CRAFT v. COLVIN, No. 1:2016cv00097 - Document 11 (M.D.N.C. 2017)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 01/19/2017, that the Commissioner's decision finding no disability be REVERSED, and the matter be REMANDED to the Commissioner under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand the matter to the AL J for further administrative action as set out above. To this extent, Plaintiff's motion for judgment on the pleadings (Docket Entry 7 ) should be GRANTED and Defendant's motion for judgment on the pleadings (Docket Entry 9 ) be DENIED. (Taylor, Abby)
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CRAFT v. COLVIN Doc. 11 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA MARTHA F. CRAFT, ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. t:l6CY97 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff MatthaF. Craft ("Plaintiff') brought this action pursuant to Section 205(9) of the Social Security Act (the "Act"), codified as amende d at 42 U.S.C. $ a05G), to obtain review of a finaI decision of the Commissioner of claims for Disability Insurance Benefits Social Secudty ("Commissionet") denying her ("DIB") and a Period of Disability ("POD") undet Title II of the Act. Presently before this Court are Plaintiffs motion for judgment on the pleadings and accompanying memorandum (Docket Entdes 7-8), and the Commissionet's motion fot judgment on the pleadings and accompanying memorandum (Docket Entties 9-10). This Court also has before it the certified administrative recotd,l and this mattet is now ripe fot adjudication. ,{fter a careful consideration of the evidence of recotd, the decision of the 1 Transcript citations refer to the Administrative Transctipt of Record filed manually with the Commissioner's .A,nswer. (Docket Entry 5.) Dockets.Justia.com Administrative LawJudge ("ALJ"), and the governing legal standard, this Court concludes that remand is ptopet. I. BACKGROUND Plaintiff protectively filed applications fot DIB and a disabil-ity onset date initially and again a POD in March of 2013, alleging of December 1,201.0. (It. at 209-1,0.) The applications were denied upon reconsideration. Qd. at 115-19,122-29.) Plaintiff then tequested a headng before an AI-J. (Id. at 1,30-31,.) At the JuIy 2,2015 hearing, were Plaintiff, her counsel, and a vocational expert ("VE,"). Qd. at24.) Aftet the heating, the A{ determined that Plaintiff was not disabled under the Act.2 Qd. at 1,0-22.) More specifically, the ALJ concluded (1) that Plaintiff last met the insured status requitement on December 31, 201,1., Q) that Plaintiff had not engaged in "substantial gainful actrvity" from December 1,201,0 (the alleged onset date) through December 3L,2011 (the date last insured), and (3) that Plaintiffs hypertension, dyslipidemia, vitamin D deficiency, chronic obstructive pulmonary disease, lumbar and cervical degenerative disc disease with history of anterior fusion ^t C4-C6, and obesity were severe impairments. (Id. at a 1,2-1,3.) However, the,ALJ concluded that the disorders did not meet or equal a listed impairment. (Id. at 14.) "'The Commissioner uses a five-step process to evaluate disability claims." Hancock u. Aslrue, 667 F.3d 470,472-73 (4th Cir. 2012) (cinng 20 C.tr,R. SS 404.1520(rX4)). "Under this process, rhe Commissioner asks, in sequence, whethet the claimant; (1) worked during the alleged period of disability; Q)had a severe impairment; (3) had an impairment that met or equaled the requirements of a listed impairment; (4) could return to his past relevant wotk; and (5) if not, could perform any other arry of several points in tLus work in the national economy." Id. A finding adverse to the clarmant ^t five-step sequence forecloses a disability desþation and ends the inquly. 1/. 2 The ALJ then determined that Plaintiff had the Residual Functio nal CapacíT ("RFç"¡a to perform sedentary work, so long as she was limited to (1) only occasionally climbing ropes, ladders, and scaffolds, (2) only ftequent bending, balancing, crouching, stooping, kneeling, and crawling, and (3) avoiding concentrated exposure to pulmon ry itritants and work place hazards. Qd. at 14-1,8) The ALJ then concluded that Plaintiff was able to petform her past relevant work as a telephone answering service operator (Id.at 18.) ,{.ccordingly, the ALJ entered a decision that Plaintiff was not disabled and denied her benefits. Qd.) Plaintiff requested that the ,{.ppeals Council review the ALJ's decision and on December 1,5,201,5 the Appeals Council denied Plaintiffls request fot review, making the ALJ's determination the Commissioner's final decision for purposes of review. (Id. at 1,-6.) Plaintiff then initiated this action. II. LEGAI STANDARD Fedetal law authodzes judicial review of the Commissioner's denial of social secutity benefìts. 42 U.S.C. $ a05(g); Hines, 453 F.3d decision is "extremely limited are not to try the case de ^t ." Frq u. Haris, novo." 561. However, the scope of review of such a 646 F.2d 143,1,44 (4th Cir. 1981). "The courts Oppenheim u. Finch, 495 tr .2d 396,397 (4th Cir. "a reviewing court must uphold the factual findings of the ALJ if 197 4). Instead, they are supported by 3 "RFC is a measurement of the most a claimant can do despite [the clarmant's] limitations." Hines a. Barnhart, 453 F.3d 559, 562 (4th Cir. 2006) (citauon omitted). The RFC includes both a "physical exertional or strength limitation" that assesses the claimant's "ability to do sedentary, light, medium, hear], or very heavy work," as well as "nonexertional limitations (mental, sensotry, or skin rmpairments)." Hall a. Harris,658 F.2d 260,265 (4th Cu. 1981). "RFC is to be determined by the ALJ only after [the ALJ] considers all relevant evidence of a clatrnant's impairments and any telated 562-63. symptoms (e.g.,patn))' Hines,453 F.3d ^t . -l substantial evidence and were reached through application of the correct legal standard." Hancock,667 F.3d at 472 (internal quotation marks omitted). "substantial evidence means 'such relevant evidence as adequate to support a conclusion."' as a reasonable Hør¿ter u. Sulliuøn,993 (quoting Nchard¡on u. Perales, 402 U.S. 389, 390 (1,971)). mind might accept F.2d 31,34 (4th Cir. 1993) "It consists of mote than a mere scintilla of evidence but may be somewhat less than a prepondet^flce." Mastro u. Patel,270 tr.3d 171,176 (4th Cir. 2001) (internal citations and quotation marks omitted). evidence "If there is to justift a refusal to direct a vetdict were the case before a jury, then there is substantial evidence." Hønter,993 F.2d at 34 (nternal quotation marks omitted). "In reviewing for substantial evidence, the coutt should not undertake to re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the [ALJ]." Masîr0,270 F.3d at 176 (internal brackets and quotation marks omitted). "ìØhere conflicting evidence allows reasonable minds to differ as to whether. a claimant is disabled, the responsibility for that decision falls on the 1'J'J." Hancock, 667 III. tr .3d at 47 2. PLAINTIFF'S ASSERTIONS OF ERROR Plaintiff asks this Court to reverse the decision of the Commissionet, and in support of her request, she makes sevetal arguments. First, Plaintiff contends that the ALJ in this case did not propedy address tbe determination. @ocket E.rt y assessment of the cognitive I 201,0 decision rendeted by an AfJ in a prior disability at 4-7.) Second, Plaintiff contends that the ALJ erred in het side effects of het narcotic medication. followrng reasons) temand is ptopet. 4 Qd. ^t7-9.) For the IV. ANALYSIS Plaintiff contends that the ,{.LJ in this case did not ptopedy address the 2010 decision rendered by an ALJ in a prior disability determination. (Docket Entry I at 4-7 the Court to consider the Liul/Albright line of cases and AR 00-1(4), the provide guidance on those cases. InLìueþ u. Sewetary of .) This requites ding designed to HHS, the claimant's ftst application for benefits was denied after he was found capable of light wotk. 820 F.2d 1'391',1'392 (4th Cir. 1987). Two weeks latet, the claimant tutned 55 yeats old, the limitation would have qualified him for benefits, and he filed age a second ^t which a light wotk application for benefits. Id. Inthe subsequent decision, however, the,{,LJ found that the claimantwas capable of wotk at any exenional level. Id, The Fourth Citcuit revetsed the ALJ's decision, holding that "[i]t is uttedy inconceivable that his condition had so improved in two weeks as to enable him to perform medium wotk. Pdnciples of finality and fundamental fairness . . . indicate that the Secretary must shoulder the burden of demonsttating that the claimant's condition had improvecl sufficiently to inclicate that the claimant was capable of petforming medium work." Id. The Commissionet later interpteted the holding in Uueþ to tequire that "fw]hen adjudicating a subsequent disability claim with an unadjudicated period arising undet the same title of the Act as the prior claim, adjudicators must adopt such a finding ftom the final decision . . . on the pdor claim in determining whethet the claimant is disabled with tespect to the unadjudicated period unless thete is new and matertal evidence telating to such a fìnding." AR 94-2(4), 1.994 \Xry, 321.954, *3 $uI. 7 , 1,994). However, inAlbright u. Comm'r,1,74tr.3d473 (4th Cir. 1999), the Fouth Ckcuitrejected 5 the Commissioner's interpretation of Uueþ, because it etected an "absolute bar to an award of benefits, unless fClaimant] can produce new and material evidence that his impairment increased in severity by fthe date] when his insured status expited." Albrigbt, 17 4 F.3d ^t 47 5. Rather, the Fourth Citcuit rcad Uueþ "as a ptactical illustation of the substantial evidence rule," in that "the finding of a qualified and disinterested tdbunal fas to that Claimant's RFC] was such an impotant and probative fact as to render the subsequent finding to the conftary unsupported by substantial evidence," where the subsequent application related to a disability onset date commencing two weeks after the Claimant's initial denial of disability benefits, 1/. zt 477 -78. Following the Founh Circuit's decision in Albright, the Commissioner issued ,A.R 00- 1(4). It instructs that, "[w]hen adjudicalng a subsequent disability claim arising under the same or a diffetent title of the ,{.ct as the prior claim, an adjudicatot detetmining whethet a claimant is disabled dudng a previously unadjudicated period must considet such a prior finding as evidence and give it appropriate weight in light of all relevant facts and circumstances." AR 00-1(4), atx4.4 Relevant factors fot detetmining the weight to give a prior fìnding include: "(1) whether the fact on which the priot finding was based is subject to change with the passage of time, such as a fact relating to the sevedty of a claimant's medical condition; (2) the likelihood of such a change, considering the length of time that has elapsed between the period previously adjudicated and the period being adjudicated in the subsequent o AR 00-t (4) only applies to "disability findings in cases involving clarmants who reside in Maryland, North Carollna, South Caroltna, Vilgrrua or'West Virginia atthe time of the determination or decision on the subsequent claim." AR 00-1(4) , at *4. 6 claim; and (3) the extent that evidence not considered in the fìnal decision on the pdor claim provides a basis for making a different finding with tespect to the petiod being adjudicated in the subsequent claim." Id. Futhermore, the Ruling instructs the AIJ to "give gte tü weight to such a prior fìnding when the previously adjudicated period is close in time to the pedod being adjudicated in the subsequent claim, proximiry e.g., of the period a few weeks" and "give less weight to such previously adjudicated ^ ptiot finding as the to the period being adiudicated in the subsequent claim becomes more remote, ¿.j., where the televant time period exceeds three years." Id. tJlamately, the A{ must "considet all relevant facts and circumstances on a case- l:asis." Id. by-case "Courts within the Fourth Citcuit have genetally found remand apptopriate undet AR 00-1(4) where an 1.J-J neglects to discuss apnor decision at the adminisrative headng level, and the prior decision contains findings more favorable to the claimant than the ,\LJ's strbseqnent ciecision." ,lîøtler u. Cnhtìn, No. 2:1 5-CV-1 1,41,8,2016 WL 421,1,812, at x9 (S.D.fø. Va. June 2,201.6), report and recornrnendation adopted, No. 2:15-CV-1'1'41.8,201,6 (S.D.W. Va. Aug. WL 4203552 9,2016)s Similarly, in applying AR 00-1(4), a judge in this disttict has No. 5:14-CV-424,201'5 WL 50391'24, at *8-*9 (E.D'N.C. À:ug.7,201'5) (unpublished) (recommending remand where ALJ's RFC frnding did not include sit/stand option that was contained in past decision and ALJ failed to discuss past decision), report and recommendatiort adopted bjt 201,5 !øL 5054402 (E.D.N,C. Arg. 26,2015) (unpublished); Berunett u. CommT of Soc. Sec. Admin.,No. 5:14CV100,201.5 !ØL 1280959, at*3, xl3-+15 (l.J,D.!ø. Va. Mar. 20,201,5) (unpublished) (remanding where ALJ failed to discuss step tu/o findings in prior decision and ALJ found fewer severe impairments t step two in later decision); Bailry u. Coluin, No. 6:13-cv-29150,201'5 WL 769843, at *11 (S.D.ìø. Va. Feb. 23,201.5) (unpublished) (remanding where "although the,\LJ acknowledged AR 00-1(4), itt his decision, he did not explin adequately how he considered and weighed the prior decision, especially regarding the RFC assessment and step two findings."); Neal u. Astrue, No' 5:085 See Barbee u. Coluin, 7 recognized that where an"ALJ fdoes] not address the pdor ruling, this Court cannot review the ALJ's ultimate determination and cannot determine whether the ALJ weighed the prior adjudication in accordance with.A.R 00-1(4)." See Manael u. Coluin, No. L:11CV8, 2015 WL 5L9481, at*5-*6 (I\4.D.N.C. Feb. 9, 201,5) (Peake, MJ.) (unpublished) (tecommending temand where ALJ neglected to consider favorable step four finding in past decision and stating that court could not meaningfully review ALJ's decision because ALJ failed to discuss past decision), recornmendation adopted Slip Op. (N4.D.N.C. March 3, 201,5) (Osteen, CJ.)' On the other hand, as Defendant cofrectly points out (Docket Entry 10 at 9-10), at least one couft wíthin this circuit has found an ALJ's failute to mention AR 00-1(4) and a past decision does not require remand if the pdor decision is contained in the List of Exhibits attached to the most recent decision and the findings in the subsequent decision are similar or more favotable to the claimant. Harri¡ u. Astrue, No. 2:12-CV-45,2013WL 1,1,87151,, at x8 (NT.D.W. Va. Mar. 21, 201,3) (unpublished). In light of all this, the unclersigned conclucles that an ALJ "must provide some semblance of an explanation to enable judicial teview of his decision" whete the ALJ's findings confLict with conclusions in a ptior decision. Bailey 2015 \)fL 769843, at*1'1. \X/hile a step- by-step analysis may not be required for an 1J-J to comply with AR 00-1(4), ultimately, an WL 1,404096, at *7 (S.D.\X/. Va. Mar. 31,201,0) (unpublished) (temanding where AIJ't recent decision limited claimant to light work, but priot decision limited claimant to sedentary wotk, and ALJ failed to conduct analysis required by ,{.R 00-1(a)); Do{er u. AÍrue, No. 5:08CV1'7 4,2009 WL 3063020, at *2, x45 (I{.D.!ø, Va. Sept. 22, 2009) (unpublished) (temanding whete ALJ cursorily mentioned previous finding of disability and failed to indicate weight assþed to that decision); y' Eatmon u. Coluin, No. 5:13-CV-554, 201,4 WL 42851.40, at *2 (E.D.N.C. Aug. 29,201'4) (remanding whete ALJ failed to discuss couft's pdor decision findrng claimant drsabled). cv-1.296,2010 I ALJ's written decision mrist provide some explanation for disctediting ot failing to dopt past administrative ftndings favorable to the clatmant. Cf, Grant u, Coluin, No. 4:12cv1.91.,2014WL 852080, at x7 (E.D. Ya. Mal 4,201,4) (unpublished) (tecognizing that N,J need not "walk through each factor in order to comply with AR 00-1(4)" and findingthat ALJ complied with AR 00-1(4) where he discussed the Ruling, the prior decision, and medical evidence that waruanted changes in the RFC). Here, ALJ \X/ordsworth did not mention the ptiot decision of expressly consider AIJ Horne, much less it in light of the factors set forth in AR 00-1(4). (Tr. 10-18, 63-72.) Tlns poses a real problem for the Court in its effotts to teview this case. This is because, in pettinent patt, the RFC determination in the pdor ALJ decision, authored by ALJ Horne,limits Plaintiff to simple, routine, and repetitive tasks in a low stess environment with low production demands and the RFC in the decision under review, authoted by ALJ ìTotdsworth, does not. Qd. at 1,4,67.) ,tccording to AR 00-1(4), ALJ Horne's eatlier restrictive mental RFC finding should have been considered by ALJ Wordsrvotth "as evidence" to be given "appropriate weight in Light of all relevant facts and circumstances." AR 00-1(4). By not acknowledging ALJ Horne's prior decision, or expressing adequate compliance with AR 00-1(4), it is uncleat whether ,\LJ \X/ordsworth silently weighed and tejected ALJ's Horne's testtictive mental RFC restrictions, or simply neglected to consider them at 6 In the pdor allÍ decision ,{,LJ Horne also restricted Plaintiff to medium wotk, whüe A.LJ !Øordsworth limited Plaintiff to sedentary work in the current decision. Qr 1'4 and 67.) Since LJ Wordsworth's limitation v/as greter than ALJ Horne's, the Court need not discuss this diffetence futhet. 9 Moreover, this issue may be outcome determinative. If Plaintiff were restticted to work which is unskilled, as with ALJ Horne, then pursuant to the testimony of the VE, she would be unable to return to her past relevant wotk. (Tr 56.) 20 C.F'.R. SS 404.1568(a) unskilled work "needs little or no judgment to do simple duties"); SSR 85-15, 1985 (stating that lfI- 56857, x4 (1985) ("The basic mental demands of competitive, temunerative, unskilled work include the abilities (on a sustained basis) to understand, catry out, and temembet simple instructions; to respond apptopdately to supervision, cowotkets, and usual work situations; and to deal with changes in a routine work setting."). This would result in a fìnding of 'd-isabled' under Grid Rule 201,.06given Plaintiffs advanced age and,limitation to sedentary exertion (now 63 20 C.F.R. Pt.404, Subpt. P, A.ppendix II - 56 atthe alleged onset date). (Tt. 30-31; 236.) $ 201.06; 20 C.F.R. Wordsworth. Çr S See 404.1563(e)). This is, in fact, what Plaintifls attorney argued here to ALJ 291,.) Given that the Court is left to speculate as to whether ,{LJ Wordsworth considered ALJ Horne's mental RFC finding, and weighed it in light of AR 001(4), the undetsigned concludes that the most prudent course of action here is to remand for further clatification of this issue. Defendant's arguments to the contrary are not convincing. First, insofar as the Commissioner contends that the Ruling is satisfied by an ALJ's general statement that the entire tecord was considered and the inclusion of a priot ALJ decision on an exhibit list, the undersigned disagrees with her proposed bright-line language meets the requirements de. "To hold that such boiletplate of the Ruling would univetsally rendet an ALJ's written decision unreviewable undet .A.R 00-1 (4)." Stutler, No. 2:1,5-CY-1.1.41.8,201.6 WL 4211812, at 10 x9. "The ALJ has a duty to resolve conflicts within the recotd and ptovide the claimant with a justification for the resoluti on." Id. "[]t is not v/ithin the ptovince of a teviewing court to determine the weight of the evidence . . . [and] it is the duty of the administrative law judge reviewing ^ c and not the tesponsibility of the coutts, to make findings se, resolve conflicts in the evidence." Hay of u. Salliuan,907 F.2d 1,453, 1'456 (4th fact and to Cir' 1990) (citations omitted). A.s explained, this duty extends to conflicts between the Commissioner's own fìndings. Second, the remaining cases Defendant cites in arguing that any error hete is non- existent or harmles s are factually inapposite to the case at hand. In Grønt u. Coluin, for example, the ALJ not only "acknowledged that evidence and give ^s ^n AIJ, he must considet ptevious findings it appropdate weight in his adjudication," but also "made it findings from the prior decision ha[d] been considered as required" and g \re as cleat that the ^ reason fot adopting different findings in the current decision. 201,4 W 852080, at *7 (record citations omitted). In Meluin u. ,Attnre, "the ALJ did mention claimant's ptiot attempts to get benefits (including the August 20,2001. denial)" and noted furthet that the claimant "had a ptevious fd]ecision by anothet [,tLJ] in 2001.)' 602 F. Snpp. 2d 694,702 p''D.N.C. 2009) (record citation omitted). Next, in MtKq u. Coluin, the ALJ "noted that Claimant's prior applications had been denied in Septemb er 2007 , and ALJ's Vogel's decision was made part of the record" and noted further that "the vocational expett was asked to presume that Claimant had all of the limitations and restrictions identified by fthe priot ALJ and the current ALJ and] the vocational expert testified that . . . Claimant would be able to wotk as a non-governmental 1,1, mail clerk." No. CIV.,A.. 3:1.2-1.601.,2013 WL 3282928, atxl3-1,4 (S.D.lø. Va. June 27 ,201,3) (unpublished).7 Here, the ALJ in this case never acknowledged het duty undet AR 00-1(4), unlike the ALJ in Grant, never acknowledged the existence of a prior decision, unlike the ,A{ rn Meluin, and futher failed to make it reasonably clear that she had consideted and weighed the ptior decísion. nd, as explained, the VE in this case did not tendet these errors hatmless, unlike the VE, in MtKay by fìnding that even with the limitations and tesuictions of the priot ALJ, the Plainuff could still work. ALJ \X/ordsworth did give specific reasons fot het lack of mental RFC restrictions in the cutrent decision. Qt 14-1,7.) Nevettheless, A.LJ \)Øordsworth gave these reasons without making it possible for this Court to detetmine if she evet weighed and consideted ALJ Horne's priot mental RFC fìnding. s explained, ALJ Horne's mental RFC finding in the ptevious decision (which constituted evidence which ALJ Wotdsworth had a duty to consider and weigh) conflicted with,AfJ Wordsworth's ultimate RFC determination in this case, rvhich did not include ^ny mentz.l limitations. As noted, this leaves the Coutt to speculate the ALJ considered this conflicting evidence at all. See, e.!., as to whether Mund1 u. Coluin, No. 1:15CV496, 201,6WL 4524436, at x7 (À4.D.N.C. ug. 24,201,6) (unpublished) ("[I]it is not the province 7 of (fi"d-g failure to include reading and writing restrictions in current RFC harmless error where "ALJ Chapman never concluded þ the priot decision] that Claimant was illiterate; rather, ALJ Chapman found that Claimant possessed a htgh school education with some special education classes" and because "even if the [current] ALJ had incorporated the findings of -A,LJ Chapman's 2003 written decision into the most recent wdtten decision, Claimant would not have [satisfied] . . . the Grids."). See also Stutler, 2016 WL 421,1,8L2, at +1,1,-1,2 12 the Court to review the evidence de novo, reconcile conflicting evidence left unaddtessed by the ,{.LJ, or find facts in the ftst instance. That is the duty of the ALJ and because it is not clear whether the ALJ meaningfully dischatged this duty here, temand remmmendation adopted is proper."), SIip Op. CÀ4.D.N.C. Sept. 14, 201,6) @iggt, J.) In short, the Commissioner must considet "all the evidence and explain on the record the reasons for þet] findings, including the reason fot tejecting televant evidence in suppott of the claim. Even if legitimate reasons exist for rejecting ot discounting certain evidence, the [Commissione{ cannot do so for rìo reason or for the wrong reason." King u. Calìfun0, 61.5 F.2d 1018, 1,020 (4th Cir.1980) (citation omitted). The ALJ's duty of explanation is satisfied "$]f a reviewing coutt can discetn 'what the ALJ did and why he did it."' Pinel Moantain Coal Co. u. Ma1t,176F.3d753,162 n. 10 (4th Ctr. 1.999). Here, because the ALJ failed to provide sufficient explanation to support her RFC assessment, the Coutt "c^tnrot tell whethet þis] decision is based on substantial evidenc e." Coole u. Heckler,783 tr.2d 1,1,68,1172 (4th Cir. 1986). None of this necessarily means that Plaintiff is disabled undet the ct and the undersigned expresses no opinion on that matter. Nevertheless, the undetsigned concludes that the proper course here is to remand this mattet fot futher administrative ptoceedings. The Court decl-ines consideration of the additional issues raised by Plaintiff at this time. Hancock u. Bamhart,206 F.Supp.2d757,763-764 CX/.D. Ya.2002) (on remand, the prior decision of no preclusive effect, as it is vacated and the new hearing is conducted). 13 V. CONCLUSION ,{.fter a catefulconsideration of the evidence of recotd, the Court finds that the decision of the ALJ is not susceptible to judicial teview. Accotdingly, this Court RECOMMENDS that the Commissionet's decision finding no disability be REVERSED, and the mtter be REMANDED to the Commissioner under sentence fout of 42 U.S.C. $ a05(g). The Commissioner should be directed to remand the mattet to the A{ fot furthet administrative action as set out above. To this extent, Plaintifls motion fot judgment on the pleadings Q)ocket Entry 7) should be GRANTED and Defendant's motion for iudgment on the pleadings (Docket E.ttty 9) be DENIED. oe L. Webster United States Magisuate Judge January 1,9,201.7 Durham, Noth Carcltna 1,4
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