The opinion of the court was delivered by: Lowell A. Reed, Jr., Sr. J
Upon consideration of the brief in support of request for review filed by plaintiff (Doc. No. 5) and defendant's response and the reply thereto (Doc. Nos. 6 & 7), the court makes the following findings and conclusions:
1. On July 3, 1997, Janice Branson ("Branson"), filed for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, alleging an onset date of August 5, 1992. (Tr. 201; 206-08; 377). Ultimately, the state agency determined that Branson was disabled after finding that she met the now-deleted obesity listing, 9.09A, but only as of February 28, 1997, and not prior thereto. (Tr. 115-16; 133-134). Thus, the relevant period at issue is from August 5, 1992 to February 28, 1997. (Tr. 381 ¶ 3).*fn1 Branson did not agree as to the onset date and filed a timely request for a hearing. (Tr. 135; 137). Subsequently, Branson withdrew her request for a hearing and, on October 29, 1999, the ALJ entered an order of dismissal. (Tr. 148; 152-57). After her case was dismissed, Branson appealed to the district court where the parties agreed to a remand. (Tr. 170-76). On remand, the ALJ held two hearings on March 18, 2002 and May 28, 2002 and issued an unfavorable decision on June 18, 2002. (Tr. 17-25; 46-80; 81-106). Branson again appealed to the district court. On December 29, 2005, I remanded the case in order for the ALJ to evaluate Branson under listing 9.09A, after finding that S.S.R. 00-3p, which replaced listing 9.09A, was not retroactive in nature. (Tr. 407-10). On remand, the ALJ did not hold another hearing because he and Branson's attorney agreed that no further evidence or testimony was necessary. (Tr. 398). On June 30, 2006, the ALJ entered an unfavorable decision finding that, inter alia, Branson did not meet or equal listing 9.09A. (Tr. 377-97). After the Appeals Council declined to review the case, pursuant to 42 U.S.C. § 405(g), Branson filed her action in this court on August 21, 2008. (Tr. 368-71).
2. The Court has plenary review of legal issues, but reviews the ALJ's factual findings to determine whether they are supported by substantial evidence. Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999) (citing 42 U.S.C. § 405(g)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Dobrowolsky v. Califano, 606 F.2d 403, 406 (3d Cir. 1979). It is more than a mere scintilla but may be less than a preponderance. See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
3. Only one question remains in this case: whether Branson equaled listing 9.09A before February 28, 1997.*fn2 Branson contends, inter alia, that the ALJ erred by basing his conclusion that she did not equal the listing on the testimony of Dr. Askin, a medical examiner ("ME"), who was specifically told by the ALJ not to consider listing 9.09A. I agree with Branson. The ALJ erred in relying on the ME's testimony when concluding that Branson did not equal listing 9.09A. Thus, the ALJ's conclusion was not supported by substantial evidence and a remand is necessary in order to reassess whether Branson equaled listing 9.09A during the relevant time period.
In concluding that Branson did not equal listing 9.09A, the ALJ relied on the testimony of Dr. Askin from the May 28, 2002 hearing. Specifically, the ALJ stated the following in support of his conclusion:
The undersigned asked Dr. Askin whether, in his opinion, "looking at the cold paper," the claimant's impairments equaled any Listing 1.04 [dealing with spinal disorders] "or any other Listing" between August 5, 1992, and February 29, 1997. (TR 86). For clarification, the undersigned asked Dr. Askin:
"So let me get this clear. In your opinion between the period of August of 1992, and February of 1997, she does not meet 1.04."
Dr. Askin's response was: "Correct."
The undersigned further inquired: "Would she equal 1.04?" and "Or any other Listing??(sic)
Dr. Askin's response (TR ) was: "From just the cold paper thing, no, she's not."
(Tr. 390 ¶ 2 - 391 ¶ 2). The ALJ then concluded that "The most reasonable conclusion to be drawn from these responses by Dr. Askin is that, based on the objective medical evidence of record, per 20 CFR 404.1525 and 404.1526 as reviewed above, the claimant's impairments, including her obesity, did not equal in severity any Listings, including 1.04A-C or 9.09A, in the period August 5, 1992, to February 28, 1997." (390 ¶ 2 - 391 ¶ 2) (emphasis original).
However, by reviewing a little more of the testimony found on the two relevant pages of the transcript, it is apparent that the ALJ's use of Dr. Askin's testimony to support his conclusion was not reasonable. The transcript reveals the following:
ALJ: "Both 105(c) and nine-- the obesity listing are gone for all time. You can't even apply it back ...