Moon v. Commissioner Social Security Administration
Filing
17
Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 41 U.S.C. § 405(g) for further administrative proceedings consistent with this Opinion and Order. Signed on 7/22/21 by Judge Anna J. Brown. See attached 19 page Opinion and Order for full text. (bb)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JEREMY P. M.,1
Plaintiff,
3:20-cv-01042-BR
OPINION AND ORDER
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
KEVIN KERR
Kerr, Robichaux & Carroll
P.O. Box 14490
Portland, OR 97293
(503) 255-9092
Attorneys for Plaintiff
SCOTT ERIK ASPHAUG
Acting United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
In the interest of privacy this Court uses only the first
name and the initial of the last name of the nongovernmental
party in this case. Where applicable, this Court uses the same
designation for the nongovernmental party's immediate family
member.
1
1 - OPINION AND ORDER
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MICHAEL W. PILE
Acting Regional Chief Counsel
KATHERINE B. WATSON
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2139
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Jeremy P. M. seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which the Commissioner denied
Plaintiff's application for Disability Insurance Benefits (DIB)
under Title II of the Social Security Act.
This Court has
jurisdiction to review the Commissioner's final decision
pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court REVERSES the
decision of the Commissioner and REMANDS this matter for further
proceedings consistent with this Opinion.
ADMINISTRATIVE HISTORY
On July 11, 2017, Plaintiff protectively filed his
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application for DIB benefits.
Filed 07/22/21
Tr. 15, 134.2
disability onset date of December 31, 2016.
Page 3 of 19
Plaintiff alleges a
Tr. 15, 134.
Plaintiff=s application was denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on April 5, 2019.
Tr. 29-45.
Plaintiff and a
vocational expert (VE) testified at the hearing.
Plaintiff was
represented by an attorney at the hearing.
On May 14, 2019, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Tr. 15-28.
Appeals Council.
Plaintiff requested review by the
On April 23, 2020, the Appeals Council denied
Plaintiff's request to review the ALJ's decision, and the ALJ's
decision became the final decision of the Commissioner.
3.
Tr. 1-
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
On June 29, 2020, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner's decision.
BACKGROUND
Plaintiff was born on September 19, 1976.
Tr. 22, 134.
Citations to the official Transcript of Record (#9) filed
by the Commissioner on January 28, 2021, are referred to as
"Tr."
2
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Plaintiff was 40 years old on his alleged disability onset date.
Tr. 22.
Plaintiff has at least a high-school education.
Tr. 22.
Plaintiff has past work as a warehouse forklift-driver.
Tr. 160.
Plaintiff alleges disability due to fibromyalgia, PostTraumatic Stress Syndrome (PTSD), tinnitus, carpal-tunnel
syndrome, hearing loss, depression, insomnia, and anxiety.
Tr. 48.
Except as 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. 19-22.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110
To meet this burden a claimant must
demonstrate his 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."
U.S.C. § 423(d)(1)(A).
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42
The ALJ must develop the record when
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there is ambiguous evidence or when the record is inadequate to
allow for proper evaluation of the evidence.
McLeod v. Astrue,
640 F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari,
276 F.3d 453, 459B60 (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.
U.S.C. § 405(g).
42
See also Brewes v. Comm'r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
"relevant evidence that a reasonable mind might accept as
adequate to support a conclusion."
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
"It is more than a mere scintilla [of
evidence] but less than a preponderance."
Id. (citing
Valentine, 574 F.3d at 690).
The ALJ is responsible for evaluating a claimant's
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
(9th Cir. 2009).
Vasquez v. Astrue, 572 F.3d 586, 591
The court must weigh all of the evidence
whether it supports or detracts from the Commissioner's
decision.
Cir. 2008).
Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th
Even when the evidence is susceptible to more than
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one rational interpretation, the court must uphold the
Commissioner's findings if they are supported by inferences
reasonably drawn from the record.
1047, 1051 (9th Cir. 2012).
Ludwig v. Astrue, 681 F.3d
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
I.
The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the
Commissioner determines the claimant is engaged in substantial
gainful activity (SGA).
20 C.F.R. § 404.1520(a)(4)(i).
See
also Keyser v. Comm'r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.
2011).
At Step Two the claimant is not disabled if the
Commissioner determines the claimant does not have any medically
severe impairment or combination of impairments.
§ 404.1509, 404.1520(a)(4)(ii).
20 C.F.R.
See also Keyser, 648 F.3d at
724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
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severe as to preclude substantial gainful activity.
§ 404.1520(a)(4)(iii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
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.
§ 404.1520(e).
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."
SSR 96-8p, at *1.
In other
words, the Social Security Act does not require complete
incapacity to be disabled.
Taylor v. Comm'r of Soc. Sec.
Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v.
Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.
20 C.F.R. § 404.1520(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, he must determine
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whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 404.1520(a)(4)(v).
Keyser, 648 F.3d at 724-25.
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Lockwood v.
Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony
of a VE or by reference to the Medical-Vocational Guidelines (or
the grids) 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.
20 C.F.R. § 404.1520(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since December 31, 2016,
Plaintiff's alleged disability onset date.
Tr. 17.
At Step Two the ALJ found Plaintiff has the severe
impairment of fibromyalgia.
Tr. 17.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.
Tr. 19.
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The ALJ found Plaintiff has the RFC to
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perform medium work and that Plaintiff would miss one workday
per month.
Tr. 19.
At Step Four the ALJ concluded Plaintiff's past relevant
work was "not material," and, therefore, the ALJ did not make
any finding regarding Plaintiff's ability to perform his past
relevant work.
Tr. 22.
At Step Five the ALJ found Plaintiff can perform other jobs
that exist in the national economy such as hand-packager,
machine-packager, and store-laborer.
Tr. 22-23.
the ALJ found Plaintiff is not disabled.
Accordingly,
Tr. 23-24.
DISCUSSION
Plaintiff contends the ALJ erred when he discounted the
medical opinion of Leslie Davidoff, M.D., Plaintiff's treating
physician, regarding Plaintiff's limitations.
I.
Standards
Because Plaintiff filed his application after
March 27, 2017, new regulations apply to the ALJ's evaluation of
the medical opinion evidence.
Revisions to Rules Regarding the
Evaluation of Med. Evid., 2017 WL 168819, 82 Fed. Reg. 5844, at
5867-68 (Jan. 18, 2017).
See also Linda F. v. Saul, No. C20-
5076-MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020).
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The
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new regulations provide the Commissioner "'will not defer or
give any specific evidentiary weight, including controlling
weight, to any medical opinion[s] or prior administrative
finding(s)[.]'"
Id., at *2 (quoting 20 C.F.R. § 404.1520c(a)).
“A prior administrative medical finding is a finding, other than
the ultimate determination about [disability], about a medical
issue made by . . . agency medical and psychological consultants
at a prior level of review . . . in [a] claim based on their
review of the evidence.”
20 C.F.R. § 404.1513(a)(5).
In
addition, the new regulations rescinded SSR 06-03p in which
the Social Security Administration “explained how [it]
considers opinions and other evidence from sources who are not
acceptable medical sources. . . .
[this] polic[y]. . . .
The [new] rules revised
For example, in claims filed on or after
March 27, 2017, the final rules state that all medical sources,
not just acceptable medical sources, can make evidence that [it]
categorize[s] and consider[s] as medical opinions.”
Rescission
of Soc. Sec. Rulings 96-2p, 96-5p, and 06-3p, SSR 96-2P 2017,
WL 3928298, at *1 (S.S.A. Mar. 27, 2017).
In other words, the
Commissioner must consider all medical opinions and "evaluate
their persuasiveness" based on "supportability" and
"consistency" using the factors specified in the regulations.
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20 C.F.R. § 404.1520c(c).
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Those factors include
"supportability," "consistency," "relationship with the
claimant," "specialization," and "other factors."
Id.
The
factors of "supportability" and "consistency" are considered to
be "the most important factors" in the evaluation process.
Id.
See also Linda F., 2020 WL 6544628, at *2.
In addition, the regulations change the way the
Commissioner should articulate his consideration of medical
opinions.
First, we will articulate our consideration of medical
opinions from all medical sources regardless of
whether the medical source is an AMS [Acceptable
Medical Source]. Second, we will always discuss the
factors of supportability and consistency because
those are the most important factors. Generally, we
are not required to articulate how we considered the
other factors set forth in our rules. However, when
we find that two or more medical opinions . . . about
the same issue are equally well-supported and
consistent with the record but are not exactly the
same, we will articulate how we considered the other
most persuasive factors. Third, we added guidance
about when articulating our consideration of the other
factors is required or discretionary. Fourth, we will
discuss how persuasive we find a medical opinion
instead of giving a specific weight to it. Finally,
we will discuss how we consider all of a medical
source's medical opinions together instead of
individually.
Revisions to Rules, 82 Fed. Reg. 5844.
Although the regulations eliminate the "physician
hierarchy," deference to specific medical opinions, and
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assigning "weight" to a medical opinion, the ALJ must still
"articulate how [the ALJ] considered the medical opinions" and
"how persuasive [the ALJ] find[s] all of the medical opinions."
20 C.F.R. § 404.1520c(a) and (b)(1).
The ALJ is required to
"explain how [the ALJ] considered the supportability and
consistency factors" for a medical opinion.
§ 404.1520c(b)(2).
20 C.F.R.
“At the least, this appears to necessitate
that an ALJ specifically account for the legitimate factors of
supportability and consistency in addressing the persuasiveness
of a medical opinion.”
Linda F., 2020 WL 6544628, at *2.
Finally, the Court must also “continue to consider whether the
ALJ's analysis has the support of substantial evidence.”
Id.,
at *2 (citing 82 Fed. Reg. at 5852).
II.
Analysis
On March 1, 2017, Dr. Davidoff opined:
[Plaintiff's] chronic multisystem illness/fibromyalgia
does not prevent sedentary employment, gainful
employment, or employment with loose supervision or
little public interaction. Rationale: With
reasonable accommodation, no impediment to employment
exists. [Plaintiff] might have to work part time or
miss some days.
Tr. 456.
Pursuant to 20 C.F.R. § 404.1567(a), "Sedentary Work"
involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket
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files, ledgers, and small tools. Although a sedentary
job is defined as one which involves sitting, a
certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required
occasionally and other sedentary criteria are met.
The ALJ concluded Dr. Davidoff's opinion is persuasive
apparently on the sole grounds that it is consistent with the
objective medical evidence and Plaintiff's activities of daily
living.
Tr. 21-22.
The ALJ pointed to examinations at which
Plaintiff was "observed to have intact sensation, a normal gait,
full motor strength in his upper and lower extremities, and no
tenderness to palpation."
Tr. 22, 352, 441, 487.
The ALJ also
noted Plaintiff's neurological examinations were "normal, and
joint tenderness or swelling was not noted," x-rays of
Plaintiff's cervical spine in January 2017 showed only mild
degenerative changes, and tests for autoimmune disease related
to joint pain were negative.
Tr. 20-21, 327, 423, 471, 487.
The ALJ also found persuasive the opinions of Susan Moner,
M.D., and Neal Berner, M.D., state-agency consultants.
On
August 23, 2017, Dr. Moner opined Plaintiff could only
occasionally lift and/or carry 50 pounds and frequently lift
and/or carry 25 pounds; could only stand and/or walk six hours
in an eight-hour workday; and could only sit six hours in an
eight-hour workday.
Tr. 55.
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On November 30, 2017,
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Dr. Berner made findings similar to Dr. Moner.
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Tr. 67-68.
The limitations found by Drs. Berner and Moner are
consistent with medium work, which is defined as "lifting no
more than 50 pounds at a time with frequent lifting or carrying
of objects weighing up to 25 pounds."
20 C.F.R. § 404.1567(c).
In the end the ALJ concluded Plaintiff's activities were
consistent with the ability to perform medium work.
Tr. 21.
For example, the ALJ noted Plaintiff takes care of himself,
drives, shops, takes care of two dogs, and helps his parents
around the house.
Tr. 167, 364, 407.
Plaintiff, however, contends the ALJ erred when he failed
to include in his assessment of Plaintiff's RFC a limitation to
sedentary work, "loose supervision," and "little public
interaction" as found by Dr. Davidoff.
Plaintiff also contends
Dr. Davidoff's opinion regarding Plaintiff's ability to work is
not "ambiguous" as the Commissioner asserts.
The Commissioner, in turn, contends the ALJ was
"interpreting" Dr. Davidoff's opinion when the ALJ assessed
Plaintiff's RFC because Dr. Davidoff did not clearly limit
Plaintiff to only sedentary work with limited interactions.
addition, the Commissioner contends the record "as a whole"
supports the ALJ's conclusion and points to the fact that
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In
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Dr. Davidoff found Plaintiff did not have any fibromyalgia
trigger points in his examination on March 1, 2017, and merely
stated Plaintiff "might" have to miss "some days" of work.
Tr. 455-56.
The Commissioner asserts Dr. Davidoff's opinion,
therefore, is ambiguous, and the ALJ is not required to
"incorporate limitations phrased equivocally" into his
evaluation of Plaintiff's RFC.
See Valentine v. Comm'r, Soc.
Sec., 574 F.3d 685, 692 (9th Cir. 2009).
Although the Commissioner relies on Orteza v. Shalala, 50
F.3d 748 (9th Cir. 1995), to support his position, the Court
concludes Orteza is not on point.
In Orteza the Ninth Circuit
held the ALJ was "merely interpreting" the physician's opinion
rather than "discrediting" it and pointed out that the physician
only stated the plaintiff could "adapt" to "sedentary-type" work
rather than finding the plaintiff could only perform sedentary
work as defined by 20 C.F.R. § 404.1567(a).
Id. at 750.
The
Ninth Circuit noted:
The distinction is procedurally significant because if
Dr. Mason stated that Orteza could only perform
“sedentary work” as defined by section 404.1567(a),
the ALJ would be required to provide clear and
convincing reasons for discrediting Dr. Mason's
report. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th
Cir. 1991)(ALJ must provide clear and convincing
reasons for disregarding the uncontradicted opinion of
a treating physician). If, on the other hand,
Dr. Mason did not state that Orteza could only perform
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“sedentary work” as defined by section 404.1567(a),
the ALJ would not be discrediting Dr. Mason's
testimony, but merely interpreting it. Magallanes,
881 F.2d at 750 (“The ALJ is responsible for
determining credibility and resolving conflicts in
medical testimony . . . [and] for resolving
ambiguities.”).
Orteza, 50 F.3d at 750.
Here, however, the Court finds Dr. Davidoff's opinion is
not ambiguous in spite of the Commissioner's arguments.
Dr. Davidoff specifically concluded Plaintiff is capable of
gainful employment at a sedentary level despite his chronic
fibromyalgia if he is reasonably accommodated, which includes
accommodating his limitations as to interactions with others,
possible part-time work, or "missing some days" of work.
Tr. 456.
Although the ALJ found Dr. Davidoff's opinion "persuasive,"
the ALJ inexplicably found Plaintiff was able to perform medium
work without any consideration of the limitations imposed by
Dr. Davidoff.
The limitations that are inherent in medium
work; that are identified as Plaintiff's limitations by
Drs. Moner and Berner, who are only reviewing and nonexamining
physicians; and that are adopted by the ALJ in his eventual
evaluation of Plaintiff's condition conflict with the
limitations identified by Dr. Davidoff even though Dr. Davidoff
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The ALJ, however, did not
state clearly his reasons for discounting Dr. Davidoff's
opinion.
In Campbell v. Saul the Ninth Circuit recently noted:
Normally, "[t]he opinion of a treating physician
is given deference because 'he is employed to cure and
has a greater opportunity to know and observe the
patient as an individual.'" Morgan v. Comm'r, 169
F.3d 595, 600 (9th Cir. 1999)(quoting Sprague v.
Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). "As a
general rule, more weight should be given to the
opinion of a treating source than to the opinion of
doctors who do not treat the claimant. At least where
the treating doctor's opinion is not contradicted by
another doctor, it may be rejected only for 'clear and
convincing' reasons." Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1996)(citations omitted). "We have also
held that 'clear and convincing' reasons are required
to reject the treating doctor’s ultimate conclusions."
Id.
834 F. App'x 330, 332 (9th Cir. 2021).
As noted, Dr. Davidoff,
Plaintiff's treating physician, clearly concluded Plaintiff was
limited to sedentary work with certain accommodations.
The only
other opinions regarding Plaintiff's abilities were from
nontreating, nonexamining state-agency consultants.
"Because
the opinion of a nonexamining medical source cannot by itself
constitute substantial evidence that justifies the rejection of
a treating physician, the ALJ erred."
Id.
The Court concludes on this record that the ALJ erred when
he discounted Dr. Davidoff's opinion regarding Plaintiff's
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limitation to sedentary work, necessary accommodations, and
limited interactions without providing legally sufficient
reasons for doing so.
REMAND
The decision whether to remand for further proceedings or
for payment of benefits generally turns on the likely utility of
further proceedings.
Carmickle, 533 F.3d 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."
1178 (9th Cir. 2000).
Harman v. Apfel, 211 F.3d 1172,
The court should grant an immediate award
of benefits when
(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such 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
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if the case were remanded for further proceedings.
Id. at 1178
n.2.
Here, as noted, the Court concludes the ALJ failed to
properly consider Dr. Davidoff's opinion regarding Plaintiff's
limitations when the ALJ evaluated Plaintiff's RFC and posed
hypotheticals to the VE.
The Court, therefore, concludes on this record that further
administrative proceedings are necessary to allow the ALJ to
consider the medical evidence properly and to re-evaluate
Plaintiff's RFC.
Accordingly, the Court remands this matter for
further administrative proceedings.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four
of 41 U.S.C. § 405(g) for further administrative proceedings
consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 22nd day of July, 2021.
/s/ Anna J. Brown
______________________________________
ANNA J. BROWN
United States Senior District Judge
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