Mason v. Commissioner of Social Security, No. 1:2016cv03069 - Document 19 (E.D. Wash. 2017)

Court Description: ORDER granting 16 Defendant's Motion for Summary Judgment, and denying 15 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (KW, Case Administrator)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON 5 6 7 8 9 10 11 12 CORY MASON, No. 1:16-CV-3069-JTR Plaintiff, ORDER GRANTING DEFENDTANT’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 13 14 BEFORE THE COURT are cross-motions for summary judgment. ECF 15 No. 15, 18. Attorney D. James Tree represents Cory Mason (Plaintiff); Special 16 Assistant United States Attorney Jennifer Ann Kenney represents the 17 Commissioner of Social Security (Defendant). The parties have consented to 18 proceed before a magistrate judge. ECF No. 7. After reviewing the administrative 19 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 20 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 21 22 JURISDICTION Plaintiff protectively filed an application for Supplemental Security Income 23 (SSI) on May 23, 2012, alleging disability since birth (May 10, 1991), due to 24 Asperger’s syndrome, ADHD/ADD, fetal alcohol syndrome, conduct disorder, 25 bipolar disorder, and depression/suicidal. Tr. 269-274, 330. Plaintiff’s application 26 was denied initially and upon reconsideration. 27 28 Administrative Law Judge (ALJ) Ruperta M. Alexis held hearings on February 6, 2014, Tr. 66-92, and July 15, 2014, Tr. 36-65, and issued an ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 unfavorable decision on September 25, 2014, Tr. 18-30. The Appeals Council 2 denied review on February 22, 2016. Tr. 1-3. The ALJ’s September 2014 decision 3 thus became the final decision of the Commissioner, which is appealable to the 4 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 5 review on April 25, 2016. ECF No. 1, 4. 6 STATEMENT OF FACTS 7 The facts of the case are set forth in the administrative hearing transcript, the 8 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 9 here. 10 Plaintiff was born on May 10, 1991, and was 21 years old on the filing date 11 of his application, May 23, 2012. He attended school through the 8th grade and has 12 never worked. Tr. 79, 330-331. He indicated he believed he was unable to work 13 because he has a hard time getting along with others and difficulty multitasking or 14 focusing/concentrating. Tr. 76-78. He indicated he has applied for several jobs, 15 such as field and warehouse work, but had not been able to obtain employment. 16 Tr. 44-45. He agreed that his offender status may be a reason he has not been able 17 to secure a job. Tr. 45. Plaintiff testified telephonically from jail at the first 18 administrative hearing because he had been arrested for failure to register, a 19 requirement he has as a result of a kidnapping offense at the age of 15. Tr. 73-74, 20 83-84. He has had several arrests and incarcerations as a result of his failures to 21 register since he became homeless in 2010. Tr. 44, 74-76. 22 23 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 24 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 25 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 26 deferring to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 27 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 28 only if it is not supported by substantial evidence or if it is based on legal error. ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 2 defined as being more than a mere scintilla, but less than a preponderance. Id. at 3 1098. Put another way, substantial evidence is such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion. Richardson v. 5 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 6 rational interpretation, the Court may not substitute its judgment for that of the 7 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 8 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 9 administrative findings, or if conflicting evidence supports a finding of either 10 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 11 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 12 supported by substantial evidence will be set aside if the proper legal standards 13 were not applied in weighing the evidence and making the decision. Brawner v. 14 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 15 SEQUENTIAL EVALUATION PROCESS 16 The Commissioner has established a five-step sequential evaluation process 17 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 18 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 19 proof rests upon the claimant to establish a prima facie case of entitlement to 20 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 21 claimant establishes that physical or mental impairments prevent him from 22 engaging in his previous occupation. 20 C.F.R. § 416.920(a)(4). If a claimant 23 cannot do his past relevant work, the ALJ proceeds to step five, and the burden 24 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 25 other work; and (2) specific jobs exist in the national economy which claimant can 26 perform. Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193- 27 1194 (2004). If a claimant cannot make an adjustment to other work in the 28 national economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(v). ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 2 3 4 ADMINISTRATIVE DECISION On September 25, 2014, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful 5 activity since the application date, May 23, 2012. Tr. 20. At step two, the ALJ 6 determined Plaintiff had the following severe impairments: 7 developmental/cognitive disorder (ADHD versus Autism Spectrum Disorder 8 versus Fetal Alcohol Syndrome); affective disorder (major depressive disorder 9 versus bipolar disorder); anxiety disorder; and personality disorder. Tr. 20. At 10 step three, the ALJ found Plaintiff did not have an impairment or combination of 11 impairments that meets or medically equals the severity of one of the listed 12 impairments. Tr. 22. 13 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 14 determined he could perform a full range of work at all exertional levels with the 15 following nonexertional limitations: he can understand, remember and perform 16 simple, repetitive, routine tasks in a structured work environment, meaning there 17 are clear goals, directions and duties outlined; he can follow a schedule and 18 complete a normal workday; and he can have occasional interaction with co- 19 workers and the public. Tr. 24. 20 At step four, the ALJ noted Plaintiff has no past relevant work. Tr. 29. At 21 step five, the ALJ determined that based on the testimony of the vocational expert, 22 and considering Plaintiff’s age, education, work experience and RFC, Plaintiff 23 could perform other jobs present in significant numbers in the national economy, 24 including the jobs of vehicle cleaner, hand packager and laundry laborer. Tr. 29- 25 30. The ALJ thus concluded Plaintiff was not under a disability within the 26 meaning of the Social Security Act at any time from May 23, 2012, the date the 27 application was filed, through the date of the ALJ’s decision, September 25, 2014. 28 Tr. 30. ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 ISSUES 2 The question presented is whether substantial evidence supports the ALJ’s 3 decision denying benefits and, if so, whether that decision is based on proper legal 4 standards. Plaintiff argues the ALJ erred in her assessment of the medical source 5 opinions of record pertaining to Plaintiff’s mental condition. ECF No. 15 at 6-19. 6 Plaintiff specifically challenges the ALJ’s evaluation of the opinions of Jody 7 Veltkamp, Psy.D., Robert J. McDevitt, M.D., and Roland Dougherty, Ph.D. ECF 8 No. 15 at 6-19. 9 10 11 DISCUSSION A. Plaintiff’s Credibility While Plaintiff has not challenged the ALJ’s finding that Plaintiff was not 12 entirely credible, Tr. 25-26, the Court finds the ALJ’s credibility determination 13 significant in this case. 14 The ALJ indicated Plaintiff’s activities throughout the relevant period were 15 inconsistent with his allegations of severely limiting symptoms,1 regular notations 16 in Plaintiff’s treatment notes of normal psychiatric observations were inconsistent 17 with Plaintiff’s allegations of severely limiting mental health symptoms and 18 Plaintiff’s performance on psychological testing was inconsistent with his 19 allegations of severely limiting mental health symptoms,2 there is a lack of mental 20 health complaints by Plaintiff during the relevant time period,3 and Plaintiff 21 22 23 24 1 It is well-established that the nature of daily activities may be considered when evaluating credibility. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 2 A lack of supporting objective medical evidence is a factor which may be 25 considered in evaluating an individual’s credibility, provided that it is not the sole 26 factor. Bunnell v. Sullivan, 347 F.2d 341, 345 (9th Cir. 1991). 27 28 3 Noncompliance with medical care or unexplained or inadequately explained reasons for failing to seek medical treatment cast doubt on a claimant’s subjective ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 described difficulty obtaining work as a result of his criminal history, not because 2 of limitations from his impairments.4 Tr. 25-26. The ALJ provided several reasons for discounting plaintiff’s subjective 3 4 complaints, and those reasons are clear, convincing, and fully supported by the 5 record. In any event, as stated above, Plaintiff has not contested the ALJ’s 6 credibility finding in this case. See Paladin Assocs., Inc. v. Mont. Power Co., 328 7 F.3d 1145, 1164 (9th Cir. 2003) (issues not specifically and distinctly contested in 8 a party’s opening brief are considered waived). Accordingly, it is undisputed that 9 the ALJ properly determined Plaintiff was not fully credible in this matter. 10 11 B. Medical Source Opinions Plaintiff’s sole contention in this case is that the ALJ erred by failing to 12 properly weigh the opinions of certain medical sources regarding his mental 13 limitations. Plaintiff specifically argues the ALJ erred by giving very little weight 14 to the opinions of Dr. Veltkamp, according significant weight to only a portion of 15 Dr. Dougherty’s opinion and giving significant weight to the opinions of medical 16 expert McDevitt. ECF No. 15 at 6-19. 17 18 In this case, the ALJ found that although Plaintiff had severe mental impairments (a developmental/cognitive disorder, an affective disorder, an anxiety 19 20 complaints. 20 C.F.R. §§ 404.1530, 426.930; Fair v. Bowen, 885 F.2d 597, 603 21 (9th Cir. 1989). The Ninth Circuit has also determined a claimant’s failure to 22 report symptoms is a clear and convincing reason to reject a claimant’s statements. 23 Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). 24 4 The inability to work due to nondisability factors is a valid basis for 25 rejecting a claimant’s credibility. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 26 2001) (stating that in making a credibility determination, the ALJ did not err by 27 considering that claimant left his job because he was laid off, rather than because 28 he was injured). ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 disorder, and a personality disorder), the medical evidence did not support the 2 degree of limitation alleged by Plaintiff. Instead, the ALJ determined Plaintiff 3 retained the RFC to perform a full range of work at all exertional levels with the 4 following nonexertional limitations: he can understand, remember and perform 5 simple, repetitive, routine tasks in a structured work environment; he can follow a 6 schedule and complete a normal workday; and he can have occasional interaction 7 with co-workers and the public. Tr. 24. The Court finds the ALJ’s interpretation 8 of the medical evidence of record is supported by substantial evidence. See infra. 9 10 11 1. Jody Veltkamp, Psy.D. Plaintiff contends the ALJ erred by giving “very little weight” to the January 2006 examining report of Dr. Veltkamp. ECF No. 15 at 6-8. 12 The relevant time period in this case is from the filing date of Plaintiff’s 13 application, May 23, 2012, through the date of the ALJ’s determination, September 14 25, 2014. Evidence from outside of this period of time can be deemed useful as 15 background information; however, it is irrelevant to the extent that it does not 16 address Plaintiff’s medical status during the relevant period at issue in this action. 17 See Fair v. Bowen, 885 F.2d 597, 600 (9th Cir. 1989). In fact, as specified by the 18 ALJ, Plaintiff had a prior application for disability that became administratively 19 final on April 6, 2010, Tr. 95, the ALJ found no grounds for reopening that prior 20 determination, and the ALJ indicated any discussion of evidence prior to the date 21 of that final determination would be for historical purposes only and should not be 22 construed as an attempt to reopen the prior case. Tr. 18. 23 Dr. Veltkamp examined Plaintiff in January 2006, when Plaintiff was a 14- 24 year-old middle school student. Tr. 367-380. As indicated by the ALJ, this 25 evaluation report greatly predates the relevant time period. Tr. 28. Consequently, 26 the Court finds the ALJ provided a proper basis for concluding Dr. Veltkamp’s 27 January 2006 assessment was entitled to “very little weight” and that more recent 28 records would be more pertinent to Plaintiff’s May 2012 application for SSI. Id. ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 Although the ALJ properly accorded little weight to the January 2006 2 opinions of examiner Veltkamp, it is significant to note Dr. Veltkamp’s testing 3 revealed Plaintiff rated in the average to low-average range in testing related to 4 academic achievement and attention/concertation. Tr. 370-371. Although Dr. 5 Veltkamp found Plaintiff displayed significant difficulty with executive functions, 6 Tr. 371-372, Dr. Veltkamp opined Plaintiff did not classify as having a learning 7 disability and demonstrated no difficulty with attention/concentration, Tr. 374-375. 8 2. Roland Dougherty, Ph.D. 9 Plaintiff also contends the ALJ erred by not including all of the limitations 10 expressed in Dr. Dougherty’s report in her ultimate RFC determination. ECF No. 11 15 at 16-18. 12 On August 25, 2014, following the administrative hearing, Dr. Dougherty 13 examined Plaintiff. Tr. 645-670. Dr. Dougherty diagnosed ADHD; autism 14 spectrum disorder; probable fetal alcohol effects; major depressive disorder, 15 moderate, chronic; bipolar disorder, NOS; anxiety disorder, NOS; and subclinical 16 posttraumatic disorder symptoms. Tr. 655. Dr. Dougherty filed out a Medical 17 Source Statement of Ability to Do Work-Related Activities (Mental) check-box 18 form noting marked impairment (serious limitation) with Plaintiff’s abilities to 19 understand and remember complex instructions; carry out complex instructions; 20 make judgments on complex work-related decisions; interact appropriately with 21 the public; and respond appropriately to usual work situations and to changes in a 22 routine work setting, Tr. 643-644, despite opining in his narrative report that 23 Plaintiff was likely to have the ability to do some detailed and complex tasks; 24 should be able to accept instructions from supervisors; was likely to have some 25 difficulty interacting with coworkers and the public; and may be able to maintain 26 regular attendance in the workplace if he had stable housing, but was likely to have 27 a good deal of difficulty completing a normal workday/workweek without 28 interruptions from his mental impairments, Tr. 657. Dr. Dougherty indicated ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 Plaintiff’s report of some episodes of euphoria may also make it difficult for 2 Plaintiff to maintain employment and would likely make it difficult for him to deal 3 with stress encountered in the workplace. Tr. 657. 4 The ALJ accorded “significant” weight to Dr. Dougherty’s opinion “with 5 one exception.” Tr. 27. The ALJ is not required to adopt in full the opinion of any 6 particular medical source. See Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 7 1989) (“It is not necessary to agree with everything an expert witness says in order 8 to hold that his testimony contains ‘substantial evidence.’” (quoting Russell v. 9 Bowen, 856 F.2d 81, 83 (9th Cir. 1988))). An ALJ may properly rely upon only 10 selected portions of a medical opinion while ignoring other parts, but such reliance 11 must be consistent with the medical record as a whole. Edlund v. Massanari, 253 12 F.3d 1152, 1159 (9th Cir. 2001). 13 The ALJ gave weight to Dr. Dougherty’s check-box conclusions that 14 Plaintiff would be capable of performing simple instructions and interacting with 15 supervisors and coworkers and to Dr. Dougherty’s narrative report that Plaintiff 16 had fair social skills, is likely to have the ability to perform some detailed and 17 complex tasks, and would have some difficulty interacting with coworkers and the 18 public. Tr. 27, 643-644, 657. The ALJ indicated these limitations were consistent 19 with the record, including normal psychiatric observations and psychological test 20 performances and Plaintiff’s minimal mental health treatment, and accounted for 21 Dr. Dougherty’s limitations by restricting Plaintiff to the performance of simple, 22 repetitive tasks in a structured work environment with occasional coworker and 23 public contact. Tr. 27. 24 However, the ALJ assigned little weight to Dr. Dougherty’s opinion that 25 Plaintiff would have difficulty completing a normal workday/workweek due to his 26 mental health condition and is likely to have difficulty handling workplace stress. 27 Tr. 27, 657. These findings are inconsistent with the evidence of record, including 28 normal psychiatric observations and psychological test performances and ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 Plaintiff’s lack of mental health treatment, and Dr. Dougherty cited only Plaintiff’s 2 “multiple disorders” and Plaintiff’s reports of episodes of euphoria as the basis for 3 these findings. Tr. 27, 657. Although Dr. Dougherty administered psychological 4 testing which revealed possible mild to moderate cerebral impairments, a full scale 5 IQ in the low average range, visual memory and visual working memory in the 6 borderline range, immediate memory and delayed memory in the low average 7 range, and auditory memory, a relative strength for Plaintiff, in the average range, 8 Tr. 654, it is apparent, as determined by the ALJ, that Dr. Dougherty relied on 9 Plaintiff’s subjective statements for his conclusion that Plaintiff would have 10 difficulty completing a normal workday/workweek and would likely have 11 difficulty handling workplace stress, see Tr. 646-653 (self-reported history and 12 description of symptoms). As indicated above, the ALJ’s finding that Plaintiff is 13 less than fully credible is supported by the evidence of record and free of error, 14 and, pursuant to Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001), a 15 physician’s opinion may be disregarded when it is premised on the properly 16 rejected subjective complaints of a plaintiff. See Morgan v. Comm’r. of Soc. Sec. 17 Admin., 169 F.3d 595, 602 (9th Cir. 1999) (the opinion of a physician premised to 18 a large extent on a claimant’s own account of symptoms and limitations may be 19 disregarded where they have been properly discounted). 20 Plaintiff contends Dr. Dougherty’s diagnoses of ADHD, major depressive 21 disorder, and bipolar disorder, in combination with autism and probable fetal 22 alcohol effects, provide support for a finding that Plaintiff would have “a good deal 23 of difficulty completing a normal workday/workweek.” ECF No. 15 at 18. 24 However, “the mere existence of an impairment is insufficient proof of a 25 disability.” Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993). Plaintiff has 26 failed to show that these impairments caused any disabling functional limitations 27 and fails to specify any functional limitations from these diagnoses that were not 28 accounted for in the ALJ’s RFC determination. ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 Here, the ALJ properly evaluated the opinions of Dr. Dougherty, interpreted 2 and resolved ambiguities from the entirety of the medical evidence, and adopted 3 the limitations she found credible and supported by the overall record. The ALJ 4 did not err by giving “significant weight” to the opinion of Dr. Dougherty, while 5 also discounting a portion of the opinion. 6 3. 7 Plaintiff additionally contends the ALJ erred by according significant weight 8 9 Robert McDevitt, M.D. to the opinion of medical expert Robert McDevitt, M.D. ECF No. 15 at 6-16. Dr. McDevitt testified at the administrative hearing held on July 15, 2014. 10 Tr. 46-57. He stated the records indicated Plaintiff has a series of behavioral 11 problems but found there was no evidence of a major mental impairment. Tr. 48- 12 49, 52-53, 54. From a mental health standpoint, he noted there were no records of 13 treatment since 2012. Tr. 50. Dr. McDevitt nevertheless opined the record 14 reflected Plaintiff was too high functioning for any type of sheltered workshop and 15 concluded Plaintiff should be able to perform simple, repetitive work and some 16 complex work. Tr. 50. He believed Plaintiff would function best in a structured 17 situation with clear goals and clear tasks. Tr. 52. 18 The ALJ accorded significant weight to the medical expert’s testimony, 19 finding it was consistent with Plaintiff’s performance on psychological testing, his 20 activities and the normal psychiatric observations found in the record. Tr. 26. 21 Plaintiff argues that Dr. McDevitt at no time cited any other source for his 22 testimony other than Dr. Veltkamp, an examining physician the ALJ subsequently 23 rejected. ECF No. 15 at 7-8. That is not the case. Dr. McDevitt indicated he 24 received all of Plaintiff’s available medical and school records. Tr. 39, 47. While 25 Dr. McDevitt did not cite medical sources by name, other than Dr. Veltkamp, he 26 did cite medical records from the years following Dr. Veltkamp’s examination as 27 indicative that Plaintiff did fairly well in a structured environment, Tr. 48, 52 28 (citing Tr. 381-388, 444-496, 499-559), and specifically cited medical records ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 from Central Washington Comprehensive Mental Health as “the best” records, Tr. 2 48 (citing Tr. 499-559). Plaintiff’s argument is without merit. Plaintiff also takes issue with Dr. McDevitt’s opinion that Plaintiff was too 3 4 high functioning. ECF No. 16 at 14-16. While Plaintiff is correct that it is clear 5 from a review of the record that Plaintiff is not a high functioning individual, Dr. 6 McDevitt did not state that Plaintiff was high functioning. Rather, Dr. McDevitt 7 testified the record reflected Plaintiff was too high functioning to be limited to a 8 sheltered workshop and that Plaintiff should be capable of performing simple, 9 repetitive work and some complex work. Tr. 50. Dr. McDevitt’s opinion in this 10 regard is supported by the weight of the record evidence. 11 It is the responsibility of the ALJ to determine credibility, resolve conflicts 12 in medical testimony and resolve ambiguities, Saelee v. Chater, 94 F.3d 520, 522 13 (9th Cir. 1996), and this Court may not substitute its own judgment for that of the 14 ALJ, 42 U.S.C. § 405(g). Where, as here, the ALJ has made specific findings 15 justifying a decision, and those findings are supported by substantial evidence in 16 the record, this Court’s role is not to second-guess that decision. Fair, 885 F.2d at 17 604. 18 CONCLUSION 19 Based on the foregoing, the Court finds the ALJ’s interpretation of the 20 medical record is supported by the weight of the evidence of record. The ALJ 21 provided specific and legitimate reasons for giving little weight to the January 22 2006 opinions of Dr. Veltkamp; significant weight to the opinion of Dr. 23 Dougherty, while also rejecting part of his opinion; and significant weight to the 24 opinion of medical expert McDevitt. Having reviewed the record and the ALJ’s 25 findings, the Court finds the ALJ’s decision is supported by substantial evidence 26 and free of legal error. Accordingly, IT IS ORDERED: 27 28 1. Defendant’s Motion for Summary Judgment, ECF No. 16, is GRANTED. ORDER GRANTING DEFENDANT’S MOTION . . . - 12 Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 1 2. 2 The District Court Executive is directed to file this Order and provide a copy 3 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 4 and the file shall be CLOSED. 5 DATED August 14, 2017. 6 7 8 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 13

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