Wanda Rosa Ruiz v. Carolyn W. Colvin

Filing 19

MEMORANDUM OPINION and ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See document for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

11
12 WANDA ROSA RUIZ,
13

Plaintiff,

14

v.

15 CAROLYN W. COLVIN, Acting
Commissioner of Social

16 Security,
17

Defendant.

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Case No. CV 14-08867-AS
MEMORANDUM OPINION AND
ORDER OF REMAND

Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED

20 that this matter is remanded
21 consistent with this Opinion.

for

further

administrative

action

22
PROCEEDINGS

23
24

On November 21, 2014, Plaintiff filed a Complaint seeking review of

25 the partial denial of her applications for Disability Insurance Benefits
26 and Supplemental Security Income. (Docket Entry No. 3). The parties
27 have

consented

to

28 Magistrate Judge.

proceed

before

the

undersigned

(Docket Entry Nos. 10, 16).

United

States

On April 15, 2015,

Defendant filed an Answer along with the Administrative Record (“AR”).

1 (Docket Entry Nos. 11-12). The parties filed a Joint Position Statement
2 (“Joint Stip.”) on September 1, 2015, setting forth their respective
3 positions regarding Plaintiff’s claims.
4

(Docket Entry No. 18).

The Court has taken this matter under submission without oral

5 argument. See C.D. Cal. L.R. 7-15; “Order Re: Procedures In Social
6 Security Case,” filed November 14, 2014 (Docket Entry No. 7).
7
8

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

9
10

On February 25, 2011, Plaintiff, formerly employed as a medical

11 records clerk at a medical clinic and as a hospital cleaner (see AR 5512

56, 129, 264), filed applications for Disability Insurance Benefits and
for Supplemental Security Income, alleging a disability since May 15,

13

2009. (See AR 230-40).

On January 5, 2012, the Administrative Law

14 Judge, Alexander Weir III (“ALJ”), heard testimony from Plaintiff and
15 vocational expert Sandra Trost. (See AR 52-74). On March 2, 2012, the
16 ALJ issued a decision denying Plaintiff’s applications.

(See AR 120-

17 30). After determining that Plaintiff had severe impairments –- carpal
18

tunnel syndrome with surgical release, left and right wrists (see AR
123-27)1 –- the ALJ found that Plaintiff had the residual functional

19 capacity (“RFC”)2 to perform sedentary work3 with the following
20 limitations: can lift and carry 10 pounds occasionally and small objects
21 frequently; can stand, walk and sit for 6 hours in an 8-hour workday,
22
1

The ALJ found that
23 were not severe impairments. Plaintiff’s mental depression and anxiety
24
2
A Residual Functional Capacity is what a claimant can still
do despite existing exertional and nonexertional limitations.
25 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).

26
27
28

3

See 20

“Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket files,
ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is
often necessary in carrying out job duties.
Jobs are sedentary if
walking and standing are required occasionally and other sedentary
criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).
2

1 with normal breaks; can push and pull without significant limitation;
2 limited in handling and fingering with both hands and can perform fine
3 and
4

gross

motor

activities

frequently

(but

not

repetitively); and no forceful gripping and grasping.

constantly

or

(See AR 127-28).

After finding that Plaintiff was not able to perform her past relevant

5 work as a medical records clerk and as a hospital cleaner (see AR 1286 29), the ALJ found that jobs existed in significant numbers in the
7 national economy that Plaintiff could perform, and therefore found that
8 Plaintiff was not disabled within the meaning of the Social Security
9

Act.

10

(See AR 129-30).
Plaintiff requested that the Appeals Council review the ALJ’s

11 decision. (AR 185). On June 14, 2013, the Appeals Council vacated the
12 ALJ’s 2012 Decision and remanded the case to the ALJ to do the
13 following: “Obtain updated evidence concerning the claimant’s carpal
14 tunnel syndrome (CTS) with surgical release in order to complete the
15

administrative

record

in

accordance

with

the

regulatory

standards

regarding consultative examinations and existing medical evidence (20

16 CFR 404.1512-1513 and 416.912-913).”; “Further evaluate the claimant’s
17 subjective complaints and provide rationale in accordance with the
18 disability regulations pertaining to evaluation of symptoms (20 CFR
19 404.1529 and 416.929) and Social Security Ruling 96-7p.”); “Give further
20
21

consideration to the claimant’s maximum residual functional capacity
throughout the period at issue and provide appropriate rational with
specific references to evidence of record in support of the assessed

22 limitations (20 CFR 404.1545 and 416.945 and Social Security Ruling 8523 16 and 96-8p).”; and “Obtain supplemental evidence from a vocational
24 expert to clarify the effect of the assessed limitations on the
25 claimant’s occupational base (Social Security Ruling 85-15).”
26

136-37).
///

27

///

28 ///
3

(See AR

1

On November 19, 2013, the ALJ heard testimony from Plaintiff,

2 medical expert A. Genest, and vocational expert Heidi Paul. (See AR 773 113).
4

On February 21, 2014, the ALJ issued a decision granting

Plaintiff’s applications in part and denying Plaintiff’s applications in
part.

(See AR 28-40).

After determining that Plaintiff had a severe

5 impairment (carpal tunnel syndrome) from May 15, 2009 (the onset date of
6 disability) through April 24, 2012 -- (see AR 33-34), the ALJ found that
7 Plaintiff’s impairment met Listing of Impairments 11.14 (see AR 34-35),
8 and therefore found that Plaintiff was disabled from May 15, 2009
9
10

through April 24, 2012.

(See AR 35).

However, after determining that

Plaintiff did not suffer any new severe impairment after April 24, 2012,
there was medical improvement beginning April 25, 2012, and as of April

11 25, 2012, Plaintiff’s impairment no longer met or equaled a Listing
12 (see AR 35-37), the ALJ found that, beginning April 25, 2012, Plaintiff
13 had the RFC to perform light work4 with the following limitations: can
14 lift and carry up to 20 pounds occasionally and 10 pounds frequently;
15

can stand and walk for 2 hours in an 8-hour workday; can sit for 6 hours
in an 8-hour workday; needs to be able to alternate sitting and standing

16 as needed; can perform postural activities (bending, stooping,
17 crouching, crawling and kneeling) occasionally; can push and pull
18 frequently with her left arm and hand and occasionally with her right
19 arm and hand; can reach and lift overhead occasionally; and can perform
20
21

fine and gross motor activity (fingering and handling) with her right
hand frequently.

(See AR 37-38).

After finding that Plaintiff was not

able to perform her past relevant work since April 25, 2012 (see AR 38),

22 the ALJ found that jobs existed in significant numbers in the national
23 economy that Plaintiff could perform, and therefore found that Plaintiff
24 was not disabled since April 25, 2012.

(See AR 39-40).

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“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds.
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of arm
or leg controls.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
4

1

Plaintiff requested that the Appeals Council review the ALJ’s

2 decision.
3 1-5).
4

(AR 20).

The request was denied on September 8, 2014.

(AR

The ALJ’s decision then became the final decision of the

Commissioner, allowing this Court to review the decision. See 42 U.S.C.
§§ 405(g), 1383(c).

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PLAINTIFF’S CONTENTIONS

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8

Plaintiff alleges that the ALJ erred in: (1) determining that

9 Plaintiff experienced medical improvement as of April 25, 2012; (2)
10 assessing Plaintiff’s RFC; (3) assessing Plaintiff’s credibility; and
11 (4) failing to identify and reconcile discrepancies between the
12

vocational

expert’s

testimony

and

the

Selected

Characteristics

of

Occupations. (See Joint Stip. at 10-15, 22-24, 27-32, 40-44, 48-49).

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14

DISCUSSION

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After consideration of the record as a whole, the Court finds that

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Plaintiff’s

third

consideration.

claim

of

error

warrants

a

remand

for

further

Since the Court is remanding the matter based on

Plaintiff’s third claim of error, the Court will not address Plaintiff’s

19 first, second and fourth claims of error.
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21 A.

The ALJ Failed to Properly Assess Plaintiff’s Credibility

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Plaintiff

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24

asserts

that

the

ALJ

failed

to

provide

clear

and

convincing reasons for finding Plaintiff not credible. (See Joint Stip.
at 10, 28-32, 40-41).

Defendant asserts that the ALJ properly found

25 Plaintiff not credible. (See Joint Stip. at 32-39).
26 ///
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At the November 19, 2013 hearing, Plaintiff testified as follows:

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She lives with her 16 year-old son.
long time as a clerk at a medical clinic.

She worked for a
She could not do

that job because her hands fell asleep and suffered shooting

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pains.

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compensation case (which settled).

After

she

left

that

job,

she

filed

a

worker’s

(See AR 100, 104).

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Her hands are her major issue, the reason she stopped

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working. She had left carpal tunnel surgery in 2010 and right

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carpal tunnel surgery in 2011.

(See AR 95, 98).

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Her left hand/wrist has gotten worse since the surgery.

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She experiences unbearable pain (an average pain level of 9

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1/2) which travels through her elbow, shoulder and fingers.

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She cannot hold onto things for long.

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She was given a new

brace for her left hand a couple of months before.

(See AR

95-97).

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Her right hand has gotten worse since the surgery (and

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worse since the last hearing) because she uses it all the

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time. She has a shooting pain and a triggering thumb, and the

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same symptoms as her left hand.

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is increasing.

The pain level is 8 1/2, but

She cannot hold things.

(See AR 97-98).

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She has right knee pain (at a level of about 6) which

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“comes and goes”, but she has not received much treatment on

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her right knee.

(See AR 98-99).

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She has difficulty sleeping, because the pain in her
hands increases when she is more relaxed.

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four hours a night.

(See AR 99).

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6

She sleeps about

1

She takes Tramadol for her pain, but it makes her drowsy.
(See AR 99).

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3

She cannot lift any weight with her left hand.

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lift about 5 or 6 pounds with her right hand.

She can

She is not able

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to type or use a pen or pencil because of numbness and lack of

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strength in her fingers. She can grasp a door handle and open

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a door if she does it quickly.

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1

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fidgeting, nervousness and depression (she needs to move

hour

around).

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because

of

her

She can sit in a chair about

pain,

frustration,

medication,

(See AR 101-03).

She has a home computer, but she rarely uses it (no more

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than 20 to 30 minutes a day).

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she does not drive much (only to the local market).

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year-old son, who is in college and does not live at home,

She has a driver’s licence, but
Her 18

drives her around. She can do house chores (i.e., cooking and

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cleaning) on a limited basis.

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with her house chores.

Her sister sometimes helps her

(See AR 103-05).5

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The ALJ briefly discussed Plaintiff’s testimony in a section of the

19 2014 Decision that did not address Plaintiff’s credibility. (See AR 34,
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stating, “At the hearing, the claimant testified that the surgeries did
not

improve

her

carpal

tunnel

conditions.”).

The

ALJ

addressed

Plaintiff’s credibility as follows:

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There are specific and legitimate reasons for rejecting

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the claimant’s excess symptom testimony based on the objective

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medical evidence, the functional assessments of treating

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The Court notes that Plaintiff completed a Function Report Adult dated March 21, 2011. (See AR 280-87).
7

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physicians, the testimony of the medical witness and her lack

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of credibility.

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Medical records from psychiatric examiner, Mryon L.
Nathan, MD dated November 6, 2009, indicated that the claimant

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was terminated from her employment due to sexually harassing

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a male co-worker, and not due to any medical/mental impairment

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(Exhibit 40F/8).

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The claimant admitted to Dr. Jose in October 2013, that
she received a Court judgment in 2011 indicating “that she can
work but mainly to watch monitors. For the past two years she

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has been working 6 hours a week, mainly on weekends - 4 hours

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on saturdays and 2 hours on Sundays - watching an elderly

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dying man” (sic) (Exhibit 26F/4).

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that the claimant retained the residual functional capacity to

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perform

work

related

tasks.

This creates the inference
Moreover,

her

receipt

of

employment benefits during 2011 and 2012 (Exhibit 7D) creates

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the inference that the claimant believed she was ready,

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willing and able to accept gainful employment.

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The claimant takes nothing stronger than Ibuprofen for
pain (Exhibit 35F).
therapy,

There is no evidence of ongoing physical

occupational

therapy,

or

other

rehabilitative

therapy.

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I observed the claimant to sit throughout the proceedings

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in no apparent discomfort.

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closely and fully without any noted distractions or overt pain

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behavior.

The

claimant

She followed the proceedings
responded

appropriate and logical manner.

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to

questions

8

an

There was nothing unusual or

bizarre about the claimant’s mannerisms or dress.

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in

1

As for the opinion evidence, no weight is afforded to the

2

opinion from Clara Chung in Exhibit 45F, because she is not a

3

qualified medical source.

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Furthermore, the medical expert

testified that her opinion is inconsistent with the medical
records, as a whole.

The claimant’s treating source and the

5

medical expert testified that the claimant is capable of

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lifting up to ten pounds continuously and can perform fine and

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gross manual manipulations on an occasional basis.

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9
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(AR 38).
A

claimant

initially

must

produce

objective

medical

evidence

11 establishing a medical impairment reasonably likely to be the cause of
12 the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
13 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991).

Once a

14 claimant produces objective medical evidence of an underlying impairment
15

that could reasonably be expected to produce the pain or other symptoms
alleged, and there is no evidence of malingering, the ALJ may reject the

16 claimant’s testimony regarding the severity of his pain and symptoms
17 only by articulating specific, clear and convincing reasons for doing
18 so. Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir. 2015)(citing
19 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)); see also
20 Smolen v. Chater, supra; Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
21

1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
Because the ALJ does not cite to any evidence in the record of

22 malingering, the “clear and convincing” standard stated above applies.
23
24

Here, the ALJ failed to provide clear and convincing reasons for

25 his finding that Plaintiff’s testimony about the intensity, persistence
26
27

and limiting effects of the symptoms was not fully credible.
First, the ALJ failed to “specifically identify ‘what testimony is

28 not credible and what evidence undermines [Plaintiff’s] complaints.’”
9

1 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Lester v.
2 Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen v. Chater,
3 supra, 80 F.3d at 1284 (“The ALJ must state specifically what symptom
4

testimony is not credible and what facts in the record lead to that
conclusion”).

5
6

Second,

to

the

extent

that

the

ALJ

discounted

Plaintiff’s

7 credibility based on notations in the November 6, 2009 report by the
8 psychiatric examiner about the reason for her May 15, 2009 termination
9
10

from employment at Cedars-Sinai Health Systems (namely, termination from
her employment due to sexual harassment), see AR 38, that reason was not
clear and convincing.

Contrary to the ALJ’s assertion, the psychiatric

11 examiner did not state Plaintiff was terminated from her employment due
12 to sexual harassment; rather, the psychiatric examiner stated Plaintiff
13 was terminated from her employment due to an accusation of sexual
14 harassment. (See AR 1503). Moreover, although inconsistencies between
15

a claimant’s testimony and conduct might serve as a consideration in a
credibility determination, see Light v. Social Security Admin., supra,

16 Plaintiff’s termination was not necessarily inconsistent with her
17 testimony at the November 19, 2013 hearing that she could no longer do
18 her job because of pain and numbness in her hands. Moreover, at the
19 January 5, 2012 and November 19, 2013 hearings, the ALJ did not ask
20
21

Plaintiff any questions about her termination from employment.
Third, the ALJ’s discrediting of Plaintiff’s testimony based on

22 statements in the report of the October 11, 2013 neurological
23 examination conducted by Cleotilde S. Jose, M.D. (see AR 1282 [“In 2011,
24 she was given a judgment by the Court that she can work but mainly to
25 watch monitors.
26

For the past two years she has been working 6 hours a

week, mainly on weekends - 4 hours on [S]aturdays and 2 hours on Sundays
- watching an elderly dying man.”]) was improper. Contrary to the ALJ’s

27

assertion, Plaintiff’s ability to work 6 hours a week (apparently in

28 2011 and 2011) did not create the inference she had the RFC to perform
10

1 work-related tasks after April 24, 2012 (the beginning of the period
2 presently at issue).

Moreover, there is no indication in the record

3 (and the ALJ did not ask Plaintiff at the hearings) about the nature of
4
5

the tasks performed for the elderly man during that two-year period.
Fourth, the ALJ improperly found that Plaintiff’s receipt of

6 employment benefits during 2011 and 2012 “create[d] the inference that
7 [Plaintiff] believed she was ready, willing and able to accept gainful
8 employment” (AR 38).
9
10
11

The report on which the ALJ relies reflects that

Plaintiff received unemployment benefits in the second quarter of 2011
through the fourth quarter of 2012.

(See AR 256-57).

“[R]eceipt of unemployment benefits can undermine a claimant’s

12 alleged inability to work fulltime[.]” Carmickle v. Commissioner, 533
13 F.3d 1155, 1161-62 (9th Cir. 2008).

There is no indication in the

14 record whether Plaintiff was holding herself out as ready, willing and
15

able to do full-time or part-time work.

(See AR 63-64, 66 [Plaintiff

testified at the January 5, 2012 hearing that she was collecting

16 unemployment, and that she was applying for work but that “they will not
17 take [her] with the restrictions.”]). Therefore, Plaintiff’s receipt of
18 unemployment benefits was not a proper basis for finding her not
19 credible.
20
21

See Carmickle, supra, 533 F.3d at 1162 (“[T]he record here

does not establish whether Carmickle held himself out as available for
full-time or part-time work.
disability allegations.

Only the former is inconsistent with his

Thus, such basis for the ALJ’s credibility

22 finding is not supported by substantial evidence.”).
23
24

Fifth, the ALJ’s discrediting of Plaintiff’s testimony because

25 Plaintiff “takes nothing stronger than Ibuprofen for pain” and “[t]here
26

is no evidence of ongoing physical therapy, occupational therapy, or
other rehabilitative therapy” was improper.

27

Evidence of conservative

treatment may be considered in a credibility determination,

28 Astrue,

481

F.3d

742,

750-51

(9th
11

Cir.

2007)

Parra v.

(“[E]vidence

of

1 ‘conservative

treatment’

is

sufficient

to

discount

2 testimony regarding severity of an impairment[.]”).

a

claimant’s

However, there is

3 some evidence in the record that Plaintiff’s treatment was not so
4

conservative, i.e., Plaintiff’s testimony she took Tramadol for pain
(see AR 99 [Plaintiff’s testimony at the November 19, 2013 hearing]; AR

5 295 [the statement in the Disability Report - Appeal submitted on June
6 29, 2011 that Daniel Capan, M.D. of Downey Orthopedic Medical Group
7 prescribed Capsaicin/Tramadol]), notations in medical records that
8 Plaintiff received (or was recommended to receive) physical therapy
9
10

after June 2011 (see AR 821-23) and in October 2013 (see AR 1308), a
notation in a medical record that in September 2013 (following an X-ray
of Plaintiff’s wrist) Plaintiff was referred to an orthopedist “for

11 surgical options” (see AR 1309), and an indication that Plaintiff
12 received physical therapy services prior to October 2013 (see AR 1615).
13 Moreover, at the November 19, 2013 hearing, the ALJ did not ask
14 Plaintiff about the lack of medical records reflecting a Tramadol
15

prescription.

Moreover, at the January 5, 2012 and November 19, 2013

hearings, the ALJ did not ask Plaintiff about physical therapy services

16 in 2011 through 2013.
17
18

Sixth, the ALJ’s discrediting of Plaintiff’s testimony because he

19 “observed the claimant to sit throughout the proceedings in no apparent
20
21

discomfort” and “without any noted distractions or overt pain behavior”
(AR 38) was improper.

See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir.

1989) (“That a claimant does not exhibit manifestations of pain at the

22 hearing before the ALJ is, standing alone, insufficient to rebut a claim
23 of pain.”); Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985)
24 (condemning an ALJ’s reliance of a plaintiff at a hearing as “‘sit and
25 squirm’ jurisprudence”).
26

testified she could sit in a chair for about an hour.
Since

27

At the November 19, 2013 hearing, Plaintiff

it

appears

that

the

November

19,

2013

hearing

(AR 102-03).
lasted

for

approximately 40 minutes (see AR 77, 113), the ALJ’s reliance on his

28 observation of Plaintiff at the hearing was not a sufficient basis for
12

1 discrediting her testimony.
2
Seventh, although the ALJ also found that there was a lack of

3
4

objective medical evidence supporting Plaintiff’s testimony concerning
her symptoms and limitations, the lack of supporting objective medical

5 evidence cannot, by itself, support an adverse credibility finding. See
6 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Tidwell v.
7 Apfel, 161 F.3d 599, 602 (9th Cir. 1998).
8
9 B.
10
11

Remand Is Warranted
The decision whether to remand for further proceedings or order an

immediate award of benefits is within the district court’s discretion.

12 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no
13 useful purpose would be served by further administrative proceedings, or
14 where the record has been fully developed, it is appropriate to exercise
15 this discretion to direct an immediate award of benefits.
16

Id. at 1179

(“[T]he decision of whether to remand for further proceedings turns upon
the likely utility of such proceedings.”). However, where, as here, the

17 circumstances of the case suggest that further administrative review
18 could remedy the Commissioner’s errors, remand is appropriate. McLeod
19 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, supra,
20 211 F.3d at 1179-81.
21
Since the ALJ failed to properly assess Plaintiff’s credibility,

22

remand is appropriate.

Because outstanding issues must be resolved

23 before a determination of disability can be made, and “when the record
24 as a whole creates serious doubt as to whether the [Plaintiff] is, in
25 fact, disabled within the meaning of the Social Security Act,” further
26 administrative proceedings would serve a useful purpose and remedy
27

defects.

Burrell

v.

Colvin,

775

28
13

F.3d

1133,

1141

(9th

Cir.

1 2014)(citations omitted).6
2
ORDER

3
4

For the foregoing reasons, the decision of the Commissioner is

5

reversed, and the matter is remanded for further proceedings pursuant to

6 Sentence 4 of 42 U.S.C. § 405(g).
7
8

LET JUDGMENT BE ENTERED ACCORDINGLY.

9
10

DATED: February 5, 2016

11

/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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27
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6

The Court has not reached any other issue raised by Plaintiff
except insofar as to determine that reversal with a directive for the
immediate payment of benefits would not be appropriate at this time.
“[E]valuation of the record as a whole creates serious doubt that
Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995,
1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s
claims regarding the ALJ’s error in determining that Plaintiff
experienced medical improvement as of April 25, 2012 (see Joint Stip. at
10-15), the ALJ’s error in assessing Plaintiff’s RFC (see Joint Stip. at
10, 22-24) and the ALJ’s error in failing to identify and reconcile
discrepancies between the vocational expert’s testimony and the Selected
Characteristics of Occupations (see Joint Stip. at 10, 41-44, 48-49).
Because this matter is being remanded for further consideration, these
issues should also be considered on remand.
14