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Steinbeck v. Berryhill

United States District Court, E.D. Wisconsin

January 18, 2019

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.



         Plaintiff 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 disabled.
(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 disabled.
(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).

         The 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.”

         Plaintiff 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 Cir. 2014).


         Plaintiff 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).[1] “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).

         The 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 ...

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