocational expert’s

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hearing testimony, the ALJ also considered alternative jobs and concluded that,

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based on Plaintiff’s age, education, work experience, and residual functional

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capacity, there were other jobs that existed in the significant numbers in the

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national economy that Plaintiff could perform, such as an usher or sandwich board

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carrier. Tr. 30. The ALJ concluded Plaintiff was not under a disability, as defined

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in the Social Security Act, from March 15, 2017, the alleged onset date, through

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February 28, 2020, the date of the ALJ’s decision. Id.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 7

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ISSUES

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ECF No. 23

1. Whether the ALJ properly considered Plaintiff’s subjective symptom
testimony;

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2. Whether the ALJ properly considered the medical opinion evidence; and

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3. Whether the ALJ properly considered the vocational evidence?
DISCUSSION

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A.

Plaintiff’s Symptom testimony

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Plaintiff contends the ALJ improperly discredited her subjective symptom

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testimony. ECF No. 16 at 18. An ALJ engages in a two-step analysis to determine

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whether a claimant’s subjective symptom testimony can be reasonably accepted as

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consistent with the objective medical and other evidence in the claimant’s record.

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Social Security Ruling (“SSR”) 16-3p, 2016 WL 1119029, at *2. “First, the ALJ

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must determine whether there is ‘objective medical evidence of an underlying

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impairment which could reasonably be expected to produce the pain or other

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symptoms alleged.’” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)

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(quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). “The claimant is

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not required to show that her impairment ‘could reasonably be expected to cause

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the severity of the symptom she has alleged; she need only show that it could

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reasonably have caused some degree of the symptom.’” Vasquez, 572 F.3d at 591

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(quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)).
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 8

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Second, “[i]f the claimant meets the first test and there is no evidence of

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malingering, the ALJ can only reject the claimant’s testimony about the severity of

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the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the

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rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations

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omitted). General findings are insufficient; rather, the ALJ must identify what

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symptom claims are being discounted and what evidence undermines these claims.

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Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v.

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Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently

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explain why he or she discounted claimant’s symptom claims). “The clear and

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convincing [evidence] standard is the most demanding required in Social Security

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cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v.

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Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

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The ALJ is instructed to “consider all of the evidence in an individual’s

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record,” “to determine how symptoms limit ability to perform work-related

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activities.” SSR 16-3p, 2016 WL 1119029, at *2. When evaluating the intensity,

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persistence, and limiting effects of a claimant’s symptoms, the following factors

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should be considered: (1) daily activities; (2) the location, duration, frequency, and

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intensity of pain or other symptoms; (3) factors that precipitate and aggravate the

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symptoms; (4) the type, dosage, effectiveness, and side effects of any medication

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an individual takes or has taken to alleviate pain or other symptoms; (5) treatment,
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 9

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other than medication, an individual receives or has received for relief of pain or

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other symptoms; (6) any measures other than treatment an individual uses or has

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used to relieve pain or other symptoms; and (7) any other factors concerning an

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individual’s functional limitations and restrictions due to pain or other symptoms.

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Id. at *7–8; 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

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Here, the ALJ found Plaintiff’s impairments could reasonably be expected to

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cause the alleged symptoms; however, Plaintiff’s statements concerning the

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intensity, persistence, and limiting effects of those symptoms were not entirely

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consistent with the evidence. Tr. 24. In arriving at this conclusion, the ALJ

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considered several of the factors listed above.

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1. Daily Activities

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The ALJ found Plaintiff “has very high functioning activities of daily living

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that are inconsistent with her hearing claims.” Tr. 26. Daily activities may be

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grounds for an adverse credibility finding if (1) Plaintiff’s activities contradict her

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other testimony, or (2) Plaintiff “is able to spend a substantial part of [her] day

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engaged in pursuits involving the performance of physical functions that are

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transferable to a work setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007)

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(citation omitted). Plaintiff testified that she had great difficulty performing daily

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tasks, but the ALJ noted she reported to care providers that she could cook, clean,

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do laundry with help, shop, play card games and occasionally video games, fish,
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 10

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read, care for her children, bathe, wash dishes, and water the lawn. Tr. 26. The

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only limitation she reported to a single care provider was needing assistance with

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ties and clasps. Id.

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Plaintiff argues she was not actually engaging in the daily activities cited by

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the ALJ; rather, those were merely the hobbies she described to care providers, or

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they were activities she could do only if she had assistance. ECF No. 21 at 7.

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However, Plaintiff’s assertions are contrary to the evidence in the record. Dr.

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Bostwick specifically stated Plaintiff’s “typical household chores include cooking

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housekeeping, laundry with help with lifting, and she goes shopping and does so

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often with her boyfriend and children with help carrying groceries.” Tr. 578.

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When Dr. Bostwick asked Plaintiff to describe her typical daily routine, she

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indicated she woke up, used the bathroom, let her dogs out, drank coffee, and then

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got dressed. Tr. 579. She would then get her kids up, help them dress, get them

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fed, and would give them their medications. Id. Afterwards, she would prepare a

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dinner menu. Id. During the day, Plaintiff would also attend appointments, do

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laundry, and wash dishes. Id. In the evening, she would make dinner, water the

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lawn, and help her kids get ready for bed. Id. When asked about recreation and

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leisure activities, Dr. Bostwick indicated Plaintiff “enjoys drawing and painting”

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and “she likes to read” and “infrequently plays video games.” Id. Dr. Bostwick’s

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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 11

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report also reflected that Plaintiff played games with her family on Sunday nights,

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played cards and board games with other adults, and enjoyed fishing. Id.

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Plaintiff’s daily and leisure activities were not described as hobbies she

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enjoyed in the past but as present routine activities. While the Ninth Circuit has

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cautioned against reliance on “certain daily activities, such as grocery shopping,

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driving a car, or limited walking for exercise” to discount a plaintiff’s symptom

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allegations, the ALJ here considered other factors and found additional reasons for

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discrediting Plaintiff’s subjective symptom testimony, as discussed below.

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Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001).

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2. Intensity, Duration, Frequency, and Limiting Effects

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As to the intensity, duration, frequency, and limiting effects of Plaintiff’s

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symptoms, the ALJ concluded Plaintiff’s allegations of extreme and debilitating

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limitations were not well supported by the objective evidence or Plaintiff’s

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admitted daily activities. Tr. 26. An ALJ may not discredit a claimant’s symptom

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testimony and deny benefits solely because the degree of the symptoms alleged is

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not supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853,

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857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991);

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Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch, 400 F.3d at 680.

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However, the objective medical evidence is a relevant factor, along with the

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medical source’s information about the claimant’s pain or other symptoms, in
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 12

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determining the severity of a claimant’s symptoms and their disabling effects.

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Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2); 416.929(c)(2).

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The ALJ cited to several instances in which Plaintiff’s alleged degree of

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impairment conflicted with the objective medical evidence. For example, Plaintiff

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testified that she was essentially unable to use her left hand; however, several

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medical reports indicate Plaintiff had good grip strength and full range of motion.

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See, e.g., Tr. 562, 594. Another medical record indicated Plaintiff was able to

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“make a fist, pick up coins from a flat surface, button/unbutton, zip/unzip, and ties

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shoes with her left hand only.” Tr. 588. Notably, that record is dated August 4,

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2018, nearly 19 months after her alleged disability onset date beginning March 15,

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2017. Id.

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Plaintiff also claims to suffer from debilitating shoulder pain, but her

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medical exams and imaging indicate only mild findings. See, e.g., Tr. 560, 562,

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589, 592. One medical examiner explicitly stated, “the objective evidence does not

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support any severe limitations.” Tr. 23. Likewise, the frequency and intensity of

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her reported migraines is inconsistent with the record. For example, Plaintiff

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allegedly suffers from multiple migraines per week, but her medical exams do not

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reveal any acute distress, which the ALJ found “wholly inconsistent with an

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individual who is truly suffering from daily (almost constant) migraine headache

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pain.” Tr. 26.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 13

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Finally, Plaintiff initially claimed to suffer from severe anxiety and

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depression, but subsequently acknowledged to examining psychologist, Dr.

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Bostwick, that her psychological conditions were not actually disabling. ECF No.

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16 at 9–10. Plaintiff does not challenge the ALJ’s determination regarding her

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alleged psychological impairments.

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3. Type, Dosage, and Efficacy of Medication; Other Treatment
The ALJ also considered the efficacy of medication and other treatments

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used to treat Plaintiff’s alleged symptoms. Tr. 26. The Ninth Circuit has

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“previously indicated that evidence of conservative treatment is sufficient to

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discount a claimant’s testimony regarding severity of an impairment.” Parra v.

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Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (internal quotations omitted). With

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regard to her migraine headaches, Plaintiff claims she suffers multiple migraine

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headaches per week that each last several days, even when taking medication.

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ECF No. 16 at 5. However, Plaintiff’s medical records indicate her migraines

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improved with Botox treatment. For example, Plaintiff reported in July 2017 more

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than a 50% improvement in frequency, severity, and duration of her migraines

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after Botox injections. Tr. 855. More recently, in October 2019, Plaintiff reported

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only four migraines in thirty days after Botox treatment, compared to daily

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migraines without treatment. Tr. 968. She also indicated her migraines were less

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intense and easier to treat with Botox. Id. Additionally, Plaintiff was never
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 14

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observed to be suffering a migraine upon examination. See, e.g., Tr. 433, 493, 517,

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520, 525, 584, 597, 605.

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Regarding Plaintiff’s left-hand symptoms, the ALJ noted Plaintiff underwent

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carpal tunnel and trigger finger release surgery in February 2017, which was

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largely successful. Tr. 24. Plaintiff’s post-treatment notes indicate she had

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“excellent flexion, very mild flexion contracture middle finger, no triggering, no

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numbness.” Tr. 555. Her care provider’s impression was that “[e]verything looks

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great.” Id.

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Plaintiff argues the ALJ failed to provide specific findings with clear and

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convincing evidence and essentially discounted Plaintiff’s symptom testimony by

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finding the objective medical evidence did not support her claims. ECF No. 16 at

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19. The Court disagrees. While an ALJ may not discredit a claimant’s symptom

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testimony and deny benefits solely because the degree of the symptoms alleged is

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not supported by objective medical evidence, objective medical evidence is still a

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relevant factor. Rollins, 261 F.3d at 857. The objective medical evidence supports

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the ALJ’s findings. Moreover, the ALJ considered other factors beyond the

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objective medical evidence. Thus, the Court finds the ALJ’s conclusion regarding

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Plaintiff’s subjective symptom testimony was clear, convincing, and properly

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supported by substantial evidence.

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//
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 15

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B.

Medical Opinion

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Plaintiff argues the ALJ failed to properly consider and weigh the medical

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opinion evidence. ECF No. 16 at 19–20. As an initial matter, for claims filed on

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or after March 27, 2017, new regulations apply that change the framework for how

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an ALJ must evaluate medical opinion evidence. 20 C.F.R. §§ 404.1520c,

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416.920c; see also Revisions to Rules Regarding the Evaluation of Medical

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Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017). The ALJ

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applied the new regulations because Plaintiff filed her Title II and XVI claims after

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March 27, 2017. See Tr. 16.

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Under the new regulations, the ALJ will no longer “give any specific

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evidentiary weight . . . to any medical opinion(s).” Revisions to Rules, 2017 WL

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168819, 82 Fed. Reg. 5844-01, 5867–68. Instead, an ALJ must consider and

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evaluate the persuasiveness of all medical opinions or prior administrative medical

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findings from medical sources. 20 C.F.R. §§ 404.1520c(a)–(b), 416.920c(a)–(b).

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The factors for evaluating the persuasiveness of medical opinions and prior

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administrative medical findings include supportability, consistency, relationship

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with the claimant, specialization, and “other factors that tend to support or

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contradict a medical opinion or prior administrative medical finding” including but

19

not limited to “evidence showing a medical source has familiarity with the other

20
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 16

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1

evidence in the claim or an understanding of our disability program’s policies and

2

evidentiary requirements.” 20 C.F.R. §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(5).

3

The ALJ is required to explain how the most important factors,

4

supportability and consistency, were considered. 20 C.F.R. §§ 404.1520c(b)(2),

5

416.920c(b)(2). These factors are explained as follows:

6
7
8
9
10
11
12
13

(1) Supportability. The more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his
or her medical opinion(s) or prior administrative medical finding(s), the
more persuasive the medical opinions or prior administrative medical
finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive the
medical opinion(s) or prior administrative medical finding(s) will be.
20 C.F.R. §§ 404.1520c(c)(1)–(2), 416.920c(c)(1)–(2).
The ALJ may, but is not required to, explain how “the other most persuasive

14

factors in paragraphs (c)(3) through (c)(5)” were considered. 20 C.F.R. §§

15

404.1520c(b)(2); 416.920c(b)(2). However, where two or more medical opinions

16

or prior administrative findings “about the same issue are both equally well-

17

supported . . . and consistent with the record . . . but are not exactly the same,” the

18

ALJ is required to explain how “the most persuasive factors” were considered. 20

19

C.F.R. §§ 404.1520c(b)(2) 416.920c(b)(2).

20
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 17

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The parties dispute whether Ninth Circuit law that predates the new

2

regulations apply. ECF Nos. 16 at 20; 20 at 11. The Ninth Circuit currently

3

requires the ALJ to provide “clear and convincing” reasons for rejecting the

4

uncontradicted opinion of either a treating or examining physician. Lester v.

5

Chater, 81 F.3d 821, 830 (9th Cir. 1995). When a treating or examining

6

physician’s opinion is contradicted, the Ninth Circuit has held the medical opinion

7

can only “be rejected for specific and legitimate reasons that are supported by

8

substantial evidence in the record.” Id. at 830–31 (internal citation omitted).

9

At this time, the Ninth Circuit has not addressed whether these standards still

10

apply when analyzing medical opinions under the new regulations. For purposes

11

of the present case, the Court finds that resolution of this issue is unnecessary. See

12

Allen T. v. Saul, No. EDCV 19-1066-KS, 2020 WL 3510871, at *3 (C.D. Cal. June

13

29, 2020) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Services,

14

545 U.S. 967, 981–82 (2005) (“[T]he Court is mindful that it must defer to the new

15

regulations, even where they conflict with prior judicial precedent, unless the prior

16

judicial construction ‘follows from unambiguous terms of the statute and thus

17

leaves no room for agency discretion.’”)).

18
19
20

1. Dr. Horn
Plaintiff challenges only the ALJ’s assessment of Dr. Horn’s opinion. ECF
No. 16 at 20. Plaintiff argues the ALJ erred in evaluating Dr. Horn’s opinion,
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 18

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1

which Plaintiff claims reflect the severity of her impairments, specifically the

2

nonuse of her right hand and the problems that developed in her left hand

3

following surgery. Id.

4

The ALJ found Dr. Horn’s opinion from February 2017 unpersuasive

5

because Dr. Horn failed to establish the duration for which Plaintiff would remain

6

impaired following her surgery. Tr. 28; see also Tr. 552–54. The ALJ’s

7

consideration was valid; limitations that do not meet the duration requirement (i.e.,

8

a continuous impairment lasting, or expected to last, at least 12 months) are not

9

considered disabling. 20 C.F.R. §§ 404.1509, 416.909. Additionally, Dr. Horn’s

10

assessment is inconsistent with the record as a whole because Plaintiff’s other

11

treatment notes generally reveal unremarkable imaging and exam findings. See,

12

e.g., Tr. 464–69, 525, 530, 544–45, 585–95. Additionally, the ALJ accounted for

13

Plaintiff’s limitations in her hands in the residual functional capacity assessment.

14

See Tr. 29. The ALJ’s conclusion that Dr. Horn’s opinion is unpersuasive is

15

supported by substantial evidence and is consistent with Ninth Circuit law that a

16

medical opinion may be rejected by the ALJ if it is brief, conclusory, or

17

inadequately supported. Bray v. Comm’r of Soc. Sec. Admin, 554 F.3d 1219, 1228

18

(9th Cir. 2009).

19
20

2. Dr. Lorber
Plaintiff does not challenge this finding; thus, any challenge is waived, and
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 19

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1

the Court may decline to review it. See Carmickle v. Comm'r, Soc. Sec. Admin.,

2

533 F.3d 1155, 1161 n.2 (9th Cir. 2008). However, the Court finds the ALJ did

3

not err in relying upon Dr. Lorber’s opinion.

4

The ALJ found Dr. Lorber’s opinion persuasive. Tr. 27. Regarding

5

supportability, the ALJ found Dr. Lorber gave a detailed and persuasive

6

explanation of his opinion, which was supported by the evidence in the record.

7

See, e.g., Tr. 463–74, 514–47, 584–89, 591–600, 849–75, 961–69. As to

8

consistency, the ALJ found Dr. Lorber’s opinion consistent with the assessments of

9

Dr. Miller and the DDS physicians. Tr. 27. The ALJ also found Dr. Lorber’s

10

opinion consistent with Plaintiff’s own admitted ability to attend nursing school,

11

care for her children, do housework and yard work, play card games, and go

12

shopping. Id. Finally, the ALJ found Dr. Lorber’s knowledge of the SSA program

13

and his expertise as an orthopedic surgeon added to the overall persuasiveness of

14

the opinion. Id. The ALJ’s finding that Dr. Lorber’s opinion is persuasive is

15

supported by substantial evidence.

16

3. Dr. Toews 1

17

Plaintiff does not challenge this finding; thus, any challenge is waived, and

18
19
20

1

The Court notes the Oral Hearing Transcript improperly refers to Dr. Toews

as “Dr. Tabes.” Tr. 47.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 20

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1

the Court may decline to review it. See Carmickle, 533 F.3d at 1161 n.2.

2

However, the Court finds the ALJ did not err in relying upon Dr. Toews’ opinion.

3

The ALJ found the opinion of Dr. Toews persuasive. Tr. 27. Regarding

4

supportability, the ALJ found Dr. Toews gave a detailed and persuasive

5

explanation of his opinion, which was supported by the evidence in the record.

6

See, e.g., Tr. 463–74, 514–47, 584–89, 591–600, 849–75, 961–69. As to

7

consistency, the ALJ found Dr. Toews’ opinion was consistent with Plaintiff’s own

8

reports that she did not believe her mental health issues were disabling, and

9

consistent with Dr. Bostwick’s assessment and the assessments conducted by the

10

DDS psychologists. Tr. 27. Finally, the ALJ found Dr. Lorber’s knowledge of the

11

SSA program and his expertise as a clinical psychologist added to the overall

12

persuasiveness of the opinion. Id. The ALJ’s finding that Dr. Lorber’s opinion is

13

persuasive is supported by substantial evidence.

14
15

4. DDS Physical Medical Consultants
Plaintiff does not challenge this finding; thus, any challenge is waived, and

16

the Court may decline to review it. See Carmickle, 533 F.3d at 1161 n.2.

17

However, the Court finds the ALJ did not err in assessing the DDS consultants’

18

physical evaluations.

19
20

The ALJ found the DDS physical medical consultants to be somewhat
persuasive. Tr. 27. The ALJ found their opinions generally consistent with, and
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 21

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1

supported by, the imaging and examine findings (see, e.g., Tr. 463–74, 514–47,

2

584–89, 591–600, 849–75, 961–69), and with the opinions of Dr. Miller (Tr. 584)

3

and Dr. Lorber (Tr. 41). Tr. 27. However, the ALJ was more persuaded by Dr.

4

Lorber’s opinion because he had a more complete record to review and was

5

available to explain and defend his opinion at the hearing. Id. The ALJ’s finding

6

that the DDS physical medical consultants’ opinions are less persuasive is

7

supported by substantial evidence.

8
9

5. DDS Psychological Consultants
Plaintiff does not challenge this finding; thus, any challenge is waived, and

10

the Court may decline to review it. See Carmickle, 533 F.3d at 1161 n.2.

11

However, the Court finds the ALJ did not err in relying upon the DDS

12

psychologists’ opinions.

13

The ALJ found the opinions of the DDS psychological consultants

14

persuasive. Tr. 27. In terms of supportability, the DDS psychologists provided a

15

thorough written summary of the longitudinal record up to the date of their

16

assessments and that summary was fully supported by the evidence. Id. The ALJ

17

found their opinions consistent with the longitudinal record, including the largely

18

benign mental status findings (see, e.g., Tr. 536–42, 718–19, 729, 882, 924, 952–

19

60), and also consistent with the assessments of Dr. Bostwick (Tr. 576) and Dr.

20

Toews (Tr. 47). Id. The ALJ’s finding that the DDS psychologists’ opinions are
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 22

Case 2:20-cv-00365-TOR

1

filed 09/08/21

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persuasive is supported by substantial evidence.

2
3

ECF No. 23

6. Dr. Miller
Plaintiff does not challenge this finding; thus, any challenge is waived, and

4

the Court may decline to review it. See Carmickle, 533 F.3d at 1161 n.2.

5

However, the Court finds the ALJ did not err in the assessment of Dr. Miller’s

6

opinion.

7

The ALJ found Dr. Miller’s opinion somewhat persuasive. Tr. 28. In terms

8

of supportability, the ALJ found Dr. Miller’s opinion largely supported by her own

9

examinations, but also by the record as a whole. Id. The ALJ noted, however, Dr.

10

Miller failed to specify the degree of limitation Plaintiff suffered due to deficits in

11

her upper extremity/hands. Id. Dr. Miller did note Plaintiff had “limited crawling

12

ability” and “will have difficult time with fine motor activities [of right hand],” but

13

the opinion was not consistent with Dr. Lorber’s opinion, which contained a

14

detailed explanation of the specific degree of upper extremity limitations. Id. The

15

ALJ’s finding that Dr. Miller’s opinion is less persuasive is supported by

16

substantial evidence.

17
18

7. Dr. Bostwick
Plaintiff does not challenge this finding; thus, any challenge is waived, and

19

the Court may decline to review it. See Carmickle, 533 F.3d at 1161 n.2.

20

However, the Court finds the ALJ did not err in relying upon Dr. Bostwick’s
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 23

Case 2:20-cv-00365-TOR

1
2

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opinion.
The ALJ found Dr. Bostwick’s opinion very persuasive. Tr. 28. Regarding

3

supportability, Dr. Bostwick conducted a thorough psychological exam and his

4

opinion was well supported by the exam findings. Id. The ALJ also found Dr.

5

Bostwick’s opinion consistent with the largely benign mental status findings (see,

6

e.g., Tr. 536–42, 718–19, 729, 882, 924, 952–60), and also consistent with the

7

assessments conducted by Dr. Toews (Tr. 47) and the DDS psychologists (Tr. 80–

8

94, 97–111, 114–29, 131–46). Id. The ALJ’s finding that Dr. Bostwick’s opinion

9

is very persuasive is supported by substantial evidence.

10
11

8. L&I Independent Medical Experts
Plaintiff does not challenge this finding; thus, any challenge is waived, and

12

the Court may decline to review it. See Carmickle, 533 F.3d at 1161 n.2.

13

However, the Court finds the ALJ did not err in rejecting the L&I medical

14

opinions.

15

The ALJ found the L&I Independent Medical Examination opinions

16

unpersuasive. Tr. 28. The opinions were inconsistent with Plaintiff’s medical

17

records and alleged impairments as they did not account for any impairments

18

beyond Plaintiff’s work-related lumbar strain. Id. Moreover, one exam took place

19

before the relevant time period. Tr. 463. The ALJ’s finding is consistent with

20

Ninth Circuit law that a medical opinion may be rejected by the ALJ if it is brief,
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 24

Case 2:20-cv-00365-TOR

1
2
3

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filed 09/08/21

PageID.1109 Page 25 of 31

conclusory, or inadequately supported. Bray, 554 F.3d at 1228.
9. Dale Peterson, PA-C
Plaintiff does not challenge this finding; thus, any challenge is waived, and

4

the Court may decline to review it. See Carmickle, 533 F.3d at 1161 n.2.

5

However, the Court finds the ALJ did not err in rejecting Mr. Peterson’s opinion.

6

The ALJ found the opinion of Dale Peterson, PA-C, unpersuasive. Tr. 28.

7

Regarding supportability, the ALJ noted Mr. Peterson failed to support his

8

conclusion that Plaintiff is “not able to work” with any evidence. Id. Moreover,

9

such an assessment is reserved for the Commissioner and does not constitute a

10

“medical opinion” under the current rules. Id. Mr. Peterson’s statement that

11

Plaintiff was being treated for anxiety and depression is inconsistent with the

12

largely benign mental status findings (see Tr. 536–42, 718–19, 729, 882, 924, 952–

13

60), and also inconsistent with the assessments conducted by Dr. Toews (Tr. 47)

14

and the DDS psychologists (Tr. 80–94, 97–111, 114–29, 131–46). The ALJ’s

15

finding is consistent with Ninth Circuit law that a medical opinion may be rejected

16

by the ALJ if it is brief, conclusory, or inadequately supported. Bray, 554 F.3d at

17

1228. The ALJ’s finding that Mr. Peterson’s opinion was not persuasive is also

18

supported by substantial evidence.

19
20

10. Monna Rittenhouse
Plaintiff does not challenge this finding; thus, any challenge is waived, and
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 25

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ECF No. 23

filed 09/08/21

PageID.1110 Page 26 of 31

1

the Court may decline to review it. See Carmickle, 533 F.3d at 1161 n.2.

2

However, the Court finds the ALJ did not err in rejecting Ms. Rittenhouse’s

3

opinion.

4

The ALJ found the opinion of Monna Rittenhouse unpersuasive. Tr. 28.

5

Ms. Rittenhouse stated Plaintiff was limited to sedentary work with manipulative

6

limitations for the next six months. Id. However, the ALJ noted Ms.

7

Rittenhouse’s opinion was inconsistent with the overall record, which contained

8

intact examination findings and light residual functional capacity findings by

9

nearly all other medical sources. Id. Additionally, Ms. Rittenhouse failed to

10

provide evidentiary support for her opinion with regard to the durational limitation.

11

Id. The ALJ’s finding is consistent with Ninth Circuit law that a medical opinion

12

may be rejected by the ALJ if it is brief, conclusory, or inadequately supported.

13

Bray, 554 F.3d at 1228. The ALJ’s finding that Mr. Peterson’s opinion was not

14

persuasive is supported by substantial evidence.

15
16

11. Kelly Phipps
Plaintiff does not challenge this finding; thus, any challenge is waived, and

17

the Court may decline to review it. See Carmickle, 533 F.3d at 1161 n.2.

18

However, the Court finds the ALJ did not err in assessing Ms. Phipps’ opinion.

19
20

The ALJ found the opinion of Kelly Phipps, MA, somewhat persuasive. Tr.
28. Ms. Phipps stated she was unable to assess limitations but did note that
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 26

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filed 09/08/21

PageID.1111 Page 27 of 31

1

Plaintiff’s mental health conditions did not limit her ability to work, look for work,

2

or prepare for work, which the ALJ found consistent with the opinions of Mr.

3

Toews (Tr. 47) and the DDS psychologists (Tr. 80–94, 97–111, 114–29, 131–46).

4

Id. The ALJ noted Ms. Phipps’ opinion was supported by several DSHS

5

WorkFirst reports she conducted for Plaintiff. Tr. 667, 673, 970. The ALJ’s

6

finding that Ms. Phipps’ opinion was somewhat persuasive is supported by

7

substantial evidence.

8

C.

Vocational Evidence

9

Plaintiff appears to challenge the ALJ’s determinations at both step four and

10

five of the analysis. Plaintiff first argues the ALJ erred at step four in determining

11

Plaintiff retained the residual functional capacity (“RFC”) to perform past relevant

12

work as a convenience store manager. ECF No. 16 at 21. Plaintiff then argues the

13

ALJ erred at step five in determining there were other jobs in the national economy

14

that Plaintiff could do with her limitations. Id.

15

At step four, the ALJ determines whether a claimant can still perform past

16

relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If a claimant

17

cannot perform her past relevant work, at step five the ALJ must show there are a

18

significant number of jobs in the national economy the claimant is able to

19

do. Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 1999); 20 C.F.R. §§

20

404.1520(d)–(e), 416.920(d)–(e). To do so, the ALJ may employ the testimony of
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 27

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filed 09/08/21

PageID.1112 Page 28 of 31

1

a vocational expert. Tackett, 180 F.3d at 1100–01; Osenbrock v. Apfel, 240 F.3d

2

1157, 1162 (9th Cir. 2000). The ALJ’s findings will be upheld if the weight of

3

medical evidence in the record supports the hypothetical posed by the ALJ.

4

Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1987); Gallant v. Heckler, 753

5

F.2d 1450, 1456 (9th Cir. 1984). The vocational expert’s testimony will qualify as

6

substantial evidence if it is reliable. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.

7

1988).

8

Here, the ALJ determined Plaintiff retained an RFC to perform her past

9

relevant work as an assistant manager of a convenience store as that job is

10

generally performed. Tr. 29. This finding was based on the testimony of

11

vocational expert, Thomas Polsin. Id. Plaintiff argues it is “obvious” that she

12

would not be able to perform the duties of an assistant manager due to the nonuse

13

of her right hand and only the occasional use of her left hand. ECF Nos. 16 at 22;

14

21 at 5. To support her claim, Plaintiff relies upon her own vocational expert,

15

Robert Cornell. ECF Nos. 16 at 22; 21 at 5. Mr. Cornell opined that “a managerial

16

trainee in a quick-stop like a Circle-K . . . is required to do all the same duties as a

17

cashier and lead worker.” Tr. 239. Mr. Cornell further stated those work

18

requirements are “more frequent than just covering for someone’s shift that does

19

not show up for work” and the duties require “extensive handling, as well as gross

20

manual and fine manipulation.” Id.
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 28

Case 2:20-cv-00365-TOR

1

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filed 09/08/21

PageID.1113 Page 29 of 31

Plaintiff’s argument is unpersuasive. The Ninth Circuit does not require

2

vocational experts to consider a claimant’s past work as actually performed; rather,

3

“a vocational expert merely has to find that a claimant can or cannot continue his

4

or her past relevant work as defined by the regulations.” Pinto v. Massanari, 249

5

F.3d 840, 845 (9th Cir. 2001). Here, vocational expert Mr. Polsin relied on the

6

Dictionary of Occupational Titles and his own experience to find that Plaintiff

7

could perform the duties of an assistant manager as those jobs are generally

8

performed, which is sufficient to support a finding that Plaintiff could perform her

9

past relevant work as defined by the regulations. Tr. 70–71. Even if the ALJ did

10

err in determining Plaintiff could perform past relevant work, any error is harmless

11

because the ALJ considered alternative jobs to account for Plaintiff’s potentially

12

more limited RFC.

13

After considering Plaintiff’s age, education, work experience, and RFC, the

14

ALJ determined there were two alternative jobs in significant numbers in the

15

national economy that Plaintiff could perform: an usher, with 22,600 jobs in the

16

national economy, and a sandwich board carrier, with 11,000 jobs in the national

17

economy. Tr. 30. The ALJ arrived at this conclusion after posing the following

18

hypothetical to Mr. Polsin: limitations bilaterally of handling and fingering with

19

slightly reduced limitation for the nondominant right hand that could be used as an

20

assist, and occasional limitations to the left hand. Tr. 76. Plaintiff again claims it
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 29

Case 2:20-cv-00365-TOR

ECF No. 23

filed 09/08/21

PageID.1114 Page 30 of 31

1

is “obvious” that she cannot perform the job duties of either position because both

2

would require the use of both hands. ECF No. 21 at 5–6. To support her claim,

3

Plaintiff relies on the opinion of her own vocational expert, Mr. Cornell. Id.

4

Plaintiff’s second argument is equally unpersuasive. First, the ALJ

5

considered Plaintiff’s reduced capacity to use her left hand in assessing Plaintiff’s

6

RFC. Tr. 30. Next, Plaintiff’s assertions regarding her ability to use her left hand

7

for “only one third of a day” are not well-supported by the evidence. ECF No. 21

8

at 6. Conversely, the ALJ found the totality of Plaintiff’s medical records did not

9

support such limited use of her left hand. Tr. 26–27. If the ALJ’s interpretation of

10

the record is reasonable as it is here, it should not be second-guessed. Rollins, 261

11

F.3d at 857. The ALJ’s finding that Plaintiff can perform past relevant work, or in

12

the alternative, that there are other jobs in the national economy that Plaintiff could

13

perform, is supported by substantial evidence.
CONCLUSION

14
15

Having reviewed the record and the ALJ’s findings, this Court concludes

16

that the ALJ’s decision is supported by substantial evidence and free of harmful

17

legal error.

18

//

19

//

20

//
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 30

Case 2:20-cv-00365-TOR

1

ECF No. 23

filed 09/08/21

PageID.1115 Page 31 of 31

ACCORDINGLY, IT IS HEREBY ORDERED:

2

1. Plaintiffs Motion for Summary Judgment (ECF No. 16) is DENIED.

3

2. Defendant’s Motion for Summary Judgment (ECF No. 20) is

4
5
6
7

GRANTED.
The District Court Executive is directed to enter this Order and Judgment
accordingly, furnish copies to counsel, and close the file.
DATED September 8, 2021.

8
9
10

THOMAS O. RICE
United States District Judge

11
12
13
14
15
16
17
18
19
20
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT ~ 31