Youngblood v. Colvin

Filing 21

ORDER signed by Judge J P Stadtmueller on 10/4/13 that, pursuant to Sentence Four of 42 U.S.C. § 405(g), the opinion of the ALJ is REVERSED and REMANDED for further proceedings consistent with this decision; and, the Commissioner's motion to remand for additional evidence gathering 16 is denied. See Order. (cc: all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JACQUELINE YOUNGBLOOD,
Plaintiff,
v.

Case No. 13-CV-209-JPS

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

ORDER

The plaintiff, Jacqueline Youngblood, has not been treated kindly by
the Social Security Administration, nor has she had an easy life. In recent
years, she has been diagnosed with an aggressive form of breast cancer,
which required a mastectomy and chemotherapy treatment. (See, e.g., Tr. 176,
195, 700). She also suffers from various other physical impairments, including
degenerative joint disease in her feet and pain in much of her lower body and
shoulder. (See, e.g. Tr. 134, 144, 146–49, 163–64). In addition to those physical
problems, Ms. Youngblood also has a relatively low IQ score, based on tests
performed by several doctors, which falls within the diagnosis range of
mental retardation. (Tr. 247–253, 260, 264, 274–77).
1.

PROCEDURAL BACKGROUND
Given these myriad problems, Ms. Youngblood filed an application

for disability and supplemental security benefits on September 1, 2006. Thus
began her odyssey: an all-too-common slog through the Social Security
administrative process. After having her claims denied initially, Ms.
Youngblood appeared before ALJ Margaret O’Grady (the ALJ) for a hearing
to determine whether Ms. Youngblood is, in fact, disabled. (Tr. 428–439). At
that first hearing, the ALJ determined that Ms. Youngblood had been disabled

for the period during which she was receiving surgery and chemotherapy
treatment, but otherwise found that Ms. Youngblood is not disabled as a
result of her mental or physical limitations. (Tr. 439). Ms. Youngblood
requested review of the decision by the Social Security Appeals Council (the
Appeals Council). (Tr. 441–42). That review took nearly a year and a half to
complete, after which time the Appeals Council reversed the ALJ’s decision
due to the fact that the decision may have been based on an incomplete
record, as the ALJ was testing a new computer system at the time she
reviewed Ms. Youngblood’s file. (Tr. 441–42). Thus, the ALJ got a second
opportunity to review Ms. Youngblood’s claim and again found that Ms.
Youngblood is not disabled as a result of her mental or physical limitations.
(Tr. 18–25). Ms. Youngblood appealed that newer decision to the Appeals
Council, but this time the Appeals Council affirmed the ALJ’s decision. (Tr.
7).
2.

DISCUSSION
Ms. Youngblood filed this case seeking review of the ALJ’s decision.

(Docket #1). She filed a brief asserting that the ALJ erred in multiple ways in
reaching her determination that Ms. Youngblood’s physical and mental
impairments do not rise to the level of a disability. (Docket #15). The
Commissioner apparently agrees that the ALJ erred: on August 30, 2013, she
filed a motion to remand this case for further proceedings. (Docket #16).
The issue now is whether the Court should remand the case for
further proceedings, as the Commissioner requests, or whether the Court
should go further and remand the case with an order that Ms. Youngblood
actually be awarded benefits. Ms. Youngblood argues that the latter option
is the only correct remedy, here. (See, e.g., Docket #15, at 25; #18).

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2.1

Forms of Relief that the Court May Award

The Court begins its analysis by noting that Ms. Youngblood
vigorously attacks the Commissioner’s decision to move for remand of the
case, instead of filing a brief in opposition to Ms. Youngblood’s opening brief,
requesting an award of benefits. (Docket #18, at 2–4). That is rightly so.
Without a doubt, the Commissioner’s motion to remand is rather perplexing.
It seeks remand of this matter under Sentence Four of 42 U.S.C. § 405(g) in
order to allow the Commissioner to obtain additional evidence, after which
the ALJ would re-evaluate Ms. Youngblood’s disability claim. (Docket #16;
#17, at 2). The problem with that motion is that it is not authorized under the
sentence that the Commissioner has cited.
The text of Sentence Four of 42 U.S.C. § 405(g) allows the Court 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.” Under this
sentence, the Court has the power to enter a final judgment terminating the
case, by either “affirming, modifying, or reversing,” the Commissioner’s
decision. 42 U.S.C. § 405(g); Curtis v. Shalala, 12 F.3d 97, 101 (7th Cir. 1993)
(“Remands ordered in Social Security cases pursuant to sentence four of 42
U.S.C. § 405(g) are final judgments that terminate the judicial review
proceedings before the district court.”). Any such judgment, however, must
be entered “upon the pleadings and transcript of the record.” In other words,
in a Sentence Four remand, the Court’s review of evidence is limited to that
which was submitted to the ALJ. The Court can affirm, modify, or reverse the
ALJ’s decision only on the evidentiary record the ALJ considered, and may
remand the cause for a rehearing. Those are the only potential outcomes

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under Sentence Four. Put most simply, Sentence Four does not contemplate
remands seeking additional evidence.
But that is not the end of the analysis because Sentence Six of 42 U.S.C.
§ 405(g) does allow the Court to remand a case for additional evidence
gathering. Sentence Six, however, places some additional strictures on the
Court’s ability to offer that form of relief. Specifically, Sentence Six provides
that
[t]he court may, on motion of the Commissioner of
Social Security made for good cause shown before the
Commissioner files the Commissioner’s answer, remand
the case to the Commissioner of Social Security for
further action by the Commissioner of Social Security,
and it may at any time order additional evidence to be
taken before the Commissioner of Social Security, but
only upon a showing that there is new evidence which
is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior
proceeding.
That sentence, also known as Sentence Six, is extremely confusing. But,
distilled to its essentials, provides for two separate situations in which the
Court may order a remand pursuant to Sentence Six: first, where the
Commissioner “requests a remand before answering the complaint”; or,
second, “where new, material evidence is adduced that was for good cause
not presented before the agency.” Shalala v. Schaefer, 509 U.S. 292, 297, n.2
(1993) (citing Melkonyan v. Sullivan, 501 U.S. 89, 99–100, and n.2 (1991)); see
also Curtis v. Shalala, 12 F.3d at 100, n.3 (7th Cir. 1993) (“Sentence six also
provides for remands at the request of the” Commissioner).
The law surrounding the latter of those situations is fairly welldeveloped and, therefore, the Court addresses it first. In Melkonyan, the
Supreme Court clarified that the latter portion of Sentence Six gives district
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courts the power to “remand in light of additional evidence without making
any substantive ruling as to the correctness of the Secretary’s decision, but
only if the claimant shows good cause for failing to present the evidence
earlier”; the Supreme Court also made clear that, in Sentence Six remands,
the district court must retain jurisdiction over the action until the ALJ has
taken steps in light of the additional evidence. 501 U.S. 89, 99–102; see also
Travis v. Sullivan, 985 F.2d 919, 923–24 (clarifying Sentence Six’s requirements
under Melkonyan). In other words, the Court may remand any case at any
time under the latter half of Sentence Six, provided that: (1) there is new,
material evidence; (2) it finds that there was good cause for the
Commissioner’s failure to incorporate that evidence in the prior proceedings;
and (3) it retains jurisdiction over the case. Melkonyan, 501 U.S. at 99–102.
The law on the first half of Sentence Six, on the other hand, is not as
well-developed. Typically, the Commissioner uses that portion of Sentence
Six to seek remand when there are (for lack of a better term) “technical”
issues with the record, such as portions of the claim file or the hearing
recording being missing. See, e.g., Dudley v. Astrue, 246 Fed. App’x 249, 252
(5th Cir. 2007); Dempsey v. Astrue, 2010 WL 827293 (W.D.N.Y. 2010); Rankhorn
v. Astrue, 2007 WL 781876 (E.D. Tenn. Mar. 12, 2007); Farstad v. Barnhart, No.
A4-04-19, 2004 WL 1175701, * 1 (D.N.D. May 25, 2004); Hudson v. Barnhart,
2003 WL 22290210 (N. D. Cal. 2003); and Shank v. Barnhart, 2002 WL 1839163
(E.D. Pa. 2002); Gamble v. Apfel, 2001 WL 102344 (S.D. Ala. 2001); Flores v.
Commissioner of Social Sec., 2001 WL 286732 (S.D.N.Y. 2001). This reading also
finds support in the legislative history. H.R.Rep. No. 944, 96th Cong., 2d Sess.
59 (1980), as reprinted in 1980 U.S.C.C.A.N. 1392, 1407 (“Where for example,
the tape recording of the claimant's oral hearing is lost or inaudible, or cannot

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be otherwise transcribed, or where the claimant's files cannot be located or
are incomplete, good cause would exist to remand the claim to the Secretary
for appropriate action to produce a record.”). What is clear is that there must
be “good cause” to remand the case under this portion of Sentence Six, and
the Court should “give due deference to the agency’s determination of
whether it has ‘good cause’ to reopen its decision.” Doctors Nursing &
Rehabilitation Center v. Sebelius, 613 F.3d 672, 680–81 (7th Cir. 2010) (citing
Dudley, 246 Fed. App’x at 251).
In either of the two Sentence Six situations, the Court retains
jurisdiction and remands to the ALJ for further evidence-gathering or
reconstruction of the record; the Court does not, however, “rule in any way
as to the correctness of the administrative determination.” Melkonyan, 501
U.S. at 98. Instead, it allows the evidence-gathering or reconstruction to
occur, after which time the ALJ renders a decision based on the amended
record. The Court, still holding jurisdiction, would then review that new
decision.
So, this is the menu of choices the Court has, in terms of what types of
remand it may grant:
(1)

remand, addressing the merits but limiting the decision to the
record, and relinquishing jurisdiction, pursuant to Sentence
Four;

(2)

remand, not addressing the merits, to allow the record to be
corrected, retaining jurisdiction in the interim, pursuant to the
first half of Sentence Six; or

(3)

remand, not addressing the merits, to allow the collection of
additional evidence, retaining jurisdiction in the interim,
pursuant to the second half of Sentence Six.

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But, as implied above, that is not all that the Court can do. Indeed, it
also has the power to reverse the ALJ’s decision without remand, in essence
finding on the record before it that the plaintiff is disabled. See, e.g., 42 U.S.C.
§ 405(g) (Sentence Four); Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 356
(7th Cir. 2005). The Court should do so “only if all factual issues have been
resolved and the record supports a finding of disability.” Id., at 356 (citing
Campbell v. Shalala 988 F.2d 741, 744 (7th Cir. 1993); Micus v. Bowen, 979 F.2d
602, 609 (7th Cir. 1992); Woody v. Sec’y of Health and Human Serv., 859 F.2d
1156, 1162–63 (3d Cir 1988)).
Ms. Youngblood clearly requests this latter form of relief, seeking to
have the Court find that she is disabled. The Commissioner, on the other
hand, seeks some form of remand, but does not make clear exactly which
form.
2.2

Commissioner’s Motion for Remand

With this background in mind, the Court turns to unraveling the
dispute between the parties over which form of relief is appropriate, here.
The first part of doing so requires the Court to divine the precise type
of relief sought by the Commissioner.1 The confusion on this point stems
from the fact that she has requested relief pursuant to Sentence Four, but
seeks to gather additional evidence, which seems to fall under the latter half
of Sentence Six. However, she also filed a motion to remand prior to filing a
responsive pleading, which tends to indicate that she seeks remand under the

1

As a practical matter, the Court notes that it must deny the Commissioner’s
motion. Given the fact that the Commissioner seeks relief that the Court cannot
possibly award (remand for further evidence-gathering under Sentence Four,
which is not sanctioned by 42 U.S.C. § 405(g), as the Court will discuss further), the
Court must deny her motion.

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first half of Sentence Six. The Court will examine each of these options to
determine which one the Commissioner actually seeks.
She almost certainly is not seeking a remand under Sentence Four. In
fact, she acknowledges in a sub-heading that “The Record is Equivocal on
Listing 12.05C.” (Docket #17, at 5). Assuming that to be true (and, since the
Court is attempting to divine what form of relief the Commissioner is
seeking, that is precisely what it will do for this purpose), there would be no
purpose for a remand under Sentence Four. Remands under Sentence Four
are on the record, as already established below. Therefore, if the Court were
to remand this case pursuant to Sentence Four, it would necessarily have to
do so on the record. And, if that record is “equivocal,” as the Commissioner
asserts, then there would be practically no benefit to a remand. Thus, it is
clear that the Commissioner is not seeking remand under Sentence Four.
Similarly, the Commissioner cannot be seeking relief under the first
half of Sentence Six, because she does not assert that there is any error
inherent in the record. She does not allege, for instance, that a portion of the
transcript is missing or even that there is some clear error therein. Thus, even
though she filed a motion to remand before filing a responsive pleading, the
Court cannot find the sort of “good cause” that Courts traditionally look for
before remanding cases under the first half of Sentence Six. Moreover, the
Commissioner certainly cannot, through a motion alone, “disrupt federal
jurisdiction” and remand this case without leave of Court. Doctors Nursing
& Rehabilitation Center, 613 F.3d at 677 (noting, in regards to the first half of
Sentence Six, that “[w]hile this provision addresses only the court’s power
to remand, and not the agency’s own authority to reopen its proceedings, it
assumes that an agency may not disrupt federal jurisdiction on its own.”).

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Rather, the latter half of Sentence Six seems to be the portion of 42
U.S.C. § 405(g) that would be most likely to apply, here. The Commissioner
notes that, despite Ms. Youngblood’s low IQ-test scores, much of the other
evidence could support a finding that she is not mentally retarded. (Docket
#17, at 6–8). She also points out that Ms. Youngblood took the relevant IQ
test while undergoing chemotherapy, which has been found to negatively
affect individuals’ cognitive abilities. (Docket #17, at 8–10, and n.3). From
those arguments, the Court can extrapolate that the Commissioner is seeking
additional evidence in the form of a new IQ test, which the Commissioner
would then submit to the ALJ for a new decision on remand. That request
most closely tracks a request for remand under the latter half of Sentence Six.
Thus, the Court finds that the Commissioner is seeking relief under the latter
half of Sentence Six.
2.3

Denial of the Commissioner’s Motion

Having found that the Commissioner’s motion seeks relief under the
latter half of Sentence Six, the Court must next turn to evaluate whether that
provision allows the Court to grant the Commissioner’s request to remand
the case for further-evidence gathering. It does not.
The latter half of Sentence Six allows for remand when the Court finds
that there is evidence that: (1) is new; (2) is material; and (3) for good cause
was not presented to the ALJ. See, e.g. 42 U.S.C. § 405(g); Schmidt v. Barnhart,
395 F.3d 737, 741–42 (7th Cir. 2005). “Evidence is ‘new’ if it was ‘not in
existence or available’” to the ALJ during the administrative proceeding.
Schmidt, 395 F.3d at 742 (quoting Perkins v. Chater, 107 F.3d 1290, 1296 (7th
Cir. 1997)). “Evidence is material if there is a reasonable probability that its
consideration would have changed the ALJ’s decision.” Gossett v. Colvin, ---

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Fed. App’x ----, 2013 WL 2993545, at*4 (7th Cir. June 13, 2013) (citing Schmidt,
395 F.3d at 742; Perkins, 107 F.3d at 1296). The Seventh Circuit has found that
“good cause” does not exist where a party “could and should have” obtained
evidence and presented it to the ALJ in the prior proceeding. Cromer v. Apfel,
234 F.3d 1272 (7th Cir. 2000) (unpublished decision, citing Campbell, 988 F.2d
at 745, n.2)).
Sentence Six’s requirements are not met, here. To begin, the Court
does not believe that the Commissioner has actually identified any new
evidence that she could present to the ALJ on remand. Rather, the
Commissioner has identified only the speculative existence of new evidence,
as opposed to evidence, itself. The Commissioner suggests that, on remand,
a new IQ test could be performed, and that Ms. Youngblood’s results may
now be better, because she is no longer undergoing chemotherapy. (See, e.g.,
Docket #17, at 8–10). Mind you, the Commissioner does not have any new IQ
figures; she does not even have evidence that Ms. Youngblood’s first IQ test
results were falsely lowered by her undergoing chemotherapy. Rather, she
has only a few studies showing that chemotherapy may negatively affect
cognitive abilities. (See Docket #17, at 9, n. 3). Thus, it is very difficult to find
that the Commissioner has new evidence that she seeks to introduce on
remand. However, to the extent the Court were to determine that the
Commissioner was seeking to introduce evidence on remand, the Court
would still have difficulty finding that evidence to be “new.” In reality, at
least one of the studies upon which the Commissioner relies to show that Ms.
Youngblood’s IQ scores may have been negatively affected by chemotherapy
was in existence throughout the time that Ms. Youngblood underwent her
IQ test and appeared before the ALJ for a hearing. (Docket #17, at 9, n.3

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(citing a study from 2004)). In other words, while a new IQ test would
produce new evidence, the arguable basis for the Court’s granting a motion
to remand for gathering of that evidence is not actually new. There was at
least one study in existence throughout the relevant time period, which
supports the Commissioner’s argument; the Court wonders why that study
is only now—after two ALJ hearings based upon the first IQ test—being used
as a basis to request a new IQ test. Certainly, it was available to the ALJ
during the administrative proceeding, and therefore cannot be deemed as
new. Schmidt, 395 F.3d at 742. For these reasons, the Court cannot find that
the Commissioner is seeking to introduce new evidence. Accordingly,
Sentence Six remand would not be appropriate.
The Court also wishes to point out that the remaining two
requirements for a Sentence Six remand also are not satisfied. The proffered
evidence (if it can be called that) is not material, because it likely would not
change the ALJ’s decision. Gossett, 2013 WL 2993545, at*4 (citing Schmidt, 395
F.3d at 742; Perkins, 107 F.3d at 1296). The ALJ, of course, found that Ms.
Youngblood is not disabled. The Commissioner now seeks additional
evidence that would actually support that position, as opposed to changing
it. This suggests that the evidence is not material under the Seventh Circuit’s
definition. It also suggests that the Commissioner envisions a high likelihood
of a disability finding on remand, if the ALJ must accept the record as it
currently stands. In other words, the Commissioner must know that it is
extremely likely that she will have to award benefits on remand, unless the
Court permits her a do-over on Ms. Youngblood’s IQ test. Which brings the
Court to its final point on this matter: there is not good cause to allow a new
test. As the Court mentioned, studies dating back to at least 2004 show the

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negative cognitive effects of chemotherapy. Thus, the Commissioner had
reason to know of the reasons that Ms. Youngblood’s IQ test scores may not
have been accurate at that time. There is no reason that the Commissioner
should have waited until now to seek a re-test, after a good deal of time and
money has been spent in ALJ hearings and decisions. To be quite candid, this
request gives every appearance to be nothing more than a desperate attempt
to get a second bite at the apple. Thus, the Court also finds that the second
and third requirements for a Sentence Six remand are not present here.
Having found that the Commissioner has not established any of the
requirements for a remand under the second half of Sentence Six, the Court
is obliged to hold that the Commissioner is not entitled to a remand for
additional evidence gathering.
Accordingly, the Court has found that neither part of Sentence Six
applies to this situation, and must conclude that a remand under Sentence Six
would be inappropriate. The Court has also determined that remand under
Sentence Four does not allow for additional evidence-gathering. Therefore,
there is no possible basis on which the Court could grant the Commissioner’s
motion for remand for additional evidence-gathering, and the Court must
accordingly deny that motion.
2.4

Remand Pursuant to Sentence Four

That leaves the Court with two options:
(1)

it can take the route requested by Ms. Youngblood and find
that she is disabled based upon the record before it; or

(2)

it can remand the case for further proceedings—also on the
record before it, and without allowance for any additional
evidence-gathering—pursuant to Sentence Four, even though
this is not the precise type of relief that either party requests.

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This is a difficult decision for the Court to make. On one hand, Ms.
Youngblood’s process through the Social Security system has been a difficult
one; the Commissioner has acknowledged that the ALJ’s decision was
flawed; and the Court finds it likely that, on the record before it (in
conjunction with the Commissioner’s vigorous attempt to get a do-over on
the IQ test), Ms. Youngblood likely will be found disabled on remand. On the
other hand, “obduracy alone [cannot] ever warrant an award of benefits,”
Briscoe, 425 F.3d at 356, and the Court is generally reluctant to substitute its
own judgment for that of an ALJ, who is in the best position to make
disability determinations, based upon experience with the processes in place
and familiarity with the record and the claimant through a hearing.
The evidentiary bar at which an award of benefits is appropriate is
very high: the Court must find that “all factual issues have been resolved and
the record supports a finding of disability.” Briscoe, 425 F.3d at 356 (citing
Campbell, 988 F.2d at 744; Micus, 979 F.2d at 609; Woody, 859 F.2d at 1162).
That stringent standard is not met, here. While the record, itself, will
not be supplemented with additional IQ testing evidence on remand, there
are still factual issues that are best resolved by an ALJ after an evidentiary
hearing. Listing 12.05C describes a disabling form of mental retardation. The
parties seem to agree that the issue of whether Ms. Youngblood is disabled
turns largely upon whether the ALJ finds that Listing 12.05C is met. Without
a doubt, Ms. Youngblood’s impairments seem to closely track Listing
12.05C’s requirements. Listing 12.05C requires:
(1)

subaverage intellectual functioning with adaptive functioning
deficits;

(2)

evidence that the impairment initially manifested during the
developmental period (before age 22); and
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(3)

a valid IQ score of 60 through 70, along with either:
(a)

another physical or mental impairment imposing workrelated functioning limitations; or

(b)

two of the following:
(i)
(ii)
(iii)
(iv)

marked daily living restrictions;
marked difficulties in social functioning;
marked difficulties in concentration, persistence,
or pace; or
repeated episodes of extended decompensation.

20 C.F.R. Pt. 404, Subpt. P, App. 1. This is an extremely fact-bound
determination,

which

may

even

require

substantial

credibility

determinations. For instance, the ALJ, on remand, may need to take hearing
testimony to determine whether Ms. Youngblood’s alleged impairment
results in adaptive functioning deficits or manifested before age 22. The ALJ
may also have to determine whether Ms. Youngblood has a physical or
mental impairment, aside from her low IQ score, that imposes work-related
functioning limitations. While Ms. Youngblood argues that the record
contains evidence that would establish those requirements—and, without a
doubt, there is evidence supporting her contentions in the record—that does
not mean that “all factual issues have been resolved.” Instead, the Court
believes that an ALJ is in the best position to examine the factual record and
decide whether that supportive evidence conclusively establishes that Listing
12.05C’s requirements are met. What is more, a credibility determination may
be necessary to find that certain of Listing 12.05C’s requirements are satisfied.
See, e.g., SSR 96-7p. In short, the Court does not believe that the Listing
12.05C analysis is quite so cut-and-dry, or that the evidence is quite so
conclusive, as Ms. Youngblood asserts. Accordingly, a finding of disability
would not be warranted.
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Remand pursuant to Sentence Four is much more appropriate. Under
that sentence, the Court has the “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.” 42 U.S.C. § 405(g). Given the parties’ general
agreement that the ALJ’s decision was erroneous and the Court’s further
determination that factual issues remain unresolved by the record, the Court
is obliged to reverse the ALJ’s decision and remand this case for a rehearing.
3.

CONCLUSION
For the reasons discussed above, the Court determines that it must

deny the Commissioner’s motion to remand this case for additional evidence
gathering, and further is obliged to remand this case for rehearing under
Sentence Four.
Finally, given the fact that the ALJ in this case has now twice heard
Ms. Youngblood’s claims, and both times entered an opinion in error, the
Court urges the Commissioner to assign this case to a different ALJ on
remand. The Court has no power to order that this be done, unless there
appears clear evidence of bias (which is not the case here), but may
nonetheless suggest re-assignment in cases like this one, where repeated ALJ
errors cause the Court some concern over how it will be handled on remand.
See, e.g., Sarchet v. Chater, 78 F.3d 305, 309 (7th Cir. 2003) (citing Travis v.
Sullivan, 985 F.2d 919, 923–24 (7th Cir. 1993); Ventura v. Shalala, 55 F.3d 900,
904–05 (3d Cir. 1995); Briscoe, 425 F.3d at 357; Golembiewski v. Barnhart, 322
F.3d 912, 918 (7th Cir. 2003)).
Accordingly,

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IT IS ORDERED that, pursuant to Sentence Four of 42 U.S.C.
§ 405(g), the opinion of the ALJ be and the same is hereby REVERSED and
REMANDED for further proceedings consistent with this decision; and
IT IS FURTHER ORDERED that the Commissioner’s motion to
remand for additional evidence gathering (Docket #16) be and the same is
hereby DENIED.
The Clerk is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 4th day of October, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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