LaBreque, Jr. v. SSA

LaBreque, Jr. v . SSA                  10-CV-180-SM    1/28/11
                    UNITED STATES DISTRICT COURT
                    DISTRICT OF NEW HAMPSHIRE


David A . LaBreque, Jr.,
     Claimant

     v.                                    Case N o . 10-cv-180-SM
                                           Opinion N o . 

Michael J. Astrue, Commissioner,
Social Security Administration,
     Respondent


                               O R D E R


     Pursuant to 

(g), Claimant, David LaBrecque,

Jr., moves to reverse the Commissioner’s decision denying his

application for Social Security Disability Insurance Benefits

under Title II of the Social Security Act (the “Act”), 

. The Commissioner objects and moves for an order affirming

his decision.



                           Factual Background

I.   Procedural History.

     On December 1 0 , 2007, claimant filed an application for

disability insurance benefits under Title II the Act, alleging

that he had been unable to work since July 7 , 2006.    He asserts

eligibility for benefits on the basis of degenerative disc

disease, anxiety disorder, and depressive disorder.      His

application was denied and he requested an administrative hearing

before an Administrative Law Judge (“ALJ”).
     On October 1 6 , 2009, claimant, his attorney, a medical

expert, and a vocational expert appeared before an ALJ, who

considered claimant’s application de novo. On November 3 , 2009,

the ALJ issued his written decision, concluding that claimant

retained the residual functional capacity to perform the physical

and mental demands of light work, subject to several limitations.

Accordingly, the ALJ concluded that claimant was not disabled, as

that term is defined in the Act, from July 7 , 2006, through the

date of the ALJ’s decision.



     Plaintiff was informed that the Decision Review Board had

selected the ALJ’s decision for review.      On March 1 1 , 2010, the

Decision Review Board informed claimant that it had not completed

its review within the time allowed.       Accordingly, the ALJ’s

denial of claimant’s application for benefits became the final

decision of the Commissioner, subject to judicial review.



     Subsequently, claimant filed a timely action in this court,

asserting that the ALJ’s decision was not supported by

substantial evidence and seeking a judicial determination that he

is disabled within the meaning of the Act o r , in the alternative,

seeking a remand for further administrative review.       Claimant

then filed a “Motion for Order Reversing Decision of the

Commissioner” (document n o . 7 ) .   In response, the Commissioner




                                      2
filed a “Motion for Order Affirming the Decision of the

Commissioner” (document n o . 8 ) . Those motions are pending.



II.   Stipulated and Supplemental Facts.

      Pursuant to this court’s Local Rule 9.1(d), the parties

submitted a statement of stipulated facts which, because it is

part of the court’s record (document n o . 1 0 ) , need not be

recounted in this opinion.     Claimant has, in addition, submitted

a statement of supplemental facts (document n o . 1 0 - 1 ) .   Facts

relevant to the disposition of this matter are discussed as

appropriate.



                          Standard of Review

I.    Properly Supported Findings by the ALJ are
      Entitled to Deference.

      Pursuant to 

(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.”     Factual findings of the Commissioner are

conclusive if supported by substantial evidence.1       See 42 U.S.C.

1
     Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consolidated Edison C o . v . NLRB, 

(1938). It is something less than the weight of the evidence,
and the possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence. Consolo v . Federal
Maritime Comm’n., 

 (1966).

                                    3
§§ 405(g); Irlanda Ortiz v . Secretary of Health & Human Services,

 (1st Cir. 1991).    Moreover, provided the ALJ’s

findings are supported by substantial evidence, the court must

sustain those findings even when there may also be substantial

evidence supporting the contrary position.    See Tsarelka v .

Secretary of Health & Human Services, 

 (1st Cir.

1988) (“[W]e must uphold the [Commissioner’s] conclusion, even if

the record arguably could justify a different conclusion, so long

as it is supported by substantial evidence.”).    See also

Rodriguez v . Secretary of Health & Human Services, 

 (1st Cir. 1981)(“We must uphold the [Commissioner’s] findings

in this case if a reasonable mind, reviewing the evidence in the

record as a whole, could accept it as adequate to support his

conclusion.”).



     In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v . Secretary

of Health & Human Services, 

 7 , 40 (1st Cir. 1984)

(citing Sitar v . Schweiker, 

 9 , 22 (1st Cir. 1982)).   It

is “the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner], not the courts.”     Irlanda Ortiz, 

(citation omitted).   Accordingly, the court will give deference

to the ALJ’s credibility determinations, particularly when those


                                 4
determinations are supported by specific findings.     See

Frustaglia v . Secretary of Health & Human Services, 

 (1st Cir. 1987) (citing Da Rosa v . Secretary of Health &

Human Services, 

 4 , 26 (1st Cir. 1986)).



II.   The Parties’ Respective Burdens.

      An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.”    

(d)(1)(A).   The Act places a heavy initial burden on

claimant to establish the existence of a disabling impairment.

See Bowen v . Yuckert, 

 (1987); Santiago v .

Secretary of Health & Human Services, 

 , 5 (1st Cir.

1991).   To satisfy that burden, claimant must prove that his

impairment prevents him from performing his former type of work.

See Gray v . Heckler, 

 (1st Cir. 1985) (citing

Goodermote v . Secretary of Health & Human Services, 

 , 7

(1st Cir. 1982)).   Nevertheless, claimant is not required to

establish a doubt-free claim.   The initial burden is satisfied by

the usual civil standard: a “preponderance of the evidence.”      See

Paone v . Schweiker, 

 (D. Mass. 1982).




                                 5
     If claimant demonstrates an inability to perform his

previous work, the burden shifts to the Commissioner to show that

there are other jobs in the national economy that he can perform.

See Vazquez v . Secretary of Health & Human Services, 

 ,

2 (1st Cir. 1982).   See also 

(g).   If the

Commissioner shows the existence of other jobs that claimant can

perform, then the overall burden to demonstrate disability

remains with claimant.   See Hernandez v . Weinberger, 

 (1st Cir. 1974); Benko v . Schweiker, 

 (D.N.H. 1982).



     In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) claimant’s subjective claims of pain and

disability, as supported by the testimony of claimant or other

witnesses; and (3) claimant’s educational background, age, and

work experience.   See, e.g., Avery v . Secretary of Health & Human

Services, 

 9 , 23 (1st Cir. 1986); Goodermote, 

.   When determining whether a Claimant is disabled, the ALJ

is also required to make the following five inquiries:



     (1)   whether claimant is engaged in substantial
           gainful activity;

     (2)   whether claimant has a severe impairment;

     (3)   whether the impairment meets or equals a
           listed impairment;


                                 6
       (4)   whether the impairment prevents claimant from
             performing past relevant work; and

       (5)   whether the impairment prevents claimant from
             doing any other work.

. Ultimately, a claimant is disabled only if

his:


       physical or mental impairment or impairments are 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, regardless of whether such work
       exists in the immediate area in which he lives, or
       whether a specific job vacancy exists for him, or
       whether he would be hired if he applied for work.

(d)(2)(A).



       With those principles in mind, the court reviews claimant’s

motion to reverse and the Commissioner’s motion to affirm his

decision.



                              Discussion

I.     Background - The ALJ’s Findings.

       In concluding that Mr. LaBrecque was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory five-

step sequential evaluation process described in 

. Accordingly, he first determined that claimant had

not been engaged in substantial gainful employment since his

alleged onset of disability: July 7 , 2006.    Next, he concluded

                                   7
that claimant has the severe impairments of degenerative disc

disease, an anxiety-related disorder, and depressive disorder.

Administrative Record     (“Admin. Rec.”) at 9.   Nevertheless, the

ALJ determined that those impairments, regardless of whether they

were considered alone or in combination, did not meet or

medically equal one of the impairments listed in Part 404,

Subpart P, Appendix 1 .   Admin. Rec. at 1 0 . Claimant does not

challenge any of those findings.



     Next, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) to perform the exertional demands of

light work which involves occasional postural activity.2     He

noted, however, that claimant’s RFC was limited by the following:

claimant “is able to perform simple, routine job activities in a

position with a relatively isolated work station with few social

demands.”   

 at 1 2 . In light of those restrictions, the ALJ

concluded that claimant was not capable of performing his past



2
     “RFC is what an individual can still do despite his or her
functional limitations. RFC is an administrative assessment of
the extent to which an individual’s medically determinable
impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may
affect his or her capacity to do work-related physical and mental
activities. Ordinarily, RFC is the individual’s maximum
remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis, and the RFC
assessment must include a discussion of the individual’s
abilities on that basis.” Social Security Ruling (“SSR”), 96-8p,
Policy Interpretation Ruling Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, 

 at
*2 (July 2 , 1996) (citation omitted).

                                   8
relevant work as a laborer, maintenance worker, or line cook.

 at 1 5 .



      Finally, the ALJ considered whether there were any jobs in

the national economy that claimant might perform.   Relying upon

the testimony of a vocational expert as well as his own review of

the medical record, and using the Medical-Vocational Guidelines,

20 C.F.R. p t . 404, subpt. P, App. 2 (also known as the “Grid”),

as a framework for his decision, the ALJ concluded that,

notwithstanding claimant’s exertional and non-exertional

limitations, “there are jobs that exist in significant numbers in

the national economy that Claimant can perform.”    Admin. Rec. at

16-17.   Consequently, the ALJ concluded that claimant was not

“disabled,” as that term is defined in the Act, through the date

of his decision.



II.   Claimant’s Assertions of Error.

      Claimant challenges the ALJ’s adverse disability

determination on three grounds. He first asserts that, in making

his physical RFC determination, the ALJ should have given

controlling weight to the opinion of one of claimant’s treating

physicians.    Second, he says the ALJ’s mental RFC determination

is not supported by substantial evidence. Finally, claimant

contends that the ALJ’s determination that claimant could perform

other work existing in significant numbers in the national


                                 9
economy is not supported by substantial evidence because the

hypothetical the ALJ posed to the vocational expert was

deficient.



       A.   Physical RFC

       The ALJ determined that claimant “has the residual

functional capacity to perform light work . . . which involves

occasional postural activity.”   Admin. Rec. at 1 2 .   Claimant

finds fault with the ALJ’s determination, arguing that the ALJ

should have given controlling weight to the opinion of one of

claimant’s treating physicians, Dr. Batlivala, over the opinion

of claimant’s other treating physician, Dr. Ahn.    Claimant’s

argument is without merit.



       After injuring his back in July 2005, claimant, in December

2005, underwent surgery performed by orthopedic surgeon Dr. Uri

Ahn to treat lumbar disc degeneration.   Admin. Rec. at 213-21,

266.   Subsequent to the surgery, Dr. Ahn continued to treat

claimant.    In December 2007, Dr. Ahn removed the hardware that

was implanted during the first surgery in 2005.    Dr. Ahn

thereafter referred claimant to physiatrist Dr. Zubin Batlivala

for pain management.   Starting in May 2008, and continuing until

July 2009, claimant was treated by Dr. Batlivala.




                                 10
     Dr. Ahn consistently opined “throughout the period under

review” that claimant “has had the capacity to perform a range of

light exertion work.”   Admin. Rec. at 14 (citing Dr. Ahn’s

reports, Admin. Rec. at 256-310; 343-49). 3    In contrast, Dr.

Batlivala in July 2009 opined that claimant could maximally

lift/carry 10 pounds, and was unable to bend.     Admin. Rec. 460. 4



     Under the regulations, a treating physician’s opinion

regarding a claimant’s impairments is to be given “controlling

weight,” as long as it is “well-supported by medically acceptable

clinical and laboratory diagnostic techniques” and further, is

“not inconsistent with the other substantial evidence in . . .

[the] record.”   

(d)(2).    If the treating

physician’s opinion is inconsistent with other substantial

evidence, the ALJ will assign it a weight less than “controlling”

based on factors such as the “length of the treatment

relationship”; the extent to which the opinion is consistent with

“the record as a whole”; and whether the treating physician is a


3
     “Light work” involves lifting no more than twenty pounds at
a time with frequent lifting or carrying of objects weighing up
to ten pounds. “Sedentary work” involves lifting no more than
ten pounds at a time. 

 (a),(b).
4
     Claimant argues that the two medical opinions are not
inherently inconsistent because Dr. Ahn and Dr. Batlivala
specialize in different medical disciplines. Though the doctors
approached the issue from different disciplines, each provided
qualified medical opinions regarding the same subject (i.e.,
claimant’s ability to lift/carry, bend, kneel, e t c . ) . The ALJ’s
view that the opinions were in conflict is objectively
reasonable.

                                 11
specialist.    

(d)(2), (4),(5).   Courts also

consider whether “the treating physician has offered inconsistent

opinions.”    Hamilton v . Astrue, 

 (8th Cir.

2008)(citing Hogan v . Apfel, 

 (8th Cir. 2001)).

Regardless of the weight the ALJ assigns to a treating

physician’s opinion, the ALJ is obligated to “give good reasons

. . . for the weight” given.    

(d)(2).



     Where the ALJ is faced with opinions by more than one

treating physician, he may give greater weight to one over the

other.   See Hamilton v . Astrue, 

 (8th Cir.

2008); see also Casey v . Astrue, 

 (8th Cir.

2007).   In Hamilton, the court held that the ALJ did not err in

discounting the opinion of one treating physician where the

physician’s treatment records were internally inconsistent and

where the opinion conflicted with another treating physician’s

opinion and with the opinion of an examining consultant.      

. See also Combs v . Astrue, 

, at *1 (9th

Cir. 2010)(ALJ permissibly rejected medical opinion of treating

physician because it conflicted with opinions of other treating

physicians); Shird v . Astrue, 

 (M.D.

Fla. 2009)(same).



     In the present case, the ALJ did not err by failing to give

controlling weight to Dr. Batlivala’s opinion, and giving


                                 12
“substantial weight” to Dr. Ahn’s opinion.    First, substantial

evidence in the record conflicted with Dr. Batlivala’s opinion,

such that his opinion was not entitled to controlling weight.

Standing in contrast to Dr. Batlivala’s opinion that claimant

could only do less than sedentary work was Dr. Ahn’s opinion, the

opinion of the Agency medical consultant, and evidence of

claimant’s daily activities. Second, based on factors relevant

under the regulations (

(d)(2), (4),(5)), the

ALJ was entitled to discount Dr. Batlivala’s opinion and give

greater weight to Dr. Ahn’s opinion, regardless of the fact that

Dr. Batlivala was a pain specialist.   As the ALJ explained, he

gave substantial weight to Dr. Ahn’s opinion because Dr. Ahn:


     . . . has had an opportunity to examine and treat the
     Claimant over an extended period of time and his
     periodic assessments of the nature and extent of
     Claimant’s functional limitations are found to be
     consistent with his treatment notes, the objective
     medical evidence of record as a whole, findings noted
     pursuant to multiple functional capacity evaluations,
     and evidence of record with the regard to Claimant’s
     overall level of daily activity.


     In contrast to Dr. Ahn’s opinion, Dr. Batlivala’s opinion

was, according to the ALJ, internally inconsistent.    “[F]indings

noted within Dr. Batlivala’s own treatment records . . . indicate

that Claimant’s pain level has remained adequately controlled

with medication and ‘fairly tolerable,’ thus allowing for

increased physical activity.”   Admin. Rec. at 1 4 .




                                13
     Claimant argues that there is no internal inconsistency.

Specifically, claimant contends that “Dr. Batlivala concluded

that Mr. LaBrecque’s ‘increased physical activity’ [resulting

from pain medication] did not increase his capacity for work.”

Dr. Batlivala did not, as claimant seems to suggest, explicitly

draw that conclusion.    At best, the doctor’s report gives rise to

an inference that he reached his conclusion about claimant’s

limited work capacity after having taken into account the

salutary effects of pain management.   An equally reasonable

inference arises, however, that the doctor’s conclusion about

limited work capacity is inconsistent with his finding that pain

management increased claimant’s capacity for physical activity.

The resolution of conflicting inferences is reserved to the

discretion of the ALJ.   Irlanda Ortiz, 

 (It is

“the responsibility of the [Commissioner] to determine issues of

credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner], not the courts.”)(citation omitted).



     For these reasons, the ALJ’s physical RFC determination is

supported by substantial evidence.



     B.   Mental RFC

     The ALJ determined that claimant “has the [mental] residual

functional capacity” to “perform simple, routine job activities


                                 14
in a position with a relatively isolated work station with few

social demands.”   Admin. Rec. at 1 2 . Claimant argues that the

ALJ committed four errors in assessing claimant’s mental RFC: (1)

the ALJ erred in rejecting the opinion of claimant’s

psychiatrist, Dr. Batt; (2) the ALJ drew improper conclusions

about claimant’s work capacity from his testimony about his daily

activities; (3) the ALJ erred in crediting the opinion of the

non-examining agency consultant, Dr. Jamieson, who assessed

claimant’s mental RFC, over that of the state consultative

examiner, Dr. Dinan; and, (4) the ALJ erred by failing to mention

Dr. Dinan’s report.



     In assessing claimant’s mental RFC, the ALJ had before him

the opinion of three mental health experts. The first, Dr.

William Dinan, Ph.D., a consultative evaluator for the State

Disability Determination Service, examined claimant in March

2008.   Dr. Dinan concluded that claimant’s task persistence is

poor and “may be erratic and inconsistent”; that his attendance

at a job “would most likely be inconsistent”; and that he

requires a “familiar, supportive work environment with basic

tasks that allow for intermittent attendance.”   Admin. Rec. at

323-24.   Three weeks later, Dr. William Jamieson, Ph.D., a Social

Security Administration medical consultant, reviewed claimant’s

records, including Dr. Dinan’s report. He opined that claimant

“is able to perform activities within a schedule, including


                                15
attendance,” and is “able to complete a normal workday and

workweek without undue number of interruptions, and at a

reasonable pace.”   Admin. Rec. at 341. He concluded that

claimant would need “a relatively isolated workstation with few

social demands.”    

   The third expert to weigh in on claimant’s

mental capacity was Dr. Charles Batt, a psychiatrist in private

practice.   By report dated October 2009, he assessed marked or

extreme limitations in all areas, and opined that claimant could

not engage in any gainful work.     Admin. Rec. at 487-88.



     The ALJ rejected Dr. Batt’s opinion as “less than fully

credible and unsupported by the evidence of record.”     Admin. Rec.

at 1 5 . In contrast, he gave “substantial weight” to the opinion

of Dr. Jamieson.    

   He did not discuss Dr. Dinan’s opinion.5

In short, the ALJ gave substantial weight to a non-examining

medical source, but rejected or failed to discuss sources who had

actually examined claimant.



     In rejecting Dr. Batt’s opinion, the ALJ stated:


     Dr. Batt’s assessment of the severity of Claimant’s
     symptoms and resultant limitations is found to be
     inconsistent with Claimant’s limited treatment history
     as well as with his own described level of daily


5
     Although the ALJ mentioned Dr. Dinan’s report at Step 3 , and
for the limited purpose of evaluating claimant’s social
functioning (Admin. Rec. at 1 1 ) , he did not discuss in his RFC
determination any portion of Dr. Dinan’s report, including that
portion that may be contradictory to Dr. Jamieson’s report.

                                  16
     activity. . . . Dr. Batt appears to have evaluated
     Claimant on only one occasion and, despite an
     assessment of “major impairment” in “judgment
     thinking,” he opines that Claimant can manage benefits
     in his own interest.


Admin. Rec. at 1 5 .



     One reason relied upon by the ALJ in rejecting Dr. Batt’s

opinion is plainly not supported by the record.   The ALJ states

that Dr. Batt “appears” to have seen claimant on only one

occasion.    Dr. Batt’s October 2009 report is not specific with

respect to the number of times he saw claimant.    However,

claimant’s testimony that he saw Dr. Batt three times for two and

a half hours each time is uncontroverted on the record.     Admin.

Rec. at 39-40.   Whether the ALJ’s assessment of Dr. Batt’s

opinion would be different had he known that Dr. Batt saw

claimant on three occasions is an open question — perhaps Dr.

Batt might be considered to be more in the nature of a treating

physician.   It is not the province of this court— but of the ALJ

— to weigh this (corrected) fact against all other relevant

facts.   While ordinarily a factual error of this kind probably

would not warrant remand, the conflict in qualified medical

opinions makes the dispositive issue somewhat close, and it is

the ALJ, not this court, that is better suited to resolve that

conflict in the first instance. Therefore, the court remands

this case to the ALJ for reassessment of claimant’s mental RFC.



                                 17
     Given that disposition, it is unnecessary to reach

claimant’s remaining arguments. However, with respect to

claimant’s argument that the ALJ erred in crediting the opinion

of Dr. Jamieson over the opinion of Dr. Dinan, and further erred

in not mentioning Dr. Dinan’s report in his RFC determination,

one point is worth noting.     It is well-established, as a general

matter, that an ALJ need not explicitly address every piece of

evidence.    See Rasmussen-Scholter v . Barnhart, N o . Civ. A . 03-

11889-DPW, 

, at *10 (D. Mass. Aug. 1 6 , 2004)

(“[T]he ALJ need not directly address every piece of evidence in

the administrative record.”(citing Rodriguez v . Secretary of

Health and Human Services, 

, 1557 (1st Cir.

1990)(per curiam, table decision)(“An ALJ is not required to

expressly refer to each document in the record, piece-by-

piece.”).    However, pursuant to Social Security Ruling 96-8P, the

ALJ must, when determining a claimant’s RFC, “explain how any

material inconsistencies or ambiguities in the evidence in the

case record were considered and resolved.”      SSR 96-8p, 

 at * 7 . Cf. Conte v . Barnhart, Case N o . Civ. 02-216-M,

, at *8 (D.N.H. May 1 2 , 2003)(McAuliffe,

J.)(remanding to ALJ to “develop a record,” and cautioning ALJ to

explain “material inconsistencies or ambiguities,” if any

arise). 6   Here, the question whether Dr. Dinan’s findings are


6
     The Seventh Circuit, and some district judges (including in
the Districts of Massachusetts and Maine), have adopted a
“considerable evidence” standard that applies more broadly than

                                   18
materially inconsistent with Dr. Jamieson’s findings (such that

the ALJ ought to explain how he resolved the inconsistencies), is

a matter for the ALJ to determine upon reconsideration of

claimant’s RFC.



     C.   Hypothetical Question Posed to the Vocational Expert

     As a corollary to his argument that the ALJ’s mental and

physical RFC’s were not supported by substantial evidence,

claimant argues that the ALJ’s hypothetical to the vocational

expert was not supported by substantial evidence. Because the

court has determined that the ALJ erred in his mental RFC

assessment, and remands the case for further proceedings, the

issue is moot.



                            Conclusion

     For the foregoing reasons, claimant’s motion to reverse the

decision of the Commissioner (document n o . 7 ) is granted to the

extent he seeks a remand to the ALJ for further proceedings.    The



the “material inconsistencies” standard under SSR 96-8p, which
applies only to RFC determinations. Under the 7th Circuit’s
standard, “when there is considerable evidence contrary to the
position of the” Commissioner, the ALJ must provide a “minimal
analysis of [the] contrary evidence.” DaSilva-Santos v . Astrue,

 (D. Mass. 2009)(adopting 7th Circuit
analysis)(citing Orlando v . Heckler, 

 (7th Cir.
1985). See also Rose v . Halter, N o . 00-205-P-C, 

,
at * 3 , n.6 (D. M e . April 9, 2001). The First Circuit has neither
adopted nor addressed the “considerable evidence” standard, and
this court finds it unnecessary to address the issue in light of
the remand.

                                 19
Commissioner’s motion to affirm his decision (document n o . 8 ) is

denied.



      Pursuant to sentence four of 

(g), this matter

is hereby remanded to the ALJ for further proceedings consistent

with this order.     The Clerk of Court shall enter judgment in

accordance with this order and close the case.


      SO ORDERED.




January 2 8 , 2011

cc:   Robert J. Rabuck, Esq.
      Sheila O’Leary Zakre, Esq.




                                   20