United States District Court, D. South Dakota, Western Division
TODD A. B.,  Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE.
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.
AND PROCEDURAL HISTORY
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.
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.
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)).
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).
previously held that Todd B. was “insured through
December 31, 2013, ” 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,  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 with medial
facetectomy and foraminotomy at L4-L5. Id.
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.
remand order contained the following directives to the
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 §
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
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
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
ALJ'S FINDING OF AN AUGUST 26, 2014, ONSET DATE WAS NOT