Lewis v. Astrue
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and this cause is REMANDED to the Commissioner for further proceedings. Signed by Magistrate Judge Frederick R. Buckles on 3/27/2013. (KSM)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
Case No. 4:12CV323 FRB
MEMORANDUM AND ORDER
This cause is before the Court on plaintiff’s appeal of
an adverse determination by the Social Security Administration.
matters are pending before the undersigned United States
Magistrate Judge, with consent of the parties, pursuant to 28
U.S.C. § 636(c).
On November 29, 2010, the Social Security Administration
Insurance Benefits (DIB) filed August 26, 2010, pursuant to Title
II of the Social Security Act, 42 U.S.C. §§ 401, et seq., and for
Supplemental Security Income (SSI) filed pursuant to Title XVI of
On February 14, 2013, Carolyn W. Colvin became the Acting
Commissioner of Social Security. Pursuant to Fed. R. Civ. P.
25(d), Carolyn W. Colvin is therefore automatically substituted
for former Commissioner Michael J. Astrue as defendant in this
cause of action.
the Act, 42 U.S.C. §§ 1381, et seq.,2 in which she claimed she
became disabled on January 1, 2008.
(Tr. 132, 133, 134-40, 192-
Plaintiff subsequently amended her alleged onset date to
August 17, 2010.
At plaintiff’s request, a hearing
was held before an Administrative Law Judge (ALJ) on September 15,
2011, at which plaintiff and a vocational expert testified.
On November 25, 2011, the ALJ denied plaintiff’s claims
Plaintiff timely requested Appeals
Council review of the ALJ’s decision.
On January 17, 2012, the
Appeals Council denied plaintiff’s request to review the ALJ’s
The ALJ’s decision is thus the final
decision of the Commissioner.
42 U.S.C. § 405(g).
Upon review of the record and the claims raised by
plaintiff on this appeal for judicial review, the undersigned finds
that substantial evidence does not support the ALJ’s decision to
classify plaintiff as a “younger individual” at the time of her
Because classification to a higher age category would
result in a finding of “disabled,” the matter should be remanded to
Although the administrative transcript contains copies of
the Social Security Administration’s rulings on plaintiff’s
application for SSI benefits, the transcript does not contain a
copy of the application for SSI benefits itself.
Plaintiff previously filed applications for benefits which
were denied by an Administrative Law Judge on August 10, 2010
(Tr. 112-31), for which the Appeals Council denied plaintiff’s
request for review (Tr. 142-45). In the instant cause of action,
plaintiff does not seek judicial review of the Commissioner’s
adverse decision regarding these applications.
the Commissioner for further proceedings.
Plaintiff was born on January 10, 1962.
plaintiff was forty-eight years of age.
At the time of
At the time of the ALJ’s
decision in this cause, that is, November 25, 2011, plaintiff was
forty-nine years of age and less than two months from attaining age
Plaintiff’s Job History Report shows plaintiff to have
worked as a dietary assistant in a nursing home from 1999 to 2001,
as a school crossing guard from August 2001 to July 2002, and
preparing meals in a nursing home from July 2002 to January 2008.
At the administrative hearing held before the ALJ on
September 15, 2011, vocational expert Barbara Meyers testified that
such work was classified as unskilled.
Plaintiff completed the tenth grade in high school and
has had no further education or vocational training.
The ALJ’s Decision
In her written decision dated November 25, 2011, the ALJ
found that plaintiff met the insured status requirements of the
Social Security Act on August 17, 2010, and continued to meet them
through December 31, 2012.
The ALJ found that plaintiff had not
engaged in substantial gainful activity since the alleged onset of
plaintiff to have a severe combination of impairments consisting of
major depressive disorder, obsessive compulsive disorder, diabetes
mellitus, hypertension, obesity, mild scoliosis, fibroids, early
degenerative disc disease, anemia, headaches, and poly-arthralgia,
but that plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listed impairment in 20
C.F.R. Part 404, Subpt. P, App. 1.
functional capacity (RFC) to perform sedentary work in that she was
“able to lift and carry up to 10 pounds occasionally; stand and
walk 2 hours in an eight hour workday; sit 6 hours in an eight hour
workday[.]” (Tr. 14.) The ALJ determined, however, that plaintiff
could not perform the full range of sedentary work inasmuch as her
ability to perform the requirements of such work “has been impeded
occasionally stoop, crouch, crawl, and kneel, she must avoid
concentrated exposure to noise, vibration, moving and hazardous
Further, that she can perform simple routine tasks.”
The ALJ determined plaintiff unable to perform her past
specifically, that plaintiff was a “younger individual” given her
age of forty-eight years on the alleged onset date of disability,
transferability of job skills was immaterial, the ALJ determined
plaintiff was not disabled.
Upon consideration of
plaintiff’s additional non-exertional limitations as set out in the
testimony supported a finding that plaintiff could perform other
work as it existed in the national economy, and specifically, work
as a document preparer, circuit assembler, and table worker.
ALJ thus found plaintiff not to be under a disability from August
17, 2010, through the date of the decision.
To be eligible for Social Security Disability Insurance
Benefits and Supplemental Security Income under the Social Security
Act, plaintiff must prove that she is disabled.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary
of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).
Social Security Act defines disability as 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. §§
An individual will be declared
impairments are of such severity that [she] is not only unable to
substantial gainful work which exists in the national economy." 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Commissioner engages in a five-step evaluation process.
C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
The Commissioner begins by deciding whether the claimant
is engaged in substantial gainful activity.
working, disability benefits are denied.
If the claimant is
Next, the Commissioner
combination of impairments, meaning that which significantly limits
her ability to do basic work activities.
If the claimant's
impairment(s) is not severe, then she is not disabled.
Commissioner then determines whether claimant's impairment(s) meets
or equals one of the impairments listed in 20 C.F.R., Subpart P,
If claimant's impairment(s) is equivalent to one of
the listed impairments, she is conclusively disabled.
fourth step, the Commissioner determines the claimant’s RFC and
determines whether the claimant can perform her past relevant work.
If so, the claimant is not disabled.
If the Commissioner finds
Commissioner then proceeds to the fifth step of the evaluation
process whereby she considers the claimant’s RFC, together with the
claimant’s vocational factors (age, education and work experience),
and determines if the claimant can make an adjustment to other
If the claimant can make such an adjustment, the claimant is
found not to be disabled.
If the Commissioner finds the claimant
unable to perform such other work, the claimant is determined to be
disabled and becomes entitled to disability benefits.
determined that plaintiff was not disabled inasmuch as application
of the required vocational factors, when coupled with plaintiff’s
RFC and vocational expert testimony, demonstrated that plaintiff
was able to perform work as it exists in significant numbers in the
With respect to the vocational factor of age,
the ALJ classified plaintiff as a “younger individual” inasmuch as
plaintiff “was 48 years old . . . on the alleged disability onset
For the following reasons, the ALJ erred in
her consideration of plaintiff’s age as a vocational factor and the
matter must be remanded for proper consideration.
At Step 5 of the sequential analysis, the burden shifts
to the Commissioner to show that the claimant has the physical RFC
to perform a significant number of other jobs in the national
economy that are consistent with the claimant’s impairments and
vocational factors such as age, education and work experience.
Phillips v. Astrue, 671 F.3d 699, 702 (8th Cir. 2012).
(“Guidelines”) to meet this burden.
See Pearsall, 274 F.3d at
a set of charts listing certain
vocational profiles that warrant a finding of disability or nondisability.
20 C.F.R. Pt. 404, Subpt. P, App. 2; McCoy v. Astrue,
648 F.3d 605, 613 (8th Cir. 2011).
The Guidelines take into
features; they do not account for non-exertional limitations.
McCoy, 648 F.3d at 613.
“Where the findings of fact made with
residual functional capacity coincide with all of the criteria of
a particular rule, the rule directs a conclusion as to whether the
individual is or is not disabled.”
App. 2, § 200.00(a).
20 C.F.R. Pt. 404, Subpt. P,
In other words, if the ALJ’s findings as to
combinations of those criteria contained in the Guidelines, then
Guideline, either “disabled” or “not disabled.” Phillips, 671 F.3d
In this cause, the ALJ found plaintiff able to perform
sedentary work, to be a younger individual, and to have a limited
education. Under Rule 201.18 of the Guidelines, such an individual
with unskilled work experience is determined not to be disabled.4
approaching advanced age,” Rule 201.09 of the Guidelines would
direct a finding of “disabled.”
Because plaintiff’s age at the
time of the ALJ’s decision placed her “in a borderline situation”
with respect to application of the Guidelines, see 20 C.F.R. §§
404.1563(b), 416.923(b), the ALJ was required to consider whether
plaintiff met the requirements of being classified as “closely
approaching advanced age.”
The ALJ failed to do so, however, and
such failure was error.
Under the Guidelines, three age categories are specified:
a younger person (under age 50), a person closely approaching
advanced age (age 50-54), and a person of advanced age (age 55 or
20 C.F.R. §§ 404.1563(c)-(e), 416.963(c)-(e).
borderline situation, however, the age categories are not to be
Phillips, 671 F.3d at 702.
Instead, if a claimant is
within a few days to a few months of reaching
an older age category, and using the older age
category would result in a determination or
decision that [the claimant is] disabled, [the
Commissioner] will consider whether to use the
older age category after evaluating the
overall impact of all the factors of [the
Although not relevant to the instant discussion, the ALJ
properly elicited testimony from a vocational expert in order to
meet the Commissioner’s burden at Step 5 inasmuch as plaintiff
was found to have significant non-exertional impairments.
Pearsall, 274 F.3d at 1219-20.
20 C.F.R. §§ 404.1563(b), 416.963(b).
The Commissioner is directed to “use each of the age categories
that applies to [a claimant] during the period for which [the
Commissioner] must determine if [the claimant is] disabled.”
C.F.R. §§ 404.1563(b), 416.963(b).
Plaintiff’s birth date is January 10, 1962.
At the time
of the ALJ’s decision, that is, November 25, 2011, plaintiff was
less than two months from attaining age fifty and, as such, was
less than two months from being a person “closely approaching
advanced age” under the Regulations. Cf. Phillips, 671 F.3d at 703
(court of appeals looked to plaintiff’s age at the time of the
ALJ’s decision); Application of the Medical–Vocational Guidelines
in Borderline Age Situations, Soc. Sec. Admin., Office of Hearings
and Appeals, Hearings, Appeals, and Litigation Law Manual (HALLEX)
II-5-3-2.html (hereinafter “HALLEX II-5-3-2") (apply whenever age
category changes within a few months after the date of the ALJ’s
As noted above, application of Rule 201.09 of the
Guidelines would dictate that plaintiff be determined disabled if
to be considered a person closely approaching
In circumstances where, as here, the claimant’s age
is within a few months of a higher age category and using the
higher age category would result in a decision of “disabled,” “a
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borderline age situation exists and the adjudicator must decide
whether it is more appropriate to use the higher age or the
claimant’s chronological age.”
To decide which age category to use, the Commissioner is
instructed to take a “sliding scale” approach whereby “the claimant
must show progressively more additional vocational adversity(ies)
—— to support use of the higher age —— as the time period between
the claimant's actual age and his or her attainment of the next
Phillips, 671 F.3d at 702.)
Examples of “additional vocational
adversities” include “the presence of an additional impairment(s)
which infringes upon . . . a claimant’s remaining occupational
Where a claimant establishes at least one additional
vocational adversity, the Commissioner must consider applying the
next age category, and the ALJ’s written decision must demonstrate
that such consideration was made.
Phillips, 671 F.3d at 704, 707.
Substantial evidence must support the ALJ’s age-category decision.
Id. at 707.
Here, there is no question that plaintiff was within a
few months of the higher age category at the time of the ALJ’s
decision and that using the higher age category would result in a
decision of “disabled” under the Guidelines.
vocational adversities are present in this cause, namely, the
presence of additional and significant non-exertional impairments
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which infringe upon plaintiff’s occupational base, as determined by
the plaintiff’s RFC and as testified to by the vocational expert,
the ALJ was required to consider whether plaintiff should be
classified as a person “closely approaching advanced age.”
consideration was made.
Indeed, the face of the decision itself
reveals the ALJ’s error inasmuch as she applied the age category
only for the date of the alleged onset of disability and did not
consider plaintiff’s age on the date of the decision.
20 C.F.R. §§
404.1563(b), 416.923(b); HALLEX II-5-3-2. The ALJ’s silence leaves
this Court unable to determine if the Commissioner considered
whether plaintiff should be moved to the higher age category.
such, substantial evidence does not support the Commissioner’s
Phillips, 671 F.3d at 707 (and cases cited therein).
Weight Accorded to Opinion of Single Decision-Maker
Plaintiff claims the ALJ erred by improperly according
decision-maker with disability determinations.
A review of the
ALJ’s decision shows plaintiff’s claim to be without merit.
In her decision, the ALJ cited to Exhibit 10F of the
administrative record and stated that she generally accepted the
supported and consistent with objective medical evidence of record.
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The only evidence contained within Exhibit 10F is a
Mental RFC Assessment completed by Dr. Kyle DeVore, Ph.D.
Indeed, the ALJ specifically discussed Dr. DeVore’s
opinion in her decision.
Nowhere in the ALJ’s
decision does the ALJ refer to Ms. Young, any of Ms. Young’s
findings, or cite to Ms. Young’s assessment.
cannot find, therefore, that the ALJ improperly considered Ms.
Young’s non-medical opinion in determining plaintiff’s RFC.
Evaluation of Opinion Evidence
Plaintiff claims that the ALJ erred by discounting the
August 2011 opinion of James Owens, MSW, ICCDP (Tr. 482-87) and the
July 2011 opinion of Dr. Gina Smith (Tr. 481).
A review of the
record as a whole shows the ALJ to have properly considered such
opinions and to have accorded them appropriate weight in accordance
with the Regulations.
20 C.F.R. §§ 404.1527(d), 416.927(d).5
With respect to Mr. Owens, the record shows plaintiff to
have visited him on one occasion, August 1, 2011, and that he
completed a checklist Mental RFC Questionnaire that same date in
significant limitations which would preclude unskilled work.
asked to provide explanations for such limitations, Mr. Owens
Citations to 20 C.F.R. §§ 404.1527 and 416.927 are to the
2011 version of the Regulations which were in effect at the time
the ALJ rendered the final decision in this cause. This
Regulation’s most recent amendment, effective March 26, 2012,
reorganizes the subparagraphs relevant to this discussion but
does not otherwise change the substance therein.
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repeatedly wrote “unknown.”
The ALJ considered Mr.
Owens’ opinion but determined to accord it minimal weight “since he
is not an acceptable medical source and he has had little contact
with the claimant.”
Substantial evidence supports the
See Social Security Ruling 06-3p, 2006 WL 2263437
(Soc. Sec. Admin. Aug. 9, 2006) (factors for considering opinion
evidence from “other medical sources” include how frequently source
has seen the individual, the degree to which the source presents
relevant evidence to support the opinion, and how well the source
explains the opinion) (quoted in Sloan v. Astrue, 499 F.3d 883, 889
(8th Cir. 2007)); Wildman v. Astrue, 596 F.3d 959, 965 (8th Cir.
2010) (vague and conclusory checklist assessments have limited
To the extent plaintiff relies on Shontos v. Barnhart,
328 F.3d 418 (8th Cir. 2003), and argues that the ALJ should have
accepted Mr. Owens’ opinion as a treating source’s opinion inasmuch
argument is misplaced.
Unlike the circumstances in Shontos, the
evidence here does not show that plaintiff was provided a “team
approach” with respect to her mental health treatment or that Mr.
Owens, as a part of this purported “team,” saw plaintiff on more
than just the one occasion.
Contra Shontos, 328 F.3d at 426
(multiple providers each saw plaintiff on multiple occasions as
part of a treatment team and could provide longitudinal perspective
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of claimant’s impairment).
With respect to the July 2011 opinion of Dr. Smith, the
undersigned notes that such opinion consisted of a one-page Medical
Certificate to Return to Work in which she wrote:
“Ms. Lewis is
disabled in my opinion due to Depression/Anxiety/Chronic Knee/Foot
and Back Pain/ Type II [Diabetes Mellitus]—uncontrolled with some
evidence of neuropathy.” (Tr. 481.)
The ALJ accorded this opinion
minimal weight inasmuch as statements that a claimant is disabled
“are not medical opinions, but administrative findings dispositive
of a case[.] . . . Such issues are reserved to the Commissioner to
determine the ultimate issue of disability.”
404.1527(e)(1), 416.927(e)(1) (opinions that a claimant is disabled
is not a medical opinion but instead is an issue reserved to the
Commissioner); Ellis v. Barnhart, 392 F.3d 988, 994-95 (8th Cir.
2005) (medical source’s opinion that claimant is unable to work
involves an issue reserved for the Commissioner and is not the type
of opinion which the Commissioner must credit).
Plaintiff also claims that the ALJ erred by failing to
acknowledge and thus accord any weight to the March 2010 opinion of
plaintiff’s argument is well taken.
On March 8, 2010, Dr. Curtis conducted a consultative
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impairments in the domain of Activities of Daily Living and in the
domain of Appearance and Ability to Care for Personal Needs; and
moderate to severe impairments in the domain of Social Functioning
and in the domain of Concentration, Persistence or Pace.
Curtis diagnosed plaintiff with Major Depressive Disorder, Panic
Disorder without Agoraphobia, and Post Traumatic Stress Disorder
and assigned plaintiff a Global Assessment of Functioning (GAF)
score of 56.6
In her written decision, the ALJ did not acknowledge
or address Dr. Curtis’s March 2010 evaluation or the opinions
In evaluating opinion evidence, the Regulations require
the ALJ to explain in the decision the weight given to any opinions
20 C.F.R. §§ 404.1527(f)(2)(ii), 416.927(f)(2)(ii).
ALJ here wholly failed to comply with the Regulations with respect
to Dr. Curtis’s opinions.
Although an ALJ is not required to
explain all the evidence of record, Craig v. Apfel, 212 F.3d 433,
436 (8th Cir. 2000), she nevertheless cannot merely “pick and
A GAF score considers “psychological, social, and
occupational functioning on a hypothetical continuum of mental
health/illness.” Diagnostic and Statistical Manual of Mental
Disorders, Text Revision 34 (4th ed. 2000). A GAF score of 51 to
60 indicates moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers).
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[choose] only evidence in the record buttressing [her] conclusion.”
Taylor o/b/o McKinnies v. Barnhart, 333 F. Supp. 2d 846, 856 (E.D.
Mo. 2004), and cases cited therein.
The ALJ may have considered and for valid
reasons rejected the . . . evidence proffered
. . . ; but as [she] did not address these
matters, we are unable to determine whether
any such rejection is based on substantial
evidence. Initial determinations of fact and
credibility are for the ALJ, and must be set
out in the decision; we cannot speculate
whether or why an ALJ rejected certain
evidence. Accordingly, remand is necessary to
fill this void in the record.
Jones v. Chater, 65 F.3d 102, 104 (8th Cir. 1995) (citation
The Commissioner argues that the ALJ was not required to
consider the opinions of Dr. Curtis inasmuch as such opinions were
disability onset date of August 17, 2010, and were obtained in
(Deft.’s Brief, Doc. #20 at p. 10.)
The Commissioner’s argument is
Medical records which pre-date the relevant period
of disability and relate to conditions existing during the relevant
be considered by the Commissioner in determining
Cunningham v. Apfel, 222 F.3d 496, 501-02 (8th Cir.
“The timing of an examination is not dispositive of whether
evidence is material[.]”
Id. at 502.
Plaintiff’s history of
mental impairments before her alleged disability onset date may
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support her claim that such impairments were disabling during the
Upon remand, the Commissioner shall consider all the
relevant evidence of record relating to plaintiff’s impairments,
including opinion evidence obtained from Dr. Curtis which pre-dated
plaintiff’s alleged onset date of disability by five months.
Plaintiff claims that the ALJ failed to properly consider
plaintiff’s impairment of obesity.
Plaintiff’s claim is without
“Obesity is a complex, chronic disease characterized by
excessive accumulation of body fat.” Social Security Ruling 02-1p,
Guidelines published by the National Institutes of Health (NIH)
establish medical criteria for the diagnosis of obesity, including
a classification that a BMI of 30.0 or above constitutes “obesity.”
“‘[E]xtreme’ obesity and representing the greatest risk for
developing obesity-related impairments, includes BMIs greater than
or equal to 40.”
The record establishes, and the defendant Commissioner
does not dispute, that plaintiff suffers from obesity.
obesity is no longer, in itself, a listed impairment, see SSR
02-1p, 2000 WL 628049, at *1, the Social Security Regulations
specifically instruct that the cumulative effects of obesity must
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be considered with a claimant’s other impairments. As specifically
applicable in this case, § 1.00(Q) of the Listings requires that
Obesity is a medically determinable impairment
that is often associated with disturbance of
the musculoskeletal system, and disturbance of
this system can be major cause of disability
in individuals with obesity.
impairments can be greater than the effects of
each of the impairments considered separately.
individual with obesity has a listing-level
impairment or combination of impairments, and
when assessing a claim at other steps of the
sequential evaluation process, including when
assessing an individual's residual functional
capacity, adjudicators must consider any
additional and cumulative effects of obesity.
20 C.F.R. 404, Subpt. P, App. 1, § 1.00(Q).
As such, an ALJ errs when she fails to consider the impact of a
claimant’s obesity on her ability to perform work.
constitute a severe impairment and thoroughly discussed the impact
such impairment, in combination with plaintiff’s musculoskeletal
and other impairments, had on plaintiff’s ability to perform workrelated
specifically took plaintiff’s obesity into account when evaluating
plaintiff’s impairments and their effect on plaintiff’s ability to
perform work-related functions, plaintiff’s claim that the ALJ
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failed to consider her obesity must fail.
Heino v. Astrue, 578
F.3d 873, 881-82 (8th Cir. 2009).
Symptoms of Anemia
Finally, plaintiff claims that the ALJ failed to properly
consider plaintiff’s symptoms of anemia, and specifically, symptoms
of headaches, fatigue, irritability, low hematocrit levels, and
poor concentration. As noted above, the ALJ determined plaintiff’s
considered the effect such impairments had on her ability to
perform work-related functions. Although plaintiff claims that she
endorsed each of these symptoms (Pltf.’s Brief, Doc. #15 at p. 17),
objective medical evidence of record shows only that plaintiff’s
headaches and low hematocrit levels were associated with
diagnosed condition of anemia.
(Tr. 431-35, 440.)
The ALJ did not
For all of the foregoing reasons, substantial evidence
does not support the Commissioner’s classification of plaintiff as
a “younger individual” in her consideration of whether plaintiff
meets the disability criteria of the Medical-Vocational Guidelines.
Nor is the Commissioner’s mental RFC determination supported by
substantial evidence inasmuch as the ALJ failed to consider all the
relevant evidence of record relating to plaintiff’s severe mental
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Accordingly, the Commissioner’s decision should be
reversed and remanded for further consideration.
Commissioner for further proceedings.
Judgment shall be entered accordingly.
UNITED STATES MAGISTRATE JUDGE
day of March, 2013.
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