ELLER v. COLVIN, No. 1:2014cv00493 - Document 15 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 7/22/2015; that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Com missioner under sentence four of 42 U.S.C. § 405(g). To this extent, the undersigned RECOMMENDS that Defendant's Motion for Judgment on the Pleadings (Docket Entry 12 ) be DENIED, and that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 9 ) be GRANTED. To the extent that Plaintiff's motion seeks an immediate award of benefits, the undersigned RECOMMENDS that it be DENIED. (Sheets, Jamie)
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ELLER v. COLVIN Doc. 15 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA TANGELA COOPER ELLER, ) ) Plaintiff, ) ) ) ) ) ) ) ) ) ) v CAROLYN Sr. COLVIN, Acting Commissioner of Social Security, Defendant. l:14CY493 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, Tangela Coopet Eller, seeks review of a fìnal decision of the Commissioner of Social Secutity denying her claims for social security disability benefits. The Court has before it the cenifìed administrative record and cross-motions for judgment. I. PROCEDURAL HISTORY Plaintiff filed an application for a period of disability and disability insurance benefits in Octobet of 2010 alleging a disabiJity onset date of October'1,0,2009,later amended toJune 1, 2009. fr.1,7,1,36-38.) The application was denied initially and again upon reconsideration. (Id. at 60-84.) Plaintiff then requested (Id. at 88-89.) cxpcrt ,\t (1/E"). the February 7 a heating before an -Administrative LawJudge ("ALJ"). , 201,3 headng were Plaintiff, het attorney, and a vocational (d. at 30-59.) On Match 26,201,3, the -A.LJ detetmined that Plaintiff was not disabled undet the -Àct. (Id. at 17-29.) On pril 24, 201,4 the Appeals Council denied Dockets.Justia.com Plaintiffs request for review, making the ,\LJ's determination the Commissioner's fìnal decision fot putposes of review. Qd. at 1,-4.) II. STANDARD FOR REVIEW The scope of judicial teview of the Commissioner's fìnal decision is specific and Srnith a. Scbweiker, 795 F.2d 343, 345 (4th naffou/. detetmining if thete is substantial evidence decision. 42 U.S.C. $ a05(g); Hantera. 907 F.2d 1.453,1,456 (4th Cir. Cir. 1986). Review is limited to in the record to suppott the Commissioner's Sa/liuan,993F.2d3'1,,34 (4th Cir. 1.992);Hayu. Salliuan, 1990). In teviewing for substanttal evidence, the Cout does not re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissioner. Craigu. Chater,76tr.3d 585, 589 (4th Cir. 1,996). The issue befote the Coutt, thetefore, is not whether Plaintiff is disabled but whether the Commissioner's finding that she is not disabled is suppotted by substantial evidence and was reached based upon a correct application of the relevant law. Id. III. THE ALJ'S DISCUSSION The AIJ followed the well-established five-step sequential analysis to ascertain whether the claimant is disabled, which is set forth in 20 C.F.R. Soc. Sec. SS 404.1520. See Adrnin., 1,74 F.3d 473, 475 n.2 (4th Ctr. 1,999). Hete, the LJ Albright u. Comm'r frst detetmined that Plaintiff had not engaged in substantial gainful activity since het amended onset date ofJune 2009. (Id. ^t 1.9.) The ,\LJ next found that Plaintiff suffered ftom a single impaitment, fibromyalgia. impairment (Id.) Àt of 1, severe step three, the ,\LJ found that Plaintiff did not have an ot combination of impairments that meets or 2 medically equals one listed in Appendix 1. (Id.) At the fourth step, the ALJ determined that Plaintiff was unable to perform any past relevant work. Qd. at 23.) At step five, the LJ determined that, given Plaintiffls age, education, work experience, and RFC, thete were other jobs that Plaintiff could perform, such as mail clerk/sortet, office helpet, and ,\IJ foldet (Itl ^t 24.) Consequently, the detetmined that Plaintiff was not disabled from the alleged onset date Sune 1, 2009) thtough the date of the decision (À4arch 26,20'13.). Qr. 24-25.) Prior to step four, the,\LJ determined Plaintiffs RFC based on the AIJ's evaluation of the evidence, including Plaintiffs testimony and the findings of treating and examining health care providers. (Id. at 20-23.) Based on the evidence Plaintiff retained the RFC to perform a as a whole, the limited range of üght the,A.LJ concluded that Plaintiff could perform light wotk work. (ifting and ALJ determined that (Id. at 20.) Specifìcally, carcying twenty pounds occasionally and ten pounds ftequently and standing, walking, and sitting six hours during an eight hout wotk day), except that she: (1) could only ftequently handle and finger brlaterally, Q) could only occasionally climb, balance, stoop, crouch, kneel or crawl, (3) could have no concentrated exposure to hazards like moving machinery or unprotected heights, and (4) should be limited to unskilled activity. (Id.) IV. ANALYSIS Plaintiff makes three arguments. First, Plaintiff contends that the,{IJ failed to follow Social Security Ruling 12-2p in evaluating her severe fibromyalgia. (Docket E.rt y 10 at 3.) Second, she contends that substantial evidence does not support the,{.LJ's RFC finding. (Id.) Third, Plaintiff contends that the ,{LJ failed to present a proper hypothetical question to the -) VE. (Itl.) Fot the following reasons, the undetsigned concludes A. that rcmand is in order SSR 12-2p and Fibtornyalg¡a Plaintiff argues that the ,\LJ ered by failing to address fibromyalgia at every step of the process, particulady at step three. (Docket E.ttty 10 at3.) She contends that though the AIJ found at step two that Plaintiff's fibtomyalgia was severe, the ALJ never mentioned SSR 12-2p in his decision, nor evaluated Plaintiff in light of the Ruling. (Id.) To evaluate this argument, an understanding of the n tute of fibromyalgra, and of SSR 12-2p, is necessary. Regarding the fotmer, the Foutth Circuit has explained: symptomsl ] [f]ibtomyalgia is a rheumatic disease with . including "significant pain and fatigue," tenderness, stiffness of joints, and disturbed sleep . . . . Doctots diagnose fibtomyalgia based on tenderness of at least eleven of eighteen standatd trigger points on the body. . . "People with rheumatoid athritis and othet autoimmune diseases, such as lupus, ate parttcularþ likely to develop fibromyalgia." . . . Fibromyalgia"caninterfete with a person's ability to carry on daily activities." "Some people may have such a severe case of fìbromyalgi^ to be totally ^s disabled ftom working, but most do not." Stap u. UNUM Life Int. Co., 390 F.3d 301, 303 (4th Cft. 2004) (internal citations omitted) abrogated on othergroønds, Metro. Life Im Co. a. Glenn, 554 U.S. 105 (2008). -As for SSR 12-2p, its putpose is to provide "guidance orì how fthe.{dministtation] develop[s] evidence to establish that a person has a medically determinable impairment (MDI) of ûbtomyalgia @M), and how fthe Administration] evaluate[s] FM in disability claims and continuing disability teviews under tides II and XVI of the Social Security Act (-Act)." 25,2012) 4 SSR 12-2p,2012WL3104869, at *1 fluly B. Step Three When evaluating whethet a claimant meets one or more of the listed impairments, the LJ must identift the relevant listings and then compare each of the listed criteria to the evidence of the claimant's symptoms . Cook u. Hetkler, 783 F.2d 11,68, 1.173 (4th Cir. 1986). This requfues an .{LJ to compare the plaintifPs actual symptoms to the requitements of any relevant listed impairments in mote than a summarT v/ay. more than a Id. "The ÀLJ is required to give mere conclusory analysis of the plaintifPs impairments pursuant to the tegulatory listings." Frale1u. Astrae, No. 5:07CV14'1.,2009 ì7L 577261, úx25 OJ.D.!ø.Va.Mar.5,2009) (citation omitted). In SSR '12-2p, the Administtation provided the following guidance as to how to consider fìbromyaþa at step thtee of the sequential process FM cannot meet a listing in appendix 1 because FM is not a listed impairment. .t step 3, therefore, we determine whethet FM medically equals a listing (fot example, listing 1,4.09D in the listing for inflammatory arthntis), ot whether it medically equals a listing in combination with least one othet medicaliy ^t determinable impairment. SSR 12-2p,2012 nØL 3104869,at*6 Here, in his step three analysis, the -ALJ wrote "The claimant does not have an impairment of combination of impaitments that meets ot medically equals the sevetity of one of the ìisted impafuments . . . . The severity of the claimant's mental impairment does not meet or medically equal the criteda of listing 12.06."1 ffr. 19.) After setting fonh the criteda t Lirting 12.06, the listing for anxiety-related disorders, is met if an individual meets ot medically equals the,\ and B, or the,\ and C, cdteria. 20 C.F.R. Pt.404, Subpart P.,,\pp'x 1 S 12.06(Ð-(C). The Ä cnter:ra are met when a claimant medically documents at least one of five symptoms. Id. The 5 for that listing-which tequires that the LJ rate Plaintiffs activities of daily living, social functioning; concentration petsistence, or pace; and repeated episodes of decompen52den-¡þe ,\LJ conducted the following analysis In activities of daily living, the claimant has mild restrictions as the claimant cares for het cats, vacuums, does laundry, watches television, and uses the computer to pay bills. In social functioning, the clatmant has mild difficulties as she attends Bible study on Monday nights, gtocerT shops, and gets along with others. \)Øith regatd to coflcenttation, persistence or pace, the claimant has mild difficulties as the claimant stated that she could focus and concenú^te. As for episodes of decompensation, the claimant has experienced no episodes of decompensation, which have been of extended dutation. Because the claimant's mental impairment does not cause at least two "marked" limitations or one matked limitation and "repeated" episodes of decompensation, each of extended duration, the "patagraph B" crttetia arc not satisfied. The undetsigned has also consideted whethet the "pangtaph C" ctitetia are satisfied. In this case, the evidence fails to establish the presence of the "pangraph C" ctitetia. Çr 20.) It is cleat from the tecotd that "the ALJ failed to discuss or even mention Plaintiffs fìbtomyalgia" at Step 3 in concluding that Plaintiffs impairments, singulady or in combination, failed to equal a listed impai-tment." Kinsry u. Coluin,No. 8:13-1723-8HH,201,4 B criteria are met by having at least two of the followrng: marked testtiction of activities of daily living; matked difficulties in maintaining social functioning; matked difficulties in maintaining concentradon, persistence, or pace; or repeated episodes of decompensation, each of extended dutation. Id. The paragraph C cdteria require the complete inabrlity to function outside the area of one's home. Id. 6 Action No. 1:14CV1.26, 201,5 \Xry- 51,8645, No. 1:12CV909, 201.3\Xry,3791439,úx4-5 ñ x'1,4 G{.D.ìø.Va. Feb. 6, 201,5); Cashin u. Coluin, (1.{.D. OhioJuly 1,8,201.3). The,\LJ should have done so after detetmining that Plaintiffs fìbromyalgia was a severe impairment at step two of the sequential evaluation. Qr. at 19.) Given the A{'s failure to mention or discuss PlaintifPs fìbromyalgia at step thtee of the sequential evaluation, the undetsigned cannot conclude that the,{LJ's determination that Plaintiff did not "have an impairment or combination of impairments that meets ot medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, ,\ppendix 1" Gt. ^t 1.9) is suppotted by substantial evidence. Nor can the undersigned find that such ertot is hatmless "because the Social Secutity regulations state that if a person's impaitments meet or equal a Listing, she is disabled under the regulations and would be entitled to benefits with no futther analysis required." Cashin, 2013 WL 3791,439, at undetsigned agrees that the matter should be remanded for *6.2 Accotdingly, discussion of the Plaintiffs fibromyalgia at Step Three. Defendant's atguments to the conúary are not persuasive. Defendant acknowledges that the ,\LJ did not mention SSR 12-2p at step three, nor anywhete else in his decision, but contends that he had no obligation to do so, so long as he fully complied with the requirements 2 Hook, 201,5 VL 51.8645, at *14-15 (concluding that failure to mention the claimant's severe frbtomyaþa at step thtee was not harmless etror); Lillard u. Clmm'r, Sot. Sec., No. 13-cv-1458-JI3, 2014 WL 200471,0, at *3 (D. Md. May 1,4, 201,4) (remanding for futhet analysis of claimant's fibromyalgia because "it is not clear [the ,\LJ'E decision would have been the same had she employed the guidance of SSR 12-2p" and considering it "[s]ignificantl ]" that "the ALJ only exptessly considered Listing 12.04, which penains to affective disorders, and she did not specifically evaluate any Listings for physical impaitments"); Vest u. Coluin, No. 5:13CV00067, 2014 WL 4656207, at *27 (E.D. Va. Sept. 16, 2014) ('The mere fact thatan-{LJ ptoperly found a claimant capable of past work at step four ot of othet wotk at step Frve does not render error at step three harmless; otherwise, ^n step thtee errors would never be teversible alone, which is cleady not the case."). See 7 of that Rule. (Docket E.rtry 1,3 at 7.) The undersigned agrees that thete is no per se rule requidng remand for an -ALJ's failure to mention SSR 12-2p where fìbtomyalgia is found to be a severe impairment at step two. Recommendation, it is fat from Flowever, for reasons descdbed throughout *ris cleat that the -dLJ was cogtizant of, and adhered to, the dictates of SSR 1,2-2p. Defendant also contends that the ALJ considered Plaintiffs fibromyalgia at step three. (Docket Entty 1,3 at 8-1,0.) Defendant concedes that the ALJ never mentioned fibromyalgia at step three, but teasons that the ,\LJ must have considered Plaintiffls fibtomyaþa because was the only severe impairment identifìed by the LJ at step futher contends that the ,\LJ suffeted is not an (Id. at 9.) Defendant analyzed Listing 12.06 because of the alleged limitations in het ability to concentate .ssuming this two. and focus as a result Plaintiff of het fibromyalgia. impermissrlie þo:t hoo' rattonahzalon by the it Qd.) Commissionet,3 Defendant's argument-^t least at fìrst glance-seems compelling. However, Plaintiff, by way of teply, has a compelling point as well. She suggests that by evaluating Listing 12.06 telated to anxiety impairments at step three, the ALJ was simply tracking tbe 1,2.06 analysis conducted by the non-examining state agency physicians who wete analyzing Plaintiffs non-severe anxiety disorder lø;thet than Plaintiffs fìbromyalgia. (Docket E.rtty 14 at referencing Tr. 63-64, 72-74.) Ultimately this exchange heightens the concern of 5 the undersigned that the LJ failed to adequately explain his findings and teasoning at step thtee 3 Postbocagency rattonaltzattons are not favored. Nken u. Holder,585 F.3d 878,822 (4th Cir. 2009) meant to say, but must instead restrict itself (concluding that"a court may not guess at what ^n ^gency to what the agency actually did say"). 8 and may have also failed to consider a rclatvely new SSR ruling.a See Radþrd u. Coluin,734 F.3d 288, 295 (4th C:r.. 2013) ("i\ necessary predtcate to engaging in substantial evidence review is a record of the basis for the ALJ's ruling."); see also Iuþt<ex re/. I-npequ. Barnhart, 336 F.3d 535, 539 (7thCu.2003) (concluding that an ALJ is tequtued to build aloglcal bddge between the evidence and his conclusions). Remand is justifìed on this gtound alone, however, there ate additional teasons, descdbed below, further eroding the confìdence of the undetsigned that the ALJ's decision is supported by substantsal evidence. C. RFC The undersigned also has serious concerns about the ,{IJ's RFC determination. "Elh. nature of fibromyalgSa means that a patient's ability to perform certaln tasks or postural maneuvers on a glven day does rìot necessarily reflect an ability to petform those tasks and maneuvers on a sustilned basis." IYinkler u. Commi¡sioner, 1,4-2720, 201,5 WL 4069334, 201.5 VL 4069334, emphasizes that the ALJ ú x4 Social Sec. P. Admin, Civil No. S,tG- Md. July 2, 201,5). SSR 12-2p "will consider a longitudinal record whenever possible because the symptoms of FM [fibromyalgraf can wax and wane so that a person may have 'bad days and good days."' SSR 12-2p,201,2 ìfL 3104869, atx6. Here, the,\LJ failed to adequately evaluate the records of PlaintifFs treating physician, Dt. Elliot L. Semble, M.D.. Plaintiff met close to fifty tjmes over a multi-yeat pedod with Dr Semble, at Salem Rheumatology, P.À., in Winston Salem, a Noth Caroltna, where she was meaningful step three eror Defendant further contends that Plaintiff cannot demonstrate ^îy equals. (Docket Enty 1,3 at because she has failed to articulate a specific listing that she contends she 8.) This line of thinking erroneously presumes that the ALJ's decision at step three is susceptible to substantial evidence review in the frst instance and that there are not othet matedal erots in the decision warranting remand. c) üeated for her fibromyalgia. (r 241,-274,280-83,292-299,303-322,330-55.) The ALJ only mentioned two specific appointments in his decision, ,\ugust 20, 20'1,0 and July 26,20"1.0, and even then only noted that at the former her "pain was severe and that she had difficulties perfotming het activities of daily living" and at the lattet she "experienced morning stiffness" but "was doing yo1à," "was independent in her activities of daily living," without "joint swelling, muscle soreness," or "joint instability," aîd "there was a functional range o[motion in all joints," but "[t]here were tender points noted in a typical fibromyalgia distribution." (Tt. 22 referenùng261,-63.) The,\LJ also noted generally that "fs]ubsequent medical records" ftom Salem Rheumatology "revealed that the claimant experienced diffuse musculoskeletal pain, due to cold weathet," that she was "prescribed Percocet for pa)n," and that she "continued to experience tender points in a fìbromyalgia distibution." (Ir. 22 referencing 292-299.) However, the "subsequent medical records" to which the ALJ points teFetence only four meetings with Dr. Semble. (Id.) lso, the,\LJ ultimately gave "no weight" to Dt. Semble's for at least twelve months, questionnaire concluding that Plaintiff had tender points musculoskeletal pain,that she could sit and stand for less than two hours in an eight hout day, and that she could rately lift and catry less than ten pounds. Qr.23 referendng324-29.) This description of Plaintiffs neady fifty visits with Dr. Semble is not sufficient to permit teview. The conclusion that this analysis inadequately evaluated the record, thereby ptohibiting substantial evidence review, is Coluin, futher informed by a recent No. 1:12CV1006, 2015 WL 1,524767 (I\,{.D.N.C. case decided in this Coutt, April 2,2015). In that one, the claimant's fibromyaþa was found at step two to be sevete. Id. at 10 Dowell u. case, like this 2. The Coutt detetmined that a remand was in order, in part, because the Court could not discern whether the ALJ took into considetation the claimant's fìbromyalgia related symptoms in arriving at the RF'C. Id. at 4. In pertinent part, the Court reasoned that: the LJ does not have to discuss every piece of evidence, the IJ cannot chetry-pick the evidence that supports his decision to the exclusion of evidence favotable to the claimant. Sæ Cryrska u. Coluin, No. TMD 12-2238,20131üT,5335406,atx4 (D. Md. Sept. 20, 201.3). This is particulatly troubling in cases of fibromyalgia whete the symptoms ate subjective in nature. . Ms. Dowell began treatment with Dr. Semble, a rheumatologist, in September of 2008. ([t.] at 350 .) \X/hile the LJ noted that ffihile Ms. Dowell's pain level from het October 2008 visit with Dr. Semble was a 5/1,0 (id. at1.4), he failed to discuss that Ms. Dowell consistently reported pain to Dt. Semble over more than ten visits from 2008-2010. (Id. at336-51,,398-41,7.) During these visits her pain level continued to inctease, frequently rcaching a level of 9/1,0 and 10/10. (Id.) Futther, Dt. Semble's tecords noted that Ms. Dowell was "severely restricted in physical and social activities" due to her pain. (See, e.g., Tr. at 336, 338, 342, 344,4'1,5,41,3,41,1,.) Because Dr. Semble was a tteating specialist, the IJ should have provided thotough analysis of his treatment and assessmefl.t of Ms. Dowell's fibromyaþa and telated symptoms in his RFC analysis. þuirugu. Astrae, No. 3:11-CV41 1-HEH, 201,2 WT, 4329283, at x5 (E.D.Va. Sept. 20, 2012).1 ('lX/hen evaluating the presence and impact of fibromyalgSa, . . . deference to the ueating specialist is critical due to the unique ptoblems in evaluating its impact on the patient" and "because in person assessments . . . represent the best means of assessing the patient's information."). Dowell, 201,5 WL 15241 67, ú x 4. The undersigned concludes that the eror committed by the ,{LJ in this case is neady identical to the eror requiring remand in Dowe//. In fact, both cases involve the ALJ's failure to analyze the longitudinal record and burld a logical bddge between the factual determinations and the legal conclusions so that the administrative decision is susceptible to further review. 11 Moreover, both cases involve an ALJ's failure to sufficiently evaluate a claknant's relationship with her treating physician, Dr. Semble in both cases. Llke Dowell, this case also involves an LJ's failure to acknowledge multiple visits of apatnlevel of 1,0/1,0 (see, e.!.,Tr.241.,265,273, 292,294,296,31.5, 330,332,334,338,340,342,344,346) and fìndings by ^ úeald;ng physician that the claimant was severely restricted in physicaland social activities due to pun (tee, e.g.,Tr. 241.,273,280,282,296,298). Importantly, the case for temand rnay actually be stronger in this case because SSR 12-2p was available to the.ALJ in this case, but not to the ALJ in Dowe//. Thus, the ALJ in this case should have been awate that symptoms of fibromyaþa may wax and wane, that a person suffedng from fibro myalgia may be able to do activities on one day that he or she could not do on another day, and that given the nature of fìbromyalgta, an evaluation of the longitudinal record is in t¡ order. Consequently, for the same reasons descdbe Dowell-and because there appears to be considetable teason to doubt whethet the ALJ applied SSR 12-2p hete-the Court reconunends remand as the proper coutse in this case. D. Credibility The undersigned also has a serious concern about Plaintiffs ctedibility analysis. The Fourth Circuit Court of ,\ppeals has adopted a two-step ptocess by which the .,\LJ must evaluate a claknant's symptoms. The Frst step requires the -,{LJ to determine if the plaintifls medically documented impairments could teasonably be expected to cause plaintifPs alleged symptoms. CraigT6 F.3d ^t 594. The second step includes an evaluation of subjective evidence, considering claimant's "statements about the intensity, persistence, and limiting effects of fclaimant's] symptoms." Id. at 595 (citing 20 C.F.R. S$ 416.929(c)(a) 1,2 and a0a.1,529O@.) "The -ÀLJ must considet the following: (1) a claimant's testjmony and other statements concerning pain or other subjective complaints; Q) claknant's medical history and laboratory fìndings; Q) relevant 5553677 , at x3 CX/.D.N.C. $ objective medical evidence of pain; and (4) any othet evidence ""y to the severity of the impairment." Grub@ u. Astrwe, No. 1:09cv364, 2010 WL Nov. 1 8, 201.0) (unpublished) (citing CmigT 6 F .3d at 595;20 C.F'.R. a0a.1529(c)). "Other evidence" refers to factors such as claimant's daily activities, dutation and frequency of pain, treatment other than medication received for telief of symptoms, and any other measrúes used to relieve claimant's alleged pain. Id. Moreovet, SSR 96-8p tequires that: The adjudicator must considet all allegations of physical and mental limitations or resttictions and make every reasonable effot to ensure that the file contains suffìcient evidence to assess RF'C. Careful consideration must be given to aîy avallable information about symptoms because subjective descriptions may indicate more severe limitations ot restrictions than can be shown by objective medical evidence alone. SSR 96-8p. Similady, in detetmining the credibilìty of a claimant, SSR 96-7p, insttucts the ,\LJ to "consider the entire case record" and tequires a ctedibility determination to "contain specific reasons for the finding on credibility, supported by the evidence in the case record[.]" SSR 96-7p. n .,{.LJ's credibility fìnding is entitled to "substantial deference." Saye u. Chater, No. 95-3080,1.997 \XÆ- 232305, atxl (4th Cir. May 8, 1997) (unpublished). The undersigned concludes thztpattof the ÅLJ's ctedibility analysis in this case is built upon an effoneous-of at least unduly speculative-2ss1¡¡¡p¡i6¡. This is because the -AtJ stated no fewer than four times that Plaintiff testified or reported that she cared for a mentally 13 handicapped adult sibling. Çr. 21-23.) Howevet, Plaintiff did not so testi$r, but rather testified that she lives in a house with het husband-who is currently unemployed-and mentally handicapped brother who has the "brain of a two-year a old." (d. at36-37 .) Plaintiff never testifìed that she cared for her sibling. Defendant contends that it "was entirely logical for the ,ALJ to assurne that Plaintiff provided some care for him" given that they lived togethet and that the sibling was in PlaintifPs custody. (Docket E.rtty 1,3 at 14-1,5.) It is entirely possible that Plaintiff provides "some care" fot her brothet, although the recotd does not demonstrate what type of care this may be. On other hand, it is also entirely possible that PlaintifPs unemployed husband aids her brother, or pethaps that this btother receives some other form of aid. The point here is that eviden ce of any of these thtee possibilities-or some combination of the s2¡¡s-is not apparent and, therefore, cannot provide substantial evidence for this portion of the ÀLJ's credibility analysis. Defendant contends that was hatmless, given the other activities of daily living that Plaintiff could Enry 1,3 at1,4-15, n.1.) The undersigned il this was error, it petform. (Docket is not as confident as Defendantthat this is the case, especially given the considerable emphasis the ,\LJ placed on PlaintifFs alleged cate fot het brother in his decision and the other errors described hetein. Consequently, the undersigned recofirnends remand as the better course here for this additional teason. V. CONCLUSION None of this necessarily means that Plaintiff is disabled under the ct and the undetsigned expresses no opinion on that matter. Nevertheless, in light of all of the above, the undersigned concludes that the proper course here is to remand this matter fot futthet 14 administrative proceedings. Finally, the undersigned declines consideration of the additional issues raise by Plaintiff at this time. Hancocþ. u. Bamhart,206 F . S.tpp. 2d7 57 ,7 63-64 n.3 flW.D. Ya.2002) (on remand, the ALJ's prior decision as no preclusive effect, as it is vacated and the new headng is conducted de novo). ,\fter a careful consideration of the evidence of recotd, the Court finds that Commissionet's decision is not supported by substantial evidence. the IT IS THEREFORE RECOMMENDED that the Commissioner's decision finding no disability be REVERSED, and that the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. $ a05(g). To this extent, the undetsigned RECOMMENDS that Defendant's Motion forJudgment on the Pleadings (Docket E.rtty 1,2)be DENIED, and that Plaintiffs Motion fotJudgment on the Pleadings (Docket Enry 9) be GRANTED. To the extent that Plaintiffls motion seeks an immediate award of benefits, the undetsigned RECOMMENDS that it be DENIED. Thrr$y ofJuly, 201,s. Jo. Uni 15 s Magistrate Judge
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