Vance v. Colvin
Filing
19
MEMORANDUM OPINION denying Claimant's 15 MOTION for Judgment on the Pleadings, granting Defendant's 18 BRIEF IN SUPPORT OF DEFENDANT'S DECISION, affirming the final decision of the Commissioner, and dismissing this matter from the docket of this Court. Signed by Magistrate Judge Dwane L. Tinsley on 3/18/2014. (cc: attys;) (tmh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JOSEPH A. VANCE,
Plaintiff,
v.
Civil Action No. 2:13-cv-03631
CAROLYN W. COLVIN, COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,
Defendant.
MEMORANDUM OPINION
This is an action seeking review of the final decision of the Commissioner of
Social Security denying Plaintiff=s applications for disability insurance benefits (DIB)
and supplemental security income (SSI), under Titles II and XVI of the Social Security
Act, 42 U.S.C. '' 401-433, 1381-1383f. Presently pending before the Court are Plaintiff’s
Brief in Support of Judgment (ECF No. 15) and Defendant’s Brief in Support of
Defendant’s Decision (ECF No. 18). Both parties have consented to a decision by the
United States Magistrate Judge.
Claimant, Joseph A. Vance, filed an application for Social Security Disability
Insurance Benefits and Supplemental Security Income benefits on August 12, 2009,
alleging disability beginning August 23, 2008.
Claimant asserts experiencing the
following conditions: heart disease, chronic back pain, head injury, vision problems and
severe headaches (Tr. at 174).
The claims were denied initially and upon
reconsideration. Thereafter, Claimant filed a written request for hearing on May 12,
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2010. On September 19, 2011, Claimant appeared at an administrative hearing held by
an Administrative Law Judge in Charleston, West Virginia. A decision denying the
claims was issued on October 3, 2011. Claimant’s request for review by the Appeals
Council was denied on January 17, 2013. Claimant brought the present action seeking
judicial review of the administrative decision pursuant to 42 U.S.C. ' 405(g).
Under 42 U.S.C. ' 423(d)(5) and ' 1382c(a)(3)(H)(i), a claimant for disability
benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773,
774 (4th Cir. 1972). A disability is defined as the "inability to engage in any substantial
gainful activity by reason of any medically determinable impairment which can be
expected to last for a continuous period of not less than 12 months . . . ." 42 U.S.C. '
423(d)(1)(A).
The Social Security Regulations establish a "sequential evaluation" for the
adjudication of disability claims.
20 C.F.R. '' 404.1520, 416.920 (2013).
If an
individual is found "not disabled" at any step, further inquiry is unnecessary. Id. ''
404.1520(a), 416.920(a). The first inquiry under the sequence is whether a claimant is
currently engaged in substantial gainful employment. Id. '' 404.1520(b), 416.920(b).
If the claimant is not, the second inquiry is whether claimant suffers from a severe
impairment. Id. '' 404.1520(c), 416.920(c). If a severe impairment is present, the third
inquiry is whether such impairment meets or equals any of the impairments listed in
Appendix 1 to Subpart P of the Administrative Regulations No. 4. Id. '' 404.1520(d),
416.920(d). If it does, the claimant is found disabled and awarded benefits. Id. If it
does not, the fourth inquiry is whether the claimant's impairments prevent the
performance of past relevant work.
Id. '' 404.1520(e), 416.920(e).
By satisfying
inquiry four, the claimant establishes a prima facie case of disability. Hall v. Harris,
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658 F.2d 260, 264 (4th Cir. 1981). The burden then shifts to the Commissioner, McLain
v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth and final
inquiry: whether the claimant is able to perform other forms of substantial gainful
activity, considering claimant's remaining physical and mental capacities and claimant's
age, education and prior work experience. 20 C.F.R. '' 404.1520(f), 416.920(f) (2013).
The Commissioner must show two things: (1) that the claimant, considering claimant=s
age, education, work experience, skills and physical shortcomings, has the capacity to
perform an alternative job and (2) that this specific job exists in the national economy.
McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).
In this particular case, the ALJ determined that Claimant satisfied the first
inquiry because he has not engaged in substantial gainful activity since the alleged onset
date (Tr. at 18). Under the second inquiry, the ALJ found that Claimant suffers from a
history of severe impairments of ischemic heart disease with chest pain, residuals of
traumatic head injury, depression, anxiety and gastroesophageal reflux disease. (Id.) At
the third inquiry, the ALJ concluded that Claimant=s impairments do not meet or equal
the level of severity of any Listings in 20 CFR Part 404, Subpart P, Appendix 1 (Tr. at
19). The ALJ then found that Claimant has a residual functional capacity (RFC) for light
work, reduced by nonexertional limitations 1 (Tr. at 21). The ALJ found that Claimant is
unable to perform any past relevant work (Tr. at 31). The ALJ concluded that Claimant
could perform light exertional jobs such as assembler, security and janitor (Tr. at 32).
On this basis, Claimant’s applications were denied (Tr. at 32-33).
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Claimant can occasionally climb ladders, ropes and scaffolds. He should avoid concentrated exposure to
extreme cold or hazards such as heights and machinery. Claimant is limited to routine, repetitive task
that involve no more than two to three steps and do not require more than a rudimentary capacity for
reading and math (Tr. at 21).
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Scope of Review
The sole issue before this court is whether the final decision of the Commissioner
denying the claim is supported by substantial evidence. In Blalock v. Richardson,
substantial evidence was defined as:
Aevidence which a reasoning mind would accept as sufficient
to support a particular conclusion. It consists of more than a
mere scintilla of evidence but may be somewhat less than a
preponderance. If there is evidence to justify a refusal to
direct a verdict were the case before a jury, then there is
'substantial evidence.=@
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze,
368 F.2d 640, 642 (4th Cir. 1966)). Additionally, the Commissioner, not the Court, is
charged with resolving conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456
(4th Cir. 1990). Nevertheless, the Courts Amust not abdicate their traditional functions;
they cannot escape their duty to scrutinize the record as a whole to determine whether
the conclusions reached are rational.@ Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir.
1974).
A careful review of the record, which includes medical records, reveals the
decision of the Commissioner is supported by substantial evidence.
Claimant=s Background
Claimant was born on May 7, 1960 (Tr. at 170). Claimant received his GED in
1977 (Tr. at 180). Claimant states that he was in special education classes. The West
Virginia Social Security Disability Determination Section was informed by the Special
Education department of Boone County Schools on August 25, 2009, that the school did
not have any records pertaining to Claimant (Tr. at 183). Claimant served in the Army
and received an undesirable discharge due to not being able to adapt to military life (Tr.
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at 21). Claimant has a driver’s license, however, his license was suspended due to
various Department of Transportation violations with the trucks he drove that were the
responsibility of his former employer (Tr. at 22).
Claimant reported that he stopped working due to disability on August 23, 2008.
Claimant worked as a long haul truck driver. Claimant reports that he had a heart
attack and was fired from his job because he missed too much work (Tr. at 174). Boone
Memorial Hospital records report Claimant’s arrival to the Emergency Room as a result
of acute coronary syndrome (Tr. at 429). The Mayo Clinic defines acute coronary
syndrome as a term used for any condition brought on by sudden, reduced blood flow to
the heart.
Claimant asserts that the ALJ failed to comply with 20 C.F.R. § 404.1529 in
evaluating Claimant’s subjective symptoms as he failed to consider the “observations by
our employees.” Claimant argues that the ALJ failed to comply with 20 C.F.R. §
404.1527 by failing to accord adequate weight to the opinions of Dr. Iraj Derakhshan,
Dr. Tony Goudy and Sheila Kelly, M.A.. Claimant asserts the decision is not based on
substantial evidence because the ALJ failed to include all of Claimant’s limitations in the
Residual Functional Capacity assessment (hereinafter RFC) (ECF No. 15). Defendant
asserts the ALJ’s decision is supported by substantial evidence (ECF No. 18).
Evaluating Mental Impairments
The five-step sequential evaluation process applies to the evaluation of both
physical and mental impairments.
20 C.F.R. § 416.920a (a) (2013); 20 C.F.R. §
404.1520a (a) (2013). In addition, when evaluating the severity of mental impairments,
the Social Security Administration implements a “special technique,” outlined at 20
C.F.R. §§ 404.1520a and 416.920a. Id. First, symptoms, signs and laboratory findings
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are evaluated to determine whether a claimant has a medically determinable mental
impairment. §§ 404.1520a(b)(1) and 416.920a(b)(1) (2013).
Second, if the ALJ
determines that an impairment(s) exists, the ALJ must specify in his decision the
symptoms, signs and laboratory findings that substantiate the presence of the
impairment(s). §§ 404.1520a(b)(1) and (e), 416.920a(b)(1) and (e) (2013). Third, the
ALJ then must rate the degree of functional limitation resulting from the impairment(s).
§§ 404.1520a(b)(2) and 416.920a(b)(2) (2013).
Functional limitation is rated with
respect to four broad areas (activities of daily living, social functioning, concentration,
persistence or pace and episodes of decompensation). §§ 404.1520a(c)(3) and
416.920a(c)(3) (2013). The first three areas are rated on a five-point scale: None, mild,
moderate, marked and extreme. The fourth area is rated on a four-point scale: None,
one or two, three, four or more. §§ 404.1520a(c)(4) and 416.920a(c)(4)(2013). A rating
of “none” or “mild” in the first three areas and a rating of “none” in the fourth area will
generally lead to a conclusion that the mental impairment is not “severe,” unless the
evidence indicates otherwise. §§ 404.1520a(d)(1) and 416.920a(d)(1) (2013). Fourth, if
a mental impairment is “severe,” the ALJ will determine if it meets or is equivalent in
severity to a mental disorder listed in Appendix 1. §§ 404.1520a(d)(2) and
416.920a(d)(2) (2013). Fifth, if a mental impairment is “severe” but does not meet the
criteria in the Listings, the ALJ will assess the claimant’s residual functional capacity.
§§ 404.1520a(d)(3) and 416.920a(d)(3) (2013).
The ALJ incorporates the findings
derived from the analysis in his decision:
The decision must show the significant history, including
examination and laboratory findings, and the functional
limitations that were considered in reaching a conclusion
about the severity of the mental impairment(s). The decision
must include a specific finding as to the degree of limitation
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in each of the functional areas described in paragraph (c) of
this section.
§§ 404.1520a(e)(2) and 416.920a(e)(2) (2013).
The ALJ held that Claimant’s mental impairments, considered singly and in
combination, do not meet or medically equal Listings 12.04 (Affective Disorders) and
12.06 (Anxiety Related Disorders) (Tr. at 38). See, 20 C.F.R. 404 Subpart P, Appendix 1.
To demonstrate a mental impairment under the Listings, Claimant’s mental
impairments must result in at least two of the following:
•
•
•
•
Marked difficulties in maintaining social functioning;
Marked restriction in activities of daily living;
Marked difficulties in maintaining concentration, persistence or pace; or
Repeated episodes of decompensation, each of extended duration.
A marked limitation means more than moderate but less than extreme. Lester
Sargent, M.A., performed a Mental Status Examination of Claimant on April 8, 2010
(Tr. at 525-530). Claimant reported that he was last employed in 1998 2 as a coal truck
driver (Tr. at 526). Claimant reported that in January 2010 he was taken to a hospital
and referred to a mental health clinic. Claimant reported, “They figured out I was not
suicidal. I passed out because the woman I was with kept feeding me vodka and I was
on Viagra. She freaked out and called 911.” (Id.) No history of mental health treatment
was reported by Mr. Sargent. Claimant reported one arrest for DUI in the 1990s (Tr. at
527). During the Mental Status Examination, Claimant stated his license was suspended
due to unpaid fines. Claimant reported “occasional use of marijuana with his last use
within the past two months” (Tr. at 527). Mr. Sargent reported Claimant’s affect as
mildly restricted. Claimant’s thought processes were understandable and connected.
2
The Mental Status Examination performed by Lester Sargent, M.A., on April 8, 2010, lists Claimant’s disability
onset date as 1998 (Tr. at 525-529). However, Claimant’s disability applications allege a disability onset date of
August 23, 2008.
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His mood was remarkable for sadness and anxiety. There was no evidence of delusions,
paranoia, obsessive thoughts or compulsive behaviors.
His judgment was mildly
deficient. There was no evidence of unusual perceptual experiences. Claimant’s insight
was mildly impaired based on his responses to questions regarding social awareness.
His immediate and remote memories were mildly deficient. His recent memory was
moderately deficient.
Claimant’s concentration, persistence and pace were mildly
deficient (Tr. at 528). Claimant’s social functioning was mildly deficient.
Claimant reported that he goes to stores and runs errands as needed. He takes
care of his pet dog. He takes short walks for exercise. He stated that he could perform
household chores including cooking, laundry, dishes and vacuuming. Claimant is able
to perform all basic self-care duties without assistance. He mows the lawn with a riding
mower. Claimant reported to fishing and hunting 1 or 2 times a year (Tr. at 207).
On April 27, 2010, Bob Marinelli, Ed.D., found under Listing 12.04 (Affective
Disorders) and Listing 12.06 (Anxiety-Related Disorders) that Claimant’s impairment(s)
are not severe (Tr. at 532).
Mr. Marinelli found that a medically determinable
impairment of panic disorder without agoraphobia is present but does not precisely
satisfy the diagnostic criteria for the Listings (Tr. at 537).
Mr. Marinelli found
Claimant’s functional limitation of activities of daily living, maintaining social
functioning and maintaining concentration, persistence or pace to be mild (Tr. at 542).
Claimant did not experience any episodes of decompensation. Mr. Marinelli concluded
that evidence did not establish the presence of paragraph “C” criterion to satisfy Listings
12.04 and 12.06 (Tr. at 543). Mr. Marinelli’s notes reflect the lack of any history of
mental health treatment (Tr. at 544). The ALJ gave some weight to Dr. Marinelli’s
opinion as it was generally consistent with the medical record evidence.
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During an evaluation in July 2010 by Sheila E. Kelly, M.A., Claimant described
wrecking a 4-wheeler while drinking the previous year.
Claimant reported to last
working in 2008 as a coal truck driver (Tr. at 558). Claimant reported to “piddling” with
his dune buggy and spending time with his friends (Tr. at 262). Claimant self-reported
experiencing back pain as a result of bulging discs. Ms. Kelly stated that no records of
any MRIs were included in the medical records she received from Claimant’s attorney’s
office (Tr. at 559). Claimant reported his “heart medicine” and pain medications were
helpful.
Ms. Kelly administered a Wechsler Adult Intelligence Scale – Third Edition
(hereinafter WAIS-III). Claimant scored a verbal IQ of 79, performance IQ of 78, full
scale IQ of 77, verbal comprehension index of 78 and perceptual organization index of
84.
Ms. Kelly indicated that the full scale IQ falls within the borderline range of
intellectual ability.
Tony Goudy, PhD, evaluated Claimant in 2011, three years after Claimant’s
alleged disability onset date. Claimant informed Dr. Goudy that he had never received
mental health treatment. Dr. Goudy found Claimant to suffer from mild impairment in
activities of daily living (Tr. at 704). Dr. Goudy found Claimant to be moderately
impaired in social functioning and concentration, persistence and pace. Claimant did
not experience any episodes of decompensation. The ALJ gave Ms. Kelly’s and Dr.
Goudy’s opinions little weight as they were inconsistent with the medical record
evidence and primarily relied on Claimant’s self-reported history and status.
The ALJ held that Claimant did not experience any marked limitations in
functioning (Tr. at 39). The ALJ found that Claimant’s mental impairments, considered
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singly and in combination, do not meet or medically equal the criteria of Listings 12.04
and 12.06.
Disorders of the Spine
Serafino S. Maducdoc, Jr., M.D., performed a Disability Determination
Examination of Claimant in November 2009 (Tr. at 378-381). Dr. Maducdoc reported
that Claimant takes pain pills every day for back pain (Tr. at 378). Claimant asserts that
his lower back was hurt two years earlier while putting a transmission in a tractortrailer. Claimant self-reported that an X-ray and MRI revealed herniated disc at L4-L5,
but stated that he never went to a specialist or neurosurgeon.
Iraj Derakhashan, M.D., examined Claimant in November 2009 and December
2009 for headaches and lower back pain. Claimant’s neurological exam was normal.
Dr. Derakhashan prescribed Norco 10/325mg for pain.
Claimant reported to Dr.
Derakhshan that the medication resolves his pain. The ALJ gave Dr. Derakhshan’s
opinion little weight because it was inconsistent with the medical record evidence and
unsupported by his own treatment record.
Claimant’s alleged back injury occurred nearly a year prior to the alleged
disability onset date. The ALJ concluded that the fact that the impairment(s) did not
prevent Claimant from working at that time strongly suggests that it would not currently
prevent work. Further, Claimant testified that he did not look for work after he stopped
working (Tr. at 56).
The ALJ concluded that the record includes evidence strongly suggesting that
Claimant has exaggerated symptoms and limitations. The record does not contain
findings or radiological evidence to support Claimant’s alleged back and neck pain,
suggesting that they are not as limiting as alleged.
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Ischemic Heart Disease
On December 10, 2009, G. Bousvaros, M.D., a State agency medical consultant,
performed a Physical Residual Functional Capacity assessment of Claimant (Tr. at 392399). Dr. Bousvaros reported that Claimant’s credibility was “limited as he has known
of several normal stress tests after the initial procedure” (Tr. at 397). Dr. Bousvaros
commented that Claimant alleged experiencing a heart attack that led to frequent work
absences and his consequent “lay-off” from work (Tr. at 399). The medical record
contains a report of cardiac catheterization on September 6, 2008, after an earlier
positive stress test. Dr. Bousvaros stated that the positive stress test was not in the
record he reviewed, nor was there record of “the alleged heart attack admission.” (Id.)
The cardiac catheterization showed severe narrowing of the LCX 3 which was
successfully stented with a drug eluting stent.4 Since the successful stent, Claimant has
had atypical chest pains that have led to at least three (3) in-file clean stress tests which
have shown ischemia and exertional capacity of 10, or more, METs. 5 Dr. Bousvaros
reported that based on the above and on the cardiac domain, Claimant has the capacity
to lift 25 pounds and carry 50 pounds. Claimant has the capacity to stand and/or walk
for 6 hours. (Id.) State agency medical consultant James Egnor, M.D., completed a case
analysis affirming Dr. Bousvaro’s findings (Tr. at 524). The ALJ gave some weight to the
consultants’ findings as they are consistent with the medical record of evidence.
3
LCX stands for left circumflex coronary artery.
A drug eluting stent is described by www.webmd.com as a peripheral or coronary stent (a scaffold) placed into
narrowed, diseased peripheral or coronary arteries that slowly release a drug to block cell proliferation.
5
MET stands for metabolic equivalent of task.
4
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The ALJ stated the record reveals that Claimant’s allegedly disabling
impairment(s) were present at approximately the same level of severity prior to his
alleged disability onset date.
Credibility Determination
The ALJ must accompany his decision with sufficient explanation to allow a
reviewing court to determine whether the Commissioner’s decision is supported by
substantial evidence. “[T]he [Commissioner] is required by both the Social Security Act,
42 U.S.C. § 405(b), and the Administrative Procedure Act, 5 U.S.C. § 557(c), to include
in the text of [his] decision a statement of the reasons for that decision.” Cook v.
Heckler, 783 F.2d 1168, 1172 (4th Cir. 1986).
The ALJ’s “decisions should refer
specifically to the evidence in forming the ALJ's conclusion. This duty of explanation is
always an important aspect of the administrative charge . . . .” Hammond v. Heckler,
765 F.2d 424, 426 (4th Cir. 1985).
Substantial evidence supports the ALJ’s finding that Claimant’s alleged severity
of symptoms was not credible. The ALJ held Claimant’s statements concerning the
intensity, persistence and limiting effects of his symptoms are not credible to the extent
they are inconsistent with the residual functional capacity assessment. The ALJ
concluded that the objective findings do not support the extreme limitations alleged by
Claimant and reveal that he is not credible (Tr. at 23).
Claimant’s headaches and alleged neck pain are managed with medication. The
ALJ concluded that Claimant is completely independent in all activities of daily living
and tinkers in a workshop on his property. He is able to mow his lawn and spend time
with his friends (Tr. at 31). The ALJ stated, “When taking the complete record of
evidence into considerations, Claimant’s subjective complaints are out of proportion to
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and not supported by objective medical evidence.” The ALJ concluded that “While
Claimant’s impairments are severe in that they have more than a minimal effect on his
ability to function, they are not totally disabling and do not preclude the performance of
all work related activity.” (Id.)
Compliance
The ALJ noted that the records “mentioned issues with compliance on a few
occasions,” suggesting “Claimant may not have been as candid about the nature of his
impairments as alleged“ (Tr. at 26). Ziad Chanaa, M.D., saw Claimant in January 2010.
Claimant reported feeling much better. Dr. Chanaa noted that Claimant had an episode
where he passed out drunk at the Boone Memorial Hospital (Tr. at 551).
Under
assessment, Dr. Chanaa indicated there was a compliance issue (Tr. at 547). Dr. Chanaa
reported that Claimant “is not compliant with his follow-up as well as with follow-up
with his specialist” (Tr. at 733). Dr. Chanaa also reported that Claimant is not compliant
with Dr. Chanaa’s orders to get labwork and blood tests performed (Tr. at 732).
Vocational Expert’s Testimony
At the administrative hearing, the ALJ asked the Vocational Expert (hereinafter
VE) if jobs existed in significant numbers in the national economy that someone with
Claimant’s age, education, past relevant work and previously stated exertional
limitations, could perform (Tr. at 70-73). VE Nancy Shapiro testified that such a person
could perform light jobs including an assembler, security and janitorial (Tr. at 77).
Based on the VE’s testimony, the ALJ ruled that Claimant could perform work in the
national economy, and therefore, he was not disabled under the Act (Tr. at 31-32).
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Pursuant to SSR 00-4p 6, VE Shapiro’s testimony is consistent with the information
contained in the Dictionary of Occupational Titles.
Conclusion
The ALJ’s decision was issued on October 3, 2011. The ALJ found that Claimant’s
impairment does not meet or medically equal one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1. Substantial evidence supports the determination of
the ALJ.
Contrary to Claimant’s assertions that the ALJ failed to consider his
impairments in combination, the ALJ’s decision reflects an adequate consideration of
his impairments. The ALJ appropriately weighed the evidence of record in its entirety
to determine that Claimant failed to demonstrate that Claimant’s functional capabilities
preclude his ability to perform any substantial gainful activity. The ALJ fully complied
with his duty in keeping with 20 C.F.R. § 404.1523 (2013). Accordingly, the ALJ denied
Claimant’s applications for DIB and SSI under the Social Security Act.
After a careful consideration of the evidence of record, the Court finds that the
Commissioner’s decision is supported by substantial evidence.
Accordingly, by
Judgment Order entered this day, Claimant’s Brief in Support of Judgment on the
Pleadings is DENIED, Defendant’s Brief in Support of Defendant’s Decision is
GRANTED, the final decision of the Commissioner is AFFIRMED and this matter is
DISMISSED from the docket of this Court.
The Clerk of this Court is directed to provide copies of this Order to all counsel of
record.
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Social Security Ruling 00-4p: Titles II and XVI: Use of Vocational Expert and Vocational Specialist Evidence, and
Other Reliable Occupational Information in Disability Decisions.
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Enter: March 18, 2014.
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