MARTIN v. BERRYHILL
Filing
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MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 7/26/2018; that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the ALJ for proceedings consistent with this Recommendation. To this extent, Defendant's Motion for Judgment on the Pleadings [Doc. # 11 ] should be DENIED, and Plaintiff's Motion for Judgment on the Pleadings [Doc. # 8 ] should be GRANTED. However, to the extent that Plaintiff's motion seeks an immediate award of benefits, it should be DENIED. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DONALD MERRITT MARTIN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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1:17CV835
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Donald Merritt Martin (“Plaintiff”) brought this action pursuant to Section
205(g) of the Social Security Act (the “Act”), as amended (42 U.S.C. § 405(g)), to obtain judicial
review of a final decision of the Commissioner of Social Security denying his claim for
Disability Insurance Benefits (“DIB”) under Title II of the Act. The parties have filed crossmotions for judgment, and the administrative record has been certified to the Court for review.
I.
PROCEDURAL HISTORY
Plaintiff protectively filed his application for DIB on April 8, 2014, alleging a disability
onset date of May 22, 2013. (Tr. at 32, 179-85.)1 His claim was denied initially (Tr. at 85-98,
113-16), and that determination was upheld on reconsideration (Tr. at 99-112, 118-21).
Thereafter, Plaintiff requested an administrative hearing de novo before an Administrative
Law Judge (“ALJ”). (Tr. at 126.) Plaintiff, along with his attorney, his wife, and an impartial
1
Transcript citations refer to the Administrative Record [Doc. #6].
vocational expert, attended the subsequent hearing on August 3, 2016. (Tr. at 32.) The ALJ
ultimately concluded that Plaintiff was not disabled within the meaning of the Act (Tr. at 45),
and, on July 24, 2017, the Appeals Council denied Plaintiff’s request for review of that
decision, thereby making the ALJ’s conclusion the Commissioner’s final decision for purposes
of judicial review (Tr. at 1-6).
II.
LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissioner’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the
scope of [the] review of [such an administrative] decision . . . is extremely limited.” Frady v.
Harris, 646 F.2d 143, 144 (4th Cir. 1981). “The courts are not to try the case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a reviewing court must
uphold the factual findings of the ALJ [underlying the denial of benefits] if they are supported
by substantial evidence and were reached through application of the correct legal standard.”
Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal brackets omitted).
“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is
evidence to justify a refusal to direct a verdict were the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).
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“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[ALJ].” Mastro, 270 F.3d at 176 (internal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the
ALJ’s finding that [the claimant] is not disabled is supported by substantial evidence and was
reached based upon a correct application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that in administrative proceedings,
“[a] claimant for disability benefits bears the burden of proving a disability.” Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981). In this context, “disability” means 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.’” Id. (quoting 42 U.S.C.
§ 423(d)(1)(A)).2
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
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“The Social Security Act comprises two disability benefits programs. The Social Security Disability Insurance
Program . . . provides benefits to disabled persons who have contributed to the program while employed. The
Supplemental Security Income Program . . . provides benefits to indigent disabled persons. The statutory
definitions and the regulations . . . for determining disability governing these two programs are, in all aspects
relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal citations omitted).
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Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period
of disability; (2) had a severe impairment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
forecloses a disability designation and ends the inquiry. For example, “[t]he first step
determines whether the claimant is engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.
If not, benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at each of the first two steps,
and establishes at step three that the impairment “equals or exceeds in severity one or more
of the impairments listed in Appendix I of the regulations,” then “the claimant is disabled.”
Mastro, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two, but falters at
step three, i.e., “[i]f a claimant’s impairment is not sufficiently severe to equal or exceed a listed
impairment, the ALJ must assess the claimant’s residual function[al] capacity (‘RFC’).” Id. at
179.3 Step four then requires the ALJ to assess whether, based on that RFC, the claimant can
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“RFC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that pursuant to the administrative regulations, the “RFC is an assessment of an individual’s
ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing
basis . . . [which] means 8 hours a day, for 5 days a week, or an equivalent work schedule” (internal emphasis
and quotation marks omitted)). The RFC includes both a “physical exertional or strength limitation” that
assesses the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy work,” as well as
“nonexertional limitations (mental, sensory, or skin impairments).” Hall, 658 F.2d at 265. “RFC is to be
determined by the ALJ only after [the ALJ] considers all relevant evidence of a claimant’s impairments and any
related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
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“perform past relevant work”; if so, the claimant does not qualify as disabled. Id. at 179-80.
However, if the claimant establishes an inability to return to prior work, the analysis proceeds
to the fifth step, which “requires the Commissioner to prove that a significant number of jobs
exist which the claimant could perform, despite [the claimant’s] impairments.” Hines, 453
F.3d at 563. In making this determination, the ALJ must decide “whether the claimant is able
to perform other work considering both [the claimant’s RFC] and [the claimant’s] vocational
capabilities (age, education, and past work experience) to adjust to a new job.” Hall, 658 F.2d
at 264-65. If, at this step, the Government cannot carry its “evidentiary burden of proving
that [the claimant] remains able to work other jobs available in the community,” the claimant
qualifies as disabled. Hines, 453 F.3d at 567.
III.
DISCUSSION
In the present case, the ALJ found that Plaintiff had not engaged in “substantial gainful
activity” since May 22, 2013, his alleged onset date. Plaintiff therefore met his burden at step
one of the sequential evaluation process. At step two, the ALJ further determined that Plaintiff
had the following severe impairments:
residual effects of electrocution (cerebral trauma, burns, hearing loss, and
cognitive impairment); osteoarthritis in the right foot; a major depressive
disorder; and post-traumatic stress disorder.
(Tr. at 34.) As noted by the ALJ, Plaintiff suffered a work-related electrocution injury in which
“[t]he electricity entered his back and exited his left chest and neck area” and “[h]e sustained
second and third degree burns to his chest wall, neck and ear.” (Tr. at 39). He was hospitalized
for several weeks and underwent multiple surgeries through 2015. The ALJ found at step
three that none of these impairments, individually or in combination, met or equaled a
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disability listing. (Tr. at 35-36.) Therefore, the ALJ assessed Plaintiff’s RFC and determined
that he could perform light work with the following additional limitations:
[Plaintiff] can sit for six hours in an eight-hour workday and he can stand/walk
for a total of six hours in an eight-hour workday. He can lift/carry and
push/pull 20 pounds occasionally and 10 pounds frequently. He cannot have
any exposure to very loud noise. He can have occasional exposure to loud
noise. He cannot have any exposure to unprotected heights, hazardous
machinery, or hazardous moving mechanical parts. [Plaintiff’s] work is limited
to simple, routine and repetitive tasks but not at a production rate pace. He can
have occasional interaction with the public. He can have frequent interaction
with co-workers and supervisors. [Plaintiff] would be off task no more than
10% of the time in an eight-hour workday, in addition to normal breaks (with
normal breaks defined as a 10-15 minute morning and afternoon break and a
30-minute lunch break).
(Tr. at 37.) At step four of the analysis, the ALJ found that the demands of Plaintiff’s past
relevant work exceeded his RFC. (Tr. at 43.) However, the ALJ further determined at step
five that, given Plaintiff’s age, education, work experience, RFC, and the testimony of the
vocational expert as to these factors, he could perform other jobs available in the national
economy. (Tr. at 44-45.) Therefore, the ALJ concluded that Plaintiff was not disabled under
the Act. (Tr. at 45.)
Plaintiff now raises four challenges to the ALJ’s decision. First, he claims that “[t]he
ALJ erred by failing to consider adequately the opinion of Dr. Hampton, a treating physician,
and by failing altogether to consider Dr. Hampton’s opinion that [Plaintiff] was experiencing
‘significant subjective distress and disruption of function.’” (Pl.’s Br. [Doc. #9] at 7.) Second,
Plaintiff challenges the ALJ’s reasons for rejecting the third party testimony of Plaintiff’s wife.
Third, Plaintiff raises another challenge to the ALJ’s handling of the opinion evidence, this
time with respect to the opinion of Plaintiff’s neuropsychiatrist, Dr. Hoeper. (Id. at 14.)
Fourth and finally, Plaintiff contends that “[t]he ALJ erred by disregarding evidence of
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[Plaintiff’s] severe headaches and by failing to account for them in the RFC and hypothetical
question.” (Id. at 18.) After a careful review of the record, the Court finds that Plaintiff’s
contentions merit remand with regard to the handling of the opinion evidence and the
consideration of Plaintiff’s headaches, for the reasons set out below.
A.
ALJ’s Review of the Opinion Evidence
Plaintiff first challenges the ALJ’s assessment of the following opinion rendered by Dr.
Edwin Hoeper, an examining neuropsychiatrist, on July 13, 2016. Dr. Hoeper diagnosed
Plaintiff with Post Traumatic Stress Disorder and Major Depression, and posited that,
[b]ecause of [his] PTSD, [Plaintiff] is unable to sustain social relationships, and
he is also unable to sustain work relationships. Therefore, I consider him
permanently and totally disabled and unemployable.
(Tr. at 603.)
In rendering this opinion, Dr. Hoeper noted that Plaintiff has frequent
nightmares and anxiety, “especially in public.”
He has intrusive thoughts, is hyper vigilant and cannot tolerate anyone behind
him. He does not socialize. His recent memory is severely impaired, so much
that he cannot remember what he reads and gets lost when traveling. His
working memory is 50% impaired. Anger, sadness and fear come upon him
without his understanding why 80% of the time and indicating that his
prefrontal cortex is dysfunctional.
(Id.)
The ALJ considered Dr. Hoeper’s opinion, and specifically noted that Dr. Hoeper had
concluded that Plaintiff “was unable to sustain social or work relationships and that he was
permanently and totally disabled.” (Tr. at 42-43.) However, the ALJ ultimately found as
follows:
This opinion was based on one-time examination of [Plaintiff]. [Plaintiff’s]
symptoms, as reported at this examination, were not consistent with the prior
treatment records from Dr. Hampton. For example, there was no prior
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evidence of hypervigilance or intrusive thoughts. Further, the opinion that
[Plaintiff] is totally disabled is an issue that is reserved to the Commissioner of
the Social Security Administration. Therefore, little weight is given to this
opinion.
(Tr. at 43.) Plaintiff now contends that substantial evidence fails to support the ALJ’s findings
as to Dr. Hoeper. This Court concurs.
As an initial matter, Plaintiff maintains that the weight assigned to Dr. Hoeper’s
opinion applies only to his finding that Plaintiff is “totally disabled,” and that the ALJ failed
to address Dr. Hoeper’s further opinion that Plaintiff is unable to sustain social or work
relationships. (Pl.’s Br. at 17.) The Court agrees that the ALJ’s reference to “this opinion”
when assigning weight is ambiguous at best. Thus, it is not clear that the ALJ directly
addressed Dr. Hoeper’s opinion that Plaintiff was unable to sustain social or work
relationships.
Moreover, even if the assignment of “little weight” applies more generally, the record
fails to support the ALJ’s stated reasons for discounting Dr. Hoeper’s additional opinions. In
particular, the ALJ claimed that Plaintiff’s symptoms, on which Dr. Hoeper based his opinion,
“were not consistent with the prior treatment records from Dr. Hampton,” Plaintiff’s treating
psychologist. (Tr. at 43.) The ALJ specifically relied on the absence of hypervigilance and
intrusive thoughts from Dr. Hampton’s notes. However, Dr. Hampton’s treatment notes
reflect repeated instances of negative ruminations, angry outbursts and “significant subjective
distress and disruption of function as a result of his symptoms.” (Tr. at 397, 398, 399, 400,
401, 404, 405, 408, 471, 475, 480.) Dr. Hampton assigned Plaintiff a GAF score of 45 in
January 2014. (Tr. at 393.) Particularly as to Plaintiff’s social difficulties and inability to sustain
relationships, Dr. Hampton’s treatment notes reflect Plaintiff’s social isolation. At his initial
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evaluation, Dr. Hampton noted that Plaintiff’s symptoms included angry outbursts and limited
patience with his family. (Tr. at 392.) In July 2014, Plaintiff reported to Dr. Hampton that
he had a hard time being around other people, stating, “‘I can smile and be friendly for just a
little while but then I start to feel uncomfortable and want to get away.’” (Tr. at 398.) Dr.
Hampton’s treatment notes continue to reflect Plaintiff’s difficulty being around people,
including his irritability and restlessness and his angry outbursts. Later treatment notes with
Dr. Hampton reveal no further evidence of social interaction outside of Plaintiff’s household,
and Plaintiff’s wife testified that he does not interact with people outside their immediate
family due to anger and terrible mood swings. (Tr. 39, 74.) The ALJ noted that according to
the testimony, Plaintiff has “anger and mood swings and issues with not wanting to socialize.
He has pretty much alienated his mother, sisters, and Mrs. Martin’s family.” (Tr. at 39, 74.)
With respect to the other evidence of social functioning, the ALJ acknowledged that
Plaintiff “does not like to be around others.” (Tr. at 36, 38, 42.) However, the ALJ
nevertheless found that Plaintiff “has been able to interact appropriately on a daily basis with
his wife and son.” (Tr. at 42.) Yet even a cursory review of the record belies this statement.
Testimony from Plaintiff and his wife as well as Dr. Hampton’s treatment notes reflect a
volatile relationship between Plaintiff and his son, despite Plaintiff’s ongoing attempts to curb
his anger. (Tr. at 38-39, 73-77, 398, 400, 401, 402, 404, 475.) Plaintiff’s wife testified that they
have learned to manage his outbursts, during which he “says horrible things,” generally by
leaving him alone until he calms down. (Tr. at 39, 75.) Mrs. Martin also reported taking on
“more of a role of caretaker than spouse.” (Tr. at 39, 77.)
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The Court also notes that Dr. Hoeper’s opinion is consistent with the evaluation by
Plaintiff’s prior treating neuropsychiatrist, Dr. Gualtieri, who found that Plaintiff was suffering
from post-traumatic stress symptoms, depression, and cognitive problems as a result of the
electrocution. Dr. Gulatieri noted that Plaintiff’s emotional reactions to the event may result
in long-term restriction. 4 (Tr. at 331-36.)
Thus, all of this evidence appears to support Dr. Hoeper’s opinion, and the ALJ fails
to identify any evidence contrary to Dr. Hoeper’s opinion that Plaintiff “is unable to sustain
social relationships and he is also unable to sustain work relationships.”5 The Court also notes
that it appears that the ALJ did not obtain a consultative psychological examination but
nevertheless discounted all of the examining mental health professionals, including Dr.
Hoeper, Dr. Hampton, and Dr. Gualtieri, based primarily on the unsupported conclusion that
Plaintiff “has been able to interact appropriately on a daily basis with his wife and son.” (Tr.
at 42.)
See Woods v. Berryhill, 888 F.3d 686, 695 (4th Cir. 2018.) The record does not
4
The Court notes that Plaintiff also submitted to the Appeals Council treatment notes from Dr. Gualtieri dated
September 23, 2016, one month after the date of the ALJ’s decision. The Appeals Council did not consider
the notes, finding that they did not relate to the period on or before the ALJ’s of August 23, 2016. (Tr. at 2.)
However, in the treatment note, Dr. Gualtieri states that Plaintiff has been
disabled since electrocutions in 2012 and 2013. Treated here in 2014-2015 for cognitive,
physical and emotional symptoms related to electrocution, which involved brain injury.
Subsequently followed up by Dr. Hoepper on Goldsboro. The patient is disabled from work
by virtue of pain, cognitive weakness, and posttraumatic stress disorder. Patient was last seen
in September 2015 but testing today is unchanged in September 2016.
(Tr. at 14.) This note appears to summarize Plaintiff’s treatment and condition prior to August 2016, and
further states that testing was unchanged during the year from September 2015 to September 2016, and Plaintiff
was still disabled.
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To the extent the Commissioner may rely on the one-time nature of Dr. Hoeper’s examination, Plaintiff
correctly points out that this cannot serve as the sole basis for discrediting Dr. Hoeper’s statements, as other
one-time examiners, and even non-examining physicians, were assigned significant weight by the ALJ.
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support that finding, as discussed above, and in the circumstances substantial evidence fails to
support the ALJ’s decision.
B.
Headaches
Plaintiff also contends that “[t]he ALJ erred by disregarding evidence of [Plaintiff’s]
severe headaches and by failing to account for them in the RFC and hypothetical question.”
(Pl.’s Br. at 18.) At step two, the ALJ acknowledged Plaintiff’s testimony that “he has
headaches once or twice per week” which “keep him down for one to two days at a time”
during which he stays in a dark room. (Tr. at 34-35.) The ALJ also recounted Mrs. Martin’s
testimony that Plaintiff “has extreme headaches” which last for days along with “swelling on
the side of his head where the electricity hit him.” (Tr. at 39.) Nevertheless, the ALJ found
“no indication in the record of intractable headaches,” and, noting Plaintiff’s normal EEG
results, did not include headaches among Plaintiff’s medically determinable impairments. (Tr.
at 35.)
Notably, the record in this case contains multiple references to Plaintiff’s intractable
headaches and swelling, including his frustrations in seeking diagnosis and treatment. (See Tr.
at 408) (“[H]e is concerned because he had a headache for a week after our last session and
tried to talk with Dr. Gultieri about it but never got a call back”); (Tr. at 473) (“[H]e has had
another episode of swelling on the side of his face [but] it has not been diagnosed. He is
frustrated that he has not been able to get an authorization to consult with a neurologist about
it.”); (Tr. at 471) (“[H]e is still concerned about the return of the swelling and headaches.”);
(Tr. at 472) (“[H]e had a really bad headache with swelling on the side of his head again.”);
(Tr. at 387) (noting that Plaintiff reports “headache, fatigue, weakness”). An ophthalmologist
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ruled out an ocular cause for Plaintiff’s left-sided headaches and opined that they were “likely
migrainous in etiology.” (Tr. at 515, 598.) He also recommended that Plaintiff continue
following up on this problem with his primary care physician, particularly given the
electrocution damage sustained by that side of Plaintiff’s head. (Id.)6
Significantly, no physician opined that Plaintiff was not experiencing headaches or that
his headaches and the symptoms and limitations therefrom were less severe than alleged. The
only evidence relied upon by the ALJ was Plaintiff’s normal EEG. This test, which records
electric signals in the brain, was used to rule out Plaintiff’s suspected seizure activity. (See Tr.
at 407-08.) An EEG is not used to diagnose headaches or, in most cases, their cause.
Accordingly, the ALJ presented no valid reason for omitting Plaintiff’s headaches as a severe
impairment at step two of the sequential analysis. He then compounded this error by rejecting,
without basis or analysis, evidence that Plaintiff’s headaches cause additional functional
restrictions, including missing multiple days of work per month. This error presents an
additional basis for remand.7
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be REVERSED, and that the matter be REMANDED to the Commissioner
under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand
the matter to the ALJ for proceedings consistent with this Recommendation. To this extent,
Defendant’s Motion for Judgment on the Pleadings [Doc. #11] should be DENIED, and
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Plaintiff’s hospital records reflect his complaints of headache following the electrocution. (Tr. 284.) In
addition, a CT scan at the time of Plaintiff’s electrocution also noted “severe multilevel degenerative disk disease
within the cervical spine, with ankylosis of the C4 and C5 vertebral bodies” (Tr. at 317), but that finding was
not addressed by the ALJ.
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Having reached this conclusion, the Court need not consider the remaining issues raised by Plaintiff.
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Plaintiff’s Motion for Judgment on the Pleadings [Doc. #8] should be GRANTED. However,
to the extent that Plaintiff’s motion seeks an immediate award of benefits, it should be
DENIED.
This, the 26th day of July, 2018.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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