Opinion
Case No. 02-4106-JAR.
September 9, 2004
MEMORANDUM ORDER
Plaintiff Randolph S. Frost brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of Defendant Commissioner of Social Security's denial of his application for a period of disability and disability insurance benefits under Title II of the Social Security Act (Act) and supplemental security income under Title XVI of the Act. According to plaintiff, defendant erred in: assessing whether his impairments met or equaled a Listed Impairment; analyzing his credibility; according improper weight to the physicians' opinions; assessing the severity of his mental impairment; and consequently relying on vocational expert testimony that was not based on an adequate portrayal of his abilities. Because the defendant's decision was in part, based on insubstantial evidence and/or on an incorrect application of the law, the Court reverses and remands this case.
I. Procedural Background
On December 16, 1996, plaintiff filed his application for a period of disability and disability insurance benefits; and on November 13, 1996, he protectively filed his application for supplemental security income. These applications claimed disability since October 4, 1995, the date that plaintiff allegedly suffered a herniated disc while doing heavy lifting at work. The applications were denied initially and upon reconsideration. At plaintiff's request, an administrative law judge (ALJ) held a hearing on January 12, 1998, at which both plaintiff and his counsel were present. The ALJ denied all benefits on the basis that plaintiff was not under a "disability" as defined by the Act. Upon review by the Appeals Council, the ALJ's decision was vacated and remanded for another hearing. A different ALJ conducted the second hearing, at which plaintiff and his counsel were present. This ALJ also denied all benefits; and plaintiff's request for review by the Appeals Council was denied. Thus, the second ALJ's June 13, 2000, decision is the final decision of defendant.
After plaintiff filed his appeal in this Court, defendant filed a motion to remand the case pursuant to sentence six or sentence four of 42 U.S.C. § 405(g). Plaintiff opposed the motion. This Court adopted, over defendant's objection, United States Magistrate Judge K. Gary Sebelius's Report and Recommendation denying remand under sentence six or sentence four. Defendant had failed to make the required showing for a remand under sentence six or sentence four. This Court invited defendant to renew her motion for a sentence four remand following the filing of the parties' briefs.
Defendant now renews her argument that the case should be reversed and remanded under sentence four, for another ALJ hearing. Plaintiff argues that the record fully evidences his disability, negating any need for additional fact finding. Plaintiff thus requests a reversal and remand for an immediate award of benefits.
II. Standard of Review
Judicial review under 42 U.S.C. § 405(g) is limited to whether defendant's decision is supported by substantial evidence in the record as a whole and whether defendant applied the correct legal standards. The Tenth Circuit has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." In the course of its review, the court may not reweigh the evidence or substitute its judgment for that of defendant.
See White v. Massanari, 271 F.3d 1256, 1257 (10th Cir. 2001) (citing Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994)).
Id. (quoting Castellano, 26 F.3d at 1028).
Id.
III. Relevant Framework for Analyzing Claim of Disability and the ALJ's Findings
"Disability" is defined in the Act as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . ." The Act further provides that an individual "shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ."
Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (quoting 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (1982)).
Id. (quoting 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B) (1982 Supp. III 1985)).
The Social Security Administration has established a five-step sequential evaluation process for determining whether a claimant is disabled, and the ALJ in this case followed the five-step process. If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary. Step one determines whether the claimant is presently engaged in substantial gainful activity. If he is, disability benefits are denied. If he is not, the ALJ must proceed to the second step. Here, the ALJ determined that plaintiff was not engaged in substantial gainful activity and, thus, properly proceeded to the second step.
See id. (citing 20 C.F.R. §§ 404.1520, 416.920 (1986)).
Id.
Id.
Id.
Id.
The second step of the evaluation process involves a determination of whether "the claimant has a medically severe impairment or combination of impairments." This determination is governed by certain "severity regulations," is based on medical factors alone, and consequently, does not include consideration of such vocational factors as age, education, and work experience. Pursuant to the severity regulations, the claimant must make a threshold showing that his medically determinable impairment or combination of impairments significantly limits his ability to do basic work activities. If the claimant is unable to show that his impairments would have more than a minimal effect on his ability to do basic work activities, he is not eligible for disability benefits. If, on the other hand, the claimant presents medical evidence and makes the de minimis showing of medical severity, the ALJ proceeds to step three. The ALJ determined that plaintiff's right shoulder pain, history of surgical removal of two right wrist bodies, and dysthymia/depression were not severe for the twelve month duration required by law. But the ALJ concluded that plaintiff satisfied the severity requirement based on the following impairments: a history of degenerative disk disease; bulging discs; a herniated disc in the lumbar spine with no disc herniation until November 24, 1997; and a history of biportal microdiskectomy at L3-4 and L4-5 on January 27, 1998, with good results from surgery. Thus, the ALJ proceeded to step three.
Id. (quoting Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987)).
Id. (citing 20 C.F.R. §§ 404.1520(c), 416.920(c) (1986)).
Id. at 750-51 (citing 20 C.F.R. §§ 404.1521(b), 416.921(b) (1986)).
Id. at 751.
Id.
In step three, the ALJ "determines whether the impairment is equivalent to one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." If the impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to benefits. If not, the evaluation proceeds to the fourth step, where the claimant must show that the "impairment prevents [the claimant] from performing work he has performed in the past." If the claimant is able to perform his previous work, he is not disabled. With respect to the third step of the process in this case, the ALJ determined that plaintiff's impairments were not listed or medically equivalent to those listed in the relevant regulations. At the fourth step, the ALJ concluded that plaintiff was unable to perform his past relevant work.
Id. (citing 20 C.F.R. §§ 404.1520(d), 416.920(d) (1986); Bowen v. Yuckert, 482 U.S. at 141).
Id.
Id. (citing 20 C.F.R. §§ 404.1520(e), 416.920(e) (1986); Bowen v. Yuckert, 482 U.S. at 141).
Id.
Thus, the ALJ proceeded to the fifth and final step of the sequential evaluation process — determining whether the claimant has the residual functional capacity (RFC) "to perform other work in the national economy in view of his age, education, and work experience." At that point, the ALJ properly shifted the burden of proof to defendant to establish that plaintiff retains the capacity "to perform an alternative work activity and that this specific type of job exists in the national economy." At this step, the ALJ concluded that plaintiff was not disabled because he could perform a significant number of jobs in the state and national economies, including cashier, office helper/messenger, and fast food worker/counter attendant.
See id. at 750.
See id. (citations omitted); accord White, 271 F.3d at 1258 (at fifth step, burden of proof shifts to Commissioner to show that claimant retains the functional capacity to do specific jobs).
IV. Analysis of Plaintiff's Specific Arguments
Plaintiff and defendant agree that the ALJ committed error in determining plaintiff's mental impairment, credibility and RFC. In addition, plaintiff contends that the ALJ erred in finding that his impairments failed to meet or equal Listing 1.05 C and further erred in evaluating the physicians' opinions. The Court finds no error in the ALJ's finding that plaintiff did not meet or equal listing 1.05 C. However, the Court concludes that the ALJ erred in her evaluation of the physicians' opinions and in her determination of mental impairment, credibility and RFC.
A. Listing 1.05 C
Plaintiff contends that the ALJ erred in determining that he did not meet Listing 1.05 C, as it existed when the ALJ made her decision. This Listing is defined as:
20 C.F.R. Pt. 404, Subpt. P, App. 1 (2000) (§ 1.05(C) was replaced by § 1.04(A) in 2002).
Other vertebrogenic disorders (e.g. herniated nucleus puplosus, spinal stenosis) with the following persisting for at least 3 months despite prescribed therapy and expected to last 12 months. With both 1 and 2:
1. Pain, muscle spasm, and significant limitation of motion in the spine; and
2. Appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss.
Id.
The ALJ noted that although plaintiff claimed his lumbar spine condition was close to meeting this Listing, his attorney admitted that there was no objective medical evidence of significant motor loss with muscle weakness or sensory and reflex loss. Plaintiff's argument that this Listing does not require objective medical evidence is not persuasive; plaintiff cites no authority for this argument. Moreover, the objective medical evidence does not support this Listing. Although plaintiff had the required "other vertebrogenic disorder" in November 1997 when he was diagnosed with a herniated disc, there is not substantial evidence that he had a herniated disc before November 1997. While some physicians opined that he may have had a herniated disc before November 1997, this evidence is outweighed by other physicians' opinions that he did not have a herniated disc before November 1997. And other evidence plaintiff cites to is not persuasive, for plaintiff does not explain how this evidence demonstrates significant motor loss and reflex loss. In short, the ALJ's determination that plaintiff's impairments did not meet or equal Listing 1.05 C finds substantial support in the record.
B. Physicians' Opinions
In several respects the ALJ erred in her consideration and evaluation of physicians' opinions. The ALJ never addressed the opinions of treating physicians, Drs. Vernon, Hoffman, and Johnson, all of whom opined, at one point in the record, that plaintiff should remain off work. Plaintiff notes that none of these treating physicians ever lifted the work restriction. These opinions could be construed as stating that plaintiff could not return to the job he had at the time of his injury, rather than as opinions that plaintiff could do no work. On the other hand, perhaps the ALJ viewed these, not as opinions of plaintiff's functional limitations or abilities, but as opinions on the ultimate issue of disability. In the Tenth Circuit, a treating physician's opinion is not dispositive on the ultimate issue of disability.
Castellano v. Sec'y of Health Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (citing 20 C.F.R. §§ 404.1527(e)(2), 416.927(d)(2)).
Because the ALJ did not address these opinions, the Court cannot ascertain what weight, if any, she gave to the opinions of these treating physicians. This is problematic, for the ALJ must give "controlling weight" to the opinion of a treating source, provided that the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques." If the opinion is well supported, then the ALJ must confirm that it is consistent with other substantial evidence in the record. If these requirements are not present, the opinion is not entitled to controlling weight; but, the opinion of a treating physician is still entitled to deference and must be weighed considering such factors as: the length of the treatment relationship, the frequency of examination, nature and extent of treatment provided, the extent to which the opinion is supported by objective medical evidence, the opinion's consistency with the record as a whole, and other factors brought to the attention of the ALJ that tend to support or contradict the opinion. The ALJ cannot, as she did here, disregard a treating source's opinion that a claimant is disabled without giving legitimate and specific reasons for doing so. The ALJ should address these opinions on remand and give them controlling weight if they are well supported.
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting Soc. Sec. Reg. 96-2p, 1996 WL 374188, at *2)).
Id.
Id.
Robinson v. Barnhart, 366 F.3d 1078, 1082 (10th Cir. 2004) (quoting Watkins, 350 F.3d at 1300-01; Soc. Sec. Reg. 96-2p)).
See Goatcher v. U.S. Dep't of Health Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) (citing Frey v. Bowen, 816 F.2d 508, 513 (10th Cir. 1987)).
While failing to address the opinions of the treating physicians, the ALJ discussed and relied on the opinions of Drs. Clymer, Amundson and Ebelke, all of whom examined and evaluated, but did not treat plaintiff. Dr. Ebelke who examined plaintiff only once, in August 1996, stated that he was unable to justify any specific or permanent work restrictions. Dr. Ebelke further stated that he saw no reason why plaintiff could not go back to work at that time other than plaintiff's subjective complaints, which he felt seemed to exceed the objective findings. Because the ALJ erroneously referred to Dr. Ebelke as a treating physician, she presumably erroneously gave Dr. Ebelke's opinion the weight accorded that of a treating physician.
The ALJ also relied on the opinion of Dr. Clymer, based on his sole examination of plaintiff, in April 1997, that plaintiff could work as long as he avoided highly repetitive bending and lifting and limited lifting to 40 to 50 pounds. And the ALJ relied on the opinion of Dr. Amundson, who recommended further work-up of plaintiff, but gave an opinion based on his examination of plaintiff in August 1997. Dr. Amundson opined that plaintiff should be restricted to medium work or less with occasional lifting of only 50 pounds; no sustained or awkward postures of the lumbar spine; and avoidance of repetitive bending, pushing, pulling, twisting or lifting activities on a permanent basis.
The ALJ must give the most weight to a treating physician's opinion; opinions of physicians who have examined the claimant are given less weight; and opinions of physicians who merely review the claimant's records are to be given the least amount of weight. Thus the ALJ should have given the most weight to the opinions of Drs. Vernon, Hoffman and Johnson, whose opinions she did not discuss at all. And, although the ALJ properly considered the opinions of examining Drs. Clymer, Ebelke and Amundson, she must consider their opinions using the same specific factors used in deciding what weight to give a treating physician's opinion, including the length of the treatment relationship, the frequency of examination, and the extent to which the opinion is supported by objective medical evidence. There is no indication in the record that she considered these factors in determining the weight she accorded to their opinions.
Talbot v. Heckler, 814 F.2d 1456, 1463 (10th Cir. 1987).
Goatcher, 52 F.3d at 290.
Certainly it was proper to give some weight to the opinions of these examining physicians, which included their opinions of functional limitations relating to plaintiff's ability to work and his RFC. But, as plaintiff points out, because Drs. Clymer, Amundson, and Ebelke examined plaintiff before the diagnosis of herniated disc in November 1997, their opinions are relevant as to whether plaintiff was disabled before November 1997. The Court agrees with plaintiff that these opinions should not be used to make any determination of his disability after November 1997. C. Plaintiff's Mental Impairments
The ALJ determined at step two that any mental impairments plaintiff might have had were not severe for the twelve months required for a disability determination. In demonstrating severity, plaintiff "must make a threshold showing that his medically determinable impairment or combination of impairments significantly limits his ability to do basic work activities, i.e., `the abilities and aptitudes necessary to do most jobs.'" Plaintiff has the burden at this level to show that the impairment would have more than a minimal effect on his ability to do work activities. Plaintiff must produce medical evidence showing how his impairment affects his ability to work. Plaintiff contends that there is clear evidence that his mental impairments were severe; defendant contends that the case should be remanded for the ALJ to reconsider whether or not plaintiff's mental impairments were severe.
Williams v. Bowen, 844 F.2d 748, 751 (citing 20 C.F.R. §§ 404.1521(b), 416.921(b) (1986); accord Bowen v. Yuckert, 482 U.S. at 141).
Id.
Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997).
The Court agrees with plaintiff that there appears to be substantial evidence that his depression had more than a minimal effect on his ability to do work related activities. Drs. Moss and Spiridigliozzi, both treating physicians, had that opinion. But simply having a severe mental impairment does not mean plaintiff is disabled. Thus, remand is necessary in order for the ALJ to consider the effects of plaintiff's mental impairments on the rest of the disability determination. For instance, the ALJ should have considered a psychological basis for plaintiff's pain when determining his credibility, and she should have considered 20 C.F.R. §§ 404.1520a and 416.920a and whether plaintiff's mental impairments met or equaled a Listed Impairment. Therefore on remand, the ALJ should reconsider whether plaintiff's mental impairments had more than a minimal effect on his ability to do basic work activities and if so, consider those impairments during the remainder of the disability analysis.
D. Assessment of Plaintiff's Credibility
Plaintiff asserts that the ALJ erred in failing to properly assess the credibility of his subjective complaints of pain. When determining whether a claimant's subjective complaints are credible, the ALJ must consider the objective medical evidence and such factors as: the claimant's persistent attempts to find relief and his willingness to try any treatment prescribed; whether the claimant has regular contact with a doctor; the claimant's daily activities; and the dosage, effectiveness, and side effects of the claimant's medication. The ALJ must give specific reasons for rejecting a claimant's subjective complaints. Ultimately, credibility determinations "are peculiarly the province of the finder of fact," and should not be upset if supported by substantial evidence.
Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (citing Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987)).
White v. Massanari, 271 F.3d 1256, 1261 (10th Cir. 2001) (citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)).
Id. (citing Kepler, 68 F.3d at 390-91).
A review of the ALJ's decision reveals that she stated reasons for finding plaintiff not fully credible, but some of the evidence she relied on was not persuasive, and she failed to discuss any of the evidence that weighed in favor of plaintiff's credibility. As previously discussed, the ALJ failed to consider a psychological basis for plaintiff's pain in evaluating his credibility. The ALJ also failed to consider the treating physician's opinions in her evaluation of plaintiff's credibility. Yet the ALJ apparently gave great weight to the examining physicians' opinions suggesting that plaintiff's subjective complaints were not supported by objective findings and their opinion that plaintiff could perform light work.
The ALJ did consider medical evidence, physicians' opinions, evidence of plaintiff's symptom magnification, lack of side effects from plaintiff's medication, plaintiff's inconsistent work history, plaintiff's lack of mental impairments, and the fact that plaintiff worked after his alleged onset of disability. But much of this analysis ignored, without explanation, evidence favoring plaintiff's credibility. For example, the ALJ found that plaintiff had no side effects from his medications. Yet there was evidence that Percocet made plaintiff sick and that he quit taking Ambien because it made him feel hyperactive, yet he continued to be unable to sleep at night.
There were other infirmities in the ALJ's credibility determination. The Court is not persuaded by the ALJ's characterization of plaintiff's work history as indicative of a lack of motivation to work. Plaintiff had income every year from 1973 until the year after his injury. While his earnings may have declined or vacillated, his earnings record does not demonstrate a lack of motivation to work.
The ALJ also mischaracterized plaintiff's impairments after his back surgery in January 1998. The ALJ implies that after this surgery, plaintiff no longer had an impairment that was capable of producing pain, a threshold consideration in analyzing the credibility of complaints of pain. While the record does not show that plaintiff complained of pain between February 1998 and June 1999, there is evidence that plaintiff complained of recurring pain after June 1999. Moreover, the ALJ's finding that plaintiff made a speedy recovery after surgery and could have returned to light work, is not supported by any of his physicians' opinions. Nor does the ALJ identify any other evidence supporting this finding. The ALJ should consider and discuss this evidence on remand
Luna v. Bowen, 834 F.2d 161, 164 (10th Cir. 1987).
Moreover, defendant agrees that the ALJ made an improper credibility determination. Defendant mentions that the ALJ failed to consider: the effectiveness of plaintiff's medication; the location, duration, frequency, or intensity of plaintiff's pain; the precipitating and aggravating factors that bring about plaintiff's pain; and third party statements. Defendant also agrees that the ALJ should have considered whether plaintiff's perception of his pain is exacerbated by his mental impairments; and that the ALJ should have addressed plaintiff's testimony that he has to lie down during the day. The Court agrees that the ALJ should discuss this evidence on remand
Although the ALJ is not required to discuss each and every credibility factor in her decision, she must discuss the factors that are relevant to a credibility determination. While some of the factors the ALJ relied on were proper, the ALJ failed to consider those factors in light of evidence weighing in favor of plaintiff's credibility. Because the Court cannot reweigh the evidence, the case must be remanded for further weighing of the favorable credibility factors against the unfavorable factors both before and after plaintiff's surgery.
Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993).
E. RFC and Resulting Ability to Work
In support of his argument for remand with an immediate award of benefits, plaintiff points to two limitations which the vocational expert (VE) testified would prevent plaintiff from performing any jobs. The VE testified that if plaintiff needed to lie down for three to four hours (on a good day) and eight hours (on a bad day), plaintiff could not perform any jobs in the national economy. But the only evidence of this limitation is plaintiff's testimony; and as previously discussed, the ALJ failed to consider the credibility of this testimony. Thus, on remand the ALJ must determine the credibility of plaintiff's alleged need to lie down. If she finds this claim credible, she must include it in plaintiff's RFC; if she does not find it credible, she must state substantial evidence for her decision.
The VE also testified that plaintiff would not be able to perform any jobs in the national economy if plaintiff "often" had deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner, as indicated on the State agency psychiatrist's psychiatric review technique form (PRTF). But, the record is not so conclusive that this Court can remand for an immediate award of benefits on this basis.
Although the state agency psychiatrist found that plaintiff "often" had deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner, this psychiatrist also opined that plaintiff did not have a severe mental impairment. This is problematic, for the ALJ is required to follow 20 C.F.R. §§ 404.1520a and 416.920a in assessing mental impairments. At the time of the ALJ's decision in 2000, these regulations provided that a claimant's deficiencies of concentration, persistence, or pace had to be rated as "never" or "seldom" in order for a mental impairment to be considered not severe. Thus the psychiatrist's rating that plaintiff "often" had these deficiencies was indicative of a severe impairment, according to the regulations. Perhaps the psychiatrist's opinion was internally inconsistent. Perhaps the psychiatrist's definition of "often" was different than the VE's definition of "often." Or perhaps the psychiatrist concluded that plaintiff had no severe mental impairment because these limitations were not expected to last for twelve months. Because the psychiatrist did not explain his PRTF findings, it is unclear why he concluded that there was no severe mental impairment despite plaintiff "often" having these deficiencies. In this case, the ALJ should have either included the limitations in the evaluating psychiatrist's PRTF, or she should have stated why the psychiatrist's opinion was not accurate.
20 C.F.R. §§ 404.1520a, 416.920a (2000).
On remand the ALJ should reevaluate plaintiff's mental impairments under the psychiatric review technique in accordance with the statutes. She must explain her findings in her decision, and may need to obtain another expert opinion regarding the severity of plaintiff's mental impairments. Although the wording is different in the current versions of 20 C.F.R. §§ 404.1520a and 416.920a, the same psychiatric review technique is required for determining the severity of plaintiff's mental impairments.
Id. at §§ 404.1520a(e), 416.920a(e).
It is indeed unfortunate that plaintiff has been unable to have his case resolved after two ALJ hearings and opinions and after filing for benefits almost eight years ago. Despite this troubling procedural history and delay, on this record, the Court is unable to remand for an immediate award of benefits. The "record does not substantially support a finding of disabled any more than it supports a finding of not disabled." The ALJ must apply the proper standards and make the proper findings of fact before making a disability determination, and such findings were not made in this case. The Court strongly suggests that these determinations be done on a thorough and expedited basis, given the eight years this plaintiff has been waiting for a final determination concerning disability.
Thompson, 987 F.2d at 1493.
V. Conclusion
Therefore, the Court finds that this action should be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to conduct further proceedings as follows:
Upon receiving the Court's final order of remand, the Appeals Council of the Social Security Administration will remand this case and direct the ALJ to reassess the severity of plaintiff's impairments in accordance with the statutes and regulations. The ALJ should reexamine the severity of plaintiff's mental impairments; reexamine the treating physicians' opinions; and reevaluate plaintiff's credibility, including considering plaintiff's need to lie down during the day and the third party statements as well as all the evidence that weighs in favor of plaintiff's credibility. The ALJ should reevaluate plaintiff's psychiatric review technique, which may require a consultative mental examination. Finally, the ALJ should reconsider plaintiff's impairments at each of the five steps after November 1997 when he was diagnosed with a herniated disc and after his January 1998 surgery, stating substantial evidence from the record for each finding.IT IS THEREFORE ORDERED BY THE COURT THAT defendant's decision denying plaintiff disability benefits is REVERSED AND REMANDED pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings in accordance with this Memorandum and Order.