Opinion
Case No. 1:13-cv-01350-SAB
07-18-2014
BRENDA DEE BAKER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER GRANTING PLAINTIFF'S SOCIAL
SECURITY APPEAL AND REMANDING
ACTION FOR FURTHER
ADMINISTRATIVE PROCEEDINGS
Plaintiff Brenda Dee Baker ("Plaintiff") filed this action seeking judicial review of the final decision of Defendant Commissioner of Social Security ("Defendant" or "Commissioner") denying Plaintiff's application for benefits under the Social Security Act. (ECF No. 1.) All parties have consented to the jurisdiction of a United States Magistrate Judge for all purposes. (ECF Nos. 7, 8.)
Plaintiff applied for Social Security benefits due to impairments related to degenerative disc disease, obesity, depressive disorder and anxiety disorder. For the reasons set forth below, Plaintiff's appeal from the final decision of the Commissioner is granted and this action is remanded to the Commissioner for further administrative proceedings.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Citations to the Social Security Administrative Transcript will be designated as "AR" (administrative record). Page numbers will refer to the page numbers as stamped and indexed in the lodged transcript. (See ECF No. 9.)
Plaintiff applied for Disability Insurance benefits and Supplemental Security Income benefits on October 20, 2009. (AR 140-154.) Plaintiff's application was denied on April 13, 2010. (AR 73.) Plaintiff requested reconsideration of the denial on April 21, 2010. (AR 79.) Plaintiff's application was denied after reconsideration on September 20, 2010. (AR 81.) On September 30, 2010, Plaintiff requested a hearing. (AR 88.)
On September 12, 2011, a hearing took place before Administrative Law Judge Mary P. Parnow ("the ALJ"). (AR 39.) On November 11, 2011, the ALJ issued a written decision and found that Plaintiff was not disabled. (AR 16-32.) The Appeals Council denied Plaintiff's request for review on June 25, 2013. (AR. 1.)
A. Plaintiff's Hearing Testimony
Plaintiff was born on January 20, 1975. (AR 43.) Plaintiff is 5'6" and weighs 240 pounds. (AR 43.) Plaintiff is right handed. (AR 43.) In terms of education, Plaintiff completed the "LVN Program" and has "a licensed psychiatric technician license" obtained in 1999 (AR 43-44.) Plaintiff has a high school diploma. (AR 44.) Plaintiff contends that her disability began in March 2008. (AR 44-45.)
Plaintiff last worked in March 2008. (AR 44.) Plaintiff most recently worked as a house manager for a group home of disabled clients. (AR 45.) Plaintiff passed out medication and charted. (AR 45.) Plaintiff supervised other employees, hired and fired employees and did performance evaluations. (AR 46.)
Plaintiff also worked for the State of California at the Porterville Developmental Center as a psychiatric technician. (AR 46.) Plaintiff worked for "forensic clients" that were high functioning and very aggressive. (AR 46.) Plaintiff passed out medication, charted, watched the clients, made beds, and fed clients. (AR 46-47.) Plaintiff did a lot of walking, bending, and stopping altercations between clients. (AR 46-47.)
Plaintiff also worked at Kaweah Delta Mental Health Hospital. (AR 47.) Plaintiff passed medication, watched clients, and changed beds. (AR 48.) Changing the beds sometimes involved lifting or moving non-ambulatory patients. (AR 48.) Plaintiff also worked as a CNA at Porterville Convalescent Hospital. (AR 48.) Plaintiff dressed, fed, and showered clients. (AR 48.) Plaintiff made beds, charted, and answered call lights. (AR 48.)
Plaintiff currently lives with her fiance. Plaintiff has a driver's license but does not drive because she cannot turn her neck or twist her back to look over her shoulder. (AR 49.)
Plaintiff has been seeing Dr. Mendelson for pain treatment for a few years. (AR 49-50.) Plaintiff has received occipital nerve injections for migraines, and has done physical therapy, acupuncture and massage therapy. (AR 50.) None of the therapies have helped. (AR 50.) Plaintiff was reluctant to receive epidural injections because she received occipital injections, which did not work. (AR 50.) Plaintiff also had anxiety because she was told that there was a chance of becoming paralyzed. (AR 51.)
Plaintiff started taking Cymbalta for depression and anxiety the same month as the hearing. (AR 51.) Plaintiff takes Trinaptin for her sleep disorder, but it does not help. (AR 52.) Plaintiff's pain medication helps a little, but she still has a lot of pain. (AR 51.) Plaintiff also has side effects from her medications, such as drowsiness, upset stomach, and fatigue. (AR 51.) Plaintiff's doctors told her that these side effects could also be related to her depression and anxiety. (AR 52.) Plaintiff sees a therapist for her depression. (AR 53.)
On a typical day, Plaintiff's day starts at around 8:00 in the morning. (AR 53.) Plaintiff's fiance helps her with showering and getting dressed. (AR 53.) Plaintiff usually stays at home and has anxiety while her fiance is out of the house. (AR 53-54.) Plaintiff typically sits on the couch or paces around. (AR 54.) Plaintiff watches TV. (AR 54.) Plaintiff usually eats a microwaved burrito or "something like that" for meals. (AR 54.)
Plaintiff does not do any housework or go shopping because she cannot bend, stoop, pull or push. (AR 54.) Plaintiff can lift five pounds at the most. (AR 55.) Plaintiff can walk fifteen minutes before needing a break. (AR 55.) Plaintiff can stand for ten to fifteen minutes. (AR 5455.) Plaintiff can sit for about fifteen minutes. (AR 56.) Plaintiff can concentrate for a few minutes at a time. (AR 56-57.) Plaintiff's carpal tunnel prevents her from grasping anything. (AR 57.) Plaintiff has constant panic attacks. (AR 57.) Plaintiff also has panic attacks outside the house and feels like she is going to pass out because "everybody's staring at [her]." (AR 58.)
B. VE Testimony
Thomas Linvill testified as a vocational expert (hereinafter referred to as "the VE") at the September 12, 2011 hearing before the ALJ. (AR 60.) The VE characterized Plaintiff's past work as psychiatric technician (medium work, SVP 6) and resident supervisor (sedentary work, SVP 6).
The ALJ provided the VE with the following first set of hypothetical limitations:
• Same age, work history and education as Plaintiff;(AR 61.) The VE testified that a person with such hypothetical limitations could not perform Plaintiff's past work as a psychiatric technician, but could perform work as a resident supervisor. (AR 61-62.)
• No lifting over 15 pounds; and
• No stooping, bending, kneeling, crawling, repetitive arm movements or overhead work;
The ALJ provided the VE with the following second set of hypothetical limitations:
• Same limitations from the first hypothetical;(AR 62.) The VE testified that a person with such hypothetical limitations could not perform any of Plaintiff's past work. (AR 62.) However, such a person could perform other work as a film touch-up inspector (sedentary, SVP 2), document preparer (sedentary, SVP 2), surveillance system monitor (sedentary, SVP 2), or addresser (sedentary, SVP 2). (AR 62-63.) The VE testified that these jobs existed in low numbers in the local economy, with the number of jobs ranging from 4 or 5 to 30-35. (AR 62-63.) The jobs identified involved frequent handling and frequent feeling, but not repetitive movements. (AR 63.)
• Able to maintain attention and concentration to carry out simple job instructions;
• Unable to carry out an extensive variety of technical and/or complex instructions; and
• Able to related and interact with co-workers, supervisors and the general public.
Plaintiff's attorney provided the VE with the following third set of hypothetical limitations:
• Same age, education and work history as Plaintiff;(AR 64.) The VE testified that a person with such hypothetical limitations could not perform Plaintiff's past work, but could perform the jobs identified in response to the second hypothetical. (AR 64.)
• "[S]ame non-exertionally psychiatric posed in the second hypothetical";
• No lifting over ten pounds;
• No repetitive twisting of the head and neck; and
• No repetitive overhead use of the left upper extremity.
Plaintiff's attorney provided the VE with the following fourth set of hypothetical limitations:
• Able to lift and carry 5 pounds;(AR 65.) The VE testified that a person with such hypothetical limitations could not perform any work.
• Able to walk 15 minutes;
• Able to stand 15 minutes;
• Able to sit 15 minutes; and
• Unable to maintain concentration for longer than 10 minutes.
C. Medical Records
The administrative record includes the following medical records: records from Dr. Diego Allende, D.O. (AR 303-348, 382-397, 437-464), records from the State of California Division of Workers' Compensation (AR 349-353), records from Central Valley Family Health (AR 354-365, 533-541), records from Dr. Craig R. MacClean, M.D. (AR 366-381, 606-626), records from Dr. Ira Fishman, M.D. (AR 398-436), records from Mayumi Wint, LCSW (AR 465-469), records from Family Health Center (470-483), a February 19, 2010 Physical Residual Functional Capacity Assessment from Dr. C. De la Rosa, M.D. (AR 484-488), a February 19, 2010 Case Analysis from Dr. C. De la Rosa, M.D. (AR 489-494), records from Adventist Behavioral Health (AR 498-509, 598-603), a March 27, 2010 Psychiatric Evaluation from Dr. Ekram Michiel, M.D. (AR 510-514), an April 12, 2010 Mental Residual Functional Capacity Assessment from Dr. Randall J. Garland, Ph.D (AR 515-518), an April 12, 2010 Psychiatric Review Technique from Dr. Randall J. Garland, Ph.D (AR 519-532), records from Selma Community Hospital (AR 569-597), an August 10, 2010 Case Analysis from Dr. L. Bobba, M.D. (AR 604-605), a September 13, 2010 Case Analysis from Dr. P. Walls, M.D. (AR 627), records from Dr. Clifford Feldman, J.D., M.D. (AR 652-684), records from Cal Care Medical Institute Inc. (AR 685-700), and other records from various medical sources (AR 701-802).
D. The ALJ's Findings
The ALJ made the following findings of fact and conclusions of law:
• Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2012;(AR 21-31.)
• Plaintiff has not engaged in substantial gainful activity since March 15, 2008;
• Plaintiff has the following severe impairments: degenerative disc disease of the lumbar spine with radiculopathy to the right lower extremity, degenerative disc disease of the cervical spine with radiculopathy, obesity, depressive disorder, and anxiety disorder;
• Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1;
• Plaintiff has the residual functional capacity to perform less than the full range of light work. Plaintiff should avoid lifting over 15 pounds and is precluded from lifting 25 pounds. Plaintiff is precluded from stooping, kneeling, crawling, repetitive arm movements, and overhead work. Plaintiff is able to maintain attention and concentration and to carry out simple job instructions. Plaintiff is able to relate and interact with coworkers, supervisors, and the general public. Plaintiff is unable to carry out an extensive variety of technical and/or complex instructions;
• Plaintiff is unable to perform any past relevant work;
• Considering Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform; and
• Plaintiff has not been under a disability, as defined in the Social Security Act, from March 15, 2008.
II.
LEGAL STANDARDS FOR JUDICIAL REVIEW OF SOCIAL SECURITY
DETERMINATIONS
An individual may obtain judicial review of any final decision of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). The Court "reviews the Commissioner's final decision for substantial evidence, and the Commissioner's decision will be disturbed only if it is not supported by substantial evidence or is based on legal error." Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). "Substantial evidence" means more than a scintilla, but less than a preponderance. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (internal quotations and citations omitted). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Hill, 698 F.3d at 1159 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). However, it is not this Court's function to second guess the ALJ's conclusions and substitute the Court's judgment for the ALJ's. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ("Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.")
III.
DISCUSSION AND ANALYSIS
Plaintiff's arguments fall into two general categories. First, Plaintiff contends that the ALJ erred because the VE's testimony that Plaintiff could perform the jobs of "film touch-up inspector," "document preparer," and "surveillance systems monitor" conflicted with the DOT and the VE did not provide a reasonable explanation for the conflict. Second, Plaintiff contends that the other jobs identified by the VE do not constitute a significant number of jobs existing in the national economy.
A. The ALJ Erred by Failing to Obtain an Explanation of the Apparent Conflict Between the VE's Testimony and the DOT
Plaintiff argues that the ALJ erred in concluding that Plaintiff could perform work as a "film touch-up inspector," "document preparer" and "surveillance systems monitor" because the description of those jobs conflicted with the ALJ's findings regarding Plaintiff's RFC. Specifically, Plaintiff contends that work as a "film touch-up inspector" requires occasional stooping and constant reaching, handling and fingering, which Plaintiff cannot do. Plaintiff also contends that work as a "document preparer" and "surveillance systems monitor" require "Reasoning Level 3," which is beyond Plaintiff's capabilities.
"In making disability determinations, the Social Security Administration relies primarily on the Dictionary of Occupational Titles for 'information about the requirements of work in the national economy.'" Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (quoting SSR 00-4p at *2). "The Social Security Administration also uses testimony from vocational experts to obtain occupational evidence." Id. (citing SSR 00-4p at *2). "Although evidence provided by a vocational expert 'generally should be consistent' with the Dictionary of Occupational Titles, '[n]either the [Dictionary of Occupational Titles ] nor the [vocational expert] ... evidence automatically "trumps" when there is a conflict.'" Id. (quoting SSR 00-4p at *2). "Thus, the ALJ must first determine whether a conflict exists. If it does, the ALJ must then determine whether the vocational expert's explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the Dictionary of Occupational Titles." Id. "'[A]n ALJ may rely on expert testimony which contradicts the [Dictionary of Occupational Titles ], but only insofar as the record contains persuasive evidence to support the deviation.'" Id. at 1153 (quoting Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)).
1. The ALJ Did Not Err in Determining that Plaintiff Could Work as a Film Touch-Up Inspector
Plaintiff argues that the ALJ erred because the "film touch-up inspector" job requires occasional stooping and constant reaching, handling and fingering while the ALJ determined that Plaintiff's residual functional capacity precluded Plaintiff from stooping or engaging in repetitive arm movements.
The DOT describes the "film touch-up inspector" job as follows:
726.684-050 FILM TOUCH-UP INSPECTOR (electron. comp.)2 Dictionary of Occupational Titles 733 (4th Ed. 1991)
Inspects and repairs circuitry image on photoresist film (separate film or film laminated to fiberglass boards) used in manufacture of printed circuit boards (PCB's): Inspects film under magnifying glass for holes, breaks, and bridges (connections) in photoresist circuit image. Removes excess photoresist, using knife. Touches up holes and breaks in photoresist circuitry image, using photoresist ink pen. Removes and stacks finished boards for transfer to next work station. Maintains production reports. May place lint free paper between dry film sheets to avoid scratching circuit images on film.
GOE: 06.03.02 STRENGTH: S GED: R2 M1 L1 SVP: 2 DLU 86
The DOT's description of the "film touch-up" inspector job does not describe any duties that require stooping. Accordingly, contrary to Plaintiff's arguments otherwise, there is no inconsistency between the VE's testimony and the DOT in that respect.
With respect to any inconsistency with Plaintiff's inability to engage in repetitive arm movements, the ALJ elicited testimony from the VE providing a reasonable explanation regarding any inconsistency. At the hearing, the VE testified that the job may involve frequent handling and frequent feeling, but it would not be repetitive. (AR 63.)
Based upon the foregoing, the Court finds that the ALJ did not err in finding that Plaintiff could perform work as a film touch-up inspector.
2. The ALJ Erred in Determining That Plaintiff Could Work as a Document Preparer and Surveillance Systems Monitor
Plaintiff argues that the ALJ erred because the "document preparer" job and "surveillance systems monitor jobs require "Reasoning Level 3." Plaintiff contends that jobs which require "Reasoning Level 3" are inconsistent with Plaintiff's limitations, including being able to only "maintain attention and concentration and to carry out simple job instructions" and being "unable to carry out an extensive variety of technical and/or complex instructions."
The Dictionary of Occupational Titles classifies jobs on a General Educational Development ("GED") Scale which is composed of three divisions: Reasoning Development, Mathematical Development, and Language Development. 2 Dictionary of Occupational Titles 1012 (4th Ed. 1991).
General Educational Development embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance. This is education of a general nature which does not have a recognized, fairly specific occupational objective. Ordinarily, such education is obtained in elementary school, high school, or college. However, it may be obtained from experience and self-study.Id. at 1009, 1012.
The GED Scale is numerical, ranging from 1 to 6. The description for Reasoning Level 3 states:
03 Level Reasoning DevelopmentId. at 1011.
Apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.
However, the Social Security regulations do not utilize the GED Scale or any other readily quantifiable scale or metric to measure a claimant's ability to reason. Instead, the regulations vaguely state that "nonexertional limitations" will be considered, such as "difficulty maintaining attention or concentrating," and "difficulty understanding or remembering detailed instructions." See 20 C.F.R. § 416.969a(c).
Numerous courts have recognized the difficulty in comparing the DOT's GED Scale with limitations expressed in an ALJ's residual functional capacity determination because the two are not equivalent. See Bement v. Astrue, No. C11-814-TSZ-JPD, 2011 WL 7039958, at *10-14 (W.D. Wash. Dec. 28, 2011) (limitation to "simple workplace decisions with few workplace changes" consistent with Reasoning Levels 1 and 2, but not Level 3); Meissl v. Barnhart, 403 F. Supp. 2d 981, 982-84 (C.D. Cal. 2005) (finding that limitation to simple, repetitive mental tasks is consistent with Reasoning Level 2).
Defendant cites some cases where courts have held that simple, repetitive work limitations are not inconsistent with jobs that are classified as Reasoning Level 3. However, the greater weight of authority within this circuit holds that a simple tasks limitation is inconsistent with the DOT's Reasoning Level 3. See, e.g., Wright v. Astrue, No. EDCV 10-400 SS, 2010 WL 4553441, at *4 (C.D. Cal. Nov. 3, 2010) (and cases cited therein); Torrez, 2010 WL 2555847, at *9 (and cases cited therein). Following the greater weight of authority within this circuit, the Court finds that a conflict existed between the VE's testimony and the DOT because the DOT's description for the "document preparer" and "surveillance systems monitor" jobs were not compatible with Plaintiff's limitation to only carry out simple job instructions. While this conflict does not necessarily preclude the ALJ from adopting the VE's opinion, the Court finds that the ALJ erred in failing to elicit a reasonable explanation from the VE for the conflict and determine whether the record supports a deviation from the DOT.
Based upon the foregoing, the Court finds that the ALJ erred in determining that Plaintiff could perform work as a "document preparer" or as a "surveillance systems monitor."
B. The ALJ Erred In Finding that a Significant Number of Jobs Exist in the National Economy Which Plaintiff Could Perform
Plaintiff argues that the ALJ erred because the VE's testimony does not support the conclusion that the jobs identified by the VE existed in "significant numbers" in the national economy.
"If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do." Tackett, 180 F.3d at 1099. "There are two ways for the Commissioner to meet the burden of showing that there is other work in 'significant numbers' in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2." Id.
The ALJ determined that Plaintiff could perform work as an addresser and Plaintiff does not challenge this finding. Moreover, as discussed above, the Court finds that the ALJ did not err in concluding that Plaintiff could perform work as a "film touch-up inspector." See, discussion, supra Part III.A.1. The VE testified that 35 addresser jobs exist in the Fresno area and 13,200 addresser jobs exist on a national scale. (AR 62-63.) The VE testified that 4 or 5 film touch-up inspector jobs existed in the Fresno area and 1,300 film touch-up inspector jobs existed on a national scale. (AR 62.) Accordingly, adding the two sets of job numbers up, there were 39-40 jobs that Plaintiff could perform in the Fresno area and approximately 14,500 jobs Plaintiff could perform on the national level.
Work exists in "significant numbers" if it exists in "significant numbers" either in the region where the individual lives or in several regions throughout the country. 42 U.S.C. § 423(d)(2)(A); Gutierrez v. Commissioner of Social Sec., 740 F.3d 519, 528 (9th Cir. 2014). Accordingly, the fact that there are only 35 addresser jobs in the Fresno area does not preclude a finding that a "significant number" of jobs exist on the national scale. In fact, the ALJ is prohibited from considering "whether such work exists in the immediate area in which [Plaintiff] lives" in making her findings. 42 U.S.C. § 423(d)(2)(A) ("An individual shall be determined to be under a disability [if he] cannot ... engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives....").
However, there is no bright-line rule for what constitutes a "significant number" of jobs. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). In Beltran, 135 regional jobs and 1,680 national jobs was not a "significant number." Id. In Gutierrez, the Ninth Circuit stated that whether "25,000 national jobs is sufficient presents a close call." Gutierrez, 740 F.3d at 529. However, the court ultimately concluded that 25,000 jobs nationally "represents a significant number of jobs in several regions of the country." Id.
In light of the Ninth Circuit's characterization of 25,000 jobs as a "close call," the Court finds that 14,500 jobs on the national level is not a "significant number." Accordingly, the Court finds that the ALJ erred in determining that there existed a "significant number" of jobs which Plaintiff could perform.
C. Remand is Necessary for Further Administrative Proceedings
Remand for further administrative proceedings is appropriate if enhancement of the record would be useful. Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). "Conversely, where the record has been developed fully and further administrative proceedings would serve no useful purpose, the district court should remand for an immediate award of benefits." Id. "More specifically, the district court should credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited." Id. (citing Harman, 211 F.3d at 1178). "The decision to remand to the SSA for further proceedings instead of for an immediate award of benefits is reviewed for abuse of discretion." Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004) (citing Harman v. Apfel, 211 F.3d 1172, 1174, 1178 (9th Cir. 2000)).
In this case, there are outstanding issues that must be resolved before a determination of disability can be made. For example, the record must be further developed to resolve the conflict between the VE's testimony and the DOT regarding whether Plaintiff could perform work as a "document preparer" or "surveillance systems monitor." Moreover, the record may be further developed to determine whether Plaintiff could perform other jobs. Accordingly, it is not clear from the record that the ALJ would be required to find Plaintiff to be disabled. The Court will remand for further administrative proceedings.
IV.
CONCLUSION AND ORDER
Based upon the foregoing, the Court finds that the ALJ erred by failing to resolve an apparent conflict between the VE's testimony and the DOT regarding Plaintiff's ability to perform work as a "document preparer" and as a "surveillance systems monitor." The Court further finds that the ALJ erred in determining that a "significant number" of jobs existed in the national economy which Plaintiff could perform. The Court finds that further administrative proceedings are necessary to resolve outstanding issues before a determination of disability can be made.
Accordingly, it is HEREBY ORDERED that:
1. Plaintiff's appeal from the administrative decision of the Commissioner is GRANTED;IT IS SO ORDERED.
2. This action is REMANDED to the Commissioner for further administrative proceedings;
3. JUDGMENT is entered in favor of Plaintiff Brenda Dee Baker and against Defendant Commissioner of Social Security; and
4. The Clerk of the Court is directed to CLOSE this action.
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UNITED STATES MAGISTRATE JUDGE