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David T. v. Berryhill

United States District Court, D. Utah

February 28, 2019

DAVID T., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM DECISION AND ORDER REMANDING THE COMMISSIONER'S FINAL DECISION DENYING DISABILITY BENEFITS

          EVELYN J. FURSE UNITED STATES MAGISTRATE JUDGE

         Plaintiff David T.[1] (“Mr. T.”), pursuant to 42 U.S.C. § 405(g), seeks review of the Acting Commissioner of Social Security's (“the Commissioner”) denial of his claim for Disability and Disability Insurance Benefits under Title II of the Social Security Act (ECF No. 3). After careful review of the entire record, the parties' briefs, and arguments presented at a telephonic hearing held on February 13, 2019, the Court REMANDS this case to the Commissioner for further consideration.

         BACKGROUND

         Mr. T. protectively filed his application for disability insurance benefits on July 17, 2008, alleging disability beginning on November 11, 2005. (Certified Administrative Transcript (herein Tr__.) 137-43, ECF No. 8.) His claims were initially denied on September 17, 2008 and upon reconsideration on December 30, 2008. (Tr. 54, 65-68.)

         On January 8, 2009, Mr. T. timely requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 69.) A hearing was held before the ALJ on February 4, 2010, in St. George, Utah. (Tr. 28-53.) On May 24, 2010, the ALJ issued a decision finding Mr. T. not disabled. (Tr. 10-27.) On October 5, 2012, the Appeals Council denied Mr. T.'s request for review. (Tr. 1-6.).

         Mr. T. appealed the Commissioner's decision to the United States District Court for the District of Utah. In an order dated March 4, 2014, the District Court remanded the case to the Commissioner, finding that the ALJ erred in analyzing whether Mr. T.'s knee impairments met or equaled Listing 1.03, in particular, whether he had the ability to ambulate effectively. (Tr. 469-77).

         On remand, the ALJ held a supplemental hearing on August 4, 2015 with an orthopedic medical expert to resolve the question of Mr. T.'s ability to ambulate. (Tr. 457-68.) The medical expert, Dr. Robert Thompson, gave conflicting testimony regarding Mr. T.'s ability to ambulate, initially testifying that Mr. T. did not meet Listing 1.02 or 1.03, but then testifying that Mr. T. would not be able to walk a block at a reasonable pace on uneven or rough surfaces at a normal pace and questioned how many steps Mr. T. could climb with the use of a single handrail. (Tr. 462-65.) On October 28, 2015, the ALJ issued a decision finding that that Mr. T. did not meet Listing 1.02 or 1.03 and was not disabled. (Tr. 434-49.)

         Mr. T. filed a second appeal in the District of Utah challenging the ALJ's analysis of whether Mr. T.'s knee impairments met or equaled Listing 1.02 or 1.03. The Commissioner moved to remand the case pursuant to sentence four of 42 U.S.C. § 405(g), which the Court granted. (Tr. 725-32.)

         Upon remand, on August 1, 2016, the Appeals Council vacated the Commissioner's decision and remanded the case to the ALJ to resolve the following issue:

The hearing decision did not adequately evaluate whether the claimant met or equaled a listing in finding that the claimant did not have an “inability to ambulate effectively.” The decision cited Listings 1.02 and 1.03 and relied on the testimony of impartial medical expert Robert Thompson, M.D. to make its finding for the period through May 25, 2010. The decision does not consider Dr. Thompson [sic] statement that he did not believe that the claimant could walk a block at a reasonable pace on uneven or rough surfaces and that how many steps he could climb at a reasonable pace with use of a single handrail was questionable (Transcript of Oral Hearing, page 8). Further, Dr. Thompson stated he did not see specific references that would meet Listing 1.00B2b (Transcript of Oral Hearing, page 7) and that he found the absence of references to ambulation in the record curious (Id, page 9). However, Dr. Thompson appears to have overlooked Dr. Branovacki's opinion in Exhibit 2F in this regard.
Dr. Branovacki opined that the claimant was permanently unable to walk on uneven surfaces, which the prior United States District Court remand order (Exhibit 3A) found as evidence of an inability to ambulate effectively as described in the 1.00 Listings. The decision provided reasons why it did not adopt Dr. Branovacki's finding of disabled and found that opinion related to an inability to perform past work (Decision, pages 8-9), but did not explain why the ambulation restriction was not adopted. Therefore, further evaluation of whether the claimant's impairments meet or equal a listing and further consideration of the treating source and medical expert opinions [sic] Dr. Branovacki and Dr. Thompson is necessary.

(Tr. 735-36.) Among other things, the Appeals Council ordered that “[u]pon remand the Administrative Law Judge will”

[o]btain clarification from the medical expert Dr. Thompson regarding his testimony, or, if necessary, obtain supplemental evidence from a medical expert to clarify whether the claimant's impairments meet or equal the severity of an impairment listed in Appendix 1, Subpart P, ...

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