Tolbert v. Berryhill

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

Kim L. Tolbert, )

)

Plaintiff, )

) Case No. 17 CV 50137

v. )

) Magistrate Judge Iain D. Johnston

Nancy A. Berryhill, Acting )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Kim Tolbert brings this action under 42 U.S.C. § 405(g), seeking a

remand of the decision denying her social security disability benefits. For the reasons

set forth below, the decision is remanded.

I. BACKGROUND1

On February 6, 2013, Plaintiff filed applications for disability insurance

benefits and supplemental security income. R. 194-206. Plaintiff alleged a disability

beginning on October 31, 2012, because of arthritis, hypertension, right carpal tunnel

and asthma. R. 82. Plaintiff reported that she stopped working as a food service

worker on her alleged onset date due to these impairments. R. 242.

In November 2012, Plaintiff had carpal tunnel release surgery on her right

wrist followed by physical therapy. R. 52, 375, 378. In January 2013, Plaintiff had

carpal tunnel release surgery on her left wrist. R. 52, 373. Despite both surgeries,

1 The following facts are only an overview of the medical evidence provided in the

administrative record.

Plaintiff still complained of pain in both hands. R. 259 (March 2013: pain in her right

hand every day); R. 420-21 (May 2013: intermittent pain and cramping in left wrist

and hand). However, Plaintiff had not sought any recent medical treatment for her

hands. R. 74-75.

Shortly after the surgery on her left wrist, Plaintiff began complaining of back

pain radiating to her left leg. R. 52, 440. Plaintiff was diagnosed with sciatica. R.

442. In November 2013, Plaintiff reported limited mobility and range of motion and

the use of a cane due to loss of balance. R. 284; see also R. 56. Plaintiff's medical

records through February 2015 revealed that she continued to report back pain

despite taking several medications to relieve the pain. R. 490-517, 554-58. In

February 2015, she was also prescribed a cane to replace the worn-out cane she had

been using since 2013. R. 45, 556-58.

Beginning in July 2014, Plaintiff also sought treatment for foot swelling and

pain in her feet and was prescribed compression stockings. R. 507, 502. The

compression stockings in addition to elevating her feet helped reduce the swelling

and edema. R. 41-42, 493, 500 ("trace edema" with the use of compression stockings);

R. 490, 496, 557, 559 (no edema). Nevertheless, Plaintiff's doctors were unable to

determine the cause of her foot pain and in January 2015, Plaintiff still complained

of "shooting pain going from the ankles to the knees." R. 559.

On March 12, 2015, Plaintiff, represented by an attorney, testified at a hearing

before an Administrative Law Judge (ALJ). R. 29-81. The ALJ also heard testimony

from Dr. Ronald Semerdjian, a medical expert specializing in internal medicine, and

Linda Gels, a vocational expert ("VE"). R. 141.

Plaintiff was then 52 years old. Plaintiff’s testimony at the hearing focused on

her lower back pain, hand pain and foot swelling. Plaintiff testified that she was able

to grocery shop once a month, do laundry and clean with the help of her son, who

lived with her, or her aunt. R. 35-37, 45. Plaintiff testified that she walked around

the house, but did not otherwise leave unless going to the doctor, grocery store or her

mother’s house. R. 42-43. Plaintiff testified that the medications she took made her

drowsy. R. 69-70. She specifically identified Gabapentin, which she took for her back

and foot pain, and Methocarbamol and Nebulatone, which she took for her arthritis.

R. 40, 50, 68-70.

As for Plaintiff’s hands, she complained that despite having surgery, her carpal

tunnel still caused weakness and numbness in her hands. R. 45-46. Plaintiff needed

to take breaks when using her hands due to pain or numbness with prolonged use.

R. 46, 49.

The ALJ ultimately denied Plaintiff’s request for benefits. R. 12-28. The ALJ

found that Plaintiff had the following severe impairments: morbid obesity,

degenerative disc disease and facet arthritis of the lumbar spine, history of bilateral

carpal tunnel syndrome, and lower extremity edema. R. 14. The ALJ determined

that Plaintiff’s impairments did not meet or medically equal a listed impairment. R.

15. The ALJ concluded that Plaintiff had the Residual Functional Capacity (“RFC”)

to perform light work with certain restrictions. R. 16.

II. STANDARD OF REVIEW

A reviewing court may enter judgment “affirming, modifying, or reversing the

decision of the [Commissioner], with or without remanding the cause for a

rehearing.” 42 U.S.C. § 405(g). If supported by substantial evidence, the

Commissioner’s factual findings are conclusive. Id. Substantial evidence exists if

there is enough evidence that would allow a reasonable mind to determine that the

decision’s conclusion is supportable. Richardson v. Perales, 402 U.S. 389, 399-401

(1971). Accordingly, the reviewing court cannot displace the decision by

reconsidering facts or evidence, or by making independent credibility

determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).

However, the Seventh Circuit has emphasized that review is not merely a

rubber stamp. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (a “mere

scintilla” is not substantial evidence). A reviewing court must conduct a critical

review of the evidence before affirming the Commissioner’s decision. Eichstadt v.

Astrue, 534 F.3d 663, 665 (7th Cir. 2008). Even when adequate record evidence

exists to support the Commissioner’s decision, the decision will not be affirmed if

the Commissioner does not build an accurate and logical bridge from the evidence to

the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). Moreover,

federal courts cannot build a logical bridge on behalf of the ALJ. See Mason v.

Colvin, No. 13 C 2993, 2014 U.S. Dist. LEXIS 152938, at *19-20 (N.D. Ill. Oct. 29,

2014).

III. DISCUSSION

On appeal, Plaintiff argues that reversal or remand is appropriate for the

following reasons: (1) the RFC failed to account for her need for a cane; (2) the ALJ

improperly addressed her credibility; and (3) the VE failed to provide the sources or

supporting data she relied on to determine that substantial jobs exist that Plaintiff

can perform. Although the issues relating to Plaintiff's use of a cane and the ALJ's

credibility determination would not justify a remand by themselves, the Court

believes a remand is necessary because the ALJ's determination at step five is not

supported by substantial evidence. For this reason, the Court will address

Plaintiff's claims about the VE's testimony first.

A. VE Testimony

The ALJ found that Plaintiff was able to perform light work with certain

restrictions. The ALJ further found that such restrictions did “not significantly

erode the occupational base of light jobs.” R. 20. The VE did not specifically make a

finding about the occupational base of light jobs. The VE testified that considering

Plaintiff’s RFC there were jobs that will continue to remain. R. 61. This Court is

not concerned with the ALJ's improper statement about the occupational base of

light jobs because she proceeded to discuss the VE's testimony about the specific

unskilled, light jobs that Plaintiff would still be able to perform. What is more

concerning is the ALJ's reliance on the VE's testimony about the availability of

those jobs.

At step five, the ALJ determines whether an individual can "make an

adjustment to other work." 20 C.F.R. § 404.1520(a)(4)(v). "It is the Commissioner's

burden at Step 5 to establish the existence of a significant number of jobs that the

claimant can perform." McKinnie v. Barnhart, 368 F.3d 907, 911 (7th Cir. 2004); see

20 C.F.R. § 404.1560(c)(2) ("[W]e are responsible for providing evidence that

demonstrates that other work exists in significant numbers in the national economy

that you can do, given your residual functional capacity and vocational factors.").

ALJs often rely on vocational experts to make a determination at step five. See

Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011). However, "[i]f the basis of

the vocational expert's conclusions is questioned at the hearing . . . then the ALJ

should make an inquiry . . . to find out whether the purported expert's conclusions

are reliable." Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002); see also

McKinnie, 368 F.3d at 911 ("A vocational expert is 'free to give a bottom line,' but

the data and reasoning underlying that bottom line must be 'available on demand' if

the claimant challenges the foundation of the vocational expert's opinions.") (citing

Donahue, 279 F.3d at 446).

At the hearing, the VE identified three specific unskilled, light jobs that

Plaintiff could perform: cleaner/housekeeper, cafeteria attendant and cashier. R.

62-63. The VE also provided the number of jobs available statewide and nationally

for each occupation. R. 62-63.2 When questioned by the ALJ, the VE testified that

she determined the number of jobs available for a given Dictionary of Occupational

2 Cleaner/housekeeper: 150,000 nationally and 5,000 statewide; cafeteria attendant: 60,000

nationally and 2,500 statewide; and cashier: 800,000 nationally and 35,000 statewide.

Titles ("DOT") code by using the Occupational Employment Statistics ("OES")

published by the Bureau of Labor Statistics in May 2014. R. 66, 78. The VE

acknowledged that the OES reported job numbers by broad Standard Occupational

Classification ("SOC") codes rather than narrower DOT codes.3 However, the VE's

only explanation about the methodology she used to extract job numbers from the

OES reports was that she used her professional experience to determine what

would be "representative" of a specific DOT code. R. 66. The VE did not describe

any precise method she used to determine her job numbers from the Bureau of

Labor Statistics or explain how she was able to determine what would be

"representative" of a specific DOT code.

Both before and after the hearing, Plaintiff's counsel requested the data

sources the VE relied upon for her job numbers. To be clear, Plaintiff was not

challenging the VE's qualifications as an expert witness. She was specifically

asking for the sources or supporting data the VE used to determine that substantial

jobs existed that Plaintiff could perform.

The ALJ denied this request and instead only allowed counsel to question the

VE at the hearing. R. 22-23, 80. The ALJ reasoned that the VE’s experience as a

3 See Voigt v. Colvin, 781 F.3d 871, 879 (7th Cir. 2015) ("'There is no official source of

number of jobs for each job classification in the Dictionary of Occupational Titles, and while

there are unofficial estimates of jobs in some categories, the vocational experts do not in

general, and the vocational expert in this case did not, indicate what those data sources are

or vouch for their accuracy. And many of them estimate the number of jobs of a type the

applicant for benefits can perform by the unacceptably crude method of dividing the

number of jobs in some large category (which may be the only available data) by the

number of job classifications in the category, even though there is no basis for assuming'

that there is the same number of jobs in each narrow category.") (citing Browning v. Colvin,

766 F.3d 702, 709 (7th Cir. 2014)).

certified vocational rehabilitation consultant since 1977 and as an expert witness in

this area for many years was sufficient for her to testify about the jobs Plaintiff

could perform and the number of those jobs available. R. 20. The ALJ also cited

Donahue, 279 F.3d at 446, to find that producing the sources of information the VE

relied on was unnecessary where Plaintiff's counsel was afforded the opportunity to

cross-examine the VE at the hearing. R. 22.

The Court finds this reasoning insufficient to deny counsel's request. In some

circumstances, cross-examination of an expert may render production of the VE's

sources unnecessary. However, the VE in this case never fully explained her

methodology to determine the number of jobs when comparing DOT and SOC codes.

See Chavez v. Berryhill, 895 F.3d 962, 969 (7th Cir. 2018) (noting the "information

loss" that results from the "many-to-one mapping," between the DOT titles and SOC

codes, which results in an estimate of existing jobs that "may deviate significantly

from the actual number of existing positions") (citing Brault v. SSA, 683 F.3d 443,

447 n.4 (2d Cir. 2012)). Additionally, denying counsel the ability to review the VE's

sources prevented him from properly cross-examining the VE to determine whether

her methodology was reliable. See Djuric v. Berryhill, No. 17-CV-832, 2018 U.S.

Dist. LEXIS 168840, at *10 (E.D. Wis. Sep. 28, 2018) (remanding where the ALJ

failed to issue a subpoena of the VE's documents relied on to determine job numbers

noting that the "available on demand" rule is to facilitate cross-examination); see

also Gracz v. Berryhill, No. 16 cv 4099, 2017 U.S. Dist. LEXIS 55683, at *16-17

(N.D. Ill. Apr. 12, 2017) (remanding where the VE's only support for his job

numbers was the DOT and Bureau of Labor Statistics and the ALJ accepted these

numbers without providing the VE's backup documentation to plaintiff's counsel).

This case is strikingly similar to the facts in Brown v. Berryhill, No. 16 C

9957, 2017 U.S. Dist. LEXIS 188167 (N.D. Ill. Nov. 14, 2017). In Brown, the ALJ

denied claimant's counsel's request for the VE's documents and data used to

determine her job numbers. Id. The court found the ALJ's reasons for denying the

underlying documents insufficient4 and remanded so that the ALJ could order the

VE to produce substantiation of her testimony. Id. at *7-8. The court specifically

found that claimant's counsel was unable to cross-examine the VE about the basis

for her job numbers without production of the information revealing her underlying

methodology. Id.

The failure to provide the VE's underlying documents here similarly

prevented counsel from properly cross-examining the VE about her methodology.

Without further explanation about the VE's methodology, there was not enough

information for the ALJ to determine whether the VE's testimony about the job

numbers was reliable. See Chavez, 895 F.3d at 968 (stating that job-numbers

estimates must be based on reliable methods). The VE's reliance on personal

experience alone did not provide substantial evidence to support her job numbers or

the ALJ's determination that Plaintiff could perform other work. See Smith v.

Astrue, No. 09 C 2392, 2010 U.S. Dist. LEXIS 91764, at *51 (N.D. Ill. Sep. 1, 2010)

4 The ALJ's reasons included that: (1) the Agency takes administrative notice of jobs data

from various governmental publications; (2) plaintiff's counsel had the opportunity to cross-

examine the VE at the hearing; (3) there was a privacy concern with turning over the VE's

client's information; and (4) the information about the jobs was available online. Id. at 4-5.

(remanding where the VE relied solely on his personal experience to justify his job

estimates without providing some specificity concerning the facts, figures or other

data that formed the basis of his testimony); Lacy v. Astrue, No. 11 C 1556, 2012

U.S. Dist. LEXIS 144499, at *36 (N.D. Ill. Oct. 4, 2012) ("[M]erely revealing how

long a VE has been employed does not show 'whether the purported expert's

conclusions are reliable' on the specific issue challenged by the claimant.") (quoting

McKinnie, 368 F.3d at 911).

This is not a case in which the ALJ was unaware of counsel's concerns about

the VE's testimony. Cf. Donahue, 279 F.3d at 446 ("When no one questions the

vocational expert's foundation or reasoning, an ALJ is entitled to accept the

vocational expert's conclusion."). Plaintiff's counsel raised the issue in both a pre-

hearing and a post-hearing brief.

Without further explanation or documentation, the Court is unable to

determine if the evidence supports a finding that the number of jobs Plaintiff can

perform in the national economy are significant. Accordingly, upon remand, the

ALJ should order the VE to produce the information she relied on in determining

her job numbers so that the ALJ may consider these sources when evaluating

whether the VE's methodology and conclusions are reliable. Although the Court

does not find that Plaintiff's remaining issues would justify a remand on their own,

the Court will discuss them so they may be properly addressed.

B. RFC

A claimant's RFC is the maximum work that she can perform despite any

limitations. 20 C.F.R. § 404.1545(a)(1). "Although the responsibility for the RFC

assessment belongs to the ALJ, not a physician, an ALJ cannot construct his own

RFC finding without a proper medical ground and must explain how he has reached

his conclusions." Amey v. Astrue, No. 09 C 2712, 2012 U.S. Dist. LEXIS 12962, at

*40 (N.D. Ill. Feb. 2, 2012). "To find that a hand-held assistive device is medically

required, there must be medical documentation establishing the need for a hand-

held assistive device to aid in walking or standing, and describing the

circumstances for which it is needed." SSR 96-9p at *19, 1996 SSR LEXIS 6.

Here, the ALJ found that Plaintiff did not require a cane for ambulation to

perform light work, and as a result, Plaintiff could stand or walk for six hours out of

an eight-hour workday. R. 19; see SSR 83-10, 1983 SSR LEXIS 30 at *14. The ALJ

relied on Dr. Semerdjian's testimony that there was no continuing medical reason

for Plaintiff's use of a cane, noting that Plaintiff's edema responded to treatment

and she did not otherwise have reduced sensation, reduced muscle tone or

weakness. R. 15, 19. The ALJ also noted that "instead the claimant appears to use

a cane by her own choice, having been prescribed its use on her own request." R. 19.

The parties do not dispute that Plaintiff was not prescribed a cane until 2015,

when she requested one because her cane had worn out. R. 556. Nevertheless,

Plaintiff had been using a cane since 2013. The Seventh Circuit has made it clear

that "the fact that an individual uses a cane not prescribed by a doctor is not

probative of her need for the cane in the first place." Eakin v. Astrue, 432 F. App'x

607, 613 (7th Cir. 2011) (citing Terry v. Astrue, 580 F.3d 471, 477-78 (7th Cir. 2009)

(finding that the lack of a prescription for a cane was not on its own enough to

discredit testimony regarding pain)).

In her disability reports and medical records, Plaintiff reported the need for a

cane due to loss of balance and unsteady gait. R. 284, 554. At the hearing, Plaintiff

explained that she needed it for her back and left leg pain, which this Court

assumes caused her unsteady gait. R. 56. Additionally, during her functional

capacity evaluation in 2014, physical therapist Dr. Matthew Davidson reported

Plaintiff's use of a cane for "safety/ability with mildly/moderately abnormal gait

pattern." R. 482. Dr. Davidson further reported that Plaintiff ambulated into the

clinic with a "trendelenburg/antalgic pattern on the left with very increased trunk

sway" and used a cane to "unload her left lower extremity." R. 482.

Despite this opinion being consistent with Plaintiff's reports of back and left

leg pain, the ALJ discredited Plaintiff's need for a cane altogether. Cf. Robert D. v.

Berryhill, No. 2:17-cv-02107, 2018 U.S. Dist. LEXIS 163050, at *5 (C.D. Ill. Aug. 24,

2018) (finding that the ALJ properly discounted plaintiff's need for a cane where no

physician found the cane medically necessary and instead repeatedly found that he

had a normal gait and was able to walk 50 feet without assistance). The ALJ

largely questioned the results of Plaintiff’s functional capacity evaluation because of

Plaintiff's self-limiting behavior in which she refused to stand much, leaned on the

wall, took frequent breaks and demonstrated only mild limitations in her left lower

extremity. R. 17, 19. However, the ALJ failed to address Dr. Davidson's

explanation that Plaintiff's self-limiting behaviors due to pain only affected his

values for stair climbing, pull forces and low-level activities. R. 475.

The Commissioner points out that Plaintiff testified that she needed a cane

for her back, but also stated she was having problems with her leg. See R. 56. The

Commissioner seems to be arguing that Plaintiff was contradicting herself.

However, throughout Plaintiff's medical records, the two impairments are related.

See, e.g., R. 502, 554, 559-60 (2015 progress notes indicating that numbness/pain in

feet may be related to back problems). Therefore, Plaintiff's explanation is

supported by her medical records.

The ALJ then notes Plaintiff’s extreme obesity, with a body mass index of

45.77, stating that she has considered the cumulative effects in assessing Plaintiff’s

RFC as required by Social Security Ruling 02-1p. R. 16. SSR 02-1p, 2002 SSR

LEXIS 1, at *2-3 (stating that an ALJ should consider the effects of obesity together

with the underlying impairments and when assessing an individual’s RFC). Other

than a general statement about obesity, nothing else in the ALJ’s opinion suggests

that she truly considered Plaintiff’s obesity on her ability to stand and walk with or

without a cane. See Goins v. Colvin, 764 F.3d 677, 681 (7th Cir. 2014) (explaining

the cumulative effects of obesity and other impairments on walking).

This is problematic because Plaintiff's need for a cane directly relates to her

ability to perform light work. On remand, the ALJ should thoroughly examine

Plaintiff's need for a cane and how it will affect her ability to perform other work so

that the VE may properly determine whether jobs exist in significant numbers in

the national economy that Plaintiff can perform.5

C. Credibility

An ALJ's credibility determination should be reversed only if it is "patently

wrong." Minnick v. Colvin, 775 F.3d 929, 937 (7th Cir. 2015). At the same time, the

Seventh Circuit has stated that a credibility determination may be reversed if the

ALJ "fail[s] to adequately explain his or her credibility finding by discussing specific

reasons supported by the record." Id.; Craft v. Astrue, 539 F.3d 668, 678 (7th Cir.

2008) (stating that a credibility finding "must be specific enough to enable the

claimant and a reviewing body to understand the reasoning").

In this case, the ALJ discounted Plaintiff's testimony about the severity of

her symptoms. In light of this Court's remand on other issues, it would be

beneficial for the ALJ to provide additional support for her credibility

determination.

In analyzing Plaintiff's daily activities, the ALJ determined that Plaintiff's

reports from March 2013 that she could take the bus, shop, and bend and reach

without difficulty supported the determination that Plaintiff could perform a wide

range of light work. R. 18. However, the ALJ failed to address Plaintiff's testimony

that she accomplished her daily activities with the assistance of her son or aunt or

5 The VE testified that if Plaintiff required the use of a cane for pain, not for balance, she

would still be able to perform the cashier job, but not the cleaner/housekeeper or cafeteria

attendant jobs. R. 72. The VE also testified that there are other light jobs that Plaintiff

would be able to perform with the use of a cane, such as a machine tender and assembler

positions that only require standing, not walking. R. 72-73. The ALJ did not rely on the

last two jobs in her decision.

with frequent breaks due to pain. The ALJ rejected Plaintiff’s reported need for

frequent breaks but provided no explanation for this determination. R. 19.

Additionally, Plaintiff reported that since May 2013, her impairments have

gradually become more severe. R. 275. Plaintiff's assertions of pain should not

have been summarily dismissed. See also Stark v. Colvin, 813 F.3d 684, 687-88 (7th

Cir. 2016) (finding that objective evidence of plaintiff's pain included the use of

prescription pain medication and "[t]estimony of severe pain cannot be disregarded

simply because it is not supported by objective medical evidence").

The ALJ also questioned Plaintiff's complaints of drowsiness caused by her

medications. The ALJ referenced Dr. Semerdjian’s testimony that not all of

Plaintiff’s prescribed medications caused drowsiness and that obesity and perhaps

an undiagnosed sleep disorder could be responsible. R. 18. The ALJ explained that

drowsiness was not supported by the record because a test from November 2011

was negative for sleep apnea and Plaintiff’s progress notes in general did not reflect

any “significant complaints of sleepiness or fatigue that interferes with the

claimant’s daily routine.” R. 18.

The ALJ failed to address the medical records where Plaintiff specifically

reported drowsiness caused by her medications. See R. 443 ("gets sleepy w/

methocarbamol"); R. 449 ("gabapentin helps her pain but make[s] her sleepy").

Plaintiff's medical records also reveal frequent changes in her medications to

manage her pain and possibly the side effects. See, e.g., R. 443 (5/7/2013 - taking

Methocarbamol and Gabapentin); R. 516 (1/29/2014 - started taking "Gralise

(Controlled-Release Gabapentin)titrate" instead of Gabapentin); R. 498 (8/28/2014 -

not taking Methocarbamol or Gralise Starter); R. 493 (10/30/2014 - started

Gabapentin); R. 528 (1/16/2015 - taking Gabapentin and Methocarbamol); R. 554

(3/2/2015 - increased Gabapentin); see also Terry v. Astrue, 580 F.3d 471, 477 (7th

Cir. 2009) ("[W]e are skeptical that a claimant's failure to identify side effects

undermines her credibility--after all, not everyone experiences side effects from a

given medication, and some patients may not complain because the benefits of a

particular drug outweigh its side effects."). Furthermore, even if all of Plaintiff's

medications did not cause drowsiness, the few that did would be difficult to

determine when Plaintiff was taking several medications daily and some up to four

times a day. R. 39-40, 70, 443.

On remand, the ALJ should take the opportunity to resolve the issues

identified above and properly evaluate the severity of Plaintiff's symptoms by

applying the guidelines provided in Social Security Ruling 16-3p. SSR 16-3p, 2016

SSR LEXIS 4.

IV. CONCLUSION

The Court finds that remand is required so that the ALJ may determine

whether the VE's methodology and conclusions for her job numbers are reliable,

which is a determination that the ALJ must make in the first instance. See Mason,

No. 13 C 2993, 2014 U.S. Dist. LEXIS 152938, at *19-20 (finding that the court

cannot build a logical bridge on behalf of the ALJ). The Court expresses no opinion

on the ultimate viability of Plaintiff's claim. The Court remands this case for the

VE to produce the information she relied on in determining her job numbers. Upon

remand, the ALJ should also revisit her determination about Plaintiff's use of a

cane and the intensity and persistence of Plaintiff's symptoms. Accordingly,

Plaintiff's motion for summary judgment [10] is granted, and the Commissioner’s

motion [15] is denied. The decision of the ALJ is remanded for further proceedings

consistent with this opinion.

Date: December 21, 2018 SS SS

Iain D. Johnston

United States Magistrate Judge

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