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United States District Court, D. Utah, Central DivisionDec 28, 2004
Case No. 1:03CV00001TC. (D. Utah Dec. 28, 2004)

Case No. 1:03CV00001TC.

December 28, 2004

Jay Barnes, BRADFORD D. MYLER ASSOCIATES MYLER LAW OFFICES, Orem, UT, Attorneys for Plaintiff.

Scott Bates, Esq., Assistant United States Attorney, for Plaintiff Clair Glenn.


On January 13, 2003, Plaintiff filed a petition for review of the decision of the administrative law judge (ALJ), wherein Plaintiff was denied Disability Insurance Benefits and Supplemental Security Income Benefits under Titles XVI and II of the Social Security Act. On August 21, 2003, the Court issued an order of reference to magistrate judge and the case was subsequently referred to Magistrate Judge Brooke C. Wells.

The Magistrate Judge issued her report and recommendations on September 22, 2004. The Magistrate Judge found that there is not substantial evidence in the record to support the decision of the ALJ to deny benefits. The Magistrate Judge recommended that the case be remanded with instructions that the ALJ reconsider Listing 1.07 or grant Plaintiff benefits.

Defendant objected to the Magistrate Judge's report and recommendations on October 7, 2004. This matter was subsequently set for hearing before the Court on November 29, 2004. The Court has considered the pleadings on file, the report and recommendations of the Magistrate Judge, the written objections filed by Defendant and response filed by Plaintiff, and the oral arguments presented at the hearing.

The Court learned during the hearing on November 29, 2004, that the Commissioner issued a subsequent decision on January 15, 2004, and that Plaintiff was found disabled since July 15, 2002, twelve days following the decision at issue in this case, because his condition equals Listing 1.07. This second decision was based, in part, upon evidence submitted to the Appeals Council in the instant case, including the opinions of two treating physicians, Drs. Andersen and Larsen. In light of this evidence, and because the Court finds that the ALJ in this case did not sufficiently articulate reasons for finding that Plaintiff's impairments did not equal the requirements of Listing 1.07, it is therefore:

ORDERED that the Magistrate Judge's September 22, 2004, report and recommendation to remand the case for further proceedings is adopted with the following modifications: the ALJ, on remand, is instructed to consider and discuss evidence submitted to the Appeals Council in this case; consider the evidence of record that Plaintiff received unemployment benefits for more than one year following his alleged onset of disability date in this case; and make necessary findings when determining whether Plaintiff met Listing 1.07 during the time period relevant to this case.

ORDERED, ADJUDGED, AND DECREED that the Plaintiff's request for the Court to remand the Commissioner's decision for further proceedings is GRANTED. Therefore, this matter is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. Section 405(g) for further administrative proceedings.

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