Elrod v. Commissioner of Social Security
Filing
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MEMORANDUM OPINION AND ORDER that the decision of the Commissioner is reversed and the cause is remanded for further proceedings consistent with this Memorandum Opinion and Order. Signed by Magistrate Judge Valerie K. Couch on 5/31/11. (ch)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DEBORAH S. ELROD,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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Case No. CIV-10-415-CH
MEMORANDUM OPINION AND ORDER
Ms. Deborah S. Elrod brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the decision of the Commissioner of the Social Security Administration denying
her application for disability insurance benefits. Pursuant to 28 U.S.C. § 636(c), the parties
have consented to the exercise of jurisdiction over this matter by a United States Magistrate
Judge. Based on the Court’s review of the record and issues presented, the Court reverses
the Commissioner’s decision and remands this case for an immediate award of benefits.
Procedural Background
This case has an unusually long procedural history. Ms. Elrod initially filed an
application for disability benefits in January 2002, alleging a disability onset date of July 7,
2000.
The agency denied her application for disability benefits initially and upon
reconsideration. Ms. Elrod then requested and was granted an administrative hearing after
which an administrative law judge (ALJ) issued an unfavorable decision. The Appeals
Council denied Ms. Elrod’s request for review. Ms. Elrod then appealed to this Court. See
Elrod v. Barnhart, Case No. CIV-05-100-T (W.D. Okla.). The case was remanded pursuant
to the Commissioner’s unopposed Motion to Remand for further proceedings, brought
pursuant to sentence four of 42 U.S.C. § 405(g). The same ALJ held another administrative
hearing and again denied Ms. Elrod’s claim for disability benefits. On administrative appeal,
the Appeals Council vacated the ALJ’s second decision and remanded the case to a different
ALJ for a third hearing held on May 27, 2009. On November 3, 2009, the ALJ issued an
unfavorable decision. The Appeals Council denied Ms. Elrod’s request for review, and this
action for judicial review followed.
The Administrative Decision
The ALJ followed the sequential evaluation process required by agency regulations.
See Fisher-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. §§ 404.1520.
The ALJ first determined that Ms. Elrod had not engaged in substantial gainful activity from
her alleged disability onset date, July 7, 2000, through her last date insured, March 30, 2005.
At step two, the ALJ determined that Ms. Elrod has severe impairments consisting of
degenerative disc disease; neck, left shoulder, left arm and low back pain; atypical chest pain;
asthma; hypertension; migraines; remote history of seizures; facial neuralgia; and adjustment
disorder with depressive mood. At step three, the ALJ determined that Ms. Elrod’s
impairments do not meet or medically equal any of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1.
2
The ALJ next considered Ms. Elrod’s residual functional capacity (RFC) and
determined that she retains the capacity to perform a limited range of sedentary work,
diminished by significant nonexertional limitations:
[T]he undersigned finds that, through the date last insured, the claimant had
the residual functional capacity to perform sedentary work as defined in 20
C.F.R. 404.1567(a) except the claimant can sit in intervals of forty-five
minutes for the total of about six hours throughout an eight-hour workday;
stand and/or walk in intervals of forty-five minutes for the total of about six
hours throughout an eight-hour workday; stand and/or walk in intervals of
thirty to forty-five minutes for the total of about four hours throughout an
eight-hour workday; can lift and/or carry twenty pounds occasionally and five
pounds frequently; can occasionally bend, stoop, crouch, and climb stairs; but,
cannot crawl or twist. The claimant can frequently reach with the right arm;
occasionally reach with the left arm at chest level and below; and, frequently
finger. The claimant cannot interact extensively with the general public. The
claimant is able to sustain concentration necessary to perform unskilled work.
She must have a moderately clean working environment.
Administrative Record (AR) 438. Based on this RFC and the testimony of a vocational
expert, the ALJ determined at step four of the sequential evaluation that Ms. Elrod cannot
perform her past relevant work as deli cutter, informal waitress, housekeeping cleaner or
mechanical inspector. At step five of the sequential evaluation, the ALJ concluded that
through her last date insured, Ms. Elrod could have performed such unskilled jobs as office
helper, weight tester and table worker.
Issues Presented for Judicial Review
Ms. Elrod contends that the ALJ failed to properly evaluate the medical evidence,
relied on incompetent vocational testimony and erred in evaluating her credibility.
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Standard of Review
Because the Appeals Council ultimately denied review of the most recent ALJ’s
decision, the Commissioner’s final decision for purposes of this appeal is the ALJ’s
November 3, 2009, decision. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).
Judicial review of the Commissioner’s final decision is limited to determining whether the
factual findings are supported by substantial evidence in the record as a whole and whether
the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir.
2009). “Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d at 760 (quotation
omitted). A decision is not based on substantial evidence if it is overwhelmed by other
evidence in the record or if there is a mere scintilla of evidence supporting it. Branum v.
Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004). The court “meticulously examine[s] the
record as a whole, including anything that may undercut or detract from the [administrative
law judge’s] findings in order to determine if the substantiality test has been met.” Wall v.
Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations omitted). While the court considers
whether the ALJ followed the applicable rules of law in weighing particular types of
evidence in disability cases, the court does not reweigh the evidence or substitute its own
judgment for that of the Commissioner. See Bowman v. Astrue, 511 F.3d 1270, 1272 (10th
Cir. 2008) (quotations and citations omitted).
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Analysis
On July 1, 2000, Ms. Elrod injured her left shoulder while she was working as a
waitress. Because of the resulting pain and inability to work, she was referred for a number
of diagnostic tests under her employer’s workers’ compensation insurance. None of the
diagnostic tests revealed significant positive findings. Cervical X-rays performed shortly
after the injury showed normal height and alignment of the disc spaces and vertebrae. X-rays
taken four months later revealed only slightly decreased C6-7 disc space. On February 19,
2001, Dr. Kevin L. Wood reported “essentially normal” results from an EMG test of Ms.
Elrod’s left shoulder, neck and upper arm. Despite the lack of positive test results, Ms. Elrod
continued to report significant pain.
Ms. Elrod was referred to Dr. Glenn Schoenhals, a board-certified neurologist, for
treatment and evaluation in relation to her workers’ compensation case. Almost one year
after her injury, results of an MRI of the cervical spine dated March 6, 2001, showed only
mild degenerative changes at C6-7. On May 22, 2001, Dr. Schoenhals reported to the
Workers’ Compensation Court that Ms. Elrod had reached “a point of improvement that
cannot be facilitated further medically.” AR 100. Dr. Schoenhals expressed the difficulty
of explaining why neither therapy, time nor medication was helping alleviate Ms. Elrod’s
pain. He stated his opinion, however, that “pain amplification1 plays a major role in [her]
1
Pain amplification results in high sensitivity to painful and non-painful stimuli. While the
exact cause is unknown, research suggests possible abnormalities in sensory processing by the
central nervous system as well as peripheral tissue abnormalities. See Staud, Roland, Biology and
Therapy of Fibromyalgia: Pain in Fibromyalgia Syndrome (2006),
http://www.ncbi.nih.gov/pmc/articles/PMC1526632.
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symptoms” and noted that this condition would not respond to surgery or other interventional
treatments. He expressed his near certainty that Ms. Elrod would continue to seek medical
treatment for neck and shoulder pain.2
Dr. Schoenhals’ prediction proved to be accurate. Ms. Elrod has continued to seek
and receive treatment for neck and shoulder pain, as well as frequent headache pain and
lower back pain. Medical records from Dr. James T. Cail, one of Ms. Elrod’s treating
physicians, show regular appointments during the time period before Ms. Elrod’s date last
insured and detail her numerous complaints of pain. On March 11, 2004, Dr. Cail completed
a Medical Source Statement in which he listed Ms. Elrod’s physical limitations. Dr. Cail
specified that Ms. Elrod could neither frequently nor occasionally lift and/or carry more than
7-8 pounds; that she could stand or walk no more than 2 hours in an 8-hour workday; that she
could sit no more than a total of 30 minutes in an 8-hour workday; that she could never
climb, balance, stoop, kneel, crouch, crawl, reach, handle, finger or feel; and that she would
necessarily be required to lie down during the normal workday to manage pain or other
symptoms.
Dr. Cail’s medical source statement represented his opinion of Ms. Elrod’s
limitations from February 2002 through the date of the medical source statement. AR 356357.
On May 16, 2007, Dr. Johnaga Saidi examined Ms. Elrod at the request of the Social
Security Agency. In his Medical Source Statement of Ability to Do Work-Related Activities,
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Dr. Schoenhals did not state that Ms. Elrod was malingering or exaggerating the severity
of her pain.
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Dr. Saidi expressed his opinion that Ms. Elrod could occasionally lift up to 20 pounds, but
that she could never carry even the lowest category of weight, up to ten pounds. Dr. Saidi
stated that Ms. Elrod could sit or stand for 15-20 minutes at one time without interruption and
that she could walk for 10-15 minutes at a time without interruption. He stated that she could
sit for a total of 5 hours in an 8-hour workday, stand for a total of 3 hours in an 8-hour
workday, and walk for a total of 1 hour in an 8-hour workday. Dr. Saidi noted that the range
of motion of the lower spine was mildly decreased associated with mild pain and stiffness
and that although range of motion of hips was within normal limits, there was also some
associated stiffness in the hips. AR 718-723.
Dr. Richard H. Swink performed a consultative mental status examination on June 6,
2007, during which he administered three standardized tests. The results of the Minnesota
Multiphasic Personality Inventory-2 (MMPI-2) indicated a profile involving the “neurotic
triad,” a profile which, according to Dr. Swink, “is associated with persons who have
psychoneurotic problems, may convert stress to physical symptoms, and often have a
bonafide physiological basis to their problems.” AR 726-727. Her test scores were
consistent with her statements of “no history of dependence on alcohol or illegal substances.”
Id. In conclusion, Dr. Swink stated:
Mrs. Elrod evidenced intact mental status functions, Low Average to Average
intellectual ability, and Average reading skills on testing. She evidences a
chronic pain disorder based on medical conditions being treated, with
development of secondary anxiety and depressed mood.
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AR 727. His DSM-IV diagnosis was (1) Adjustment Disorder with Mixed Anxiety and
Depressed Mood, Moderate, Secondary to Physical Conditions and (2) Pain Disorder
Associated with Both Psychological Factors and a General Medical Condition. Id.
A.
The ALJ’s Evaluation of the Medical Evidence
As the record indicates, previous remands of this case have been at least partially
based on the need for re-evaluation of the medical source statement of Dr. Cail, a treating
physician. Ms. Elrod contends that in the decision now under review, the ALJ erred in his
analysis of Dr. Cail’s treating source opinion.
The standards for evaluating a treating physician’s opinion are clear:
When evaluating the opinion of a treating physician, the ALJ must follow a
sequential analysis. In the first step of this analysis, he should consider
whether the opinion is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is consistent with the other substantial
evidence in the record. If the answer to both these questions is “yes,” he must
give the opinion controlling weight. But even if he determines that the treating
physician’s opinion is not entitled to controlling weight, the ALJ must then
consider whether the opinion should be rejected altogether or assigned some
lesser weight.
Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007) (citations omitted). When a
treating physician’s opinion is not given controlling weight, it is still entitled to deference
and must be weighed using relevant factors such as the length, frequency, nature, and extent
of the treating relationship; the extent to which the opinion is supported by relevant evidence,
particularly medical signs and laboratory findings; the extent to which the opinion is
consistent with the record as a whole; the doctor’s specialization; and other factors tending
to support or contradict the opinion. See 20 C.F.R. § § 404.1527(d). Ultimately, the ALJ’s
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decision must contain “reasons that are sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source’s medical opinion and the
reasons for that weight.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004)
(quotation omitted).
In this case, the ALJ followed the two-step process in analyzing Dr. Cail’s opinion.3
The ALJ declined to give Dr. Cail’s opinion controlling weight because “objective diagnostic
testing including x-rays and MRI studies were all within normal limits.” Id. The ALJ then
concluded that this treating source opinion should be given only “minimal weight because
Dr. Cail’s findings are not supported by his own treating notes or the objective record
overall.” Id.
The ALJ’s description of most of the test results in this case is substantially accurate.
But the normal test results are nevertheless consistent with Dr. Schoenhals’ diagnosis of
“pain amplification” which he stated played a “major role in [Ms. Elrod’s] symptoms.”4 AR
3
The ALJ criticized Dr. Cail’s opinion because the bulk of the form “consists only of checked
boxes[.]” AR 442. The Court notes that the form completed by Dr. Cail is quite similar to Form No.
0960-0662 provided by the Social Security Administration and completed by Dr. Saidi. See AR
718-723.
4
The facts and circumstances in this case resemble those in Sisco v. U.S. Department of
Health and Human Services, 10 F.3d 739 (10th Cir. 1993) in which the Tenth Circuit Court of
Appeals was faced with an ALJ’s misconception that to receive disability benefits, a claimant must
present conclusive proof of disability through laboratory diagnostic techniques:
The most glaring misconception is the ALJ’s belief that the language in §
223(d)(5)(A) of the Social Security Act (SSA) requiring proof of a disability by
“medically acceptable clinical or laboratory diagnostic techniques” means that a
disability is covered by the Act only if it can be conclusively diagnosed by a
(continued...)
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100. The results of Dr. Swink’s consultative examination and his conclusion that Ms. Elrod
“evidences significant secondary depression and anxiety, in response to problems in
functioning on a physical basis” (AR 727) are also consistent with Dr. Schoenhals’s
diagnosis of an amplified pain condition.
Moreover, the ALJ’s finding regarding the alleged lack of support for Dr. Cail’s
opinion is not supported by substantial evidence. Dr. Cail’s treating notes, as well as the
treating notes from other physicians and from hospital emergency room visits, are consistent
with and do support Dr. Cail’s medical source statement. Ms. Elrod’s medical records
chronicle her repeated reports of pain and her attempts to get relief from her pain.
B.
The Vocational Evidence
Despite abundant medical evidence supporting Ms. Elrod’s complaints of pain, the
ALJ rejected the opinions of Ms. Elrod’s treating physician and the consultative physician
and instead gave “considerable weight” to the testimony of Dr. Thomas N. Lynn, a
nonexamining, nontreating physician who testified as a medical expert. Dr. Lynn reviewed
the medical evidence and formulated an RFC which the ALJ adopted. The ALJ incorporated
this RFC into the hypothetical question posed to the VE. Ms. Elrod challenges the accuracy
4
(...continued)
“laboratory-type” test. While going through the motions of applying the five-step
test and evaluating Plaintiff’s testimony [regarding chronic fatigue syndrome], the
ALJ returned time and time again to his erroneous belief that Plaintiff had not
presented the type of medical evidence necessary to receive benefits.
Id. at 743. Like the chronic fatigue syndrome suffered by the claimant in Sisco, Ms. Elrod’s pain
amplification syndrome cannot readily be diagnosed by objective medical tests.
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of the VE’s testimony as it relates to the ALJ’s step-five findings that there are jobs which
Ms. Elrod could perform despite her limitations.
The ALJ’s hypothetical question to the VE included limitation to sedentary work that
required no more than occasional reaching at the chest level and below. Based on the
hypothetical question posed by the ALJ, the VE identified three unskilled jobs which she
testified Ms. Elrod could do despite her limitations: office helper, weight tester and table
worker. The ALJ relied on all three of these jobs to support his step-five determination that
Ms. Elrod is not disabled.
The ALJ’s step-five finding is flawed. First, the ALJ erred in relying on “office
helper” to support his finding that Ms. Elrod could perform other jobs available in significant
numbers in the national economy. The VE described “office helper” as “light work,” a
description consistent with information provided in the Dictionary of Occupational Titles
(DOT). See Office Helper, DOT § 239.567-010, 1991 WL 672232. The ALJ’s own RFC
formulation, however, limits Ms. Elrod to a limited range of sedentary work. Moreover, the
DOT descriptions of all three jobs identified by the VE and relied upon by the ALJ require
frequent to constant reaching. See id.; Weight Tester, DOT § 539.485.010, 1991WL 674890;
Table Worker, DOT § 783.687, 1991 WL 680943. But the ALJ’s RFC formulation restricts
Ms. Elrod to occasional reaching with the left arm to the level of the waist or below. The
VE’s testimony does not support the ALJ’s step-five finding, and the Commissioner did not
meet his burden of proving that there are other jobs Ms. Elrod could do despite her
limitations.
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The Commissioner argues that the jobs identified by the VE support his finding that
Ms. Elrod is not under a disability. First, the Commissioner cites the DOT for the
proposition that job descriptions must sometimes be supplemented with information about
the requirements of jobs as performed in a particular region:
Occupational information contained in the revised fourth edition DOT reflects
jobs as they have been found to occur, but they may not coincide in every
respect with the content of jobs as performed in particular establishments or
at certain localities. DOT users demanding specific job requirements should
supplement this data with local information detailing jobs within their
community.
Special Notice, 1991 WL 645963. In this case, however, there is nothing in the record to
support a conclusion that either the VE or the ALJ conducted such an inquiry.
The Commissioner also contends that because Ms. Elrod can frequently reach with
her right hand, she could perform the jobs identified by the VE despite her inability to reach
more than occasionally no higher than waist level with her left hand. In support of this
contention, the Commissioner cites various judicial decisions finding no conflict between VE
testimony and the DOT in cases involving the capabilities of one-armed claimants to perform
various jobs. Adopting the Commissioner’s argument in this regard would require this Court
to engage in speculation. Courts cannot, however, “create or adopt post-hoc rationalizations
to support the ALJ’s decision that are not apparent from the ALJ’s decision itself.” Haga v.
Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007). The Commissioner did not meet his burden
of proving at the fifth step of the sequential analysis the existence of jobs which Ms. Elrod
could perform.
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C.
The ALJ’s Credibility Analysis
In her third point of error, Ms. Elrod challenges the ALJ’s credibility findings:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected
to cause some of the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms
are not credible to the extent they are inconsistent with the above residual
functional capacity assessment.
AR 440.
The Tenth Circuit Court of Appeals recently restated the salient points a court must
consider when reviewing credibility determinations:
“Credibility determinations are peculiarly the province of the finder of fact,
and we will not upset such determinations when supported by substantial
evidence.” Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777
(10th Cir. 1990). However, “[f]indings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.” Huston [v. Bowen], 838 F.2d 1125, 1133 [(10th Cir. 1988)]
(footnote omitted); see also Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir.
1992) (ALJ “must articulate specific reasons for questioning the claimant’s
credibility” where subjective pain testimony is critical); Williams [ex rel.]
Williams v. Bowen, 859 F.2d 255, 261 (2d Cir.1988) (“failure to make
credibility findings regarding . . . critical testimony fatally undermines the
[Commissioner’s] argument that there is substantial evidence adequate to
support [her] conclusion that claimant is not under a disability”).
Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (quoting Kepler v. Chater, 68 F.3d
387, 391 (10th Cir. 1995)).
The Tenth Circuit also restated the process an ALJ should use in evaluating a
claimant’s subjective allegations of pain:
The framework for the proper analysis of Claimant’s evidence of pain is set
out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). We must consider (1)
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whether Claimant established a pain-producing impairment by objective
medical evidence; (2) if so, whether there is a ‘loose nexus’ between the
proven impairment and the Claimant’s subjective allegations of pain; and (3)
if so, whether, considering all the evidence, both objective and subjective,
Claimant’s pain is in fact disabling.
Id. at 1144-1145 (internal quotations and citations omitted). In determining whether a
claimant’s subjective complaints are credible, the ALJ should consider such evidence as:
the levels of medication and their effectiveness, the extensiveness of the
attempts (medical or nonmedical) to obtain relief, the frequency of medical
contacts, the nature of daily activities, subjective measures of credibility that
are peculiarly within the judgment of the ALJ, the motivation of and
relationship between the claimant and other witnesses, and the consistency or
compatibility of nonmedical testimony with objective medical evidence.
Id. at 1145 (internal quotation and citations omitted).
The ALJ’s credibility assessment is based solely on his conclusion that “it does not
seem reasonable to conclude from the minimal findings in evidence that such could be the
basis for the degree of pain alleged.” AR 440. The ALJ’s analysis is focused on only one
of the factors relevant to credibility. After finding that Ms. Elrod’s “medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms,” he then
rejects Ms. Elrod’s credibility based solely on the “the minimal findings in evidence,” AR
440, without discussing the other factors upon which a reasoned credibility assessment
should be based. The ALJ did not, for example, consider Ms. Elrod’s testimony regarding
the medication she takes and the side effects of those medications. Further, he did not
consider Dr. Schoenhals’ diagnosis of pain amplification and the implications of that
diagnosis. The ALJ’s credibility assessment is not based on substantial evidence.
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D.
Immediate Award of Benefits
Ms. Elrod asks this Court to enter an order of remand for an immediate award of
benefits pursuant to 42 U.S.C. § 405(g) (“The court shall have power to enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for
a rehearing.”).
In deciding whether to remand a case for a rehearing or for an immediate award of
benefits, a court should consider both “the length of time the matter has been pending and
whether or not ‘given the available evidence, remand for additional fact-finding would serve
[any] useful purpose but would merely delay the receipt of benefits.’” Salazar v. Barnhart,
468 F.3d 615, 626 (10th Cir. 2006) (alteration in original) (citation omitted) (quoting Harris
v. Secretary of Health & Human Services, 821 F.2d 541, 545 (10th Cir. 1987)). In this case,
an immediate award of benefits is appropriate. The Commissioner’s decision that Ms. Elrod
is capable of performing the light and sedentary jobs identified, despite her RFC for a limited
range of sedentary work, is not supported by substantial evidence. It has been over ten years
since Ms. Elrod first applied for disability insurance benefits. There is nothing to be gained
from prolonging the proceedings any further. According to the ALJ’s own RFC analysis,
Ms. Elrod is physically limited to sedentary work. Because sedentary work is the lowest
classification under the statute, there is no need for further proceedings in this matter other
than a remand for an award of benefits. See Sisco v. U.S. Department of Health and Human
Services, 10 F.3d 739 at 745-746.
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The decision of the Commissioner is reversed and the cause is remanded for further
proceedings consistent with this Memorandum Opinion and Order.
ENTERED this
31st day of May, 2011.
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