Lamberty v. Social Security Administration, Commissioner of

Filing 19

MEMORANDUM AND ORDER: The court shall reverse defendant's decision to deny plaintiff's applications for benefits. The court shall direct that this case be remanded to the Commssioner for further proceedings consistent with this opinion. This remand is made under the fourth sentence of 42 U.S.C. § 405(g).Signed by District Judge Richard D. Rogers on 4/3/14. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ROSE MARIE LAMBERTY,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

Case No.13-4072-RDR

MEMORANDUM AND ORDER
On July 16, 2010, plaintiff filed applications for social
security disability insurance benefits and supplemental security
income benefits.
date

of

June

These applications alleged a disability onset

25,

2009.

On

March

2,

conducted upon plaintiff’s applications.

2012,

a

hearing

was

The administrative law

judge (ALJ) considered the evidence and decided on March 20,
2012 that plaintiff was not qualified to receive benefits.
decision has been adopted by defendant.

This

This case is now before

the court upon plaintiff’s motion to reverse and remand the
decision to deny plaintiff’s applications for benefits.
I.

STANDARD OF REVIEW
To

establish

qualify
that

for
he

or

disability
she

was

benefits,
“disabled”

a

claimant

under

the

must
Social

Security Act, 42 U.S.C. § 423(a)(1)(E), during the time when the

claimant had “insured status” under the Social Security program.
See Potter v. Secretary of Health & Human Services, 905 F.2d
1346, 1347 (10th Cir. 1990); 20 C.F.R. §§ 404.130, 404.131.

To

be “disabled” means that the claimant is unable “to engage in
any

substantial

determinable

gainful

physical

or

activity
mental

by

reason

impairment

of

any

which

.

medically
.

.

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).

For supplemental security income claims, a claimant becomes
eligible in the first month where he or she is both disabled and
has an application on file.

20 C.F.R. §§ 416.202-03, 416.330,

416.335.
The court must affirm the ALJ’s decision if it is supported
by substantial evidence and if the ALJ applied the proper legal
standards.
2004).

Rebeck v. Barnhart, 317 F.Supp.2d 1263, 1271 (D.Kan.

“Substantial evidence” is “more than a mere scintilla;”

it is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”

Id., quoting Richardson

v. Perales, 402 U.S. 389, 401 (1971).

The court must examine

the record as a whole, including whatever in the record fairly
detracts from the weight of the defendant’s decision, and on
that

basis

decide

defendant’s decision.
Cir.

1994)

(quoting

if

substantial

evidence

supports

the

Glenn v. Shalala, 21 F.3d 983, 984 (10th
Casias

v.
2

Secretary

of

Health

&

Human

Services, 933 F.2d 799, 800-01 (10th Cir. 1991)).

The court may

not reverse the defendant’s choice between two reasonable but
conflicting views, even if the court would have made a different
choice if the matter were referred to the court de novo.

Lax v.

Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Zoltanski
v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II.

THE ALJ’S DECISION (Tr. 9-19).
There is a five-step evaluation process followed in these

cases which is described in the ALJ’s decision.

(Tr. 9-11).

First, it is determined whether the claimant is engaging in
substantial gainful activity.

Second, the ALJ decides whether

the claimant has a medically determinable impairment that is
“severe” or a combination of impairments which are “severe.”

At

step three, the ALJ decides whether the claimant’s impairments
or

combination

of

impairments

meet

or

medically

equal

the

criteria of an impairment listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1.

Next, the ALJ determines the claimant’s residual

functional capacity and then decides whether the claimant has
the residual functional capacity to perform the requirements of
his or her past relevant work.

Finally, at the last step of the

sequential evaluation process, the ALJ determines whether the
claimant is able to do any other work considering his or her
residual

functional

capacity,

experience.
3

age,

education

and

work

In

this

case,

the

ALJ

decided

plaintiff’s

application

should be denied on the basis of the fifth and last step of the
evaluation process.

The ALJ decided that plaintiff maintained

the residual functional capacity to perform jobs that existed in
significant numbers in the national economy.
The

ALJ

decision.

made

the

First,

following

plaintiff

specific

meets

findings

the

in

insured

his

status

requirements for Social Security benefits through September 30,
2012.

Second, plaintiff did not engage in substantial gainful

activity

after

June

25,

2009,

disability.

Third,

impairments:

fibromyalgia;

the

plaintiff

has

alleged
the

degenerative

onset

date

following

joint

of

severe

disease;

back

problems; borderline intellectual functioning; depression; and
post-traumatic stress disorder.

Fourth, plaintiff does not have

an

of

impairment

or

combination

impairments

that

meet

or

medically equal the listed impairments in 20 C.F.R. Part 404,
Subpart

P,

Appendix

1.

Fifth,

plaintiff

has

the

residual

functional capacity to perform:
sedentary work . . . [in that plaintiff] is able to
lift and carry 10 pounds frequently and occasionally.
She can walk/and stand for 2 hours in an 8-hour day
and can sit for up to 6 hours in an 8-hour day.
However, she is limited to simple routine repetitive
work with only occasional interaction with the public.
(Tr.

13).

restrictions

The
in

ALJ
the

also

found

activities

4

of

that

plaintiff

daily

living,

has

mild

moderate

difficulties in social functioning, and moderate difficulties in
concentration, persistence or pace.

(Tr. 12).

Sixth, plaintiff

is unable to perform any past relevant work.
plaintiff

is

significant

capable

numbers

of

in

performing

the

national

jobs

But, seventh,
that

economy,

exist

such

as:

wire

patcher, ampule sealer and administrative support worker.
18).

This

last

finding

vocational expert.
education,
The

ALJ

work
found

was

based

upon

the

testimony

in

(Tr.
of

a

The ALJ also considered plaintiff’s age,

experience
that

the

and

residual

vocational

functional

expert’s

capacity.

testimony

was

consistent with the information contained in the Dictionary of
Occupational Titles (DOT).
III. THE DECISION TO DENY BENEFITS MUST BE REVERSED BECAUSE THE
ALJ FAILED TO PROPERLY WEIGH THE OPINIONS OF DR. MHATRE AND LYNN
WAGNER-KNIGHT.
Plaintiff’s

first

argument

to

overturn

the

denial

of

benefits is that the ALJ failed to properly evaluate certain
opinions.

Plaintiff focuses, first, upon the opinion of Dr.

Vijay Mhatre, plaintiff’s treating physician since June 3, 2010,
who has diagnosed and treated plaintiff for fibromyalgia and
other conditions, including low back pain, fatigue and insomnia.
According to the Tenth Circuit, “an ALJ must give good
reasons . . . for the weight assigned to a treating physician’s
opinion . . . [and the reasons] must be sufficiently specific to
make

clear

to

any

subsequent
5

reviewers

the

weight

the

adjudicator gave to the treating source’s medical opinion and
the reasons for that weight.”

Watkins v. Barnhart, 350 F.3d

1297, 1300 (10th

Cir. 2003)(interior quotations and citations

omitted).

“’In

choosing

assessment,

an

ALJ

may

to

not

reject
make

the

treating

speculative

physician’s

inferences

from

medical reports and may reject a treating physician’s opinion
outright only on the basis of contradictory medical evidence and
not due to his own or her own credibility judgments, speculation
or lay opinion.’”

Robinson v. Barnhart, 366 F.3d 1078, 1082

(10th Cir. 2004)(quoting McGoffin v. Barnhart, 288 F.3d 1248,
1252 (10th Cir. 2002)).
Dr. Mhatre completed a form regarding plaintiff’s ability
to

do

work-related

activities.

His

answers

indicated

that

plaintiff could stand and walk less than two hours during an 8hour day and that she could sit less than two hours during an 8hour day.

(Tr. 437).

He stated that plaintiff would need to

lie down at unpredictable intervals and every two hours, and
that she would need to be absent from work more than three times
a

month.

(Tr.

438

&

440).

These

limitations

and

others

mentioned by Dr. Mhatre were inconsistent with any substantial
gainful

activity,

according

to

the

vocational

testified during the administrative hearing.

expert

(Tr. 52).

who

The ALJ

did not dispute Dr. Mhatre’s diagnosis of fibromyalgia and low
back pain, or challenge Dr. Mhatre’s credentials or his clinical
6

or diagnostic techniques.

But, the ALJ only gave Dr. Mhatre’s

conclusions “partial weight” on the grounds that “the medical
record,

including

the

objective

evidence,

indicates

that

[plaintiff] is not so limited and can perform work consistent
with the residual functional capacity [determined by the ALJ].”
(Tr. 17).
the

Unfortunately, the ALJ did not specify which parts of

medical

record

persuasively

contradicted

Dr.

Mhatre’s

conclusions regarding plaintiff’s functional abilities, or which
parts of the medical record persuasively supported the ALJ’s
conclusions regarding plaintiff’s functional abilities.

So, the

court shall look at the ALJ’s general review of the evidence.
The

ALJ

administrative

reviewed
record.

the
He

evidence
noted

on

the

pages

14-17

following

of

points

regard to plaintiff’s physical impairments:
- An MRI in October 2010 showed normal spine
alignment;
- A whole body scan in November 2010 was unremarkable;
- In December 2010 when plaintiff appeared at a
hospital emergency room for low back pain, she
ambulated without assistance and an examination
found no motor weakness or numbness;
- Plaintiff engaged in physical therapy in 2011 and
reported improvement and interest in exercise;
- A physical examination with the Pain Center of
Kansas showed a normal gait, normal range of motion,
and normal muscle mass, tone and strength, although
an assessment of low back pain was made;
- During an emergency room visit for back pain in
December 2010, no motor weakness or numbness was
noted and bone scans were normal;
- Physical therapy notes indicated on one occasion
that plaintiff’s pain was only 0-4;

7

the
with

- Plaintiff has attended church on occasion and gone
to the grocery store accompanied by her daughter.
She can prepare simple meals, help with laundry and
dishes, and has cared for a granddaughter. She took
her granddaughter roller skating twice – plaintiff
fell and hurt her tailbone while skating.
And she
went
unaccompanied
to
Hobby
Lobby
where
an
acquaintance thought she appeared to be walking
quickly and with pleasant affect.
Among other factors, an ALJ should consider how a treating
physician’s

opinion

is

supported

by

relevant

evidence

and

consistency between that opinion and the record as a whole.
Watkins, 350 F.3d at 1301.

In this case, however, the ALJ does

not explain why the MRI, bone scan and body scan results are
inconsistent with Dr. Mhatre’s fibromyalgia diagnosis and the
doctor’s

conclusions

as

to

plaintiff’s

functional

abilities.

The ALJ may not be attempting to make this point; his opinion is
unclear.

But, in the event that he is, he cites no authority or

reasoning for finding that such test results are relevant to
fibromyalgia.1

It

is

more

likely

perhaps

that

the

ALJ

is

referring to the various scan results with regard to plaintiff’s
low back pain.

But, again, the ALJ does not explain why the

results are inconsistent with plaintiff’s complaints of low back
pain.2

Possibly,

the

ALJ

is

inferring

from

observations

of

1

Other courts have noted that “[f]ibromyalgia cannot be proved by objective
test findings.” Wyatt v. Astrue, 2011 WL 322816 *6 (D.Kan. 1/31/2011); see
also Jones v. Colvin, 2014 WL 545607 *6 (D.Kan. 2/11/2014)(there are no
laboratory tests to identify the presence or severity of fibromyalgia); Gibbs
v. Colvin, 2013 WL 823412 *3 (D.Kan. 3/6/2013)(same).
2

One MRI showed “slight disk space narrowing” and suggested early stages of
progressive degenerative disk disease in the lower lumbar spine. (Tr. 673).

8

normal gait, range of motion, and muscle mass that plaintiff is
more

active

than

Dr.

Mhatre

has

suggested.

But,

this

is

speculation, especially in light of plaintiff’s testimony and
other entries in the record showing that plaintiff’s condition
can vary significantly so that she will have good days and bad
days.3
occasion

That
is

plaintiff’s
not

pain

has

substantially

been

different

rated
from

at

0-4

Dr.

on

an

Mhatre’s

observations of pain at 2-4 “on a good day,” but 5 or 6 “on the
worst day” (Tr. 423); or pain “most of the time” at 4-5, but 6-7
at worst (Tr. 842).4

It does not disprove the conclusion that

plaintiff has too many “bad days” a month to sustain substantial
gainful employment.

Finally, the fact that plaintiff has gone

out on occasion for church or to be with her granddaughter, or
that plaintiff can provide some help around the house, is not
significantly

inconsistent

with

plaintiff’s functional abilities.

Dr.

Mhatre’s

assessment

of

See Walden v. Astrue, 2012 WL

3733305 *5 (D.Kan. 8/28/2012)(rejecting an ALJ’s discrediting of

This may have provided the basis for the ALJ’s finding that plaintiff had
degenerative joint disease.
3

In Burgess v. Colvin, 2013 WL 4482711 *4 (D.Kan. 8/21/2013), the court
criticized as speculation an ALJ’s reference to normal gait pattern as
objective evidence contrary to a treating physician’s opinion of limitations
from fibromyalgia.
4

Plaintiff reported pain at varying levels between 0 and 10 during the first
half of 2011 when she had physical or occupational therapy sessions.
(Tr.
814-829). Plaintiff also had therapy in January 2012 following her tailbone
injury from the skating rink fall. (Tr. 806-812). She reported relief from
pain, but she may have been referring only to her tailbone. (Tr. 43).

9

Dr.

Mhatre’s

opinion

on

the

basis

of

somewhat

similiar

activities of daily living).
In sum, the court concludes that the ALJ has failed to
adequately analyze the opinion of Dr. Mhatre.
Plaintiff
analysis
social

of

makes

the

worker

the

opinion

who

capacity evaluation.

same
of

argument

Lynn

completed

a

regarding

Wagner-Knight,
mental

the

ALJ’s

plaintiff’s

residual

functional

Ms. Wagner-Knight saw plaintiff from late

February 2011 to August 2011.

Her evaluation indicated among

other things that plaintiff would do poorly at following even
simple instructions.

(Tr. 700).

The evaluation also stated

that plaintiff would do poorly at every one of 16 abilities and
aptitudes needed to do unskilled work, including the abilities
to:

make simple work-related decisions; perform at a consistent

pace without unreasonable number and length of rest periods;
deal with normal work stress; sustain ordinary routine without
special

supervision;

segment.

Ms.

and

maintain

Wagner-Knight

attention

mentioned

the

for

side

two

hour

effects

of

plaintiff’s medication as a factor in plaintiff’s confusion and
incoherence.

The ALJ concluded that Ms. Wagner-Knight was not

an acceptable medical source and afforded her opinion minimal
weight.

He

noted

that

her

opinion

was

inconsistent

with

plaintiff’s Hobby Lobby shopping trip, with plaintiff’s fixing
simple

meals

and

helping

with
10

laundry

and

dishes,

and

with

plaintiff’s aid in raising her granddaughter and going to the
grocery store with the assistance of her daughter.
The

ALJ

“acceptable

is

correct

medical

that

source”

Ms.

Wagner-Knight

within

the

is

meaning

not
of

an
the

regulations.

20 C.F.R. §§ 404.1513(a), 416.913(a)(defining the

term).

Her

opinion

“medical

opinion”

is

under

not
the

entitled

to

regulations.

consideration
But,

it

as

could

a
be

considered to show the severity of plaintiff’s limitations and
how they affected her ability to work.

Wells v. Colvin, 727

F.3d 1061, 1073-74 (10th Cir. 2013).
We agree with plaintiff that the ALJ’s dismissal of WagnerKnight’s
household

evaluation

as

activities,

undelineated

inconsistent
sporadic

assistance

in

with

trips

raising

a

reports

outside

the

of

minimal

house,

granddaughter,

and

lacks

a

clear or persuasive rationale. See Borgsmiller v. Astrue, 499
Fed.Appx.

812,

818-19

(10th

Cir.

10/17/12)(may

not

rely

on

evidence of minimal daily activities - - washing dishes and
preparing meals on “good days” - -

as substantial evidence of

no disabling pain); Krauser v. Astrue, 638 F.3d 1324, 1332-33
(10th Cir. 2011)(limited yard work, exercise, and housework are
not inconsistent with significant physical limitations); Madron
v. Astrue, 311 Fed.Appx. 170, 177 (10th Cir. 2/11/2009)(cooking,
travel to grocery store and limited household chores do not
prove ability to do substantial gainful activity); Thompson v.
11

Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993)(visiting neighbors
and light housework do not establish a person is capable of
engaging in substantial gainful activity); Broadbent v. Harris,
698 F.2d 407, 413 (10th Cir. 1983)(working in yard, performing a
few household tasks, working on cars, and taking an occasional
trip with brother in a camper, do not establish without more
evidence, an ability to perform substantial gainful activity).
While these cases concern an evaluation of the disabling effects
of pain, they also demonstrate that occasional household tasks
or other activities do not prove an aptitude to do unskilled
work under the stress and pace demanded by most employers.
In sum, the court does not believe the sporadic activities
described by the ALJ are inconsistent with Ms. Wagner-Knight’s
assessment that plaintiff would be unable to perform unskilled
work.

Since the ALJ bases his rejection of Ms. Wagner-Knight’s

opinion on this ground, the court finds that the ALJ improperly
considered her opinion.5

5

The ALJ gave “weight” to the opinion of Dr. Robert Barnett a licensed
psychologist and an acceptable medical source under the regulations and
“significant weight” to the assessments of state agency consultants whose
findings were considered consistent with Dr. Barnett’s findings. Dr. Barnett
performed a mental status examination of plaintiff in October 2010.
He
concluded that plaintiff functioned in the borderline range and “showed
pronounced difficulty with both attention and concentration during the
interview.”
(Tr. 444).
He concluded that plaintiff appeared “cognitively
capable of simple repetitive work tasks but her ability to perform complex
tasks would be limited by her low intellectual functioning as well as her
symptoms of depression and anxiety.” It might be reasonable for the ALJ to
reject Ms. Wagner-Knight’s opinion as inconsistent with that of Dr. Barnett
and other sources.
Wells, 727 F.3d at 1074.
However, this was not the
reason with the ALJ gave for discrediting Ms. Wagner-Knight’s opinion.
Moreover, the concentration problems noted by Dr. Barnett and other sources

12

IV. THE DECISION TO DENY BENEFITS MUST ALSO BE REVERSED BECAUSE
THE ALJ IMPROPERLY ANALYZED PLAINTIFF’S CREDIBILITY.
The ALJ’s analysis of plaintiff’s credibility relied on the
same

points

as

the

ALJ’s

evaluation

Mhatre and Ms. Wagner-Knight.

of

the

opinions

of

Dr.

In general, the ALJ found that

plaintiff’s “medically determinable impairments could reasonably
be

expected

to

cause

the

alleged

symptoms;

however,

the

[plaintiff’s] statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the
extent

they

are

inconsistent

functional capacity assessment.”
Plaintiff

asserts

that

the

with

the

[ALJ’s]

residual

(Tr. 15).
ALJ’s

analysis

was

improper

because:

the ALJ ignored plaintiff’s persistent attempts to

find

relief;

pain

the

ALJ

overlooked

plaintiff’s

use

of

an

assistive device; the ALJ failed to consider how plaintiff’s
psychiatric impairments might affect her complaints of pain; the
ALJ

misconstrued

the

significance

of

plaintiff’s

daily

activities; the ALJ failed to acknowledge the extensive amount
and negative effects of plaintiff’s medications; and the ALJ
unfairly

portrayed

portions

of

the

record

as

damaging

to

plaintiff’s credibility.

(Tr. 444, 610, 612, and 614), and given credence by the ALJ (Tr. 12), could
impact plaintiff’s ability to perform even simple work.
Bowers v. Astrue,
271 Fed.Appx. 731, 733-34 (10th Cir. 3/26/2008); Wiederholt v. Barnhart, 121
Fed.Appx. 833, 839 (10th Cir. 2/8/2005); Price v. Colvin, 2014 WL 1246762 *4
(D.Kan. 3/26/2014).
There is no indication that the vocational expert
considered these limitations.

13

As discussed above, the court believes that the ALJ has
relied

too

heavily

upon

plaintiff’s

daily

and

occasional

activities to support his conclusions and analysis.

Remand for

reconsideration of plaintiff’s credibility is justified for this
reason alone.

In addition, the ALJ did not refer to or inquire

in any detail as to the side effects of plaintiff’s medication.
Plaintiff takes a large number of medications.
260-61).
of

(Tr. 844-45,

Plaintiff has reported fatigue and sleepiness because

medication

(Tr.

261),

and

she

stated

that

she

could

not

return to her former employment because of the strong narcotics
she was taking.

(Tr. 32).

Ms. Wagner-Knight commented that

plaintiff’s strong pain medication had “extreme negative side
effects” and left her “very disoriented.”

(Tr. 700).

While an

ALJ is not obliged to engage in a point-by-point discussion of
every factor relating to credibility (Poppa v. Astrue, 569 F.3d
1167, 1171 (10th Cir. 2009)), we believe remand is warranted when
the record indicates that the ALJ did not properly consider at
least

two

relevant

factors

as

to

credibility,

such

as

plaintiff’s daily activities and plaintiff’s use of medication
and its side effects.

See SSR 96–7p, 1996 WL 374186 at *3

(listing factors for consideration in determining credibility).
The remainder of the ALJ’s credibility analysis is not so
persuasive as to convince the court that the ALJ’s findings are
closely

linked

to

substantial
14

evidence,

even

though

we

acknowledge

that

credibility

province of the ALJ.

determinations

are

normally

the

The ALJ attempted to draw a distinction

between plaintiff’s former employer not holding a job open for
her and plaintiff not being physically able to perform the job,
when plaintiff’s testimony on this subject appears to combine
the two points.6

The ALJ also suggested that plaintiff linked

her pain to a specific tailbone injury at one point in her
testimony, in contradiction to her later testimony that her pain
was not linked to a specific injury.

Plaintiff’s testimony,

however, was not clearly contradictory.

She stated that her

pain is worse in her lower back “by my tail bone area,” and that
the pain has been there a long time.
having a specific tailbone injury.

(Tr. 34).

She also denied

When questioned later about

the roller skating fall in October 2011, she seemed to indicate
that the fall caused her tailbone to hurt, but that was not the
source

of

her

previous

pain.

(Tr.

43).

Plaintiff

stated:

“[W]hat bothers me isn’t my tail bone, it’s my - - I have L4-5
and something, L3, 4 and 5 that’s messed up, it’s not the tail
bone.

So they asked me what was hurting, and that had never

6

Plaintiff stated: “A. But it took [the doctors] a long time to figure it
out [that plaintiff had fibromyalgia] and I was off past the required time
they . . . were required to hold my position. And so they said my position
was no longer available, and that because I had to take pain pills all the
time for the pain, that I wasn’t able to do my job under strong narcotics, so
they wouldn’t give me the position back.
Q. Exhibit 6[E] page 4 is a statement they completed. It says here on
page 4 ‘took 12 weeks of leave for medical reasons and still not able to meet
physical requirements to return to work.’ Is that what you’re talking about?
A. Yeah.”
(Tr. 32-33).

15

hurt before.”

Id.

Again, while the court honors the ALJ’s

authority to make credibility decisions, we do not believe the
inconsistencies
credibility

in

testimony

analysis

may

are

so

overcome

blatant
the

that

other

the

ALJ’s

deficiencies

described in this opinion.
V.

OTHER POINTS TO CONSIDER ON REMAND
Because the court believes that remand is necessary for the

reasons already stated, the court will not decide plaintiff’s
other arguments for remand.
that

as

alleged

by

The court would comment, however,

plaintiff,

the

ALJ

did

not

specifically

address the functional limitations which plaintiff might suffer
from foot problems and her obesity.
these

issues

be

given

specific

The court recommends that

consideration

by

the

ALJ

on

remand.
VI.

THE COURT SHALL NOT DIRECT AN IMMEDIATE AWARD OF BENEFITS.
While the court has discretion to reverse and remand for an

award of benefits, the court shall not do so because the court
believes that additional fact finding and analysis may clarify
the

nature

impairments.

and

extent

of

plaintiff’s

physical

and

mental

The court further notes that this action is in

accord with the relief requested in plaintiff’s reply brief.
Doc. No. 17 at p. 15.

16

VII.

CONCLUSION
The

court

shall

reverse

defendant’s

plaintiff’s applications for benefits.
that

this

case

be

remanded

to

the

decision

to

The court shall direct
Commissioner

proceedings consistent with this opinion.

for

further

This remand is made

under the fourth sentence of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
Dated this 3rd day of April, 2014, at Topeka, Kansas.

s/Richard D. Rogers
Richard D. Rogers
United States District Judge

17

deny