MCDERMOTT v. BERRYHILL
Filing
21
MEMORANDUM DECISION AND ORDER. Nancy A. Berryhill is substituted for Carolyn W. Colvin as Defendant in this action. The Commissioner's decision denying benefits is REVERSED. This case is REMANDED to the Commissioner of Social Security pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on 3/22/2017. (sdw)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
WILLIAM J. McDERMOTT,
Plaintiff,
vs.
Case No.: 5:16cv17/EMT
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.
______________________________/
MEMORANDUM DECISION AND ORDER
This case has been referred to the undersigned magistrate judge for disposition
pursuant to the authority of 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, based on the
parties’ consent to magistrate judge jurisdiction (see ECF Nos. 8, 9). It is now before
the court pursuant to 42 U.S.C. § 405(g) of the Social Security Act (“the Act”), for
review of a final decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying Plaintiff’s application for disability insurance benefits
(“DIB”) under Title II of the Act, 42 U.S.C. §§ 401–34, and supplemental security
income (“SSI”) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381–83.
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Pursuant to Fed. R. Civ. P. 25(d), she is therefore automatically substituted for Carolyn W.
Colvin as the Defendant in this case.
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Upon review of the record before this court, it is the opinion of the undersigned
that the findings of fact and determinations of the Commissioner are not supported by
substantial evidence; thus, the decision of the Commissioner should be reversed and
remanded.
I.
PROCEDURAL HISTORY
On June 20, 2012, Plaintiff filed applications for DIB and SSI, and in each
application he alleged disability beginning December 31, 2006, but the date was later
amended to January 1, 2010 (Tr. 12).2 His applications were denied initially and on
reconsideration, and thereafter he requested a hearing before an administrative law
judge (“ALJ”). A hearing was held on May 9, 2014, and on September 12, 2014, the
ALJ issued a decision in which she found Plaintiff “not disabled,” as defined under
the Act, at any time through the date of her decision (Tr. 12–24). The Appeals
Council subsequently denied Plaintiff’s request for review. Thus, the decision of the
ALJ stands as the final decision of the Commissioner, subject to review of Plaintiff’s
appeal in this court. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1262
(11th Cir. 2007).
2
All references to “Tr.” refer to the transcript of Social Security Administration record filed
on April 15, 2016 (ECF No. 11). The page numbers refer to those found on the lower right-hand
corner of each page of the transcript, as opposed to those assigned by the court’s electronic
docketing system or any other page numbers that may appear.
Case No.: 5:16cv17/EMT
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II.
FINDINGS OF THE ALJ
In denying Plaintiff’s claims, the ALJ made the following relevant findings (see
Tr. 12–24):
(a)
Plaintiff met the insured status requirements of the Act through
December 31, 20113;
(b)
Plaintiff had not engaged in substantial gainful activity since January 1,
2010, the amended alleged onset date;
(c)
Plaintiff had the following severe impairments: gout, obstructive sleep
apnea, neuropathy, paresthesia, status post cervical radiculopathy, obesity, depression,
and anxiety;
(d)
Plaintiff did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1;
(e)
Plaintiff had the residual functional capacity to perform light work as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except he required the option to
3
Thus, the time frame relevant to Plaintiff’s claim for DIB is January 1, 2010 (date of alleged
onset), through December 31, 2011 (date last insured). The time frame relevant to his claim for SSI
is June 20, 2012 (the date he applied for SSI) through September 12, 2014 (the date the ALJ issued
her decision). See Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (indicating that SSI
claimant becomes eligible to receive benefits in the first month in which he is both disabled and has
an SSI application on file).
Case No.: 5:16cv17/EMT
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alternate between sitting and standing, providing for change of position at thirtyminute intervals; could never climb ladders, ropes, or scaffolds; could occasionally
climb ramps or stairs; could occasionally balance, stoop, crouch, kneel, and crawl;
should avoid concentrated exposure to excessive vibrations, fumes/odors/dusts/gases/
moving machinery/unprotected heights; and was limited to simple, routine, and
repetitive tasks;
(f)
Plaintiff was unable to perform any past relevant work;
(g)
Plaintiff was born on March 29, 1963, and thus was 49 years old, which
is defined as a younger individual aged 18–49, on the alleged disability onset date.
Plaintiff subsequently changed age category to closely approaching advanced age;
(h)
Plaintiff had at least a high school education and was able to
communicate in English;
(i)
Transferability of job skills was not material to the determination of
disability because using the Medical-Vocational Rules as a framework supported a
finding that Plaintiff was “not disabled,” whether or not Plaintiff had transferable job
skill;
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(j)
Considering Plaintiff’s age, education, work experience, and residual
functional capacity, there were jobs that existed in significant numbers in the national
economy that Plaintiff could have performed; and
(k)
Plaintiff had not been under a disability, as defined in the Act, from
January 1, 2010, through the date of the ALJ’s decision.
III.
STANDARD OF REVIEW
Review of the Commissioner’s final decision is limited to determining whether
the decision is supported by substantial evidence from the record and was a result of
the application of proper legal standards. Carnes v. Sullivan, 936 F.2d 1215, 1218
(11th Cir. 1991) (“[T]his Court may reverse the decision of the [Commissioner] only
when convinced that it is not supported by substantial evidence or that proper legal
standards were not applied.”); see also Lewis v. Callahan, 125 F.3d 1436, 1439 (11th
Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). “A determination
that is supported by substantial evidence may be meaningless . . . if it is coupled with
or derived from faulty legal principles.” Boyd v. Heckler, 704 F.2d 1207, 1209 (11th
Cir. 1983), superseded by statute on other grounds as stated in Elam v. R.R. Ret. Bd.,
921 F.2d 1210, 1214 (11th Cir. 1991). As long as proper legal standards were applied,
the Commissioner’s decision will not be disturbed if in light of the record as a whole
the decision appears to be supported by substantial evidence. 42 U.S.C. § 405(g);
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Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998); Lewis, 125 F.3d at 1439; Foote
v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). Substantial evidence is more than a
scintilla, but not a preponderance; it is “such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)); Lewis, 125
F.3d at 1439. The court may not decide the facts anew, reweigh the evidence, or
substitute its judgment for that of the Commissioner. Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990) (citations omitted). Even if the evidence preponderates
against the Commissioner’s decision, the decision must be affirmed if supported by
substantial evidence. Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Cir. 1986).
The Act defines a disability as an “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 last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). To qualify
as a disability the physical or mental impairment must be so severe that the claimant
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.” Id. § 423(d)(2)(A). Pursuant to 20 C.F.R.
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§ 404.1520(a)–(g),4 the Commissioner analyzes a disability claim in five steps:
1.
If the claimant is performing substantial gainful activity, he is not
disabled.
2.
If the claimant is not performing substantial gainful activity, his
impairments must be severe before he can be found disabled.
3.
If the claimant is not performing substantial gainful activity and he has
severe impairments that have lasted or are expected to last for a continuous period of
at least twelve months, and if his impairments meet or medically equal the criteria of
any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the claimant is
presumed disabled without further inquiry.
4.
If the claimant’s impairments do not prevent his from doing his past
relevant work, he is not disabled.
5.
Even if the claimant’s impairments prevent his from performing his past
relevant work, if other work exists in significant numbers in the national economy that
accommodates his RFC and vocational factors, he is not disabled.
4
In general, the legal standards applied are the same regardless of whether a claimant seeks
DIB or SSI, but separate, parallel statutes and regulations exist for DIB and SSI claims (see 20
C.F.R. §§ 404, 416). Therefore, citations in this Order should be considered to refer to the
appropriate parallel provision. The same applies to citations of statutes or regulations found in
quoted court decisions.
Case No.: 5:16cv17/EMT
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The claimant bears the burden of establishing a severe impairment that keeps
him from performing his past work. 20 C.F.R. § 404.1512. If the claimant establishes
such an impairment, the burden shifts to the Commissioner at step five to show the
existence of other jobs in the national economy which, given the claimant’s
impairments, the claimant can perform. MacGregor v. Bowen, 786 F.2d 1050, 1052
(11th Cir. 1986). If the Commissioner carries this burden, the claimant must then
prove he cannot perform the work suggested by the Commissioner. Hale v. Bowen,
831 F.2d 1007, 1011 (11th Cir. 1987).
IV.
PLAINTIFF’s RELEVANT MEDICAL HISTORY5
Alongside the medical record and Plaintiff’s own testimony, the ALJ reviewed
and considered Plaintiff’s impairments in determining that he had the RFC to perform
light work with the additional limitations described above (Tr. 17–18). In doing so,
she evaluated Plaintiff’s credibility, finding his statements regarding the intensity,
persistence and limiting effects of his symptoms to not be entirely credible (Tr. 18).
She also detailed the evaluative reports provided by Plaintiff’s physicians and other
consultants and assigned various weights to those reports (Tr. 18–22).
As is of particular relevance here, the ALJ reviewed and evaluated a disability
evaluation (Tr. 317–29) performed by Osama Elshazly, M.D., as follows:
5
Unless otherwise noted, the information in this section is derived from the ALJ’s opinion
(see Tr. 12–24).
Case No.: 5:16cv17/EMT
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Further, upon consultative examination in August 2013, [the
claimant] had full range of motion in all joints, but for the lumbar spine.
(Exhibit 7F, p.2). He had tenderness over the lumbosacral spine,
positive straight leg raise at 45 degrees sitting and supine bilaterally, and
was unable to do squat, toe walking, or heel walking. (Exhibit 7F, p.12).
The claimant had 4/5 grip strength and fine manipulation. He also had
decreased sensation in both lower extremities from the ankle down to the
toes, mostly on the left. He had 4/5 motor activity in the upper and
lower extremities. (Exhibit 7F, p.13). The examiner, Dr. Elshazly,
assessed him with chronic back pain, most likely lumbar disc disease as
the symptoms and physical exam are consistent with disc herniation;
hypertension; depression; insomnia; cannot rule out narcolepsy; and
umbilical hernia. (Exhibit 7F, p.13). Dr. Elshazly concluded the
claimant has several medical problems that may interfere with his daily
activities. (Exhibit 7F, p.13).
Dr. Elshazly also submitted a medical source statement wherein
he opined the claimant could lift or carry only up to ten pounds
occasionally; sit for six hours, stand for six hours, and walk for five
hours in an eight-hour working day; requires the use of a cane to
ambulate; can frequently reach, handle, finger, feel, push or pull with the
upper extremities; and frequently operate foot controls. (Exhibit 7F).
Further, Dr. Elshazly opined the claimant can never climb ladders or
scaffolds, balance, stoop, kneel, crouch, or crawl[;] can occasionally
tolerate exposure to moving mechanical parts and operate a motor
vehicle; and only frequently be exposed to other environmental
conditions. (Exhibit 7F, p.8–9).
...
Regarding the claimant’s physical limitations, I have given some,
but not great weight to Dr. Elshazly’s opinion that the claimant is limited
to sedentary lifting at ten pounds, can “never” perform postural
movements, but is capable of performing the full range of sitting (6
hours), standing (6 hours), and walking (5 hours). (Exhibit 7F). The
extent of these limitations—specifically that the claimant is not capable
of performing postural movements—is not supported by the evidence of
record as a whole or even the claimant’s testimony. However, the record
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does indicate that some limitations are certainly warranted, therefore, the
opinions have been given some, but not great weight.
(Tr. 19, 21).
V.
DISCUSSION
Plaintiff contends that a violation of due process occurred because the ALJ, or
the “hearing office,” failed to provide Plaintiff’s counsel with Exhibit 7f—which was
comprised solely of the medical findings and report of Dr. Elshazly—prior to
Plaintiff’s hearing before the ALJ. As Plaintiff relates, Dr. Elshazly’s report, dated
August 22, 2013, was not included in the electronic record when counsel downloaded
it on February 27, 2014, nor was it supplied in the compact disc containing the
medical record that was presented to counsel on the day of the May 9, 2014, hearing
(ECF No. 14 at 5). Instead, both copies of the record contained only Exhibits 1f
through 6f. During the ALJ’s hearing, no express reference was made to Exhibit 7f,
and counsel thus represents that he was unaware of the existence of Exhibit 7f until
he read the ALJ’s report containing the references to the exhibit and Dr. Elshazly’s
findings as set out above. Plaintiff raised the issue of the missing exhibit, as well as
the due process error that he now claims before this court, to the Appeals Council,
which summarily affirmed the ALJ’s decision without opinion.
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Due process requires that a social security claimant be provided a full and fair
hearing and the opportunity to be heard “at a meaningful time and in a meaningful
manner.” Martz v. Commissioner, Social Sec. Admin., 649 F. App’x 948, 962 (11th
Cir. 2016) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed.
2d 18 (1976)). “Due process is violated when a claimant is denied the opportunity to
subpoena and cross-examine those who submit medical reports.” Hudson v. Heckler,
755 F.2d 781, 784 (11th Cir. 1985). Consequently, decisions that rely on such reports
are subject to invalidation. Cowart v. Schweiker, 662 F.2d 731, 737 (11th Cir. 1981).
Due process concerns may generally be satisfied when the claimant is provided the
opportunity to challenge the reports through interrogatories to the medical personnel
involved or to otherwise countermand the evidence. Martz, 649 F. App’x at 963.
However, “where the ALJ substantially relies upon a post-hearing medical report that
directly contradicts the medical evidence that supports the claimant’s contentions,
cross-examination is of extraordinary utility.” Id. at 964 (quoting Demenech v.
Secretary of the Dept. of Health and Human Services, 913 F.2d 882, 885 (11th Cir.
1990)).6
6
The parties debate whether a violation of procedure as set out in the Hearings, Appeals,
and Litigation Law Manual (“HALLEX”) can constitute a basis for the type of due process violation
alleged here, but the court finds that, independent of the HALLEX rules, the Demenech and Martz
decisions generally establish that an error in due process occurs when a claimant is deprived of an
opportunity to confront medical reports that are relied upon in the ALJ’s decision.
Case No.: 5:16cv17/EMT
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Defendant does not challenge Plaintiff’s assertion that the record he received
from the ALJ did not contain Exhibit 7f. Rather, Defendant asserts that Plaintiff
should have discovered the absence of the record from the file, given that during the
hearing additional exhibits were proffered and numbered. As this argument goes,
Plaintiff had submitted two exhibits on April 25, 2014, approximately two weeks in
advance of the hearing, and then submitted two more exhibits shortly before the
hearing. During the hearing, these last two exhibits were acknowledged, and the ALJ
announced that they would be identified as Exhibits 10f and 11f (Tr. 33).7 Defendant
contends that the numbering of these exhibits should have alerted Plaintiff to the fact
that there was an Exhibit 7f already in the record, to which his four exhibits were
added, and Plaintiff thereby should have objected to the exhibit list when he had the
opportunity (Tr. 33–34). Defendant asks this court to fault Plaintiff, or rather
Plaintiff’s counsel, for failing to deduce the existence of a missing exhibit from the
skewed filing sequence, and from this clerical error suffer the consequence of being
unable to address the contents of the exhibit. The court declines to attach such a
consequence. While the court stops short of simply condoning counsel’s oversight,
to saddle counsel with this error would in effect be to overlook the ALJ’s own error,
7
There is no indication from either party or from the record itself that Plaintiff’s first two
additional exhibits were acknowledged, and more importantly identified for Plaintiff as Exhibits 8f
and 9f either in advance of the hearing or during it.
Case No.: 5:16cv17/EMT
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most likely clerical as well, in evidently failing to include the exhibit in the record in
the first place. Moreover, after counsel discovered the error, he in essence notified the
Appeals Council of it by presenting the same claim he now presents here.
Similarly, Defendant argues that since Plaintiff was physically examined by Dr.
Elshazly at the time or just before he made his report, Plaintiff was effectively on
notice about the report that followed. However, given that there is no indication from
the record that Plaintiff’s counsel had any involvement or knowledge regarding the
appointment with Dr. Elshazly or the resulting report,8 which occurred over eight
months before the ALJ’s hearing, the court again refrains from depriving Plaintiff of
his rights to due process because of this ministerial oversight. While the court
recognizes that Plaintiff himself knew about the examination, it is difficult to sit in
judgment over his layman’s error in not communicating the event to counsel when
there is no evidence in the file that the ALJ (or whoever requested the examination)
notified counsel either, even when the report was inserted into the record.9
8
Plaintiff indicates that Dr. Elshazly’s one-time examination and report was Dr. Elshazly’s
only involvement in the case (see ECF No. 14 at 7).
9
The lone document found by the court, a billing invoice, indicates that Division of
Disability Determinations (DDD) was billed for Dr. Elshazly’s examination and report, thus
suggesting that either the ALJ, DDD, or some other agent of the Commissioner authorized the
examination (Tr. 317). In any event, there is no indication within the record that Plaintiff’s counsel
had any relevant knowledge or participation in the examination process.
Case No.: 5:16cv17/EMT
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Notwithstanding the speculation of where exactly the error lies and in what
proportion, the fact remains that Plaintiff was deprived of Dr. Elshazly’s report during
the hearing and therefore did not have the opportunity to be heard at a meaningful
time and in a meaningful manner. Defendant argues that the Demenech decision is
unavailing for Plaintiff because the facts of that case show that the ALJ obtained a
medical report after the hearing and did not allow counsel for the plaintiff the
opportunity to depose and cross-examine the doctor who authored the report. 913
F.2d at 883. Defendant draws the distinction that in the instant case the medical report
was not submitted after the hearing but before it. However, in light of the facts of the
instant case, the court finds that counsel’s lack of knowledge of the report during the
hearing was tantamount to the situation in Demenech where counsel was refused the
right to challenge the report post-hearing. The key here is the scale or degree of the
deprivation, not the timing of it.
Defendant also attempts to distinguish Demenech on grounds that the ALJ in
that case substantially relied on the medical report in question to discredit the
testimony of the claimant and the medical findings of the claimant’s treating
physician. Id. at 884. In this case however, Defendant asserts, Dr. Elshazly’s report
was given “some, but not great weight” by the ALJ, and therefore, unlike in
Demenech, the report was actually helpful to Plaintiff’s case. The court recognizes
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the distinction but does not find it pivotal. It simply means that, where counsel in
Demenech was deprived of the opportunity to discredit the report or the doctor, in the
instant case counsel lost the opportunity to bolster the parts of the report that were
favorable, so as to perhaps alter the ALJ’s findings regarding Plaintiff’s residual
functional capacity, and to further illuminate the doctor’s findings, so as to perhaps
resolve what the ALJ found to be conflicting aspects of the report. Although an
unfavorable report makes it easier to discern the impact the report would have on an
ALJ’s decision, the court does not read into Demenech any requirement that the report
be negative in order to prejudice the outcome of the case.
Accordingly, the court finds that Plaintiff’s inability to confront the report of
Dr. Elshazly infringed upon his rights to due process at the hearing before the ALJ.
This case will therefore be remanded for further proceedings. In so doing, the court
notes that there may be some question regarding the amount of process that would be
due upon remand. This would stem from the fact that, in Demenech, the court noted
that the report in question was used against the plaintiff in a manner that was
diametrically opposed to the weight of evidence in that case. As a result, the
Demenech court noted that, while counsel for plaintiff had already been able to object
to the report by way of affidavit, the opportunity for cross-examination was “of
extraordinary utility” and was therefore required. 913 F.2d at 884–85. By contrast,
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the court in Martz found that, because counsel had already availed himself of the
opportunity to submit interrogatories to challenge and rebut the doctor's findings
before the ALJ issued his decision, the ALJ’s denial of counsel’s request for crossexamination was not found to violate due process. 649 F. App’x at 963–64. The
court further notes that Plaintiff does not clearly state whether he would request to
depose and cross-examine Dr. Elshazly or whether a lesser measure such as
interrogatories or simply the opportunity for argument against the ALJ’s findings
relative to Dr. Elshazly’s report would suffice. Given the situation, the above cases,
and ultimately how they might affect the findings of the ALJ, the matter is left to the
discretion of the Commissioner.
Finally, the court declines to address Plaintiff’s second claim, that the ALJ
failed to properly weigh the opinion of Plaintiff’s licensed clinical social worker,
Pamela Trompeter, because evidence supplied by Ms. Trompeter is prone to being reweighed in conjunction with any new testimony or evidence that is brought out
relevant to the first issue above. See Demenech, 913 F.2d at 884 (finding that, when
one issue is cause for remand, other issues need not be addressed); Jackson v. Bowen,
801 F.2d 1291, 1294 n.2 (11th Cir. 1986) (declining to address other issues because
they might be reconsidered upon remand).
VI.
CONCLUSION
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In conclusion, for the reasons provided above, this case should follow the
general rule when errors occur, which is to reverse and remand for additional
proceedings. See, e.g., Davis v. Shalala, 985 F.2d 528, 534 (11th Cir.1993) (referring
to general practice); Holt v. Sullivan, 921 F.2d 1221, 1223–24 (11th Cir.1991).
Accordingly, it is ORDERED:
1.
Nancy A. Berryhill is substituted for Carolyn W. Colvin as Defendant in
this action.
2.
The Commissioner’s decision denying benefits is REVERSED.
3.
This case is REMANDED to the Commissioner of Social Security
pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent
with this opinion.
DONE AND ORDERED this 22nd day of March 2017.
/s/ Elizabeth M. Timothy
ELIZABETH M. TIMOTHY
CHIEF UNITED STATES MAGISTRATE JUDGE
Case No.: 5:16cv17/EMT
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