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Todd A. B. v. Berryhill

United States District Court, D. South Dakota, Western Division

September 20, 2018

TODD A. B., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         Plaintiff Todd B. filed a complaint appealing from an administrative law judge's (“ALJ”) decision denying disability insurance benefits. (Docket 1). Defendant denies plaintiff is entitled to benefits. (Docket 10). On March 24, 2016, the court entered an order granting plaintiff's motion for a sentence six remand (“remand order”). (Docket 23 at p. 12). On September 25, 2017, plaintiff filed a motion to reopen the case to permit him to appeal the Commissioner's partially unfavorable decision of April 25, 2017. (Docket 32). The court granted the motion and issued a briefing schedule requiring the parties to file a supplemental joint statement of material facts (“SJSMF”). (Docket 35). The parties filed their SJSMF. (Docket 36). Plaintiff filed a motion to reverse the decision of the Commissioner. (Docket 39). The Commissioner resists plaintiff's motion. (Docket 41). For the reasons stated below, plaintiff's motion to reverse (Docket 39) is granted in part and denied in part.

         FACTUAL AND PROCEDURAL HISTORY

         The parties' initial joint statement of material facts (“JSMF”) (Docket 13), initial joint statement of disputed material facts (“JSDMF”) (Docket 14) and the more recent SJSMF (Docket 36) are incorporated by reference. Further recitation of salient facts is incorporated in the discussion section of this order.

         On January 19, 2012, Todd B. filed an application for disability insurance benefits (“DIB”) alleging an onset of disability date of July 6, 2009. (Docket 13 ¶ 1). Following the remand order, on April 25, 2017, a second ALJ issued a decision finding Todd B. was not disabled from July 9, 2009, through August 25, 2014, but was disabled and DIB qualified beginning August 26, 2014. (Docket 36 ¶ 16; see also Administrative Record at pp. 493-507 (hereinafter “AR at p. ___”). On June 2, 2017, the Appeals Council submitted the certified supplemental administrative record, thereby affirming the ALJ's decision. (Docket 36 ¶ 17). The ALJ's decision constitutes the final decision of the Commissioner of the Social Security Administration. It is from this decision which plaintiff timely appeals.

         The issue before the court is whether the ALJ's decision of April 25, 2017, that Todd B. “has been disabled under . . . the Social Security Act beginning on August 26, 2014, ” is supported by substantial evidence in the record as a whole. (AR at p. 506); see also Howard v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001) (“By statute, the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”) (internal quotation marks and brackets omitted) (citing 42 U.S.C. § 405(g)).

         STANDARD OF REVIEW

         The court delineated the standard of review of a decision of the Commissioner in the remand order and incorporates that standard by reference. (Docket 23 at pp. 3-4).

         THE REMAND ORDER

         The ALJ previously held that Todd B. was “insured through December 31, 2013, ”[2] and “the claimant must establish disability on or before that date in order to be entitled to a period of disability and disability insurance benefits.” Id. at pp. 10-11 (referencing AR at p. 11). The question before the court was “whether [Todd B.] was a viable candidate for spinal surgery” in 2011. Id. at p. 7. That question was based on the following medical evidence.

On July 18, 2011, neurosurgeon Dr. [Robert I.] charted that [Todd B.] suffered “discogenic and facetogenic back pain with abnormal motion at L4-5 and some foraminal stenosis.” Id. (citing Docket 13 ¶ 213). Dr. [Robert I.] recommended “a lumbar fusion and decompression at L4-5 with instrumentation and transforaminal lumbar interbody fusion.” Id. (citing Docket 13 ¶ 213). On September 29, 2011, orthopedic surgeon Dr. [Rand S.] concluded [Todd B.] was not a good candidate for lumbar fusion surgery. Id. (referencing Docket 13 ¶ 215). Dr. [Rand S.] opined that even “a multilevel fusion . . . is not going to make [Todd B.] that much more functional.” Id. (citing Docket 13 ¶ 215). . . .
On December 12, 2014, orthopedic surgeon Dr. [Wade J.] conducted an independent medical examination of [Todd B.] . . . . Id. at p. 8 (citing Docket 14 ¶ 1). Dr. [Wade J.] concluded “[t]he surgery offered by Dr. [Robert I.] would be only part of the surgery necessary. He would benefit more [from a] L4-5, L5-S1 decompression and fusion. If the L5-S1 level is left untreated with the isthmic spondylolisthesis, [3] I think this could potentially lead to further degenerative changes and compressive neurological problems. . . . I think he needs a 2-level fusion not a 1-level fusion.” Id. (citing Docket 14 ¶ 6). . . .
On July 16, 2015, Dr. [Robert I.] performed a two-level fusion at L4-L5 and L5-S1 and a laminectomy[4] with medial facetectomy[5] and foraminotomy[6] at L4-L5. Id.

         It was with this medical history that the court found:

[T]he July 16, 2015, report of surgery relates back to [Todd B.'s] condition during a period of insurability and most accurately describes the nature and extent of his spinal condition. Without the vantage point of surgery, no physician was truly able to determine the nature and full extent of [Todd B.'s] condition. It was only after surgery that Dr. [Robert I.] could conclusively determine the physiological condition of [Todd B.'s] spine and the extent of the surgical intervention necessary.

Id. at p. 11. The remand order found “this new evidence is relevant to step three as to whether [Todd B.] satisfies the medical equivalency provision of Listing 1.00; step four as to [Todd B.'s] credibility and the resulting RFC; and step five as to whether [Todd B.] is disabled.” Id. at p. 12.

         The remand order contained the following directives to the Commissioner:

IT IS FURTHER ORDERED that the Commissioner shall provide [Todd B.] with a de novo hearing before an administrative law judge. The ALJ shall obtain and admit evidence of [Todd B.'s] July 16, 2015, hospitalization and surgery at the Black Hills Surgical Hospital (Docket 20-1) and any additional evidence which relates to the physiological consequences of that surgery.
IT IS FURTHER ORDERED that the ALJ shall evaluate the newly admitted evidence and reevaluate [Todd B.'s] claim at steps three through five of the sequential evaluation process for determining whether an individual is disabled and entitled to disability benefits under Title II. 20 CFR § 404.1520(a).

Id.

         THE PRESENT APPEAL

         Following the ALJ's partially favorable decision of April 25, 2017, plaintiff appealed to the district court. (Docket 39). That challenge objects to “the ALJ's decision finding that [p]laintiff was not disabled before August 26, 2014.” Id. Plaintiff asserts five grounds to challenge the ALJ's decision. Those are summarized as follows:

1. The ALJ's finding of an August 26, 2014, onset date was not supported by substantial evidence.
2. At step three the substantial evidence supports a finding that plaintiff's impairment met or equaled Listing 1.04A.
3. The ALJ applied the wrong standard for judging the intensity, persistence and limitation of plaintiff's symptoms prior to August 26, 2014.
4. The ALJ failed to properly consider whether pulmonary sarcoidosis impacted the residual functional capacity analysis.
5. The ALJ should have sought a consultative evaluation regarding plaintiff's diagnosis of pulmonary sarcoidosis.

(Docket 40). These challenges will be addressed as the court finds appropriate.

         1. THE ALJ'S FINDING OF AN AUGUST 26, 2014, ONSET DATE WAS NOT ...


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