LEONARD v. COLVIN

Filing 14

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 03/01/2017. After a careful consideration of the evidence of record, the Court finds that the decision of the ALJ is not susceptible to ju dicial review. Accordingly, this Court RECOMMENDS that the Commissioner's decision finding no disability be REVERSED, and the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be dire cted to remand the matter to the ALJ for further administrative action as set out above. To this extent, Plaintiff's motion for judgment (Docket Entry 8 ) should be GRANTED and Defendant's motion for judgment on the pleadings (Docket Entry 10 ) be DENIED.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JONATHAN L. LEONARD,

)
)
)

Plaintiff,

)

v

)
)
)
)
)
)
)

NANCY BERRYHILL,
Acting Commissioner of the Social
Security Administration,
Defendant.

l:líCY7l7

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE IUDGE
Plaintiff, Jonathan L. Leonard, brought this action pursuant to Section 205(9) of the
Social Security Act (the "Âct"), as amended (42 U.S.C. $ 405(9), to obtain review of a ftnal
decision of the Commissioner of Social Securityl denying his claims for a Period of Disability

("POD") and Disability Insurance Beneûts ("DIB") under Title II of the -A.ct. The Court

has

before it the certified administrative record and cross-motions for judgment.

I. PROCEDURAL HISTORY
Plaintiff filed an application for
onset date of Jauary 22, 2010.

(It.

1

a

POD and DIB inJanuary of 2012 alleging

1,

1,7

a

disability

5-78, 19t.¡z The application was denied initially

I Nancy Berryhill recently became the Acting Commissioner of Social Security. Pursuant to
Rule 25(d) of the Federal Rules of Civil Ptocedute, Nancy Berryhill should be substituted for Carolyn
W. Colvin as Defendant in this suit. No further action need be taken to continue this suit by reason
of the last sentence of Section 205(g) of the A.ct,42 U.S.C. S 405(g).
2

Transcdpt citations refer to the Administrative Transcript of Record filed manually with the
Answer. (Docket Entry 5.)

Commissioner's

and again upon reconsideration. Qd. at 115-1,18,120-23.) Plaintiff then requested a hearing
before an Administrative LawJudge ('ÂLJ") (id. at1,24-25) and at the March 20,2014 hearing

wete Plaintiff, his attorney, znd a vocational expert
determined that Plaintiff was not disabled under the

("VE").

r{ct.

Qd.

at25-67.) The ALJ

(Id. at 11-20.) On July 26, 201,5,

the Appeals Council denied Plainuffs request fot review, making the ALJ's decision the
Commissionet's fìnal decision for purposes of review. Qd. at L-5.)

II. FACTUAL BACKGROUND
Plaintiff was 44 years old on the alleged disability onset date. (Id. at 18.) He had at
least a high school education and was able to communicate in

English.

(Id.)

III. STANDARD FOR REVIEW
The Commissioner held that Plaintiff was not under a disability within the meaning

of

the -A.ct. Under 42 U.S.C. $ a05(g), the scope of judicial review of the Commissioner's final
decision is specifìc and

nartow.

Smith u. Schweiker,795tr.2d343,345 (4th Cir. 1986). This

Coutt's teview of that decision is limited to determining whether there is substantial evidence

in the record to support the Commissioner's decision. 42U.5.C.

$ a05(g); Hanter u, Sulliuan,

993 F.2d 31, 34 (4th Cir. 1,992); Hø1t u. Salliuan, 907 F.2d 1453, 1,456 (4th Cir. 1990).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate

to support a conclusio n." Huftter, 993 F .2d at 34 (cittng Nchardnn

(1971)).

It

"consists

u. Perales, 402

U.S. 389 , 401

of more than a mete scintilla" "but may be somewhat less than

preponderatrce." Id. (qtottng l-øws u, CelebreTge, 368 F.2d 640, 642 (4th Cir.

2

1,966)).

a

The Commissioner must make findings of fact and tesolve conflicts in the evidence.

Hryt,907 tr.2d

^t

1456 (citing Kingu. Califano,599 F.2d 597,599 (4th Cir. 1,979)). The Court

does not conduct a de novo review
Schweiker,795 F.2d

of the evidence nor of the Commissioner's

fìndings.

at 345. In reviewing for substantial evidence, the Coutt does not

undertake to re-weigh conflicting evidence, to make credibility determinations, or to substitute

its judgment for that of the Commissioner. Craigu. Chater,76tr.3d 585,589 (4th Cir. 1,996)

(citing Ha1¡ 907 tr.2d at 1456). "'V7here conflicting evidence allows reasonable minds to

differ as to whether a claimant is disabled, the responsibility for that decision falls on the
[Commissioner] (or the [Commissioner's] designate, the ALJ)." Cmig76tr.3d at 589 (quoting
Ihalker a. Bowen,834 F.2d 635, 640 (7th Cir.
only
See

1987). The denial of benefits will be reversed

if no reasonable mind could accept the record as adequate to support the determination.

Nchard¡0n,402 U.S. at

401. The issue before the Court, thetefore, is not whether Plaintiff

is disabled, but whether the Commissioner's fìndin g that Plaintiff is not disabled is supported

by substantial evidence and was teached based upon a correct application of the televant law.
See

id.; Cofnan u. Bowen,829 tr.2d 514, 51,7 (4th Cit. 1,987).

IV. THE ALJ'S DISCUSSION
The Social Security Regulations defìne "disability" for the purpose of obtaining
disability benefits as the "inability

to do any substantial gainful activity by reason of

any

medically determinable physical or mental impairment3 which can be expected to result in

3

A "physical or mental impairment" is an impairment resulting from "anatomical,
physiological, ot psychological abnormalities which are demonstrable by medically acceptable clinical
and laboratory diagnostic techniques." 42 U.S.C. S 423 (d)Q).
J

death or which has lasted or can be expected to last for a continuous pedod of not less than

12 months." 20 C.F.R. S 404.1505(a);

rce al¡o

42 U.S.C. g a%(d)(t)(a). To meet this

definition, a claimantmust have a severe impairment which makes it impossible to do previous

wotk ot any other substantial gainful acivitya that exists in the national economy. 20 C.F.R.
S

404.1505(a);

see

al¡o 42 U.S.C. S

423(dX2XÐ.

A. The Five-Step Sequential

Analysis

The Commissioner follows a fìve-step sequential analysis to ascertain whether the
claimant is disabled, which is set
Sec.

foth in 20 C.F.R. S 404.1520.

See

Albright a. Comm'r

of Soe

Admin.,174tr.3d 473,475 n.2 (4th Cir. 1.999). The .{LJ must determine:

(1)

Whethet the claimant is engaged in substanttal gainful activity
claimant is

working). If

so, the claimant is

whether the

not disabled and the inquiry ends.

tX/hether the claimant has a severe impaitment.

Ø

(2.e.,

If not, then the claimant is not

disabled and the inquiry ends.

(3)

Whether the impairment meets or equals to medical criteria of 20 C.F.R., Part
404, Subpart P, Appendix 1, which sets forth a list of impairments thatwarrant

a

fìndingof disabilitywithoutconsideringvocationalctitena. If so, the claimanti¡
disabled and the inquiry is halted.

(4)

Whether the impairment prevents the claimant ftom performing past relevant

work. If not, the claimant

a

is not disabled and the inquiry is halted.

"substantial gainful activity" is work that (1) involves performing significant or productive
profit. 20 C.F.R. S 404.1510.

physical or mental duties, and Q) is done (or intended) for pay or
4

(5)

\X/hether the claimant is able to perform any other work considering both his

residual functional capacitys ("RFC") and his vocational abilities.

If

so, the

claimant is not disabled.
20 c.F.R.

S

404.1520.

Hete, the ,A,LJ first determined that Plaintiff had not engaged in substantial gainful
activity since his alleged onset date of January 22, 201,0. (Tr. 13.) The ALJ next found in
step two that Plaintiff had the following severe impairments: degenerative disc disease,
hand injury, hypertension, carpel tunnel syndrome, DPN, and obesity. Qd.)

a

At step three,

the,\LJ found that Plaintiff did not have an impairment or combination of impairments listed

in, or medically equal to, one listed in Appendix

1.

Qd. at 1,4.)

determined that Plaintiff could not return to his past relevant

work.

At

step four, the ALJ

Qd. at

1,8.) At step five,

the ALJ determined that considering Plaintiffs age, education, work experience, and RFC,
there were jobs in the national economy that he could

B.

perform. (d. at 1,9.)

Residual Functional Capacity Determination

Pdor to step four, the ,{LJ determined Plaintiffs RFC based on his evaluation of the
evidence.

Qd. at

14-1,8.) Based on the evidence as a whole, the ALJ detetmined that:

[t]he claimant has the residual functional capacity to perform light
work as defìned in 20 CFR 404.1576(b) except he requires the
option to sit and stand at will, and he cannot twist or turn about

5

"Residual functional capaciq" is the most â claimant can do in a work setting despite the
physical and mental limitations of his impairment and any related symptom (e.g., pain). See 20 C.F'.R.
$ 40a.15a5(a) (1); see ako Hines u Barnhart,453 F.3d 559,562 (4th Cir. 2006). The RFC includes both
a "physical exertional or strength limitation" that assesses the claimant's "ability to do sedentary, light,
medium, hearJ, or vely hear,ry work," as well as "nonexertional limitations (mental, sensory or skin
impairments)." Hølla. Harris,658 F.2d 260,265 (4th Cit. 1981).
5

the back continuously. The claimant can ftequently, not
constantly, fìnger and handle. He should never climb ladders,
ropes or scaffolds, but he can occasionally climb ramps and stairs.
(Id. at 1,4.)

C.

Past Relevant Work

The ALJ found at step four that Plaintiff could not perform his past relevant work
a police

officer and state trooper. Qd. at

D.

as

1,5.)

Adiustment to Other Work

The claimant bears the initial burden of proving the existence of a disability. 42 U.S.C.
S

423(dX5); 20 C.F.R. S 404.1512; Snith u. Califano,592F.2d 1,235,1,236 (4th Cir. 1,979).

If

the claimant has established at step four that he cannot do any work he has done in the past
because of his severe impairments, the burden shifts to the Commissio ner at step five to show

that jobs exist

in

signifìcant numbets

in the national economy which the claimant

petform consistent with his RF'C, age, education, and past work experience

.

could

Hønter,993 F.2d

at,35; Wil¡on u. Calfano,617 tr.2d 1050, 1053 (4th Cir. 1980). The,\LJ found here that given

PlaintifÎs

age, education,

work experience, and RFC, there were jobs in the national economy

that he could perform, such as clerk, ticket taker, and toll bridge attendant. (Tr. 19.)

V.
In pertinent part, Plaintiff

ANALYSIS

contends that the ALJ materially erred

in assessing his

credibility. (Docket Entries 9 at 1,3-1,2 and 12 at 5-10.) The Court agrees for the following
reasons. More specifìcally, Craigu. Chaterprovides a two-part test for evaluating a claimant's
statements about symptoms. "First, there must be objective medical evidence showing 'the

existence

of a medical impaiment(s) which results from anatomical, physiological,
6

or

psychological abnotmalities and which could teasonably be expected to produce the pain or

other symptoms alleged."' Craigu. Chater,76F.3d 585, 589 (4th Cir. 1,996) (citing 20 C.F.R.

S

404.1s2eþ)).6

If

the -{LJ determines that such an impairment exists, the second part of the test then

requires him to considet all available evidence, including the claimant's statements about pain,

in order to determine whether the claimant is disabled. Id, at 595-96. \X/hile the ALJ must
consider aclaimant's statements and othet subjective evidence at step two, he need.notctedit
them insofar as they conflict with the objective medical evidence or to the extent that the
undetlying impairment could not reasonably be expected to cause the symptoms alleged. 1/.
Where the ÂLJ has considered the relevant factorsT and heard the claimant's testimony and
observed his demeanor, the ALJ's credibility determination is entitled to deference. Shiueþ

u.

Heckler,739 F.2d987,989 (4th Cir. 1,984)

n

Subsequent to Plaintiff filing his complaint and his motion for judgment, the Social Secudty
Administration superseded SSR 96-7p with SSR 16-3p, 2016 WL 11,1,9029 (À4ar. 16, 201,6). Social
Security Ruling 16-3p eliminates the use of the term " 'credibility' from . . . sub-regulatory policy" and
"clarify[ies] that subjective symptom evaluation is not an examination of an individual's characte{' Id.
at *1. Because SSR 96-7p was in effect at the time of the ALJ's decision, this Court will review the
decision under SSR 96-7p, See Keefer u. Coluin,2016WL 553951,6, at*1.1. n.5 (D.S.C. Sept. 30, 201,6).

i

The relevant regulatory factors are: (i) the claimant's daily activities; (ü) the location, duration,
frequency, and intensity of the claimant's pain or other symptoms; (üi) precipitating and aggravattng
factots; (tv) the type, dosage, effectiveness, and side effects of any medication the claimant takes or
has taken to alleviate his pain or other symptoms; (v) treatment, other than medication, the claimant
teceives or has received for relief of his pain ot other symptoms; (vi) âny measures the claimant uses
or has used to relieve his pain ot other symptoms; and (vü) other factors concerning the claimant's
functional limitations and testrictions due to pain or other symptoms. 20 C.F.R. $ a0a.1529(c)(3).
The regulations do not mandate that the ALJ discuss all these factots in a decision. See, e.g., Bageft u.
Astrae,No. 5:08-CV-165-D, 2009 WL 1438209, at *9 (E.D.N.C. May 20,2009) (unpublished) (noting
that the law requires "that the ALJ consider these factors, not that [s]he discuss each of them").
7

Here, the,\LJ stated that he had"carefulfly] consider[ed]" the evidence and found that

Plaintiffs "medically detetminable impairments could reasonably be expected to cause the
alleged symptoms[.]" (Tr. at

15.)

The,A.LJ thetefote discharged his duty under the

frst

step

of the Craiganalysis. Second, at step-two of the Craiganalysis, the ,\LJ decided that Plaintiff

s

"statements concerning the intensity, persistence and limiting effects of these symptoms are

not entirely ctedible for the reasorìs explained in this decision."

Qd.)

It is at this point that the .A.LJ erred. Specifìcally, Plaintiff ço¡¡s¡cls-and the Court
agtees-that the ALJ's decision to partially discount his credibility tegarding the purported
side-effects of his medication is unsupported by substantial evidence. (Docket E.ttty 9 at 14-

16.) In support, Plaintiff points to his hearing testimony, which, reads as follows

Q: Ând what medication do you take for pain?
A:

Hydrocodone 10 - I had him cut
milligram, 325 I think is what it said.

it

back

-

10

Q: And do you have any side effects from the
medication?

-4.: Well, it makes you dtowsy and sleepy. And like any
narcotic drug or alcohol or anything, it affects judgment and
reasoning.

Q:

How does it affect yout judgment and reasoning?

Â:

'S7ell,

if the pain's too bad, and I

can take up to six a

day,rf I take about four, you can feel it.

Q:

How do you feel it?

A: I(nd of woozy. I

mean,

before. I know what alcohol do to you.
8

to be honest, I

drank

-A.LJ: So what are you saying, in comparison to drinking?

I think that's what you were trying to tell me.
Yes, it'll make you - Basically, it's like this. I've
sent people to jail and prison for taking that stuff and driving. I
wouldn't get out and drive and take it. There's iust no way.

CLMT:

Examination of Claimant by Claimant's Attorney

And how often do you have that expetience in an
week? How many times would you have to take

Q:
avera;ge

medication?

A: It depends on if I have the shatp pain. That's when
I just absolutely have to take the medicine. And I've uied to take
one or two. And then I may have to take another one. But I will
not - It's like I told Dr. Took, I believe I'd just scream before I
take eight a day. They really should have me eight a day. -dnd
it just tears up my stomach and all that.

,\LJ:

So how may do you take? Four, would you say?

CLMT:

Sir,

I can take six a day.

ALJ: How many do you take?
CLMT: Usually between four and six. It just depends
on that sharp pain.

Examination of Claimant by Claimant's Attorney

Q: And so are you - How often, in an average week, how

many days a week would you be woozy like you just described
where you lose your-

A:

I'm going to say probably four times. It's just, it

really just depends.

ALJ:

Depends on the pain?

CLMT: What I've done, yes, sit, the pain.
9

Examination of Claimant by Claimant's Attorney
what do you do? Are you
still able to be up and about, or do you lay down, or what?

Q: And when you take medication,
A:

I try to lay down.

Because that helps between taking

the medication and laying down.

Q: And how long do you lay down when you take
medication?

A:

It just depends on if it knocks me out or not.

Q: Okay. So let's -

How often does it knock you out,

when you take medication?

Â:

I might

sleep

two hours.

Q:

But in a week, how many times
knocked out by medication?

a

week would you be

,{.: It varies, it may be three. It depends

on the pain, and

when it happens.

Q:

But three days a week?

,{,:

,{,t least.

Q: Okay. Â,nd, that time, you lay down?
A:

I maybe put my legs over the end of things, try to ease
it off fìrst, and if that don't, then I have to take the medication.

Q:

And lay down?

Â:

Yes, sir

Q: And how long do you lay down.

A: It depends. It may be an hout. If it knocks me out,
I may be there an hout Ot two hours. It just depends.
10

Q: Okay. So ,{.:

I don't know if it - I don't know about - I don't know
if its because if I hadn't eaten nothing, or I've eat something, or
what. Medication just affects me differently different times,
diffetent ways.

Q:

And does this happen the same time every

day?

Â:

Most of the time, stiffness is after I get back from the
Y. It may last, it may start about lunchtime or just before lunch,
but by afternoon, I just, I'm just tight as a tick.

Q: All okay. And then when you take this medicarion,
you said three ot four days a week, it knocks you out. And then
you have to lay down in the afternoon?
'\:

Yes,

I'll

lay

down. It makes me drowsy.

Q: Right. And then how long to you lay down?
A: ltmay be an hour, two hours. It may be 45 minutes,
just depends. I think a lot of it depends on whether I've gor
it
anything on my stomach of not.
Q: Okay. Now, you're

taking medication as your

doctor prescribed?

A:

Yes, sir.

Q: nØithin the range that he's prescribed?
A,:

Yes, where he's set up to six a day.

Q: Okay. How many times do you take up to six a day,

in an avetage week?

A:

I'm going to say at least three days. At least. Like I
said, I may do better some days than I do others.

,{TTY:

Right.

ll

ALJ: I

appreciate you all helping to try to be ptecise in
yout testimony, and I appreciate what you're trying to do, and I
thank you for that. And maybe, ptobably what you did for a
living.

(Tr. 38-40, 54-57.)
The,{,LJ addressed this testimony as follows
Eady in the heating, the claimant stated that his medication made
him, dtowsy/sleepy and "kinda woozy". He also suggested that
his medication could affect this judgment and reasoning, but he
was verT vague in this regard, in that he did not provide
^ny
examples of instances when he experienced this allegation. The
claimant initially stated that he has not had a full night's sleep (he
clarifìed a full night's sleep as six hours) since his fall in January
201,0, which he atributed to his medication. He then clarified
that the medication that kept him awake was change[d] to the
medication he currently takes that makes him sleepy. The
claimant finally tepotted that he does, in fact, gets [sic] up to
seven hours of sleep, at times, but no more than seven.

(It. 15.) Consequently, the ALJ detetmined

that Plaintiffs testimony regarding the

effects of his medications was not entirely credible because it was

'îery vague."

side

Id.

This finding is not supported by substantial evidence. Plaintiffs testimony that his
pain medication required him to lay down/sleep between fotty-five minutes to two hours,

thfee to four times per week, because

it "knocked" him "out"

was not "vague."

In

fact,

dudng the hearing, the ,\LJ indicated the opposite, complimenting Plaintiff and counsel for
the detail of the testimony. (Id. at 56-57.) Ând, futhermore, while the ALJ correctly noted

that Plaintiff failed to provide specifìc example of limitations to judgment and reasoning due

to side effects from medication,

he

failed to acknowledge or address

12

the

fact that Plaintffi teúfied in

con¡iderable detail that

hi¡ nedication "/<nocked" him "0/,/t" repeatedþ daring lhe wee,þ,.8 The ability to

exetcise judgment and reasoning is contingent upon being awake and the .{LJ glossed ovet

this panicular and specific testimony without comment.

Moreover, that Plaintiffs medication might impact his ability to work is supported
elsewhere
e

in the record. Plaintiffs treating physician, for example, reported that the side-

ffects of Plaintiffls hydrocodone "may impair mentation."e (Id, at

437

.)

The Court is also

reluctant to deem any ettot here as being merely harmless. The fact that the ALJ may have
failed to meaningfully consider testimony on the side effects of Plaintiffs medication here is

potentially m^teÅa.|. The VE testified, for example, that if Plaintiff missed two days of work
a

month, or was off task 20o/, of the day, he would be unable to

All this leaves the Coutt to speculate

as

work.

(Id. at 66-67 .)

to whethet the -dLJ simply failed to consider

PlaintifFs testimony on this issue or, altetnatively, decided to discount this testimony without

8

Apfe[152F.3d 1056, 1060 (Bth Cir. 1998) (remanding where "[t]he ALJ
also failed to consider the dosage, effectiveness, and side effects of Beckley's medications, in spite of
her testimony that the medications made her'woozy'and'silly.'"); þbakowski u. Colain, No. 13 C
6775,201,5WL5920743,at+11 (lJ.D. Ill. Oct.8,2015) (unpublished) (remandingwhere.A,LJ failed
See, e.g., Beckleyt u.

to consider as part of his decision testimony from the claimant that use of hydrocodone necessitated
1,-2 hour naps daily because "[a]n A,LJ may not ignore evidence that is contrary to his ultimate
conclusion)"); Brown u. Barnhart, 298 F. Srpp. 2d 773,795 (E,.D. !7is. 2004) (temanding for failure to
discuss the side effects of plaintiffs medication, which she stated created "a 'drugged' stâte" causing
her to "function in slow motion" and made het "drowsy"").
e

A.lthough the ÂLJ parttally discounted Dr. Tooke's medical opinion, he did so only to the
extent it was "inconsistent with the evidence of record and the adjudged assessment" in his decision.
(Tt. 18.) However, as explained, the ALJ apparcntly did not consider all the evidence of tecord
because he never (or may have never) consideted Plaintiffs testimony that his medication repeatedly
"knocked" him "out" during the week or forced him to lie down. Consequently, if the AU did intend
to discount Dr. Tooke's opinion on mentation, that implicit finding is not presently susceptible to
judicial review in light of the aforementioned omission.

l3

a

meaningful explanation. Consequently, the Court concludes that remand is ptoper so that

the ALJ may build a logical bridge between the evidence of recotd and his conclusions.
e.g.,

Mowoe u. Coluin, 826

See,

F3d 176, 189 (4th Cir. 201,6) ("The ,\LJ cited evidence that he

appeared to believe tended to discredit Monroe's testimony regarding his claimed episodes

of

loss of consciousness and fatigue. However, he failed to build an a.ccrfia:te and logical bridge

from the evidence to his conclusion that Monroe's testimony was not credible. . .
remand,

if the ALJ decides to discredit Monroe's

.

On

testimony tegarding his episodes of loss

of

consciousness and fatigue, it will be incumbent on him to provide a clearer explanation of his
reasorls for doing so, such that it will allow meaningful review of his decision").

None of this necessarily means that Plaintiff is disabled under the Act and the
undersigned expresses no opinion on that matter. Nevettheless, the undersigned concludes

that the proper course here is to remand this matter for further administtative ptoceedings.

The Court declines consideration of the additional issues raised by Plaintiff at this
Hancock u. Barnhart,206 F.Supp.2d757,763-764 CX/.D.

time.lO

Ya.2002) (on remand, the prior

decision of no preclusive effect, as it is vacated and the new hearing is conducted).

tt' The ALJ may have
also ctossed the line and made medical judgments beyond his area of
expertise. This is because the ,{LJ asserted, without pointing to medical evidence in support, that
Plaintiffs "limitations and pain complaints are not t1þimlfor the impairments that are documented by
medical findings in this case." (Tr. 15 (emphasis added).) See, e.!.,\f,/illcoc,kson u. Astrue,540 F.3d 878,
881 (8th Cir. 2008) ("\ü/e are unsure what particular symptoms are "usuâl" ot "typical" for Ms.
\ùØillcockson's impairments, and what evidence the ALJ relied on to make these statements. These
matters, of course, can be clarified by the ÂLJ on remand."). The Court notes further that nowhere
in the ALJ's decision does he mention the medical opinions of the non-examining state âgency
physicians. While ,{LJs are not bound by their findings, they may not ignore these opinions and,
unless a treating source's opinion is given conttolling weight, must explain the weight given to these
opinions. 20 C.F.R. $ 40a.1527(e). These issue may be considered and, if proper, addressed further
on remand.
14

VI. CONCLUSION
,\fter

a careful consideration of the evidence of recotd, the Court finds that the decision

of the ALJ is not susceptible to judicial review. ,{.ccordingly, this Court RECOMMENDS
that the Commissioner's decision finding no disability be REVERSED, and the matter be

REMANDED to the Commissioner undet

sentence

four of 42 U.S.C. S 405(9). The

Commissioner should be directed to remand the matter to the ALJ for futher administtative

action as set out above. To this extent, Plaintiffs motjon for judgment pocket Entry 8)
should be GRANTED and Defendant's motion fot judgment on the pleadings (Docket E.rtty
10) be

DENIED.

stef
United States Magistrate Judge

J

March

\,

201,7

l5