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Mansour v. Astrue


February 2, 2009


The opinion of the court was delivered by: Paul L. Abrams United States Magistrate Judge



Plaintiff filed this action on July 18, 2007, seeking review of the Commissioner's denial of her application for Supplemental Security Income. The parties filed Consents to proceed before the undersigned Magistrate Judge on July 31, 2007, and August 6, 2007. Pursuant to the Court's Order, the parties filed a Joint Stipulation on February 28, 2008, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation under submission without oral argument.


Plaintiff was born on May 13, 1964. [Administrative Record ("AR") at 32, 82, 84.] She obtained a high school diploma in Egypt [AR at 35-36, 292], and has past relevant work experience as a secretary and a security guard. [AR at 90, 451-52.]

On November 20, 2000, plaintiff protectively filed her application for Supplemental Security Income payments,*fn1 alleging that she has been unable to work since September 1, 2000,*fn2 due to diabetes, high blood pressure, stress, shortness of breath, a "disabled" right hand, and swollen feet. [AR at 82-84, 89, 278-81.] After her application was denied initially and on reconsideration, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). [AR at 57-70.] A hearing was held on April 10, 2002, at which time plaintiff appeared with counsel and testified, through an interpreter, on her own behalf. [AR at 22-56.] A vocational expert and a medical expert also testified. [AR at 27-32, 50-55.] On April 23, 2002, the ALJ determined that plaintiff was not disabled. [AR at 8-18.]

Plaintiff requested review of the ALJ's April 23, 2002, decision. [AR at 7, 19.] On November 27, 2002, the Appeals Council denied review [AR at 4-5], and plaintiff filed an action in District Court, in Case No. ED CV 03-22-PLA, challenging the Commissioner's decision.*fn3 On June 7, 2006, judgment was entered remanding the case for further proceedings pursuant to the parties' stipulation under sentence four of 42 U.S.C. § 405(g). [AR at 258-62.] On September 6, 2006, the Appeals Council vacated the ALJ's decision of April 23, 2002, and remanded the case for further proceedings. [AR at 256-57.] The Appeals Council instructed the ALJ on remand to (1) update the record and reevaluate all of plaintiff's impairments; (2) evaluate plaintiff's mental impairment under 20 C.F.R. §§ 404.1520a and 416.920a; (3) consider plaintiff's earnings after her alleged onset date and make a determination as to whether they constituted substantial gainful activity; and (4) associate the claim for Title XVI benefits filed on January 27, 2003, with the November 20, 2000, claim, and issue a new decision on the associated claims. [AR at 256.] A new hearing was held before a different ALJ on March 2, 2007, at which time plaintiff appeared with counsel and testified, through an interpreter, on her own behalf. [AR at 446-56.] Plaintiff's daughter also testified. [AR at 453-55.] On April 11, 2007, the ALJ determined that plaintiff was not disabled. [AR at 231-42.] This action followed.


Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

In this context, the term "substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 1257. When determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258.


Persons are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257.


The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of non-disability is made and the claim is denied. Id. If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient "residual functional capacity" to perform her past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a prima facie case of disability is established. The Commissioner then bears the burden of establishing that the claimant is not disabled, because she can perform other substantial gainful work available in the national economy. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.


In this case, at step one, the ALJ found that plaintiff "has engaged in substantial gainful activity since September 1, 2000, the alleged onset date [of the disability]."*fn4 [AR at 237.] At step two, the ALJ concluded that plaintiff "has a severe impairment of the musculoskeletal system, obesity, and diabetes mellitus." [Id.] The ALJ also concluded that plaintiff has a depressive disorder, which is considered non-severe as it has no more than a minimal effect on plaintiff's ability to engage in work-related activities. [AR at 237.] At step three, the ALJ determined that plaintiff's impairments do not meet or equal any of the impairments in the Listing. [Id.] The ALJ further found that plaintiff retained the residual functional capacity ("RFC")*fn5 to perform a full range of medium exertion.*fn6 [AR at 237.] Specifically, the ALJ determined that plaintiff can lift and carry 50 pounds occasionally and 25 pounds frequently, can stand or walk for 6 hours out of an eight- hour day, and can sit for 6 hours out of an eight-hour day.*fn7 [AR at 237.] At step four, the ALJ concluded that plaintiff is capable of performing her past relevant work as a security guard. [AR at 242.] Despite the ALJ's step four determination, he proceeded to step five in the process. [Id.] At step five, the ALJ found, based on the application of Medical-Vocational Rule 203.28 as a framework, that "[w]ork exists in significant numbers in the national economy [that] the claimant is capable of performing consistent with her vocational factors and residual functional capacity." [AR at 242.] Accordingly, the ALJ determined that plaintiff is not disabled.*fn8 [Id.]


Plaintiff contends that the ALJ failed to: (1) comply with the orders of the District Court and the Appeals Council that required the ALJ to properly consider plaintiff's mental impairment; (2) properly develop the record with regard to the opinion of plaintiff's treating physician; (3) properly develop the record regarding the Culver Family and Urgent Care Medical Center's "Certificate to Return to Work or School" dated December 28, 2002; and (4) properly consider the mental and physical demands of plaintiff's past relevant work. Joint Stipulation ("Joint Stip.") at 2-3. As set forth below, the Court agrees with plaintiff in part, and remands the matter for further proceedings.


In evaluating medical opinions, the case law and regulations distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non-examining physicians). See 20 C.F.R. §§ 404.1502, 416.927; see also Lester, 81 F.3d at 830. As a general rule, the opinions of treating physicians are given greater weight than those of other physicians, because treating physicians are employed to cure and therefore have a greater opportunity to know and observe the claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). Although the treating physician's opinion is entitled to great deference, it is not necessarily conclusive as to the question of disability. Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir. 1989).

Where the treating physician's opinion is uncontradicted, it may be rejected only for "clear and convincing" reasons. Lester, 81 F.3d at 830. Where the treating physician's opinion is contradicted by another physician, the ALJ may only reject the opinion of the treating physician if the ALJ provides specific and legitimate reasons for doing so that are based on substantial evidence in the record. See Lester, 81 F.3d at 830; see also 20 C.F.R. §§ 404.1527(d), 416.927(d) (requiring that Social Security Administration "always give good reasons in [the] notice of determination or decision for the weight [given to the] treating source's opinion"); Social Security Ruling*fn9 96-2p ("the notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.").

An examining physician's opinion based on independent clinical findings that differ from the findings of a treating physician may constitute substantial evidence. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) ("Independent clinical findings can be either (1) diagnoses that differ from those offered by another physician and that are supported by substantial evidence, (citation omitted) or (2) findings based on objective medical tests that the treating physician has not herself considered." (citation omitted)). However, even if an examining physician's opinion constitutes substantial evidence, the treating physician's opinion is still entitled to deference.*fn10 See id.; see also SSR 96-2p (a finding that a treating physician's opinion is not entitled to controlling weight does not mean that the opinion is rejected).

Finally, "[t]he opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Lester, 81 F.3d at 831 (emphasis in original). The opinion of a non-examining physician may serve as substantial evidence when it is consistent with other independent evidence in the record. Id. at 830-31. "A report of a non-examining, non-treating physician should be discounted and is not substantial evidence when contradicted by all other evidence in the record." See Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984) (quoting Millner v. Schweiker, 725 F.2d 243, 245 (4th Cir. 1984)).

Plaintiff argues that the ALJ failed to properly consider the opinion of plaintiff's treating physician, Dr. Adel Samaan. Specifically, plaintiff asserts that the ALJ did not sufficiently develop the record with respect to Dr. Samaan's opinion.*fn11 Joint Stip. at 3-4. As discussed below, the Court agrees with plaintiff.

Dr. Samaan treated plaintiff from September 24, 2004, to January 26, 2007. [AR at 436-38, 440-43, 445.] On September 28, 2006, Dr. Samaan completed a "Medical Opinion Re: Ability to Do Work-Related Activities (Physical)" (the "Medical Opinion form") concerning plaintiff's ability to do work-related activities on a day-to-day basis in a regular work setting. [AR at 436-38.] In the Medical Opinion form, Dr. Samaan indicated that plaintiff has the following limitations: (1) she can lift and carry 50 pounds on an occasional basis; (2) she can lift and carry 25 pounds on a frequent basis; (3) she can stand and walk (with normal breaks) for about four hours during an eight-hour day; and (4) she can sit (with normal breaks) for less than two hours during an eight-hour day. [AR at 436.] Dr. Samaan also indicated that plaintiff can sit for thirty minutes before changing position, stand for twenty minutes before changing position, and must walk every five minutes for a duration of five minutes. [AR at 437.] Dr. Samaan noted that plaintiff needs the opportunity to shift at will from sitting or standing/walking, and needs to lie down at unpredictable intervals during a work shift. [Id.] Dr. Samaan indicated that plaintiff's lower back pain syndrome and a physical examination showing a severe spasm support the exertional limitations referenced above. [AR at 437.]

As for the performance of certain postural activities, Dr. Samaan found that plaintiff can occasionally crouch,*fn12 but can never stoop (bend) or climb ladders. [AR at 437.] With respect to the performance of certain physical functions, Dr. Samaan opined that plaintiff's ability to push and pull is affected by her impairments. [AR at 438.] Dr. Samaan further opined that the physical functions of reaching (including overhead) and handling (gross manipulation) are affected by plaintiff's impairments. [Id.] In support of the physical functional limitations, Dr. Samaan noted the following medical findings: diabetic neuropathy, lower back pain syndrome, and sciatica (right side). [Id.] As for environmental restrictions, Dr. Samaan determined that plaintiff needs to avoid concentrated exposure to wetness and humidity, and all exposure to extreme cold, noise, fumes, odors, dusts, gases, poor ventilation, and hazards (machinery, heights, etc.). [Id.] Dr. Samaan again noted diabetic neuropathy, sciatica, and lower back pain syndrome as supportive of the environmental restrictions. [AR at 438.] Furthermore, Dr. Samaan concluded that plaintiff is likely to be absent from work more than three times a month as a result of her impairments or treatment. [Id.]

In 2006, Dr. Samaan completed a "Physician's Supplementary Certificate" in which he diagnosed plaintiff with lower back pain syndrome (724.2) and diabetes with neurological manifestations (250.6), as well as depressive disorder, not otherwise specified (311), and panic disorder without agoraphobia (300.01).*fn13 [AR at 441.] In describing how plaintiff's present condition or impairment prevents her from returning to regular and customary work, Dr. Samaan noted that plaintiff's sciatica is "not yet well healed" and her diabetic neuropathy is "uncontrolled." [Id.]

In rejecting the opinion of Dr. Samaan, the ALJ concluded that (1) there were no clinical or laboratory findings that supported Dr. Samaan's opinion, and the check-the-box form completed by Dr. Samaan was conclusory; (2) Dr. Samaan's physical functional capacity assessment was rebutted by the findings in the internal medicine consultative examination of December 27, 2006; and (3) Dr. Samaan's treatment notes were illegible. [AR at 23-24.]

First, the ALJ's finding that Dr. Samaan's opinion was not entitled to significant weight because it was unsupported by objective clinical and laboratory findings, and was in a conclusory "check-the-box" format, is inaccurate, and thus is inadequate to constitute a specific and legitimate reason for rejecting Dr. Samaan's opinion. [AR at 239.] An ALJ may properly reject a treating physician's opinion that is conclusory and unsupported by medical findings. See Batson v. Commissioner of the Social Security Administration, 359 F.3d 1190, 1195 (9th Cir. 2004) (holding that the ALJ did not err in giving minimal evidentiary weight to the opinion of the claimant's treating physician where the opinion was in the form of a checklist, did not have supportive objective evidence, was contradicted by other statements and assessments of the claimant's medical condition, and was based on the claimant's subjective descriptions of pain); see also Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ permissibly rejected psychological evaluations because they were check-the-box reports that did not contain explanations of the bases of their conclusions).

Although the Medical Opinion form completed by Dr. Samaan did contain many check-thebox type questions, it also required Dr. Samaan to provide support for those conclusions by citing medical findings. Dr. Samaan did just that by noting specific medical findings in support of his opinion. [AR at 437-38.] Further, despite the ALJ's conclusion that "there is no supporting evidence in the file corroborating [Dr. Samaan's] opinion" [AR at 239], both Dr. Samaan's check-the-box and annotated responses are consistent with other medical evidence in the record. Indeed, the record contains clinic progress notes indicating that plaintiff suffers from chronic low back pain, sciatica, feet pain, diabetes mellitus, hyperlipidemia, hypertension, and right hand numbness. [AR at 149, 152, 157, 347, 372.] Moreover, Dr. Samaan's treatment notes support the medical findings noted by him in the Medical Opinion form, i.e., that plaintiff suffers from lower back pain syndrome, sciatica (right side), a severe spasm, and diabetic neuropathy.*fn14 [AR at 440, 445.] Dr. Samaan treated plaintiff for over two years, conducted examinations of plaintiff, and prescribed medications as evidenced by Dr. Samaan's treatment notes contained in the medical record. [AR at 440-43, 445.] See 20 C.F.R. §§ 404.1527(d)(2)(i), (ii), 416.927(d)(2)(i), (ii) (weight accorded to a treating physician's opinion dependent on length of the treatment relationship, frequency of visits, and nature and extent of treatment received). Based on the length of the treatment and Dr. Samaan's experience with plaintiff, Dr. Samaan had the broadest range of knowledge regarding plaintiff's medical condition, which is supported by the record. See Smolen, 80 F.3d at 1279; see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (treating physicians "are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations."); Lester, 81 F.3d at 833 ("The treating physician's continuing relationship with the claimant makes him especially qualified . . . to form an overall conclusion as to functional capacities and limitations, as well as prescribe or approve the overall course of treatment."). Given that plaintiff's medical records, including Dr. Samaan's treatment notes, reveal treatment for, among other things, lower back pain and sciatica, the ALJ's rejection of Dr. Samaan's opinion as lacking supporting evidence itself lacks substantiation.

Next, the ALJ's finding that Dr. Samaan's physical functional capacity assessment was rebutted by internal medicine consultative evaluator Dr. Nicholas N. Lin's assessment is insufficient to constitute a specific and legitimate reason for rejection of Dr. Samaan's opinion. [AR at 239, 415-20.] Generally, more weight is given to the opinions of treating physicians. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). The ALJ may only give less weight to a treating physician's opinion that conflicts with that of another physician if the ALJ provides sufficient specific and legitimate reasons for discounting the opinion. See Lester, 81 F.3d at 830; see also Orn, 495 F.3d at 632-33. Here, the ALJ merely asserts that Dr. Samaan's "extremely restrictive physical functional capacity assessment is rebutted by other evidence in the record, including the detailed consultative examination conducted December 27, 2006 by Dr. Lin." [AR at 239.] This vague assertion by the ALJ does not reach the level of specificity required in order to reject the opinion of a treating physician. See Embrey v. Bowen, 849 F.2d 418, 421-23 (9th Cir. 1988) ("To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim. The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the [treating] doctors', are correct." (footnote omitted)); see also McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (finding that the ALJ rejecting the treating physician's opinion on the grounds that it was contrary to clinical findings in the record, was "broad and vague, failing to specify why the ALJ felt the treating physician's opinion was flawed"). Although the ALJ indicates that Dr. Samaan's assessment is "rebutted" by "other evidence in the record," including Dr. Lin's assessment, he does not provide any explanation for his conclusion and fails to sufficiently specify exactly how Dr. Samaan's assessment was flawed in comparison to the other evidence and the assessment of Dr. Lin. As such, the ALJ's assertion is insufficient to support his rejection of Dr. Samaan's opinion.

Finally,the ALJ's finding that Dr. Samaan's treatment notes were illegible, and thus "virtually worthless," considered in combination with his conclusion that Dr. Samaan's opinion was unsupported by any medical findings, should have triggered the ALJ's duty to seek further development of the record to determine the basis of Dr. Samaan's findings. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) ("Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to 'conduct an appropriate inquiry.'") (quoting Smolen, 80 F.3d at 1288); see also Cutler v. Weinberger, 516 F.2d 1282, 1285 (2nd Cir. 1975) ("Where the medical records are crucial to the claimant's claim, illegibility of important evidentiary material has been held to warrant a remand for further clarification and supplementation."); Miller v. Heckler, 756 F.2d 679, 680-81 (8th Cir. 1985) (finding that the ALJ failed to develop evidence from the claimant's treating source where the record contained handwritten entries that were in large part illegible); 20 C.F.R. §§ 404.1512(e)(1), 416.912(e)(1) ("We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques."). In making a determination of disability, the ALJ must develop the record and interpret the medical evidence. See Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) (the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered even when the claimant is represented by counsel); see also Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981) (recognizing the need for full and detailed findings of facts essential to the ALJ's conclusion). If evidence from the medical source is inadequate to determine if the claimant is disabled, an ALJ is required to recontact the medical source to determine if additional needed information is readily available. See SSR 96-5p (because treating source evidence is important, when a treating opinion is ambiguous, inconsistent, incomplete, or appears not to be based on objective findings, the ALJ must make "'every reasonable effort'" to recontact the treating medical source for clarification); see also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) ("An ALJ is required to recontact a doctor if the doctor's report is ambiguous or insufficient for the ALJ to make a disability determination.") (citation omitted). The responsibility to see that this duty is fulfilled belongs entirely to the ALJ; it is not part of the claimant's burden.*fn15 White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001).

Here, the record was not sufficiently developed to reject Dr. Samaan's opinion to the extent the ALJ believed that the treatment notes were undecipherable, did not contain all the necessary information, or did not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.*fn16 For instance, in light of the ALJ's expressed skepticism toward the opinion of Dr. Samaan as being "illegible" and unsupported by objective evidence, it would have required little effort on his part to recontact the treating physician to determine the basis of his opinion. See Smolen, 80 F.3d at 1288 ("If the ALJ thought he needed to know the basis of [the treating physician's opinion] in order to evaluate [it], he had a duty to conduct an appropriate inquiry."). The ALJ should recontact Dr. Samaan on remand in order to resolve any perceived inadequacies and fully develop the record.*fn17 See 20 C.F.R. §§ 404.1519a(b)(4), 416.919a(b)(4) (where the medical evidence contains "[a] conflict, inconsistency, ambiguity, or insufficiency," the ALJ should resolve the inconsistency by recontacting the medical source).

Accordingly, the ALJ erred by not giving any specific and legitimate reasons supported by substantial evidence in the record for rejecting Dr. Samaan's opinion, and by failing to fully develop the record.*fn18 As such, remand is warranted.*fn19


As a general rule, remand is warranted where additional administrative proceedings could remedy defects in the Commissioner's decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). In this case, remand is appropriate to properly consider Dr. Samaan's opinion and fully develop the record. The ALJ is instructed to take whatever further action is deemed appropriate and consistent with this decision.

Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion.

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