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Malkasian v. Saul

United States District Court, E.D. Wisconsin

December 9, 2019

ANDREW M. SAUL, Commissioner of Social Security, Defendant.



         Andrew D. Malkasian seeks judicial review of the final decision of the Commissioner of the Social Security Administration denying his claim for a period of disability and disability insurance benefits under the Social Security Act, 42 U.S.C. § 405(g). For the reasons below, the Commissioner's decision is affirmed.


         Malkasian filed an application for a period of disability and disability insurance benefits alleging disability beginning on January 20, 2014 due to epilepsy with seizures. (Tr. 178.) Malkasian's application was denied initially and upon reconsideration. (Tr. 13.) Malkasian filed a request for a hearing and a hearing was held before an Administrative Law Judge (“ALJ”) on June 9, 2017. (Tr. 28-66.) Malkasian testified at the hearing, as did his mother, Joyce Malkasian, and Kelly Stroker, a vocational expert. (Tr. 28.)

         In a written decision issued August 2, 2017, the ALJ found that Malkasian had the severe impairments of epilepsy disorder and seizure disorder. (Tr. 15.) The ALJ considered Malkasian's impairments under Listing 11.02 - Epilepsy; however, he found that Malkasian's medical records did not show the frequency of seizures necessary to either met or medically equal the listing. See 20 C.F.R. pt. 404, subpt. P, app. 1 (the “listings”). (Id.) The ALJ found that Malkasian had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, but with the following nonexertional limitations: no ladders, scaffolds, or ropes; avoid all exposure to hazardous, moving machinery and unprotected heights; limited to simple, routine, and repetitive tasks; and employed in a low stress job defined as only occasional decision-making required and only occasional changes in the work setting. (Tr. 16.)

         While the ALJ found that Malkasian was unable to perform any of his past relevant work, the ALJ determined that given Malkasian's age, education, work experience, and RFC, jobs existed in significant No. in the national economy that he could perform. (Tr. 18.) As such, the ALJ found that Malkasian was not disabled from his alleged onset date until the date of the decision. (Tr. 19.) The ALJ's decision became the Commissioner's final decision when the Appeals Council denied the plaintiff's request for review. (Tr. 1-5.)


         1. Applicable Legal Standards

         The Commissioner's final decision will be upheld if the ALJ applied the correct legal standards and supported his decision with substantial evidence. 42 U.S.C. § 405(g); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). Substantial evidence is not conclusive evidence; it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Schaaf v. Astrue, 602 F.3d 869, 874 (7th Cir. 2010) (internal quotation and citation omitted). Although a decision denying benefits need not discuss every piece of evidence, remand is appropriate when an ALJ fails to provide adequate support for the conclusions drawn. Jelinek, 662 F.3d at 811. The ALJ must provide a “logical bridge” between the evidence and conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).

         The ALJ is also expected to follow the SSA's rulings and regulations in making a determination. Failure to do so, unless the error is harmless, requires reversal. Prochaska v. Barnhart, 454 F.3d 731, 736-37 (7th Cir. 2006). In reviewing the entire record, the court does not substitute its judgment for that of the Commissioner by reconsidering facts, reweighing evidence, resolving conflicts in evidence, or deciding questions of credibility. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998). Finally, judicial review is limited to the rationales offered by the ALJ. Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir. 2012) (citing SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010)).

         2. Application to this Case

         Malkasian argues the ALJ erred in finding that he did not meet Listing 11.02-Epilepsy. To meet Listing 11.02, one must show “epilepsy, documented by a detailed description of a typical seizure and characterized by A, B, C, or D.” Listing 11.02. Malkasian acknowledges that his seizures do not meet listing level for subsections A and C, which address generalized tonic-clonic seizures. (Pl.'s Br. at 13, Docket # 14.) Rather, Malkasian asserts that his seizures meet Listing 11.02B, which addresses dyscognitive seizures. (Id. at 17.) Dyscognitive seizures are “characterized by alteration of consciousness without convulsions or loss of muscle control. During the seizure, blank staring, change of facial expression, and automatisms (such as lip smacking, chewing or swallowing, or repetitive simple actions, such as gestures or verbal utterances) may occur. During its course, a dyscognitive seizure may progress into a generalized tonic-clonic seizure.” Listing 11.02H1b.

         To meet Listing 11.02B, one must show: “Dyscognitive seizures (see 11.00H1b), occurring at least once a week for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed treatment (see 11.00C).” Again, the ALJ found Malkasian did not meet Listing 11.02 because the medical record did not show the frequency of seizures required to meet the listing.

         The plaintiff has the burden of showing that his impairments meet or medically equal a listing. Scheck v. Barnhart,357 F.3d 697, 700 (7th Cir. 2004). To establish that an impairment or combination of impairments meet or are equivalent to a listed impairment, a plaintiff must present medical findings that meet or are equal in severity to all of the criteria in a listing. Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990) (citing SSR 83-19 and 20 C.F.R. § 416.926(a)). The Seventh Circuit has stated that an ALJ's “failure to discuss or even cite a listing, combined with an otherwise perfunctory analysis, may require a remand.” Brindisi ex rel.Brindisi v. Barnhart,315 F.3d 783, 786 (7th Cir. 2003) (internal citation omitted). However, the court has also found that “the ALJ may rely solely on opinions given in Disability Determination and Transmittal forms and provide little additional explanation . . . . [if] there is no contradictory evidence in the record.” Ribaudo v. Barnhart,458 F.3d 580, 584 (7th Cir. 2006). Furthermore, “[a]lthough ...

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