Sutton v. Berryhill

Filing 18

Chief Judge Patti B. Saris: MEMORANDUM AND ORDER: The Court ALLOWS Plaintiff's motion for judgment on the pleadings (Dkt. No. 12 ) and remands the action, and DENIES Defendant's motion to affirm the Commissioner's decision (Dkt. No. 15 ).(Lara, Miguel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
________________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL, Acting Commissioner )
of the Social Security Administration, )
)
Defendant.
)
________________________________________)
RICHARD ELTON SUTTON,

Civil Action
No. 17-12253-PBS

MEMORANDUM AND ORDER
February 20, 2019
Saris, C.J.
INTRODUCTION
Plaintiff Richard Elton Sutton brings this action under 42
U.S.C. § 405(g) for judicial review of a final decision denying
his application for Social Security Disability Insurance
(“SSDI”) and Supplemental Security Income (“SSI”) benefits.
Plaintiff suffers from various mental impairments including
anxiety, depression, and post-traumatic stress disorder
(“PTSD”). He argues that the Administrative Law Judge (“ALJ”)
deciding his case erred in two respects: (1) by improperly
weighing the medical opinion evidence from his treating
psychiatrist, and (2) by failing to properly evaluate his
subjective statements regarding his symptoms.
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For the reasons set forth below, the Court ALLOWS
Plaintiff’s motion for judgment on the pleadings (Dkt. No. 12)
and remands the action, and DENIES Defendant’s motion to affirm
the Commissioner’s decision (Dkt. No. 15).
FACTUAL BACKGROUND
Plaintiff was 46 years old when he filed his applications
for SSDI and SSI on May 5, 2014. R. 287. He had previously
worked as a construction laborer, a material handler, and an
order filler. R. 96-97. Plaintiff alleged disability due to
PTSD, depression, and diabetes. R. 144. He also experienced
homelessness and struggled with substance abuse. R. 623-24.
I.

Medical History1
On April 8, 2014, Plaintiff had his first visit with Dr.

Jonathan Rothberg, a psychiatrist. R. 471. Plaintiff scored
“very high” on a questionnaire that screens for depression.
R. 471. Dr. Rothberg noted that the depression was “possibly
situational,” as Plaintiff was unable to secure a case manager
at the homeless shelter or find steady work. R. 468, 471.
Plaintiff expressed hopelessness. R. 468.
On April 11, 2014, Plaintiff underwent psychiatric
evaluation by Dr. Esther Valdez. R. 623-28. Plaintiff displayed

1

This section focuses on evidence of Plaintiff’s mental health
conditions because that is the basis for Plaintiff’s appeal. The
record also contains evidence of certain physical ailments.

2

symptoms of anxiety and depression including agitation,
depressed mood, irritability, low self-esteem, and worry.
R. 626. Dr. Valdez noted that Plaintiff had a depressed and
“angry/hostile” mood and displayed “anxious preoccupations.” R.
626-27. His appearance, alertness, memory, attention, behavior,
thought process, and perception were otherwise normal. R. 62627. Despite his complaints of “severe depression,” Plaintiff
declined psychiatric intervention because he was “looking to
find an employment advocate and legal aid only.” R. 627-28.
Plaintiff reported regular marijuana use, as well as a history
of cocaine and alcohol abuse. R. 623, 625.
Plaintiff then saw Dr. Dyanne London, a psychotherapist, on
April 16, 2014. R. 464-66. During the visit, Plaintiff expressed
a desire “to meet before he explodes” and reported a history of
depression. R. 465. His mental status exam showed cooperative
behavior, good impulse control, euthymic mood, appropriate
affect, coherent thought process, intact memory, good insight to
disorder, and no judgment impairment. R. 465-66.
On April 23, 2014, Plaintiff met with Karen Fink, a
licensed social worker, who diagnosed him with anxiety disorder
and depressive disorder, and considered a PTSD diagnosis.
R. 330.

Ms. Fink did not record any mental status findings. Id.

Plaintiff saw Edwige Berrouet, another licensed social
worker, two days later on April 25, 2014. R. 339. Mr. Berrouet
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noted that Plaintiff displayed symptoms of anxiety and
depression including difficulty concentrating, irritability,
worry, anhedonia, fatigue, difficulty sleeping, and depressed
mood. R. 342. Plaintiff told Mr. Berrouet that he regularly used
marijuana to self-medicate, and that he used cocaine “off and
on.” R. 339, 341. Plaintiff also reported that he had twice seen
a psychiatrist for treatment and had been prescribed Paxil, a
drug used to treat anxiety and depression. R. 340.
Dr. Anna Fitzgerald, a board-certified psychiatrist, also
evaluated Plaintiff on April 25, 2014. R. 312. Dr. Fitzgerald
noted the following symptoms: decreased appetite, decreased
energy level, loss of interest in pleasurable activities,
isolation, avoidance, and panic attacks. R. 315-16. Plaintiff’s
appearance, behavior, attention, language, thought process,
perception, orientation, and memory were again normal. R. 31617. Plaintiff’s Global Assessment of Functioning (“GAF”) score
was 55, which was indicative of moderate symptoms. R. 317. Dr.
Fitzgerald prescribed Zoloft, an antidepressant, and recommended
that Plaintiff begin individual therapy. R. 317-18.
Plaintiff saw Dr. Fitzgerald again on May 2, 2014.

R. 321.

Dr. Fitzgerald noted that Plaintiff “continue[d] to feel
depressed” and “also [had] some panic symptoms and posttraumatic
reexperiencing [sic], avoidance, and hyperarousal.” R. 321.
Dr. Fitzgerald added trauma to Plaintiff’s list of symptoms and
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noted that Plaintiff experienced flashbacks and nightmares.
R. 323. She urged Plaintiff to stop using marijuana and cocaine
both “for his health and for his application for disability.”
R. 321. Dr. Fitzgerald diagnosed Plaintiff with major depressive
disorder (recurrent, moderate) and anxiety disorder, but she
ruled out a PTSD diagnosis. R. 324
Plaintiff continued seeing Dr. Fitzgerald every three
months through at least March 2016. R. 696.

Notes from these

visits, however, are not included in the administrative record.
II.

State Agency Medical Consultant Evaluations
Judith Bevis, Ph.D., evaluated Plaintiff on November 18,

2014. R. 691-95. Plaintiff indicated that he was applying for
disability benefits because of “problems with ‘job selection.’”
R. 691. He “appear[ed] to be dysphoric” and reported that he had
“become quite depressed” because of his unemployment and other
stressors. R. 691. He described disturbances in sleeping habits,
mood, and energy level, but had no difficulties with activities
of daily living. R. 693-94. He also reported experiences of
abuse as a child and often found himself in situations in which
he felt victimized. R. 694. Dr. Bevis diagnosed Plaintiff with
major depression and PTSD, and recommended therapy. R. 694. She
assessed a GAF score of 65, reflecting mild symptoms. R. 695.
Plaintiff indicated to Dr. Bevis that he wanted to return
to full-time construction work and “seemed to have difficulty
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figuring out how to transition to a different type of work
outside of being a union laborer.” R. 694. He expressed aversion
to low paying jobs that “do not lead to a career” and would
leave him “[un]able to support himself.” R. 692. Dr. Bevis
opined that Plaintiff might be a candidate for vocational
retraining. R. 694.
On November 26, 2014, psychologist Aryeh Shestopal, Ph.D.,
reviewed the then available records. R. 127-28. Dr. Shestopal
assigned the greatest weight to the assessment completed by Dr.
Bevis. R. 128. He found that Plaintiff had “potential for
antagonistic behavior, possibly due to his interpersonal stance
of viewing himself as ‘victimized,’ in the context of early
trauma.” R. 128. He anticipated “moderate difficulty in
following supervisory instructions or adjusting to change” but
found no evidence of significant limitations in other spheres of
functioning. R. 128.
III. Treating Psychiatrist Evaluation
On March 21, 2016, during a regular visit, Dr. Fitzgerald
diagnosed major depression and PTSD. R. 696. Plaintiff’s GAF
scored had also decreased to 40.2 R. 696. Dr. Fitzgerald
completed a Mental Residual Functional Capacity Assessment for
Plaintiff. R. 696-99. Dr. Fitzgerald reported that Plaintiff was

A GAF score of 31 to 40 denotes some impairment in reality testing or
communication or a major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood functioning.
2

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moderately or markedly limited in 12 of 21 areas of mental
functioning. R. 696-99. She indicated that Plaintiff was
moderately limited in his ability to carry out detailed
instructions; work in coordination with or proximity to others
without being distracted by them; accept instructions and
respond appropriately to criticism from supervisors; get along
with coworkers or peers without distracting them or exhibiting
behavioral extremes; and set realistic goals or make plans
independently of others. R. 697-99. His marked limitations
included the ability to understand and remember detailed
instructions; maintain attention and concentration for extended
periods; perform activities within a schedule, maintain regular
attendance and be punctual; complete a normal workday and
workweek without interruptions from psychologically based
symptoms and perform at a consistent pace; respond appropriately
to changes in the work setting; travel to unfamiliar places or
use public transportation; and tolerate normal levels of stress.
R. 697-99. Dr. Fitzgerald also reported that she had been seeing
Plaintiff for treatment every three months since 2014. R. 696.
IV.

Hearing Testimony
At the hearing on May 5, 2016, Plaintiff testified that he

had depression, anxiety, and PTSD. R. 73. He stated that because
of these impairments he had difficulty understanding and
remembering instructions, concentrating, maintaining regular
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attendance and being on time, and tolerating work stress. R. 7576, 86. He also claimed that his depression and anxiety caused
him to “clash” with his employers, causing each of his 50 to 60
employment relationships to end after two or three months.
R. 73. He stated that his depression improved with medication,
but that when his anxiety was triggered he tended to neglect his
health and personal needs. R. 87. He testified that he had not
used cocaine in 11 months but continued to use marijuana to deal
with PTSD. R. 74, 78.
PROCEDURAL HISTORY
Plaintiff filed his applications for SSDI and SSI on May 5,
2014, alleging a disability onset date of May 15, 2013.3 R. 200.
His applications were denied initially on July 25, 2014, and
again on reconsideration on January 22, 2015. R. 119, 141. On
March 20, 2015, Plaintiff filed a request for a hearing, which
was held before an ALJ on May 5, 2016. R. 63, 157. Plaintiff
appeared at the hearing with counsel. R. 65. A vocational expert
(“VE”) also appeared and testified. R. 65.
The ALJ issued her decision on June 15, 2016. R. 41-57. At
step one, the ALJ found that Plaintiff had not engaged in any
substantial gainful activity since the onset of his disability.
R. 44. At step two, the ALJ found that Plaintiff suffered from a

3

Plaintiff later amended his alleged disability onset date to May 1,
2014. R. 71-72.

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number of severe impairments, including affective disorder,
anxiety disorder, PTSD, and polysubstance abuse disorder with
occasional marijuana use and cocaine abuse in early
remission. R. 44. At step three, the ALJ found that Plaintiff
did not have an impairment or a combination thereof that met or
equaled the severity of one of the impairments listed in the
regulations. R. 44-46. Next, the ALJ found that Plaintiff
possessed the capacity to perform light work as defined in 20
C.F.R. § 404.1567(b) and 416.967(b) except that he could only
“manage superficial interactions in the workplace” and “adapt to
minor changes in workplace demands.” R. 46-55. In making this
determination, the ALJ gave “less weight” to the mental
functional assessment completed by Plaintiff’s treating
psychiatrist, Dr. Fitzgerald, in March 2016. R. 55. The ALJ
misidentified Dr. Fitzgerald as a “treating nurse practitioner,”
concluded that she was “not a medically acceptable treating
source,” and found her assessment “[un]supported by the
objective record” and, specifically, contradicted by “treating
physician and evaluating source notes and observations.” R. 5355. The ALJ gave “great weight” to the psychological assessment
completed by Dr. Shestopal in November 2014. R. 55. At step
four, the ALJ found that Plaintiff could perform his past work
as an order filler. R. 56-57. The ALJ concluded that Plaintiff
was not disabled under the Social Security Act. R. 57.
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On July 22, 2016, Plaintiff timely requested review of the
ALJ’s decision by the Appeals Council. R. 198. The Appeals
Council denied Plaintiff’s request for review on September 14,
2017. R. 6. This appeal then followed.
LEGAL STANDARDS
I.

Statutory and Regulatory Framework
Under the Social Security Act, a claimant seeking benefits

must prove that he is unable “to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment . . . for a continuous period of
not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). To meet this definition, a person must have a
severe impairment that renders him unable to do his past
relevant work or any other substantial gainful work that exists
in the national economy. 20 C.F.R. § 416.905(a).
The ALJ employs a five-step sequential evaluation process
to assess a claim for disability benefits. See id. §§
404.1520(a)(4)(i)-(v), 404.1594. The evaluation may be concluded
at any step in the process if it is determined that the claimant
is or is not disabled. Id. § 404.1520(a)(4). The steps are: (1)
if the claimant is engaged in substantial gainful work activity,
the application is denied; (2) if the claimant does not have, or
has not had within the relevant time period, a severe impairment
or combination of impairments, the application is denied; (3) if
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the claimant’s impairment meets the conditions for one of the
“listed” impairments in the Social Security regulations, then
the application is granted; (4) if the claimant’s residual
functional capacity (“RFC”) is such that he or she can still
perform past relevant work, then the application is denied; (5)
if the claimant, given his or her RFC, education, work
experience, and age, is unable to do any other work, the
application is granted. Id.; Seavey v. Barnhart, 276 F.3d 1, 5
(1st Cir. 2001).
II.

Standard of Review
The Court may set aside the ALJ’s decision if it resulted

from legal error or if the factual findings were not supported
by substantial evidence. Nguyen v. Chater, 172 F.3d 31, 35 (1st
Cir. 1999). The Court reviews the ALJ’s conclusions of law de
novo. Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st Cir.
2000). “Failure of the [ALJ] to apply the correct legal
standards as promulgated by the regulations or failure to
provide the reviewing court with the sufficient basis to
determine that the [ALJ] applied the correct legal standards are
grounds for reversal.” Weiler v. Shalala, 922 F. Supp. 689, 694
(D. Mass. 1996) (citing Wiggins v. Schweiker, 679 F.2d 1387,
1389 (11th Cir. 1982)). Where application of the correct legal
standard could support a different conclusion, the agency’s
decision must be remanded. See Ward, 211 F.3d at 656; see also
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Dantran, Inc. v. U.S. Dep’t of Labor, 171 F.3d 58, 75 (1st Cir.
1999) (holding that, while the “customary rule” is to remand
once a court “sets aside an agency determination,” remand is
unnecessary despite legal error in the “rare case in which the
facts admit of only one plausible legal conclusion”).
For findings of fact, “even if the record arguably could
justify a different conclusion,” the Court must affirm the
decision “so long as it is supported by substantial evidence.”
Rodriguez Pagan v. Sec’y of Health & Human Servs., 819 F.2d 1, 3
(1st Cir. 1987). Substantial evidence exists “if a reasonable
mind, reviewing the evidence in the record as a whole, could
accept it as adequate to support [the ALJ’s] conclusion.”
Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222
(1st Cir. 1981). Substantial evidence does not exist when the
ALJ’s factual findings are “derived by ignoring evidence,
misapplying the law, or judging matters entrusted to experts.”
Nguyen, 172 F.3d at 35. The Court examines the record in its
entirety to determine the weight and “substantiality” of the
evidence. Rohrberg v. Apfel, 26 F. Supp. 2d 303, 306 (D. Mass.
1998).
DISCUSSION
Plaintiff challenges the ALJ’s decision on the bases that
(1) the ALJ misidentified Dr. Fitzgerald as a nurse practitioner
who was “not a medically acceptable treating source”, and
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(2) the ALJ did not properly evaluate Plaintiff’s subjective
statements from his hearing testimony regarding his functional
limitations. The Court concludes that the ALJ failed to properly
weigh the medical opinion of Dr. Fitzgerald which requires the
case be remanded for a new hearing and, therefore, the Court
does not address Plaintiff’s second argument.
Under the applicable regulations, a “medical source” is “an
individual who is licensed as a healthcare worker by a State and
working within the scope of practice permitted under State or
Federal law,” 20 C.F.R. § 404.1502(d), which includes both
licensed psychiatrists and licensed nurse practitioners. The
definition of an “acceptable medical source” includes licensed
psychiatrists and licensed psychologists, but it does not
include nurse practitioners.4 See id. § 404.1502(a). A “treating
source” is an “acceptable medical source who provides [the
claimant] with medical treatment or evaluation and who has, or
has had, an ongoing treatment relationship with [the claimant].”
Id. § 404.1527(a)(2), 416.927(a)(2). Dr. Fitzgerald is a licensed
psychiatrist who treated Plaintiff continuously from April 2014
through at least March 2016, which qualifies her as an

The applicable regulations have changed since Plaintiff filed his claim for
benefits. For claims filed on or after March 27, 2017 a nurse practitioner
is considered to be an “acceptable medical source.” Id. § 404.1502(a)(7).
4

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“acceptable medical source” and a “treating source.” Defendant
does not dispute this point.
Opinions from treating sources are given controlling weight
provided that they are “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and “not
inconsistent with other substantial evidence” in the record.
Id. §§ 404.1527(c)(2), 416.927(c)(2).

An opinion from a

treating source that does not get controlling weight is weighed
according to several factors, including: the length of the
treatment relationship and the frequency of examination; the
nature and extent of the treatment relationship; the evidence in
support of the medical opinion; the consistency of the medical
opinion with the record as a whole; the medical source’s
specialty; and other factors which tend to support or contradict
the opinion. Id. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6). An
ALJ need not expressly address each factor identified by the
regulations but must provide “good reasons” for the weight
assigned to the opinion of a treating source. Bourinot v.
Colvin, 95 F. Supp. 3d 161, 177 (D. Mass. 2015); see also 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
An opinion from a medical source that is not a medically
acceptable source is weighed using the same factors that apply
to treating sources. 20 C.F.R. §§ 404.1527(f), 416.927(f). In
contrast, an ALJ does not need to provide “good reasons” for the
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weight assigned to an opinion from a medical source that is not
an acceptable medical source. Armata v. Berryhill, No. 3:17-cv30054-KAR, 2018 WL 4829180, at *16 (D. Mass. Oct. 4, 2018); see
also 20 C.F.R. §§ 404.1527(f)(2), 416.927(f)(2). Yet the ALJ
must provide some explanation for the weight given to the
opinion. Armata, 2018 WL 4829180, at *16.
Here, the ALJ evidently followed the less demanding
framework for weighing non-acceptable medical sources in
considering Dr. Fitzgerald’s RFC assessment. The ALJ provided
just two bases for discounting Dr. Fitzgerald’s opinion: (1) she
was “not a medically acceptable treating source,” and (2) “her
moderate and marked mental functional assessments [were] not
supported by the objective record and, in fact, [were]
contradicted by treating physician and evaluating source notes
and observations.”5 R. 55. With respect to the second basis, the
ALJ noted that “the claimant’s mental status exams have all been
stable or unremarkable, with normal thought process and content,
average intelligence, intact memory and concentration, intact

Defendant characterizes the ALJ’s second basis for discounting Dr.
Fitzgerald’s opinion as two distinct bases, suggesting the ALJ concluded that
Dr. Fitzgerald’s opinion (1) lacked support, 20 C.F.R. §§ 404.1527(c)(3),
416.927(c)(3), and (2) was inconsistent with the record of as a whole, id. §§
404.1527(c)(4), 416.927(c)(4). Dkt. No. 16 at 13. The Court is not persuaded
by this reading of the ALJ’s decision. Section (c)(3) of the applicable
regulations specifically contemplates whether the medical opinion itself
contains evidentiary support for its conclusions. Nowhere in the decision did
the ALJ analyze the evidence Dr. Fitzgerald relied upon in support of her RFC
assessment. The two purported bases identified by Defendant are one and the
same: the ALJ discounted Dr. Fitzgerald’s opinion because it found the
opinion was inconsistent with the rest of the record. R. 55.
5

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insight and judgement, and no evidence of psychosis, suicidal or
homicidal ideation.” R. 55.
Defendant concedes that the ALJ erred in misidentifying Dr.
Fitzgerald as a nurse practitioner rather than a licensed
psychiatrist and, therefore, not a treating source as defined by
the applicable regulations. Nevertheless, Defendant contends
that this error was harmless because the ALJ’s other basis for
discounting the opinion of Dr. Fitzgerald satisfied the more
demanding “good reasons” standard for the weight assigned to a
treating source. The Court disagrees.
The ALJ’s decision ignores the crucial fact that there is
no evidence in the record of Plaintiff’s mental condition
between November 2014 and Dr. Fitzgerald’s RFC assessment from
March 2016. In Soto-Cedeño v. Astrue, the First Circuit held
that an RFC assessment performed by the claimant’s treating
psychiatrist could not be “reasonably characterized as
‘inconsistent’ with the other medical evidence in record” where
the RFC assessment and other medical evidence were from
“different time periods.” 380 Fed. Appx. 1, 2 (1st Cir. 2010)
(per curiam). Specifically, the First Circuit found that a
“current” RFC assessment was not contradicted by the evaluations
of consulting psychiatrists performed more than a year earlier.
Id. This case presents the same question. Dr. Fitzgerald
completed her RFC assessment of Plaintiff in March 2016. The
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state agency medical consultants, Dr. Bevis and Dr. Shestopol,
performed their evaluations of Plaintiff more than a year
earlier in November 2014. And, other than Dr. Fitzgerald’s RFC
assessment in March 2016, the most recent medical evidence in
the record from a treating source includes Dr. Fitzgerald’s
notes from April and May 2014. As in Soto-Cedeño, these older
records do not support the ALJ’s finding that Dr. Fitzgerald’s
opinion was inconsistent with the objective record.6 See id.
The record appears to be missing treatment notes from 2014,
2015, and 2016. Dr. Fitzgerald’s RFC assessment indicates that
she had been Plaintiff’s treating psychiatrist since 2014 and
that she saw Plaintiff every three months. Yet the record
includes only Dr. Fitzgerald’s treatment notes from an initial
appointment in April 2014 and a follow-up appointment in May
2014. In their briefs, the parties spar over whether the ALJ’s
failure to develop the record to include the missing notes forms
an independent basis for reversing the ALJ’s decision and
remanding for further proceedings. The Court, however, does not
need to reach that argument. The key point is that based on the

Indeed, while GAF scoring is no longer part of the DSM, the significant drop
in Plaintiff’s score between November 2014 and March 2016 is suggestive of
deterioration in his mental health status. See Bourinot, 95 F. Supp. 3d at
178 (“The GAF scale provides a rough estimate of an individual's
psychological, social, and occupational functioning.” (internal quotations
omitted)); see also Kelley v. Berryhill, No. CV 16-12083-DJC, 2018 WL
4323820, at *13 (D. Mass. Sept. 10, 2018) (considering GAF scores to
determine whether ALJ decision was supported by substantial evidence).
6

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record the ALJ did not know how Plaintiff presented in his
mental status exams during 2015 and 2016, which were the exams
most relevant to weighing Dr. Fitzgerald’s RFC assessment.
Accordingly, the ALJ did not have substantial evidence for
discounting Dr. Fitzgerald’s March 2016 opinion regarding
Plaintiff’s functional limitations.
Since the ALJ made a serious error in not identifying Dr.
Fitzgerald as a treating psychiatrist and provided no plausible
reason for its decision to give little weight to her opinion,
remand is required. Lemieux v. Berryhill, 323 F. Supp. 3d 224,
229 (D. Mass. 2018); see also Linehan v. Berryhill, 320 F. Supp.
3d 304, 306 (D. Mass. 2018) (“A goal of the treating source rule
is to function as a procedural safeguard. Where . . . the Court
cannot ascertain ‘a clear understanding of why the ALJ rejected
[the treating doctor's] opinion,’ the goal of the treating
source rule is not met.” (second alteration in original)
(citation omitted) (quoting Francis v. Comm'r Soc. Sec. Admin.,
414 F. App'x 802, 804 (6th Cir. 2011))). If the ALJ had
evaluated Dr. Fitzgerald’s opinion under the correct legal
standard, it could well have reached a different conclusion
regarding Plaintiff’s residual functional capacity. See Ward,
211 F.3d at 656.

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ORDER
The Court remands the case for further proceedings
consistent with this opinion.

The Court DENIES Defendant’s

motion to affirm the Commissioner’s decision (Dkt. No. 15).

/s/ PATTI B. SARIS
.
Patti B. Saris
Chief United States District Judge

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