Moore v. Commissioner Social Security Administration, No. 6:2012cv01190 - Document 20 (D. Or. 2013)

Court Description: OPINION AND ORDER. Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion. IT IS SO ORDERED. Signed on 08/09/2013 by Judge Malcolm F. Marsh. (pvh)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MARTEN WILLIAM MOORE, Plaintiff, COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. KATHRYN TASSINARI Harder, Wells, Baron & Manning, P.C. 474 Willamette Street, Suite 200 Eugene, Oregon 97401 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 GERALD J. HILL Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900, M/S 221A Seattle, Washington 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER 6:12-cv-01190-MA OPINION AND ORDER MARSH, Judge Plaintiff, Marten William Moore, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act) and supplemental security benefits under Title XVI of the Act. 1381-1383f. 405(g). income (SSI) See 42 U.S.C. disability §§ 401-434, This court has jurisdiction pursuant to 42 U.S.C. For the reasons set forth below, I § reverse the final decision of the Commissioner and remand for further proceedings consistent with this opinion. PROCEDURAL BACKGROUND Plaintiff protectively filed his applications for DIB and SSI on August 25, 2008, alleging disability due to back, diabetes.n and upon Tr. 159. ~[d]isc disease in His applications were denied initially reconsideration. Administrative Law Judge A (ALJ) hearing was on December 15, held before 2010, plaintiff was represented by counsel and testified. an at which Vocational Expert (VE) Vernon Arne was also present throughout the hearing and testified. On January 10, 2011, plaintiff's application. 2 - OPINION AND ORDER ALJ issued a decision denying After the Appeals Council denied review, plaintiff timely appealed. Ill the FACTUAL BACKGROUND Born on April 17, 1963, plaintiff was 39 years old on the alleged onset date of disability and 47 years old on the date of the hearing. Plaintiff has a high school education with vocational training in automobile technology, and has past relevant work as an Tr. 18, 163. auto mechanic and auto detail manager. Plaintiff alleges his disabilities became disabling on July 10, In 2002. to addition the plaintiff testimony, hearing submitted an Adult Function Report and a Pain Questionnaire. 165-72, 173-75. Daugherty, M.D., Plaintiff's primary care Robert De'fllayde C. 402-04. Tr. submitted an opinion. provider, Tr. Perry, M.D., examined the plaintiff and submitted an evaluation. Tr. 295-300. records and submitted Desai reviewed plaintiff's medical Physical Residual Functional Capacity M. Finally, a Tr. 303-11. Assessment. THE ALJ'S DISABILITY ANALYSIS The Commissioner has a established five-step sequential Bowen v. process for determining whether a person is disabled. Yuckert, 482 u.s. 137' C.F.R. 20 Each step §§ is The claimant bears the burden of proof at potentially dispositive. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th The burden shifts to the Commissioner at Step Five to Cir. 1999). show that (1987); 416.920(a) (4) (i)-(v). 404.1520 (a) (4) (i)- (v), Steps One through Four. 140-42 a significant 3 - OPINION AND ORDER number of jobs exist in the national economy that the claimant can perform. See Yuckert, 482 U.S. at 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined that plaintiff has not engaged in substantial gainful activity since the alleged onset date, July 10, 2002. See 20 C.F.R. §§ 404.1571 et seq., 416.971 et seq.; Tr. 11. At obesity, Step Two, the degenerative ALJ determined of the back, morbid and chronic obstructive pulmonary disease are severe impairments. See §§ disease plaintiff's diabetes, 20 C.F.R. disc that 404.1520(c), 416.920(c); Tr. 11-12. At Step Three, the ALJ determined that plaintiff does not have an impairment or combination of impairments that meet or medically equal any listed impairment. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 12. The ALJ found that plaintiff has the residual functional capacity (RFC) to perform less than the full range of light work, including limitations that plaintiff can only perform tasks that involve no more than four hours of standing or walking, hours of sitting, in an eight-hour workday, and six with the option of alternating between sitting and standing as needed; occasionally lift or carry 20 pounds, and frequently lift or carry 10 pounds; occasionally climb ramps or stairs, but never climb ladders, ropes, or scaffolds; occasionally balance, 4 - OPINION AND ORDER stoop, kneel, crouch, and crawl; and can never be exposed to vibration or hazards. the ALJ found Four, Step At C.F.R. 20 See work. relevant past perform any plaintiff is that unable §§ that Tr. 12-18. jobs to 404.1565, 416. 965; Tr. 18. At however, Five, Step the ALJ found exist in significant numbers in the national economy that plaintiff can Wire including perform, Small Assembly, Cable and Assembly, Product Worker, and Check Cashier. Assembly, Document See 20 C.F.R. §§ Motor Electric Optical Preparer, 404.1569, 404.1569(a), 416.969, 416.969(a); Tr. 18-19. Accordingly, the ALJ found that plaintiff was not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff raises three issues on appeal. First, plaintiff claims that the ALJ improperly rejected his testimony. Second, plaintiff argues that the ALJ provided insufficient reasons for the rejecting physician. opinion of Daugherty, Dr. plaintiff's treating plaintiff argues that the ALJ erred in his Third, consideration of the chart notes of Andrew M.D. Kokkino, Accordingly, plaintiff concludes that the ALJ failed to carry his burden at Step Five. STANDARD OF REVIEW The court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are 5 - OPINION AND ORDER supported by substantial evidence in the record. 405(g); Andrews v. Shalala, 53 F.3d 1035, 1039 42 U.S. C. (9th Cir. § 1995). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." court must weigh all of the evidence, whether detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). to more than one rational decision must be upheld. supports The or Martinez v. Heckler, If the evidence is susceptible interpretation, Andrews, it Id. the Commissioner's 53 F. 3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). DISCUSSION I. Rejection of Plaintiff's Testimony In deciding whether to accept subjective symptom testimony, an ALJ must perform two stages of analysis. 416.929. evidence First, of an the claimant underlying must produce impairment that expected to produce the symptoms alleged. F. 3d 1273, 1281-82 (9th Cir. 1996). 20 C.F.R. §§ 404.1529, objective medical could reasonably be Smolen v. Chater, 80 Second, absent a finding of malingering, the ALJ can reject the claimant's testimony about the 6 - OPINION AND ORDER severity of his symptoms only by convincing reasons for doing so. offering specific, clear and Id. at 1281. If an ALJ finds that the claimant's testimony regarding his subjective symptoms is unreliable, the "ALJ must make a credibility determination citing unpersuasive." Morgan v. Apfel, 169 F.3d 595, 599 (9th Cir. 1999). the reasons why the testimony is In doing so, the ALJ must identify what testimony is credible and what testimony undermines the claimant's complaints, and make "findings sufficiently specific to permit the court to conclude that the ALJ testimony." did not arbitrarily discredit [the] claimant's Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The ALJ may rely upon ordinary techniques of credibility evaluation in weighing the claimant's credibility. Tommasetti v. Astrue, 533 F. 3d 1035, 1039 (9th Cir. 2008). At the hearing, parents. as a Tr. 31. result of Plaintiff stated that his back pain has worsened weight inability to work. that his diabetes occasional plaintiff testified that he lives with his Tr. gain, 37, causes irritability and 40. his and is the primary cause of his Plaintiff additionally testified blood upset sugar to stomach. run high, causing Tr. 41-42, 53-54. Plaintiff stated that he can walk up to three blocks, and can lift two jugs of milk and a bag of groceries. Tr. 43. As to sitting limitations, plaintiff testified that he cannot sit in one position for a long period of time without pain in his back and leg. 7 - OPINION AND ORDER Tr. 43-44. Plaintiff reported that he can dress himself, but requires the use of a chair in the shower, and getting ready in the morning can take between two and three hours. Tr. 46, 55-56. Plaintiff testified that his parents do most of the chores and errands around their house, but that he will occasionally go shopping and mow the lawn on a riding lawnmower. Tr. 46-47. Plaintiff described his daily activities as waking between 5:30 and 6:00, letting his cats out and eating a small snack, and then going back to sleep until 7:30 or 8:00, when his mother makes breakfast. or plays Tr. 48. After breakfast, plaintiff watches television computer games, sometimes eats lunch, watching television or talking with his father. summer, he sometimes mows the lawn. Tr. and returns Tr. 49. 49-50. to In the Plaintiff additionally testified that he takes a two-to-three-hour nap daily. Tr. 57. After dinner, plaintiff testified that he watches more television and goes to bed around 11:00. In his Adult Function Report, Tr. 50. plaintiff described similar activities, but added that two or three times per week he goes to a friend's hours." house in the Tr. 165, 169. afternoon to "socialize for a couple Plaintiff reported that he cooks himself meals two-to-three times per 'tJeek, but that his mother primarily does the cooking. Tr. 167. Plaintiff stated, however, that he cannot perform any type of household work that requires standing for a long period of time or bending over. 8 - OPINION AND ORDER Tr. 168. Plaintiff checked that his conditions affect his abilities to lift, squat, bend, stand, reach, walk, sit, climb stairs, and complete tasks. Tr. 170. Plaintiff stated that he can walk about 100 yards before needing to rest for 10 minutes. The ALJ impairments could but credible. Tr. 17. medical plaintiff's testimony plaintiff's determinable medically expected to reasonably be that symptoms, the that found Id. cause the alleged nonetheless was not The ALJ rejected plaintiff's testimony because evidence in the record did not fully support plaintiff's very sedentary alleged limitations and activities of daily living, plaintiff stopped working for reasons unrelated to disability and had a poor work record before he allegedly became disabled, he did not comply with prescribed medical treatment, and made inconsistent statements regarding his drug use. I Tr. 13-17. conclude that the ALJ cited clear and convincing reasons for rejecting plaintiff's testimony. The ALJ reasonably found that the medical record does not support plaintiff's allegations limitations dating back to 2002. of very significant back As the ALJ noted, while there is some discussion of back problems in 2002 and 2003, plaintiff did not complain of back pain to his physicians again until 2009. Even in April and July of 2009, plaintiff's complaints do not appear serious enough to rise to the level of disabling, as they were only mentioned in passing in the chart notes and treated conservatively 9 - OPINION AND ORDER with ibuprofen and stretching. Only in September of Tr. 346-47. 2009, less than two weeks after plaintiff's claim was denied upon reconsideration, does plaintiff report significant back pain to his Tr. physician. In addition, 345. plaintiff's allegation to a specialist in October of 2009 that he had been experiencing severe back pain radiating into his leg for four-to-six months is belied by his report in July of that year that he "had no radiation into the lower extremities." Compare Tr. 387 with Tr. 346. Moreover, the medical record reveals that during the lengthy period in which plaintiff was not complaining of back pain, engaged in impairments. inconsistent activities with significant he back For example, in August of 2004, plaintiff reported elbow pain when "lifting wood or other heavy objects." In January of 2008, Tr. 248. plaintiff reported he hurt his chest while working on his car and "leaning on the floor of the car to get into the dashboard." Tr. 356. While, as the ALJ noted, the medical record contains evidence of more significant back problems, the ALJ reasonably concluded that the longitudinal medical record does not support plaintiff's allegations of back impairments dating back to alleged onset date of disability. The ALJ also cited plaintiff's poor work history and nondisability plaintiff's reason for testimony. leaving work as a reason A poor work history or for rejecting non-disability reason for leaving the job immediately prior to the alleged onset 10 - OPINION AND ORDER date are proper reasons for discrediting a plaintiff's testimony. See Burton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (rejecting a claimant's testimony in part because he left a job after being laid off, rather than for health reasons); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (rejecting a claimant's testimony in part because her "work history was spotty") . Although there was some confusion on this point at the hearing, plaintiff reported that he "quit working due to arrest" in 2002. 159. his Tr. 36-39, In addition, plaintiff reported inconsistent work prior to alleged disability in 2002, and his earnings history corroborates that plaintiff was not consistently employed full time before his alleged period of disability. Tr. 153, 160. reasonably discounted plaintiff's testimony, in part, The ALJ because he quit his job prior to the alleged onset date for reasons other than disability and because plaintiff has an inconsistent work history. The plaintiff treatment. ALJ also was discredited not always plaintiff's compliant credibility because prescribed medical with Noncompliance with prescribed medical treatment is a valid reason to reject a claimant's testimony. F.2d 597, 603 (9th Cir. instances of noncompliance. hospitalization, 1989) Here, During Fair v. Bowen, 885 the ALJ noted multiple an April of 2007 plaintiff repeatedly went to the cafeteria and ordered food that was not on his diabetic diet despite admonitions from his doctors. Tr. 264-65. 11 - OPINION AND ORDER In December of 2008, plaintiff left a prescribed sleep study within minutes against medical advice. Additionally, despite a recommendation from Dr. Kokkino Tr. 375. that plaintiff engage in a course of physical therapy and weight loss to help with his back pain, plaintiff admitted at the December 5, 2010 hearing that he had not had any physical therapy since Tr. 2003. 50, 226-31, ALJ The 387. discredited reasonably plaintiff's testimony because he demonstrated noncompliance with medical treatment on multiple occasions. Finally, the ALJ discredited plaintiff's testimony because he made inconsistent statements to doctors and at the hearing about when he ceased using reported plaintiff methamphetamine to his two months doctor that Tr. prior. 3, 2002, stopped using October On methamphetamine. he 252. At the hearing, however, plaintiff admitted that he continued using methamphetamine for some period after his 2002 arrest, but that he quit before his period of probation was completed. Tr. 51-52. Yet, during his April of 2007 hospital visit, plaintiff admitted to continuing use of methamphetamine, and injecting drugs one-to-three months prior. Tr. 271. The ALJ reasonably cited these inconsistencies in making an adverse credibility finding. I conclude that these reasons, taken together, constitute clear and convincing reasons to reject plaintiff's subjective symptom discredited plaintiff's testimony. Ill 12 - OPINION AND ORDER testimony. The ALJ properly II. Rejection of Dr. Daugherty's Opinion Plaintiff next argues that the ALJ improperly rejected the opinion of Generally, Dr. more Daugherty, weight is plaintiff's given to the treating physician. opinion of a treating physiciah than to the opinion of doctors who did not treat the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The Commissioner must provide clear and convincing reasons to reject the uncontradicted opinion of a treating or examining physician. Id. at 830-31. Where a physician's opinion is contradicted by that of another physician, the ALJ may reject the physician's opinion by providing specific and legitimate reasons supported by substantial evidence in the record. "'The ALJ including a conclusory, need not treating and Id. accept the physician, inadequately if opinion that of any opinion supported by clinical Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) physician, is brief, findings.'" (quoting Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)) . "'Where ALJ is . . the record contains conflicting medical evidence, the charged with determining conflict.'" (9th Cir. Id. 2003)). credibility and resolving the (quoting Benton v. Barnhart, 331 F.3d 1030, 1040 The ALJ is responsible for translating the claimant's medical conditions into functional limitations in the RFC. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 13 - OPINION AND ORDER Ultimately, the RFC is. sufficient if it is "consistent with 2008) . Id. restrictions identified in the medical testimony." Dr. Daugherty submitted an opinion listing degenerative disc obesity, diabetes, disease, depression plaintiff's as Dr. Daugherty described plaintiff's symptoms Tr. 402. diagnoses. and to level of as "back pain with radiation to lower extremity Id. toes." After describing the clinical findings that support the diagnoses, Dr. Daugherty opined that plaintiff would have to lay down or rest for 20 to 30 minutes three to four times per day. Tr. 403. Dr. Daugherty, however, checked that he did not know how much plaintiff could stand, walk, or sit during a normal workday, Tr. but that plaintiff could only lift 10 pounds occasionally. 404. Finally, Dr. Daugherty opined that plaintiff would miss more than two days of work per month, explaining that plaintiff "could not perform a physical job of 8 [hours per day]." Id. Because Dr. Daugherty's opinion was contradicted by that of Drs. Perry and Desai, the ALJ was required to cite specific and legitimate reasons to reject his opinion. 31. Lester, 81 F.3d at 830- The ALJ rejected Dr. Daugherty's opinion because the opinion relied on plaintiff's subjective report of symptoms, the opinion is conclusory, and is unsupported by record evidence. Tr. 17. As an initial matter, I note that much of Dr. Daugherty's opinion is not inconsistent with the RFC. Dr. Daugherty did not plaintiff's sitting, standing, or walking limitations. 14 - OPINION AND ORDER opine on Moreover, the ALJ reasonably concluded that Dr. Daugherty's opinion that plaintiff would be off schedule more that two days per month was qualified by his in handwritten explanation that section that plaintiff "could not perform a physical job of 8 [hours per day)." Tr. 17, 404 Plaintiff's inability to perform (emphasis added). physical work, however, was reasonably accounted for in the RFC's limitation of plaintiff to less than the full range of light work. The only functional limitations in Dr. Daugherty's opinion that conflict with the RFC, then, are his limitation of plaintiff to lifting no more than 10 pounds on an occasional basis and the requirement that plaintiff rest for 20 to 30 minutes, three to four Tr. 404. times per day. for rejecting Dr. I conclude that the ALJ's stated reasons Daugherty's opinion to apply the lifting limitation, but not the resting limitation. Unlike Dr. Daugherty, the RFC limited plaintiff to lifting 20 pounds occasionally, and 10 pounds frequently. explanation that Dr. Daugherty'~ Tr. 12. The ALJ's opinion was not consistent with other evidence in the record, however, provides ample justification for Indeed, rejecting this opined limitation. Dr. Daugherty's limitation to lifting no more than 10 pounds is contradicted by plaintiff's own testimony. At the hearing, that he could lift two jugs of milk, limitation opined by Dr. the alleged onset date 15 - OPINION AND ORDER Daugherty. of plaintiff testified an amount greater than the Tr. disability, 43. In addition, after plaintiff reported to physicians that he hurt his elbow "lifting wood or other heavy objects," and that he had been working on his car. Tr. 248, 356. The ALJ reasonably cited inconsistency with the record to reject Dr. Daugherty's opined lifting limitation. The ALJ erred in his consideration of Dr. Daugherty's opinion that plaintiff must rest for 20 to 30 minutes three to four times per day. are not The ALJ's reasons for rejecting Dr. Daugherty's opinion relevant is It finding. this to on reliant neither plaintiff's subjective reports nor unsupported by clinical findings and the remainder of the medical Rather, record. is it corroborated by the imaging cited in the opinion, and was stated by Dr. Daugherty in terms that make clear he was not merely relying on plaintiff's self-reporting. Nor, similar for reasons, conclude that the ALJ's stated reasons apply to Dr. opinion more generally. Daugherty I Daugherty's It is clear from his opinion that Dr. objective considered can evidence and clinical findings, which he cited appropriately, and accordingly had some support in the record. Thus, the ALJ erred in his consideration of Dr. Daugherty's opinion. 1 Ill 1 Defendant's argument that the ALJ's citation to Dr. Perry's evaluation and Dr. Desai's review was sufficient to Because a treating reject Dr. Daugherty's opinion is meritless. physician is generally given greater weight than an evaluating or reviewing physician, the ALJ was required to cite additional reasons for favoring Drs. Perry and Desai over Dr. Daugherty. 16 - OPINION AND ORDER III. Consideration of Dr. Kokkino's Chart Note Plaintiff next argues that the ALJ erred in his consideration of Dr. Kokkino's chart note summarizing plaintiff's October 28, 2009 visit. Because this is a chart note, and not an opinion as to plaintiff's functional Kokkino' s Dr. limitations, require any individual treatment from the ALJ. note did not Rather, so long as the ALJ's decision is supported by substantial evidence in light of Dr. Kokkino's chart note, as well as the rest of the evidence in the record, then the ALJ must be affirmed in this respect. Dr. Kokkino noted that imaging indicated that plaintiff had "quite a bit of spinal pathology," Dr. Kokkino thought lead ¢t~hich to plaintiff's "current lack of sensation and impairment in the left lower extremity." Tr. 387. Because Dr. Kokkino considered plaintiff a high risk surgical candidate, he recommended a course of physical therapy and a "serious weight loss regimen." Id. Dr. Kokkino did not opine as to any functional limitations. Kokkino's chart note and The ALJ explicitly considered Dr. findings in crafting the RFC. Dr. Kokkino' s diagnoses at Step Two and accommodate plaintiff's back impairments. significant findings in his The ALJ accounted for Tr. 15-16. chart note, crafted the RFC to While Dr. Kokkino noted the ALJ also significant functional limitations in the RFC. included There is nothing in Dr. Kokkino's opinion that deprives the ALJ's RFC determination of the support of substantial evidence. 17 -OPINION AND ORDER The ALJ properly considered Dr. Kokkino's chart note along with the rest of the record evidence. Because I conclude Daugherty's opinion, and considered Dr. that the ALJ improperly rejected Dr. but properly rejected plaintiff's testimony Kokkino' s chart note alongside other record evidence, I ultimately agree with plaintiff that the ALJ failed to carry his burden at Step Five. IV. Remand After finding the ALJ erred, remand for benefits. further proceedings Harman v. Apfel, this court has discretion to or for immediate 211 F. 3d 1172, 1178 payment (9th Cir. The issue turns on the utility of further proceedings. of 2000). A remand for an award of benefits is appropriate where there is no useful purpose to be served by further proceedings or where the record is fully developed. The Ninth Circuit has established a three-part test "for determining when evidence should be credited and an immediate award of benefits directed." Id. The court should grant an immediate award of benefits when: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, ( 2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 18 - OPINION AND ORDER Id. Where it is not clear that the ALJ would be required to award benefits were the improperly rejected evidence credited, the court has discretion whether to credit the Connett evidence. v. Barnhart, 340 F. 3d 871, 876 (9th Cir. 2003). It is not clear what effect Dr. Daugherty's opined resting limitation would have on the ultimate disability determination, as it is unclear if such a limitation could be accommodated in the workplace. Accordingly, there are outstanding issues that must be resolved before a determination of disability can be made, and remand is necessary. On remand, the ALJ must reconsider Dr. Daugherty's opinion. If the ALJ accepts Dr. Daugherty's opinion, or portions thereof, he should revise testimony. the RFC accordingly and obtain additional VE If the ALJ once again rejects Dr. Daugherty's opinion, he must cite legally sufficient reasons for doing so. Ill Ill Ill Ill Ill Ill Ill Ill Ill 19 - OPINION AND ORDER CONCLUSION Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REl'JANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion. IT IS SO ORDERED. DATED this ~ day of August, 2013. Malcolm F. Marsh United States District Judge 20 - OPINION AND ORDER

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