Rustamova v. Commissioner Social Security Administration
Filing
13
Opinion and Order. The Court REVERSES the Commissioner's decision and GRANTS the Commissioner's Motion 11 to Remand pursuant to sentence four of 42 U.S.C.§ 405(g) for further administrative proceedings consistent with this Opinion and Order. Signed on 06/13/2012 by Judge Anna J. Brown. See 20 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ULMASKHON RUSTAMOVA,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
JAMES S. COON
Swanson Thomas & Coon
820 S.W. 2nd Avenue, Suite 200
Portland, OR 97204
(503) 228-5222
Attorneys for Plaintiff
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OPINION AND ORDER
3:11-CV-751-BR
OPINION AND ORDER
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
DAVID MORADO
Regional Chief Counsel
LEISA A. WOLF
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
(206) 615-3621
Attorneys for Defendant
BROWN, Judge.
Plaintiff Ulmaskhon Rustamova seeks judicial review of a
final decision of the Commissioner of the Social Security
Administration (SSA) in which he denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act.
Plaintiff seeks an order reversing the
decision of the Commissioner and remanding this action for an
award of benefits.
This matter is now before the Court on the Commissioner's
Brief and Motion (#11) to Remand for further administrative
proceedings.
Following a review of the record, the Court REVERSES the
Commissioner's decision and GRANTS the Commissioner's Motion to
Remand pursuant to sentence four of 42 U.S.C. § 405(g) for
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OPINION AND ORDER
further administrative proceedings consistent with this Opinion
and Order.
ADMINISTRATIVE HISTORY
Plaintiff filed an application for SSI on November 29, 2006,
alleging a disability onset date of November 1, 2004.
Tr. 26.1
The application was denied initially and on reconsideration.
Tr. 42-50.
An Administrative Law Judge (ALJ) held a hearing on
January 12, 2010.
Tr. 404-29.
represented by an attorney.
At the hearing Plaintiff was
Tr. 404.
Plaintiff, lay witness
Gafur Kambarov, and a vocational expert (VE) testified.
29.
Tr. 406-
The ALJ issued a decision on May 7, 2010, in which he found
Plaintiff is not disabled and, therefore, is not entitled to
benefits.
Tr. 11-18.
request for review.
The Appeals Council denied Plaintiff's
Tr. 4-6.
On April 29, 2011, therefore, the
ALJ's decision became the final decision of the Commissioner.
BACKGROUND
Plaintiff was born on June 5, 1965, and was 44 years old at
the time of the hearing.
Tr. 26, 404.
Plaintiff attended school
in Uzbekistan through eight grades and immigrated to the United
States in 2006.
Tr. 413-16.
1
Plaintiff does not speak or
Citations to the official transcript of record filed by
the Commissioner on October 26, 2011, are referred to as "Tr."
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OPINION AND ORDER
understand English.
Tr. 416-17.
Plaintiff has past work
experience as a dairy-farm laborer.
Tr. 422.
Plaintiff alleges disability due to pain in her back, legs,
head, and chest, which limit her ability to walk, to bend, to
lift, to carry, and to perform daily activities.
Tr. 69, 88-90.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 13-17.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2005).
Ukolov v. Barnhart, 420 F.3d 1002, 1004
To meet this burden, a claimant must
demonstrate her inability "to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which . . . has lasted or can be expected to
last for a continuous period of not less than 12 months."
42 U.S.C. § 423(d)(1)(A).
developing the record.
The Commissioner bears the burden of
Reed v. Massanari, 270 F.3d 838, 841
(9th Cir. 2001).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
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OPINION AND ORDER
42 U.S.C. § 405(g).
See also Batson, 359 F.3d at 1193.
“Substantial evidence means more than a mere scintilla, but
less than a preponderance, i.e., such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006)(internal quotations omitted).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2001).
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
466 F.3d at 882.
Robbins,
The Commissioner's decision must be upheld even
if the evidence is susceptible to more than one rational
interpretation.
2005).
Webb v. Barnhart, 433 F.3d 683, 689 (9th Cir.
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
See also 20 C.F.R. § 416.920.
dispositive.
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OPINION AND ORDER
Each step is potentially
In Step One, the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful
activity.
Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1052
(9th Cir. 2006).
See also 20 C.F.R. § 416.920(b).
In Step Two, the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe
impairment or combination of impairments.
1052.
Stout, 454 F.3d at
See also 20 C.F.R. § 416.920(c).
In Step Three, the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity.
454 F.3d at 1052.
Stout,
See also 20 C.F.R. § 416.920(a)(4)(iii).
The
criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, he must
assess the claimant’s Residual Functional Capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§ 416.945(a).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
"A
'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."
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OPINION AND ORDER
SSR 96-8p, at *1.
In other
words, the Social Security Act does not require complete
incapacity to be disabled.
n.7 (9th Cir. 1996).
Smolen v. Chater, 80 F.3d 1273, 1284
The assessment of a claimant's RFC is at
the heart of Steps Four and Five of the sequential analysis
engaged in by the ALJ when determining whether a claimant can
still work despite severe medical impairments.
An improper
evaluation of the claimant's ability to perform specific workrelated functions "could make the difference between a finding of
'disabled' and 'not disabled.'"
SSR 96-8p, at *4.
In Step Four, the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
Stout, 454 F.3d at 1052.
See
also 20 C.F.R. § 416.920(a)(4)(iv).
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in
the national economy.
Stout, 454 F.3d at 1052.
C.F.R. § 416.920(a)(4)(v).
See also 20
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can do.
F.3d 1094, 1098 (9th Cir. 1999).
Tackett v. Apfel, 180
The Commissioner may satisfy
this burden through the testimony of a VE or by reference to the
Medical-Vocational Guidelines set forth in the regulations at
20 C.F.R. part 404, subpart P, appendix 2.
If the Commissioner
meets this burden, the claimant is not disabled.
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OPINION AND ORDER
20 C.F.R.
§ 416.920(g)(1).
ALJ'S FINDINGS
At Step One, the ALJ found Plaintiff has not engaged in
substantial gainful activity since November 29, 2006, the date of
Plaintiff’s application.
Tr. 13.
At Step Two, the ALJ found Plaintiff has the severe
impairments of lumbar degenerative disc disease, obesity, and
left-knee meniscus degenerative joint disease.
Tr. 13.
At Step Three, the ALJ concluded Plaintiff's impairments do
not singly or in combination meet or equal the criteria for any
Listed Impairment from 20 C.F.R. part 404, subpart P, appendix 1.
When the ALJ assessed Plaintiff's RFC, he found Plaintiff can
perform sedentary work as defined in 20
C.F.R. § 416.967(b) except the claimant is
able to lift ten pounds frequently and twenty
pounds occasionally. She is limited to
simple repetitive tasks. She is able to
read, write and perform basic arithmetic.
She is illiterate in English and can have no
public contact.
Tr. 18.
At Step Four, the ALJ found Plaintiff could not perform her
past relevant work.
Tr. 17.
At Step Five, the ALJ found Plaintiff is capable of working
in occupations that exist in significant numbers in the local and
national economies.
Tr. 17-18.
Accordingly, the ALJ found
Plaintiff is not disabled and, therefore, is not entitled to
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benefits.
Tr. 18.
DISCUSSION
Plaintiff contends the ALJ erred when he (1)
at Step Five
to show Plaintiff is capable of performing work that exists in
significant numbers in the national economy; (2) improperly
rejected the lay statements and testimony by Gafur Kambarov,
Plaintiff’s son; (3) improperly discredited Plaintiff’s
subjective-symptom testimony by finding it not credible to the
extent that it was inconsistent with her RFC; and (4) failed to
provide clear and convincing reasons for finding Plaintiff’s
subjective-symptom testimony was not credible.
In his Brief and Motion to Remand, the Commissioner concedes
each of Plaintiff’s assertions of error except that the ALJ
failed to provide legally sufficient reasons for rejecting
Plaintiff’s subjective-symptom testimony.
The Commissioner moves
the Court to remand this matter for further administrative
proceedings to permit the ALJ to (1) reevaluate the medical
opinion of Deane DeFontes, M.D., regarding Plaintiff’s chronic
conditions; (2) consider further Plaintiff’s mental impairments
of post-traumatic stress disorder and auditory hallucinations and
provide a rationale for the Part B criteria for mental
impairments; (3) consider properly the lay-witness statements
from Gafur Kambarov, Plaintiff’s son; (4) consider further
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Plaintiff’s obesity under SSR 02-1p; (5) update the record to
include a Psychiatric Review Technique form and/or psychiatric
consultative examination; (6) reassess Plaintiff’s RFC; and
(7) if necessary, consider further at Step Five, with the
assistance of additional testimony by a VE, whether Plaintiff is
able to perform other work in the national economy in accordance
with SSR 00-4p.
In her Reply Plaintiff maintains the ALJ improperly assessed
her credibility, and, therefore, the Court should exercise its
discretion to remand for an immediate calculation and award of
benefits.
I.
Plaintiff’s Credibility.
Plaintiff contends the ALJ erred when he rejected
Plaintiff's subjective-symptom testimony without providing clear
and convincing reasons supported by substantial evidence in the
record for doing so.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).
Cotton, 799 F.2d 1403, 1407 (9th
The claimant, however, need not produce objective
medical evidence of the actual symptoms or their severity.
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OPINION AND ORDER
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if she provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)).
General assertions that the claimant's testimony is
not credible are insufficient.
Id.
The ALJ must identify "what
testimony is not credible and what evidence undermines the
claimant's complaints."
A.
Id. (quoting Lester, 81 F.3d at 834).
Plaintiff’s Testimony.
Plaintiff testified at the hearing before the ALJ and also
provided answers to a Pain Questionnaire and an Adult Function
Report.
Tr. 88-98, 413-18.
Plaintiff alleges she suffers
constant pain in her spine, legs, head, and chest and that her
pain is exacerbated by physical activity.
Tr. 88-89.
Plaintiff
states she is unable to be physically active for more than an
hour before needing to rest and can only walk for 15 to 20
minutes without needing rest.
Tr. 89-90, 96.
Plaintiff states
she requires help with her household chores, particularly those
that require bending or lifting, but can perform some
uncomplicated cooking and light cleaning.
Tr. 90-93.
Plaintiff
is able to do limited shopping with help from her sons.
Tr. 94.
Plaintiff attends English-as-a-Second-Language (ESL) classes for
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2.5 hours Monday through Friday.
B.
Tr. 94-95.
The ALJ’s Decision.
The ALJ concludes Plaintiff’s “medically determinable
impairments could reasonably be expected to cause some of the
alleged symptoms; however, [Plaintiff’s] statements concerning
the intensity, persistence and limiting effects of these symptoms
are not fully credible to the extent they are inconsistent with
the above residual functional capacity assessment.”
Tr. 15.
The
ALJ bases his credibility determination on the following grounds:
(1) Plaintiff’s activities of daily living undermine her
complaints of disabling pain, (2) Plaintiff made statements that
are inconsistent with the record, and (3) Plaintiff’s symptoms
are adequately controlled by medication.
C.
Tr. 15-16.
Analysis.
Plaintiff contends none of the reasons provided by the ALJ
for discrediting Plaintiff are clear or convincing.
1.
Activities of Daily Living.
As noted, the ALJ concludes Plaintiff’s activities of
daily living belie her allegations of disability:
The claimant has alleged that her
impairments cause her to be unable to engage
in substantial gainful activity. However,
the claimant has described daily activities
which are not limited to the degree that one
would expect given the allegations. The
claimant lives with her two sons and cares
for them. She occasionally takes walks and
can walk for fifteen to twenty minutes
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OPINION AND ORDER
without resting. She is able to take care of
her personal grooming. She does household
cleaning, but reports she needs assistance
with activities requiring bending and
lifting. She can cook. She is able to use
public transportation. (Exhibit 5E) The
claimant is able to grocery shop. . . . The
claimant attends English as a second language
classes five days per week for two and
one-half hours. These classes in particular
demonstrate the claimant can sit for longer
than she indicates and is capable of
concentrating and remembering information.
Tr. 15.
Plaintiff contends the ALJ has overstated Plaintiff’s
capacity to perform activities of daily living.
For example,
even though Plaintiff lives with her two sons aged 18 and 19, the
record does not reflect she “cares” for them.
record reflects her sons care for Plaintiff.
In fact, the
Tr. 93-95, 109-11.
Moreover, Plaintiff states the record shows she only goes
shopping one to two times per month with the help of her sons.
Tr. 94-95, 110.
In addition, Plaintiff points out that despite
the ALJ’s reliance on her attendance at ESL classes as evidence
of her ability to concentrate and to remember, she has been
attending those classes for several years and still cannot
communicate in English.
Plaintiff also maintains her ability to perform some
daily activities does not establish she has the ability to
perform in a work setting nor do such activities preclude a
finding of disability.
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See Reddick v. Chater,
157 F.3d 715, 722
(9th Cir. 1998)(“Several courts, including this one, have
recognized that disability claimants should not be penalized for
attempting to lead normal lives in the face of their
limitations.”).
Moreover,
Social Security regulations do not
require claimants to demonstrate a "complete inability to work"
to be eligible for benefits.
Smolen,
80 F.3d at 1284 n.7.
Claimants must show an inability to work on a sustained basis.
20 C.F.R. §§ 404.1512(a), 416.912(a).
The Court concludes Plaintiff’s reported activities of
daily living are not inconsistent with Plaintiff’s stated
inability to perform a full-time job and do not provide a clear
and convincing basis on which to discredit Plaintiff’s reports of
her subjective symptoms.
2.
Inconsistent Statements.
The ALJ also finds Plaintiff made statements that are
inconsistent with the record.
The ALJ points to Plaintiff’s
statement that a specialist had advised Plaintiff against having
back surgery due to the risks presented, but the ALJ notes there
is not any evidence of Plaintiff’s surgical evaluation in the
record.
Tr. 15-16.
As Plaintiff states, however, the record
reflects Plaintiff’s surgical evaluation likely took place in
Russia prior to Plaintiff’s immigration to the United States, and
the record is not complete as to Plaintiff’s medical history
before her arrival in the United States.
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OPINION AND ORDER
See Tr. 281
(Dr. DeFontes, Plaintiff’s treating physician, notes Plaintiff
continues “to believe what she was told about being disabled and
about needing surgery possibly (when living in Russia) on her
lower back.”); Tr. 414-15 (Plaintiff received disability in
Russia).
In any event, the fact that Plaintiff’s medical records
from Russia are not in this record does not give rise to any
inference that Plaintiff is not honestly recounting the surgical
consultation in Russia.
The ALJ also states Plaintiff “has not reported
frequent fainting episodes to her physicians despite the numerous
visits for various reasons.”
Tr. 16.
The record, however,
reflects Plaintiff repeatedly reported dizziness and feeling
faint.
Tr. 181, 262, 266, 285-286.
Although the ALJ contends
there is a difference between Plaintiff’s reports of “feeling
faint” versus actual fainting, the Court notes Plaintiff must
overcome her language barrier to report her symptoms, and, in any
event, the Court does not find the ALJ’s distinction persuasive.
Ultimately the Court does not find persuasive the ALJ’s
reasons for finding Plaintiff’s statements are inconsistent with
the record nor that those statements constitute clear and
convincing bases on which to discredit Plaintiff’s testimony.
3.
Symptoms Adequately Controlled by Treatment.
The ALJ also concludes Plaintiff’s symptoms are
adequately controlled by medications and treatment.
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OPINION AND ORDER
Tr. 16.
The
ALJ refers to a physician’s advice to Plaintiff to increase her
activity in response to Plaintiff’s chest pain.
Tr. 16.
The
fact that Plaintiff received such advice, however, does not
reflect Plaintiff’s chest pain is under control or has been
adequately treated.
In addition, the ALJ notes injections and a
diuretic provided Plaintiff with relief from her knee pain.
Tr. 16.
The ALJ, however, does not explain how these treatments
undermine Plaintiff’s complaints of pain nor how such relief
would make Plaintiff able to perform work-related functions.
Accordingly, the Court concludes the ALJ erred when he
discredited Plaintiff’s testimony concerning her subjective
symptoms without providing legally sufficient reasons supported
by the record for doing so.
II.
Remand.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
1179 (9th Cir. 2000).
Harman v. Apfel, 211 F.3d 1172,
When "the record has been fully developed
and further administrative proceedings would serve no useful
purpose, the district court should remand for an immediate award
of benefits."
Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.
2004).
The decision whether to remand this case for further
proceedings or for the payment of benefits is a decision within
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the discretion of the court.
Harman, 211 F.3d 1178.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
Id. at 1179.
The court may
"direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose."
Smolen, 80 F.3d at 1292.
The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
Harman, 211 F.3d at 1178.
The
Court should grant an immediate award of benefits when:
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting . . .
evidence, (2) there are no outstanding issues
that must be resolved before a determination
of disability can be made, and (3) it is
clear from the record that the ALJ would be
required to find the claimant disabled were
such evidence credited.
Id.
The second and third prongs of the test often merge into a
single question:
Whether the ALJ would have to award benefits if
the case were remanded for further proceedings.
Id. at 1178 n.2.
Plaintiff maintains the Court should remand this matter for
the immediate calculation and award of benefits based on the
errors committed by the ALJ.
To support her position, Plaintiff
points out that the VE attested “a majority” of the smallproducts assembly jobs (8,900 locally and 288,000 nationally)
would not be sustainable by a person with Plaintiff’s RFC.
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OPINION AND ORDER
Moreover, the VE appears to testify that fewer than 1,000 smallproducts assembly jobs would actually be available to Plaintiff.
Courts, however, have not established any particular bright line
as to the number of jobs that constitute a “significant number”
at Step Five.
See, e.g., Barker v. Sec’y of Health and Human
Servs., 882 F.2d 1474, 1478-79 (9th Cir. 1989)(citing several
decisions in which courts found under 1,000 available jobs was a
significant number); Gurule v. Astrue, No. 2:11–CV–96, 2012 WL
160691, at *4-5 (D. Vt. May 8, 2012)(citing numerous decisions in
which circuit and district courts found 175 to 1,000 local or
regional jobs was a significant number).
Thus, the testimony of
the VE does not clearly establish the Commissioner failed to meet
his burden at Step Five.
The Court notes Plaintiff also contends she is disabled
based on her statements to SSA during the application process
concerning her physical limitations such as her need for
assistance with using the restroom and taking a bath.
This
record, however, does not contain any functional capacity
assessment by her physicians and, as noted, reflects Plaintiff is
able to attend classes for 2.5 hours each day and to maintain
appointments with physicians and therapists, which entails the
physical ability to sit and to stand to some extent.
Moreover,
none of Plaintiff’s treating physicians or therapists find
Plaintiff is unable to move from a sitting to a standing
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position.
Thus, this record is not conclusive as to the specific
nature of Plaintiff’s physical limitations and as to whether such
limitations, alone or in combination with her other impairments,
render Plaintiff unable to perform even sedentary work.
On this record the Court concludes, in the exercise of its
discretion, that further administrative proceedings are
necessary.
Accordingly, the Court GRANTS the Commissioner’s
Motion and remands for further proceedings to permit the ALJ to
(1) reevaluate the medical opinion of Dr. DeFontes regarding
Plaintiff’s chronic conditions; (2) consider further Plaintiff’s
mental impairments of post-traumatic stress disorder and auditory
hallucinations and provide a rationale for the Part B criteria
for mental impairments; (3) consider properly the lay-witness
statements from Gafur Kambarov, Plaintiff’s son; (4) consider
further Plaintiff’s obesity under SSR 02-1p; (5) update the
record to include a Psychiatric Review Technique form and/or
psychiatric consultative examination; (6) reassess Plaintiff’s
RFC; and (7) if necessary, consider further at Step Five, with
the assistance of additional testimony by a VE, whether Plaintiff
is able to perform other work in the national economy in
accordance with SSR 00-4p.
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OPINION AND ORDER
CONCLUSION
For these reasons, the Court REVERSES the Commissioner's
decision and GRANTS the Commissioner's Motion (#11) to Remand
pursuant to sentence four of 42 U.S.C. § 405(g) for further
administrative proceedings consistent with this Opinion and
Order.
IT IS SO ORDERED.
DATED this 13th day of June, 2012.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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