Levesque v. US Social Security Administration, Acting Commissioner
Filing
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///ORDER granting 10 Motion to Reverse Decision of Commissioner; denying 11 Motion to Affirm Decision of Commissioner. Clerk shall enter judgment and close the case. So Ordered by Chief Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James Levesque
v.
Civil No. 18-cv-420-LM
Opinion No. 2019 DNH 080
U.S. Social Security Commission,
Acting Commissioner
O R D E R
James Levesque seeks judicial review of the decision of the
Acting Commissioner of the Social Security Administration,
denying in part his application for disability insurance
benefits and supplemental social security income.
Levesque
moves to reverse the Acting Commissioner’s decision, and the
Acting Commissioner moves to affirm.
For the reasons discussed
below, the court denies the Acting Commissioner’s motion to
affirm and grants Levesque’s motion to reverse.
STANDARD OF REVIEW
In reviewing the final decision of the Acting Commissioner
in a social security case, the court “is limited to determining
whether the [Administrative Law Judge] deployed the proper legal
standards and found facts upon the proper quantum of evidence.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord Seavey
v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001).
The court defers to
the ALJ’s factual findings as long as they are supported by
substantial evidence.
42 U.S.C. § 405(g); see also Fischer v.
Colvin, 831 F.3d 31, 34 (1st Cir. 2016).
“Substantial-evidence
review is more deferential than it might sound to the lay ear:
though certainly ‘more than a scintilla’ of evidence is required
to meet the benchmark, a preponderance of evidence is not.
Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018) (internal
citation omitted).
“Rather, the court must uphold the
Commissioner’s findings if a reasonable mind, reviewing the
evidence in the record as a whole, could accept it as adequate
to support her conclusion.”
Id.
In determining whether a claimant is disabled, the
Administrative Law Judge (“ALJ”) follows a five-step sequential
analysis.
20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4).1
The
claimant “has the burden of production and proof at the first
four steps of the process.”
608 (1st Cir. 2001).
Freeman v. Barnhart, 274 F.3d 606,
The first three steps are (1) determining
whether the claimant is engaged in substantial gainful activity;
(2) determining whether he has a severe impairment; and (3)
determining whether the impairment meets or equals a listed
impairment.
20 C.F.R. §§ 404.1520(a)(4)(i)-(iii).
Because the pertinent regulations governing disability
insurance benefits at 20 C.F.R. Part 404 are the same as the
pertinent regulations governing supplemental security income at
20 C.F.R. Part 416, the court will cite only Part 404
regulations. See Reagan v. Sec’y of Health & Human Servs., 877
F.2d 123, 124 (1st Cir. 1989).
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At the fourth step of the sequential analysis, the ALJ
assesses the claimant’s residual functional capacity (“RFC”),
which is a determination of the most a person can do in a work
setting despite his limitations caused by impairments, id.
§ 404.1545(a)(1), and his past relevant work, id.
§ 404.1520(a)(4)(iv).
If the claimant can perform his past
relevant work, the ALJ will find that the claimant is not
disabled.
See id. § 404.1520(a)(4)(iv).
If the claimant cannot
perform his past relevant work, the ALJ proceeds to Step Five,
where the ALJ has the burden of showing that jobs exist in the
economy which the claimant can do in light of the RFC
assessment.
See id. § 404.1520(a)(4)(v).
BACKGROUND
A detailed factual background can be found in Levesque’s
statement of facts (doc. no. 10-1) and the Acting Commissioner’s
statement of facts (doc. no. 12).
The court provides a brief
summary of the case here.
I.
Procedural Background
On November 29, 2010, Levesque filed an application for
disability insurance benefits and supplemental social security
income (“SSI”), alleging a disability onset date of November 15,
2010, when he was 47 years old.
After Levesque’s claims were
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denied at the initial level, he requested a hearing in front of
an ALJ.
On March 13, 2012, the ALJ held a video hearing, and he
denied Levesque’s claims for benefits in a written decision
dated April 11, 2012.
On May 24, 2013, the Appeals Council
denied Levesque’s request for review, making the ALJ’s decision
the Acting Commissioner’s final decision.
Levesque brought an
action in federal court challenging that decision (“federal
court action”).
See Levesque v. U.S. Soc. Sec. Admin., Acting
Comm’r, 13-cv-298-JL (D.N.H. June 28, 2013).
On March 19, 2014, while the federal court action was
pending, Levesque filed another claim for SSI benefits.
Levesque’s second claim was approved at the initial level and
affirmed by the Appeals Council.
Levesque was awarded SSI
benefits effective March 19, 2014, the date of his second
application.
On September 11, 2014, the district court remanded the
federal court action, which pertained to Levesque’s first claim
for benefits, to the Acting Commissioner for further
administrative proceedings.
See Levesque v. Colvin, No. 13-CV-
298-JL, 2014 WL 4531743 (D.N.H. Sept. 11, 2014).
The district
court held that the ALJ’s decision was not supported by
substantial evidence because there was no RFC assessment by a
medical expert in the record.
Id. at *1-2.
The court stated
that in light of those circumstances, “the ALJ should have
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either (1) recontacted Levesque’s treating sources for
additional information concerning the limitations imposed by his
impairments; or (2) ordered him to undergo a consultative
evaluation with a medical professional.”
Id. at *2.
On June 18, 2015, a different ALJ held a hearing on
Levesque’s first claim for benefits that had been remanded by
the district court.
Before the hearing, Levesque amended his
alleged disability onset date to December 31, 2010.
2015, the ALJ issued a partially favorable decision.
On July 10,
He found
that Levesque became disabled on May 14, 2013, the day after his
50th birthday, and was entitled to benefits as of that date.
The ALJ found that Levesque was not disabled prior to that date.
The Appeals Council remanded the portion of the July 10,
2015 decision that denied Levesque benefits prior to May 14,
2013.
The Appeals Council stated:
The hearing decision does not adequately evaluate the
treating source opinions of Joseph Lowne, M.D.,
Jeffrey Wiley, M.D., and John Grohman, M.D. Both
treating source opinions of Dr. Lowne and Dr. Wiley
(Exhibits 27F and 29F) are identified in the hearing
decision (Decision, pages 8-9), but are given only
some weight to the extent that they find the claimant
is limited in his ability to work following the
established onset date and that their opinions reflect
limitations after the established onset date.
However, this reasoning does not adequately explain
why Dr. Lowne's opinion that the claimant's
limitations have existed since November 15, 2010, was
not accepted (Exhibit 27F, page I). A March 7, 2011
opinion from Dr. Grohman (Exhibit I IF, page 4) that
the claimant was disabled from his knee and heart
impairments is neither cited nor addressed in the
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hearing decision. Further evaluation of the treating
source opinions in accordance with 20 CFR 404.1527,
416.927 and Social Security Rulings 96-2p, 96-5p and
06-3p is necessary.
Admin. Rec. at 700.
The Appeals Council directed the ALJ, upon
remand, to: (1) recontact Levesque’s treating sources and/or
obtain evidence from a medical expert to clarify the nature,
severity, and limiting effects of Levesque’s impairments; (2)
give further consideration to the opinions of Drs. Lowne, Wiley,
and Grobman and explain the reasons for the weight given to
their opinions; (3) give further consideration to Levesque’s
maximum RFC during the relevant period prior to March 14, 2013,
and provide appropriate rationale with specific references to
the evidence of record to support the assessed limitations; and
(4) obtain supplemental evidence from a vocational expert if
necessary.
On July 13, 2017, the ALJ held another hearing on
Levesque’s first claim for benefits.
Levesque, who was
represented by an attorney, appeared and testified.
A non-
examining impartial medical expert, Dr. John Kwock,2 and a
vocational expert, Elizabeth Laflamme, also appeared and
testified.
In the transcript of Dr. Kwock’s testimony, his name is
written as Dr. “Clough.” Admin. Rec. at 580. Because the ALJ’s
decision and the parties’ filings refer to the impartial medical
expert as Dr. Kwock, the court assumes that the use of Dr.
“Clough” in the transcript is a typographical error.
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II.
The ALJ’s Decision
On August 8, 2017, the ALJ issued an unfavorable decision.
He found that Levesque had the following severe impairments:
degenerative disc disease, osteoarthritis of the knees and hips,
obesity, and coronary artery disease.
The ALJ found that from
December 31, 2010 through May 13, 2013, Levesque had the
residual functional capacity to perform
sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except he could stand and walk for 2 hours
and sit for 8 hours. He should have been able to
extend his legs on a small footstool, should have
avoided all ladders, ropes and scaffolds and he could
occasionally climb stairs. He could frequently
balance, occasionally stoop and kneel, but should have
avoided all crouching and crawling.
Admin. Rec. at 546.
As directed by the Appeals Council, the ALJ obtained
medical opinion evidence regarding the nature, severity, and
limiting effects of Levesque’s impairments from a medical
expert, Dr. Kwock.
The ALJ also gave further consideration to
the opinions of Drs. Lowne, Wiley, and Grobman.
The ALJ gave the opinions of Drs. Lowne, Wiley, and Grobman
little weight.
He gave Dr. Kwock’s opinion the “most weight.”
Admin. Rec. at 550.
Relying on the vocational expert’s testimony, the ALJ found
at Step Five that, prior to May 14, 2013, Levesque was capable
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of performing jobs that exist in the national economy, including
telephone information clerk, credit card application clerk, and
callout operator.
The ALJ concluded that, therefore, Levesque
was not disabled from his alleged onset date through May 13,
2013.
The Appeals Council denied Levesque’s request for review,
making the ALJ’s decision the Acting Commissioner’s final
decision.
This action followed.
DISCUSSION
Levesque contends that the ALJ erred in his evaluation of
the medical opinion evidence.
He also argues that the ALJ
improperly discounted his subjective complaints.
As a result,
Levesque contends, the record lacks substantial evidence to
support the ALJ’s RFC assessment.
The Acting Commissioner
argues that the ALJ properly weighed and considered the opinion
evidence and Levesque’s complaints.
I.
Medical Opinion Evidence
Levesque contends that the ALJ erred in his evaluation of
the opinions of his treating physician, Dr. Lowne, and the
medical expert, Dr. Kwock.
Specifically, he argues that the ALJ
erroneously gave little weight to Dr. Lowne’s opinion and the
most weight to Dr. Kwock’s opinion.
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“An ALJ is required to consider opinions along with all
other relevant evidence in a claimant’s record.”
Ledoux v.
Acting Comm’r, Soc. Sec. Admin., No. 17-cv-707-JD, 2018 WL
2932732, at *4 (D.N.H. June 12, 2018).
The ALJ analyzes the
opinions of state agency consultants, treating sources, and
examining sources under the same rubric.
§ 404.1527(c).
See id.; 20 C.F.R.
The ALJ must consider “the examining
relationship, treatment relationship (including length of the
treatment relationship, frequency of examination, and nature and
extent of the treatment relationship), supportability of the
opinion by evidence in the record, consistency with the medical
opinions of other physicians,” along with the doctor’s expertise
in the area and any other relevant factors.
Johnson v.
Berryhill, No. 16-cv-375-PB, 2017 WL 4564727, at *5 (D.N.H. Oct.
12, 2017).
A treating medical source’s opinion about a claimant’s
impairment will be given controlling weight if it “is wellsupported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record.”
§ 404.1527(c)(2).
An ALJ must give “good reasons” for the weight given to a
treating source’s medical opinion.
Id.
“Those reasons must
offer a rationale that could be accepted by a reasonable mind.”
Dimambro v. US Soc. Sec. Admin., Acting Comm’r, No. 16-cv-4869
PB, 2018 WL 301090, at *10 (D.N.H. Jan. 5, 2018).
If the ALJ
satisfies that standard, the court will uphold the decision to
discount a treating source’s opinion.
Id.
On June 8, 2015, Dr. Lowne completed a Medical Source
Statement.
In his statement, Dr. Lowne noted that Levesque had
pain in his lower back, hips, and knees, and opined that the
pain would interfere with Levesque’s ability to perform even
simple tasks up to 66% of the workday.
22.
See Admin. Rec. at 1320-
He also opined that Levesque would be limited to standing
or sitting for just two hours in an eight-hour workday and that
his legs would need to be elevated above his hips whenever he is
sitting.
Id. at 1321-22.
In response to the direction to
“Identify the clinical findings and objective signs,” Dr. Lowne
wrote “Advanced degenerative changes on X-rays.”
Id. at 1320.
Question 8a of the statement asked: “Have the impairments
you assessed in this questionnaire existed since the claimant’s
alleged onset date of 11/15/2010?”3
Id.
Dr. Lowne checked off “yes.”
Question 8b asked: “If you do not feel the claimant’s
limitations you have assessed have existence since 11/15/2010,
As mentioned above, shortly before the June 18, 2015
hearing, Levesque amended his original disability onset date of
November 15, 2010 to December 31, 2010. The fact that Dr.
Lowne’s opinion relates back to November 15, 2010 has no bearing
on the court’s analysis, but the court notes it for the sake of
clarity.
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on what date do you feel these limitations you have assessed
began?”
Id. at 1321.
Dr. Lowne left the answer blank.
The ALJ addressed Dr. Lowne’s opinion in his decision and
gave it little weight for several reasons.
First, the ALJ noted
that Dr. Lowne did not start treating Levesque until January
2014, several months after the period under consideration for
purposes of the decision (December 31, 2010 through May 13,
2013).
Second, the ALJ found it significant that Dr. Lowne
provided no response to the question of when Levesque’s
limitations began.
Finally, the ALJ found that Dr. Lowne’s
opinion was not fully supported by objective clinical findings.
Specifically, the ALJ noted that Dr. Lowne cited advanced
degenerative changes on Levesque’s X-rays to support his opinion
that Levesque was limited by hip and knee pain.
The ALJ further
noted that Dr. Kwock testified that the record did not include
sufficient X-ray evidence during the relevant period to show the
changes Dr. Lowne cited.
Levesque challenges the ALJ’s evaluation of Dr. Lowne’s
opinion on two grounds.
First, Levesque argues that the ALJ
erroneously interpreted Dr. Lowne’s opinion as to when
Levesque’s assessed limitations began.
Second, Levesque
contends that the ALJ incorrectly determined that Dr. Lowne’s
opinion was not fully supported by objective clinical findings.
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A.
Beginning of Levesque’s Assessed Limitations
Questions 8a and 8b of Dr. Lowne’s medical source statement
provide:
Admin. Rec. at 1320-21.
In addressing this portion of Dr.
Lowne’s opinion, the ALJ stated:
In addition, when specifically asked if the assessed
limitations began on the originally alleged onset of
disability of November 15, 2010, Dr. Lowne provided no
response. Given the claimant’s amendment of the
alleged onset of disability to December 31, 2010,
noted at the beginning of this decision, the question
itself was inaccurate. Further, the question is a
[sic] poorly worded; it supposes that Dr. Lowne agreed
with the November 15, 2010 alleged onset of
disability. Note however that he still left it blank.
Id. at 549.
Levesque argues that the ALJ mischaracterized Dr. Lowne’s
opinion.
He contends that a fair reading of the response to
Question 8 as a whole is that Dr. Lowne opined that Levesque’s
impairments and limitations had existed since November 15, 2010.
The Acting Commissioner disagrees.
She argues that
Levesque’s interpretation of Dr. Lowne’s opinion conflates the
terms “impairments” and “limitations,” which denote different
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connotations.4
She contends that the only reasonable
interpretation of Dr. Lowne’s responses to Questions 8a and 8b
is that he opined that Levesque’s impairments had existed since
November 2010, but that Dr. Lowne did not offer an opinion as to
how long Levesque’s limitations had existed.
The court finds the Acting Commissioner’s arguments
unpersuasive.
Questions 8a and 8b in the medical source
statement are not artfully drafted.
When read together,
however, the questions appear to ask whether Levesque’s
diagnoses and symptoms have existed since November 15, 2010
(Question 8a) and, if not, when did they begin (Question 8b).
A
reasonable interpretation favors Levesque’s explanation.
Even when Question 8b is read in isolation as the Acting
Commissioner urges, however, the Acting Commissioner’s and the
ALJ’s reasoning regarding that question and Dr. Lowne’s response
thereto is unpersuasive.
Question 8b asks for a response only
if Dr. Lowne does not believe that Levesque’s limitations
existed since November 15, 2010.
In other words, the only fair
interpretation of Dr. Lowne’s lack of a response to Question 8b
is that he does believe that Levesque’s limitations existed
since November 15, 2010.
It is true, as the Acting Commissioner notes, that
impairments and limitations are not synonymous under Social
Security regulations. See, e.g., 20 C.F.R. § 404.1521.
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The ALJ’s reasoning is particularly problematic because the
Appeals Council specifically stated in its remand order that the
ALJ’s prior decision “does not adequately explain why Dr.
Lowne’s opinion that the claimant’s limitations have existed
since November 15, 2010, was not accepted.”
Admin. Rec. at 700.
Considering the Appeals Council’s directive, the ALJ’s rationale
for discounting Dr. Lowne’s opinion as to when Levesque’s
assessed limitations began is inadequate.
B.
Objective Clinical Findings
The Acting Commissioner argues that even if the ALJ erred
in interpreting Dr. Lowne’s response to Question 8, any error is
harmless because the ALJ found that Dr. Lowne’s opinion was not
supported by objective clinical findings.
Levesque contends
that Dr. Lowne properly supported his opinion.
Dr. Lowne identified “Advanced degenerative changes on Xrays” as clinical findings and objective signs of Levesque’s
impairments and limitations.
The ALJ addressed that portion of
the opinion in his decision:
Further, the opinion articulated by Dr. Lowne is not
fully supported by objective clinical findings. Dr.
Lowne cited advanced generative change on x-ray to
support his opinion that the claimant was limited by
hip and knee pain. However, the medical expert Dr.
Kwock testified that the record did not include
sufficient x-ray evidence during the period under
review that would explain the claimant’s subjective
complaints. Although the claimant representative
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pointed to narrative evidence of hip and knee x-rays,5
the medical expert discounted the narrative as a
paraphrase of x-ray evidence made after the period of
time in question (Exhibit 19F, pp. 2-3). As such, the
narrative as it was worded, was unclear [if] it was
discussing objective findings predating the date last
insured and therefore was not as reliable as the x-ray
itself in manifesting objective laboratory findings
that would explain the claimant’s symptoms of severe
hip and knee pain.
Admin. Rec. at 549.
During his examination of Dr. Kwock, Levesque’s attorney
pointed to a March 3, 2014 treatment note by Dr. Derek Jenkins,
which discussed an undated X-ray that showed “advanced severe
degenerative arthrosis of the bilateral hips.”
1037.
Admin. Rec. at
Dr. Kwock responded as follow:
Yes, I see that. Says X-rays available for
(inaudible) pelvis, cross table laterals of
(inaudible) which do show advanced, severe
degenerative (inaudible) actually of bilateral hips.
I have issues with that type of X-ray reports
though. It is a so-called report within the body of a
progress note and when you do it that way it's either
a paraphrase of what was said on the Radiology report,
you know, and/or and nowadays it could be a cut and
paste, you know, kind of thing.
But then again, you can also cut and paste the
parts you like and leave out the parts you don't. And
so I am (inaudible) this X-ray mentioned does not have
a date. We don't know when this X-ray was taken.
And, so I have trouble depending -- using
information such as this. I much would prefer to see
that X-ray report that way I know what the radiologist
As explained further below, the ALJ is referring here to
Levesque’s attorney’s examination of Dr. Kwock during the
hearing.
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has said and I know when it was taken. But I can't
heavily depend on information such as this one here.
Admin. Rec. at 587-88.
Dr. Kwock later testified:
Yeah, okay, yeah, I'm pretty sure [Levesque] probably
had arthritis of the hips. But for the purpose of me
stating that I have evidence in this record that will
substantiate severe arthritis of either hip during the
period of time that we are speaking, this sentence in
this progress note will not do that for me.
Id. at 589.
Levesque’s attorney then asked if Dr. Kwock agreed
that severe arthritis of the hips, as purportedly showed by the
x-rays, is the type of ailment that would not develop quickly
but would instead develop over a period longer than “a couple of
months.”
Id.
Dr. Kwock replied that he agreed “that it doesn’t
just occur in a couple of weeks, that sort of thing.”
Id.
“Because Social Security proceedings are not adversarial in
nature, the Secretary had a duty to develop an adequate record
from which a reasonable conclusion can be drawn.”
Sullivan, 947 F.2d 990, 997 (1st Cir. 1991).
Heggarty v.
If the ALJ fails
to fill certain “evidentiary gaps, and if they prejudice
plaintiff’s claim, remand is appropriate.”
F. Supp. 3d 421, 437 (D. Mass. 2015).
King v. Colvin, 128
“One can demonstrate such
prejudice by ‘showing that additional evidence would have been
produced if the ALJ had fully developed the record, and that the
additional evidence might have led to a different decision.’”
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Id. at 437-38 (quoting Gaeta v. Barnhart, No. CIV.A. 06–10500–
DPW, 2009 WL 2487862, at *5 (D. Mass. Aug. 13, 2009)).
Here, the ALJ relied on Dr. Kwock’s testimony regarding the
X-rays to discount Dr. Lowne’s opinion.
But Dr. Kwock: (1) did
not have access to the X-rays, (2) testified that he felt sure
that Levesque had arthritis of the hips, and (3) agreed that if
the X-rays, which were taken prior to March 3, 2014, showed
advanced degenerative arthritis of the hips, then the condition
had likely existed for a substantial period of time.
The X-rays were not in the record evidence.
In light of
Dr. Lowne’s reliance on the results of the X-rays to support his
opinion and Dr. Kwock’s testimony, the ALJ should have sought a
copy of the X-rays in order to develop an adequate record.
It
does not appear that he did so.
The failure to pursue this evidence was prejudicial to
Levesque’s case.
Dr. Lowne relied on the X-rays and the absence
of the X-rays was part of the reason the ALJ rejected Dr.
Lowne’s opinion.
Therefore, “the inclusion of such records may
have led to a different decision.”
King, 128 F. Supp. 3d at
438.
The ALJ’s failure to develop an adequate record is grounds
for reversing the Acting Commissioner’s decision pursuant to
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sentence four of Section 205(g).6
The case will be remanded for
further proceedings.
II.
Remaining Issues
In light of the foregoing, the court need not address
Levesque’s remaining claims of error. The ALJ may address those
issues, if necessary, upon remand.
CONCLUSION
For the foregoing reasons, the plaintiff’s motion to
reverse (doc. no. 10) is granted, and the Acting Commissioner’s
motion to affirm (doc. no. 11) is denied.
The clerk of court
shall enter judgment in accordance with this order and close the
case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
May 7, 2019
cc:
Counsel of Record
Because the court finds that remand is appropriate, the
court need not address Levesque’s challenge to the weight the
ALJ afforded to Dr. Kwock’s opinion.
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