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Ramo v. Colvin

United States District Court, D. Minnesota

February 18, 2014

Natheer Abdullah Ramo, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

Jeffrey R. Hannig, Esq., Hanning Law Office, P.A., counsel for Plaintiff.

Ana H. Voss, Esq., Assistant United States Attorney, counsel for Defendant.


JEFFREY J. KEYES, Magistrate Judge.

Pursuant to 42 U.S.C. § 405(g), Plaintiff Natheer Abdullah Ramo seeks judicial review of the final decision of the Commissioner of Social Security ("the Commissioner"), who denied Plaintiff's applications for disability insurance benefits and supplemental security income. The parties have filed cross-motions for summary judgment. (Doc. Nos. 13, 15.) This matter has been referred to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636 and D. Minn. L.R. 72.1. For the reasons stated below, this Court recommends that Plaintiff's motion for summary judgment be granted for remand and Defendant's motion for summary judgment be denied.


I. Procedural History

Plaintiff protectively filed applications for disability insurance benefits and supplemental security income on May 7, 2010, alleging a disability onset date of August 1, 2009. (Tr. 173-76, 195-97.)[1] The Social Security Administration ("SSA") denied Plaintiff's claims initially and on reconsideration. (Tr. 92-98, 100-06.) Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"), and the hearing was held on November 23, 2011. (Tr. 109-10, 25-87.) On January 10, 2012, the ALJ issued an unfavorable decision on Plaintiff's applications. (Tr. 7-24.) Plaintiff sought review of the ALJ's decision, but the Appeals Council denied the request for review on April 15, 2013. (Tr. 1-4.) Denial by the Appeals Council made the ALJ's decision the final decision of the Commissioner. See 20 C.F.R. §§ 404.981; 416.1481.

II. Background

Plaintiff was born on November 11, 1965, and on his alleged onset date of disability, August 1, 2009, he was 43-years-old. (Tr. 173.) Plaintiff was born in Northern Iraq, where he graduated from teacher's school, and was conscripted into the army. (Tr. 382.) After deserting the army, he was caught and taken back. ( Id. ) Plaintiff then fled Iraq, becoming a refugee in Turkey. ( Id. ) He moved to the United States in 1993. (Tr. 459.) He has a wife and five children. (Tr. 382.) Plaintiff has worked in cleaning, packing, van driving, bus driving, and as a personal care assistant.[2] (Tr. 250, 265.) He initially alleged disability due to pain from a pinched nerve in his neck, and later added depression as a cause of disability. (Tr. 222, 277.)

Plaintiff completed a function report for the SSA (Tr. 266-73) on May 22, 2010, in which he reported the following information: He needed help from his wife to shower because pain in his left arm. (Tr. 266-67.) He took hydrocodone for pain relief, and drove using only his right arm. (Tr. 266.) He felt drowsy and dizzy, and went to bed between his morning and afternoon school bus routes. (Tr. 266, 273.) He could not cook or do any household chores, and he spent his time at home sleeping. (Tr. 267-68.) He could not handle finances because of his dizziness. (Tr. 269.) He was in too much pain to enjoy being with family or friends. (Tr. 271.) He does not handle stress well, and he becomes angry easily. ( See Tr. 272.) He was distracted, and his memory and concentration were poor. ( See Tr. 273.)

Plaintiff's motion for summary judgment is based primarily on his mental impairment claims, although he alleges that pain from his physical impairments contributes to his mental limitations. In his written argument Plaintiff's treatment and evaluation for physical complaints, primarily chronic pain syndrome, are briefly summarized. The focus of the disability claim is on the evidence relating to Plaintiff's mental impairments.

A. Medical Records

1. Physical Impairments

Plaintiff saw his primary care provider, Dr. Ross Kringlie, on November 5, 2009, with symptoms of left arm pain and tingling in the fingers, with onset one month earlier. (Tr. 361-62.) Plaintiff had not yet tried any medication. (Tr. 362.) Physical examination was essentially normal, and Dr. Kringlie recommended physical therapy, and to follow up with a cervical MRI, if there was no improvement. ( Id. ) Several weeks later, Plaintiff's cervical MRI showed bilateral neural foraminal narrowing at multiple levels secondary to degenerative spondylotic[3] change. (Tr. 350-51.) There was a moderate sized left lateral disc protrusion at C6-7, in position to contact the left C7 nerve root. (Tr. 350.)

Plaintiff underwent a neurosurgery consultation with Dr. Chad Justesen on December 14, 2009. (Tr. 352-54.) At that time, Plaintiff was an unemployed bus driver, recently laid off. (Tr. 353.) He complained of constant neck and arm symptoms, not relieved with physical therapy, traction, chiropractic treatment, or pain medication. (Tr. 352.) When Dr. Justesen considered Plaintiff's overall health in a review of systems, Plaintiff also complained of increased urination, weight gain, hearing loss, back pain, depression, mood swings and anxiety. (Tr. 353.) Dr. Justesen diagnosed chronic C7 radiculopathy and recommended surgery or epidural steroid injection. ( Id. )

When Plaintiff saw Dr. Kringlie on January 15, 2010, his weight was 218 pounds, and he rated his left arm pain at ten, on a scale of one to ten. (Tr. 355.) Plaintiff wanted to avoid surgery and would instead have an epidural steroid injection. (Tr. 356.) He was depressed, and asked Dr. Kringlie to prescribe an antidepressant. ( Id. ) Plaintiff's review of systems was positive for recent weight change, change in energy level, frequent heart burn, neck pain, joint pain, muscle pain, muscle weakness, excessive thirst and urination, and depressed mood.[4] (Tr. 356-67.) ( Id. ) Dr. Kringlie diagnosed cervical disk disease, gastroesophogeal reflex disease (GERD), and depression; and he prescribed Nexium, Celexa, and hydrocodone with acetaminophen.[5] (Tr. 358.) He also referred Plaintiff to a pain clinic for steroid injection. ( Id. )

Plaintiff went to a pain clinic on February 8, 2010, and saw Dr. Majid Ghazi. (Tr. 342-44.) Plaintiff reported a history of left arm pain, with moderate to severe aching, some numbness and paresthesia, and left hand weakness. ( Id. ) He rated his pain level eight out of ten. ( Id. ) Plaintiff also had a history of depression, and he had lost his job five months prior. ( Id. ) On examination, Plaintiff's range of motion was within normal limits. (Tr. 343.) Dr. Ghazi diagnosed C7 radiculopathy, and he scheduled a selective nerve root block for the next day. (Tr. 343, 339) Plaintiff rated his pre-injection pain level six or seven out of ten, and after the injection, his pain level reduced to a level of one out of ten. (Tr. 339-41.) His subsequent injection at the end of April reduced his pain from five out of ten to one out of ten. (Tr. 328-31.) A few months later, his pain level was back to nine out of ten. (Tr. 484-87.) His next injection was in October 2010, and he did not get relief from severe pain. (Tr. 471-74.) His last injection was in January 2011, and his pain reduced from a level of nine out of ten to three. (Tr. 449-51.)

Plaintiff also took tramadol for pain.[6] (Tr. 47-48, 358, 575.) Pain medication provided some relief but made him sleepy during the day. (Tr. 48-49, 467.) Beginning in June 2011, Plaintiff was also evaluated and treated with medication for leg pain, but the cause was undetermined. (Tr. 559-60, 572.)

Plaintiff underwent a sleep study with Dr. Kevin Faber on June 2, 2011. (Tr. 575-79.) Plaintiff gave the following list of complaints: (1) he was too anxious to go to bed before 3:00 or 4:00 a.m.; (2) he awoke often; (3) he had trouble getting to sleep; (4) he slept about 4 hours in a 24-hour period; (5) he felt sleepy during the day; (6) he could only nap ten minutes at a time during the day;

(7) he frequently had headaches in the morning; (8) he took tramadol every six hours as needed for leg pain; (9) he endorsed several parasomnia[7] symptoms, including sleeptalking, confusional arousals, and kicking or jerking of his legs; (10) and he endorsed loud snoring. (Tr. 575.) Plaintiff did not show evidence of sleep-disordered breathing, but his sleep efficiency was only 45%. (Tr. 547-48.) Plaintiff stated that he could not work because he was too tired during the day. (Tr. 547.) Dr. Faber diagnosed insomnia related to anxiety disorder, and prescribed zolpidem.[8] (Tr. 548.)

2. Mental Impairments

For evaluation of his Social Security disability application, Plaintiff underwent a consultative psychological evaluation on July 26, 2010, with Dr. Carol Follingstad. (Tr. 382-88.) Plaintiff reported symptoms of memory loss, pain, isolation, and crying episodes. (Tr. 382.) He was working reduced hours due to pain. ( Id. )

Plaintiff was born and raised in Kurdistan and forced to serve in the Iraq army after graduating teacher's school. ( Id. ) He deserted the army after one month, was returned to service for two years, and deserted again. ( Id. ) He then fled to Turkey, where he lived in a refugee camp for three years before coming to the United States. ( Id. ) He was presently married and had five children. ( Id. ) In the United States, Plaintiff drove a city bus, and later a school bus. ( Id. ) He then started having back problems. ( Id. ) Plaintiff had not been able to work since June due to pain. (Tr. 382-83.) He had never seen a mental health worker, because his culture would not allow it. (Tr. 383.)

Plaintiff described his daily activities as follows: ( Id. ) He watched television one hour per night, read for one hour per week, exercised two hours per week, walked one hour per week, and socialized one hour per week. ( Id. ) His activities were limited by pain and depression. ( Id. ) He could complete most tasks without assistance, but he believed household chores were women's work. ( Id. ) He did outdoor chores and handled the finances. ( Id. ) He felt that his current living situation was less stressful than most of his past life circumstances. ( Id. ) His symptoms were chronic pain, poor mood and anxiety. ( Id. ) He spent most of the day sleeping, because he always felt tired, but he tried to spend time with friends, so he would not be ostracized in his community. ( Id. )

On examination, his posture was poor, and he moved, stood and sat slowly, with his activity level remaining lethargic throughout the assessment (Tr. 384.) He became tearful frequently and did not smile. ( Id. ) On the other hand, his speech was normal, his hygiene was good, he was cooperative, attentive, and easy to interview. ( Id. ) He was oriented, and his thought processes were normal, but his mood was poor due to worry over his finances, unemployment, and family concerns. ( Id. )

Plaintiff was given the WAIS-IV intelligence test, and his scores fell within the extremely low range of functioning, suggesting he may need extra reminders, extra time, and constant guidance during mental processing. (Tr. 384-87.) Dr. Follingstad was not sure whether the test results reflected Plaintiff's true ability or if they were the result of cultural barriers. (Tr. 387.) Plaintiff had declined use of an interpreter for testing because he did not want people in his community to know that he was seen for mental health issues. (Tr. 385.) He did not appear to understand all of the test instructions. ( Id. ) But Dr. Follingstad noted Plaintiff appeared to be truthful in his presentation. (Tr. 383.)

Dr. Follingstad diagnosed PTSD, severe and recurrent major depressive disorder, generalized anxiety disorder with panic attacks, cognitive disorder NOS, [9] chronic pain under Axis III, [10] and she assessed a GAF score of 45.[11] (Tr. 388.) She opined that Plaintiff would need a job coach to help him understand work situations. ( Id. ) He could understand simple instructions, but he may need visual cues to help him stay on track. ( Id. )

On August 30, 2010, A. Johnson, a state agency consultant, reviewed Plaintiff's Social Security disability file on initial review of his disability claim. (Tr. 389-406.) Johnson opined that Plaintiff had only moderate mental limitations, and that Plaintiff had the mental residual functional capacity:

to understand, remember and follow simple instructions. Clt is restricted to work that involved brief, superficial interactions w/ supervisors and the public. Within these parameters and in the context of performing simple, routine, repetitive, concrete and tangible tasks, clt is able to sustain attention and concentration skills to carry out work-like tasks with reasonable pace and persistence.

(Tr. 399, 403-06.) Dr. Sharon Frederiksen reviewed Plaintiff's Social Security disability file upon reconsideration of Plaintiff's disability applications on November 30, 2010. (Tr. 421-23.) She affirmed Johnson's mental RFC opinion. ( Id. )

In September 2010, Plaintiff told Dr. Kringlie he was bothered by depression recently, and he asked about restarting medication. (Tr. 476-77.) In Dr. Kringlie's review of systems, Plaintiff endorsed depression but did not have trouble sleeping. (Tr. 477-78.) Apart from depressed mood, Plaintiff's mental status examination was normal. (Tr. 478.) Dr. Kringlie prescribed Zoloft. ( Id. ) At the end of October, Plaintiff reported that Zoloft was not helping, and he was having trouble sleeping. (Tr. 467.) Plaintiff's mood was depressed and his affect was flat, but his mental status examination was otherwise normal. (Tr. 468.) Dr. Kringlie discontinued Zoloft and prescribed Remeron. ( Id. )

Upon referral by Dr. Kringlie, Plaintiff underwent a psychiatric evaluation with Clinical Nurse Specialist Rebecca Elbert on November 2, 2010. (Tr. 459-65.) Plaintiff reported that he suffered daily depression, anxiety, flashbacks, and sleep deprivation due to nightmares. (Tr. 459.) Remeron helped a little with his sleep but not with depression or anxiety. ( Id. ) Plaintiff told Nurse Elbert that he graduated ninth in his class as a teacher and taught for one month. ( Id. ) Plaintiff said he would have gone on to college because he graduated in the top 10% of his class, but he was drafted into the Iraq army. (Tr. 461.) He described his war experiences, and when he fled Iraq, he lived in the mountains for six months with little food and clothing. (Tr. 459.) He was further traumatized because his brother died during that time. ( Id. ) Plaintiff suffered depression, anxiety and nightmares when he moved to the United States in 1993, and he only slept three to five hours at night since he was in the Iraq army. ( Id. ) He vividly remembers bombs going off. ( Id. )

Plaintiff completed the PHQ-9 depression and GAD-7 anxiety questionnaires, [12] and his respective scores of 26 and 21 suggested severe depression and generalized anxiety. (Tr. 459-60, 464.) He found it extremely difficult to work, take care of things at home, and get along with people. (Tr. 464.) He was irritable, impatient, and easily angered by other drivers and family members. ( Id. ) He did not get along with his wife and children. (Tr. 460.) His affect was depressed and anxious, his mood was poor, but otherwise his mental status examination was normal. (Tr. 461-62.) Nurse Elbert diagnosed PTSD, generalized anxiety disorder, major depressive disorder, and a GAF score of 50. (Tr. 462.)

Plaintiff saw Nurse Elbert again on November 30, 2010, and said he was too tired to drive his bus route safely in the morning. (Tr. 455.) He felt tired all day and was awake from nightmares at night. (Tr. 455.) He had few social supports and felt overwhelmed by family responsibility. ( Id. ) His affect was dysphoric and anxious, and his mood was tired and stressed. ( Id. ) Plaintiff's depression and anxiety scores on the PHQ-9 and GAD-7, 26 and 21 respectively, were again very high. (Tr. 458.) Elbert discontinued mirtazapine[13] and prescribed prazosin.[14] (Tr. 455.)

The medication change did not help. (Tr. 452.) One month later, Plaintiff was still awake at night from nightmares, and he was tired all the time. ( Id. ) He also worried that side effects from medication would prevent him from driving a school bus. ( Id. ) Upon examination, his grooming was normal, his behavior was pleasant and appropriate, he made good eye contact, his psychomotor activity was normal, his speech was articulate, his thoughts were normal, he was alert and oriented, his memory was intact, and his affect was anxious, but he could smile. ( Id. ) Elbert noted he needed a lot of encouragement to take medication, and she increased Plaintiff's prazosin and hydroxyzine.[15] (Tr. 452-53.) She encouraged Plaintiff to contact her frequently about how he was doing. (Tr. 452.) Concerning his disability application, she noted that "his mental illness is definitely impacting his daily function and ability to work." (Tr. 453.)

Elbert wrote a letter in support of Plaintiff's disability application. (Tr. 427-28.) She opined that PTSD had a big impact on Plaintiff's daily function, causing chronic sleep deprivation, depression, and anxiety. (Tr. 427.) In his current state of severe depression and high anxiety, she did not believe Plaintiff could work full time in any job. (Tr. 427-28.) She also doubted he could work even half-time due to his poor concentration, fatigue, irritability and high anxiety. (Tr. 428.)

Plaintiff decided to change providers; therefore, he underwent a psychiatric evaluation with Dr. Arvinder Pal S. Gagneja on February 8, 2011. (Tr. 430-34.) He complained of poor sleep, fatigue, low energy, depression, and increasing flashbacks and nightmares. (Tr. 430.) His medications were not helping. ( Id. ) He felt stressed at home because his wife and children did not listen to him. ( Id. ) He missed his culture and had trouble adapting to this country. ( Id. )

Upon mental status examination, Plaintiff was appropriate, casual, and cooperative, with normal energy, speech, and thoughts. (Tr. 432.) He appeared oriented, and his memory, attention, and concentration were intact. ( Id. ) However, his mood was depressed, anxious, and irritable, although he was able to smile briefly. ( Id. ) Plaintiff scored 25 on the PHQ-9 questionnaire and 21 on the GAD-7. (Tr. 434.) Dr. Gagneja diagnosed PTSD, moderate major depressive disorder, neck pain secondary to cervical disc degeneration, and assessed a GAF score of 55. (Tr. 433.) He prescribed Celexa and Restoril. ( Id. )

One month later, Plaintiff told Dr. Gagneja he had not improved. (Tr. 601.) Plaintiff reported having occasional palpitations from anxiety, and he was only sleeping three hours at night. ( Id. ) He had passive suicidal ideation. ( Id. ) He was not having side effects from his medication. ( Id. ) Tingling in his hands and poor concentration made it difficult for him to do his morning bus route, but he was able to do it without any significant problems. ( Id. )

Plaintiff scored 27 and 18 respectively on the PHQ-9 and GAD-7. (Tr. 602.) Apart from his anxious and depressed mood, his mental status examination was normal. ( Id. ) Dr. Gagneja assessed a GAF score of 50. ( Id. ) He reminded Plaintiff to call if the sleep medication was not working, and not to drive if he was not alert. ( Id. ) He increased Plaintiff's medications. ( Id. )

On April 11, 2011, Plaintiff had again had high scores on the PHQ-9 and GAD-7, 26 and 20 respectively. (Tr. 589-90.) He reported that his medications were not working, and that he was sleeping five or six hours during the day after coming home from work. ( Id. ) Dr. Gagneja opined that Plaintiff's affect and behavior were less depressed and anxious than stated, and that his symptoms appeared to be exaggerated. (Tr. 590.) Nonetheless, Dr. Gagneja prescribed a new antidepressant, started Adderall, and assessed a GAF score of 50. ( Id. ) Adderall would be prescribed short-term until Plaintiff's sleep was improved. ( Id. ) Dr. Gagneja told Plaintiff not to sleep during the day if he wanted to sleep at night. ( Id. )

One month later, Plaintiff still had not improved. (Tr. 580.) He was depressed and anxious, and he had nightmares, insomnia, and excessive daytime fatigue. ( Id. ) Dr. Gagneja discontinued Plaintiff's medications and prescribed Remeron. (Tr. 581.) He referred Plaintiff for a sleep study and psychotherapy, and assessed Plaintiff with a GAF score of 50. (Tr. 581-82.)

Dr. Gagneja also completed a psychiatric review technique (PRT) form in support of Plaintiff's disability applications. (Tr. 488-501.) He noted at the end of the form that his evaluation was not focused on evaluating Plaintiff's ability to work or assessing the extent of his functional limitations for work, and that Plaintiff should have an independent evaluation for mental disability. (Tr. 499-500.) But he noted that Plaintiff suffered from "chronic problems with depression, anxiety, flashbacks, and nightmares, with fluctuating symptoms." (Tr. 498.) Dr. Gagneja opined that Plaintiff had marked difficulties in social functioning and in maintaining concentration, persistence or pace, based on his affective and anxiety-related disorders. ( Id. )

On June 16, 2011, Plaintiff reported that he was sleeping better with use of Remeron, but that his other symptoms remained the same. (Tr. 567.) Plaintiff was getting a divorce and applying for disability. ( Id. ) His mental status examination was normal, except for depressed and anxious mood and depressed affect. (Tr. 568.) Dr. Gagneja assessed a GAF score of 50. ( Id. ) The next month, Plaintiff said he was looking for an apartment. (Tr. 555.) He stated that his wife had tried to hurt herself and blamed him for it so he would go to jail. ( Id. ) His sleep was much better, but he felt sedated during the day and wanted a change in medication. ( Id. ) His mood remained depressed and anxious, and he thought about jumping in a river, but he would not do it. (Tr. 556.) His mental status was unchanged. ( Id. ) Dr. Gagneja prescribed Zoloft, and assessed a GAF score of 50. (Tr. 557.)

Plaintiff underwent an evaluation for psychotherapy on September 13, 2011, with Katherine Helm, a licensed professional counselor. (Tr. 542.) Plaintiff said that he was more depressed in the last five to six months, and that his flashbacks and nightmares were increasing. ( Id. ) He could not sleep, and he was under stress at home while pursuing a divorce. ( Id. ) He felt very irritable and angry much of the time and had lashed out at his children. ( Id. ) He had no friends and missed his culture. (Tr. 543.) He had not been eating, and had lost twenty-five pounds over three or four months. ( Id. ) He was fatigued, forgetful, anxious, and worried, and had suicidal thoughts almost every day. ( Id. )

Apart from his anxious, depressed and irritable mood, Plaintiff's mental status examination was normal. (Tr. 544.) He felt ambivalent that psychotherapy would help with flashbacks from the war. (Tr. 545.) Helm diagnosed moderate to severe depression and generalized anxiety disorder, and assessed a GAF score of 48. ( Id. )

Plaintiff followed up with Dr. Gagneja on September 19, 2011. (Tr. 538-41.) He had lost his job but obtained a new school bus driving job. (Tr. 538.) He was concerned about his ability to drive in the winter. ( Id. ) Despite his poor sleep, he was managing to drive the bus, drinking coffee to maintain his attention. ( Id. ) Plaintiff was living with a friend now, pending his divorce and a long waiting list for housing. ( Id. ) He was faced with the possibility of losing his medical insurance because he did not have a permanent address. ( Id. ) He was very distressed about moving into a homeless shelter, and was considering returning to Iraq, but he did not know how he would support himself there. ( Id. )

Plaintiff's PHQ-9 and GAD-7 scores of 27 and 21, respectively, reflected severe depression and anxiety. (Tr. 541.) Dr. Gagneja replaced Plaintiff's medications of Ambien and Zoloft with trazadone and Paxil. (Tr. 539.) Dr. Gagneja considered partial hospitalization, but managing Plaintiff's psychosocial stressors was the most important treatment at that time. (Tr. 540.) Dr. Gagneja diagnosed severe major depressive disorder, generalized anxiety disorder, rule out PTSD, and he assessed a GAF score of 45. ( Id. )

III. Testimony at the Administrative Hearing

Claimant's Testimony. Plaintiff, represented by counsel, testified at a hearing before the ALJ on November 23, 2011. (Tr. 30-72.) At the time of the hearing, Plaintiff lived with his wife and five children, aged five to eighteen. (Tr. 32.) Plaintiff was 5'10" and weighed 205 pounds, after gaining more than twenty pounds over a two-year period. (Tr. 33.)

In 1986, Plaintiff obtained a teaching degree in Kurdistan, which required three years education beyond middle school. (Tr. 34.) After teaching for forty days, he was conscripted into the Iraq army. (Tr. 61.) He testified that he was in the Iraq army from 1986 until 1990, and witnessed horrifying things during that time. (Tr. 36, 61.) He had to leave Iraq because he was a Kurd, and he lived in a refugee camp for several years. (Tr. 62.) He had terrible experiences fleeing Iraq, and in the refugee camp. ( Id. ) He came to the U.S. in 1993 and became a citizen. ( Id. ) He first lived in Connecticut while working as a parking valet, but moved to Fargo-Moorhead to allow his children to go to a good school. (Tr. 62-63.)

After the move to Minnesota, he started noticing symptoms of depression and flashbacks from the war and fleeing Iraq. ( Id. ) His first job in Fargo-Moorhead was driving a city bus in Fargo from 2004-2008, but he quit the job in September 2008 because he was not getting enough sleep due to flashbacks and was concerned that lack of sleep was affecting his ability to safely drive a bus. (Tr. 64-65.) He was sleeping a couple hours off and on at night, and having trouble with flashbacks from the war. (Tr. 65.) He also quit a home healthcare job due to depression and pain in his arms. (Tr. 66-67.)

Plaintiff was presently working for a school bus company, where he was hired in September 2011. (Tr. 37.) He was driving two school bus routes per day, five days a week. (Tr. 39.) His bus route took 45 minutes to an hour. (Tr. 48.) There was a helper on the bus, but all buses with special needs children had bus helpers. (Tr. 40.) Plaintiff had a commercial driver's license that he obtained in 2004, and renewed every two years without having to take a test. (Tr. 43-44.) His wife is disabled and does not work. (Tr. 41.)

Plaintiff testified that he felt tired and lacked energy every day. (Tr. 68-69.) He had trouble concentrating and remembering. (Tr. 69.) He had suicidal thoughts but would not act on them because it was forbidden by his religion. ( Id. ) He was fearful of others, and if provoked, would fight. (Tr. 69-70.) In public, he was afraid he was being followed, and he cried often. (Tr. 70.) He did not get along with his wife or children and was getting a divorce. (Tr. 70.) He did not want to live with them, but he was having a hard time finding somewhere else to live. (Tr. 70-71.)

Plaintiff needed help from his wife to dress, but he could groom himself. (Tr. 42.) He did not help with housework due to his depression and arm pain. ( Id. ) He did not have any hobbies or interests. (Tr. 43.) He was no longer going to a doctor regularly because he did not have insurance. (Tr. 44-45.) His treatment for depression, anxiety and insomnia was not effective, and he was getting worse. (Tr. 45.)

Plaintiff also had constant pain in his arms. (Tr. 47.) The pain was treated with hydrocodone and cortisone shots, and it was caused by a pinched nerve. (Tr. 47-48.) Plaintiff rated the severity of his pain as nine on a scale of one to ten. (Tr. 48.) Driving made his pain worse, although medication helped for a while. ( Id. ) After taking medication, his pain was seven on a scale of one to ten. (Tr. 49.) However, the medication made him dizzy and sleepy. (Tr. 49.) He was afraid to have surgery, and his chances of improvement were not good. (Tr. 50.) Plaintiff did not think he could work eight hours a day, even if he could sit, stand, or walk as needed. (Tr. 57.) He had to lie down and take three or four fifteen minute naps during the day. (Tr. 58.)

Plaintiff further testified that he suffered depression every day, and it became severe in 2008. (Tr. 50.) The medications Dr. Gagneja prescribed were not helping, and they caused sleepiness, tingling in the fingers, and dizziness. (Tr. 51.) Plaintiff had no friends, but he went to a mosque once a day. ( Id. ) He had trouble talking to people, and believed people feared him because of his accent. (Tr. 51-52.) Plaintiff had difficulty concentrating; for example, he could not remember what he just read. ( Id. ) He watched Iraq or Kurdish television for brief periods. ( Id. ) He read the Quran. (Tr. 53.) He does not play games or use a computer. ( Id. )

Medical Expert Testimony. Dr. Stephan Podrygula testified as a psychological expert at the hearing. (Tr. 72-77.) He stated that Plaintiff's medically determinable mental impairments were depression, anxiety disorder, and chronic pain syndrome. (Tr. 74.) Plaintiff met the A criteria of Listing 12.04, Affective Disorders. ( Id. ) Under the B criteria of 12.04 and 12.06, Anxiety Disorders, Plaintiff had moderate to marked restriction in activities of daily living. (Tr. 75.) Some of Plaintiff's restrictions were due to pain rather than depression and anxiety, so Dr. Podrygula did not rate the depression and anxiety disorders alone as marked. ( Id. )

He also rated Plaintiff's difficulties in social functioning as moderate to marked, and difficulties with concentration, persistence or pace were "definitely" marked. ( Id. ) Plaintiff consistently functioned at a fairly low level. ( Id. ) If Plaintiff's chronic pain impairment[16] were added into the mix, Dr. Podrygula would rate activities of daily living as markedly restricted as well. (Tr. 76.) In sum, Dr. Podrygula believed Plaintiff's mental impairments equaled Listings 12.04 and 12.06. ( Id. )

Vocational Expert Testimony. Warren Haagenson testified at the hearing as a vocational expert. (Tr. 77-86, 305.) The ALJ posed a hypothetical vocational question about a person of Plaintiff's age, education and work experience, who was limited to the following: lifting twenty pounds occasionally, ten pounds frequently; never climb ladders, ropes or scaffolds; occasionally balance, stoop, kneel, crouch or crawl; occasionally climb ramps or stairs; occasionally perform overhead work with the left arm; understand, remember and carry out simple and detailed but not complex tasks; maintain concentration, persistence or pace for two to four hours; occasionally interact with coworkers and the public; and tolerate normal supervision. (Tr. 80-81.) Haagenson testified that such a person could perform Plaintiff's past work as a valet driver, and other jobs in the national economy such as small parts bench assembly, [17] poly-packer, [18] and motel cleaner.[19] (Tr. 81.)

For a second hypothetical question, the ALJ further limited the individual to standing and walking two hours per day and sitting six hours per day; carrying out only simple tasks, maintaining concentration, persistence or pace for two hours; and limited to only brief and superficial interaction with coworkers and the public. (Tr. 81-82.) Haagenson testified that the person could perform "elemental industrial jobs" of which there were 87 categories of sedentary jobs listed in the DOT. (Tr. 82.) Three examples were assembler of eyeglass frames, [20] lens inserter, [21] and stuffer of toys or sport equipment.[22] ( Id. ) Combined there were about 3, 100 of those jobs in the regional economy. ( Id. )

The ALJ posed a third hypothetical question, limiting the individual to sedentary work with an option to alternate sitting and standing every thirty minutes, and with the remaining postural and mental limitations contained in the second hypothetical question. (Tr. 82-83.) The ALJ clarified that the person would not have to stand for thirty minutes, but would have the opportunity to stand up before sitting again. (Tr. 83.) Haagenson testified that, based on his experience, the bench assembly jobs could be performed in that manner. (Tr. 83-84.) Haagenson also testified that competitive employment would be ruled out by the need for a job coach. (Tr. 85.)

IV. The ALJ's Findings and Decision

On January 10, 2013, the ALJ issued a decision concluding that Plaintiff was not under a disability, therefore denying Plaintiff's applications for disability insurance benefits and supplemental security income. (Tr. 7-24.) The ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of August 1, 2009. (Tr. 12.) He found that Plaintiff had the following severe impairments: cervical disc herniation at C6-7, major depressive disorder, and post-traumatic stress disorder. (20 C.F.R. §§ 404.1520(c) and 416.920(c)). (Tr. 13.)

Listing of Impairments. The ALJ determined that Plaintiff's physical and mental impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 13-14.) Specifically, Plaintiff did not meet the "B criteria" of Listings 12.04 and 12.06. (Tr. 13.) Plaintiff had only mild restrictions in activities of daily living because he worked as a bus driver and earned substantial gainful levels in the third quarter of 2009 and second quarter of 2010. ( Id. ) In social functioning, Plaintiff had moderate difficulties because he had some difficulty getting along with others. (Tr. 14.) On the other hand, in a consultative examination, Plaintiff was cooperative, easy to interview, attentive, able to respond to most questions, and made good eye contact. ( Id. ) Plaintiff also had moderate difficulties in maintaining concentration, persistence, or pace. ( Id. ) Although his IQ scores indicated that he functioned in an extremely low range, the scores were affected by cultural barriers. ( Id. ) In recent examinations, Plaintiff's memory, attention, and concentration were intact. ( Id. ) He had not suffered any episodes of decompensation. ( Id. )

Residual Functional Capacity. At the next step, the ALJ found that Plaintiff had the RFC to perform:

light work as defined in 20 CFR 404.1567(b) and 416.967(b) except with the following limitations: stand or walk for two hours in an eight hour workday; sit for six hours in an eight hour workday; never climb ladders, ropes or scaffolds; occasionally climb ramps or stairs; occasionally balance, stoop, kneel, crouch, and crawl; only occasional overhead work with the left arm; can understand, remember, and carry out simple, but not detailed or complex tasks; can sustain concentration, persistence or pace for two hours; and, brief and superficial interaction with coworkers and the public, and can tolerate normal supervision.

(Tr. 14-15).

In reaching this RFC determination, the ALJ noted that Plaintiff said he engaged in fairly limited daily activities, but he also said he did not do housework because it was women's work. (Tr. 16.) Plaintiff worked as a school bus driver since the alleged onset date. ( Id. ) Although Plaintiff said he needed a helper on the bus, all buses that drove special needs students had a helper, and it was not an accommodation for Plaintiff. (Tr. 16, 14, 40.)

The ALJ found that the objective evidence did not support greater than light exertional level restrictions, citing evidence that in August 2009, Plaintiff did not complain of neck pain, and there was no neck impairment on examination. ( Id. ) Although Plaintiff had a cervical disc herniation that could cause arm pain, the ALJ discounted his pain complaints because his examination was normal in November 2009, his strength was mostly normal in December 2009, and in February 2011, he had normal muscle tone and strength. ( Id. ) Furthermore, Plaintiff's treatment for pain, particularly nerve root blocks, was successful. ( Id. )

The ALJ also found inconsistencies in the record with Plaintiff's complaints of severe mental health symptoms. (Tr. 17.) In January 2011, Plaintiff denied having the following symptoms: trouble sleeping, mood swings, depression, suicidal thoughts, nervousness and frequent memory loss. ( Id. ) In February and April 2011, his mental status examinations were inconsistent with his subjective complaints. ( Id. ) Also in April 2011, a treating provider opined that Plaintiff's mental symptoms were exaggerated. ( Id. ) The ALJ discounted evidence of GAF scores indicating severe mental symptoms, because GAF scores are a snapshot of a particular time, and not indicative of overall ability to function. ( Id. )

The ALJ gave significant weight to the state agency psychological consultant's opinion (Ex. 5F), finding it consistent with the evidence and with the claimant's current work activity. ( Id. ) The ALJ gave some weight to Dr. Follingstad's opinion, agreeing with the opinion that Plaintiff can understand simple instructions, but not agreeing that he needed a job coach because he was currently working without supervision. ( Id. ) The ALJ also agreed that Plaintiff's IQ scores may not be indicative of his true level of functioning. ( Id. )

The ALJ gave little weight to the opinion contained in Exhibit 11F (Nurse Elbert's opinion), claiming the issue of disability is reserved for the Commissioner. ( Id. ) (Tr. 18.) The ALJ also gave little weight to Dr. Gagneja's opinion because his evaluation was not focused on Plaintiff's ability to work, the extent of Plaintiff's depressive symptoms on functioning was not the focus of his treatment, and Dr. Gagneja noted exaggerated symptoms. ( Id. )

The ALJ accepted the medical expert's diagnosis of PTSD but did not accept the diagnosis of chronic pain syndrome because it was not mentioned in the record, and because the 2011 treatment notes did not indicate neck pain. ( Id. ) The ALJ also found that the medical expert incorrectly identified symptoms of weight change and psychomotor agitation. ( Id. ) The ALJ accepted the medical expert's opinion of Plaintiff's moderate to marked restrictions in activities of daily living because Plaintiff testified that he did not perform household activities due to left arm pain. ( Id. ) The ALJ did not accept the medical expert's opinion of Plaintiff's marked limitations in concentration, persistence, or pace, finding this to be inconsistent with work activity as a bus driver, and with the medical evidence as a whole. ( Id. )

Vocational Findings. At step four of the disability determination procedure, the ALJ found that Plaintiff was not capable of performing his past relevant work. (Tr. 18-19.) At step five of the disability determination procedure, the ALJ found there were jobs that exist in significant numbers in the national economy that the claimant can perform including eyeglass frames assembler, lens inserter, and stuffer. (Tr. 19-20.) Thus, Plaintiff was not under a disability as defined by the Social Security Act, from August 1, 2009, through the date of the ALJ's decision. (Tr. 20.)


I. Standard of Review

Review by this Court of the Commissioner's decision to deny disability benefits to a claimant is limited to a determination of whether the decision of the Commissioner is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Baker v. Barnhart, 457 F.3d 882, 892 (8th Cir. 2006). "There is a notable difference between substantial evidence' and substantial evidence on the record as a whole.'" Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987) (quotation omitted). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). "Substantial evidence on the record as a whole, '... requires a more scrutinizing analysis." Gavin, 811 F.2d at 1199 (quotation omitted). "The substantial evidence test employed in reviewing administrative findings is more than a mere search of the record for evidence supporting the [Commissioner's] findings." Id.

In reviewing the record for substantial evidence, the Court may not substitute its own opinion for that of the ALJ. Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). The Court may not reverse the Commissioner's decision merely because evidence may exist to support the opposite conclusion. Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994); see also Woolf, 3 F.3d at 1213 (concluding that the ALJ's determination must be affirmed if supported by substantial evidence, even if there is also substantial evidence support the opposite finding). ( Id. ) The possibility that the Court could draw two inconsistent conclusions from the same record does not prevent a particular finding from being supported by substantial evidence. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994).

The claimant bears the burden of proving his or her entitlement to disability insurance benefits under the Social Security Act. See 20 C.F.R. § 404.1512(a); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000); Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991). Once the claimant has demonstrated that he or she cannot perform past work due to a disability, "the burden shifts to the Commissioner to prove, first that the claimant retains the residual functional capacity to do other kinds of work, and, second that other work exists in substantial numbers in the national economy that the claimant is able to do." Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000).

II. Analysis of the ALJ's Decision

Plaintiff generally alleges two errors by the ALJ. First, he contends the ALJ erred by finding he did not meet or equal Listings 12.04 and 12.06, as opined by the medical expert and Dr. Gagneja, and supported by other evidence in the record. (Doc. No. 14, Mem. in Supp. of Pl.'s Mot. for Summ. J. ("Pl.'s Mem.") 15-38.)[23] Second, Plaintiff asserts the ALJ's RFC finding is not supported by substantial evidence in the record because the ALJ improperly discounted the treating and examining providers' opinions and Plaintiff's GAF scores, and relied solely on the opinion of a nonexamining consultant. ( Id. at 38-39.) For reasons described below with respect to the opinions and medical evidence obtained through particular medical care providers, consultants, and experts, the Court recommends that this matter be remanded to the Commissioner for further consideration.

Medical Expert Opinions. A significant concern for the Court arises out of the medical expert's testimony at the hearing and the ALJ's analysis and use of that testimony. The medical expert, Dr. Podrygula, opined that when Plaintiff's depression, anxiety, and chronic pain syndrome were considered together, Plaintiff equaled Listing 12.04, affective disorders, and possibly 12.06, anxiety disorder, because those impairments caused Plaintiff marked limitations in daily activities and social functioning, and difficulty in maintaining concentration, persistence, or pace. (Tr. 74-76.) Nonetheless, in his decision the ALJ stated that he "does not accept the diagnosis for chronic pain syndrome. This impairment is not mentioned anywhere in the medical record." (Tr. 18.) In fact, the claimant's experience with neck and leg pain was frequently and consistently indicated in the medical record, (Pl.'s Mem. 22-26), s ee supra pp. 21-22, and the hearing expert's diagnosis of chronic pain was not without a basis in the record. The Court concludes that the ALJ erred by wholly discounting the medical expert's diagnosis of chronic pain syndrome.[24]

When a claimant has multiple impairments the Commission must consider the combined effect of all impairments without regard to whether any particular impairment, viewed separately, would be sufficiently severe to be disabling. Morkemo v. Astrue, No. 08-2047, 2009 WL 2780365 at *3 (W. Dist. Ark. Aug. 27, 2009) (citing Cunningham v. Apfel, 222 F.3d 496, 501 (8th Cir. 2000).) The ALJ may have been correct in observing that the medical record did not contain a specific diagnosis of chronic pain syndrome, but the record did contain substantial evidence that the claimant had often reported arm and neck pain, and sometimes leg pain, over a significant period of time. (Pl. Mem. 23-26.) From this record, the expert could reasonably infer such a diagnosis. The ALJ in this case did not properly consider the claimant's pain issues, including possible chronic pain syndrome. This Court therefore concludes that a consultative medical examination would be appropriate for purposes of determining the impact of pain and the claimant's limitations and difficulties for purposes of meeting Class B Listings criteria.[25] Accordingly, this matter should be remanded for development of the chronic pain syndrome diagnosis and consideration of pain in combination with mental impairments with respect to Listings criteria.[26]

Treating Psychiatrist Opinion. Remand is appropriate for other reasons as well. Dr. Gagneja, M.D., the only treating provider to offer an opinion regarding the Listings, completed a Psychiatric Review Technique ("PRT") form indicating that Plaintiff had marked limitations in social functioning and maintaining concentration, persistence, or pace, under Listings 12.04 and 12.06. (Tr. 498-501.) The ALJ gave "little weight" to Dr. Gagneja's opinion because his "evaluation was not focused on ability to work [and] the extent of depressive symptoms on functioning was not the focus of treatment." (Tr. 18.) Plaintiff contends the ALJ erred by discounting Dr. Gagneja's opinion and in failing to consider the opinion in the context of a Listing, for which the PRT form is intended, but instead considered Dr. Gagneja's opinion for RFC purposes. (Pl.'s Mem. 28-30.) Although the Court concludes that it was not error for the ALJ to discount Dr. Gagneja's findings on the PRT form, because Dr. Gagneja himself suggested that Plaintiff should have an independent psychiatric evaluation to determine his ability to work, (Tr. 499), the Court agrees with Plaintiff's contention that the ALJ failed to fully and fairly develop the record. (Pl.'s Mem. 16.) The ALJ should have ordered a consultative psychiatric evaluation to make such a determination on the claimant's ability to work.

Psychiatric Evaluation. Similarly, Plaintiff underwent a consultative psychiatric evaluation with Dr. Carol Follingstad, Psy.D., L.P., and the results of that evaluation support greater mental functional limitations than found by the ALJ. (Tr. 388.) Dr. Follingstad noted that the results on certain cognitive functioning tests, i.e. WAIS-IV[27] test and WMS-IV[28] test, may not have been a true indicator of Plaintiff's functioning, because cultural factors may have affected the test scores. (Tr. 387.) Without further analysis of the issue, the ALJ rejected Dr. Follingstad's opinion, presuming the low scores were in fact a result of cultural barriers as cautioned by Dr. Follingstad. (Tr. 14.) The ALJ did not explore this issue with the medical expert at the disability hearing, Dr. Podrygula, who testified that Plaintiff met or equaled Listing 12.04 and possibly 12.06. (Tr. 74-76.) And it is unknown whether Dr. Podrygula based his opinions on the questionable test scores. Because the ALJ did not cite any evidence in support of his conclusion that cultural barriers were the actual cause of Plaintiff's low test scores, remand is necessary for further development of the record as to the impact of cultural factors on test scores that form the basis for opinions and decisions on cognitive functioning issues.

Global Assessment of Functioning ("GAF") Scores.[29] Plaintiff further contends that his GAF scores support finding that he experiences the severity of symptoms needed to establish marked limitations in activities of daily living, social functioning, and maintaining concentration, persistence, or pace. (Pl.'s Mem. 18-21.) GAF scores are not definitive of disability. See Jones v. Astrue, 619 F.3d 963, 973-74 (8th Cir. 2010) ("[A]n ALJ may afford greater weight to medical evidence and testimony than to GAF scores when the evidence requires it." (internal citation omitted)). Nevertheless, the Eighth Circuit has found that an ALJ's RFC findings "were not supported by substantial evidence on [the] whole record, in part due to [the] ALJ's failure to discuss or consider numerous GAF scores below 50." Conklin v. Astrue, 360 Fed.App'x 704, 707 (8th Cir. 2010) (citing Pate-Fires v. Astrue, 564 F.3d at 944-45 (8th Cir. 2008)). Here, Plaintiff was assessed with GAF scores of 50 or below on nine occasions over a fourteen month period, with only one intervening GAF score of 55. (Tr. 388, 462, 433, 602, 590, 581, 568, 557, 545, 540.) This Court concludes that the ALJ erred by dismissing Plaintiff's GAF scores as merely a "snapshot of... the claimant's level of functioning... not an indication of overall functioning." (Tr. 17.) The "snapshot in time" here was much of the relevant time period for determination of disability, July 2010 through September 2011.

Given Plaintiff's diagnosis of PTSD, his service in Iraq wars and years as a refugee, along with Nurse Elbert's opinion that PTSD had a substantial impact on Plaintiff's daily function, causing chronic sleep deprivation, depression, and anxiety, the Court finds that the ALJ should have considered the relation of Plaintiff's GAF scores to his depressive and PTSD symptoms. Plaintiff's GAF scores are consistent with Plaintiff's scores on the Patient Health Questionaire ("PHQ-9") and Generalized Anxiety Disorder ("GAD-7"), and are potentially relevant to his poor test performance with Dr. Follingstad. If Plaintiff's poor test performance was attributable to mental impairments and not cultural factors, the ALJ erred by discounting his intelligence test scores and his GAF scores, as well as Dr. Follingstad's opinion.

Substantial Evidence. The Commissioner contends that the ALJ's decision is substantially supported by Dr. Gagneja's April 2011 observation that Plaintiff's symptoms were exaggerated. (Doc. No. 16, Def.'s Mem. in Supp. of Mot. for Summ. J. 9.) On multiple occasions, including April 2011, Plaintiff scored the highest possible scores, or one point below the highest possible score, on the PHQ-9, the GAD-7 forms. (Tr. 459-60, 464, 541, 458, 589.) But Dr. Gagneja only noted Plaintiff's symptoms to be exaggerated on one occasion. And even if Plaintiff's complaints were exaggerated on these questionnaires, he could still fall well within the range of serious mental symptoms, because a PHQ-9 score of twenty or greater indicates severe depression, and any score of eight or more on the GAD-7 falls within the highest category.[30] The scores on these questionnaires could explain why, on all but one occasion, every provider who examined or treated plaintiff, including Dr. Gagneja, assessed a GAF score of 50 or below.

Finally, the ALJ adopted the opinion of a nonexamining state agency consultant, A. Johnson, in the face of contrary opinions from Plaintiff's treating psychiatrist, the consultative examiner, the medical expert at the hearing, and Plaintiff's therapist. Non-treating physicians' opinions alone are not substantial evidence in the face of the conflicting assessment of a treating physician. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); see also Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) ("The opinions of non-treating practitioners who have attempted to evaluate the claimant without examination do not normally constitute substantial evidence on the record as a whole.") (quoting Shontos v. Barnhart, 328 F.3d 418, 427 (8th Cir. 2003)). Johnson reviewed only the medical records in Plaintiff's file as of August 2010, when Plaintiff had only been evaluated for mental impairments on one occasion, by the consultative examiner. (Tr. 389-406.)

Plaintiff explained to Dr. Follingstad that his culture did not allow mental health treatment, and he did not want an interpreter for testing because it could get back to his community that he was being seen for mental health issues. (Tr. 383, 385.) After Plaintiff saw Dr. Follingstad, he began mental health treatment with Dr. Gagneja and others, but Johnson did not review those records. The state agency consultant who reviewed and affirmed Johnson's opinion on November 30, 2010, Dr. Frederiksen, also reviewed few of Plaintiff's mental health treatment records (Tr. 421-23), because much of his mental health treatment occurred on or after November 30, 2010. Yet, the ALJ rejected the hearing testimony from Dr. Podrygula, a psychological expert, who had reviewed the entire record. ( See Tr. 72-77.)

Based on all of the above, this Court concludes that there are unanswered questions about the Listings analysis, and because substantial evidence does not support the ALJ's mental RFC finding, remand is necessary for further development of the record at steps three and four of the disability evaluation process.


Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED that:

1. Plaintiff's Motion for Summary Judgment (Doc. No. 13), be GRANTED FOR REMAND;

2. Defendant's Motion for Summary Judgment (Doc. No. 15), be DENIED; and

3. The case be remanded pursuant to Sentence 4 of 42 U.S.C. § 405(g), for further proceedings consistent with this Opinion; and

4. The case be DISMISSED WITH PREJUDICE, and judgment be entered accordingly.

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