United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER REMANDING THE
COMMISSIONER'S FINAL DECISION DENYING DISABILITY
J. FURSE UNITED STATES MAGISTRATE JUDGE
David T. (“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.
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.)
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.).
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).
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.
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.)
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
[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,