United States District Court, E.D. New York
November 6, 2004.
MAURA M. WENK, Plaintiff,
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This case requires the Court to travel back in time to
determine whether the Plaintiff was disabled under the Social
Security Act as of December 31, 1977. This task is especially
difficult given the fact that the medical records of the
Plaintiff's then-treating physicians no longer exist.
Maura Wenk ("Wenk" or the "Plaintiff") commenced this action
pursuant to the Social Security Act (the "Act"),
42 U.S.C. § 405(g), challenging the final determination of the Commissioner
of Social Security ("Commissioner") denying her disability
benefits. Both parties move for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
("Fed.R. Civ. P.").
A. Procedural History
On February 15, 1999, Wenk filed an application for social
security disability insurance benefits, alleging an inability to
work since May 2, 1976. Wenk last met her insured status on
December 31, 1977. After her application was denied initially and
on reconsideration, she requested a hearing before an
administrative law judge. On February 9, 2000 a hearing was held
before Administrative Law Judge Jerry J. Bassett ("ALJ"). At the
hearing, the Plaintiff was represented by an attorney.
In a decision dated February 22, 2000, the ALJ found that Wenk
was "not disabled." On March 15, 2000, Wenk submitted additional
evidence and on March 27, 2000, she requested review of the
decision by the Appeals Council. On July 20, 2000, counsel for
the Plaintiff submitted comments in support of Wenk's appeal. On
August 12, 2002, the Appeals Council denied the Plaintiff's
request for review, making the ALJ's decision the final
administrative determination. This appeal followed.
1. Wenk's Testimony at the Hearing
The date last insured was December 31, 1977 and the alleged
onset date of her disability was May 2, 1976. The Plaintiff was
born on January 4, 1953, stands approximately 5'5" and weighs 148
pounds, approximately 20 pounds heavier than her normal weight.
The Plaintiff is divorced and has three children. With regards to
her education, the Plaintiff graduated from high school and
completed two years of junior college.
The Plaintiff testified that from 1972-1973, she worked as a
music coordinator for a radio station. From 1973 until May 1976,
she worked for the sales division of CBS. In that position, the
Plaintiff testified that in an eight hour day she would sit for
two to three hours per day and stand for approximately four hours
per day. The Plaintiff did not do any significant lifting at that
job. In May 1976, when she was about two and one half months
pregnant, the Plaintiff left CBS because "the baby was on [her]
sciatica nerve," she had previous back problems, and she had
phlebitis in her leg. The Plaintiff testified that she was unable
to return to work nor could she travel to work. She also
testified that she had to rest often because her back would hurt
and her feet would swell. The Plaintiff also suffered from
sciatica. When she had her baby in November 1976 the problems did
not go away. The Plaintiff did not return to work because "she
had constant back pain and leg pain . . . just climbing up the
stairs was very difficult on [her] back and [getting to work]
also made her leg swell." The Plaintiff had another child in
February 1978. That pregnancy also caused sciatica, phlebitis and
back problems. The Plaintiff testified that her back pain and
phlebitis was a continuous problem from the time it began in 1976
until the time she had surgery in 1982. She testified that she
saw Dr. Sherwood Greiner and Dr. J. Grant Harrison "quite often."
The Plaintiff has not worked since leaving her position at CBS.
Wenk also testified that she had three surgeries on her wrist
but does not know the exact dates of these surgeries. The
Plaintiff testified that she injured her wrist while playing
golf. In addition, she had back surgeries in 1982, 1989 and 1994.
The Plaintiff also suffers from chronic asthma.
The Plaintiff completed a "Disability Report" in which she
indicated that she cannot sit, stand, walk, [or] bend for any
length of time." In this Report, the Plaintiff also stated that
at her job at CBS, she walked for 6 hours, stood for 6 hours, sat
for 2 hours, kneeled for 4 hours and that the heaviest weight she
lifted was 20 pounds. In this report, she also indicated that she
saw Dr. Granier for her back problems and thrombophlebitis of the
left leg and her last visit with him was in 1979. She also stated
that she was admitted to the Winthrop University Hospital in the
"late 1970's" for three weeks for severe back problems. She also
saw Dr. J. Grant Harrison in the mid-1970's for acute
thrombophlebitis of the left leg. The Plaintiff stated that she
"cannot sit, stand, walk, bend for any length of time . . . [and
that she has] severe chronic pain."
2. Evidence Relating to the Period Prior to the Plaintiff's
Date Last Insured December 31, 1977
A claim under Title II of the Act for disability benefits
require the claimant to demonstrate that she was disabled at the
time she last met the Title's special insured status requirement.
42 U.S.C. § 423. It is undisputed that the Plaintiff last met
this requirement on December 31, 1977. Thus, the ALJ must find
that the Plaintiff was disabled on or before that date in order
for her to qualify for disability benefits. Ogbunugafor v.
Barnhart, 2002 WL 31886260, at *4 (S.D.N.Y. December 27, 2002).
The Court has reviewed the records which contain medical
documentation from 1977 through 1999. However, the Court will
only summarize the medical data from the period prior to the
expiration of the Plaintiff's insured status.
From July 17, 1977 July 26, 1977, the Plaintiff was
hospitalized at Nassau Hospital in Mineola, New York for
complaints of back pain. She was diagnosed with low back pain
with right sciatic radiculitis. The Plaintiff stated that she
believed that the pain may have been aggravated because she
frequently carried her child. On July 17, 1977, the Plaintiff
performed straight leg raising to forty-five degrees. Dr.
Harrison found mild bilateral leg edema which was more pronounced
on the left. His diagnosis included acute back pain, pregnancy,
asthma and chronic left thrombophlebitis.
In a case summary dated August 22, 1977, Dr. H. David indicated
that the Plaintiff was admitted with the history of low back pain
since May 1977. The Plaintiff stated that she had low back pain
and a difficult labor in November 1976. A physical examination
revealed no significant abnormalities other than her low back.
Straight leg raising was positive to forty five degrees with low
back pain. The neurological exam was within normal limits and
there was no muscle weakness or atrophy in her lower extremities.
Dr. David's final diagnosis was "low back pain with right sciatic
The Plaintiff also produced a one-page letter dated September
16, 1998 from Dr. J. Grant Harrison, who indicated that he was
retired. In the letter, Dr. Harrison stated that he had not seen
the Plaintiff professionally since the mid-1970's and that his
treatment records were no longer available. He indicated that he
treated the Plaintiff in 1974 for acute thrombophlebitis in her
left leg and that she had a recurrence during her first
pregnancy. As a result, according to Dr. Harrison, the Plaintiff
was unable to commute and perform her duties at CBS and she
"retired as disabled" in May 1976. Dr. Harrison also noted that
her two subsequent pregnancies were complicated by phlebitis and
severe back problems.
In a letter dated September 28, 1998, Dr. Sherwood Greiner, an
orthopedist, stated that he was semi-retired and that his records
relating to the Plaintiff had been discarded. Dr. Greiner
indicated that the Plaintiff had not been examined professionally
since 1979, but that he recalled that the Plaintiff was the
daughter of a personal friend and that he treated her for disc
disease in her lumbar spine, complicated by recurring
thrombophlebitis of her leg. He also concluded that she "became
disabled in April 1976, unable to perform her duties at CBS
B. The ALJ's Decision
As stated above, on February 9, 2000, the ALJ held a hearing in
connection with the Plaintiff's claim for disability insurance
benefits. By decision dated February 22, 2000, the ALJ concluded
that, based upon the evidence at the hearing, the Plaintiff was
not entitled to disability insurance benefits because she was not
disabled on or before December 31, 1977. In his decision, the ALJ
made the following findings:
1. The [Plaintiff] . . . met the disability insured
status requirement of the Act on May 2, 1976, the
date the claimant alleged she became unable to work,
and continued to meet these requirements through
December 31, 1977;
2. The [Plaintiff] has not engaged in substantial
gainful activity since May 2, 1976;
3. The medical evidence establishes that the
[Plaintiff] had recurrent thrombophlebitis and back
pain prior to the expiration of her insured status,
but she did not have an impairment or combination of
impairments listed in, or medially equal to one
listed in Appendix 1, Subpart P, Part 404 of the
4. The [Plaintiff's] assertion that all work was
foreclosed for her due to her impairments prior to
the expiration of her insured status is not supported
by the medical record and was not credible;
5. The [Plaintiff] had the residual functional
capacity to perform at least sedentary work prior to
the expiration of her insured status on December 31,
6. The [Plaintiff] was unable to perform her past
relevant, light work as a sales coordinator or
secretary and music coordinator;
7. The claimant was almost 25 years of age at the
expiration of her insured status, which is defined as
a "younger" individual (20CFR 404.1563);
8. The claimant has a high school education and two
years of college (20 CFR 404.1564);
9. The claimant had semiskilled to skilled work
experience, which may not have afforded her skills
that were transferable to other work
(20 CFR 404.1568);
10. Based on a capacity for sedentary work and the
claimant's age, education and work experience, Rules
201.28 and 201.29 in Table No. 1, Appendix 2, Subpart
P, Part 404 of the Regulations, indicate that a
finding of not disabled is appropriate within the
meaning of the Social Security Act;
11. The claimant was not under a "disability" as
defined in the Social Security Act, at any time on or
before the expiration of her insured status on
December 31, 1977 (20 CFR 404.1520(f)).
C. Evidence Submitted to the Appeals Council
On August 12, 2002, the Appeals Council issued an order stating
that it received a letter dated March 4, 2002 written by Dr.
Thomas M. Mauri and it was made part of the record. In this
letter, Dr. Mauri indicated that he first treated Wenk in
December 1988 for neck pain and she subsequently visited him for
lower back and leg pain. Dr. Mauri indicated that the history of
the Plaintiff's back problems began in the 1970's and that he
reviewed the above mentioned operative reports from Nassau
Hospital. Dr. Mauri opined that "it is clear . . . that [Wenk]
has had ongoing problems in her back and right leg since 1976 at
least. I therefore, refer to this as a problem that has been with
her since her early twenties . . . She is absolutely totally
disabled from this condition and has been disabled from the
original symptoms diagnosed in 1976."
In an order dated August 12, 2002, the Appeals Council stated
that they received Dr. Mauri's letter but concluded that it did
not provide a basis for changing the ALJ's decision.
A. The Legal Standard
To review the Commissioner's decision, the Court must determine
whether (1) the Commissioner applied the correct legal standard,
see Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); and (2)
the decision is supported by substantial evidence, see
42 U.S.C. § 405(g); Brown v. Apfel, 174 F.3d 59, 61-62 (2d Cir.
1999). Substantial evidence is "more than a mere scintilla,"
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 206 (1938),
and requires enough evidence that a reasonable person "might
accept as adequate to support a conclusion." Brown,
174 F.3d at 62-63.
In determining whether the Commissioner's findings are
supported by substantial evidence, the Court's task is "to
examine the entire record, including contradictory evidence and
evidence from which conflicting interferences can be drawn."
Id. at 62 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038
(2d Cir. 1983) (per curiam)). In addition, the Court is mindful
that "it is up to the agency, and not this court, to weigh the
conflicting evidence in the record." Clark v. Commissioner of
Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Indeed, in
evaluating the evidence, "`the court may not substitute its own
judgment for that of the Secretary, even if it might justifiably
have reached a different result upon de novo review.'" Jones
v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v.
Secretary of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.
Remand of a disability claim for further administrative
procedures is an appropriate remedy where, among other matters,
(1) "there are gaps in the administrative record or the ALJ has
applied an improper legal standard . . .," Rosa v. Callahan,
168 F.3d 72, 82-83, or (2) new, material evidence is adduced that
was not produced before the agency. See Raitport v. Callahan,
183 F.3d 101, 104 (2d Cir. 1999) (citation omitted).
B. The Availability of Benefits
Federal disability insurance benefits are available to those
individuals who are "disabled" within the meaning of the Act.
See 42 U.S.C. § 423(a), (d). To be eligible for disability
benefits under the Act, the Plaintiff must establish her
"inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for
a continuous period of not less than 12 months."
42 U.S.C. § 423(d)(1)(A). The impairment must be 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." 42 U.S.C. § 423(d)(2)(A).
The Commissioner has promulgated a five-step analysis for
evaluating disability claims. See 20 C.F.R. §§ 404.1520,
416.920. The Second Circuit has explained:
First, the [Commissioner] considers whether the
claimant is currently engaged in substantial gainful
activity. If he is not, the [Commissioner] next
considers whether the claimant has a "severe
impairment" which significantly limits his physical
or mental ability to do basic work activities. If the
claimant suffers such an impairment, the third
inquiry is whether, based solely on medical evidence,
the claimant has an impairment which is listed in
Appendix 1 of the Regulations. If the claimant has
such an impairment, the [Commissioner] will consider
him disabled without considering vocational factors
such as age, education, and work experience; the
[Commissioner] presumes that a claimant who is
afflicted with a "listed" impairment is unable to
perform substantial gainful activity. Assuming the
claimant does not have a listed impairment, the
fourth inquiry is whether, despite the claimant's
severe impairment, he has the residual functional
capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other
work which the claimant could perform.
DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998)
(quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982));
see also Balsamo v. Chater, 142 F.3d 75, 79-80 (2d Cir. 1998);
Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). The claimant
bears the burden of proof as to the first four steps, while the
Commissioner bears the burden of proof as to the fifth step. See
Schaal, 134 F.3d at 501 (citing Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996); 20 C.F.R. §§ 404.1520, 416.920).
Proceeding through the five-step analysis, the Commissioner
must consider the complete record, including any objective
medical evidence, as well as the claimant's subjective statements
concerning her or his impairments, restrictions, daily activities
and any other relevant statements. See Bluvband v. Heckler,
730 F.2d 886, 891 (2d Cir. 1984). However, and significantly, the
Commissioner must accord special evidentiary weight to the
opinion of the treating physician. See Clark v. Commissioner of
Soc. Sec., 143 F.3d 115, 119 (2d Cir. 1998). The "treating
physician rule," as it is known, "mandates that the medical
opinion of a claimant's treating physician is given controlling
weight if it is well supported by the medical findings and not
inconsistent with other substantial record evidence." Shaw v.
Chater, 221 F.3d 126, 134 (2d Cir. 2000); see Rosa v.
Callahan, 168 F.3d 72, 79 (2d Cir. 1999); Clark,
143 F.3d at 119; Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993). The
rule, as set forth in the regulations, provides:
Generally, we give more weight to opinions by your
treating sources. . . . If we find that a treating
source's opinion on the issue(s) of the nature and
severity of your impairment(s) is well supported by
medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with
the other substantial evidence in your case record,
we will give it controlling weight.
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). In analyzing a
treating physician's report, "the ALJ cannot arbitrarily
substitute his own judgment for competent medical opinion."
Rosa, 168 F.3d at 79; see Balsamo v. Chater, 142 F.3d 75, 81
(2d Cir. 1998). If the opinion of the treating physician as to
the nature and severity of the impairment is not given
controlling weight, the Commissioner applies various factors to
decide how much weight to give the opinion. See Shaw,
221 F.3d at 134; Clark, 143 F.3d at 118. Those factors include: (i) the
frequency of examination and the length, nature, and extent of
the treatment relationship; (ii) the evidence in support of the
opinion; (iii) the opinion's consistency with the record as a
whole; (iv) whether the opinion is from a specialist; and (v)
other relevant factors. 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2); see Clark, 143 F.3d at 118. When the
Commissioner chooses not to give the treating physician's opinion
controlling weight, she or he must "give good reasons in [its]
notice of determination or decision for the weight [it] gives
[claimant's] treating source's opinion." Clark, 143 F.3d at 118
(quoting C.F.R. §§ 404.1527(d)(2); 416.927(d)(2)).
C. The ALJ Adhered to the Sequential Evaluation
In this case, the ALJ adhered to the regulatory five-step
sequential evaluation. First, the ALJ found that the Plaintiff
met the special insured status requirements of the Act until
December 31, 1977 and that the Plaintiff had not engaged in
substantial gainful activity since May 2, 1976. Second, the ALJ
found that the medical evidence established that on or prior to
December 31, 1977, the Plaintiff had recurrent thrombophlebitis
and back pain. Third, the ALJ found that the Plaintiff's
impairment did not meet or equal in severity the clinical
criteria of any impairment listed in 20 C.F.R. Part 404, Subpart
P, App. 1. Next, the ALJ concluded that the Plaintiff was unable
to perform her past relevant, light work as a sales coordinator
or secretary and music coordinator. Fifth and finally, the ALJ
evaluated the Plaintiff's residual functional capacity and found
that on or prior to December 31, 1977, she remained capable of
performing work that involved sitting up to six hours,
standing/walking up to two hours in an eight-hour workday and
lifting/carrying up to ten pounds occasionally. As such, the ALJ
concluded that on or prior to December 31, 1977, the Plaintiff
was capable of performing sedentary work and as such, she was
not-disabled under the Act. Accordingly, the Court finds that the
ALJ applied the correct legal standard.
D. The ALJ's Finding is Not Supported by Substantial Evidence
The Plaintiff contends that the ALJ's fifth determination that
she retained the residual functional capacity to perform
sedentary work is not supported by substantial evidence. The
As stated above, the ALJ found that the Plaintiff "was unable
to perform her past relevant, light work as a sales coordinator
or secretary and music coordinator." When, as here, a plaintiff
demonstrates that her impairment renders her unable to perform
past work, the Commissioner has "the burden of proving that the
claimant still retains a residual functional capacity to perform
alternative substantial gainful work which exists in the national
economy." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)
(citations omitted); see also Garcia v. Apfel, No. 98 Civ.
1370, 1999 WL 1059968, at * 4 (S.D.N.Y. Nov. 19, 1999). In that
regard, the Commissioner must offer affirmative evidence
including specific medical evidence of the "`physical functions
the claimant is capable of performing.'" Garcia, 1999 WL
1059968, at * 4 (quoting Ferraris v. Heckler, 728 F.2d 582, 585
(2d Cir. 1984)).
As stated above, the medical opinions of treating opinions are
to be given controlling weight if they are "well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and [are] not inconsistent with the other substantial
evidence in [the] case record." 20 C.F.R. § 404.1527 (d)(2). The
"`treating physician rule'" applies to retrospective diagnoses,
which relate to some prior time period during which the
diagnosing physician may or may not have been a treating
source.'" Cava v. Barnhart, No. 03-CV-6621, 2004 WL 1207900, at
*9 (S.D.N.Y. Jun 1, 2004) (quoting Byam v. Barnhart,
336 F.3d 172, 183 (2d Cir. 2003). Although it is true that a
treating physician's diagnosis of a patient's
condition at a time in the past while the physician
was not treating his patient is entitled to less
weight than a treating physician's diagnosis of his
patient's current condition while under active
treatment or observation, where there is no medical
testimony to rebut the retrospective opinion of the
treating physician, nor is there overwhelmingly
compelling non-medical evidence to the contrary . . .
in the absence of competing medical opinions, then
there is not `substantial evidence' necessary to
support the Secretary's determination.
Campbell v. Barnhart, 178 F. Supp. 2d 123, 134 (D. Conn. 2001)
(internal citations and quotations omitted).
Here, the Plaintiff submitted a letter dated March 4, 2002 from
Dr. Mauri, a treating physician who retroactively diagnosed the
Plaintiff as disabled from the "original symptoms diagnosed in
1976." In particular, Dr. Mauri wrote:
I first saw her on December 27, 1988 for neck pain . . .
The history of her back problems [began] in the
1970's and as a matter of fact I am in possess f an
operative report for this patient from Nassau
Hospital, which is the present Winthrop Hospital from
a Dr. Greiner, Hellou and David. This is dated August
22, 1977 and refers [to] Maura as a 24 year-old
female who had lower back pain without history of
stress or trauma. The history dated back to 1976 when
she had back pain with childbirth and that she
aggravated this by carrying her child around.
Activity and stress aggravated the condition at that
time. Bed rest helped and the patient was treated as
an outpatient but did not respond . . . The patient's
diagnosis at that time was lower back pain with right
sciatic radiculitis and she was referred as an
outpatient back to the orthopedist's office for
It is clear from the above that the patient has had ongoing
problems in her back and right leg since 1976 at least.
Letter from Dr. Thomas M. Mauri to Mr. Douglas Kugal dated
3/4/02. This letter has never been evaluated by the ALJ, nor did
the Appeals Council offer any basis for rejecting Dr. Mauri's
retroactive diagnosis of disability. The Court notes that the
Plaintiff's then-treating physicians, Dr. Harrison and Dr.
Greiner also submitted letters indicating that the Plaintiff has
been disabled as of the spring of 1976. In particular, Dr.
Harrison's letter stated that the Plaintiff "was retired as
disabled in May 1976." Similarly, Dr. Greiner concluded that the
plaintiff "became disabled in April of 1976, unable to perform
her duties at CBS television." These letters also indicate that
their medical records are unavailable. Given the serious
magnitude of the denial of SSI benefits, in the Court's view, it
would be unfair to the Plaintiff to discredit these diagnoses
solely on the basis that their medical records are no longer
available as a result of the retirement of the physicians and due
to no fault of the Plaintiff.
As stated above, the ALJ concluded that on or prior to December
31, 1977, the Plaintiff remained capable of performing work that
involved sitting up to six hours, standing/walking up to two
hours in an eight-hour workday and lifting/carrying up to ten
pounds occasionally. However, the ALJ failed to make detailed and
specific findings of fact regarding "exactly what [the claimant]
can do, especially with reference to [her] ability to sit and for
how long." Ferris v. Heckler, 728 F. 2d 582, 585 (2d Cir.
1984). On remand, the ALJ is respectfully requested to address
the retrospective disability diagnosis by Dr. Mauri as well as
the opinions of Drs. Harrison and Greiner that the Plaintiff was
totally disabled and consider sending the Plaintiff for a
retrospective consultative examination. In addition, the ALJ is
requested to set forth the bases for his findings in more detail.
E. As to the Credibility Determination
The ALJ found that Wenk's "assertion that all work was
foreclosed for her due to her impairments prior to the expiration
of her insured status is not supported by the medical record and
was not credible." However, before rejecting the testimony of any
witness, "a finding that the witness is not credible must
nevertheless be set forth with sufficient specificity to permit
intelligible plenary review of the record." Williams ex rel.
Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988) (citation
omitted). Here, the ALJ found that the Plaintiff's testimony that
she was not able to find employment due to her physical
impairments was not credible. In the Court's view, the ALJ failed
to support his lack of credibility finding with a sufficient
analysis or specificity, this is especially so given the fact
that the medical evidence was minimal and all the medical
opinions in the record confirmed the total work disability of the
Plaintiff. Upon remand, the ALJ shall set forth his finding with
particularity on this issue so that the Court may adequately
review the record.
Based on the foregoing, it is hereby
ORDERED, that the Commissioner's cross-motion for judgment on
the pleadings is DENIED; and it is further
ORDERED, that Wenk's motion for judgment on the pleadings is
GRANTED; and it is further
ORDERED, that the final decision of the Commissioner is
vacated and this case is remanded to the Commissioner pursuant to
the fourth sentence of 42 U.S.C. § 405(g), for further
administrative proceedings in accordance with this Order; and it
ORDERED, that the Clerk of the Court is directed to close
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