Sawyer v. Commissioner of Social Security
Filing
23
MEMORANDUM AND OPINION.The Commissioners final decision denying Tammy A. S.'s application for SSI and DIB benefits is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §405(g). Signed by Magistrate Judge Clifford J. Proud on 9/5/2018. (kab)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TAMMY A. S., 1
)
)
Petitioner,
)
)
vs.
)
)
COMMISSIONER
OF
SOCIAL )
SECURITY,
)
)
Respondent.
)
Civil No. 17-cv-1032-CJP 2
MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), Plaintiff Tammy A. S., represented by
counsel, seeks judicial review of the final agency decision denying her application
for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB)
pursuant to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for benefits in October 2013 alleging disability beginning in
June 2012.
(Tr. 202-03; 204-09).
She was denied benefits initially and upon
reconsideration. (Tr. 143-46; 149-154).
At the September 2016 evidentiary
hearing before Administrative Law Judge (ALJ) Lisa Leslie, she amended her
alleged onset date to September 2013. (Tr. 67; 225).
After the hearing, ALJ
Leslie denied her claim. (Tr. 43-57). The Appeals Council denied review making
1
In keeping with the Court’s recently adopted practice, Plaintiff’s full name will not be used in this
Memorandum and Order due to privacy concerns. See, Fed. R. Civ. P. 5.2(c) and the Advisory
Committee Notes thereto.
2
This matter was referred to the undersigned for final disposition upon consent of the parties,
pursuant to 28 U.S.C. §636(c). See, Doc. 22.
1
ALJ Leslie’s decision the final agency decision.
(Tr. 1-7).
Plaintiff exhausted
administrative remedies and filed a timely complaint with this Court. (Doc. 1).
Issues Raised by Plaintiff
Plaintiff raises the following points:
1. The ALJ erred by failing to account for deficits of concentration in the
residual functional capacity (RFC) finding; and
2. The ALJ erred in failing to elicit evidence of availability of jobs existing in
significant numbers in either the region where Plaintiff lives or several
regions of the country.
Applicable Legal Standards
To qualify for DIB or SSI benefits, a claimant must be disabled within the
meaning of the applicable statutes and regulations. 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).3
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.
The statutes and regulations pertaining to DIB are found at 42 U.S.C. § 423, et seq., and 20 C.F.R.
pt. 404. The statutes and regulations pertaining to SSI are found at 42 U.S.C. §§ 1382 and 1382c,
et seq., and 20 C.F.R. pt. 416. As is relevant to this case, the DIB and SSI statutes and regulations
are identical. Furthermore, 20 C.F.R. § 416.925 detailing medical considerations relevant to an SSI
claim, relies on 20 C.F.R. Pt. 404, Subpt. P, the DIB regulations. Most citations herein are to the
DIB regulations out of convenience.
3
2
Social Security regulations set forth a sequential five-step inquiry to
determine whether a claimant is disabled. The Seventh Circuit Court of Appeals
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
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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
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).
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 Plaintiff 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
the ALJ. Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997); Moore v. Colvin,
743 F.3d 1118, 1121 (7th Cir. 2014). However, while judicial review is deferential,
it is not abject; this Court does not act as a rubber stamp for the Commissioner.
4
See, Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Leslie followed the five-step analytical framework described above. She
determined Plaintiff is insured through September 30, 2018, 4 and that Plaintiff has
not engaged in substantial gainful activity (SGA) since June 2012.
ALJ Leslie
found Plaintiff had severe physical and mental impairments. Her severe mental
impairments included anxiety and depression. (Tr. 45-46). ALJ Leslie determined
that Plaintiff had moderate difficulties in her ability to maintain concentration,
persistence, or pace. (Tr. 47).
ALJ Leslie found Plaintiff had the RFC to perform sedentary work with
limitations.
The mental limitations were that she was limited “…to performing
simple, routine tasks not at a fast pace such as assembly line.” (Tr. 48). Based on
the vocational expert’s testimony, ALJ Leslie concluded that Plaintiff was unable to
perform any past relevant work, but that “[she was] capable of making a successful
adjustment to other work that exists in significant numbers in the national
economy.” (Tr. 55-56).
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.
1. Agency Forms
Plaintiff was born in March 1970 and was forty-three years old on her
4
The date last insured is relevant only to the claim for DIB.
5
amended alleged onset date in September 2013. (Tr. 202, 204; 67; 225). She
stopped working because of her various physical and mental impairments. (Tr.
230; 240). Plaintiff had been receiving mental health treatment from WellSpring
Resources since December 2012. (Tr. 245). She was taking Klonopin for anxiety
and Zoloft for depression. (Tr. 242).
Plaintiff indicated that her abilities to complete tasks, concentrate, and get
along with others are affected by her conditions. (Tr. 261; 286). For example, she
reported an employer fired her once because she “wasn’t a people person.” She
also tries to avoid authority figures but, if confronted, she is respectful. (Tr. 262).
As to task completion and concentration, Plaintiff can only pay attention for
about ten minutes. She said in November 2013, “I can [follow written instructions]
well, if [I’m] in the mood,” and that she can follow spoken instructions well if she
can concentrate long enough. (Tr. 261). In August 2014, she said she follows
written and spoken instructions pretty well (Tr. 286), but that her “depression and
anxiety…affect [her] ability to concentrate.” (Tr. 281). Plaintiff further explained,
I have major problems concentrating because [I] have thoughts going
through my head, when out in public I have anxiety attacks because I think
people are thinking stuff about me. I have trouble catching my breath, my
chest tightens, and I feel like I am going to pass out; therefore, I have trouble
completing tasks…
(Tr. 289).
Other than going to her doctor’s office every couple of months and to
counseling once per month, Plaintiff does not attend any place on a regular basis.
(Tr. 260). She keeps to herself and does not like being around people. (Tr. 259).
She says she cannot go out alone because she experiences high levels of anxiety
6
(Tr. 259), and has “full blown” anxiety attacks. She does not handle stress well
because her blood pressure rises and she feels like her heart will “beat right out of
[her] chest.” (Tr. 262).
Plaintiff’s days usually consist of taking her daily medications, watching
television, and trying to wash dishes. She reported “hardly bath[ing] b[ecause she]
can’t make [herself]” and she “do[es]n’t care anymore.” She barely eats because
she does not have an appetite, but when she does, she makes quick frozen dinners
or sandwiches. (Tr. 257).
2. Evidentiary Hearing
Plaintiff was represented by counsel at the September 2016 hearing.
Plaintiff and a vocational expert (VE), Bob Hammond, both testified under oath.
(Tr. 63-85). Plaintiff testified that she takes clonazepam for anxiety and Zoloft for
depression. (Tr. 75). She believes her anxiety and depression limit her ability to
work. (Tr. 74; 77).
Specifically, Plaintiff’s anxiety limits her ability to work because “[i]t’s
hard…to breathe” and she cannot be in front of or around people because she
becomes upset. She then explained how her anxiety affects her daily life. Except
for doctor appointments, Plaintiff stays home.
Additionally, she might grocery
shop once per month; her children typically go for her.
Further, she does not
belong to any social clubs or organizations, and she even misses family events by
making excuses so she can stay home.
(Tr. 73-74).
She is able to drive
sometimes, but she prefers to have someone with her because of her severe anxiety
attacks. (Tr. 69).
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As for Plaintiff’s depression, Plaintiff testified that she does not like to leave
her house and does not leave home alone. She said that she is a nervous person
who cries a lot.
Other than recently attending court, she reported that she
probably had not left her house since May 2016, approximately four months before
this hearing. (Tr. 77). Plaintiff further testified she had lost about ten pounds over
the last month because her depression causes loss of appetite and weight. She
explained that she loses weight and then gains it back before losing her appetite
again; this cycle occurs every three months or so. She said that when it occurs, “I
don’t eat at all because I don’t feel hungry, I feel like I don’t want to live.” (Tr. 78).
ALJ Leslie then called VE Hammond who testified that none of the
individuals in ALJ Leslie’s four hypotheticals could perform Plaintiff’s past work
positions, which include home health aide and cashier.
ALJ Leslie’s third
hypothetical included an RFC identical to the ultimate RFC finding. VE Hammond
testified that although the individual would not be able to perform Plaintiff’s past
work, the individual would be capable of performing three positions nationally: (1)
pharmaceutical sealer at DAL; (2) circuit board screener; and (3) semiconductor
bonder. (Tr. 80-83).
3. Medical Evidence
Plaintiff’s medical records indicate that she primarily received outpatient
mental health services, including case management, individual therapy sessions,
and medication management, from WellSpring Resources on a regular basis
throughout the relevant time period.
Her anxiety and depression have been
ongoing since she was eighteen years old. Plaintiff reported suffering and surviving
8
trauma as well as grappling with immense grief at different stages during her life;
her anxiety and depression worsened in adulthood. 5 She explained that dealing
with her family and these situations cause most of her depression and crying. (Tr.
422; 554; 771; 779-95; 765; 735).
In addition to the above circumstances, the records spanning the relevant
time period indicate Plaintiff struggled with coping, avoiding negative thoughts,
worrying about family members and things beyond her control, and social fears.
Her stressors included her lack of income, uncertainty of housing, family and their
requests for help, and an unstable relationship with her long-time paramour. (Tr.
823; 821; 816-17; 814; 805-10; 801; 793-94; 773-77; 765; 763; 761; 757; 749-55;
745; 743; 731; 728; 490; 438; 387; 377).
Frequently, Plaintiff’s symptoms consisted of: (1) diminished interest in
doing things; (2) feeling down, depressed, or hopeless; (3) problems sleeping; (4)
lack of energy; (5) poor appetite; (6) feeling bad about herself, like she is a failure,
or like she let herself or family down; (7) social withdrawal; (8) thoughts of death;
and (9) trouble concentrating. (Tr. 378; 390; 422; 485-87; 490; 565-66; 569; 792;
815).
Some records document Plaintiff being tearful, tense, and anxious;
presenting with a sad or depressed mood and affect; or exhibiting trouble with
Her biological father sexually abused her between the ages of five and seven; she was removed
from her mother’s care and lived with her grandmother until her parents divorced; and her stepfather physically and mentally abused her between the ages of nine and eighteen. As an adult,
Plaintiff has suffered and survived physical and emotional abuse by her ex-spouse during their
eleven year marriage, and by a paramour throughout their seven year relationship. (Tr. 382-83).
Her anxiety and depression worsened when her mother had a stroke and her four-year-old nephew
tragically passed away, in 2003 and 2010 respectively. Plaintiff continues to struggle with immense
grief over her nephew’s tragic death. (Tr. 378). Plaintiff’s niece and nephews, siblings of her
deceased nephew, were removed and placed in foster care, and two of her own siblings were in
prison. (Tr. 422; 554; 771; 779-95; 741).
5
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concentration.
(Tr. 416; 438; 507; 541; 561-62; 565-67; 569; 792; 815).
Plaintiff’s counselor concluded that her depression and social phobia were
evidenced by the above symptoms, and the counselor opined that “these symptoms
also make [it] hard for her to work because she cannot hold a job…”
symptoms affect her socially and occupationally.
Her
Additionally, the counselor
added that Plaintiff’s persistent fear; instant anxiety provoked when exposed; and
her avoidance of social situations as often as she could “interfere[d] with
her…functioning such [that she is] not even…able to get out to go to the grocery
store.” (Tr. 792).
Plaintiff was treated for moderate to severe recurrent depression, anxiety
disorder, and social phobias. Plaintiff took clonazepam for anxiety and Zoloft for
depression. (Tr. 378-96; 413-18; 549-69; 728-824). However, there were periods
where Plaintiff reported little or no benefit from medication or she was without
medication because she either ran out or lost her medical card resulting in the
inability to see providers, obtain prescriptions, and afford her medications. (Tr.
561-62; 803).
4. State Agency Consultative Psychological Examination
Plaintiff met with Stephen G. Vincent, Ph.D. in January 2014. (Tr. 539541). Throughout the examination, Plaintiff indicated problems with anxiety and
depression. She reported her mental health treatment history as well as described
her symptoms, feelings, and struggles related to her anxiety and depression. Dr.
Vincent identified a predominant theme throughout the examination was that
Plaintiff stated, “All I do is stay home and watch TV. Sometimes I clean the house
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when I’m up to it, but a lot of times I have to force myself to do things. I just don’t
care.”
Dr. Vincent determined, Plaintiff’s “[a]nxiety is most prominent and
problematic when she ventures from home[; this is] suggestive of an agoraphobiclike component to her anxiety/panic disorder.” (Tr. 539-40).
Plaintiff also reported that her depression-related moods have become
progressively
worse,
and
that
she
experiences
poor
memory,
frequent
forgetfulness, and difficulties staying focused on tasks and needing notes and
reminders to maintain obligations and responsibilities.
Examination results
showed that Plaintiff was able to remember five numbers forward and four
backwards. She could name three past presidents, her date of birth, and social
security number without difficulty. However, she was unable to recall two of three
items after a five minute interval and could not complete serial sevens from one
hundred to forty-four, stating, “I can’t. I just get frustrated and I can’t concentrate.”
(Tr. 540-41).
Her “speech was underproductive, lacking inflection and intonation
secondary to psychomotor retardation,” and her “[m]ood was moderately to
severely depressed, as was [her] affect.” Plaintiff was also intermittently tearful
during the examination.
Her thought processes were slow and deliberate, yet
logical and relevant. Her eye contact and effort were good, and she did not have
difficulties relating to Dr. Vincent. (Tr. 540).
Dr. Vincent’s clinical impressions were that Plaintiff had major depression,
generalized anxiety disorder, and panic disorder with agoraphobia.
Plaintiff was cognitively intact and not psychotic.
11
He opined
He concluded her ongoing
symptoms and signs of depression are exacerbated by unresolved grief caused by
the death of her four-year-old nephew in 2010.
He added that she tends to
withdraw and isolate and seemed apprehensive and ill at ease. He opined Plaintiff
only had a fair response to her depression and anxiety medication. (Tr. 541).
5. State Agency Consultants’ Review
Two state agency psychologists, Lionel Hudspeth, Psy.D., and Donald
Henson, Ph.D., both determined Plaintiff did not have any severe mental
impairments, though they both acknowledged Plaintiff’s reported symptoms and
mental health treatment. (Tr. 91, 102; 118, 131).
Analysis
Plaintiff argues that ALJ Leslie erred because the language used in the
ultimate RFC and hypothetical posed to the VE failed to adequately account for her
moderate deficits in maintaining concentration, persistence, or pace. (Tr. 48; 8083). The Commissioner avoids the issue by arguing that ALJ Leslie adequately
accounted for all of Plaintiff’s limitations because the ultimate RFC assessment and
hypothetical used the same language, and none of Plaintiff’s providers assessed
additional limits beyond what was included in the RFC. (Doc. 18, p. 15). For the
following reasons, the Court agrees with Plaintiff.
“As a general rule, both the hypothetical posed to the VE and the ALJ’s RFC
assessment must incorporate all of the [plaintiff’s] limitations supported by the
medical record.” Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014). This is a wellestablished rule, and “includes any deficiencies the [plaintiff] may have in
concentration, persistence, or pace.” See, Stewart v. Astrue, 561 F.3d 679, 684
12
(7th Cir. 2009)(collecting cases). Although there is no per se requirement that
certain language be utilized, the restriction to simple, repetitive tasks or to
unskilled work is not ordinarily an adequate substitute to account for moderate
concentration, persistence, or pace difficulties. Varga v. Colvin, 794 F.3d 809,
814 (7th Cir. 2015); Yurt, 758 F.3d at 858; O'Connor-Spinner v. Astrue, 627 F.3d
614, 620 (7th Cir. 2010) and cases cited therein.
Here, ALJ Leslie found that Plaintiff had moderate difficulties in maintaining
concentration, persistence, or pace. (Tr. 47). She made this finding at step three
of the sequential analysis when determining whether Plaintiff’s mental impairments
met or equaled a listed impairment. While ALJ Leslie correctly recognized that the
limitations identified in the “paragraph B” criteria are not a mental RFC
assessment, ALJ Leslie said, “…the following [RFC] assessment reflects the degree
of limitation I have found in the ‘paragraph B’ mental function analysis.” (Tr. 48).
However, neither the hypothetical questions posed to the VE nor the RFC
assessment adequately accounted for a moderate limitation in concentration,
persistence, or pace. Rather, ALJ Leslie limited Plaintiff to “performing simple,
routine tasks not at a fast pace such as assembly line.” (Tr. 48; 80-83).
The Seventh Circuit Court of Appeals has repeatedly held, with exceptions
not applicable here, that a limitation to simple, repetitive tasks or unskilled work
does
not
adequately
account
for
a
moderate
limitation
in
maintaining
concentration, persistence or pace. In Stewart, supra, a case decided in 2009, the
Court observed, “The Commissioner continues to defend the ALJ's attempt to
account for mental impairments by restricting the hypothetical to ‘simple’ tasks,
13
and we and our sister courts continue to reject the Commissioner's position.”
Stewart, 561 F.3d at 685. The Court has reaffirmed that position several times in
recent years.
O'Connor-Spinner, supra; Yurt, supra; Varga, supra; Taylor v.
Colvin, 829 F.3d 799, 802 (7th Cir. 2016); Lanigan v. Berryhill, 865 F.3d 558,
565 (7th Cir. 2017).
The Commissioner essentially defends ALJ Leslie’s decision by arguing she
used the same language in the ultimate RFC that she used in the hypothetical
posed to the VE. Yet, it is unclear how using identical language in the RFC and
hypothetical automatically means that the RFC and the hypothetical adequately
accounted for deficiencies. Further, ALJ Leslie’s decision basically reiterated the
ultimate finding: “…[Plaintiff]…retains the…concentration to perform non-fast
paced (e.g., assembly line work) simple, routine tasks.” (Tr. 55). No discussion
was given, nor explanation provided as to how these limitations accounted for
Plaintiff’s moderate concentration, persistence, or pace limitations.
Additionally, the Commissioner also argues that no other providers opined
Plaintiff required additional mental limitations.
Regardless, ALJ Leslie herself
found that the evidence supports that Plaintiff has moderate deficits in maintaining
concentration, persistence, or pace, and she even said that the RFC assessment
would reflect those limitations.
Therefore, ALJ Leslie was required to include
limitations that account for Plaintiff’s moderate concentration, persistence, or pace
deficits.
Further,
the
Commissioner
acknowledged
ALJ
Leslie’s
moderate
concentration, persistence, or pace finding, but neither the Commissioner nor ALJ
14
Leslie attempted to explain how “performing simple, routine tasks not at a fast
pace such as an assembly line” accounts for Plaintiff’s limitations in concentration,
persistence, or pace.
The Commissioner also attempted to distinguish O’Connor-Spinner, supra,
and Yurt, supra, but missed the mark. At the end of the day, these cases stand for
the proposition that all of a plaintiff’s limitations must be accounted for in the RFC
assessment, and that the VE must be adequately apprised of those limitations.
Here, ALJ Leslie failed to adequately account for Plaintiff’s moderate deficiencies in
maintaining concentration, persistence, or pace despite representing that the RFC
would reflect that degree of limitation.
Binding Seventh Circuit precedent
establishes that a limitation to simple, routine tasks or to unskilled work does not
adequately account for a moderate limitation in maintaining concentration,
persistence, or pace, and both ALJ Leslie and the Commissioner failed to explain
or show how it accounted for Plaintiff’s limitations here.
Because ALJ Leslie failed to adequately account for all of Plaintiff’s
limitations in the hypothetical posed to the VE and in the RFC, the ultimate RFC
assessment was not supported by substantial evidence. Following the line of cases
discussed throughout, this case must be remanded to the Commissioner for
rehearing. The Court wishes to stress that this Memorandum and Order should
not be construed as an indication that the Court believes that Plaintiff 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.
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Conclusion
The Commissioner’s final decision denying Tammy A. S.’s application for
SSI and DIB 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 ORDERED.
DATE: September 5, 2018
s/Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE
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