United States District Court, E.D. Wisconsin
CARRYN A. STEINBECK Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.
DECISION AND ORDER
ADELMAN DISTRICT JUDGE.
Carryn Steinbeck applied for social security disability
benefits, alleging that she could no longer work due to a
variety of impairments, including fibromyalgia, rheumatoid
arthritis, plantar fasciitis, depression, and anxiety/panic
disorder. Social security regulations set forth a sequential,
five-step test for determining disability:
(1) Is the claimant currently working? If so, she is not
(2) If not, does the claimant have a severe medically
determinable physical or mental impairment? If not, the
claimant is not disabled.
(3) If so, do any of the claimant's impairments meet or
equal one of the presumptively disabling impairments set
forth in the agency's Listings? If so, the claimant is
(4) If not, does the claimant retain the residual functional
capacity (“RFC”) to perform her past relevant
work? If so, she is not disabled.
(5) If not, can the claimant, based on her RFC, age,
education, and work experience make an adjustment to other
work? If so, she is not disabled. If not, she is disabled.
See 20 C.F.R. § 404.1520(a)(4).
Administrative Law Judge (“ALJ”) assigned to this
case concluded that while plaintiff, then unemployed,
suffered from a number of severe impairments, none qualified
as presumptively disabling under the agency's
regulations, and that despite her impairments plaintiff
remained capable of performing a range of sedentary work. The
ALJ further concluded that plaintiff could not, given this
RFC, perform her past work; however, accepting the testimony
of a vocational expert (“VE”), he found that she
could work as a “document specialist” or
“system surveillance monitor.”
seeks judicial review of the ALJ's decision. A reviewing
court must determine whether the ALJ's findings are
supported by “substantial evidence” - such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Walker v.
Berryhill, 900 F.3d 479, 482 (7th Cir. 2018).
To satisfy this standard, the ALJ must build an accurate and
logical bridge from the evidence to his conclusion and may
not ignore evidence that undercuts his conclusion.
Spicher v. Berryhill, 898 F.3d 754, 757
(7th Cir. 2018). “A decision that lacks
adequate discussion of the issues will be remanded.”
Moore v. Colvin, 743 F.3d 1118, 1121 (7th
first argues that the ALJ erred at step three by failing to
consider Listing 14.09 (inflammatory arthritis). See
SSR 12-2p, 2012 SSR LEXIS 1, at *17 (indicating that
fibromyalgia may medically equal Listing 14.09D). I agree.
While the ALJ discussed a number of other Listings, he failed
to even mention 14.09 (Tr. at 19-22), despite the fact that
plaintiff's counsel specifically argued this Listing at
the hearing (Tr. at 42). “In considering whether a
claimant's condition meets or equals a listed impairment,
an ALJ must discuss the listing by name and offer more than
perfunctory analysis of the listing.” Barnett v.
Barnhart, 381 F.3d 664, 668 (7th Cir. 2004).
The absence of such a discussion “frustrates any
attempt at judicial review, ” particularly where, as
here, a specific Listing claim was made at the administrative
level. Brindisi v. Barnhart, 315 F.3d 783, 786
(7th Cir. 2003). The ALJ discussed some of the
medical evidence related to plaintiff's arthritis (Tr. at
19-20, 23-24), but this discussion failed to build the
logical bridge necessary for judicial review of the step
three determination. See Lantz v. Berryhill, No.
1:17-CV-394-TLS, 2018 U.S. Dist. LEXIS 144863, at *10-11
(N.D. Ind. Aug. 24, 2018).
Commissioner argues that the error was harmless, as plaintiff
fails to establish that she meets or equals Listing 14.09.
See Maggard v. Apfel, 167 F.3d 376, 380
(7th Cir. 1999) (noting that the claimant bears
the burden of showing that her condition meets or equals all
of the criteria of a Listing). Plaintiff cites record
evidence pertaining to the criteria under Listing 14.09A and
14.09D (Pl.'s Br. at 12-13); the Commissioner argues this
evidence is insufficient (Def.'s Br. at 4-6). It is the
job of the ALJ, not the reviewing court, to weigh conflicting
evidence, see, e.g., Herr v. Sullivan, 912
F.2d 178, 181 (7th Cir. 1990), and I cannot say
with “great confidence” that remanding for
consideration of this Listing would be a waste of time,
see, e.g., Spiva v. Astrue, 628 F.3d 346,
353 (7th Cir. 2010). Cf. Knox v. Astrue,
327 Fed.Appx. 652, 655 (7th Cir. 2009) (finding
step three error harmless where the claimant failed to
present any medical evidence supporting the position
that his impairments meet or equaled a particular listing).
Further, a ...