United States District Court, E.D. Wisconsin
ANDREW D. MALKASIAN, Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
DECISION AND ORDER
JOSEPH UNITED STATES MAGISTRATE JUDGE.
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.
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.)
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.)
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.
Applicable Legal Standards
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).
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)).
Application to this Case
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
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.
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 ...