FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Apr 24, 2020
UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON LISA V., No. 2:19-cv-00214-SMJ Plaintiff, ORDER GRANTING PLAINTIFF’S v. MOTION FOR SUMMARY COMMISSIONER OF SOCIAL COMMISSIONER’S MOTION
Defendant.
Plaintiff Lisa V. appeals the Administrative Law Judge’s (ALJ) denial of her application for Supplemental Security Income (SSI) benefits. She alleges the ALJ (1) improperly evaluated the opinions of an examining physician, and (2) erred in discounting her own subjective symptom testimony. The Commissioner of Social Security (“Commissioner”) asks the Court to affirm the ALJ’s decision. Before the Court, without oral argument, are the parties’ cross-motions for summary judgment, ECF Nos. 10, 11. Upon reviewing the administrative record, the parties’ briefs, and the relevant authority, the Court is fully informed. For the reasons set forth below, the Court agrees with Plaintiff that the ALJ erred in evaluating both the medical opinion evidence and Plaintiff’s symptom testimony. Although these errors invalidated the ALJ’s conclusion that Plaintiff did not qualify for benefits, Plaintiff’s entitlement is not clear from the face of the record. Accordingly, the
Court grants Plaintiff’s motion for summary judgment, denies the Commissioner’s motion for summary judgment, and remands for further proceedings. BACKGROUND1
Plaintiff applied for benefits on December 19, 2016, alleging disability with an onset date of August 8, 2016. AR 165–66.2 The Commissioner denied Plaintiff’s application on January 24, 2017, see AR 59–66, and denied it again on reconsideration, see AR 68–80. At Plaintiff’s request, a hearing was held before
ALJ Mark Kim. AR 31–58. The ALJ denied Plaintiff benefits on September 12, 2018. AR 12–30. The Appeals Council denied Plaintiff’s request for review on May 13, 2019. AR 1–6. Plaintiff then appealed to this Court under 42 U.S.C.
§ 405(g). ECF No. 1. A “disability” is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to
1 The facts, thoroughly stated in the record and the parties’ briefs, are only briefly summarized here. 2 References to the administrative record (AR), ECF No. 7, are to the provided page numbers to avoid confusion. last for a continuous period of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The decision-maker uses a five-step sequential
evaluation process to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step one assesses whether the claimant is engaged in substantial gainful
activities. If he is, benefits are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If he is not, the decision-maker proceeds to step two. Step two assesses whether the claimant has a medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant
does not, the disability claim is denied. If the claimant does, the evaluation proceeds to the third step. Step three compares the claimant’s impairment with a number of listed
impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404 Subpt. P App. 1, 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment does not, the
evaluation proceeds to the fourth step. Step four assesses whether the impairment prevents the claimant from performing work he has performed in the past by examining the claimant’s residual
functional capacity, or RFC. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant is able to perform his previous work, he is not disabled. If the claimant cannot perform this work, the evaluation proceeds to the fifth step.
Step five, the final step, assesses whether the claimant can perform other work in the national economy in view of his age, education, and work experience. 20 C.F.R. §§ 404.1520(f), 416.920(f); see Bowen v. Yuckert, 482 U.S. 137 (1987).
If the claimant can, the disability claim is denied. If the claimant cannot, the disability claim is granted. The burden of proof shifts during this sequential disability analysis. The claimant has the initial burden of establishing a prima facie case of entitlement to
disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). The burden then shifts to the Commissioner to show (1) the claimant can perform other substantial gainful activity, and (2) that a “significant number of jobs exist in the
national economy,” which the claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). A claimant is disabled only if his impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experiences, engage in any other
substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged onset date of August 6, 2016. AR 17. At step two, the ALJ found that Plaintiff had three medically determinable
severe impairments: cerebrovascular accident, left eye trochlear nerve palsy, and antiphospholipid antibody syndrome. Id. The ALJ found neither Plaintiff’s sleep apnea, which was aggravated by alcohol, nor her intermittent migraines were severe
impairments. AR 17–18. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. AR 18.
At step four, the ALJ found that Plaintiff had an RFC sufficient to perform a restricted range of light work as defined in 20 C.F.R. § 404.1567(b) with the following limitations:
[Plaintiff] can lift and carry a maximum of 10 pounds frequently and a maximum of 20 pounds occasionally. She can sit for a total of eight hours in an eight-hour workday with normal breaks. [Plaintiff] can stand and walk for a total of six hours in an eight-hour workday with normal breaks. She can never climb ladders, ropes, or scaffolds or balance. She can occasionally climb ramps and stairs. [Plaintiff] must avoid all exposure to workplace hazards, including dangerous moving machinery and unprotected heights. She can never drive. [Plaintiff] can read print, including that on bottles, computer screens, and paperwork, for a total of one hour during an eight-hour workday with normal breaks.
AR 18–19. In reaching this determination, the ALJ gave great weight to the opinions of Lynne Jahnke, M.D., AR 23. The ALJ gave only partial weight to the opinions of Gary Gaffield, D.O. AR 22. And the ALJ gave little weight to the opinions of state
agency psychological consultants not relevant here. Id. At step five, the ALJ found Plaintiff was unable to perform any past relevant work, but found she could find work as an office cleaner, small parts assembler, or
house sitter, each of which existed in substantial number in the national economy. AR 24. The Court must uphold an ALJ’s determination that a claimant is not disabled
if the ALJ applied the proper legal standards and there is substantial evidence in the record, considered as a whole, to support the ALJ’s decision. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (citing Stone v. Heckler, 761 F.2d 530, 531 (9th
Cir. 1985)). “Substantial evidence ‘means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id. at 1110 (quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). This must be more than a mere scintilla but may be less than a preponderance. Id.
at 1110–11 (citation omitted). If the evidence supports more than one rational interpretation, the Court must uphold an ALJ’s decision if it is supported by inferences reasonably drawn from the record. Id.; Allen v. Heckler, 749 F.2d 577,
579 (9th Cir. 1984). The Court will not reverse an ALJ’s decision if the errors committed by the ALJ were harmless. Molina, 674 F.3d at 1111 (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006)). “[T]he burden
of showing that an error is harmful normally falls upon the party attacking the agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
A. The ALJ erred in evaluating the medical opinion evidence
Plaintiff first contends the ALJ erred in attributing greater weight to the opinions of non-examining medical consultant Lynne Jahnke, M.D. than examining physician Gary Gaffield, D.O. ECF No. 10 at 4–9. The Commissioner argues the ALJ’s rejection of portions of Dr. Gaffield’s opinions was justified. ECF No. 11 at 15–19. For SSI appeal purposes, there are three types of physicians: “(1) those who
treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant [but who review the claimant’s file] (non-examining physicians).” Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (alteration in
original) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). Generally, a treating physician’s opinion carries more weight than an examining physician’s, and an examining physician’s opinion carries more weight than a non-examining
physician’s. Id. at 1202. “In addition, the regulations give more weight to opinions that are explained than to those that are not, . . . and to the opinions of specialists concerning matters relating to their specialty over that of nonspecialists.” Id.
(internal citations omitted). If a treating or examining physician’s opinion is uncontradicted, the ALJ may reject it only by offering “clear and convincing reasons that are supported by
substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). “If a treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81
F.3d at 830–31). But the ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory and inadequately supported by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,
1228 (9th Cir. 2009). Though the ALJ credited portions of Dr. Gaffield’s medical opinions, he assigned limited weight to Dr. Gaffield’s opinion that because Plaintiff had impaired balance, she should avoid all postural activities including bending,
stooping, kneeling, crouching, and crawling. AR 22. The ALJ concluded this opinion was entitled to reduced weight because it was not supported by substantial evidence elsewhere in the record, and because Dr. Gaffield’s “one-time physical
examination of [Plaintiff] would not have provided him with a detailed, longitudinal picture of the impairments sufficient to support the degree of postural limitation he assessed.” AR 22. In lieu of Dr. Gaffield’s postural limitations, the ALJ credited the
testimony of Dr. Jahnke, who assessed less severe restrictions. AR 22–23. The ALJ assigned Dr. Jahnke’s opinions great weight because she was “familiar with the requirements necessary to establish disability,” because her opinion was “based
upon review of and consistent with the complete [medical] record,” and because she “clearly explained the reasons for her opinion.” AR 23. At the hearing, Dr. Jahnke testified that impaired balance was “common for patients after a stroke,” and she felt it was “probable that [Plaintiff] has ongoing
impaired balance,” but noted that Dr. Gaffield’s findings were the only ones that discussed a concern with Plaintiff’s balance. AR 38–39. In opining as to Plaintiff’s RFC, Dr. Jahnke said “I will sort of include the balance issue,” though she again
noted only Dr. Gaffield’s examination mentioned balance. AR 39. The Commissioner appears to contend that Dr. Gaffield’s opinions were contradicted by these statements from Dr. Jahnke, and thus that the ALJ needed only provide “specific and legitimate reasons that are supported by substantial evidence” to reject
them. Bayliss, 427 F.3d at 1216. But Dr. Jahnke nowhere disagreed with Dr. Gaffield’s assessment of Plaintiff’s balance, nor did she express any concern with the basis for his opinions;
rather she simply noted that they were uncorroborated. The ALJ did not find that Dr. Gaffield’s opinions were “brief, conclusory [or] inadequately supported by clinical findings,” and the record would not, in any event, support that conclusion.
Bray, 554 F.3d at 1228; see also AR 458–63 (Dr. Gaffield’s report). Accordingly, as to the issue of Plaintiff’s balance, the ALJ could only reject Dr. Gaffield’s opinion by offering “clear and convincing reasons that are supported by substantial
evidence.” Bayliss, 427 F.3d at 1216. Having reviewed the record, the Court finds the ALJ failed to do so. As noted above, it does not appear that Dr. Gaffield’s opinion concerning Plaintiff’s balance was contradicted in the objective medical record or at the hearing. AR 22. Rather,
the ALJ simply found his opinion was uncorroborated. Id. But that is not an independently sufficient basis to reject a physician’s opinion. See Bullock v. Apfel, No. C-98-4702-VRW, 2000 WL 52321, at *4 (N.D. Cal. Jan. 13, 2000) (citing Day
v. Weinberger, 522 F.2d 1154, 1156–57 (9th Cir. 1975)). Dr. Gaffield’s opinion that Plaintiff’s balance was impaired was neither brief nor conclusory and was based on his own clinical evaluation of Plaintiff. Moreover, that opinion was in fact buttressed by Dr. Jahnke, who testified that impaired balance was common for
stroke victims. AR 38–39. Particularly where no other doctor attempted to evaluate Plaintiff’s balance, the mere fact that Dr. Gaffield’s findings were uncorroborated was not a clear and convincing reason to reject Dr. Gaffield’s opinions.
The ALJ also concluded that Dr. Gaffield’s “one-time physical examination of [Plaintiff] would not have provided him with a detailed, longitudinal picture of the impairments sufficient to support the degree of postural limitation he assessed.”
AR 22. That a physician’s opinion is premised on a single clinical examination could constitute a valid basis to assign it reduced weight if, for example, it ran contrary to the opinions of a claimant’s longtime treating physician. See Orn v.
Astrue, 495 F.3d 625, 631 (9th Cir. 2007). But the fact that Dr. Gaffield only performed one examination is not, absent such disagreement with the findings of other physicians, a sufficient basis to reject his conclusions. See Ford v. Berryhill, No. C17-1343JLR, 2018 WL 2002806, at *2 (W.D. Wash. Apr. 30, 2018) (“If the
court were to reject medical opinions every time they were based on a single examination, then only opinions from treating doctors would be considered, contrary to federal regulation.”).
What is more, the ALJ rejected the opinion of an examining physician who evaluated Plaintiff once in favor of a non-examining physician who never evaluated Plaintiff at all. The ALJ’s proffered reasons for doing so—that Dr. Jahnke was familiar with the standard for assessing disability, that she had reviewed the medical
record, and that she clearly explained her opinions—did not justify inverting the long-settled hierarchy of physician opinions set out both in the Commissioner’s regulations and in this circuit’s precedents. See 20 C.F.R. § 404.1527; Orn, 495
F.3d at 631 (9th Cir. 2007) (“Generally, the opinions of examining physicians are afforded more weight than those of non-examining physicians.”). In view of the above, the Court agrees with Plaintiff that the ALJ failed to
articulate a clear and convincing reason to assign reduced weight to Dr. Gaffield’s opinions. On remand, the ALJ shall reevaluate those opinions in a manner consistent with the Court’s ruling and again assess Plaintiff’s claims of disability.
B. The ALJ erred in discounting Plaintiff’s subjective symptom testimony
Plaintiff also contends the ALJ erred in discounting Plaintiff’s own subjective symptom testimony. ECF No. 10 at 9–14. Where a claimant presents objective medical evidence of impairments that could reasonably produce the symptoms complained of, an ALJ may reject the claimant’s testimony about the severity of her symptoms only for “specific, clear and convincing reasons.” Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014). The ALJ’s findings must be sufficient “to permit
the court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). General findings are insufficient. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). In evaluating the claimant’s credibility, the “ALJ may weigh inconsistencies between
the claimant’s testimony and his or her conduct, daily activities, and work record, among other factors.” Bray, 554 F.3d at 1227. The Court may not second guess the ALJ’s credibility findings that are supported by substantial evidence. Tommasetti,
533 F.3d at 1039. The ALJ rejected Plaintiff’s symptom testimony for several reasons. First, the ALJ found the medical record contained no evidence that Plaintiff “sought or
required significant forms of treatment”—which the ALJ defined to include hospitalization, emergency room treatment, or “significant office care”—after her August 2016 stroke. AR 20. The ALJ concluded that Plaintiff’s “treatment efforts
and requirements are inconsistent with the presence of debilitating impairments” and appears to have assigned this “limited treatment history” significant weight. Id. (“Noteworthy in this case is claimant’s limited treatment history.”). The Commissioner argues this conservative approach to seeking treatment justified the
ALJ’s rejection of Plaintiff’s symptom testimony. ECF No. 11 at 7–9. The “unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment” is one factor the ALJ may consider in
evaluating a claimant’s testimony. Tommasetti, 533 F.3d at 1039 (quoting Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)). But as Plaintiff argues—and the record establishes—insofar as the ALJ found Plaintiff did not seek any treatment after her stroke, this conclusion simply ignores a substantial portion of the record.
See AR 20 (“[I]t is noted the only treatment [Plaintiff] received after December 2016 was from Karl Holling, her treating ophthalmologist.”). Plaintiff points to visits with Leslie Walters, M.D., her treating physician, in
September, October, and December of 2016, as well as a visit in May 2017. Id. at 10 (citing AR 326, 329, 335 & 336). During these visits Plaintiff complained of double vision and weakness in her left side, eye pain, severe headaches, and troubles with
her vision. Id. Dr. Walters also reviewed Plaintiff’s medications including migraine medication and anti-coagulants. Id. (citing AR 327, 335–36). Plaintiff was also seen by Peter J. Schlegel, M.D., an oncologist to whom she
was referred by Dr. Walters, on October 31, 2016, and again on November 17, 2016. AR 409–38. Dr. Schlegel opined that Plaintiff likely suffered from antiphospholipid antibody syndrome and wrote that long-term treatment with anticoagulants would likely be necessary given Plaintiff’s history with stroke. AR 409. Finally, Plaintiff
was seen by Darren C. Hollenbaugh, M.D., a cardiologist to whom she was referred by Dr. Walters, on November 8, 2016. AR 330–34. Dr. Hollenbaugh evaluated the treatment plan proposed by Dr. Schlegel and examined Plaintiff for possible side
effects from her medications. See AR 330–31 (“[Dr. Schlegel] will likely be starting her on Coumadin [next] week, which I agree with completely.”). Without explanation, the ALJ either ignored these treatment records or concluded they did not rise to the level of “significant office care” and were therefore not worth
mentioning.3 AR 20. The Commissioner followed suit, inexplicably declining to so
3 Furthermore, although the ALJ was correct in observing that Plaintiff did not require hospitalization, treatment in the emergency room, or significant office care in the time after her stroke, the ALJ failed to explain how this detracted from the credibility of Plaintiff’s symptom testimony. much as engage with Plaintiff’s argument that the ALJ erred by ignoring this evidence. See ECF No. 11 at 7–9. This was not a “specific, clear and convincing
reason” to discount Plaintiff’s symptom testimony. Burrell, 775 F.3d at 1137. Second, the ALJ discounted Plaintiff’s testimony concerning her double vision because it was inconsistent with Dr. Holling’s opinion that the impairment
could be treated with prism glasses when she was tired. AR 20 (citing AR 467). The ALJ observed that Plaintiff had never sought a prescription for prism glasses, and in the ALJ’s view, if Plaintiff “were actually having . . . continued problems with double vision, it would seem that she would have seen Dr. Holling for follow up
regarding the use of prism glasses.” AR 20. As above, an ALJ may consider the “unexplained or inadequately explained failure to seek treatment” in evaluating a claimant’s testimony. Tommasetti, 533 F.3d at 1039 (quoting Smolen, 80 F.3d at
1284). Thus, Plaintiff’s failure to seek a prescription for prism glasses was a specific, clear, and convincing reason to discount Plaintiff’s testimony concerning double vision when she was tired. See AR 467 (reporting Plaintiff only noticed double vision when tired). It is not clear from the record, however, how this
conclusion affected the ALJ’s ultimate conclusion. On remand, therefore, the ALJ is directed to evaluate and weigh this testimony in light of the record as a whole. Finally, the ALJ discounted Plaintiff’s symptom testimony because he found
it inconsistent with Plaintiff’s self-reported activities of daily living. AR 20–21. Specifically, the ALJ noted Plaintiff reported she was able to maintain personal hygiene, “admitted she did some ‘light’ household chores and yard work,” went for
daily walks by the river using a cane or walking stick, was able to prepare dinner and maintain “occasional social contact with family or friends,” and was capable of shopping online “with some assistance.” AR 20 (citing AR 197–200, 459).
But the Court’s review of the record leads it to conclude the ALJ’s description of Plaintiff’s activities of daily living may have been incomplete. For example, during one of the same visits the ALJ discussed, Plaintiff reported she struggled to work on a computer because she “just does not remember what to do any longer
and fails at all of her attempts to navigate systems.” AR 459. And though Plaintiff did indeed report engaging in light household chores and yard work, she reported that when doing so she is “clumsy . . . and falls frequently.” Id. Similarly, while
Plaintiff self-reported that she could do most household chores, she wrote she could not clean the floors because she “cannot look down for long periods,” wrote she needed substantial assistance to go shopping, and found managing money difficult because it was hard to write and she struggled to see the numbers. AR 197–200.
The Court is prohibited from second-guessing the ALJ’s credibility determinations. However, his selective citations to those portions of the record consistent with his ultimate conclusion, without explaining his decision to ignore
those portions of the record that were inconsistent with that conclusion, are insufficient “to permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.” Tommasetti, 533 F.3d at 1039. Moreover, “[t]he Social
Security Act does not require that claimants be utterly incapacitated to be eligible for benefits.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). From the ALJ’s decision, it is unclear whether he would have been satisfied with anything less. On
remand, the ALJ shall reconsider whether Plaintiff’s activities of daily living were in fact inconsistent with her symptom testimony. Burrell, 775 F.3d at 1137. Though the ALJ explained that he considered Plaintiff’s symptom testimony less than fully credible for the reasons set out above, he did not explain which
specific portions of her testimony were undermined. See generally AR 20–23. The Commissioner argues these general credibility findings are sufficient to permit the Court to find the ALJ did not arbitrarily discredit Plaintiff’s testimony. ECF No. 11
at 13–14 (citing Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995)). Having reviewed the record and the ALJ’s decision, the Court disagrees. The ALJ’s apparent disregard for portions of the record inconsistent with—or, in the case of Plaintiff’s post-stroke treatment,
flatly contradictory to—his decision prevents the Court from finding the ALJ fairly evaluated the credibility of Plaintiff’s symptom testimony. Those errors likewise prevent the Court from “infer[ring]” the reasoning underlying the ALJ’s credibility
analysis, as the Commissioner urges. ECF No. 11 at 14. In sum, the ALJ erred in evaluating Plaintiff's subjective symptom testimony, and further proceedings are necessary to ensure Plaintiff's application is evaluated fairly. C. Remand, rather than an award of benefits, is appropriate Though there is certainly substantial evidence to support Plaintiff's
entitlement to benefits, that conclusion is not “clear from the record.” Garrison, 759 F.3d at 1019. Accordingly, the Court remands this matter to the ALJ for further
proceedings consistent with this Order, rather than simply awarding benefits. For the reasons set forth above, IT IS HEREBY ORDERED: 1. Plaintiff's Motion for Summary Judgment, ECF No. 10, is 2. The Commissioner’s Motion for Summary Judgment, ECF No. 11, is 3. The Clerk’s Office shall ENTER JUDGMENT in favor of PLAINTIFF and thereafter CLOSE the file. IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and
provide copies to all counsel. DATED this 24th day of April 2020. (oo Oo wena __ feu ee SAE VADOR MENDGi=A, JR. United States District Juéve ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING THE COMMISSIONER’S MOTION FOR SUMMARY