MEMORANDUM DECISION AND ORDER I. INTRODUCTION

SUZANNE H. SEGAL, Magistrate Judge.

Brandy Renay Brammer ("Plaintiff") seeks review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner" or the "Agency") denying her application for Disability Insurance Benefits ("DIB") and Supplement Security Income ("SSI"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is REVERSED and REMANDED for further administrative proceedings consistent with this decision.

II.

PROCEDURAL HISTORY

On May 21, 2009, Plaintiff filed for DIB and SSI, claiming that she became disabled on September 25, 1999. (Administrative Record ("AR") 264-67, 277-83). Plaintiff based her alleged disability on "[l]ower back injury, bu[l]ging disc, deg[enerative] disc,[]nerve pain, failed surgery, pinched nerves." (AR 313). The Agency denied Plaintiff's applications on August 22, 2009 (AR 131-37) and upon reconsideration on March 18, 2010. (AR 140-44).

Plaintiff requested a hearing, which was held before Administrative Law Judge ("ALJ") Jay E. Levine on May 12, 2011. (AR 81-107). On June 24, 2011, ALJ Levine determined that Plaintiff was not disabled. (AR 113-22).

Plaintiff filed a request for review of ALJ Levine's decision, which the Appeals Council (the "Council") granted. (AR 127). On November 16, 2012, the Council vacated the ALJ's decision and remanded the matter for further proceedings. (AR 127-29). Upon remand, the Council directed the ALJ to further consider whether Plaintiff was capable of performing any of her past relevant work, further evaluate Plaintiff's mental impairment, and give further consideration to Plaintiff's maximum RFC during the entire period at issue. (AR 128). Further, if necessary the ALJ was required to obtain evidence from a vocational expert. (AR 129).

On April 25, 2013, ALJ Tamara Turner-Jones (the "ALJ") conducted a hearing following the Council's remand order. (AR 41-80). On June 14, 2013, the ALJ issued an unfavorable decision. (AR 13-28). Plaintiff sought review before the Council (AR 7-9), which the Council denied on February 20, 2015. (AR 1-4). The ALJ's determination thus became the final decision of the Commissioner. Plaintiff filed the instant action on April 17, 2015.

III.

FACTUAL BACKGROUND

Plaintiff was born on February 20, 1980. (AR 26). She was nineteen years old as of the alleged disability onset date and twenty-three years old at the time of her hearing before the ALJ. (AR 43). In September 1999, Plaintiff suffered a work-related injury. (AR 434). Plaintiff's last-insured date was June 30, 2003. (AR 15).

A. Relevant Medical Evidence

Dr. Timothy P. Gray, an orthopaedic surgeon, provided Plaintiff treatment of one to two sessions per month between January 2000 to April 2002 in connection with her 1999 workers' compensation claim. (AR 370-441). Dr. Gray primarily treated Plaintiff for her complaints of low back pain with disk degeneration and bilateral leg pain. (Id.). Dr. Gray noted that an October 1999 MRI of Plaintiff's lumbar spine revealed a "central disk herniation" and "some minimal degenerative changes" at L4-5. (AR 437). Dr. Gray treated Plaintiff's pain with inter alia, physical therapy, injections, pain management, a back brace, and medications, including Darvocet, Vistaril, Vioxx, Tylenol #3, Tylenol #4, Prozac, Ultracet, and Paxil. (AR 371-73, 377-80, 383-84, 387-88, 391, 393-94, 397-98, 401, 403, 406-07, 408, 411, 415, 419, 423, 425, 426, 429, 431, 432, 438-39). On September 29, 2000, Plaintiff underwent lumbar diskograms which revealed positive pain and an annular tear at L4-5 and possibly at L5-S1. (AR 409-10). On December 5, 2000, Plaintiff underwent an IDET procedure at L4-5 and L5-S1. (AR 403, 405). In June 2001, Plaintiff began to complain of low back pain again, and continued to do so through April 2002, Dr. Gray's last treatment note of record. (AR 371-400). While he treated Plaintiff, Dr. Gray primarily placed Plaintiff on modified work duty, limited to sedentary or light work in two to four hour shifts. (AR 371-73, 378-79, 393, 398, 401-02, 426-27, 429, 431-32).

Dr. Thomas Haider, Plaintiff's more recent treating physician, who also treated Plaintiff in connection with her workers' compensation claim, saw Plaintiff at least sixty times between October 2004 to April 2013 for complaints of low back and leg pain. (AR 567-673, 799-864). On November 2, 2006, Dr. Haider performed on Plaintiff a laminotomy, discectomy, and foraminotomy at L4-5 on the right side. (AR 494-95). After the surgery, Plaintiff reported worsening of symptoms. (AR 581, 587, 591, 597, 603-04, 606, 613-14, 619, 621). Dr. Haider reported that a January 2008 radiograph of Plaintiff's cervical spine showed "straightening as well as reversal of cervical lordosis [and] spondylosis of the C2-C4 levels." (AR 599). A July 2008 MRI of Plaintiff's lumbar spine showed "continuation of prominent posterior disc bulge measuring 4 mm in size at the level of L4-5," "bilateral foraminal stenosis," "disc dessication" at L4-5, "mild bilateral facet arthropathy" at L3-4 and L5-S1, and "diffuse disc desiccation" at L3-4, L4-5, and L5-S1. (AR 582).

Between 2004 and 2008, Dr. Haider treated Plaintiff with inter alia, trigger point injections (AR 585, 602 647) and narcotic pain medications, including Fentanyl patches, Norco, Duragesics, Lorcet, and Ultram. (AR 582, 589, 592, 595, 599, 605, 607, 613, 615, 622, 625-26, 627, 636, 638, 645, 649, 651, 653, 655, 657, 661, 663, 665, 669-70). In October 2008, due to difficulty controlling her medications, Plaintiff entered an in-patient detox program. (AR 576, 579). Between 2009 and 2013, Dr. Haider treated Plaintiff with trigger point injections, heat wraps, and non-narcotic pain medications. (AR 569, 802, 810, 812-13, 820, 823-25, 829-30, 832, 837-38, 839-40, 843, 845-46, 853). A September 2009 MRI of Plaintiff's lumbar spine revealed "significant right sided forminal stenosis due to 4mm broad based disc bulging" and "moderate to severe disc dessication at L4-5." (AR 812). Based on a December 2011 MRI of Plaintiff's lumbar, Dr. Haider noted that there was "progression of the severe disc space collapse at L4-5," "central and forminal stenosis secondary to a 3.8 mm circumferential disc bulge as well as bilateral facet arthrosis," and "degenerative disc disease with a 2.5 mm circumferential disc bulge" at L5-S1. (AR 821). An April 2013, MRI of Plaintiff's lumbar spine revealed "[r]ight laminectomy at L4," "[g]rade 1 retrolisthesis of L4," a "3.8 mm circumferential disc bulge" at L4-5, "[b]ilateral facet arthrosis and moderate bilateral neural foraminal narrowing" at L4-5 and L5-S1, and a "2.8 mm disc bulge" at L5-S1. (AR 855). An April 2013 eletrodiagnostic report also revealed mild to moderate right L5 and S1 sensory radiculopathy. (AR 856). Between 2005 and 2013, Dr. Haider's progress notes repeatedly indicated that Plaintiff had difficulty walking, difficulty changing positions and getting onto the examining table, tenderness over the low back, muscle spasm, restricted motion with pain of the lumbar, guarding with motion, antalgic gait, and/or positive straight leg test bilaterally. (AR 568, 572, 576, 578, 582, 585, 588, 592, 595, 598, 602, 604, 606, 610, 612, 614, 619, 629, 631, 635, 637, 640, 643, 647, 653, 655, 661, 665, 800, 802, 810, 812, 816, 818, 823, 828, 830, 832).

On April 23, 2013, Dr. Haider completed a "Physical Residual Capacity Question." (AR 860-64). In the questionnaire, Dr. Haider diagnosed Plaintiff with "status post laminectomy lumbar surgery in 2006." (AR 860). He noted his clinical and objective findings included positive MRI, nerve conduction, and x-ray findings. (Id.). Plaintiff's treatment included short courses of physical therapy, medications, injections, MRIs, and surgery. (AR 861). He opined that Plaintiff could occasionally carry ten pounds. (AR 862). She has significant limitations in doing repetitive reaching, handling or fingering. (Id.). Plaintiff has marked limitation in bending and twisting at the waist. (AR 862-63). She can walk one block without rest and can continuously sit and stand for fifteen minutes every hour. (AR 863). Plaintiff can sit for twenty minutes and stand for fifteen minutes in a less than two-hour period. (Id.). She can also sit for forty minutes and stand for twenty-five minutes in a two-hour period. (Id.). Plaintiff must walk every fifteen minutes for ten minutes each time. (Id.). She would also need to shift positions and take unscheduled breaks. (Id.). Finally, Plaintiff would be absent from work more than three times a month due to her impairments or treatment. (AR 864).

IV.

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents her from engaging in substantial gainful activity and that is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1).

The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist the claimant in developing the record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets her burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in "significant numbers" in the national economy, taking into account the claimant's residual functional capacity ("RFC"), age, education, and work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). The Commissioner may do so by the testimony of a VE or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as "the Grids"). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). When a claimant has both exertional (strength-related) and non-exertional limitations, the Grids are inapplicable and the ALJ must take VE testimony. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).

V.

THE ALJ'S DECISION

The ALJ employed the five-step sequential evaluation process. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful employment since her alleged onset date of September 25, 1999. (AR 15). At step two, the ALJ found that Plaintiff had the severe impairments of degenerative disc disease of the lumbar spine, status post laminotomy and diskectomy, sprain/strain of the cervical spine, asthma, and obesity. (AR 16).

At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (AR 18). The ALJ then found that Plaintiff had the following RFC:

(Id.).

In making this finding, the ALJ considered Plaintiff's subjective allegations, but did not find them fully credible. (AR 20-25). The ALJ also noted that:

(AR 26).

At step four, the ALJ found that Plaintiff has no past relevant work. (Id.). At step five, the ALJ found that, considering Plaintiff's age, education, work experience and RFC, she could perform jobs that exist in significant numbers in the national economy. (Id.). Based on the VE's testimony, the ALJ concluded that Plaintiff could perform the requirements of lens gauger, table worker, addresser, surveillance system monitor, and bench assembler. (AR 27). Accordingly, the ALJ found that Plaintiff was not disabled through the date of the decision. (AR 28).

VI.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The court may set the decision aside when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. (citing Jamerson, 112 F.3d at 1066; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1997)).

To determine whether substantial evidence supports a finding, the court must "`consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing that conclusion, the court may not substitute its judgment for the Commissioner's. Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec'y, 44 F.3d 1453, 1457 (9th Cir. 1995)).

VII.

DISCUSSION

Plaintiff contends that the Commissioner's decision should be overturned for two reasons. First, Plaintiff contends the ALJ did not properly consider the opinion of treating physicians, Dr. Gray and Dr. Haider, in determining Plaintiff's RFC. (Plaintiff's Memorandum in Support of Complaint (the "MSC"), Dkt. No. 14, at 4-9; Plaintiff's Reply Memorandum in Support of Complaint ("Reply"), Dkt. No. 16, at 3-5). Second, Plaintiff claims that the ALJ did not properly consider her subjective pain testimony. (MSC at 9-13; Reply at 5-7). Because the Court concludes that the ALJ did not properly consider Plaintiff's treating physicians' opinion, it is unnecessary to address the remaining issue raised by Plaintiff.

The ALJ Failed To Properly Consider The Opinions Of Plaintiff's Treating Physicians In Determining Plaintiff's Residual Functional Capacity

Social Security regulations require the ALJ to consider all relevant medical evidence when determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520b, 416.927(c). The opinions of treating physicians are entitled to special weight because the treating physician is hired to cure and has a better opportunity to know and observe the claimant as an individual. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). Even if the treating physician's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing specific, legitimate reasons, supported by substantial evidence in the record. Id. at 830-31; see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

1. Dr. Timothy P. Gray

Plaintiff argues that the "ALJ was correct in stating that Dr. Gray's records indicate that [Plaintiff] was released to perform primarily sedentary work," however, the ALJ failed to properly consider Dr. Gray's conclusion that Plaintiff would be limited to working at that level only for two to four hours per day. (MSC at 4-9; Reply at 3-5). The Court agrees.

In determining Plaintiff's RFC, the ALJ noted that she gave "significant weight, but not controlling weight to the opinions expressed by Dr. Gray." (AR 25). The ALJ explained that although Dr. Gray "felt throughout the workers' compensation records that [Plaintiff] could perform at least sedentary work. . . [s]ince his assessments of [Plaintiff's] capacity was done within the workers' compensation setting and do not reflect the specific function-by-function residual functional capacity required by the Regulations, it is not accorded controlling weight." (Id.). Thus, the ALJ implicitly rejected Dr. Gray's findings that Plaintiff was limited to shifts of two to four hours, and failed to provide specific and legitimate reasons for doing so. The ALJ is required to consider all relevant medical evidence when determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520b, 416.927(c). The ALJ is also required to assess whether a claimant has the ability to work on a sustained basis. Reddick, 157 F.3d at 724. Thus, merely because Dr. Gray's opinion did not include a function-by-function RFC assessment was not a specific and legitimate reason to reject his opinion.

The ALJ also has a duty to translate Dr. Gray's workers' compensation findings into Social Security terms. Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996); Desrosiers v. Secretary of Health & Human Services, 846 F.2d 573, 576 (9th Cir. 1988); Booth, 181 F. Supp. 2d at 1104. Although workers' compensation disability ratings are not controlling in Social Security cases, an ALJ must nevertheless evaluate medical opinions stated in workers' compensation terminology just as he would evaluate any other medical opinion. Id. The ALJ must "translate" terms of art contained in such medical terminology in order to accurately assess the implications of those opinions for the Social Security disability determination. See Desrosiers, 846 F.2d at 576. "While the ALJ's decision need not contain an explicit `translation,' it should at least indicate that the ALJ recognized the differences between the relevant state workers' compensation terminology, on the one hand, and the relevant Social Security disability terminology, on the other hand, and took those differences into account in evaluating the medical evidence.'" Booth, 181 F. Supp. 2d at 1105. Here, although Dr. Gray made findings relevant to his workers' compensation evaluation of Plaintiff, they were not translated for determining Plaintiff's eligibility for social security benefits.

Because the ALJ failed to provide specific and legitimate reasons for rejecting Dr. Gray's opinion, the case must be remanded to remedy this defect. Upon remand, the ALJ must translate Dr. Gray's workers' compensation findings into appropriate social security terminology, and then either provide specific and legitimate reasons to reject Dr. Gray's opinions or incorporate the limitations provided by Dr. Gray into the RFC determination.

2. Dr. Thomas Haider

Plaintiff contends that the ALJ failed to articulate legally sufficient reasons for rejecting Dr. Haider's opinions. (MSC at 7-9; Reply at 5). The Court agrees.

In determining Plaintiff's RFC, the ALJ considered Dr. Haider's April 23, 2013 "Physical Residual Functional Capacity Questionnaire." (AR 860-64). As noted by the ALJ, Dr. Haider opined that Plaintiff could lift and carry up to ten pounds. (AR 25). Plaintiff was limited in her ability to perform manipulative maneuvers with her hands and she had marked limitation her ability to twist at the waist. (Id.). She could walk for one block without rest and be absent from work more than three times per month. (Id.). Finally, the ALJ noted that Dr. Haider's opinion regarding Plaintiff's ability to sit and stand was "unclear and confusing." (Id.).

Although the ALJ gave "great weight" to Dr. Haider's April 2013 assessment that Plaintiff could "lift and carry up to 10 pounds," she gave "minimal weight to the other limitations, as they are not well supported by the objective record as a whole." (AR 25). More specifically, the ALJ rejected Dr. Haider's opinion that Plaintiff would be "absent more than three times per month [because it] is speculative and without substantial support from the record." (Id.). In support of her finding, the ALJ appears to cite to inter alia that: (1) Plaintiff retained the ability to ambulate effectively and she did not need an assistive device for ambulation or stability; (2) diagnostic imaging "revealed a moderate pathology in the lumbar spine at most" and "[e]letrodiagnostic testing only recently confirmed mild to moderate sensory radiculopathy"; (3) there is "nothing in the record, except for [Plaintiff's] subjective complaints, showing any significant limitations in the cervical spine or the upper extremities"; and (4) Plaintiff responded well to "conservative nonnarcotic pain medications and she has not had to seek emergency or urgent care for acute symptom exacerbations." (AR 25). The Court finds these reasons are not specific and legitimate reasons supported by substantial evidence to reject Dr. Haider's opinion.

As an initial matter, because the ALJ specifically found Dr. Haider's opinion regarding Plaintiff's ability to sit and stand "unclear and confusing," the ALJ had a duty to re-contact Dr. Haider for clarification rather than simply rejecting his opinion. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (ALJ has a duty to develop the record further when there is ambiguous evidence).

Moreover, the ALJ erred in rejecting Dr. Haider's opinion as "speculative." As discussed above, Dr. Haider treated Plaintiff over the course of nearly nine years on a frequent and continual basis, and his opinion is supported by clinical findings and objective diagnostic testing. (AR 567-673, 799-864). Under these circumstances, the ALJ's assertion that Dr. Haider's opinion is "speculative" is not a specific and legitimate reason to reject his opinion.

Next, although the ALJ cites to moderate pathology in Plaintiff's lumbar spine, as well as mild to moderate sensory radiculopathy to reject Dr. Haider's opinion, the ALJ fails to explain how those findings are inconsistent with Dr. Haider's opinion.

The ALJ's next reasoning that the record "largely" shows that Plaintiff was able to ambulate effectively and there is nothing to indicate she was reliant on an assistive device for ambulation or stability lacks substantial support in the record. Numerous progress notes from Dr. Haider reflect that Plaintiff had "difficulty walking," "difficulty changing position and getting onto the examining table," "guarding with motion," "antalgic gate" and/or positive straight leg test. (AR 568, 572, 576, 578, 582, 585, 588, 592, 595, 598, 602, 604, 606, 610, 612, 614, 619, 629, 631, 635, 637, 640, 643, 647, 653, 655, 661, 665, 800, 802, 810, 812, 816, 818, 823, 828, 830, 832).

The ALJ's statement that there is "nothing in the record, except for [Plaintiff's] subjective complaints, showing any significant limitations in the cervical spine or the upper extremities" is contradicted by the record. Rather, the evidence reflects, Dr. Haider found on several occasions "tenderness in the cervical spine, left pericervical w/spasm, right pericervical w/spasm, and trapezius" and "evidence of muscle spasm at the cervical spine." (AR 572, 575, 581, 584, 587, 591, 594, 597). Dr. Haider also noted that "[r]adiographs of the cervical spine show cervical straightening as well as reversal of cervical lordosis as well as spondylosis of the C2-C4 level" and "severe muscle spasm." (AR 599). Thus, Dr. Haider did not base his opinions regarding Plaintiff's cervical spine or upper extremity limitations solely on Plaintiff's subjective complaints.

Finally, the finding that Plaintiff responded well to conservative non-narcotic pain medications is not entirely consistent with the record. As an initial matter, in 2008, Plaintiff underwent detoxification due to her inability to control the use of narcotic medications. As a result, Plaintiff was prescribed only non-narcotic medications after 2008. (AR 576, 579, 804). Dr. Haider's progress notes reflect that the non-narcotic medications were not effective in alleviating her pain because Plaintiff continually complained of increasing or severe pain, which Dr. Haider continued to treat through 2013. (AR 568, 571, 573, 800, 802, 810, 812, 823, 825, 828, 832, 837-38, 842-43, 845, 852-53). Plaintiff also requested, and was given several trigger point or nerve block injections to help alleviate her pain. (AR 568, 810, 812, 823-24, 828, 830, 843, 846, 853). Accordingly, the finding that Plaintiff "responded well to conservative nonnarcotic pain medications" is not supported by the medical evidence. Dr. Haider's progress notes chronicle Plaintiff's struggle with her back and leg pain, and at no point show sustained improvement or stabilization with conservative treatment. Thus, the ALJ's conclusion cannot be considered a specific and legitimate reason.

On remand, the ALJ should contact Dr. Haider, obtain clarification regarding his opinion, reconsider Dr. Haider's opinion, and as necessary, revise Plaintiff's RFC.

VIII.

CONCLUSION

Accordingly, IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties.