Tamano v. Bisignano

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
COURTNEY T.,
Plaintiff,
v.
FRANK BISIGNANO,1
Commissioner of Social Security,
Defendant.
MEMORANDUM DECISION
AND ORDER
Case No. 2:25-cv-00019-JCB
Magistrate Judge Jared C. Bennett
PROCEDURAL B ACKGROUND2
Plaintiff Courtney T. (“Plaintiff”) alleges disability due to various physical and mental
impairments. Commissioner of Social Security Frank Bisignano (“Commissioner”) originally
determined that Plaintiff was disabled and entitled to Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act3 in 2009.4 The Commissioner conducted periodic
reviews of Plaintiff’s entitlement to SSI, as required by 20 C.F.R. § 416.994(a). The
Commissioner conducted such a review in September 2015 and continued Plaintiff’s SSI.5
1 Frank Bisignano is now the Commissioner of Social Security. Under Fed. R. Civ. P. 25(d), he
has been substituted as the Defendant in this case. ECF No. 17.
2 Under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, all parties have consented to Judge Jared C.
Bennett conducting all proceedings in this case, including entry of final judgment. ECF No. 9.
3 42 U.S.C. §§ 1381-1383f.
4 ECF No. 12, Administrative Record (“AR ___”) 137, 778-92.
5 AR 138, 823-25.
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The Commissioner conducted the next review in September 2019 and determined that
Plaintiff was no longer disabled.6 After that determination was upheld on reconsideration,7
Plaintiff appeared with counsel for a hearing before an Administrative Law Judge (“ALJ”) on
March 23, 2023.8 The ALJ issued a written decision on April 11, 2023 (“2023 Decision”),
concluding that Plaintiff’s disability ended on September 1, 2019.9 In that decision, the ALJ
made the following findings regarding Plaintiff’s dislocated left thumb.
[Plaintiff]’s [motor vehicle accident] also resulted in several
physical 	injuries, 	including 	a left 	thumb metacarpophalangeal
(MCP) joint dislocation with ulnar collateral ligament tear (Ex.
1F/34).
Two attempted reductions were unsuccessful (Ex. 1F/10).
Although [Plaintiff] had a thumb deformity, he still had some use of
it and denied any pain or concern related to the impairment at his
discharge (id. at 8).
At his psychological consultative examination in November
2009, he reported difficulty lifting because of his thumb and
indicated that it remained untreated and dislocated (Ex. 3F/2-3). At
his next consultative examination in August 2015, “he still ha[d] a
clearly dislocated thumb from the [motor vehicle accident] that has
not yet been treated” (Ex. 9F/3).
Leading up to the relevant period, he complained of chronic
pain in his left thumb (Ex. 12F/5). In May 2021, he still needed
surgery to repair his left thumb (Ex. 19F/77).
Accordingly, the undersigned finds [Plaintiff] would be
limited to medium exertional work. This is consistent with the
objective medical evidence discussed and cited to above, including
6 AR 139-53.
7 AR 227-37, 239-41.
8 AR 80-112.
9 AR 158-92.
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imaging showing a left thumb dislocation with a significant tear of
the ulnar collateral ligament (Ex. 1F/34).
Moreover, it is consistent with the observation of two
psychological consultative examiners that the left thumb remained
“clearly dislocated” (Ex. 3F/2; 9F/2-3). The restriction to medium
exertion, while supported by the objective medical evidence, also
serves as a precaution as it takes into account years of not working
and likely deconditioning.10
Plaintiff appealed the 2023 Decision, and, on December 12, 2023, the Appeals Council vacated it
because the ALJ had applied the incorrect medical evidence regulations and failed to adequately
evaluate or account for the functional impact of Plaintiff’s dislocated left thumb.11 Consequently,
the Appeals Council remanded this case to the ALJ and ordered the ALJ to: (1) further consider
the medical opinion evidence under the correct regulations; and (2) further consider Plaintiff’s
residual functional capacity (“RFC”) and provide appropriate rationale with specific references
to record evidence in support of the assessed limitations, as required by the relevant
regulations.12
On remand, Plaintiff appeared with counsel for another hearing before the ALJ on August
8, 2024.13 The ALJ issued a written decision on August 29, 2024 (“2024 Decision”), again
determining that Plaintiff’s disability ended on September 1, 2019.14 More specifically, after
conducting the required seven-step evaluation process for determining whether to terminate
Plaintiff’s SSI, which will be outlined below, the ALJ determined that, as of September 1, 2019,
10 AR 180-81 (fourth alteration in original).
11 AR 195-97.
12 AR 196.
13 AR 51-79.
14 AR 7-43.
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Plaintiff had experienced medical improvement related to his ability to work.15 The ALJ also
determined that Plaintiff had the following RFC:
Since September 1, 2019, based on the current impairments,
[Plaintiff] has had the [RFC] to perform light work as defined in [20
C.F.R. § 416.967(b)] except he can frequently handle and finger. He
must work in a moderate or quiet noise environment. He can
understand, remember[,] and carry out simple instructions related to
repetitive tasks. He can have occasional changes in a routine work
setting. He can have occasional contact with the public, coworkers,
and/or supervisors.16
Based on that RFC assessment, as well as Plaintiff’s age, education, and work experience, the
ALJ determined that, as of September 1, 2019, Plaintiff could perform a significant number of
jobs in the national economy.17
Despite the Appeals Council’s remand order that required the ALJ to provide appropriate
rationale with specific references to record evidence in support of the assessed limitations
regarding Plaintiff’s dislocated left thumb,18 the 2024 Decision on this subject recites the same
words and same record references as the 2023 Decision.19 The only difference between the two
decisions is the ALJ’s conclusion in the 2024 Decision that Plaintiff could engage in “light
exertional work and can only frequently handle and finger.”20
15 AR 16-23.
16 AR 24.
17 AR 35-36.
18 AR 196.
19 Compare AR 31-32, with AR 180-81.
20 AR 31.
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Plaintiff appealed the ALJ’s second adverse ruling, and, on November 19, 2024, the
Appeals Council denied his appeal,21 making the 2024 Decision final for purposes of judicial
review.22 Plaintiff then filed suit in this court seeking review of the Commissioner’s final
decision.23
S TANDARD OF REVIEW
This court “review[s] the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct legal
standards were applied.”24 The Commissioner’s findings, “if supported by substantial evidence,
shall be conclusive.”25 “Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a
preponderance.”26 “In reviewing the ALJ’s decision, [this court may] neither reweigh the
evidence nor substitute [its] judgment for that of the [ALJ].”27 “The failure to apply the correct
legal standard or to provide this court with a sufficient basis to determine that appropriate legal
principles have been followed [are] grounds for reversal.”28
To determine whether to terminate or continue a claimant’s SSI benefits, the
Commissioner must consider “if there has been any medical improvement in [the claimant’s]
21 AR 1-6.
22 42 U.S.C. § 1383(c)(3); 20 C.F.R. § 416.1481.
23 ECF No. 2.
24 Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation modified).
25 42 U.S.C. § 405(g).
26 Lax, 489 F.3d at 1084 (citation modified).
27 Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006) (citation modified).
28 Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (citation modified).
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impairment(s) and, if so, whether this medical improvement is related to [the claimant’s] ability
to work.”29 Medical improvement is defined as
any 	decrease 	in 	the 	medical 	severity 	of 	[the 	claimant’s]
impairment(s) which was present at the time of the most recent
favorable medical decision that [the claimant was] disabled or
continued to be disabled. A determination that there has been a
decrease 	in 	medical 	severity 	must 	be 	based 	on 	changes
(improvement) in the symptoms, signs, or laboratory findings
associated with [the claimant’s] impairment(s).30
Medical improvement is related to the ability to work “if there has been a decrease in the severity
. . . of the impairment(s) present at the time of the most recent favorable medical decision and an
increase in [the claimant’s] functional capacity to do basic work activities” that allows the
claimant “to engage in substantial gainful activity.”31 The Commissioner bears the burden of
establishing both the claimant’s work-related medical improvement and current ability to engage
in substantial gainful activity.32
“The regulations provide a seven-step sequential evaluation process for determining
whether to terminate [SSI] benefits . . . .”33 At the first step, the Commissioner considers whether
29 20 C.F.R. § 416.994(b).
30 Id. § 416.994(b)(1)(i).
31 Id. § 416.994(b)(1)(iii).
32 Kirkes v. Astrue, No. 06-1275-MLB, 2007 WL 2377083, at *2 (D. Kan. Aug. 10, 2007) (“If the
Commissioner meets his burden of establishing that the claimant’s medical condition has
improved and that the improvement is related to the claimant’s ability to work, the
Commissioner must then demonstrate that the claimant is currently able to engage in substantial
gainful activity. The burden of proof is on the Commissioner in a termination-of-benefits
review.” (citation modified) (citing Hayden v. Barnhart, 374 F.3d 986, 988 (10th Cir. 2004);
Glenn v. Shalala, 21 F.3d 983, 987 (10th Cir. 1994))).
33 Garcia v. Barnhart, No. CV 02-800 RLP, 2003 WL 27385263, at *2 (D.N.M. Apr. 17, 2003)
(citing 20 C.F.R. § 416.994(b)(5)(i)-(vii)).
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the claimant’s impairments meet or equal a section of Appendix 1 of the relevant regulations
(“Listed Impairment”).34 If the claimant’s impairments meet or equal a Listed Impairment, the
claimant continues to be disabled.35 If not, the Commissioner moves to the next step.
At step two, the Commissioner considers whether there has been medical improvement,
as defined above, in the claimant’s conditions.36 If there has been medical improvement in the
claimant’s conditions, the Commissioner proceeds to step three.37 If not, the Commissioner
proceeds to step four.38
The third step requires the Commissioner to consider whether the demonstrated medical
improvement is related to the claimant’s ability to work.39 In other words, the Commissioner
considers whether there has been an increase in the claimant’s RFC based on the impairments
that were present at the time of the claimant’s most recent favorable medical determination.40 If
the medical improvement is related to the claimant’s ability to work, the Commissioner proceeds
to step five.41 If it is not, then the Commissioner proceeds to step four.42
At step four—which is reached only if the Commissioner determines that there has been
no medical improvement or that the medical improvement is not related to the claimant’s ability
34 20 C.F.R. § 416.994(b)(5)(i); see also 20 C.F.R. § 404, Subpart P, Appendix 1.
35 20 C.F.R. § 416.994(b)(5)(i).
36 Id. § 416.994(b)(5)(ii).
37 Id.
38 Id.
39 Id. § 416.994(b)(5)(iii).
40 Id.
41 Id.
42 Id.
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to work—the Commissioner considers whether any of the exceptions to medical improvement
contained in 20 C.F.R. § 416.994(b)(3) or (b)(4) apply.43 If none of them applies, the claimant is
still disabled.44 If any of the first group of exceptions applies, the Commissioner proceeds to step
five.45 If any of the second group of exceptions applies, the claimant’s disability has ended.46
At the fifth step—which is reached only if the Commissioner determines that there has
been medical improvement related to the claimant’s ability to work or if one of the first group of
exceptions to medical improvement applies—the Commissioner considers whether all of the
claimant’s impairments in combination are severe.47 If all the claimant’s impairments in
combination are deemed to be severe, the Commissioner proceeds to step six.48 If not, the
claimant is no longer disabled.49
The sixth step requires the Commissioner to consider whether the claimant can engage in
substantial gainful activity.50 More specifically, the Commissioner considers whether the
claimant has the RFC to engage in work the claimant has done in the past.51 If the claimant can
43 Id. § 416.994(b)(5)(iv).
44 Id.
45 Id.
46 Id.
47 Id. § 416.994(b)(5)(v).
48 Id.
49 Id.
50 Id. § 416.994(b)(5)(vi).
51 Id.
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perform such work, the claimant is no longer disabled.52 If not, the Commissioner proceeds to
step seven.
At step seven, the Commissioner considers whether the claimant can do other work
considering the claimant’s age, education, past work experience, and RFC.53 If the claimant can
perform other work, the claimant’s disability has ended.54 If not, the Commissioner will
determine that the claimant is still disabled.55
ANALYSIS
I. 	The 2024 Decision Is Not Supported by Substantial Evidence as to Plaintiff’s
Dislocated Thumb.
The 2024 Decision is not supported by substantial evidence because the evidence
concerning Plaintiff’s dislocated left thumb does not come close to supporting the ALJ’s
conclusion that Plaintiff can “frequently handle and finger.”56 This error is not harmless, and
Plaintiff is entitled to benefits. Each issue is discussed in order below.
A. The Evidence Cited in the 2024 Decision Actually Supports the Opposite Conclusion
Than What the ALJ Reached.
Imagine the following. A person who lives in the contiguous 48 states, goes outside in the
month of July. The sun is shining brightly overhead in the sky. The clock on the person’s cell
phone reads “10:30 a.m.” People in the neighborhood are outside working in their yards using
noisy power tools. The person then relays all these observations to another standing nearby and
52 Id.
53 Id. § 416.994(b)(5)(vii).
54 Id.
55 Id.
56 AR 31.
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concludes with: “Accordingly, it must be nighttime.” Although the person observing all these
facts has correctly observed and noted them, the conclusion derived from those facts clearly does
not follow. That is exactly the problem with the 2024 Decision.
In the 2024 Decision, the ALJ correctly noted the facts regarding Plaintiff’s dislocated
left thumb. Specifically, the ALJ noted all the following:
• 	Plaintiff’s left thumb includes a metacarpophalangeal joint dislocation with ulnar
collateral ligament tear.57
• 	In two attempted reductions to remedy the problem “were unsuccessful.”58
• 	When Plaintiff was discharged from a rehabilitation facility in 2006 for his
traumatic brain injury, he “denied any pain or concern related to the [thumb]
impairment.”59
• 	In his 2009 psychological consultative exam, Plaintiff reported difficulty lifting
because of his thumb and indicated that it remained untreated and dislocated.60
57 Id.
58 Id.
59 Id. The ALJ cites Exhibit 1F/10 and 1F/8 to support this proposition. AR 31. However, neither
page supports the ALJ’s determination. Instead, the medical record notes that “[t]he ulnar
collateral ligament is completely torn[,] and the other supporting structures are badly damaged.”
AR 714. Both 1F/10 and 1F/8 stated that Plaintiff was going to decide whether to obtain surgery.
AR 712, 714.
60 AR 31.
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• 	The notes from his next consultative exam in 2015 stated that “‘he still ha[d] a
clearly dislocated thumb from the [motor vehicle accident] that has not yet been
treated.’”61
• 	“Leading up to the relevant period, [Plaintiff] complained of chronic pain in his
left thumb.”62
• 	In May 2021, Plaintiff still needed surgery to repair his thumb.63
• 	At the hearing after the remand of the 2023 Decision, Plaintiff “testified to
ongoing difficulties with gross and fin[e] manipulation.”64
• 	Medical imaging “show[ed] a left thumb dislocation with a significant tear of the
ulnar collateral ligament.”65
• 	Two psychological consultative examiners observed that Plaintiff’s “left thumb
remained ‘clearly dislocated.’”66
After reciting all this information, the ALJ concludes: “Accordingly, the undersigned finds that
[Plaintiff] would be limited to light exertional work and can only frequently [(i.e., between 2.5 to
5.3 hours per day)] handle and finger.”67 This conclusion is unsupported by the very facts that
the ALJ found.
61 Id. (first alteration in original).
62 Id.
63 Id.
64 Id.
65 Id.
66 AR 32.
67 AR 31 (emphasis added).
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Lest anyone think that this court is improperly substituting its own unspecialized
judgment for the ALJ’s, consider the following. The 2023 Decision made the same factual
findings as the 2024 Decision and found that Plaintiff could perform jobs in the national
economy all requiring frequent reaching and handling and occasional or frequent fingering.68 But
the Appeals Council remanded the 2023 Decision because, among other reasons, “There [was]
no discussion regarding the impact of [Plaintiff]’s thumb injury on the performance of these jobs.
Therefore, further consideration should be given to [Plaintiff]’s maximum [RFC].”69 However,
the 2024 Decision uses the exact same factual findings and record citations as the 2023
Decision70 to conclude that Plaintiff can “frequently handle and finger.”71 In effect, the 2024
Decision reaches the same conclusion as the 2023 Decision regarding Plaintiff’s thumb using the
same facts, same words, and same record citations. If the 2023 Decision was faulty, so is the
2024 Decision on this point.
Nevertheless, the Commissioner contends that one small change in the 2024 Decision
saves the day. Whereas the 2023 Decision provided that Plaintiff could engage in “medium
exertional work,”72 the 2024 Decision limits Plaintiff to “light exertional work.”73 This change is
of no moment because light work has nothing to do with whether Plaintiff is capable of handling
or fingering for the time allowed under a designation of “frequently.” The term “light work”
68 AR 196.
69 Id.
70 Compare AR 31-32, with AR 180-81.
71 AR 31.
72 AR 180.
73 AR 31.
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involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though
the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide
range of light work, [the claimant] must have the ability to do
substantially all of these activities. If someone can do light work,
[the Commissioner] determines that he or she can also do sedentary
work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.74
This definition does not mention much less specify whether a person can handle or finger
anything “frequently.” Thus, a “light work” RFC does nothing to alter the fact that the ALJ found
that Plaintiff could “frequently” finger without any factual basis for doing so even after the
Appeals Council remanded the decision to remedy that very error, among others. Consequently,
the ALJ’s RFC is not supported by substantial evidence.75
74 20 C.F.R. § 416.967(b).
75 The Commissioner also contends that the ALJ’s determination regarding Plaintiff’s thumb is
supported by substantial evidence because elsewhere in the 2024 Decision, the ALJ mentions
that Plaintiff can play the guitar and video games, cook, and do laundry. ECF No. 26 at 17. Even
assuming the ALJ found these things persuasive in his reasons for finding frequent fingering,
these facts do not constitute substantial evidence. Nothing in the record suggests that the Plaintiff
plays guitar or video games to the extent necessary to support a finding of frequent fingering.
Indeed, courts look with askance at this type of argument to support substantial evidence
especially considering the facts the ALJ actually found in the RFC determination in the 2024
Decision. King v. Barnhart, 114 F. App’x 968, 972 (10th Cir. 2004) (concluding that the ALJ
improperly discounted treating doctor’s opinion that claimant’s depression and bipolar disorder
were disabling by citing claimant’s housework, cooking, shopping, watching television, visiting
family, and other activities); Oslin v. Barnhart, 69 F. App’x 942, 948 (10th Cir. 2003)
(“[M]inimum daily activities do not establish [that the plaintiff] can work on a consistent
basis.”); Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993) (“[S]poradic performance
of household tasks or work does not establish that a person is capable of engaging in substantial
gainful activity.” (citation modified)).
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B. The ALJ’s Error Is Not Harmless, and Plaintiff Is Entitled to Benefits.
The ALJ’s error is not harmless because all the jobs that he found Plaintiff could perform
in the national economy require frequent handling and occasional to frequent fingering.76 Thus,
Plaintiff is unable to perform all the jobs that the ALJ found available in the national economy.
Whether the court should remand to the Commissioner to make a third attempt at a
supportably disability determination or award benefits now is an issue that the court considers
with caution. The court has discretion to remand or to award benefits.77 However, in exercising
this discretion, this court must consider “the length of time the matter has been pending,” and
“whether or not[,] given the available evidence, remand for additional fact-finding would serve
any useful purpose but would merely delay the receipt of benefits.”78 Both factors support an
award of benefits.
First, the most recent saga over Plaintiff’s continued receipt of benefits has been going on
since September 1, 2019, when the Social Security Administration initially determined that
Plaintiff was no longer eligible for benefits. Six years is a long time for Plaintiff to finally learn
the fate of his benefits.79
76 ECF No. 18 at 10.
77 Ragland v. Salala, 992 F.2d 1056, 1060 (10th Cir. 1993).
78 Salazar v. Barnhart, 468 F.3d 615, 626 (10th Cir. 2006) (citation modified).
79 Huffman v. Astrue, 290 F. App’x 87, 89-90 (10th Cir. 2008) (“Six years have passed since [the
plaintiff] filed for benefits . . . . The case has already been reversed and remanded once[,] and our
resolution of this appeal would require yet further proceedings. . . . Given the lengthy delay that
has occurred from the Commissioner’s erroneous disposition of the matter, we exercise our
discretion to award benefits.”).
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Second, this case appeals the Commissioner’s second bite at the decision-making apple,
and remanding so the Commissioner can have a third bite will take even more time. In both
decisions, the Commissioner was able to find only jobs that Plaintiff cannot do. Given the six
years that have passed, this court is not going to give the Commissioner a third opportunity to try
again. Therefore, the court orders an award of benefits.80
O RDER
For the reasons stated above, the Commissioner’s decision is REVERSED with an
ORDER to award benefits.81
IT IS SO ORDERED.
DATED this 23rd day of January 2026.
BY THE COURT:
JARED C. BENNETT
United States Magistrate Judge
80 Id.
81 Because the court reverses and awards benefits based on Plaintiff’s limitations with his left
thumb, the court does not address the other issues Plaintiff raises.
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