Barnett v. Astrue et al
Filing
29
MEMORANDUM AND OPINION. The final order of the Commissioner is reversed and remanded pursuant to sentence four of 42 U.S.C. §405(g). The Clerk of Court is directed to enter judgment in favor of plaintiff. Signed by Magistrate Judge Clifford J. Proud on 12/30/2014. (jmt)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CAROL J. BARNETT,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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Case No. 13-cv-781-CJP 1
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff Carol J. Barnett, represented
by counsel, seeks judicial review of the final agency decision denying her Disability
Insurance Benefits (DIB) pursuant to 42 U.S.C. § 423.
Procedural History
Ms. Barnett applied for benefits in January, 2010, alleging disability
beginning on August 18, 2008. (Tr. 23). After holding an evidentiary hearing, ALJ
Michael Scurry denied the application for benefits in a decision dated February 16,
2012. (Tr. 23-32). The Appeals Council denied review, and the decision of the
ALJ became the final agency decision. (Tr. 6-12). Administrative remedies have
been exhausted and a timely complaint was filed in this Court.
1
This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 15.
Page 1 of 17
Issues Raised by Plaintiff
Plaintiff raises the following points:
1.
The ALJ erred in determining that plaintiff could return to her past
work as it is generally performed.
2.
The ALJ erred in evaluating plaintiff’s credibility and in assessing her
RFC.
3.
The Appeals Council erred in denying review after plaintiff submitted
new and material evidence.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes. For these purposes, “disabled” means the “inability to engage
in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than 12 months.” 42
U.S.C. §423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from
anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C.
§423(d)(3).
“Substantial gainful activity” is work activity that involves doing
significant physical or mental activities, and that is done for pay or profit. 20
C.F.R. § 404.1572.
Social Security regulations set forth a sequential five-step inquiry to
determine whether a claimant is disabled. The Seventh Circuit Court of Appeals
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has explained this process as follows:
The first step considers whether the applicant is engaging in
substantial gainful activity. The second step evaluates whether an
alleged physical or mental impairment is severe, medically
determinable, and meets a durational requirement. The third step
compares the impairment to a list of impairments that are considered
conclusively disabling. If the impairment meets or equals one of the
listed impairments, then the applicant is considered disabled; if the
impairment does not meet or equal a listed impairment, then the
evaluation continues. The fourth step assesses an applicant's residual
functional capacity (RFC) and ability to engage in past relevant work. If
an applicant can engage in past relevant work, he is not disabled. The
fifth step assesses the applicant's RFC, as well as his age, education,
and work experience to determine whether the applicant can engage in
other work. If the applicant can engage in other work, he is not
disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
Stated another way, it must be determined: (1) whether the claimant is
presently unemployed; (2) whether the claimant has an impairment or combination
of impairments that is serious; (3) whether the impairments meet or equal one of
the listed impairments acknowledged to be conclusively disabling; (4) whether the
claimant can perform past relevant work; and (5) whether the claimant is capable of
performing any work within the economy, given his or her age, education and work
experience. 20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513 (7th
Cir. 2009); Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
If the answer at steps one and two is “yes,” the claimant will automatically be
found disabled if he or she suffers from a listed impairment, determined at step
three. If the claimant does not have a listed impairment at step three, and cannot
perform his or her past work (step four), the burden shifts to the Commissioner at
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step five to show that the claimant can perform some other job. Rhoderick v.
Heckler, 737 F.2d 714, 715 (7th Cir. 1984). See also Zurawski v. Halter, 245
F.3d 881, 886 (7th Cir. 2001) (Under the five-step evaluation, an “affirmative
answer leads either to the next step, or, on Steps 3 and 5, to a finding that the
claimant is disabled…. If a claimant reaches step 5, the burden shifts to the ALJ to
establish that the claimant is capable of performing work in the national
economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision
is supported by substantial evidence and that no mistakes of law were made. It is
important to recognize that the scope of review is limited. “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court must
determine not whether Ms. Barnett was, in fact, disabled at the relevant time, but
whether the ALJ’s findings were supported by substantial evidence and whether
any errors of law were made. See, Books v. Chater, 91 F.3d 972, 977-78 (7th Cir.
1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)). This Court uses
the Supreme Court’s definition of substantial evidence, i.e., “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).
In reviewing for “substantial evidence,” the entire administrative record is
taken into consideration, but this Court does not reweigh evidence, resolve
conflicts, decide questions of credibility, or substitute its own judgment for that of
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the ALJ. Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997). However,
while judicial review is deferential, it is not abject; this Court does not act as a
rubber stamp for the Commissioner. See, Parker v. Astrue, 597 F.3d 920, 921
(7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Scurry followed the five-step analytical framework described above. He
determined that Ms. Barnett had not been engaged in substantial gainful activity
since the alleged onset date, and that she was insured for DIB through June 30,
2014. He found that plaintiff had severe impairments of cervical and thoracic
degenerative disc disease, degenerative changes at L4-5, obesity and history of left
shoulder rotator cuff repair. He further determined that these impairments do not
meet or equal a listed impairment.
The ALJ found that Ms. Barnett had the residual functional capacity (RFC) to
perform the full range of work at the sedentary exertional level. Based on the
testimony of a vocational expert, the ALJ found that plaintiff was able to do her past
work as a postmaster as that job is generally performed.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. The following summary of the record
is directed to the points raised by plaintiff and is confined to the relevant time
period.
Page 5 of 17
1.
Agency Forms
Ms. Barnett was born in 1959. She was almost 49 years old on the alleged
onset date. (Tr. 140). She completed two years of college. (Tr. 155).
Plaintiff stated in a Work History Report that she had worked as a
postmaster from 1985 through 2010. In that job, she sorted the mail, including
large packages.
She was required to lift up to 70 pounds. She was also required
to clean the post office, including mopping the floor once a week. (Tr. 143-145,
156-157).
Plaintiff filed a Disability Report in January, 2010, in which she said her
ability to work was limited by back pain, a shoulder injury, diabetes, high blood
pressure, neuropathy in her left arm and a fatty liver. She was 5’6” and weighed
180 pounds. (Tr. 154). In June, 2010, she reported that her middle back pain
was getting worse and her left shoulder hurt when she lifted too much. She was
“constantly changing positions due to pain.” She had to prop her legs up to relieve
swelling in her feet and ankles. (Tr. 167).
3.
Evidentiary Hearing
Ms. Barnett was represented by an attorney at the evidentiary hearing on
January 20, 2012. (Tr. 40).
Plaintiff was 52 years old at the time of the hearing. She lived with her
husband and three adult children. (Tr. 43-44).
Plaintiff testified that she last worked as a postmaster in Wolf Lake, Illinois,
Page 6 of 17
from 2003 to August, 2008. In that job, she opened up every morning, unloaded
the mail truck and sorted the mail.
She had to wait on customers, pick up
packages, mop floors, wash windows and empty the trash.
She did some
computer work, such as timekeeping. Before that job, she worked as a mail clerk
in the post office in Du Quoin, Illinois, from 1991 to 2003. Her main job was to
work the window. She also sorted mail and handled packages. She had to do
things at Wolf Lake that she did not have to do at Du Quoin because there were
other people working with her at Du Quoin, including a janitor, four or five other
clerks, mail carriers, and a postmaster. (Tr. 48-50). The population of Wolf Lake
was 300. Ms. Barnett testified that she did not spend much time in the Wolf Lake
job sitting down to do skilled-type work. Most of time, she was up waiting on
customers and doing other things like sweeping floors. She waited on the public at
the counter every day. (Tr. 70).
Plaintiff’s husband is a pastor. She accompanied him on two church trips to
Africa since 2008. (Tr. 53-55).
A vocational expert (VE) testified that plaintiff’s past work as a postal clerk is
classified as light and semi-skilled in the Dictionary of Occupational Titles, and
was performed by her at the heavy exertional level. Her job as a postmaster is
classified as sedentary and skilled, but was performed by her at the heavy
exertional level. (Tr. 73). The ALJ did not ask the VE a hypothetical question.
(Tr. 76).
4.
Medical Records
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Plaintiff was involved in a vehicular accident on August 18, 2008. She was
treated in the emergency room and discharged to home.
X-rays showed
degenerative changes of the cervical spine, mild degenerative disc disease at L4-5,
and mild degenerative disc disease in the mid-thoracic spine.
fractures.
(Tr. 374-382).
There were no
She had pain in her left shoulder following the
accident. (Tr. 401).
In March, 2009, Dr. John Wood performed surgery to repair a torn left
rotator cuff. (Tr. 387-388). Because of possible infection, the surgical site was
reopened and debrided in April, 2009. Dr. Wood indicated this may have been
related to her diabetes. (Tr. 383-384). In June, 2009, she was progressing well
in physical therapy, but Dr. Wood cautioned that her shoulder “would not be 100%
ever.” (Tr. 409). In August, 2009, although her shoulder was not 100%, plaintiff
was willing to try to go back to work. Dr. Wood authorized another 6 weeks of
physical therapy. (Tr. 410). On October 23, 2009, Dr. Wood noted that she was
lifting 31 pounds in therapy. She had “progressed nicely” and was doing well with
regard to strength and range of motion. She was having some back problems and
ulnar neuropathy, for which she was being treated by Dr. Migone.
Dr. Wood
released her to return to full work duties. (Tr. 411-412).
Dr. Migone was plaintiff’s primary care physician.
She saw plaintiff for
complaints of neck, back and left shoulder pain in 2009 and 2010. Dr. Migone
also managed her diabetes and high blood pressure. On November 16, 2009, Dr.
Migone wrote that she could return to work on December 16, 2009, with no
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restrictions.
(Tr. 759-787).
On November 25, 2009, Dr. Migone wrote that
plaintiff could return to work on December 16, 2009, but she was restricted to no
lifting over 30 pounds. (Tr. 753). The next day, plaintiff called the office and
asked that the note be corrected so that she was limited to lifting only 20 pounds.
(Tr. 752).
Dr. Brent Newell, a rehabilitation specialist, saw plaintiff for low back and
shoulder pain in December, 2009. On exam, she could forward flex, extend, side
bend and twist at the waist with no difficulty. She had tenderness to palpation in
the lower thoracic and lumbar areas. (Tr. 713-714). An MRI of the thoracic spine
showed mild bulging of T6-67 with mild encroachment on the ventral thecal sac and
central left neural foramina. An MRI of the lumbar spine showed degenerative
changes and a bulging disc at L4-5. (Tr. 715-716).
Dr. Newell saw her again in April, 2010. Ms. Barnett told the doctor that her
back pain had flared up since he last saw her. She had been taking Celebrex, but it
was no longer helping. She had tried Lyrica and Vicodin in the past, but had too
many side effects. On exam, she had a limited range of motion secondary to pain.
Straight leg raising and Patrick’s test were negative. Dr. Newell indicated that she
was “just deconditioned at this point” and he recommended physical therapy. He
was optimistic that she could meet the 70 pound lifting ability that was required by
her postmaster job. (Tr. 952-953). In June, 2010, Dr. Newell noted that rehab
services had indicated that she could do light to sedentary work. She was getting
ready to go on a mission trip to Africa, so he refilled her Ultram. (Tr. 950).
Page 9 of 17
In June, 2010, Dr. Migone wrote that plaintiff was unable to lift over 30
pounds. (Tr. 986). In October, 2010, she wrote a letter stating that a functional
capacity evaluation placed her in the light to medium physical demand level, and
that she would be best suited for a light to sedentary position that would allow her
to change positions frequently. (Tr. 972).
In December, 2010, a physician’s assistant in Dr. Newell’s office noted that
she was doing well on Ultram. (Tr. 988).
Ms. Barnett saw Dr. Migone in July, 2011. She was still complaining of low
back and left shoulder pain that was worse with moderate activity. On exam, the
lumbar spine had SI tenderness.
Straight leg raising was negative.
She had
tenderness and mildly reduced range of motion in the left shoulder. There was no
swelling in the extremities. There was no sensory loss or motor weakness. She
was getting ready to go on another mission trip to Africa. She was to continue her
home exercises and take Tramadol as needed for back and shoulder pain. (Tr.
1076-1080).
The last office visit with Dr. Migone was on December 15, 2011. Plaintiff
complained of persistent low back pain that had, at times, radiated into both calves,
both thighs, the upper back and left arm. Her gait was normal. She had muscle
spasms and mild tenderness with motion of the lumbar spine. Straight leg raising
caused radiating pain on both sides. She was able to heel and toe walk. (Tr.
1124-1125).
Analysis
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ALJ Scurry found that Ms. Barnett was not disabled because she could
perform the functions of her past work as a postmaster as that job is usually
performed in the national economy.
According to the Dictionary of Occupational Titles, the job of postmaster
(DOT 188.167-066) involves the following:
Coordinates activities of workers engaged in postal and related work in
assigned post office: Organizes and supervises directly, or through
subordinates, such activities as processing incoming and outgoing
mail; issuing and cashing money orders; selling stamps, bonds and
certificates; and collecting box rents to ensure efficient service to
patrons. Resolves customer complaints and informs public of postal
laws and regulations. Confers with suppliers to obtain bids for
proposed purchases, requisitions supplies, and disburses funds as
specified by law. Prepares and submits detailed and summary reports
of post office activities to designated superior. Selects, trains, and
evaluates performance of employees and prepares work schedules.
May perform or participate in post office activities depending on size of
post office. May plan and implement labor relations program. May
confer with employees to negotiate labor disputes.
The DOT classifies the job of postmaster as sedentary. Sedentary work
requires lifting no more than 10 pounds, occasionally carrying articles like docket
files or small tools, sitting and occasional walking and standing.
20 C.F.R.
§404.1567(a).
The job of postal clerk (DOT 243.367-014) is light, and has the following
requirements:
Performs any combination of following tasks in post office: Sells
postage stamps, postal cards, and stamped envelopes. Issues money
orders. Registers and insures mail and computes mailing costs of
letters and parcels. Places mail into pigeonholes of mail rack, or into
bags, according to state, address, name of person, organization, or
other scheme. Examines mail for correct postage and cancels mail,
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using rubber stamp or canceling machine. Weighs parcels and letters
on scale and computes mailing cost based on weight and destination.
Records daily transactions. Receives complaints concerning mail
delivery, mail theft, and lost mail, completes and routes appropriate
forms for investigation. Answers questions pertaining to mail
regulations or procedures. Posts circulars on bulletin board for public
information; distributes public announcements; and assists public in
complying with other federal agency requirements, such as
registration of aliens. May drive motorcycle or light truck to deliver
special delivery letters. May be employed in remote retail store
contracted by post office to provide postal services and be designated
Contract-Post-Office Clerk (retail trade).
The VE testified that Ms. Barnett’s job as postmaster at Wolf Lake was
performed by her at the heavy exertional level. Plaintiff contends that, in fact, her
postmaster job was a composite job, and the ALJ erred in finding that she could
perform her past job as it is usually performed.
In determining whether a claimant can perform the functional demands and
job duties of her past job, the “Dictionary of Occupational Titles (DOT)
descriptions can be relied upon -- for jobs that are listed in the DOT -- to define the
job as it is usually performed in the national economy.” SSR 82-61, 1982 WL
31387, *1 (emphasis in original).
However, “composite jobs have significant
elements of two or more occupations and, as such, have no counterpart in the DOT.
Such situations will be evaluated according to the particular facts of each individual
case.” Ibid.
As the Commissioner acknowledges, under the agency’s own Program
Operations Manual, a composite job may not be considered in determining whether
the claimant can perform her past job as it is generally performed in the economy:
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Composite jobs have significant elements of two or more occupations
and as such, have no counterpart in the DOT. If you can accurately
describe the main duties of [past relevant work] only by considering
multiple DOT occupations, the claimant may have performed a
composite job. . . .When comparing the claimant’s RFC to a composite
job as it was performed, find the claimant capable of performing the
composite job only if he or she can perform all parts of the job. A
composite job will not have a DOT counterpart, so do not evaluate it at
the part of step 4 considering work “as generally performed in the
national economy.
See, Doc. 27, p. 13, citing POMS DI 25005.020.
Plaintiff testified that the population of Wolf Lake, Illinois, was 300. Her job
as postmaster there required that she open up every morning, unload the mail
truck, sort the mail, wait on customers, pick up packages, mop floors, wash
windows and empty the trash. She also did some work on a computer, such as
timekeeping. She had to do things at Wolf Lake that she did not have to do in her
previous job as a mail clerk at the Du Quoin post office because there were other
people working with her at Du Quoin, including a janitor, four or five other clerks,
mail carriers, and a postmaster. Plaintiff also testified that she did not spend
much time in the Wolf Lake job sitting down to do skilled-type work. Most of time,
she was up waiting on customers and doing other things like sweeping floors.
(Tr. 48-50, 70).
The Commissioner argues that plaintiff’s job was not, in fact, a composite
job. Rather, plaintiff had two separate past jobs, as a postal clerk at Du Quoin and
as a postmaster at Wolf Lake. However, this argument ignores plaintiff’s testimony
about the requirements of her job at Wolf Lake. It seems evident that the Wolf
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Lake job, although designated as a postmaster position, required plaintiff to
perform the functions of (at least) both postmaster and postal clerk.
The Commissioner points out that the VE characterized plaintiff’s past job as
“postmaster” and identified it as DOT 188.167-066. The VE testified that the job
was heavy as she performed it, but did not testify that it was a composite job. The
Commissioner now argues that plaintiff’s failure to point out a conflict with the DOT
at the hearing precludes her from relying on that conflict here.
The ALJ is required to identify and obtain an explanation for any conflicts
between a VE’s testimony and information in the DOT. SSR 00-4p. However,
where plaintiff has failed to identify a conflict at the hearing, she cannot
demonstrate error unless the conflict was “obvious enough that the ALJ should
have picked up on [it] without any assistance.” Terry v. Astrue, 580 F.3d 471, 478
(7th Cir. 2009), citing Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008).
The Commissioner’s argument fails for two reasons. First, in the Court’s
view, the conflict between the VE’s testimony and the DOT was obvious, at least to a
person familiar with the DOT description of the postmaster job.
Secondly,
plaintiff’s counsel did raise a question as to whether the DOT description of
postmaster accurately described plaintiff’s job at Wolf Lake.
At the hearing, plaintiff’s counsel questioned the VE as to whether the skill
level of the job at Wolf Lake corresponded to the skill level of the DOT description.
Counsel pointed out that the post office served a small town and plaintiff was
required to do “a broad range of tasks.” The VE testified that these circumstances
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“could have” an impact on whether she actually had the skills of the job as
described in the DOT. Counsel then proposed to go over a job specialty report
with plaintiff to identify particular aspects of the job which she was not required to
do at Wolf Lake.
The ALJ discouraged counsel from pursuing this line of
questioning, saying, “Well, Counsel, I’ll just let you know now that transferable
skills is not the battleground in this case and I’ll let you know that now.” (Tr.
73-74).
Admittedly, counsel did not use the phrase “composite job” and did not
address a conflict between the DOT description and the physical requirements of
the postmaster job. 2 Still, she did raise the general issue that the VE was incorrect
in testifying that the Wolf Lake job corresponded to the DOT description of
postmaster. This, coupled with the obvious conflict between the job as described
in the DOT and the duties required of plaintiff at Wolf Lake, was sufficient to alert
the ALJ that the VE’s testimony conflicted with the DOT.
The parties have not cited any Seventh Circuit cases on the composite job
issue, and the Court’s own research has not identified any such cases. Plaintiff
cites several district court cases holding that the ALJ “may not deem a claimant
capable of performing past relevant work by dividing the demands of a composite
job into two separate jobs and finding her capable of performing the less
demanding of the two jobs.” Garcia v. Colvin, 2013 WL 3321509, *11 (N.D.Ill.
2013), citing Peterson v. Astrue, 2010 WL 3219293. *5 (N.D.Ind. 2010). The
2
Plaintiff was represented by a different attorney at the administrative level.
Page 15 of 17
Court finds the reasoning of these cases to be persuasive. Simply put, if the Wolf
Lake job was a composite job, the ALJ erred in finding at step four that plaintiff
could do the job of postmaster as it is usually performed.
The error at step four is case dispositive. Ms. Barnett was 52 years old on
the date of the ALJ’s decision and was 54 years old on her date last insured. If she
is capable of doing a full range of sedentary work, but cannot do her past relevant
work, the Grids dictate that she is disabled unless she has transferrable skills. 20
C.F.R. Part 404, Subpart P, Appendix 2, §200.00(g); Rules 201.12-201.16. 3 The
VE did not testify about whether she had transferrable skills. So, if she is unable
to do her past work, she may well be entitled to DIB.
In view of the disposition of plaintiff’s first point, it is not necessary to
consider her other arguments. However, the Court does wish to point out that,
with regard to plaintiff’s last point, the Appeals Council could eliminate the
guesswork by simply stating in plain English whether or not it accepts additional
exhibits submitted to it as “new and material evidence.”
In any event, those
additional exhibits will be part of the record to be considered on remand; as those
exhibits relate to plaintiff’s credibility and her RFC, the ALJ will take a fresh look at
those issues.
The Court wishes to stress that this Memorandum and Order should not be
3
The Grids (20 C.F.R. Part 404, Subpart P, Appendix 2) are appropriate where the claimant has no
nonexertional limitations and has the RFC to do a full range of work at a specified exertional level.
20 C.F.R. Part 404, Subpart P, Appendix 2, §200.00(e). See also, Haynes v. Barnhart, 416 F.3d
621, 628-629 (7th Cir. 2005).
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construed as an indication that the Court believes that Ms. Barnett is disabled or
that she should be awarded benefits. On the contrary, the Court has not formed
any opinions in that regard, and leaves those issues to be determined by the
Commissioner after further proceedings.
Conclusion
The Commissioner’s final decision denying Carol J. Barnett’s application for
social security disability benefits is REVERSED and REMANDED to the
Commissioner for rehearing and reconsideration of the evidence, pursuant to
sentence four of 42 U.S.C. §405(g).
The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDRED.
DATE:
December 30, 2014.
s/ Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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