Simpson v. Commissioner of Social Security Administration
Court Docket Sheet
District of Arizona3:2016-cv-08023 (azd)
ORDER that the decision of the Commissioner of Social Security is AFFIRMED. IT IS FURTHER ORDERED that the Clerk of Court shall enter a separate judgment accordingly. Signed by Magistrate Judge Deborah M Fine on 3/14/17.
Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 1 of 22 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Peggy Ilene Simpson, No. CV-16-0823-PCT-DMF 10 Plaintiff, MEMORANDUM AND ORDER 11 v. 12 Nancy A. Berryhill, Acting Commissioner of Social Security, 13 Defendant. 14 15 Plaintiff Peggy Ilene Simpson ("Simpson") appeals the Commissioner of the 16 Social Security Administrationâs decision to adopt the Administrative Law Judgeâs 17 (ALJâs) ruling denying her application for Supplemental Security Income ("SSI") under 18 Title XVI of the Social Security Act. (Doc. 1 at 1) Simpson argues that ALJ George W. 19 Reyes erred by: (1) improperly rejecting Simpsonâs symptom testimony; (2) rejecting 20 Simpsonâs treating physicianâs assessments of Simpsonâs limitations; and (3) posing a 21 hypothetical question to the vocational expert that did not reflect all of Simpsonâs 22 limitations. (Doc. 19 at 1, 19) 23 This Court has jurisdiction pursuant to 42 U.S.C. Â§ 405(g) and with the partiesâ 24 consent to Magistrate Judge jurisdiction pursuant to 28 U.S.C. Â§ 636(c). 25///26///27///28 Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 2 of 22 1 I. BACKGROUND 2 A. Application and Social Security Administration Review 3 Simpson was 48 when she filed her application for supplemental security income 4 on March 2, 2012, alleging a disability onset date of February 1, 2007. (AR 1 158, 175) 5 Her application was initially denied on August 20, 2012 (AR 73-88) and again upon 6 reconsideration on April 24, 2013 (AR 89-101). ALJ Reyes conducted a hearing on 7 Simpsonâs application on June 19, 2014. (AR 33-71) At the hearing, Simpsonâs counsel 8 advised the ALJ that her disability onset date should be amended to February 2, 2012. 9 (AR 36) 10 ALJ Reyes filed a notice of an unfavorable decision on August 5, 2014. (AR 16-11 26) Simpson requested review by the Appeals Council (AR 15) which was denied on 12 December 11, 2015. (AR 1-3) At that point, the Commissionerâs decision became final. 13 Brewes v. Commâr of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). 14 B. Relevant Medical Treatment & Examining Physiciansâ Evidence 15 1. Scott Hastings, D.O. Dr. Hastings was Simpsonâs primary care physician throughout the period covered 16 by the medical record. The records indicate that in late 2009, Simpson saw Dr. Hastings 17 primarily to address essential tremor in her arm. (AR 252-255) The medical record 18 documents no visits with Dr. Hastings in 2010. In early 2011, Dr. Hastingsâ examination 19 records indicate that Simpson saw him for her tremor (AR 489), for ulnar neuritis and a 20 follow up after ulnar transposition surgery (AR 487), and chronic headaches (AR 485). 21 The examination notes indicate that in November 2010, Simpson had undergone an MRI 22 of her brain in connection with her tremor symptoms, which returned "essentially 23 normal" findings. (AR 489) After Dr. Hastings performed Osteopathic Manipulative 24 Therapy ("OMT"), Simpson reported in July 2011 that her neuritis, headaches and tremor 25 were doing better. (AR 481) Simpson continued to complain of chronic daily headaches, 26 27 28 1 Administrative Record-2-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 3 of 22 1 although she subsequently reported improvement from medication in October 2011. (AR 2 342) 3 In early 2012, Simpson reported "about 40% improvement in pain since OMT." 4 (AR 332) Dr. Hastings noted she was taking Requip which helped her restless leg 5 syndrome, and that she still had "occasional" bouts of shaking and headaches. (Id.) 6 Simpson complained of recent upper back and neck pain in May 2012 (AR 393), and in 7 June 2012 reported worsening neuritis in her hands, legs and feet (AR 390). By 8 November 2012, Simpson advised Dr. Hastings that her peripheral neuropathy was 9 improving with Vitamin B12 supplementation, and that her headaches were also doing 10 better. (AR 376) 11 The record reflects that Simpson did not see Dr. Hastings in 2013 until August, 12 when she followed up with him after she was treated at the ER for a spider bite. (AR 468) 13 In November 2013, Simpson visited with Dr. Hastings to discuss some abnormal lab 14 results involving elevated liver enzymes, determined to be related to an episode of 15 Hepatitis A that resolved. (AR 456, 452) Simpson was noted to suffer from fatty liver, and the doctor further recorded in November 2013 that Simpsonâs back pain was helped 16 "significantly" with Tramadol. (AR 456) 17 Simpson followed up again with Dr. Hastings in January 2014 after she 18 experienced what was assumed to be a severe episode of polypharmacy and was rendered 19 comatose and treated in intensive care for five days. (AR 448) When she saw Dr. 20 Hastings a few days after her release from the hospital, she complained of "some 21 numbness and weakness "in her right upper extremity (from pressure on it while being 22 unconscious)...." (AR 448) The notes indicate that Simpson denied an intentional 23 overdose, denied headaches, and was "now smoking Â½ a pack [of cigarettes] per day[,]" 24 which he stated she had done since 1993. (Id.) In February 2014, Dr. Hastings observed 25 that Simpson reported a "fine tremor" since her visit the month prior, and recorded that 26 Simpson denied drug or caffeine use. (AR 442) He started her on medication for the 27 tremor. (AR 444) 28-3-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 4 of 22 1 Dr. Hastingsâ notes from April 2014 (his most recent examination of Simpson) 2 indicated that she: (1) reported "sharp pain on the top of her hand and numbness in her 3 fifth finger[,]" and stated that she "didnât have any of those problems [with] her hand" 4 before going to the hospital in January 2014; (2) reported her tremor was better on 5 medication; (3) experienced headaches "once in a while, but not bad"; and (4) denied any 6 "arthralgias [or] myalgias (other than her hand)." (AR 434) The doctorâs notes 7 documented that Simpson reported she "walks daily." (AR 434, 448) 8 Dr. Hastings completed a "Residual Functional Capacity Questionnaire" in 9 February 2012, which was just prior to filing her application for SSI. (AR 330-331) He 10 listed her diagnoses as chronic daily headache, essential tremor, and ulner neuritis, with 11 symptoms of headache, numbness, tingling and tremor, and side-effects of medication 12 including muscle weakness, dizziness and fatigue. (AR 330) He indicated that Simpsonâs 13 symptoms were "seldom" severe enough to interfere with the attention and concentration 14 needed to perform simple work-related tasks. (Id.) He further noted that she would not 15 need to lie down or recline other than the customary 15-minute breaks in the morning and afternoon or during a lunch break, and would not require any unscheduled breaks during 16 a work day. (Id.) He also indicated she would need to be able to shift positions at will 17 from sitting, standing or walking. (Id.) Dr. Hastings averred that Simpson was capable of: 18 walking one-half a block without resting; sitting for an hour at a time; standing and/or 19 walking for 45 minutes at a time; sitting for 8 hours out of an 8 hour work day; standing 20 and/or walking for 6 hours out of an 8 hour work day; occasionally lifting and carrying 21 10 pounds or less; and never lifting and carrying 20 pounds or more. (AR 330-331) 22 Additionally, the doctor estimated that Simpson would be able to use her right hand for 23 50% of a work day grasping, turning or twisting objects, and use her left hand for 10% of 24 a work day performing such maneuvers. (AR 331) He further estimated that she could 25 use the fingers of both hands in fine manipulation only 10% of a work day, and use both 26 arms in reaching 20% of a work day. (Id.) He stated that she would likely miss a day or 27 two per month because of her impairments. (Id.) Dr. Hastings concluded that Simpson 28-4-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 5 of 22 1 would not be physically capable of working "an 8 hour day, 5 days a week [in] 2 employment on a sustained basis." (Id.) 3 Dr. Hastings filled out an updated version of the same form on March 6, 2014. 4 (AR 422-424) He identified Simpsonâs symptoms as before, with the addition of 5 peripheral neuropathy and the omission of ulnar neuritis. (AR 422) He also indicated that 6 Simpsonâs symptoms were "often" severe enough to interfere with the attention and 7 concentration needed to perform simple work-related tasks (a decrease from "seldom"). 8 (Id.) Dr. Hastingsâ new assessment of Simpsonâs limitations also updated his February 9 2012 assessment to reflect: that she could walk one city block at a stretch without resting 10 (improved from one-half a block); that she could now stand and/or walk only 20 minutes 11 at a time (decreased from 45minutes) and could stand and/or walk for only 2 hours of an 12 8 hour work day (decreased from 6 hours); that she would now need to take 1 to 2 13 unscheduled breaks of 10 to 15 minutesâ duration during a work day (decreased from no 14 unscheduled breaks needed); that she could only occasionally lift and carry less than 10 15 pounds (decreased from frequently); that she could use her hands to grasp, turn or twist objects 20% of a workday (decreased from 50% for her right hand and improved from 16 10% for her left hand); and that she could use her arms for reaching 10% of a work day 17 (decreased from 20%). (AR 422-423) Dr. Hastings averred that Simpson had maintained 18 these limitations since October 2012. (AR 424) 19 2. Gary M. Reyes, Ph.D. 20 Dr. Reyes is a psychologist who examined Simpson in August 2009 for an earlier 21 application for disability benefits. (AR 234-240) He completed a 22 "Psychological/Psychiatric Medical Source Statement" in which he concluded that 23 Simpson was not subject to limitations that would prevent her from engaging in 24 substantial work activity. (AR 241) 25 In Dr. Reyesâ report of his examination, he noted that Simpson reported owning a 26 cleaning business from 1990 to 2005, but closed it because she suffered from tremors, 27 pain and nausea. (AR 237) He recorded her statements that pain slowed down her daily 28 tasks, but that she was able to make her bed, do laundry, prepare meals, vacuum, wash-5-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 6 of 22 1 dishes, sweep, do part of her familyâs grocery shopping, and do yard work. (Id.) He noted 2 she reported not being able to drive because of her prescribed medications. (Id.) Dr. 3 Reyesâ report included that Simpson complained of sharp facial pain at a level of 10 out 4 of 10, and back and shoulder pain at a 9 out of 10 level during her examination, and 6 out 5 of 10 on a typical day. (AR 239) 6 Simpson was again examined by Dr. Reyes in August 2012 in connection with her 7 current application for benefits. (AR 359-365) Dr. Reyes completed a new 8 "Psychological/Psychiatric Medical Source Statement," which identified "some" 9 limitation associated with her symptoms of anxiety and depression. (AR 367-368) 10 Dr. Reyesâ report includes Simpsonâs having reported that she: "enjoyed doing 11 light housework and gardening"; suffered from daily bouts of anxiety that could cause 12 her body to shake; experienced depression for about 3 hours each day; and engaged in 13 activities of daily living similar to those she reported in August 2009. (AR 361-363) The 14 report notes that at the appointment, Simpson rated her neck and leg pain as a 10 of 10 15 and an 8 of 10 on a typical day. (AR 364) 3. Larry Nichols, M.D. 16 Consultative examining physician Dr. Larry Nichols examined Simpson relative to 17 her earlier application for benefits on January 9, 2010. (AR 256-262) Dr. Nichols 18 documented Simpsonâs reports of neck pain resulting from herniation of three cervical 19 discs that were injured seven years prior in a motor vehicle accident. (AR 256) She 20 complained she was unable to bend her neck forward or to rotate her neck, and said she 21 had limited right arm activity. (Id.) Simpson also reported hand tremors that made it 22 difficult to hold on to things. (Id.) Additionally, she reported that the three lateral fingers 23 on her right hand were numb. (Id.) Dr. Nichols observed that she demonstrated normal 24 gait. (Id.) Her grip strength was measured at 3 out of 5. (AR 259) 25 Dr. Nichols assessed Simpsonâs limitations and capacity and found that she could: 26 stand and/or walk for a maximum of 4 hours of an 8 hour work day; sit for a maximum of 27 6 to 8 hours of an 8 hour work day; lift 20 pounds occasionally and 10 pounds frequently; 28 occasionally climb, stoop, kneel, crouch, crawl, and reach; frequently handle, finger and-6-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 7 of 22 1 feel objects; and lacked the ability to work around heights, moving machinery or 2 temperature extremes. (AR 260-261) 3 4. Melissa Linner, M.D. 4 In August 2009, consultative examining physician Melissa Linner also examined 5 Simpson in connection with her prior application for benefits. Dr. Linner documented 6 that Simpson reported showering and grooming herself, doing laundry and dishes and 7 other chores including yard work, and cooking simple meals. (AR 245) Simpson also 8 reported experiencing difficulty washing her hair due to neck and shoulder pain, and 9 having to avoid driving due to the sedating effect of her medication. (Id.) The doctor 10 noted that Simpson reported smoking three cigarettes a day. (Id.) Doctor Linner recorded 11 that Simpson experienced neck pain and decreased right lateral neck rotation on the right 12 side, shoulder pain and decreased right shoulder motion, but otherwise exhibited a normal 13 range of motion. (AR 247-248) 14 Dr. Linner assessed Simpson with the following limitations during an 8 hour work 15 day: 6 to 8 hours maximum standing and/or walking capacity; 6 to 8 hours sitting capacity; no limitation in her left upper extremity; 20 pounds occasional and 10 pounds 16 frequent lifting with her right upper extremity; unrestricted climbing, stooping, kneeling, 17 crouching, and crawling; occasional reaching, handling, fingering and feeling; and no 18 overhead work. (AR 248-249) Dr. Linner assessed no environmental restrictions for 19 Simpson. (AR 250) 20 5. Imaging reports and related tests 21 In November 2007, an MRI was conducted on Simpsonâs right shoulder, 22 indicating no tears, but finding "calcific tendinopathy involving the supraspinatus tendon 23 near its insertion at the humerus," "[te]ndinopathy without calcification at the long head 24 biceps tendon[,]" and "moderate findings of degenerative disease at [the] 25 acromioclavicular joint. â¦ [E]ffacement might result in clinical'impingement,â and 26 appropriate correlation should be made." (AR 312) 27 Simpson underwent an MRI imaging of her cervical spine on June 22, 2007. (AR 28 310-311) The imaging was summarized as follows:-7-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 8 of 22 1 Current examination demonstrates small midline protrusion of disc at C4-5; 2 moderate, broad midline to right parasagittal protrusion of disc and osteophyte at C5-6; moderate left parasagittal to intraforaminal protrusion 3 of disc and osteophyte at C6-7; and a moderate midline to slight left parasagittal protrusion of disc at C7-T1. 4.... 5 Bony appearance is normal. No fracture or other focal lesion is seen. Marrow space signal intensity is normal throughout. Vertebral body stature 6 is normal. There is no malalignment of the cervical spine. There is diffuse, 7 moderate degenerative disease broadly involving mid-to-lower cervical spine. 8 9 (AR 310) 10 An additional MRI was performed of Simpsonâs cervical spine on December 12, 2008. (AR 230-231) The findings included: (1) "C4-C5-Some mild osteophytic 11 formation laterally. In the very central portion, there is a small focal disc osteophyte 12 complex which effaces the thecal sac, but does not abut the cord"; "C5-C6-Prominent 13 marginal osteophytes. Right paracentral disc protrusion extends laterally into the right 14 lateral recess combined with some osteophytic formation. This effaces the right side of 15 the thecal sac and causes a significant right-sided foraminal narrowing"; "C6-C7 â 16 Rather large disc osteophyte complex extending into the right lateral recess causing right-17 sided foraminal narrowing. Less disc osteophytic material on the right, but effacing the 18 thecal sac here as well and narrowing the foramina"; and "C7-T1 â There is an extruded 19 disc extending up the C7 vertebral body and down the T1 vertebral body. This effaces the 20 thecal sac. It comes near the cord, but does not appear to abut it. There is a broad-based 21 component that extends into the lateral recesses where there is osteophytic formation." 22 (AR 230-231) The reviewerâs impression was of "rather prominent disc disease in the 23 lower cervical spine as described above." (AR 231) 24 In August 2009, x-rays of Simpsonâs lumbosacral spine indicated "some minor 25 degenerative disc disease  at L2-L3 and L3-L4 and L4-L5, some facet hypertrophy is 26 seen at L5-S1. The foramina remain patent. Disc spaces are appropriate. The surrounding 27 soft tissues are within normal limits." The reviewer concluded that the images revealed 28-8-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 9 of 22 1 "mild degenerative disc changes" and "degenerative changes of the facets at L5-S1." (AR 2 243) 3 On January 12, 2011, Simpson underwent chest x-rays which indicated an 4 "unremarkable study" except some "calcification involving the supraspinatus tendon." 5 (AR 300) 6 In July 2012, Simpson underwent electromyographic examination at the Phoenix 7 Neurological Institute. (AR 418-420) This examination was performed subsequent to 8 Simpsonâs complaints of "numbness and tingling of both upper and lower extremities[,]" 9 and the "possibility of peripheral neuropathy and/or cervical and lumbosacral 10 radiculopathy[.]" (AR 420) The impressions of this testing indicated peripheral 11 neuropathy in Simpsonâs lower extremities, but also that there was "no 12 electrophysiological data to support lumbosacral radiculopathy C2 through T1 or 13 lumbosacral radiculopathy L2 through S2 bilaterally." (Id.) 14 C. Non-examining Physiciansâ Assessments 15 Non-examining State agency consultant Donald Robins, M.D. provided an initial review of Simpsonâs file associated with her application. (AR 72-88) Non-examining 16 State agency consultant Donald Baldwin, M.D. provided an additional file review on 17 reconsideration of the application. (AR 89-102) Each doctor signed a disability 18 determination of "not disabled." Neither of these opinions was addressed substantively in 19 the ALJâs decision. 20 II. STANDARD OF REVIEW 21 Under 42 U.S.C. Â§ 405(g), this court must affirm the Commissionerâs decision to 22 adopt the ALJâs findings if his findings are supported by substantial evidence and are free 23 from reversible error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). "Substantial 24 evidence is more than a mere scintilla, but less than a preponderance." Tidwell v. Apfel, 25 161 F.3d 599, 601 (9th Cir. 1998). "It is'such relevant evidence as a reasonable mind 26 might accept as adequate to support a conclusion.â" Richardson v. Perales, 402 U.S. 389, 27 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). 28-9-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 10 of 22 1 In determining whether substantial evidence supports the ALJâs decision, the court 2 considers the record as a whole, weighing both the evidence that supports and that which 3 detracts from the ALJâs conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 4 1988). The ALJ is responsible for resolving conflicts in medical testimony, ambiguity in 5 the record, and determining credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 6 1995). If there is sufficient evidence to support the ALJâs outcome, the Court cannot 7 substitute its own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 8 1990). Although the Court "must do more than merely rubberstamp the ALJâs 9 decision[,]" Winans v. Bowen, 853 F.2d 643, 645 (9th Cir. 1988), where the evidence is 10 susceptible to more than one rational interpretation, the ALJâs decision must be upheld. 11 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (citations omitted). 12 III. LEGAL STANDARDS 13 Simpson bears the burden of proving disability under the Social Security Act. 14 Tidwell v. Apfel, 161 F.3d at 601. She meets this burden if she can establish that she has a 15 physical or mental impairment that prevents her from engaging in any substantial gainful 16 activity and that is expected to result in death or to last for a continuous period of at least 17 one year. 42 U.S.C. Â§Â§ 423(d)(1) and 1382c(a)(3)(A). Simpsonâs impairments must be 18 such that she is not only unable to perform her past relevant work, but also that she 19 cannot, considering her age, education and work experience, engage in other substantial 20 gainful work existing in the national economy. Id. at Â§Â§ 423(d)(2) and 1382c (a)(3)(B). 21 The Commissioner applies a five-step sequential process to evaluate disability. 20 22 C.F.R. Â§Â§ 404.1520 and 416.920. In the first three steps, the Commissioner determines: 23 (1) whether a claimant has engaged in substantial gainful activity since the alleged onset; 24 (2) whether she has a "severe" impairment or a combination of impairments that is 25 "severe"; and (3) whether the severity of any impairment meets or equals the severity of 26 any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Id. 27 If a claimant complies with these three steps, she will automatically be found disabled; if 28 that claimant satisfies steps one and two but not three, she must then satisfy step four. Id.-10-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 11 of 22 1 Before considering step four, the ALJ must assess the claimantâs residual 2 functional capacity ("RFC"), see 20 C.F.R. Â§ 404.1520(a)(4)(iv), which is "the most [the 3 claimant] can still do despite [the claimantâs] limitations." Treichler v. Commâr of Soc. 4 Sec. Admin., 775 F.3d 1090, 1097 (9th Cir. 2014) (quoting 20 C.F.R. Â§ 404.1545(a)(1)). 5 The RFC assessment is "based on all the relevant medical and other evidence" in the 6 claimantâs record. Id. (quoting 20 C.F.R. Â§ 404.1520(e)). In determining a claimantâs 7 RFC, the ALJ must consider all of a claimantâs medically determinable impairments, 8 including those that are not severe. 20 C.F.R. Â§ 404.1545(a)(2). 9 At step four, the ALJ considers the claimantâs RFC and past relevant work. 20 10 C.F.R. Â§ 404.1520(a)(4)(iv). If a claimant is able to perform her past relevant work, she is 11 not found to be disabled. Id. 12 When a claimant satisfies step four, the burden shifts from her to the 13 Commissioner to establish the claimant is capable of performing work in the national 14 economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (claimant bears the 15 burden of proof on the first four steps, but the burden shifts to the Commissioner at step 16 five). The fifth and final step involves the ALJâs decision whether a claimant is able to 17 make an adjustment to other work, given the ALJâs assessment of the claimantâs RFC 18 and age, education and work experience. 20 C.F.R. Â§ 404.1520(a)(4)(v). 19 IV. ADMINISTRATIVE HEARING 20 At her June 19, 2014 hearing, Simpson testified that as of her amended onset date 21 of February 2, 2012, neuropathy in her legs made it hard to walk or stand for a long time. 22 (AR 38) She also averred she had a lot of problems with her right arm to the extent that 23 she could not "pick up hardly anything at all." (Id.) She explained that she was right-24 handed. (Id.) Additionally, Simpson testified she suffered from two herniated discs and a 25 bulging disc in her neck that "hurt all the time." (Id.) She stated she lacked feeling in two 26 fingers on her right hand, and that it wasnât as bad in February 2012 as it was at the time 27 of the hearing. (AR 38-39) She stated that her general health had worsened since 28-11-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 12 of 22 1 February 2012 and noted that neuropathy in her legs had progressed and had degraded 2 her ability to stand and walk. (AR 39) 3 On questioning by the ALJ, Simpson estimated she saw her primary care 4 physician, Dr. Hastings, approximately every two months in 2012, but that she later saw 5 him about every six months, because she could not afford to see him more frequently. 6 (AR 40) Simpson said she did not know if Dr. Hastings would like to see her more often 7 than every six months. (AR 41) When asked what Dr. Hastings was doing to help her 8 with her neuropathy, right arm issues and neck pain, Simpson answered that he had her 9 on a prescription for Klonopin (an anti-seizure and anxiety medicine) and another for 10 Primidone (an anticonvulsant). (Id.) She stated that these medications werenât helping, 11 but that Dr. Hastings urged her to "just keep trying and see." (Id.) Simpson explained that 12 Dr. Hastings added "a bunch of other [medications] but it ended up putting [her] in the 13 hospital in a coma for a week." (Id.) 14 Simpson stated she had suffered from asthma since 2013 and that she was 15 attempting to quit smoking, and was down to one or two cigarettes a day. (AR 43) She 16 further explained that after her hospital stay in January 2014 for polypharmacy, she was 17 advised to consult with a cardiologist and an orthopedic surgeon. (AR 44) She said Dr. 18 Hastings told her "we are going to wait on that." (Id.) 19 When asked if she had difficulty doing any activities of daily living, Simpson 20 mentioned trouble with zippers, buttons, and combing her hair. (AR 48) She also said it 21 took her "forever" to do housecleaning because she had to stop and sit down for a while. 22 (AR 49) She said she also needed to rest when walking from the kitchen to the bedroom, 23 but that she could probably walk for 15 to 20 minutes before having to rest for another 15 24 or 20 minutes before walking again. (AR 50) She explained that she could stand for 30 25 minutes at a time before having to take a break. (Id.) When asked how long she could sit 26 without having to take a break, she said she did not know. (Id.) Simpson said she could 27 lift and carry 10 to 15 pounds, which was a reduction in ability since early 2013. (AR 50-28-12-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 13 of 22 1 51) She testified she did not know how much weight she could lift and carry with her left 2 arm, but stated it was not more than she could manage with her right arm. (AR 51) 3 The ALJ confirmed that Simpsonâs last reported income was in 1996, but that she 4 had been paid to provide some in-home care for an ill woman in 2007 and 2008. (AR 51-5 52) 6 When the ALJ asked Simpson to rate her pain generally, she estimated it was a 9 7 out of 10. (AR 52) The ALJ then asked her if she had ever been hospitalized due to her 8 pain and she said she wasnât sure. (Id.) When the ALJ asked Simpson how many times 9 she had been hospitalized since February 2, 2012, she said she could not answer that. (AR 10 53) 11 ALJ Reyes noted that the record indicated Simpson underwent a nerve conduction 12 study in July 2012, which suggested peripheral neuropathy in her lower extremities but 13 normal results in her upper extremities. (Id.) Simpson detailed that she lacked feeling in 14 the right side of her right hand, and that she could feel a little bit in her pinky and ring 15 fingers, and half of her middle finger. (AR 57) She said the lack of feeling in her hand 16 began after her polypharmacy related coma in January 2014, but that she had been 17 suffering numbness in her right arm since as early as 2011. (Id.) On questioning by her 18 counsel, Simpson explained that she could not sit through dinner without having to get up 19 and move. (Id.) She noted she could only ride in a car for an hour and a half without 20 having to stop and move around to alleviate her leg numbness. (AR 58) Simpson testified 21 she took care of herself at home because her husband was not there and that she did 22 laundry, but it "takes me a while." (AR 59) 23 The ALJ posed a hypothetical question to the Vocational Expert ("VE") regarding 24 a 50 year old individual with a high school education who: could stand and walk 4 out of 25 8 hours; sit for 6 out of 8 hours; occasionally lift 20 pounds; frequently lift 10 pounds; 26 could not use ladders, ropes, or scaffolds; could occasionally use ramps or stairs or a 27 stepstool; could occasionally stoop, kneel, crouch, crawl, and reach; could frequently 28 handle, finger or feel; must avoid concentrated exposure to hazards, dust, fumes, gasses,-13-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 14 of 22 1 noxious chemicals, poor ventilation or the like; could concentrate for 2 hours at a stretch 2 in an 8 hour work day with the customary two breaks of 10 to 15 minutes each and the 3 customary 30 to 60 minute lunch break; and could not work in a fast paced production 4 environment. (AR 62-64) 5 The VE stated there was an available position in large national numbers fitting the 6 RFC identified by the ALJ in his hypothetical question, which was a furniture rental 7 consultant, a light, unskilled job. (AR 66) The VE said she thought that sometimes this 8 position could require some ability to provide basic decorating advice about "putting a 9 room together" and perhaps moving furniture in the showroom. (AR 67) Simpsonâs 10 counsel did not question the VE. (AR 69, 70-71) 11 V. ALJâs DECISION 12 In his unfavorable decision, ALJ Reyes found that Simpson had not engaged in 13 substantial gainful employment since February 2, 2012, her amended alleged onset of 14 disability date. (AR 21) The ALJ found that Simpson suffered from the following severe 15 impairments: degenerative disc disease of the cervical spine, sensory motor peripheral 16 neuropathy involving the lower extremities, and asthma. (Id.) At Step 3 of the sequential 17 decision process, the ALJ found that none of Simpsonâs impairments, either singly or 18 combined, met or equaled the severity of a listed impairment. (AR 14-15) 19 The ALJ also found that Simpson retained the residual functional capacity to 20 perform light work as defined in 20 C.F.R. 416.967(b), with the limitations he posed in 21 his hypothetical question to the VE at hearing, described above in Section IV. (AR 23) 22 At Step 4, the ALJ concluded that Simpson had no past relevant work. (AR 24) 23 The ALJ then found the record supported a finding that there were jobs existing in 24 significant numbers in the national economy that Simpson could perform, given his 25 assessment of her RFC and age, education and work experience. (AR 25) He listed the 26 position of furniture rental consultant. (Id.) 27 28-14-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 15 of 22 1 VI. DISCUSSION 2 Simpson contends the ALJ erred when he: (1) improperly rejected Simpsonâs 3 symptom testimony; (2) rejected Dr. Hastingsâ assessments of Simpsonâs limitations; and 4 (3) posed a hypothetical question to the vocational expert that did not reflect all of 5 Simpsonâs limitations. (Doc. 19 at 1, 19) 6 A. ALJâs rejection of Simpsonâs symptom testimony 7 In his evaluation of Simpsonâs credibility as to her subjective symptoms, the ALJ 8 must apply the two-step analysis described in Lingenfelter v. Astrue, 504 F.3d 1028, 9 1035-36 (9th Cir. 2007). Initially, the ALJ "must determine whether the claimant has 10 presented objective medical evidence of an underlying impairment which could 11 reasonably be expected to produce the pain or other symptoms alleged." Id. at 1036 12 (citation and internal quotation marks omitted). If the claimant meets the first test and 13 there is no evidence of malingering, "the ALJ can reject the claimantâs testimony about 14 the severity of her symptoms only by offering specific, clear and convincing reasons for 15 doing so." Id. (citation and internal quotation marks omitted). "General findings are 16 insufficient; rather, the ALJ must identify what testimony is not credible and what 17 evidence undermines the claimantâs complaints." Lester v. Chater, 81 F.3d 821, 834 (9th 18 Cir. 1995). 19 The Ninth Circuit has further instructed that 20 once a claimant produces objective medical evidence of an underlying 21 impairment, an [ALJ] may not reject a claimant's subjective complaints 22 based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain." Bunnell v. Sullivan, 947 F.2d 341, 345 (9th 23 Cir. 1991) (en banc). If the ALJ finds the claimant's pain testimony not to 24 be credible, the ALJ "must specifically make findings that support this conclusion," and the findings "must be sufficiently specific to allow a 25 reviewing court to conclude the [ALJ] rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit [the] claimant's 26 testimony." Id. at 345 (internal quotation marks omitted).... While 27 subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is 28-15-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 16 of 22 1 still a relevant factor in determining the severity of the claimant's pain and 2 its disabling effects. 20 C.F.R. Â§ 404.1529(c)(2). Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001). 3 ALJ Reyes provided substantial evidence to support clear and convincing reasons 4 for his adverse credibility determination. The ALJ noted that when he asked Simpson 5 whether she had been advised to seek a neurological or orthopedic consultation to see if 6 surgery would help her, she answered that she had been advised to see a cardiologist and 7 an orthopedic surgeon. (AR 44) The ALJ found it significant that, in fact, "a neurologist 8 had evaluated [Simpson] in July 2012" and that "[d]espite her assertions to the contrary, 9 the neurologist did not find any electrophysiological evidence of radiculopathy involving 10 any of her extremities." (AR 24) ALJ Reyes concluded that "there was no objective 11 clinical evidence to support [Simpsonâs] claims of upper extremity weakness or loss of 12 sensation," but noted that there was "electrophysiological evidence of sensory motor 13 peripheral neuropathy in [Simpsonâs] lower extremities." (Id.) 14 The ALJ engaged in the following colloquy with Simpson at the hearing: 15 Q. Mm-hmm, now you were mentioning the pain in various places. 16 Where are you generally on what is called the 10-point pain scale with one 17 being just a little bit of pain and 10 being the worst pain imaginable such 18 that you must get to a doctor or a hospital immediately? In fact, it[s] 19 probably the kind of pain that knocks you. I mean, youâre in such agony. 20 Where are you generally on that 10-point pain scale? 21 A. A nine. 22 Q. Since February 2nd of 2012, until now, have you ever had to be 23 hospitalized because of pain? 24 A. I am not sure. 25 (AR 52) ALJ Reyes concluded that Simpsonâs reports of her daily activities were 26 inconsistent with her assessment of her general pain level. (AR 24) The ALJ referenced 27 Simpsonâs husbandâs statement to physicians at Scottsdale Healthcare, where she was 28 treated for her coma in January 2014, that she "is usually very sharp, able to do her own-16-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 17 of 22 1 activities of daily living, although this has been somewhat limited secondary to chronic 2 pain." (AR 24, 886) The ALJ also referenced Simpsonâs testimony that she "is able to 3 perform her own [activities of daily living] unassisted, perform light housework such as 4 laundry and vacuuming, cook meals, as well as engage in gardening, and light yard work." 5 (AR 24) 6 Finally, the ALJ observed that Simpson presented an "extremely poor work 7 history" with only a combined 8 years of coverage and annual income of less than $7,000 8 in any single year. (Id.) He then concluded that Simpsonâs "poor propensity to work 9 during her lifetime negatively affects her credibility concerning her reported inability to 10 work." (Id.) 11 Simpsonâs argues the ALJ improperly found she was not disabled as of her alleged 12 onset date because she "did acknowledge having been told she needed a referral to a 13 neurologist and a cardiologist and an orthopedic surgeon" and cites to the transcript of the 14 hearing at AR 44. (Doc. 19 at 18, emphasis in original) She cites evidence from her 15 medical record to support her claim that she has difficulty using her arms and hands. (Id.) She also contends the ALJ erred by equating her "inability to work due to disability with 16 an unwillingness to work." (Id., emphasis in original) 17 The transcript of Simpsonâs hearing is clear that when questioned by the ALJ, 18 Simpson in fact did not acknowledge she had been referred to a neurologist. (AR 44) 19 Moreover, Simpson chose not to address the credibility of her hearing testimony that her 20 general pain rating was a 9 of 10. (AR 52) And while the ALJâs RFC for Simpson 21 included limitations to address his conclusion that she could not perform the full range of 22 light work (AR 25), he relied on substantial evidence, such as her activities of daily living 23 and the July 2012 neurological assessment performed by neurologist Dr. Charanjit Dhillon 24 to conclude that she was capable of doing more than she reported. (AR 350-358, 418-420) 25 The ALJ permissibly found that Simpsonâs "poor work history" diminished her credibility 26 regarding her reports of being unable to work. Light v. Soc. Sec. Admin., 119 F.3d 789, 27 792 (9th Cir. 1997); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 28-17-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 18 of 22 1 The earnings records for Simpson show that she reported: (1) income between 2 $3,000 and $6,250 in the years 1981, 1983, 1985, 1986, 1995 and 1996; (2) income of less 3 than $1,500 in 1982, 1984, 1987-1989, and 1994; and no income in 1990-1993 or in 1997-4 2013. (AR 173-174) Simpson contends that the ALJ confused her "inability to work due 5 to a disability" with a perceived "unwillingness to work[.]" (Doc. 19 at 18) Yet she 6 provides no evidence of such an inability to work for most of her career. Simpson reported 7 to Dr. Reyes in August 2009 that she was diagnosed with neuropathy and neuritis in 2003, 8 with arthritis and tremors in 2004, and with neuralgia in 2007. (AR 234) She further 9 reported to Dr. Reyes that she "liked playing sports" and that her "enjoyable activities had 10 declined since 2005 due to pain." (Id.) In light of this evidence, the ALJâs conclusion that 11 Simpson demonstrated a "poor propensity" for employment over her lifetime was 12 reasonable, supported by substantial evidence, and a proper basis for discounting 13 Simpsonâs "credibility regarding her inability to work." Thomas, 278 F.3d at 959. 14 Although the evidence might support other conclusions, 15 [t]he inquiry here is whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions 16 reached by the ALJ. Richardson v. Perales, 402 U.S. at 401; Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982). Where evidence is 17 susceptible of more than one rational interpretation, it is the ALJ's 18 conclusion which must be upheld, Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir.1971); and in reaching his findings, the ALJ is entitled to draw 19 inferences logically flowing from the evidence. Beane v. Richardson, 457 20 F.2d 758 (9th Cir.), cert. denied, 409 U.S. 859 (1972). 21 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). The Ninth Circuit has 22 additionally instructed that "[w]hen evidence reasonably supports either confirming or 23 reversing the ALJ's decision, we may not substitute our judgment for that of the ALJ." 24 Tackett, 180 F.3d at 1098. Here, the ALJ properly assessed the credibility of Simpsonâs 25 symptom testimony, see, e.g., Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014), and 26 provided clear and convincing reasons supported by substantial evidence to discount that 27 testimony. 28-18-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 19 of 22 1 B. Whether the ALJ improperly rejected the opinion of Dr. Hastings 2 Simpson argues that ALJ Reyes erred by discounting the RFC Questionnaire 3 opinion of her treating primary care physician, Dr. Hastings. (Doc. 19 at 10-15) The ALJ 4 accorded less weight to Dr. Hastingsâ functional assessment because: (1) the neurological 5 testing performed by Dr. Dhillon "found little objective clinical evidence to support 6 [Simpsonâs] reported problems with her arm(s)"; (2) he concluded that Simpsonâs 7 activities of daily living "suggest a higher level of function than what [Dr. Hastings] 8 identified in his report"; (3) "Dr. Hastingsâ treatment regimen has been relatively 9 conservative in nature and he appears to have relied substantially upon [Simpsonâs] less 10 than credible subjective complaints"; and (4) even though the record documents 11 degenerative disc disease in Simpsonâs cervical spine, "there is no indication that he 12 entertained a referral to a specialist in orthopedics or considered whether surgical 13 intervention might be appropriate." (AR 24) Additionally, the ALJ concluded that "[a] 14 close review of Dr. Hastingsâ day-to-day treatment notes also do[es] not support the 15 severity of her reported headaches, or daily pain levels." (Id.) Because treating doctors are employed to cure and have a greater opportunity to 16 know and observe the patient as an individual, their opinions are generally given 17 greater weight than the opinions of other physicians. Rodriguez v. Bowen, 876 F.2d 759 18 (9th Cir. 1989). A treating physicianâs opinion that is consistent with the medical 19 evidence will be given controlling weight, and even if it is inconsistent with the 20 medical evidence, it is still entitled to deferential treatment. (Id.) However, the weight 21 accorded a treating physicianâs opinion depends on whether it is supported by sufficient 22 medical data and is consistent with the record. See 20 C.F.R. Â§ 404.1527(d)(2). If a 23 treating physicianâs opinion is "inconsistent with other substantial evidence in the 24 record" or "is not well supported," it should not be accorded controlling weight. Orn v. 25 Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 26 The Commissioner is responsible for determining whether a claimant meets the 27 statutory definition of disability, and need not credit a physician's conclusion that the 28 claimant is "disabled" or "unable to work." 20 C.F.R. Â§ 404.1527(d)(1). An ALJ is not-19-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 20 of 22 1 required to give controlling weight to the opinion of a treating physician. "Although a 2 treating physician's opinion is generally afforded the greatest weight in disability cases, it 3 is not binding on an ALJ with respect to the existence of an impairment or the ultimate 4 determination of disability." Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). 5 "The ALJ may disregard the treating physician's opinion whether or not that opinion is 6 contradicted." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989). 7 Where there is conflicting physician testimony, an ALJ can reject a treating 8 physicianâs opinion by providing "specific and legitimate" reasons for such rejection. 9 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (quoting Lester, 81 F.3d at 830-31). An ALJ 10 will meet this burden by providing a "detailed and thorough summary of the facts and 11 conflicting clinical evidence" and by indicating his interpretation of this evidence, along 12 with his findings. Id. (citation omitted). As is discussed in Sections I.B.1 and I.B.3 13 above, there is a conflict between the functional assessment opinions of Dr. Nichols (AR 14 256-262) and Dr. Hastings (AR 422-424). Accordingly, the ALJ needed to provide 15 "specific and legitimate reasons" for discounting or rejecting Dr. Hastingsâ opinion, rather than more stringent "clear and convincing reasons," standard that Simpson 16 mistakenly asserts should apply (Doc. 19 at 15). 17 Dr. Nichols examined Simpson and made detailed notes of his independent 18 physical examination. (AR 258-259) Among the findings of his exam of Simpson were 19 that: "toe, heel, hopping, squatting, and Romberg tests were all normal"[;] she displayed 20 "normal" range of motion in her hips, knees, ankles, shoulders, elbows, wrists and fingers, 21 but a limited range of motion in her neck; she exhibited good muscle tone in her upper and 22 lower extremities; her grip was a 3 of 5 in both hands; and she displayed "decreased 23 sensation of her right third finger and absent sensation of her fourth and fifth finger. She 24 has decreased sensation of her left fifth finger." (AR 259) Dr. Nichols also reviewed 25 Simpsonâs MRI of her cervical spine taken in December 2008. (AR 259-260) The ALJ 26 found that Dr. Nicholsâ functional assessment of Simpson was "generally consistent and 27 well supported by the objective clinical evidence record." (AR 24) 28-20-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 21 of 22 1 Moreover, incongruity between a treating physicianâs medical assessment on 2 disability and the patientâs medical records may provide a specific and legitimate reason 3 for rejecting the treating physicianâs opinion on her patientâs limitations. Tommasetti, 533 4 F.3d at 1041. Dr. Dhillonâs neurological assessment that there was no 5 "electrophysiological data to support lumbosacral radiculopathy C2 through T1 or 6 lumbosacral radiculopathy L2 through S2 bilaterally" represented such an incongruity, on 7 which the ALJ could reasonably rely. Additionally, because the Court concludes that the 8 ALJ properly discounted Simpsonâs credibility as to her complaints, the ALJ also could 9 discount Dr. Hastingsâ opinion to the extent that the opinion relies on Simpsonâs 10 subjective complaints. See Morgan v. Commâr of Soc. Sec. Admin., 169 F.3d 595, 602 (9th 11 Cir. 1999). 12 Even where a reason given by the ALJ in support of his decision to discount Dr. 13 Hastingsâ assessment of Simpsonâs RFC is error, if there is substantial evidence 14 supporting the ALJâs decision, and the error "does not negate the validity of the ALJâs 15 ultimate conclusion[,]" the error may be considered harmless. Batson v. Commâr of Soc. 16 Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004); see also Carmickle v. Commâr of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (in turn citing Stout v. Commâr of Soc. 17 Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) for the definition of harmless error "as 18 such error that is'inconsequential to the ultimate nondisability determinationâ"). 19 As detailed above, the ALJ provided legitimate and specific reasons based on 20 substantial evidence for discounting Dr. Hastingsâ opinions. Ghanim, 763 F.3d at 1162. 21 C. Whether the ALJâs hypothetical question to the VE was invalid 22 Simpson contends that ALJ Reyes erred in presenting the hypothetical question he 23 posed to the VE because he omitted limitations assessed by Dr. Hastings in the doctorâs 24 RFC Questionnaire. (Doc. 19 at 19) She argues that the failure to accept Dr. Hastingsâ 25 limitations stripped the VEâs testimony of all evidentiary value. (Id.) However, it is proper 26 for an ALJ to only include in a hypothetical question to a VE the limitations the ALJ finds 27 "credible and supported by substantial evidence in the record." Bayliss v. Barnhart, 427 28 F.3d 1211, 1217-18 (9th Cir. 2005) (citing Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th-21-Case 3:16-cv-08023-DMF Document 21 Filed 03/14/17 Page 22 of 22 1 Cir. 1989)). In his decision, ALJ Reyes stated that the RFC he applied to Simpson 2 "considered all symptoms and the extent to which these symptoms can reasonably be 3 accepted as consistent with the objective medical evidence and other evidence, based on 4 the requirements of 20 CFR 416.929 and SSRs 96-4p and 96-7p." Because the ALJ 5 permissibly discounted or rejected evidence Simpson argues should have supported 6 additional limitations, the hypothetical he provided to the VE was not erroneous. 7 Moreover, it bears noting that Simpson was represented by counsel at the hearing, 8 and this counsel declined to pose any additional hypothetical questions to the VE that 9 included the additional limitations Simpson now complains the VE should have 10 considered in rendering his opinions. 11 VII. CONCLUSION 12 Because the ALJâs decision is supported by substantial evidence and is free of 13 harmful legal error, the Court affirms the Commissionerâs decision. 14 Accordingly, 15 IT IS ORDERED that the decision of the Commissioner of Social Security is AFFIRMED. 16 17 IT IS FURTHER ORDERED that the Clerk of Court shall enter a separate 18 judgment accordingly. 19 Dated this 14th day of March, 2017. 20 21 22 Honorable Deborah M. Fine 23 United States Magistrate Judge 24 25 26 27 28-22-
CLERK'S JUDGMENT - IT IS ORDERED AND ADJUDGED that pursuant to the Court's Order filed March 14, 2017, the Decision of the Commissioner of Social Security is AFFIRMED and this action is hereby terminated.
Case 3:16-cv-08023-DMF Document 22 Filed 03/14/17 Page 1 of 1 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Peggy Ilene Simpson, NO. CV-16-08023-PCT-DMF 10 Plaintiff, JUDGMENT IN A CIVIL CASE 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Decision by Court. This action came for consideration before the Court. The 16 issues have been considered and a decision has been rendered. 17 IT IS ORDERED AND ADJUDGED that pursuant to the Courtâs Order filed 18 March 14, 2017, the Decision of the Commissioner of Social Security is AFFIRMED and 19 this action is hereby terminated. 20 Brian D. Karth District Court Executive/Clerk of Court 21 22 March 14, 2017 s/Kenneth G. Miller 23 By Deputy Clerk 24 25 26 27 28
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