Neal v. Commissioner of Social Security, No. 5:2012cv03810 - Document 21 (N.D. Cal. 2013)

Court Description: Order denying 16 Motion for Summary Judgment; denying 18 Motion for Summary Judgment; granting 16 Motion for Remand. The Court DENIES Plaintiff's Motion for Summary Judgment, DENIES Defendant's Motion for Summary Judgment, and REMANDS this matter for further proceedings consistent with this Order. The clerk shall close the file. Signed by Judge Edward J. Davila on 9/26/2013.(ejdlc3, COURT STAFF) (Filed on 9/26/2013) Modified on 9/26/2013 (ejdlc1, COURT STAFF).

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Neal v. Commissioner of Social Security Doc. 21 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 United States District Court For the Northern District of California SAN JOSE DIVISION 10 11 RONDA GAY NEAL, Plaintiff, 12 13 14 15 16 17 v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 5:12-CV-03810-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF’S MOTION FOR REMAND [Re: Docket Item Nos. 16, 18] 18 19 Plaintiff Rhonda Neal (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) to 20 obtain review of the Social Security Administration’s (“Administration”) final decision denying 21 her claim for Supplemental Security Income (“SSI”). Specifically, Plaintiff’s Motion for Summary 22 Judgment seeks an order reversing the final decision of the Administration and awarding benefits, 23 or alternatively, remanding the action to the Administrative Law Judge (“ALJ”) with instructions to 24 conduct further proceedings. See Docket Item No. 16. Defendant Carolyn Colvin, Commissioner of 25 the Social Security Administration (“Defendant”), opposes Plaintiff's motion and seeks summary 26 judgment affirming the decision of the ALJ. See Docket Item No. 18. 27 28 1 Case No.: 5:12-CV-03810-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF’S MOTION FOR REMAND Dockets.Justia.com 1 Having considered the relevant pleadings along with the administrative record, the Court 2 hereby DENIES Plaintiff’s Motion for Summary Judgment, DENIES Defendant’s motion for 3 Summary Judgment, and REMANDS the matter for further proceedings. 4 I. BACKGROUND 5 A. Procedural History 6 On January 30, 2009, Plaintiff applied for SSI benefits, alleging a disability which began on December 27, 2004. Administrative Transcript (“Tr.”) 61. The Administration initially denied 8 Plaintiff’s claim on August 13, 2009, and denied the claim again upon reconsideration on February 9 United States District Court For the Northern District of California 7 3, 2010. Id. 10 Plaintiff subsequently requested a hearing before an ALJ, which occurred on December 16, 11 2010. Id. at 61, 74. Plaintiff, represented by counsel, testified on her own behalf. Id. at 61. In a 12 written decision dated January 11, 2011, the ALJ found, after recounting the medical evidence and 13 testimony, that Plaintiff was not disabled and had the residual functional capacity to perform 14 “unskilled sedentary work.” See id. at 73-74. 15 Plaintiff sought administrative review of the ALJ’s determination. Id. at 12-13. On May 16, 16 2012, the Social Security Appeals Council denied the request for review, and the ALJ’s decision 17 became the final decision of the Administration. Id. at 1-3. 18 Plaintiff filed the instant action requesting judicial review of the Administration’s decision 19 on July 20, 2012. Compl., Docket Item No. 1. Plaintiff’s Motion for Summary Judgment followed 20 on February 4, 2013. Docket Item No. 16. Defendant’s cross-motion was filed on March 4, 2013. 21 Docket Item No. 18. 22 B. Plaintiff's Personal, Vocational and Medical History 23 Plaintiff was born on March 25, 1963 and holds an associate’s degree in graphic design, 24 which she received in 2001. Tr. 38-39. At the time of the initial hearing on December 16, 2004, she 25 was divorced and lived with her two adult sons. Id. at 48. She has previously been employed as a 26 27 28 2 Case No.: 5:12-CV-03810-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF’S MOTION FOR REMAND 1 file clerk, a cashier, and a photographer. Id. at 39-40. Plaintiff claims an inability to work, dating 2 back to 2004, due to physical and mental impairments. 3 Plaintiff has multiple physical conditions that reportedly limit her ability to work. Plaintiff claims she continues to suffer from carpal tunnel syndrome, for which she underwent surgery in 5 1999. Id. at 41, 63. She has also been diagnosed with fibromyalgia and neuropathy of extremities. 6 Id. at 302-03. Plaintiff’s reported low back pain led treating physician, Dr. Doll, to conduct two 7 MRIs, which showed prominent degenerative changes in Plaintiff’s cervical spine and mild 8 degenerative changes in her lumbar spine. Id. at 223, 376. Plaintiff also complained of hip pain, 9 United States District Court For the Northern District of California 4 which Dr. Doll diagnosed as trochanteric bursitis. Id. at 259-60. Furthermore, Plaintiff is morbidly 10 obese. Id. at 303. In addition, Plaintiff has been diagnosed with sleep apnea, which she treats by 11 use of a continuous positive airway pressure (“CPAP”) machine. Id. at 423. She has been 12 diagnosed with asthma, but reported the condition is under “good control.” Id. at 300. She alleges 13 these conditions cause her difficulty in using a computer, handwriting, dressing, and standing or 14 sitting for longer than short periods. Id. at 41-46. 15 Plaintiff claims mental impairments contribute to her inability to work. Id. at 46-47. First, 16 she suffers from bipolar disorder, which she has treated with medication, including Prozac and 17 Abilify. Id. at 458, 46-47. Dr. Doll also diagnosed Plaintiff with panic disorder, which reportedly 18 causes her significant anxiety. Id. at 508, 47. 19 Despite her numerous impairments, Plaintiff retains some functionality. She claims to 20 spend most of the day listening to music, watching television, surfing the Internet, and cleaning, 21 depending on her level of pain. Id. at 294. Plaintiff reported that she occasionally drives a car, goes 22 out to lunch, and drinks alcohol socially. Id. at 36, 146, 301. Doctors have issued differing opinions 23 as to whether Plaintiff’s retained functionality is sufficient to engage in employment. 24 Doctors who examined and treated Plaintiff generally concluded she was not capable of 25 holding a full time job consisting of only unskilled sedentary work. Dr. Gable, an examining 26 doctor, opined Plaintiff could sit for only half an hour at a time and her ability to stand and walk 27 28 3 Case No.: 5:12-CV-03810-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF’S MOTION FOR REMAND 1 was limited. Id. at 302. Dr. Zhang, a treating psychiatrist, reported Plaintiff was unable to meet 2 competitive standards for several mental abilities and aptitudes needed to do unskilled work. Id. at 3 427. After the ALJ’s decision was issued, Dr. Doll, a treating physician, found Plaintiff would not 4 be able to sit or stand for more than five minutes without a break and that she would be incapable 5 of even “low stress” jobs. Id. at 486-87. Dr. Forman, examining physician, determined, from a 6 psychological standpoint alone, Plaintiff was only capable of working between four and eight hours 7 per day. Id. at 296. 8 However, the examining doctors also expressed opinions in support of Plaintiff’s ability to United States District Court For the Northern District of California 9 work. In the same report, Dr. Forman remarked Plaintiff was unimpaired for most work-related 10 abilities and only mildly impaired in the ability to withstand the stress of an eight-hour workday 11 and the ability to adapt to changes, hazards, or stressors in the workplace setting. Id. at 296. In 12 addition, Dr. Beaver, treating psychologist, suggested Plaintiff was fully functional, meaning pain 13 does not limit any regular activities, despite diagnosing her with severe depression. Id. at 369-70. 14 Doctors who evaluated Plaintiff’s medical file as a whole determined she was capable of at 15 least sedentary work. Dr. Dipsia reported “it appears [Plaintiff] has ability to do light work,” which 16 is a more strenuous standard than sedentary work, suggesting she was able to each sit and walk for 17 six hours in an eight hour workday. Id. at 321. On August 8, 2009, Dr. Franco, an examining 18 doctor, opined Plaintiff mental impairments were “not severe.” Id. at 308. Dr. Franco also 19 concluded Plaintiff had no difficulty in maintaining social functioning, mild restriction of daily 20 activities, and only mild difficulties in maintaining concentration, persistence, and pace. Id. at 308- 21 18. 22 II. LEGAL STANDARD 23 A. Standard for Reviewing the ALJ’s Decision 24 This Court has authority to review an ALJ’s decision denying disability benefits. 42 U.S.C. 25 § 405(g). However, the Court’s jurisdiction is limited to determining whether substantial evidence 26 in the administrative record supports the denial of benefits. Id. A district court may only reverse the 27 28 4 Case No.: 5:12-CV-03810-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF’S MOTION FOR REMAND 1 ALJ’s decision if it lacks support by substantial evidence or if the decision was based on legal 2 error. Id.; accord Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). “Substantial evidence” is 3 relevant evidence that a “reasonable mind might accept as adequate to support a conclusion.” 4 Vertigan, 260 F.3d at 1049 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). This standard 5 requires more than a scintilla of evidence, but less than a preponderance of evidence. Thomas v. 6 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The Court must uphold the ALJ’s conclusion if it is 7 one of multiple rational interpretations of the evidence. Burch v. Barnhart, 400 F.3d 676, 679 (9th 8 Cir. 2005); see also Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). United States District Court For the Northern District of California 9 10 B. Standard for Determining Disability Disability is the “inability to engage in any substantial gainful activity by reason of any 11 medically determinable physical or mental impairment which can be expected to result in death or 12 which has lasted or can be expected to last for a continuous period of not less than twelve months.” 13 42 U.S.C. § 423(d)(1)(A). The impairment must be so severe that a claimant is unable to do her 14 previous work, and cannot “engage in any other kind of substantial gainful work which exists in 15 the national economy,” given her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A). 16 “The claimant carries the initial burden of proving a disability.” Ukolov v. Barnhart, 420 F.3d 17 1002, 1004 (9th Cir. 2005); see also 42 U.S.C. § 423(d)(5)(A). If the claimant proves a prima facie 18 case of disability, “the burden shifts to the Commissioner to establish that the claimant can perform 19 a significant number of other jobs in the national economy.” Thomas, 278 F.3d at 955. “The 20 Commissioner can meet this burden through the testimony of a vocational expert or by reference to 21 the Medical Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” Id. 22 23 24 The ALJ employs the following five-step process to evaluate Social Security disability claims. 20 C.F.R. §§ 404.1520, 416.920. 1) The ALJ must first determine whether the claimant is presently engaged 25 in substantially gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the 26 claimant is not disabled; otherwise the evaluation proceeds to step two. 27 28 5 Case No.: 5:12-CV-03810-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF’S MOTION FOR REMAND 1 2) The ALJ must determine whether the claimant has a severe impairment or 2 combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the 3 claimant is not disabled; otherwise the evaluation proceeds to step three. 4 3) The ALJ must determine whether the claimant's impairment or 5 combination of impairments meets or medically equals the requirements of the 6 Listing of Impairments. 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is 7 disabled; otherwise the analysis proceeds to step four. 8 United States District Court For the Northern District of California 9 4) The ALJ must determine the claimant's residual functional capacity (“RFC”) despite limitations from the claimant's impairments. 20 C.F.R. §§ 10 404.1520(e), 416.920(e). If the claimant can still perform work that the individual 11 has done in the past, the claimant is not disabled. If she cannot perform the work, 12 the evaluation proceeds to step five. 20 C.F.R. §§ 404.1520(f), 416.920(f). 13 5) In this step, the Commissioner has the burden of demonstrating that the 14 claimant is not disabled. Considering a claimant's age, education, and vocational 15 background, the Commissioner must show that the claimant can perform some 16 substantial gainful work in the national economy. 20 C.F.R. §§ 404.1520(g), 17 416.920(g). 18 19 III. DISCUSSION In this case, the ALJ found: 1) Plaintiff has not engaged in substantial activity since January 20 30, 2009; 2) Plaintiff’s bipolar disorder, obesity, fibromyalgia, and low back pain constituted a 21 severe combination of impairments; 3) Plaintiff’s combination of impairments did not meet or 22 medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; 4) 23 Plaintiff has the residual functional capacity to perform sedentary work, limited to unskilled work 24 involving no more than simple and repetitive tasks and Plaintiff is unable to perform any past 25 relevant work; and 5) considering Plaintiff’s age, education, work experience, and residual 26 functional capacity, there are jobs that exist in significant numbers in the national economy that 27 28 6 Case No.: 5:12-CV-03810-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF’S MOTION FOR REMAND 1 Plaintiff can perform. Tr. 63-74. Based on these findings, the ALJ determined Plaintiff was not 2 disabled. Id. at 74. 3 In her Motion for Summary Judgment, Plaintiff first argues the ALJ’s assessment of her 4 residual functional capacity (“RFC”) in step four of the analysis is not supported by substantial 5 evidence. In support of this argument, Plaintiff claims the ALJ improperly rejected the conclusions 6 of the treating and examining doctors in favor of the non-examining doctors. Further, Plaintiff 7 argues the ALJ erred in his RFC assessment by making selective findings that were inconsistent 8 with the record as whole. United States District Court For the Northern District of California 9 Second, Plaintiff argues the Defendant did not sustain its burden to show the existence of 10 jobs Plaintiff can perform. Plaintiff agrees, however, that this argument depends on the RFC 11 finding. Since the RFC necessitates a remand for further proceedings and clarification, the Court 12 will not discuss the second argument at this juncture. 13 When presented with conflicting medical opinions, the ALJ must determine the credibility 14 of the opinions and resolve the conflict. Batson v. Comm’r, 359 F.3d 1190, 1195 (9th Cir. 2004) 15 (citing Matney, 981 F.2d at 1019). The ALJ must give greater weight to the treating physician 16 opinions, and in the case of conflict, the ALJ “must give specific, legitimate reasons for 17 disregarding the treating physician.” Id. (internal quotations omitted). Further, “[t]he 18 Commissioner is required to give weight not only to the treating physician’s clinical findings and 19 interpretation of test results, but also to his subjective findings.” Lester v. Chater, 81 F.3d 821, 20 832–33 (9th Cir. 1995). But, an ALJ may discredit treating physicians’ opinions that are 21 conclusory, brief, and unsupported by the record as a whole, or by objective medical findings. Id. 22 (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Matney, 981 F.2d at 1019). An 23 ALJ may “meet this burden by setting out a detailed and thorough summary of the facts and 24 conflicting clinical evidence, stating his interpretation thereof, and making findings.” Magallanes 25 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal quotation omitted). 26 27 28 7 Case No.: 5:12-CV-03810-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF’S MOTION FOR REMAND 1 2 In this case, the ALJ separated his discussion of RFC findings into mental and physical impairments and the Court does the same in analyzing the ALJ’s decision. 3 A. Improperly Rejecting Medical Evidence Relating to Mental Impairments 4 Looking at the analysis of mental impairments, Plaintiff argued the ALJ improperly dismissed treating physician Dr. Zhang’s opinion. The ALJ gave “very limited weight” to Dr. 6 Zhang’s opinion that Plaintiff would be unable to meet competitive standards in six out of twenty- 7 five work related functions and would miss more than four days per month due to her impairments. 8 Tr. 72. In rejecting the opinion, the ALJ provided the following reasons: 1) The record reflects Dr. 9 United States District Court For the Northern District of California 5 Zhang had not completed a mental status exam on Plaintiff in almost three years, raising a question 10 as to the objective evidence on which he based his opinion; 2) “Dr. Zhang’s opinion is not 11 consistent with his own treatment record, which documents improvement with medication and is 12 dedicated mostly to the discussion of physical rather than mental symptoms;” and 3) “Dr. Zhang’s 13 opinion is not consistent with the record as a whole.” Id. at 72. The Court discusses each reason in 14 turn. 15 First, the Court considers the existence of objective evidence to support Dr. Zhang’s 16 opinion. While there is no evidence Dr. Zhang had completed a formal mental status exam of 17 Plaintiff since the initial exam, two and a half years preceding his opinion, he continually treated 18 Plaintiff during that period. While the ALJ raises the question of objective evidence, he fails to 19 clearly explain why Dr. Zhang’s periodic examination and continued treatment of Plaintiff would 20 not provide him with sufficient knowledge to complete the questionnaire. 21 Second, the Court looks to the consistency of Dr. Zhang’s treatment record. As evidence of 22 inconsistency, the ALJ noted that Plaintiff’s mental condition shows “improvement with 23 medication.” It is unclear, however, how much improvement the medication provides. Plaintiff 24 reported the medication made her feel “more positive” in one report, and “a little better” in another. 25 Id. at 71. These statements are ambiguous and give little insight as to whether the medicine affords 26 Plaintiff the ability to function for a full workday. Moreover, the fact that Dr. Zhang also diagnosed 27 28 8 Case No.: 5:12-CV-03810-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF’S MOTION FOR REMAND 1 Plaintiff’s physical symptoms is not a clear indication of inconsistency in his treatment records. 2 Plaintiff clearly suffers from both mental and physical impairments, thus a diagnosis and treatment 3 of a physical impairment does not preclude the existence of a mental impairment. 4 Finally, the Court evaluates whether Dr. Zhang’s opinion was inconsistent with the record as a whole. The ALJ cited only two other medical opinions in his analysis of Plaintiff’s mental 6 RFC: the opinions of Dr. Forman, examining doctor, and the Disability Determination Services 7 (“DDS”) doctor. The DDS doctor opined Plaintiff would have only mild limitations in work related 8 functions. But, Dr. Forman concluded Plaintiff could work only four to eight hours per day. The 9 United States District Court For the Northern District of California 5 ALJ gave little weight to this opinion, also concluding it was “inconsistent with [Plaintiff’s] other 10 limitations and the record as a whole.” Id. at 71. Each of the three medical opinions cited by the 11 ALJ suggests varying degrees of impairment, showing that the record itself is inconsistent. More 12 clarification is needed to understand why the ALJ rejected opinions for being inconsistent with the 13 record when the record is comprised of a spectrum of opinions concerning the Plaintiff’s level of 14 disability. Thus, the ALJ failed to provide specific, legitimate reasons for rejecting the subjective 15 findings of Dr. Zhang. 16 In addition, the ALJ failed to clearly explain the reasons for selectively adopting some 17 portions of medical opinions written by Dr. Zhang and Dr. Forman, while rejecting other portions 18 of the same opinions. In reaching his conclusion that Plaintiff would be unable to meet competitive 19 standards in six out of twenty-five work related functions and would miss more than four days per 20 month due to her impairments, Dr. Zhang reported Plaintiff would have limited but satisfactory 21 ability to understand, remember, and carry out instructions. While the ALJ gave “very limited 22 weight” to the conclusion, he gave “significant weight” to the portion of the opinion regarding 23 Plaintiff’s ability to understand, offering no justification for the discrepancy. Id. at 72. In 24 consideration of another record, the ALJ gave “significant weight” to Dr. Forman’s opinion that the 25 claimant would be mildly impaired in her ability to withstand the stress of an eight-hour workday 26 because it is “consistent with the record as a whole,” while giving “very little weight” to Dr. 27 28 9 Case No.: 5:12-CV-03810-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF’S MOTION FOR REMAND 1 Forman’s opinion that Plaintiff could work only four to eight hours because “it is inconsistent with 2 her other limitations and the record as a whole.” Id. at 71. The support for this conclusion is 3 unclear because the record as a whole does not heavily weigh in favor of one opinion regarding 4 Plaintiff’s disability. Accordingly, the Court remands the matter to the ALJ to provide more clarity in his 6 reasoning for rejecting Dr. Zhang’s conclusion and his decision about which portions of Dr. Zhang 7 and Dr. Forman’s opinions should be adopted for purposes of determining Plaintiff’s disability. See 8 Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (remand is appropriate where the ALJ’s 9 United States District Court For the Northern District of California 5 decision lacks adequate explanation). 10 B. Properly Explaining Decision Regarding Physical Impairments 11 In analyzing Plaintiff’s physical impairments, the ALJ gave “significant weight” to the 12 DDS doctor’s opinion regarding physical symptoms, but gave “little weight” to the opinion of an 13 examining doctor, Dr. Gable, that Plaintiff can sit for only half an hour at a time. Tr. 68. In 14 rejecting the examining doctor’s opinion, the ALJ offered the following reasons: 1) Dr. Gable’s 15 opinion is based on a single examination; 2) Dr. Gable’s psychological findings were not found by 16 Plaintiff’s psychiatrist at an appointment one month prior; and 3) “Dr. Gable’s opinion is not 17 consistent with the record as a whole.” Id. 68-69. 18 Here, the Court finds the ALJ’s reasons for rejecting Dr. Gable’s opinion specific and 19 legitimate. Even though the SSA generally gives more weight to examining doctors than to non- 20 examining doctors, as per 20 C.F.R. § 416.927(c)(1), the ALJ outlined Plaintiff’s medical history 21 with regard to physical symptoms, finding that during Plaintiff’s many trips to the hospital, she 22 only occasionally sought treatment for pain that affects her ability to sit. Tr. at 68-69. Medical 23 records from December 2008, one month prior to the application date, show Plaintiff only 24 complained of allergy and asthma symptoms. Id. at 68. Records from January to March of 2009 25 reveal treatment for sleep apnea and allergies, but no complaints or treatment for musculoskeletal 26 or fibromyalgia symptoms. Id. Plaintiff had a first session with a physical therapist on November 27 28 10 Case No.: 5:12-CV-03810-EJD ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING PLAINTIFF’S MOTION FOR REMAND

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