Summary
finding that the ALJ failed to discuss the supportability and consistency factors
Summary of this case from Huizar v. Comm'r of Soc. Sec.Opinion
Case Number 20-10918
2021-08-13
Lakeisha HARDY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Bethany G. Versical, Kwitoski & Associates, PLLC, Ferndale, MI, for Plaintiff. Kevin M. Parrington, U.S. Department of Justice Social Security Administration, Boston, MA, Zak Toomey, United States Attorney's Office, Detroit, MI, for Defendant.
Bethany G. Versical, Kwitoski & Associates, PLLC, Ferndale, MI, for Plaintiff.
Kevin M. Parrington, U.S. Department of Justice Social Security Administration, Boston, MA, Zak Toomey, United States Attorney's Office, Detroit, MI, for Defendant.
OPINION AND ORDER REJECTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, GRANTING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND REMANDING CASE FOR FURTHER CONSIDERATON
DAVID M. LAWSON, United States District Judge
Plaintiff Lakeisha Hardy, a 35-year-old woman, says that she cannot work because of a variety of physical and mental disabilities. Her applications for disability insurance benefits and supplemental security income (SSI) under Title II and Title XVI of the Social Security Act were denied after an administrative hearing, and she filed this case seeking review of the Commissioner's decision under 42 U.S.C. § 405(g). The case was referred to United States Magistrate Judge Kimberly G. Altman under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment to reverse the decision of the Commissioner and remand the case for an award of benefits or for further consideration by the administrative law judge (ALJ). The defendant filed a motion for summary judgment requesting affirmance of the decision of the Commissioner. Magistrate Judge Altman filed a report on March 17, 2021, recommending that the defendant's motion for summary judgment be granted, the plaintiff's motion for summary judgment be denied, and the decision of the Commissioner be affirmed. The plaintiff filed timely objections, and the defendant filed a response. The matter is now before the Court.
The sole issue for consideration is whether the ALJ sufficiently articulated her reasons for finding "unpersuasive" the opinions of two of the plaintiff's treating physicians, an appellation that means little in light of new regulations. As discussed below, those regulations, which supersede the old "treating physician rule," promise claimants that ALJs "will articulate in [their] determination or decision how persuasive [they] find all of the medical opinions ... in your case record." 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The plaintiff contends that the ALJ did not apply the new regulations properly, and therefore substantial evidence does not support the decision. The Commissioner takes the opposite view and points out other evidence in the administrative record that shores up the ALJ's determination.
Hardy filed her application for disability insurance benefits on May 25, 2017, when she was 30 years old. She obtained a GED certificate. She had worked at various entry-level-type jobs, but the ALJ found that she had not performed any past relevant work. She alleges that she is disabled as a result of her diabetes mellitus, anemia, bilateral carpal tunnel syndrome and ulnar neuropathy (causing pain and numbness in her wrists), de Quervain's tenosynovitis (causing pain on the thumb-side of the wrists), diabetic neuropathy, peripheral circulatory disorder, obstructive sleep apnea, asthma, tachycardia, obesity, major depressive disorder, substance use disorder, and paranoid personality disorder. In her applications for benefits, the plaintiff alleged a disability onset date of September 1, 2014.
Hardy's benefit applications were denied initially on October 24, 2017. She timely filed a request for an administrative hearing, and on August 13, 2018, she appeared with her attorney before ALJ Carol Guyton. On November 19, 2018, ALJ Guyton issued a written decision in which she found that Hardy was not disabled. On February 14, 2020, the Appeals Council denied Hardy's request for review of the ALJ's decision. On April 10, 2020, the plaintiff filed her complaint seeking judicial review of the denial of her requested benefits.
The ALJ determined that Hardy was not disabled by applying the five-step sequential analysis prescribed by the Secretary of Social Security in 20 C.F.R. §§ 404.1520, 416.920. At step one of the analysis, the ALJ found that Hardy had not engaged in substantial gainful activity since September 1, 2014. At step two, she found that Hardy suffered from diabetes mellitus, anemia, bilateral carpal tunnel syndrome and ulnar neuropathy, de Quervain's tenosynovitis, diabetic neuropathy, peripheral circulatory disorder, obstructive sleep apnea, asthma, tachycardia, obesity, major depressive disorder, substance use disorder, and paranoid personality disorder — impairments that were "severe" within the meaning of the Social Security Act. The ALJ found that the plaintiff's other disorders — including migraines, osteoarthritis, essential hypertension, leukocytosis, and goiter — were not severe. At step three, the ALJ determined that none of the severe impairments, alone or in combination, met or equaled a listing in the regulations.
Before proceeding further, the ALJ determined that Hardy retained the functional capacity to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a), with certain limitations. The ALJ determined that Hardy (1) only occasionally can climb ramps or stairs and balance, kneel, stoop, crawl, and crouch, (2) cannot climb ladders, ropes, or scaffolds, (3) can tolerate no more than occasional exposure to fumes, odors, dust, gases, or poor ventilation, (4) must avoid exposure to extreme cold and heat, wetness, and humidity, (5) should have no work exposure to hazardous machinery or unprotected heights, (6) frequently can handle and finger with her upper extremities, (7) can perform only simple, routine tasks involving simple, short instructions and simple work related decisions with few workplace changes, and (8) cannot have contact with the general public and could tolerate only occasional contact with coworkers.
At step four of the analysis, the ALJ found that the plaintiff had no past relevant work experience. At step five, the ALJ found that, based on Hardy's residual functional capacity (RFC), and relying on the testimony of a vocational expert, the plaintiff could perform the duties of representative sedentary occupations including bench hand (40,000 positions in the national economy), final assembler (40,000 positions nationally), and clerical sorter (35,000 positions). Based on those findings — and noting that, if the plaintiff had the capacity to perform a full range of sedentary work, then a "not disabled" finding would have been mandated by Medical Vocational Rule 202.21 — the ALJ concluded that Hardy was not disabled within the meaning of the Social Security Act.
In her motion for summary judgment, Hardy posed the single argument that the ALJ's RFC finding was not supported by substantial evidence because the ALJ did not explain why the opinions of the plaintiff's treating physicians were determined to be unpersuasive, according to the criteria enunciated in 20 C.F.R. §§ 404.1520c, 416.920c.
The magistrate judge rejected that position. She found that the ALJ drew on several sources when determining Hardy's RFC and provided an adequate rationale for declining to adopt the medical opinions stated in the two treating source disability evaluations. The magistrate judge noted that, although the conclusions stated by the ALJ were stated in single sentences addressing each source, those conclusions were backed up by an extensive preceding summary of the medical record. The magistrate judge also called out specific indications in medical notes by the same treating sources, which the ALJ did not mention, that contradicted the limitations that were recorded on checkbox disability assessment forms, and other instances where the sources indicated unelaborated assessments of limitations that were unsubstantiated by any associated medical notes of relevant clinical observations. The magistrate judge also noted that one case principally cited by the plaintiff in her briefing pre-dated the revisions to the Commissioner's regulations governing consideration of medical source opinions and applied the now obsolete "treating source rule."
The plaintiff filed a single objection to the magistrate judge's report and recommendation. The filing of timely objections to a report and recommendation requires the court to "make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1) ; see also United States v. Raddatz , 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) ; United States v. Walters , 638 F.2d 947 (6th Cir. 1981). This de novo review requires the court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).
"The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately," Walters , 638 F.2d at 950, enabling the court "to focus attention on those issues-factual and legal-that are at the heart of the parties’ dispute," Thomas v. Arn , 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). As a result, " ‘[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.’ " McClanahan v. Comm'r of Soc. Sec. , 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit Fed'n of Teachers Local 231 , 829 F.2d 1370, 1373 (6th Cir. 1987) ).
The plaintiff argues that the magistrate judge erred when she found that the RFC determination adequately accounted for all of her mental and physical conditions, because the "summary" of the medical record included in the ALJ's decision did not "trace the path of the ALJ's reasoning" that led from the medical evidence in the record to the concise one-sentence rejections of both treating source opinions. The plaintiff contends that the ALJ's analysis did not cite specific medical source notes that supposedly contradicted the treating source assessments, it did not identify which specific observation by the treating sources were discounted by the ALJ, and it did not identify which specific medical record notes supported the ALJ's ultimate determination of the RFC. The plaintiff contends that the magistrate judge's assessment was based almost entirely on the Commissioner's post-hoc rationalization of the ALJ's decision rather than anything stated in the administrative ruling itself. The plaintiff also argues that the magistrate judge overlooked certain other medical notes that were supportive rather than contradictory for the disability assessments.
The new (post-March 27, 2017) regulations displaced the former treating physician rule, which required substantial deference to the opinions of medical sources that had established a treating relationship with the claimant. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) ; see also Hardaway v. Sec'y of Health & Human Servs. , 823 F.2d 922, 927 (6th Cir. 1987) (noting that "the expert opinions of a treating physician as to the existence of a disability are binding on the fact-finder unless contradicted by substantial evidence to the contrary") (quoting Bastien v. Califano , 572 F.2d 908, 912 (2d Cir. 1978) ). Now, the Social Security Administration "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s)." 20 C.F.R. §§ 404.1520c(a), 416.920c(a).
However, the Secretary replaced the rule that afforded a measure of automatic deference to a treating physician with the procedural guarantee that an ALJ will explain — will "articulate" — how persuasive that officer found each medical source. 20 C.F.R. §§ 404.1520c(b), 416.920c(b). Five factors guide this articulation (supportability; consistency; the source's relationship with the claimant; the source's specialized area of practice; and "other factors that tend to support or contradict a medical opinion"), 20 C.F.R. §§ 404.1520c(c), 416.920c(c), but the regulations only require ALJs to discuss the first two — supportability and consistency. See 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). For those two factors, the regulations further pledge that ALJs "will explain how [they] considered the supportability and consistency factors for a medical source's opinions ... in your determination or decision." Ibid.
According to the regulations, "supportability" means that "[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) ... the more persuasive the medical opinions ... will be." 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). For "consistency," the regulations explain that "[t]he more consistent a medical opinion(s) ... is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) ... will be." 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). In the official commentary on the revised regulations, the Secretary pointed out that these factors historically were "the foundation of the treating source rule." Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01 (Jan. 18, 2017) ("These same factors also form the foundation of the current treating source rule, and we believe that it is appropriate to continue to keep these factors as the most important ones we consider in our evaluation of medical opinions and prior administrative medical findings.") (footnotes omitted).
These new regulations plainly are less demanding than the former rules governing the evaluation of medical source opinions, especially those of treating sources. But "they still require that the ALJ provide a coherent explanation of [her] reasoning." Lester v. Saul , No. 20-01364, 2020 WL 8093313, at *14 (N.D. Ohio Dec. 11, 2020), report and recommendation adopted sub nom. Lester v. Comm'r of Soc. Sec. , No. 20-1364, 2021 WL 119287 (N.D. Ohio Jan. 13, 2021). The new regulations "set forth a ‘minimum level of articulation’ to be provided in determinations and decisions, in order to ‘provide sufficient rationale for a reviewing adjudicator or court.’ " Warren I. v. Comm'r of Soc. Sec. , No. 20-495, 2021 WL 860506, at *8 (N.D.N.Y. Mar. 8, 2021) (quoting 82 Fed. Reg. 5844-01 (2017) ). An "ALJ's failure ... to meet these minimum levels of articulation frustrates [the] court's ability to determine whether [claimant's] disability determination was supported by substantial evidence." Vaughn v. Comm'r of Soc. Sec. , No. 20-1119, 2021 WL 3056108, at *11 (W.D. Tenn. July 20, 2021).
The two physicians that furnished opinions supporting the plaintiff's disability claim were Theadia L. Carey, M.D., a psychiatrist, and Anna Trostinskaia, M.D., a family physician. Dr. Carey completed a mental functioning form statement on June 12, 2018, which, as related by the ALJ, recited diagnoses of major depressive disorder and paranoid personality disorder, for which the plaintiff obtained treatment once or twice monthly for four years. According to the ALJ, Dr. Carey wrote that the
claimant's ability to understand, remember and carry out very short and simple instructions and to ask simple questions and request assistance were limited, but satisfactory. Dr. Carey opined that claimant had serious mental limitations relative to maintaining regular attendance, sustaining an ordinary work routine, and working in coordination with others without undue distractions.... [C]laimant was unable to meet competitive standards for completing a work day and work week without interruptions from psychologically based symptoms.... [C]laimant's work related abilities to interact appropriately with the public, maintain socially appropriate behavior, adjust to an unfamiliar place and use public transportation were seriously limited due primarily to paranoid thoughts. Claimant has difficulties dealing with workplace stressors. Dr. Carey opined that claimant would miss more than four work days per month due to her mental impairments.
Tr. 24. The ALJ dismissed these opinions, writing only: "Dr. Carey's form statement was unpersuasive; it lacked support in Dr. Carey's own contemporaneous treatment documentation or elsewhere in the extensive record." Tr. 24-25.
Dr. Trostinskaia completed a form statement of physical functioning in which she stated that the plaintiff
was unable to lift or carry any amount of weight in a competitive work environment. In an eight hour work day, with normal breaks, [she] could sit for a total of less than two hours and she could stand/walk for a total of less than two hours. [The plaintiff] required the ability to shift among sitting, standing and walking and she would need unscheduled breaks throughout the work
day.... [The plaintiff] could rarely twist and stoop (bend) and never crouch/squat or climb ladders or stairs. Dr. Trostinskaia opined that due to imbalance, pain, dizziness and weakness, [the plaintiff] required a cane or other hand held assistive device for occasional standing/walking. [Her] bilateral upper extremities could not be used for more than 10% of an eight hour work period for fine or gross manipulations, reaching to the front or overhead.
Tr. 25. Rejecting these opinions, the ALJ wrote that "Dr. Trostinkaia's form statement was overly sympathetic to claimant and otherwise unpersuasive. As detailed above, Dr. Trostinkaia's clinical examination reports include few musculoskeletal findings, and none supporting effectively requiring claimant to lie down for a significant portion of the work day." Ibid.
As stated in the preceding sentence, the ALJ "detailed" the clinical findings when she summarized the record. That summary was discussed by the magistrate judge, and it described medical and psychiatric treatment dating from 2012. According to the administrative record as related by the ALJ, the plaintiff's interactions with Dr. Trostinkaia began in May 2014 and with Dr. Carey in October 2015. The plaintiff underwent frequent hospitalizations — 20 between 2014 and the date of administrative hearing in November 2018 — for different ailments. Many related to her uncontrolled diabetes and carpal tunnel syndrome. Some lasted multiple days. Dr. Carey's clinical records described the plaintiff's prior suicide attempts, depression and paranoid personality disorder. She described pain, swelling, and tenderness in the plaintiff's joints. Dr. Carey consistently recited major depression and paranoia throughout her clinical encounters with the plaintiff. Similarly, Dr. Trostinkaia reported instances of pain and burning sensations in the plaintiff's legs and low back pain. Her diabetes consistently was poorly controlled. There also were visits in which both physicians reported normal findings.
When the ALJ rejected the opinions of both physicians, she did not refer to any of these medical findings in the record. She did not explain why she chose to accept the findings that undercut the opinions and to reject the findings that supported them. For Dr. Trostinkaia, the ALJ gave a terse reason for rejecting the opinion that the plaintiff had to take breaks to lie down during the workday, but there was no mention of the other limitations Dr. Trostinkaia found that were inconsistent with sedentary work. See 20 C.F.R. § 404.1567(a) (2002) ; Social Security ruling (SSR) 83-10 (defining sedentary work as requiring a worker to stand and walk "no more than 2 hours of an 8-hour work day, and sitting should generally total approximately 6 hours of an 8-hour work day"). There was no discussion — no "articulation" — of the supportability and consistency factors.
The magistrate judge described the ALJ's explanation as "brief" and "limited," but she believed that the ALJ complied with the regulations because of the preceding "extensive summarization of the record." However, where that summary included both supportive and contradictory information, it does little to explain the ALJ's reasoning or to "provide sufficient rationale for a reviewing adjudicator or court." Warren I. , 2021 WL 860506, at *8.
Both the Commissioner and the magistrate judge described other evidence in the administrative record that could furnish substantial evidence for a nondisability finding and support for rejecting the physicians’ opinions. The Commissioner spent several pages of his summary judgment brief documenting record evidence that the ALJ could have cited had she chosen to do so, and he outlines a theoretical path that the ALJ could have followed had she properly applied the regulations requiring that she "explain how [she] considered the supportability and consistency factors for a medical source's opinions." 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). They both refer to Biestek v. Commissioner of Social Security , which allows courts to "consider this evidence, even if the ALJ failed to mention it." 880 F.3d 778, 786 (6th Cir. 2017), aff'd sub nom. Biestek v. Berryhill , ––– U.S. ––––, 139 S. Ct. 1148, 203 L.Ed.2d 504 (2019) (citing Heston v. Comm'r of Soc. Sec. , 245 F.3d 528, 535 (6th Cir. 2001) ("Judicial review of the Secretary's findings must be based on the record as a whole. Both the court of appeals and the district court may look to any evidence in the record, regardless of whether it has been cited [in prior SSA proceedings].")).
That reasoning, however, ignores the mandate of the regulations that guarantees claimants a certain level of process that cannot be discounted by the substantial evidence test alone. Blakley v. Comm'r of Soc. Sec. , 581 F.3d 399, 410 (6th Cir. 2009). Even if the Court "were to agree that substantial evidence supports the ALJ's weighing of each of these doctors’ opinions, substantial evidence alone does not excuse non-compliance with [the regulations] as harmless error." Ibid. (citing Wilson v. Comm'r of Soc. Sec. , 378 F.3d 541, 546 (6th Cir. 2004)). The court of appeals has explained that "recognize[ing] substantial evidence as a defense to non-compliance with [the regulations] would afford the Commissioner the ability [to] violate the regulation with impunity and render the protections promised therein illusory. The general administrative law rule, after all, is for a reviewing court, in addition to whatever substantive factual or legal review is appropriate, to ‘set aside agency action ... found to be ... without observance of procedure required by law.’ " Wilson , 378 F.3d at 546 (quoting Administrative Procedure Act, 5 U.S.C. § 706(2)(D) (2001) ).
Both Blakley and Wilson addressed the application of the treating physician rule. But their reasoning applies with equal force to the new regulations, which require explanations for determinations that a medical opinion is unpersuasive. Because of the greater latitude afforded ALJs under the new regulations, the importance of cogent explanations is perhaps even more important. And where, as here, the record contains no opinion that the ALJ found persuasive which supports the non-disability finding, faithful adherence to the "articulation" requirement of the new regulations is vital to maintaining the guarantee of the rule of law. As courts have explained, " ‘[t]he requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases,’ particularly in situations where a claimant knows that [her] physician has deemed [her] disabled and therefore ‘might be especially bewildered when told by an administrative bureaucracy that she is not, unless some reason for the agency's decision is supplied.’ " Wilson , 378 F.3d at 544 (quoting Snell v. Apfel , 177 F.3d 128, 134 (2d Cir. 1999) ).
On a strikingly similar record, the Fourth Circuit reversed and remanded for further consideration where the ALJ's decision recited a similarly unelaborated rejection of a medical source opinion, which included no discussion of — and did not even acknowledge — the regulatory factors that were supposed to guide the analysis. Dowling v. Comm'r of Soc. Sec. Admin. , 986 F.3d 377 (4th Cir. 2021). The Dowling court reviewed a decision that involved consideration of a treating source under the now abrogated 20 C.F.R. § 1527. However, the salient factors for consideration that the appellate court deemed most essential — consistency and supportability — were the same under the old regulation. Moreover, as the Secretary's commentary affirms, those primary factors were carried through and feature equally prominently in the 2017 revisions of the medical source analytical framework. The rationale for requiring a sufficiently detailed articulation of how those same factors were applied by the ALJ resounds with equal force in this case as it did in Dowling. See id. at 386.
The regulations are clear and imperative in defining the mode of analysis. All medical sources are to be considered, and a rationale articulating how the ALJ applied the factors specified in the regulations must be stated for each source. 20 C.F.R. § 404.1520c(b) ("We will articulate how we considered the medical opinions ... in your claim according to paragraph (b) of this section. "); 20 C.F.R. § 404.1520c(b) ("We will articulate in our determination or decision how persuasive we find all of the medical opinions ... in your case record.") (emphasis added). It is not the role of a reviewing court to comb the record and imagine manifold ways in which the factors could have been applied to the evidence that was presented. The administrative adjudicator has the obligation in the first instance to show his or her work, i.e., to explain in detail how the factors actually were applied in each case, to each medical source. Resorting to boilerplate language to support a finding of unpersuasiveness does not satisfy that obligation. In some instances, the failure to apply the rules properly can be harmless error, such as where "a treating source's opinion is so patently deficient that the Commissioner could not possibly credit it," or where the Commissioner "has met the goal of ... the procedural safeguard of reasons." Wilson , 378 F.3d at 547. Neither instance exists here. The Court's obligation to review the ALJ's decision includes "whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence." Blakley , 581 F.3d at 405 (citing Key v. Callahan , 109 F.3d 270, 273 (6th Cir. 1997) ).
The substantial evidence test is a lenient standard. It consists of "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill , ––– U.S. ––––, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) (quoting Consolidated Edison , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ); Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). But even then, a substantiality of evidence evaluation does not permit a selective reading of the record. "Substantiality of the evidence must be based upon the record taken as a whole.... [It] must take into account whatever in the record fairly detracts from its weight." Wyatt v. Sec'y of Health & Human Servs. , 974 F.2d 680, 683 (6th Cir. 1992). As noted above, the ALJ's rejection of the two physicians’ opinions was based, apparently, on a summary of the record that contained both supportive and contradictory clinical findings. The ALJ's boilerplate invocation of the rules does not permit an assessment on review of whether she considered the "record taken as a whole." It cannot be said, therefore, that substantial evidence supports the determination that the opinions of the plaintiff's regular treating doctors were unpersuasive. Remand is necessary therefore to allow appropriate consideration of the evidence and a proper application of the regulations and to reassess the plaintiff's RFC. After a de novo review of the entire record and the materials submitted by the parties, the Court concludes that the magistrate judge's recommendation did not apply the correct law in reaching her conclusion. The Court has considered Hardy's objection to the report and recommendation and finds it to have merit.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation (ECF No. 20) is REJECTED .
It is further ORDERED that the plaintiff's objection (ECF No. 21) is SUSTAINED .
It is further ORDERED that the plaintiff's motion for summary judgment (ECF No. 17) is GRANTED IN PART.
It is further ORDERED that the defendant's motion for summary judgment (ECF No. 18) is DENIED . The case is remanded for further consideration under sentence four of 42 U.S.C. § 405(g).