Hawk v. Astrue
ORDER re: 1 Complaint filed by Jacqueline Hawk, by Judge Philip A. Brimmer on 03/29/13. Decision of the Commissioner REVERSED and REMANDED.(ebutl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-00575-PAB
MICHAEL J. ASTRUE,
Commissioner of Social Security,
This matter is before the Court on plaintiff Jacqueline Hawk’s complaint [Docket
No. 1], filed on March 6, 2012. Plaintiff seeks review of the final decision of defendant
Michael J. Astrue (the “Commissioner”) denying plaintiff’s claim for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social Security
Act (the “Act”), 42 U.S.C. §§ 401-33 and 1381-83c.1 The Court has jurisdiction to
review the Commissioner’s final decision under 42 U.S.C. § 405(g).
On June 5, 2009, plaintiff applied for disability benefits under Title II and Title XVI
of the Act. R. at 13. Plaintiff alleged that she had been disabled since January 7,
2005. Id. After an initial administrative denial of her claim, plaintiff received a hearing
The Court has determined that it can resolve the issues presented in this matter
without the need for oral argument.
before an Administrative Law Judge (“ALJ”) on January 20, 2011. Id. On February 24,
2011, the ALJ issued a decision denying plaintiff’s claim. Id. at 22.
The ALJ found that plaintiff had the following severe impairments: “lumbar
degenerative joint disease, major depressive disorder, PTSD, migraine headaches, and
alcohol abuse disorder in partial remission.” R. at 15. The ALJ found that these
impairments, alone or in combination, did not meet one of the regulations’ listed
impairments, R. at 17, and ruled that plaintiff had the residual functional capacity
perform light work as defined in 20 CFR 416.927(b), that does not require
more than occasional bending, stooping, or crouching, does not require
working in groups of more than five, and does not require more than
occasional interaction with the general public.
R. at 18. Based upon this RFC and in reliance on the testimony of a vocational expert
(“VE”), the ALJ concluded that plaintiff was not disabled as “there are jobs that exist in
significant numbers in the national economy that the claimant can perform.” R. at 21.
The Appeals Council denied plaintiff’s request for review of this denial. R. at 1.
Consequently, the ALJ’s decision is the final decision of the Commissioner.
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). The district court may not reverse
an ALJ simply because the court may have reached a different result based on the
record; the question instead is whether there is substantial evidence showing that the
ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.
1990). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence is not
substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). The district
court will not “reweigh the evidence or retry the case,” but must “meticulously examine
the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty, 515
F.3d at 1070. Nevertheless, “if the ALJ failed to apply the correct legal test, there is a
ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993).
B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous period
of twelve months that prevents the claimant from performing any substantial gainful
work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,
[a]n individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.
§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and (5)
whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point in
the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of
Health and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisfied her burden of
establishing a prima facie case of disability under steps one, two, and four, the burden
shifts to the Commissioner to show the claimant has the residual functional capacity
(RFC) to perform other work in the national economy in view of her age, education, and
work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005);
see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). While the claimant has the
initial burden of proving a disability, “the ALJ has a basic duty of inquiry, to inform
himself about facts relevant to his decision and to learn the claimant’s own version of
those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
C. The ALJ’s Decision
Plaintiff argues that the ALJ erred in determining plaintiff’s RFC by failing to
consider certain aspects of opinions submitted by plaintiff’s treating physician, Dr.
Robert Magnuson, and one of plaintiff’s consulting examiners, Dr. Louis Hoffman.
Docket No. 16 at 4-6.
“The record must demonstrate that the ALJ considered all of the evidence, but
an ALJ is not required to discuss every piece of evidence.” Clifton v. Chater, 79 F.3d
1007, 1009-1010 (10th Cir. 1996). “[I]n addition to discussing the evidence supporting
his decision, the ALJ also must discuss the uncontroverted evidence he chooses not to
rely upon, as well as significantly probative evidence he rejects.” Id. at 1010; see also
SSR 96-8p, 1996 WL 374184, at *7, (July 2, 1996) (“The RFC assessment must
always consider and address medical source opinions. If the RFC assessment conflicts
with an opinion from a medical source, the adjudicator must explain why the opinion
was not adopted.”). “An ALJ is not entitled to pick and choose through an
uncontradicted medical opinion, taking only the parts that are favorable to a finding of
nondisability.” Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007); see also Frantz v.
Astrue, 509 F.3d 1299, 1302-03 (10th Cir. 2007) (holding that ALJ erred in accepting
some of the limitations listed on a mental impairment RFC form by a nonexamining
physician, while rejecting others without explanation). The Court may not affirm an
ALJ’s decision based on a post-hoc rationale supplied in an appellate brief, since doing
so would “usurp essential functions committed in the first instance to the administrative
process.” Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004). Although the Tenth
Circuit has applied the doctrine of harmless error in administrative appeals, it is only
appropriate where “no reasonable administrative factfinder, following the correct
analysis, could have resolved the factual matter in any other way.” Id. at 1145.
1. Dr. Magnuson
Plaintiff argues that the ALJ erred in giving no weight to the opinions of Dr.
Magnuson contained in two Med-9 forms and a Headaches Residual Functional
Capacity Questionnaire (the “headache questionnaire”). Docket No. 16 at 4-5; see R.
at 20. The ALJ understandably concluded that Dr. Magnuson’s opinions were unsigned
because the signature line contains only a checkmark. See R. at 230, 295, 301.
However, Dr. Magnuson’s subsequent letter, R. at 303, indicates that he did sign these
forms and the signature on his letter also has the appearance of a checkmark. Thus,
the ALJ’s conclusion that the forms and headache questionnaire were unsigned was a
mistake of fact.
If the medical opinion of a treating practitioner is well supported by medically
acceptable evidence and is not inconsistent with the other substantial evidence in the
record, an ALJ must give it controlling weight. 20 C.F.R. § 416.927(2)(c). In the event
that the opinion of a treating physician does not merit controlling weight, the ALJ
considers the following factors in determining how to evaluate the opinion: length of the
treating relationship, frequency of examination, nature and extent of the treating
relationship, evidentiary support, consistency with the record, medical specialization,
and other relevant considerations. Id. An ALJ may dismiss or discount an opinion from
a medical source only if her decision to do so is “based on an evaluation of all of the
factors set out in the cited regulations” and if she provides “specific, legitimate reasons”
for her rejection. Chapo v. Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012). An ALJ’s
rejection of a medical opinion based on an incorrect reading of the record is grounds for
remand. See Mercer v. Colvin, 2013 WL 785358, at *2 (N.D. Okla. Mar. 1, 2013).
a. Headaches Residual Functional Capacity Questionnaire
Defendant argues that, even though the ALJ did not “affirmatively discuss” the
headache questionnaire, “the ALJ’s residual functional capacity determination is not
entirely inconsistent with the limitations” found by Dr. Magnuson. Docket No. 17 at 14.
Defendant further argues that, to the extent that the ALJ’s RFC determination is
inconsistent with Dr. Magnuson’s opinion, the failure to explicitly discuss this
discrepancy is harmless error because the ALJ relied on Dr. Magnuson’s objective
medical findings–specifically his findings that plaintiff has normal strength, muscle tone,
gait, joints, and motor function–in rejecting the more restrictive limitations that Dr.
Magnuson proposed. Docket No. 17 at 15-16 (“the ALJ’s citation to the benign
objective examination and radiological evidence were adequate to satisfy the ALJ’s
non-adoption of Dr. Magnuson’s limitations that were more restrictive than the residual
Dr. Magnuson began serving as plaintiff’s general practitioner on October 29,
2010 and plaintiff has visited his office a number of times since then. R. at 231-272.
On the headache questionnaire, he answered “Yes” to the question of whether plaintiff
would sometimes need to take unscheduled breaks during an eight-hour workday. R.
at 300. He further stated that she would need to take such breaks twice per week for a
period of two hours at a time. Id.
At the hearing, the ALJ asked the VE which jobs were available to a hypothetical
individual with claimant’s physical limitations, i.e. someone restricted to light work that
does not require more than occasional bending, stooping, or crouching. R. at 42. The
VE identified several jobs. Id. The ALJ then asked whether the identified jobs could be
performed by someone with plaintiff’s nonexertional limitations, namely, that she cannot
work in groups larger than five or interact with the public. Id. The VE stated that an
individual with those limitations could work as a maid, a parts assembler, or a laundry
worker. R. at 43. Finally, the ALJ asked which jobs would be available if she imposed
“the additional limitation that the person would miss work two to three times per month
on an unscheduled basis.” R. at 44. In response to this third hypothetical, the VE
stated that there would be no jobs available for such an individual. Id. The ALJ did not
discuss this third hypothetical in her decision. See generally, R. at 13-22.
Defendant does not cite, nor has the Court found, any evidence in the record
contradicting Dr. Magnuson’s opinion that plaintiff’s migraines would require her to miss
work two times per week for two hours at a time. R. at 300. On the contrary, on August
15, 2009, plaintiff told Dr. Borja that she experiences a migraine headache twice a
week, lasting up to three hours. R. at 214. Nonetheless, the ALJ neither included this
limitation in the RFC determination nor discussed her reason for discounting this aspect
of Dr. Magnuson’s opinion, except to state that she was disregarding the questionnaire
in its entirety because she found that it was not signed. R. at 20. As stated above,
these forms were, in fact, signed by Dr. Magnuson. See R. at 303. Thus, the ALJ did
not have a “specific, legitimate” reason for rejecting the questionnaire, see Chapo, 682
F.3d at 1291, and the ALJ’s mistaken reading of the record is grounds for remand. See
Mercer, 2013 WL 785358, at *2.
Moreover, Dr. Magnuson’s opinion that plaintiff needs to miss work several times
each week constitutes “uncontroverted evidence” that the ALJ chose not to rely on and
was thus required to discuss. See Clifton, 79 F.3d at 1010. Given the VE’s testimony
that the need to miss work “two to three times per month on an unscheduled basis”
would eliminate all available jobs, R. at 44, this opinion constitutes “significantly
probative evidence” that was rejected by the ALJ. See id. Defendant’s argument that
the failure to discuss the questionnaire is harmless error is unavailing. The Court
cannot “confidently say that no reasonable administrative factfinder . . . could have
resolved the factual matter in any other way,” and thus this argument invites only
impermissible post-hoc rationalization. See Allen, 357 F.3d at 1145.
Since the ALJ’s stated reason for rejecting the uncontroverted medical opinion of
plaintiff’s treating physician is invalid, and this evidence appears to be both
uncontroverted and probative, this case must be remanded so that the ALJ can weigh
the questionnaire in assessing plaintiff’s RFC.
b. Med-9 Forms
Plaintiff argues that the ALJ erred by failing to consider the two Med-9 forms
submitted by Dr. Magnuson, both of which state that plaintiff has been or will be
disabled and incapable of working for a period of six months. Docket No. 16 at 5. The
Commissioner argues that the ALJ could not give any weight to the Med-9 forms
because they do not contain a medical opinion but instead state a conclusion on an
issue reserved to the Commissioner. Docket No. 17 at 13.
An ultimate determination on the question of a claimant’s disability is reserved to
the Commissioner, 20 C.F.R. § 416.927(d), and thus, a treating physician’s opinion that
a claimant is disabled may not be given controlling weight or special significance. SSR
96-5p, 1996 WL 374183, at *2 (July 2, 1996). Nonetheless, the Social Security rules
“provide that adjudicators must always carefully consider medical source opinions about
any issue, including opinions about issues that are reserved to the Commissioner.” Id.
The Tenth Circuit has declined to impose a categorical rule that the opinion of a treating
physician only constitutes substantial evidence when it includes examination findings or
treatment notes. Anderson v. Astrue, 319 F. App’x 712, 723 (10th Cir. 2009); see also
Angster v. Astrue, 703 F. Supp. 2d 1219, 1229 (D. Colo. 2010) (finding that an ALJ’s
decision to reject a mental impairment questionnaire because it did not include
treatment notes was unfounded given that other evidence in the record supported facts
of plaintiff’s treatment history and was consistent with questionnaire). In addition, an
ALJ may not infer that a treating physician’s opinion is of “limited reliability” solely
because it is expressed in a form that consists largely of check-boxes and does not ask
for extensive rationales. Anderson, 319 F. App’x at 723-24.
On the two Med-9 forms that he submitted in this case, Dr. Magnuson checked
the box next to the statement that: “I find this individual has been or will be disabled
for a period of 6 months or longer to the extent they are unable to work at any job due
to a physical or mental impairment. Prognosis: Client is expected to be disabled for 6
months.” R. at 230, 295 (emphasis in original). No other box is checked and no other
information is provided by Dr. Magnuson.
The Med-9 forms completed by Dr. Magnuson contain an opinion from a medical
source concerning an issue reserved to the Commissioner. See SSR 96-5p, 1996 WL
374183, at *2. However, since the ALJ gave no weight to these forms because she
mistakenly believed they were not signed, she did not “carefully consider” Dr.
Magnuson’s opinion as required by the Social Security Rules. See SSR 96-5p, 1996
WL 374183, at *2. Although the ALJ may well have good reason to accord them no
weight, see Chapo, 682 F.3d at 1289 (“The ALJ properly gave no weight to this
conclusory [Med-9] form, which lacked any functional findings.”), on remand the ALJ
must consider these forms and apply the factors in 20 C.F.R. § 416.927(c)(2) to
determine how much weight, if any, to give them. See SSR 96-5p, 1996 WL 374183, at
*3 (“it would be appropriate to consider the supportability of the opinion and its
consistency with the record as a whole . . . in evaluating an opinion about the claimant’s
ability to function which is from a State agency medical or psychological consultant who
has based the opinion on the entire record”).
2. Dr. Hoffman
Plaintiff argues that the ALJ erred in failing to consider Dr. Hoffman’s findings
that plaintiff has a Global Assessment of Functioning (“GAF”) score of 48 and that
plaintiff would likely find it very difficult to engage in appropriate interactions with other
people in the workplace. Docket No. 16 at 6.
Defendant argues that the ALJ’s failure to explicitly address these aspects of Dr.
Hoffman’s opinion is harmless error because the ALJ adopted Dr. Hoffman’s diagnosis
of PTSD and major depression and because the RFC is consistent with the functional
limitations that Dr. Hoffman identified, including the restriction on interpersonal
interaction. Docket No. 17 at 17; see R. at 18 (“claimant has the residual functional
capacity to perform light work . . . that does not require . . . working in groups of more
than five, and does not require more than occasional interaction with the general
public.”). Defendant also argues that the ALJ did not need to discuss plaintiff’s GAF
score because that number is only an index of the severity of plaintiff’s symptoms and
is not probative of specific functional limitations. Docket No. 17 at 17.
In a section of his report entitled “Diagnostic Impressions,” Dr. Hoffmann states
that plaintiff’s current GAF is 48.2 R. at 210. While the report does not analyze or
interpret this score, it does analyze plaintiff’s mental condition in detail, placing the
number 48 within the context of plaintiff’s specific difficulties. In the report’s conclusion,
Dr. Hoffman states that “[t]he combination of the PTSD with depression is severe
enough that they would likely make it very difficult for Ms. Hawk to perform many job
tasks, including appropriate interactions with other people.” R. at 211.
“The GAF is a subjective determination based on a scale of 100 to 1 of the
clinician’s judgment of the individual’s overall level of functioning.” Lee v. Barnhart, 117
F. App’x 674, 678 (10th Cir. 2004) (internal citations omitted). The Diagnostic and
Statistical Manual of Mental Disorders explains that a GAF score between 41 and 50
indicates “‘[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) OR any serious impairment in social, occupational, or school
functioning (e.g., no friends, inability to keep a job).’ Diagnostic and Statistical Manual
of Mental Disorders 34 (4th ed. 2000).” Id.
In her decision, the ALJ discussed many of Dr. Hoffman’s findings, including
those related to plaintiff’s demeanor, appearance, medical history, substance abuse,
activities of daily living, psychiatric diagnosis, and prognosis. R. at 15-16. She did not
discuss Dr. Hoffman’s finding regarding plaintiff’s GAF score or his statement that
plaintiff would have considerable difficulty with all interpersonal interactions.
a. GAF Score
“‘While a GAF score may be of considerable help to the ALJ in formulating the
RFC . . ., it is not essential to the RFC’s accuracy’ and taken alone does not establish
an impairment serious enough to preclude an ability to work.” Holcomb v. Astrue, 389
F. App’x 757, 759 (10th Cir. 2010) (quoting Howard v. Comm’r of Soc. Sec., 276 F.3d
235, 241 (6th Cir. 2002)). In Drummond v. Astrue, --- F. Supp. 2d ----, No. 11-cv-1286,
2012 WL 3962682, at *9-11 (D. Kan. Sept. 10, 2012), the court reviewed a number of
recent cases from this circuit concerning the extent to which an ALJ must consider or
discuss a claimant’s GAF score. From this survey, the court distilled the principle that
“GAF scores do not directly correlate to the severity criteria used by the Social Security
Administration” and thus “a GAF score without a narrative explanation from the source
of the score is of little value in determining the severity of the claimant’s impairments or
the limitations resulting from [her] impairments.” Id. at *11. The court further explained
that “the better and more thorough the narrative explanation given for the GAF score,
the greater the consideration it must be given, and the greater the need for discussion
in the decision.” Id. Moreover, where a GAF score is inconsistent with the ALJ’s
findings, “that inconsistency must be resolved.” Id.
The cases that defendant cites identify an additional relevant factor: the source
of the score. Accordingly, courts have held that it is not error for an ALJ to omit
discussion of an unexplained GAF score from a non-medical source, such as a licensed
counselor, that is contradicted by other evidence in the record. See Luttrell v. Astrue,
453 F. App’x 786, 792 (10th Cir. 2011) (“Here, the GAF scores [assessed by a
counselor] were neither uncontroverted nor significantly probative, particularly given
their remote timing and conflict with the [consultative examiner’s] detailed medical
findings . . . . While it may have been preferable for the ALJ to have specifically recited
why he chose to disregard the GAF scores, it is enough that” the ALJ’s decision permits
a reviewer to follow his reasoning); Butler v. Astrue, 412 F. App’x 144, 147 (10th Cir.
2011) (holding that it was not error for an ALJ to omit discussion of GAF scores that
were assessed by counselors where those scores were controverted by a higher score
submitted by a physician and were not linked to specific functional limitations);
Holcomb, 389 F. App’x at 760 (“the lower GAF scores from other [non-medical] sources
were not ‘uncontroverted evidence [the ALJ] chose not to rely on,’ see Clifton, 79 F.3d
at 1010, but were, rather, bits of information not essential to [claimant’s] RFC
determination, inadequate to establish disability, and contradicted by an opinion from
an acceptable medical source.”).
In contrast, the court in Hacker v. Astrue, 2008 WL 4224952, *4-5 (W.D. Okla.
Sept. 10, 2008), found that an ALJ erred by failing to discuss several aspects of an
opinion submitted by a consultative examining psychiatrist, including his opinion that
plaintiff had a GAF score of 40. When asked at the hearing about the impact of a GAF
score between 40 and 50, the VE stated that a person with a score in that range might
be able to find a job but would be unable to keep it. Id. at *5. Based on this testimony,
the court declined to find that the ALJ’s error in accepting certain aspects of the
psychiatrist’s report while rejecting other aspects of it was harmless. Id.
In this case, plaintiff’s GAF score was assessed in a consultative examination by
an acceptable medical source. R. at 15; see 20 C.F.R. § 416.927(a)(2). It was
submitted to the ALJ in the context of a seven-page report containing a thorough
narrative explanation of plaintiff’s medical history, diagnosis, and prognosis, which
identified plaintiff’s functional limitations. See R. at 205-11; Drummond, 2012 WL
3962682, at *11. The ALJ did not cite to evidence in the record that contradicts Dr.
Hoffman’s opinion that plaintiff has a GAF of 48. See R. at 20. Given that a GAF score
of 48 signifies “serious impairment in social, occupational, or school functioning (e.g.,
no friends, inability to keep a job),” the Court cannot conclude that the failure to address
this aspect of Dr. Hoffman’s opinion was harmless error. See Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed. 2000); Allen, 357 F.3d at 1142. Furthermore, to
the extent that the score is inconsistent with the ALJ’s findings, that inconsistency must
be resolved. See Drummond, 2012 WL 3962682 at *11.
b. Personal Interaction
Plaintiff argues that the ALJ erred by failing to consider Dr. Hoffman’s opinion
that plaintiff would have difficulty dealing with all people, including co-workers and
supervisors, as opposed to just the public. Docket No. 18 at 3-4. Defendant counters
that the ALJ’s RFC determination is consistent with the limitations that Dr. Hoffman
found. Docket No. 17 at 17-18.
Although the ALJ did not explicitly address Dr. Hoffman’s opinion that plaintiff
would have difficulty in dealing with people, the decision demonstrates that she
considered it, since she adopted a limitation relating to personal interaction. See R. at
18; Clifton, 79 F.3d at 1009-10 (“The record must demonstrate that the ALJ considered
all of the evidence, but an ALJ is not required to discuss every piece of evidence.”). Dr.
Hoffman did not say that plaintiff was entirely incapable of interacting with all people,
only that interaction would be difficult for her. R. at 211. Moreover, plaintiff testified at
the hearing that she can be around “[f]ive people, if I know them,” but not more than
that. R. at 37.
The record indicates that the ALJ considered Dr. Hoffman’s opinion regarding
plaintiff’s difficulty interacting with other people and thus the ALJ did not err in failing to
discuss it explicitly.
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff was not disabled
is REVERSED and REMANDED for further proceedings consistent with this opinion.
DATED March 29, 2013.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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