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BURKHART v. BARNHART

United States District Court, N.D. California, San Francisco Division


June 25, 2004.

JODI BURKHART, Plaintiff,
v.
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

[PROPOSED] JUDGMENT

IT IS HEREBY ADJUDGED that the agency's final decision is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g). The Commissioner of Social Security shall assume jurisdiction to conduct further administrative proceedings as set forth in the parties' Stipulation of Remand, filed herein. This constitutes a final judgment under Fed.R.Civ.Proc. 58. STIPULATION AND ORDER OF REMAND

  IT IS HEREBY STIPULATED by the undersigned for the respective parties, subject to the approval of the Court, that this action be remanded to the defendant Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings.

  The claimant filed a new application dated July 3, 2001. Computer records indicate that an Administrative Law Judge (ALJ) issued a favorable decision. The Appeals Council will determine whether a decision can be issued finding an earlier onset date or whether a remand is necessary.

  If a remand is necessary, the ALJ will further evaluate the claimant's subjective complaints in accordance with Social Security Ruling 96-7p and pertinent circuit law. The ALJ will also consider the lay evidence (testimony of claimant's mother) and provide germane reasons to explain the weight given to this testimony. The ALJ must provide clear and convincing reasons to explain the weight given to the claimant's statements. The claimant testified that her pain interfered with her ability to work by preventing her from lifting and carrying (Tr. 37-38). She stated the pain forced her to take a rest break during the day (Tr. 39-40). The vocational expert testified that the need for unscheduled rest breaks would eliminate any work (Tr. 49-50). The claimant's mother testified that when the claimant's pain increases, she starts having major problems and it's pretty scary (Tr. 45).

  PURSUANT TO STIPULATION, IT IS SO ORDERED that this action is reversed and remanded, pursuant to sentence four of 42 U.S.C. § 405(g), to the Commissioner for further proceedings.

20040625

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