Janes v. Colvin

Filing 21

MEMORANDUM AND ORDER DENYING 13 Motion for Summary Judgment; DENYING 16 Motion for Summary Judgment; REVERSING the Commissioner's Judgment IN PART; REMANDING case for further proceedings. Signed by Magistrate Judge Stephanie A Gallagher on 5/3/2016. (hmls, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES MAGISTRATE JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

May 3, 2016
LETTER TO COUNSEL
RE:

Tracey Ann Janes v. Commissioner, Social Security Administration;
Civil No. SAG-15-1126

Dear Counsel:
On April 9, 2014, Plaintiff Tracey Ann Janes petitioned this Court to review the Social
Security Administration’s (“SSA”) final decision to deny her claims. (ECF No. 1). I have
considered the parties’ cross-motions for summary judgment, and Plaintiff’s reply. (ECF Nos.
13, 16, 17). In addition, I have reviewed the Commissioner’s supplemental brief regarding the
impact of the Fourth Circuit’s recent decision in Fox v. Colvin, __ Fed. App’x __, 2015 WL
9204287 (4th Cir. Dec. 17, 2015). 1 (ECF No. 20). I find that no hearing is necessary. See Loc.
R. 105.6 (D. Md. 2014). This Court must uphold the decision of the Agency if it is supported by
substantial evidence and if the Agency employed proper legal standards. See 42 U.S.C.
§§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996). Under that standard, I
will deny both motions, reverse the Commissioner’s decision in part, and remand the case to the
Commissioner for further consideration. This letter explains my rationale.
Ms. Janes filed a claim for Disability Insurance Benefits on September 6, 2011, and a
claim for Supplemental Security Income Benefits on September 28, 2011. (Tr. 191-197, 198206). She alleged a disability onset date of May 30, 2010. (Tr. 191). After her claims were
denied initially and upon reconsideration, Ms. Janes filed a request for hearing on May 10, 2012.
(Tr. 148). A hearing before an Administrative Law Judge (“ALJ”) took place on November 5,
2013. (Tr. 36-88). Following the hearing, the ALJ determined that Ms. Janes was not disabled
within the meaning of the Social Security Act during the relevant time frame. (Tr. 7-31). The
Appeals Council denied Ms. Janes’s request for review, (Tr. 1-5), so the ALJ’s decision
constitutes the final, reviewable decision of the Agency.
The ALJ found that Ms. Janes suffered from the severe impairments of bipolar disorder,
attention deficit-hyperactivity disorder (“ADHD”), personality disorder, and chronic obstructive
pulmonary disease (“COPD”). (Tr. 12). Despite these impairments, the ALJ determined that
Ms. Janes retained the residual functional capacity (“RFC”) to:
1

The parties were notified of the potentially relevant ruling in Fox in a letter order dated January 4, 2016. (ECF No.
18). The letter order provided the Commissioner thirty days to determine whether consent remand was required
under Fox, or whether she instead wished to file supplemental briefing addressing the apparent Fox issue. The
Commissioner filed her supplemental brief on January 27, 2016. (ECF No. 20).

Tracey Ann Janes v. Commissioner, Social Security Administration
Civil No. SAG-15-1126
May 3, 2016
Page 2
perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except
that, because of her mental impairments, she can perform jobs consisting of only
unskilled, routine, and repetitive tasks in a work environment with flexible hourly
quotas and involving only simple, work-related decisions with few, if any,
workplace changes.
(Tr. 19). After considering the testimony of a vocational expert (“VE”), the ALJ determined that
Ms. Janes could perform jobs existing in significant numbers in the national economy and that,
therefore, she was not disabled. (Tr. 30-31).
Ms. Janes raises two arguments on appeal. She first asserts that the ALJ failed to give
controlling weight to the opinions of her treating health professionals when analyzing the
severity of her affective disorder and RFC. Pl. Mem. 14. Ms. Janes also asserts that the ALJ’s
determination that her mental impairments did not meet or medically equal the Agency’s listing
of impairments for affective disorders, Listing 12.04, was not supported by substantial evidence.
Pl. Mem. 24. I disagree with both arguments.
A. The ALJ Gave Proper Weight to the Opinions of the Health Professionals
In support of her first argument, Ms. Janes outlines her history of mental health treatment
with psychiatrists Xiaoping Shao and Sanjeev Singhal, beginning in 2005, along with her regular
visits with psychological counselor Stephen Williams, LCSW-C, beginning in 2008. She argues
that the opinions of her treating medical professionals should be given greater weight than that of
the Agency’s medical professional, Jannifer Hill-Keyes, Ph.D., because Dr. Hill-Keyes “never
once laid hands or eyes on Ms. Janes,” and based her opinions on “a single occasion in which she
reviewed incomplete documentation which did not even include the opinions of Dr. Singhal or
Mr. Williams.” Pl. Mem. 16. According to Ms. Janes, Dr. Singhal’s findings that she “had
weeks during which she felt irritable, helpless and hopeless followed by a manic state in which
she was scattered, forgetful and talking non-stop,” that she “had poor insight into her illness,”
and “had multiple stressors and . . . was depressed and anxious,” and that she “needed to be
followed closely,” are supported by the record, which “as a whole [is] consistent and
uncontradicted by any evidence other than the single record review of Dr. Hill-Keyes.” Id. at 15,
17.
This Court’s role is not to reweigh the evidence or to substitute its judgment for that of
the ALJ, but simply to adjudicate whether the ALJ’s decision was supported by substantial
evidence. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). In making a disability
determination, an ALJ evaluates medical opinions pursuant to the following non-exclusive list:
(1) whether the physician has examined the applicant, (2) the treatment relationship between the
physician and the applicant, (3) the supportability of the physician’s opinion, (4) the consistency
of the opinion with the record, and (5) whether the physician is a specialist. See 20 C.F.R. §
404.1527(c). The ALJ may accord “greater weight to the testimony of a treating physician
because the treating physician has necessarily examined the applicant and has a treatment
relationship with the applicant.” Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005)

Tracey Ann Janes v. Commissioner, Social Security Administration
Civil No. SAG-15-1126
May 3, 2016
Page 3
(citations and internal quotation marks omitted). While this “treating physician rule” generally
requires a court to accord greater weight to a treating physician’s testimony, the rule does not
require that the testimony be given “controlling weight.” Hunter v. Sullivan, 993 F.2d 31, 35
(4th Cir. 1992) (per curiam). The treating physician’s opinion is only entitled to controlling
weight if it is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in the record.” Mastro v.
Apfel, 270 F.3d 171, 178 (4th Cir. 2001). “Thus, by negative implication, if a physician’s
opinion is not supported by clinical evidence or if it is inconsistent with other substantial
evidence, it should be accorded significantly less weight.” Id. (quoting Craig, 76 F.3d at 590)
(alterations omitted).
Here, the ALJ accorded “significant weight” to the opinion of Dr. Hill-Keyes, and “little
weight” to Dr. Singhal’s opinion. (Tr. 27). The ALJ’s reasoning for this decision accords with
the legal standard discussed above. After providing a detailed account of the inconsistencies
between Ms. Janes’s subjective assessment of her symptoms and the objective evidence of
record, see (Tr. 20-26), the ALJ explained that Dr. Singhal’s opinion “relied quite heavily on the
subjective report of symptoms and limitations provided by [Ms. Janes],” despite the existence of
“good reasons for questioning the reliability” of these subjective complaints. (Tr. 27).
For example, in July, 2011, Dr. Singhal opined that Ms. Janes suffered from pressured
speech, “[b]ipolar syndrome with a history of episodic periods manifested by the full
symptomatic picture of both manic and depressive syndromes,” mood disturbances, manic
syndrome, “[e]motional lability, [e]asy distractibility, [h]yperactivity, [i]ntense and unstable
interpersonal relationships,” and “[i]nvolvement in activities that have a high probability of
painful consequences which are not recognized.” (Tr. 337-338). Dr. Singhal further opined that,
as a result of these problems, Ms. Janes would have “no useful ability to function” in several
unskilled work-related areas, such as regular attendance and punctuality, getting along with coworkers, dealing with normal work stress, and remembering and carrying out tasks. (Tr. 339).
However, the ALJ noted that Ms. Janes testified that she retains the ability to “care for a small
child four days a week, do household chores, go shopping, prepare food, volunteer with a youth
group for 2-1/2 hours once a week on a consistent basis, and leave town at least three times a
year for 3-4 days at a time.” (Tr. 22). Moreover, the ALJ noted that Dr. Singhal’s treatment plan
with respect to Ms. Janes’s mental impairments was “routine and conservative,” and was “not
consistent with what one would expect if [Ms. Janes] were truly disabled, as [Dr. Singhal] has
reported,” and that both Dr. Singhal and Stephen Williams, LCSW-C, Ms. Janes’s psychological
counselor, in addition to Ms. Janes herself, had opined that her impairments are effectively
managed by medication. (Tr. 27, 28). These inconsistencies, in addition to others cited by the
ALJ, provide sufficient justification for the ALJ’s decision to accord little weight to Dr.
Singhal’s opinion.
Importantly, the facts in this case are distinguishable from those in Morales v. Apfel, in
which the Third Circuit found the ALJ’s refusal to credit the claimant’s treating physician
improper because the ALJ’s decision was “not based on objective medical evidence,” but, rather,
was predicated on the ALJ “simply not believ[ing] [the claimant’s] testimony at the hearing” and

Tracey Ann Janes v. Commissioner, Social Security Administration
Civil No. SAG-15-1126
May 3, 2016
Page 4
“disregard[ing[ medical opinion based solely on his own amorphous impressions.” 225 F.3d
310, 318 (3d Cir. 2000). Unlike Morales, in the instant case, the ALJ based his opinion on the
evidence of record discussing Ms. Janes’s daily activities, the intensity of her symptoms, and her
responsiveness to medication and other treatment relative to the longitudinal objective medical
evidence. (Tr. 21). In so doing, the ALJ found that Ms. Janes’s daily activities are “inconsistent
with a disabling level of impairments,” given that Ms. Janes testified she cannot work full time,
but also admitted that she volunteers with a youth group at a local community center, walks to
the store and back, “reads a lot of self-help books,” “can work full-time on a good day,”
completes chores and light cooking, and has provided daycare for her granddaughter. (Tr. 22).
Moreover, the ALJ noted that while Ms. Janes stated that she has not been able to “keep a
job for the past twenty-five years due to mental health issues,” the record shows that she worked
at a level of substantial gainful activity (“SGA”) in 1989, 1990, 1992, 1997, 1998, 2000, and
2008, and worked at a level near SGA in 1991, 1994, 2001, and 2007. (Tr. 23). The ALJ also
noted that Dr. Singhal’s objective medical records post-dating Ms. Janes’s alleged onset date are
inconsistent with Ms. Janes’s subjective assessment of symptom severity, as well as Dr.
Singhal’s earlier findings of symptom severity pre-dating Ms. Janes’s alleged onset date. (Tr.
24-25); see also Bullock v. Astrue, No. BPG-09-112, 2010 WL 3060591, at *4 n.5 (D. Md. Aug.
3, 2010) (holding that an ALJ does not err in considering evidence prior to the alleged onset date
as less probative of a claimant’s condition than evidence after the alleged onset date).
Ms. Janes argues that, in considering her activities of daily living, the ALJ failed to
properly consider that her employment has been “transitory and sporadic,” and that this inability
to sustain employment was not considered in concert with Dr. Singhal’s earlier diagnoses of
limited mental capabilities and marked limitations. Pl. Mem. 20-21. According to Ms. Janes,
“when a claimant has bipolar disorder with fluctuations between manic and depressive states and
periods of apparent stability, it is legal error when the ALJ fails to determine whether the
claimant could perform work on for [sic] a full workday on a consistent basis and for a
significant period of time.” Id. at 21.
As explained above, however, the ALJ considered the objective medical evidence in
concert with and in light of Ms. Janes’s employment history and activities of daily living, and
expressly determined that Ms. Janes has only mild restriction in activities of daily living and
social functioning,” but is “unable to sustain detailed or complex work processes during a normal
workday and work week.” (Tr. 17, 18). Despite these limitations, the ALJ concluded that, in
looking at the record as a whole, there was “no functional consequence of [Ms. Janes’s]
limitation in [the area of concentration, persistence, or pace] beyond an inability to sustain
detailed or complex work processes, and, in the instant case, a restriction to jobs consisting of
unskilled, routine, and repetitive tasks in a work environment with flexible hourly quotas and
involving only simply work-related decisions, with few, if any, workplace changes adequately
addresses that restriction.” (Tr. 18). I therefore find that the ALJ adequately assessed the record,
including Ms. Janes’s employment history and social functioning.

Tracey Ann Janes v. Commissioner, Social Security Administration
Civil No. SAG-15-1126
May 3, 2016
Page 5
Ms. Janes also argues that the ALJ improperly accorded significant weight to Dr. HillKeyes’s opinions because Dr. Hill-Keyes “never once laid hands or eyes on Ms. Janes,” and
based her opinions “on a single occasion in which she reviewed incomplete documentation
which did not even include the opinions of Dr. Singhal or Mr. Williams.” Pl. Mem. 16. She also
asserts that Dr. Hill-Keyes did not review Dr. Singhal’s opinion evidence, and did not have the
opportunity to review evidence entered into the record after she rendered her opinion. Pl. Br. 11,
20. However, as the Commissioner points out in her motion for summary judgment, this
characterization of Dr. Hill-Keyes’s opinion and materials consulted is inaccurate. In her
December 21, 2011 report, Dr. Hill-Keyes in fact summarized Dr. Singhal’s July, 2011 findings,
noting that Dr. Singhal reported that Ms. Janes was “probably not sufficient to live
independently” and had “functional limitations rated frequent, with reported 4+ extended
episodes [of] decompensation.” Dr. Hill-Keyes then concluded that Dr. Singhal’s opinions were
“not consistent with the other evidence in the file,” since Ms. Janes “has [medically diagnosed
impairments] but maintains the ability to understand, remember and carry out 1-2 step work-like
procedures performed routinely with few variables, maintains the ability to maintain adequate
concentration and attention within a schedule, with regular, punctual attendance within
customary tolerances with minimum limitations, and to sustain an ordinary routine without
special supervision.” (Tr. 107).
Further, the ALJ did not err in assigning significant weight to Dr. Hill-Keyes’s opinions
despite Dr. Hill-Keyes not having reviewed the treatment records post-dating her report. As long
as the ALJ has the opportunity to review the record as a whole and evaluate whether the State
agency expert’s opinion is consistent with any subsequent evidence, the ALJ may assign weight
to various medical professionals in accordance with the record. See Adams v. Comm’r, Soc. Sec.,
No. JFM-14-2434, 2015 WL 1778372, at *4 (D. Md. Apr. 16, 2015). In this case, the ALJ
reviewed the record in its entirety, making specific note of Dr. Singhal’s findings post-dating Dr.
Hill-Keyes’s report, see (Tr. 14-17), and found that Dr. Hill-Keyes’s findings of non-severity
were consistent with the whole record, including Dr. Singhal’s treatment notes from 2012 and
2013. (Tr. 17). Based on the ALJ’s thorough review of the medical evidence, and my own
review of the ALJ’s opinion, I find that the ALJ provided substantial evidence for his findings.
Finally, Ms. Janes argues that the ALJ’s conclusion regarding Ms. Janes’s RFC is
inconsistent with Dr. Singhal’s notation that Ms. Janes would be absent from work for about four
days per month, and the Vocational Expert’s (“VE”) consequent statement that there are no jobs
in the national or local economy for an individual who would miss more than two days per
month from work and is unable to stay on task for at least eighty percent of the workday. (Tr.
86-87, 341). This argument “turns on the ALJ’s failure to incorporate the restrictions” contained
in Dr. Singhal’s opinion. Lashbaugh v. Comm’r, Soc. Sec. Admin., No. SAG-12-1391, 2013 WL
2455992, at *2 (D. Md. June 4, 2013). As noted above, however, the ALJ in the present case
properly considered Dr. Singhal’s opinion, including Dr. Singhal’s July 7, 2011 record which
opined that Ms. Janes would be absent from work for “about four days” per month, and found
that Dr. Singhal’s opinion merited little weight. (Tr. 27-28, 341). Accordingly, the ALJ
committed no error.

Tracey Ann Janes v. Commissioner, Social Security Administration
Civil No. SAG-15-1126
May 3, 2016
Page 6
B. The ALJ Properly Determined that Ms. Janes’s Impairments Did Not Meet Listing
12.04
Ms. Janes argues that substantial evidence does not support the ALJ’s conclusion that her
impairments did not meet or medically equal Listing 12.04, “Affective Disorders.” Pl. Mem. 2425. When evaluating the severity of mental impairments at step three of the ALJ’s sequential
determination, if the ALJ finds that the claimant has medically documented persistence of an
objective symptom of an affective disorder, signaling an affective impairment, the ALJ is
instructed to rate the degree of functional limitation resulting from a claimant’s impairment(s)
with respect to the following factors: activities of daily living, social functioning, concentration,
persistence or pace, and episodes of decompensation (the “Paragraph B” factors). See 20 C.F.R.
§ Pt. 404, Subpt. P, App. 1 at § 12.04. The listing is met if a claimant can show any two of the
following: marked restrictions in activities of daily living, marked difficulties in maintaining
social functioning, concentration, persistence, or pace, and repeated episodes of decompensation
(defined as three episodes within one year, or an average of once every four months, each lasting
for at least two weeks). Id.
A listing may also be met if the ALJ finds that a claimant meets another set of factors,
known as the “Paragraph C” factors; that is, that the claimant has a “medically documented
history of chronic affective disorder of at least 2 years’ duration that has caused more than a
minimal limitation of ability to do basic work activities, with symptoms or signs currently
attenuated by medication or psychosocial support,” and which has led to either repeated episodes
of decompensation, each of extended duration, a “residual disease process” that is so strenuous
that even a minimal change in mental demands would cause the claimant to decompensate, or
inability to function outside of a “highly supportive living arrangement” for more than one year.
Id.
With respect to both the Paragraph B and C factors, the ALJ found that Ms. Janes had
only mild restriction in activities of daily living, mild difficulty in social functioning, and
moderate difficulties with concentration, persistence or pace. (Tr. 18). Moreover, the ALJ
determined that there was insufficient evidence to make an assessment regarding Ms. Janes’s
episodes of decompensation. The ALJ expressly stated that, “[a]lthough Dr. Singhal notes that
[Ms. Janes] has experienced four plus episodes of repeated decompensation, each of extended
duration,” there was no objective medical evidence that she had suffered “exacerbations in
symptoms or signs that would ordinarily require increased treatment or a less stressful situation
(or a combination of the two); significant alteration in medication; or need for a more structured
psychological support system.” (Tr. 18). The ALJ also made note of the State agency expert’s
April 24, 2012 findings that Ms. Janes had experienced four or more repeated episodes of
decompensation, each of extended duration, but found that the record likewise lacked objective
evidence for the severity of those episodes, and gave little weight to that expert’s finding
regarding episodes of decompensation. (Tr. 18 & n.3, 27, 124).
Ms. Janes’s argument that the ALJ’s findings regarding Listing 12.04 were unsupported
by substantial evidence is predicated on her first argument that Dr. Singhal’s opinions were

Tracey Ann Janes v. Commissioner, Social Security Administration
Civil No. SAG-15-1126
May 3, 2016
Page 7
entitled to controlling weight, since Dr. Singhal’s reports provide the only evidence of Ms.
Janes’s marked limitations and episodes of decompensation. As has been discussed, however, the
ALJ found that Dr. Singhal’s opinions were inconsistent with the total evidence of record,
including the evidence speaking to Listing 12.04’s Paragraph B and C factors. For example, the
ALJ considered Dr. Singhal’s opinion that Ms. Janes had experienced multiple episodes of
decompensation, but rejected this opinion given the lack of objective evidence that any of the
episodes of decompensation post-dated Ms. Janes’s alleged onset date. (Tr. 18). My finding that
the ALJ properly accorded little weight to Dr. Singhal’s opinions is dispositive as to her Listing
12.04 argument.
C. The ALJ Did Not Properly Consider Ms. Janes’s Physical Impairments
In addition to Ms. Janes’s arguments, I have also considered the impact of the Fourth
Circuit’s recent ruling in Fox v. Colvin, __ Fed. App’x __, 2015 WL 9204287 (4th Cir. Dec. 17,
2015). In Fox, the Fourth Circuit clarified the evidentiary requirements needed to support an
ALJ’s finding of whether any of a claimant’s impairments meets a listing at step three of the
sequential evaluation. To understand why remand is warranted, some background is useful. At
step three of the sequential evaluation, the ALJ determines whether a claimant’s impairments
meet or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. Listings describe each of the major body system impairments that the Agency
“consider[s] to be severe enough to prevent an individual from doing any gainful activity,
regardless of his or her age, education, or work experience.” 20 C.F.R. § 416.925(a). Listings
1.00 et. seq., through Listings 11.00, et. seq., Listings 13.00 et. seq., and Listings 14.00 et. seq.,
pertain to physical impairments. Each physical impairment listing contains a set of signs or
objective medical findings which must be present for the claimant’s impairment to meet the
listing.
In Fox, regarding his findings at step three of the sequential evaluation, the ALJ stated:
Although the claimant has ‘severe’ impairments, they do not meet the criteria of
any listed impairments described in Appendix 1 of the Regulations. (20 CFR,
Subpart P, Appendix 1). No treating or examining physician has mentioned
findings equivalent in severity to the criteria of any listed impairment, nor does
the evidence show medical findings that are equivalent to those of any listed
impairment of the Listing of Impairments. In reaching this conclusion, the
undersigned has considered, in particular, sections 9.00(B)(5) and 11.14.
2015 WL 9204287 at *4. The Fourth Circuit held that the ALJ’s analysis was deficient because
it consisted of conclusory statements and did not include “any ‘specific application of the
pertinent legal requirements to the record evidence.’” Id. (quoting Radford v. Colvin, 734 F.3d
288, 291-92 (4th Cir. 2013)). That is, the ALJ did not apply any findings or medical evidence to
the disability listing and “offered nothing to reveal why he was making his decision.” Radford,
734 F.3d at 295 (emphasis in original). The Fourth Circuit also rejected the notion that failure to
engage in meaningful analysis at step three could constitute harmless error where the evidence of

Tracey Ann Janes v. Commissioner, Social Security Administration
Civil No. SAG-15-1126
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record otherwise demonstrated that the claimant did not meet a listing. 2015 WL 9204287, at *4.
Rather, the Fox Court emphasized that it is not this Court’s role to “engage[] in an analysis that
the ALJ should have done in the first instance,” or “to speculate as to how the ALJ applied the
law to its findings or to hypothesize the ALJ’s justifications that would perhaps find support in
the record.” Id. at *4-*5. The Court noted that it could not conduct a meaningful review “when
there is nothing on which to base a review.” Id. at *4.
Here, as in Fox, the ALJ failed to apply the requirements of the relevant listing to the
medical evidence in his discussion of Ms. Janes’s COPD. Specifically, the ALJ failed to connect
his finding that Ms. Janes suffers from “severe” COPD to Listing 3.02 at all. In one line of his
step three analysis, the ALJ stated that he had “considered” Listing 3.02, but did not provide any
discussion of that listing’s elements, or of any of the objective medical evidence—or lack
thereof—to support his findings that Ms. Janes’s COPD did not meet or medically equal Listing
3.02. (Tr. 17). The ALJ sporadically noted symptoms of Ms. Janes’s COPD throughout his
opinion, but failed to explain the role that those symptoms played in any part of his analysis and
his ultimate conclusion that Ms. Janes was not disabled.
An ALJ’s analysis would be insufficient under Fox if it stated a finding of a severe
impairment, and coupled that finding with a mere conclusory statement that the impairment did
not meet a listing without discussing any of the evidence to support that conclusion. Here,
however, the ALJ did not even make such an attempt. Instead, the ALJ completely bypassed any
conclusion regarding Ms. Janes’s COPD and Listing 3.02, stating only in his step three analysis
that he had “considered” that listing, and failing to even cursorily conclude that the listing was
not met. (Tr. 19). Moreover, Fox and its progeny seem to preclude a “harmless error” analysis
by prohibiting a de novo review of the record to see whether or not evidence supporting a listing
is contained therein. For these reasons, remand is warranted.
For the reasons set forth herein, Ms. Janes’s Motion for Summary Judgment (ECF No.
13) is DENIED, and Defendant’s Motion for Summary Judgment (ECF No. 16) is DENIED.
Pursuant to sentence four of 42 U.S.C. § 405(g), the Commissioner’s judgment is REVERSED
IN PART due to inadequate analysis. The case is REMANDED for further proceedings in
accordance with this opinion. The Clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as an opinion and docketed
as an order.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States Magistrate Judge