Desanto v. Commissioner Social Security Administration
Filing
21
OPINION AND ORDER. For these reasons, the court REVERSES the Commissioner's final decision denying plaintiff's claim for DIB and SSI benefits to plaintiff and REMANDS this matter to the Commissioner for further proceedings as set forth above. IT IS SO ORDERED. Signed on 04/18/2012 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID J. DESANTO
Plaintiff,
v.
MICHAEL ASTRUE,
Commissioner of Social
Security,
Defendant.
RICHARD F. MCGINTY
McGinty & Belcher
P.O. Box 12806
Salem, OR 97301
(503) 371-9636
Attorneys for Plaintiff
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
1 - OPINION AND ORDER
3:11-CV-06075-MA
OPINION AND ORDER
BENJAMIN J. GROEBNER
Special Assistant united States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 MS/901
Seattle, WA 98104-7075
(206) 615-2494
Attorneys for Defendant
MARSH, Judge.
Plaintiff seeks judicial review of the Commissioner's final
decision denying his December 19, 2006, application for
disability insurance benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. §§ 401-34 and supplemental security
income benefits (SSI) under Title XVI of the Social Security Act,
42 U.S.C. §§ 1381-83f.
Plaintiff claims he has been disabled since November 15,
2005, because of emphysema, heart disease, diabetes, high blood
pressure, and hepatitis C.
His claim was denied initially and on
reconsideration.
On December 1, 2009, the Administrative Law Judge (ALJ)
held an evidentiary hearing and on December 18, 2009, issued a
Notice of Decision finding that although plaintiff has severe
impairments related to coronary artery disease, chronic
obstructive pulmonary disease (COPD), and obesity, he is capable
of performing his past relevant work as a retail sales person and
locksmith.
2
Accordingly, the ALJ found plaintiff is not disabled.
- OPINION AND ORDER
On January 28, 2011, the Appeals Council denied plaintiff's
request for review.
The ALJ's decision, therefore, is the
Commissioner's final decision for purposes of judicial review.
Plaintiff seeks an Order reversing the Commissioner's final
decision and remanding the case either for the immediate payment
of benefits or to obtain further evidence.
For the following reasons, the court REVERSES the final
decision of the Commissioner and REMANDS this action to the
Commissioner for further proceedings as set forth below.
THE ALJ'S FINDINGS
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled.
Bowen v.
Yuckert, 482 U.S.137, 140 (1987).
§
See also 20 C.F.R.
416.920.
Plaintiff bears the burden of proof at Steps One through Four.
See Tackett v. Apfel, 180 F.3d 1094, 1098 (9 th Cir. 1999).
Each
step is potentially dispositive.
At Step One, the ALJ found plaintiff had not engaged in
substantial gainful activity since November 15, 2005.
At Step Two, the ALJ found plaintiff has severe impairments,
including coronary artery disease, COPD, and obesity.
§§
20 C.F.R.
404.1520(c) and 416.920(c) (an impairment or combination of
impairments is severe if it significantly limits an individual's
physical or mental ability to do basic work activities) .
3
- OPINION AND ORDER
At Step Three, the ALJ found plaintiff's impairments do
not meet or equal any listed impairment.
He has the residual
functional capacity (RFC) to perform light work that involves
lifting and carrying 20 lbs occasionally and 10 lbs frequently,
standing walking, and sitting, for up to 6 hours in an 8-hour
\vork-day, with occasional climbing, balancing, kneeling,
crouching, and crawling.
At Step Four, the ALJ found that, in light of his RFC,
plaintiff is able to perform his past light semi-skilled work
as a retail salesperson and light skilled work as a locksmith.
Accordingly, the ALJ found plaintiff is not disabled and,
therefore, he is not entitled to DIB or SSI.
LEGAL STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Roberts v. Shalala, 66 F.3d 179, 182
(9 th Cir. 1995), cert. denied, 517 U.S. 1122 (1996).
To meet
this burden, the claimant must demonstrate the 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).
The court must affirm the Commissioner's decision if the ALJ
applied proper legal standards and made findings supported by
4 - OPINION AND ORDER
sUbstantial evidence in the entire record.
42 U.S.C.
§
405(g).
"Substantial evidence" is "more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion."
Andrews v. Shalala, 53 F.3d 1035, 1039 (9 ili Cir.
1995) .
The court must weigh all of the evidence whether it supports
or detracts from the Commissioner's decision.
Heckler, 807 F.2d 771, 772 (9 th Cir. 1986).
Martinez v.
The Commissioner's
decision must be upheld, however, even if the "evidence is
susceptible to more than one rational interpretation."
Andrews,
53 F.3d at 1039-40.
The Commissioner bears the burden of developing the record.
DeLorme v. Sullivan, 924 F.2d 841, 849 (9 th Cir. 1991).
The duty
to further develop the record, however, is triggered only when
there is ambiguous evidence or when the record is inadequate to
allow for proper evaluation of the evidence.
Mayes v. Massanari,
276 F.3d 453, 459-60 (9 th Cir. 2001).
The decision whether to remand for further proceedings or
for the immediate payment of benefits is within the discretion of
the court.
Harman v. Apfel, 211 F.3d 1172,1178 (9 th Cir.),
cert. denied, 121 S. Ct. 628 (2000).
"If additional proceedings
can remedy defects in the original administrative proceeding, a
5
- OPINION AND ORDER
social security case should be remanded."
Lewin v. Schweiker,
654 F.2d 631, 635 (9'h Cir. 1981).
DISCUSSION
Plaintiff asserts the ALJ erred by failing (1) to credit
plaintiff's testimony regarding the severity and limiting effects
of his impairments,
wife,
(2) to credit lay evidence of plaintiff's
(3) to credit treating physician Dan Alkadi, D.O.'s opinion
regarding the severity of plaintiff's impairments;
(4) to find
plaintiff's COPD meets the requirements of Listing 3.02(C) (1),
(5) to find Plaintiff's sleep apnea is a severe impairment;
and (6) to include all of plaintiff's limitations in his RFC
determination.
EVIDENCE
Plaintiff's Testimony.
On the date of the hearing plaintiff was 50 years old.
has a 10'h grade education.
He
He served in the army as a cargo
specialist and was honorably discharged.
Plaintiff last worked at a Wal-Mart store in November 2005
in the automotive department stocking, mounting and balancing
tires, changing oil, and washing cars.
He suffered a heart
attack at that time and has not worked since then.
heart attack, plaintiff has had two stents inserted.
condition is plaintiff's primary concern.
6
- OPINION AND ORDER
Since the
His heart
Since he left Wal-Mart, plaintiff has done some locksmith
work that lasted for three-four weeks and he worked in the woods
loading wood into a vehicle that lasted for two weeks.
The jobs
ended because plaintiff could not adequately perform the tasks.
If plaintiff is working too fast or lifting too much, he
feels pain in his back, and his elbows and hands will tingle, as
they did when he had his first heart attack.
In the past he has
retained water in his legs causing him to stand up or elevate
them on and off throughout the day.
After sitting for 15-30
minutes, he needs to raise his legs or stand and walk around.
Plaintiff guessed he would have difficulty loading 20 Ib
logs onto a truck.
He would probably be able to tolerate a work
environment where he was required to sit for an hour at a time if
he was able to move around for 10 minutes during that hour.
Physical activity, including walking more than one or two
blocks, brings on shortness of breath, causing plaintiff to sit
down and rest.
on his side.
He also has difficulty breathing unless he lays
He also becomes breathless when he talks.
Plaintiff does not sleep well because of restless leg
syndrome, causing constant aching in his knees and upper hips.
On those nights when he does sleep well, plaintiff feels good in
the morning and is able to get "through a majority of the day"
until he relaxes, "when everything just
7
- OPINION AND ORDER
. hits [him]."
He
has five bad days for every good day.
On the good days, he might
be able to work, but not consistently, because of shortness of
breath.
Lay Testimony.
Plaintiff's daughter testified at the hearing.
Plaintiff
has been living with her since shortly after he had his second
heart attack in 2005.
He had an earlier heart attack in 2001
which did not prevent him from going back to work.
She notices plaintiff suffers pain and discomfort on a daily
basis, which cause him to move and change positions constantly,
whether he is sitting or standing.
For instance, he is able to
cook for about 20 minutes before sitting down and resting.
He is
also able to walk for approximately one block before he needs to
rest and catch his breath.
It takes him approximately 15-20
minutes to walk that distance.
Occasionally, plaintiff stops
breathing briefly when he is sleeping.
Relevant Medical Treatment Evidence.
St. Charles Medical Center.
In January 2005, plaintiff was admitted to the hospital
complaining of increasing chest pain.
coronary artery disease.
He had a history of
He was diagnosed with a myocardial
infarction (heart attack), with questionable pneumonia and
diabetes.
8
He underwent a cardiac catheterization.
- OPINION AND ORDER
Samaritan North Lincoln Hospital.
In May 2006, plaintiff complained of left foot pain.
His
history was "significant for hypertension, coronary artery
disease, and diabetes.
He advised the treating physician,
however, he was "too lazy" to visit the VA doctor to obtain
refills of medications prescribed for these conditions.
He was
strongly advised not to run out of those medications.
In June 2006, plaintiff complained of coughing up blood and
not feeling well.
Chest x-rays showed "bibasilar infiltrates
consistent with congestive heart failure or interstitial
inflammatory process."
Veterans Administration Center.
In December 2006, a Veterans Administration (VA) physician
reviewed a sleep study performed on plaintiff and advised him he
has "severe obstructive sleep apnea."
The physician noted
plaintiff "responded well" to a continuous positive airway
pressure (CPAP) mask, and urged him to use it every night.
In April 2007, following pulmonary functioning testing,
plaintiff's DLCO (carbon monoxide diffusing capacity) reading
was 39%.
The VA physician who examined plaintiff noted that
reading without comment, "stressed the need for CPAP treatment,"
and diagnosed mild COPD with chronic bronchitis, obstructive
sleep apnea, and congestive heart failure.
9 - OPINION AND ORDER
In March 2008, VA treating physician Dan Alkadi, M.D., in
responding to a questionnaire presented by plaintiff's attorney,
checked off that plaintiff suffered from Type 2 Diabetes, Sleep
Apnea, Coronary Artery Disease, and COPD.
He also checked off
that plaintiff's impairments related to coronary artery disease
and COPD affected his ability to perform work-related physical
activities.
Dr. Alkadi, however, was unable to opine whether
those impairments affected plaintiff's ability to "independently,
appropriately, effectively, and on a sustained basis in a
competitive work environment, perform non-exertional work
requirements."
(Emphasis in original) .
Dr. Alkadi, however, also opined plaintiff would need "to
take. more frequent and longer breaks than those found in a
traditional eight-hour work shift," i.e., "1 in the first 4 hours
and 1 in the second 4 hours."
Plaintiff's "job performance will
depend mostly on his symptoms during any given day."
In November 2008, x-rays of plaintiff's chest revealed his
heart was enlarged, with pulmonary vascular congestion, and
evidence of probable congestive heart failure.
In April 2009, plaintiff was treated for multiple disorders,
including diabetes, morbid obesity, coronary artery disease,
COPD, smoking, high cholesterol, and hepatitis C.
to stop smoking.
He was urged
He had difficulty using a CPAP mask to help him
sleep at night.
10- OPINION AND ORDER
In May 2009, plaintiff was still having difficulty using the
CPAP mask because he had difficulty breathing through the nose.
In July 2009, plaintiff was not using inhalers or his CPAP
mask routinely as recommended to assist his breathing.
He was
encouraged to do so and to lose weight.
Medical Consultation Evidence.
Neal E. Berner, M.D. - Family Practitioner.
Sharon B. Eder, M.D. - Internal Medicine.
Dr. Berner reviewed plaintiff's medical records and, based
on those records, concluded plaintiff was only partially credible
in describing his functional limitations because the objective
medical evidence reflects his symptoms improved with treatment
and when he took his medications as prescribed.
recommended
Dr. Berner
plaintiff lose weight and exercise more.
He opined
plaintiff has the RFC to balance frequently and climb, stoop,
kneel, crouch, and crawl occasionally.
With these physical
capacities, plaintiff should be able to lift 20 lbs occasionally
and 10 lbs frequently, stand, walk, and/or sit for up to six
hours in an 8-hour workday, and push/pull up to 10 lbs on an
unlimited basis.
Dr. Eder concurred in that assessment.
Vocational Expert (VEl Testimony.
The VE opined if plaintiff is capable of lifting and
carrying 20 lbs occasionally and 10 lbs frequently, standing,
walking and sitting for six hours, and stooping, kneeling,
11- OPINION AND ORDER
crouching, or crawling occasionally, he would be able to perform
his past relevant work as a locksmith and retail sales-person.
He would not be able to perform the latter job, however, if he
was required to stock shelves or needed more than one break in
the morning and one in the afternoon.
ANALYSIS
1.
Rejection of P1aintiff's Testimony.
Plaintiff contends the ALJ failed to give clear and
convincing reasons for not crediting his testimony regarding
the severity of his physical impairments.
The court agrees.
A claimant who alleges disability based on subjective
symptoms "must produce objective medical evidence of an
underlying impairment 'which could reasonably be expected to
produce the pain or other symptoms alleged.
Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)
§
423 (d) (5) (A)
(1988)).
1407-08 (9th Cir. 1986).
• 11
Bunnell v .
(quoting 42 U.S.C.
See also Cotton v. Bowen, 799 F.2d 1403,
The claimant need not produce objective
medical evidence of the symptoms or their severity.
Smolen v.
Chater, 80 F.3d 1276, 1281-82 (9th Cir. 1996).
If the claimant produces objective evidence that underlying
impairments could cause the pain complained of and there is not
any affirmative evidence to suggest the claimant is malingering,
the ALJ is required to give clear and convincing reasons for
12 - OPINION AND ORDER
rejecting plaintiff's testimony regarding the severity of his
symptoms.
Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).
See also Smolen, 80 F.3d at 1283.
To determine whether the
claimant's subjective testimony is credible, the ALJ may rely on
(1) ordinary techniques of credibility evaluation such as the
claimant's reputation for lying, prior inconsistent statements
concerning the symptoms, and other testimony by the claimant that
appears less than candid;
(2) an unexplained or inadequately
explained failure to seek treatment or to follow a prescribed
course of treatment; and (3) the claimant's daily activities.
Id. at 1284 (citations omitted).
Here, there is no evidence that plaintiff is malingering.
Moreover, the ALJ acknowledged plaintiff's physical impairments
could reasonably be expected to cause some of his physical
symptoms.
The ALJ, however, concluded plaintiff's self-described
daily activities, including taking care of his personal needs,
preparing meals, doing light housekeeping, laundry, taking out
the garbage, going for walks, handling money, engaging in social
activities, occasionally hunting, fishing, and lifting 20 lbs,
are "somewhat greater" than he has reported.
The ALJ also concluded the medical evidence reflected that
plaintiff's coronary artery disease was stable and controlled by
medication, and his COPD was mild.
13 - OPINION AND ORDER
The ALJ referred to findings
relating to these conditions as "minimal."
In addition, in
determining that the medical evidence did not support a finding
of disability, the ALJ relied on the opinion of consulting
physician Neal Berner, M.D., who noted medical records reflected
plaintiff's symptoms improved when he took his prescriptions.
On this record, the court finds the ALJ's reasons for
discrediting plaintiff's testimony are not clear or convincing.
The ALJ purportedly relied on plaintiff's daily activities
set forth in plaintiff's Adult Function Report to draw the
conclusion that plaintiff is more active than he suggests in his
testimony.
The ALJ, however, ignored qualifiers in that report
that the meals plaintiff prepares are sandwiches and frozen
dinners that are quickly prepared because plaintiff cannot stand
long enough to prepare a full meal, that it takes him all day to
complete twice weekly house and yard work because he needs to
take breaks, that he can only walk one-half block before his leg,
knees, and feet "swell and ache," and that he becomes short of
breath when he climbs stairs.
The ALJ also wrote that plaintiff
hunts and fishes occasionally and "maybe" lifts 20 Ibs.
The ALJ,
however, ignored Plaintiff's testimony that he no longer hunted
and fished and he would have difficulty loading 20 Ib logs on a
truck.
Nevertheless, the Commissioner contends the record supports
the ALJ's finding that plaintiff is able to do more strenuous
14 - OPINION AND ORDER
physical activity than he claims, based on his work in the woods
for two weeks and his work as a locksmith.
The Commissioner,
however, ignored plaintiff's testimony that he did those jobs to
make money to survive and, after a short time, was unable
physically to continue doing either of them.
On this record, the court concludes the Commissioner did not
give clear and convincing reasons for not crediting plaintiff's
testimony regarding the severity of his impairments.
There is
abundant medical evidence to support plaintiff's diagnoses of
congestive heart failure resulting in coronary artery disease
and COPD that significantly limit his daily activities.
The court, however, also notes VA medical records reflect
plaintiff did not follow his physicians' advice to lose weight,
use inhalers, and routinely use a CPAP mask to assist his
breathing while sleeping.
The ALJ did not address this issue in
making his credibility determination.
2.
Rejection of Lay Witness Evidence.
Plaintiff contends the ALJ erred by failing to give germane
reasons for not fully crediting the lay evidence offered by
plaintiff's daughter regarding his physical capabilities.
Lay witness evidence regarding a claimant's symptoms "is
competent evidence that an ALJ must take into account" unless he
"expressly determines to disregard such testimony and gives
15- OPINION AND ORDER
reasons germane to each witness for doing so."
236 F.3d 503, 511
(9~
Lewis v. Apfel,
Cir. 2001).
The ALJ found plaintiff's daughter's evidence regarding
plaintiff's physical limitations and difficulties, which included
plaintiff's difficulty sleeping at night, catching his breath,
and needing to rest after short periods of activity, was not
credible for the same reasons plaintiff's testimony on the same
subject matter was not credible.
The court concludes the ALJ's reasons for rejecting the
evidence presented by plaintiff's daughter are not germane for
the same reasons the ALJ erred in rejecting plaintiff's testimony
regarding the severity of his impairments.
3.
Treating Physician Dan Alkadi, M.D.,'s Opinion.
The ALJ adopted the recommendations of consultant physicians
over the opinion of Dr. Alkadi, who treated plaintiff, because
Dr. Alkadi
~did
not indicate any clinical findings to support
his conclusion" that plaintiff's ability to work
mostly on his symptoms during any given day."
ALJ reasoned that Dr. Alkadi's
[plaintiff] is disabled," and
~assessment
~did
~will
depend
Moreover, the
did not indicate
not preclude work at the light
level" subject to certain postural limitations.
Generally, the opinions of treating physicians are given
greater weight than those of other physicians, because treating
16- OPINION AND ORDER
physicians are employed to cure and therefore have a greater
opportunity to know and observe the claimant.
Orn v. Astrue, 495
F.3d 625, 631 (9th Cir.2007); Smolen v. Chater, 80 F.3d 1273,
1285 (9th Cir.1996).
The uncontradicted opinion of a treating
physician is entitled to controlling weight, and may be rejected
only for clear and convincing reasons supported by substantial
evidence in the record.
(9th Cir.1996).
See Lester v. Chater, 81 F.3d 821, 831
Even if a treating physician's opinion is
contradicted by other substantial evidence, the physician's
opinion is still entitled to deference and may be rejected only
for specific and legitimate reasons supported by substantial
evidence. Lester, 81 F.3d at 830; Orn, 495 F.3d at 6313.
Contrary to the ALJ's interpretation of his statements,
Dr. Alkadi unequivocally opined that plaintiff would need "to
take more frequent and longer breaks than those found in a
traditional eight-hour work shift."
On this record, the court concludes the ALJ did not give
specific and legitimate reasons for crediting the evidence of
consulting physicians as to plaintiff's ability to engage in
substantial gainful activity, and not crediting the opinion of
Dr. Alkadi, who treated plaintiff.
The court is not convinced by
the Commissioner's argument that Dr. Alkadi's opinion was
properly rejected because Dr. Alkadi did not explain the basis
17- OPINION AND ORDER
for his opinion.
It is true that Dr. Alkadi's ultimate opinion
was "brief and conclusory," i.e., provided in a questionnaire.
Nevertheless, it was based on his personal examination and
treatment of plaintiff over a significant period of time unlike
the opinions of the consulting physicians who never examined
plaintiff.
The court, however, also notes Dr. Alkadi did not address
plaintiff's failure to follow advice to use inhalers and a CPAP
machine to ameliorate his COPD symptoms, and to lose weight.
The
court is unclear whether Dr. Alkadi would stand by his opinion
that plaintiff would need "to take more frequent and longer
breaks than those found in a traditional eight-hour work shift"
if plaintiff had followed his doctors' advice.
4.
Plaintiff's COPD - Listing 3.02(C) (1).
Plaintiff contends he is disabled as a matter of law because
his COPD impairment meets the requirements of Listing 3.02{C) (I).
On April 13, 2007, plaintiff's DLCO (carbon monoxide
diffusing capacity) reading was 39 percent.
Under Listing
3.02{C) (I), a claimant with a DLCO reading of 40% or less is
considered disabled.
The attending VA physician at the time
noted that reading without comment and "stressed the need for
CPAP treatment."
Nevertheless, he diagnosed only "mild COPD
with chronic bronchitis, obstructive sleep apnea, and congestive
heart failure."
18 - OPINION AND ORDER
The Commissioner asserts other OLCO readings were not less
than 40 percent.
See e.g., a July 5, 2006 report reflecting a
OLCO reading of 49 percent.
The court concludes a single OLCO reading under 40%, not
replicated in further testing, is insufficient to establish that
plaintiff's COPO meets the requirements of a Listed Impairment.
The court, however, notes a second OLCO reading of 49%, while
not meeting a Listing requirement, as well as the medical records
as a whole, suggests plaintiff does indeed have a significant
pulmonary insufficiency.
Nevertheless, as set forth above, there is an issue as to
whether plaintiff failed to follow his doctors' advice in order
to ameliorate his capo symptoms.
5.
Plaintiff's Sleep Apnea.
Plaintiff contends the ALJ erred in not finding his sleep
apnea is a severe impairment.
The ALJ pointed to medical
evidence that plaintiff responded well when he used a CPAP
breathing mask and that plaintiff's sleep would improve if he
lost weight and quit smoking.
The record, however, reflects
plaintiff purported to have difficulty adjusting to and using the
CPAP machine and, as of May 2009, had stopped using it.
On this record, the Court concludes the ALJ did not err in
finding plaintiff's sleep apnea is not a severe impairment in
19- OPINION AND ORDER
light of the clear evidence that plaintiff did not fully comply
with his doctors' treatment recommendations, which would have at
least ameliorated that condition.
6.
Plaintiff's RFC.
For each of the reasons set forth above, and in particular,
after crediting Dr. Alkadi's opinion, the court concludes the ALJ
erred in finding plaintiff has the RFC to perform light work that
would include lifting and carrying 20 lbs occasionally and 10 lbs
frequently, standing and/or walking for six hours in an eighthour workday, with occasional climbing, stooping, kneeling,
crouching, and crawling.
Nevertheless, the Court also concludes issues relating to
Plaintiff's failure to comply his doctors' recommendations
regarding the use of inhalers and CPAP mask, and the need to
lose weight, calls into question Dr. Alkadi's opinion regarding
Plaintiff's need to take breaks during the course of the workday,
if plaintiff were to comply with those treatment recommendations.
For that reason, the Court concludes a remand of this matter
for further proceedings is appropriate to afford Dr. Alkadi the
opportunity to address whether Plaintiff's compliance with his
doctors' treatment recommendations regarding the use of inhalers,
the CPAP machine, and loss of weight, would enable him to work
without the need to take more frequent and longer breaks than
those found in a traditional eight-hour work shift.
20- OPINION AND ORDER
CONCLUSION
For these reasons, the court REVERSES the Commissioner's
final decision denying plaintiff's claim for DIB and SSI benefits
to plaintiff and REMANDS this matter to the Commissioner for
further proceedings as set forth above.
IT IS SO ORDERED.
DATED this~)7day of April, 2012.
MALCOLM F. MARSH
United States District Judge
21 - OPINION AND ORDER
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