Horner v. Berryhill
Filing
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MEMORANDUM Opinion and Order: Signed by the Honorable M. David Weisman on 8/16/2018. Mailed notice (ao,)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KATHLEEN HORNER,
Plaintiff,
v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations,
performing the duties and functions
not reserved to the Commissioner of
Social Security,
Defendant.
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No. 17 C 7586
Magistrate Judge M. David Weisman
MEMORANDUM OPINION AND ORDER
Kathleen Horner brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of
the Social Security Administration’s (“SSA’s”) decision denying her application for benefits. For
the reasons set forth below, the Court reverses the SSA’s decision.
Background
Plaintiff applied for benefits on June 9, 2014, alleging a disability onset date of October 2,
2013. (R. 76-78.) Her application was denied initially, on reconsideration, and after a hearing by
an Administrative Law Judge (“ALJ”) in a decision dated December 21, 2016. (R. 13-25.) The
Appeals Council declined to review the decision (R. 1-3), leaving the ALJ’s decision as the final
decision of the SSA, reviewable by this Court pursuant to 42 U.S.C. § 405(g). See Villano v.
Astrue, 556 F.3d 558, 561-62 (7th Cir. 2009).
Discussion
The Court reviews the ALJ’s decision deferentially, affirming if it is supported by
“substantial evidence in the record,” i.e., “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” White v. Sullivan, 965 F.2d 133, 136 (7th Cir. 1992)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although this standard is generous,
it is not entirely uncritical,” and the case must be remanded if the “decision lacks evidentiary
support.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
Under the Social Security Act, disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The regulations
prescribe a five-part sequential test for determining whether a claimant is disabled. See 20 C.F.R.
§ 404.1520. The SSA must consider whether: (1) the claimant has performed any substantial
gainful activity during the period for which she claims disability; (2) the claimant has a severe
impairment or combination of impairments; (3) the claimant’s impairment meets or equals any
listed impairment; (4) the claimant retains the residual functional capacity to perform her past
relevant work; and (5) the claimant is able to perform any other work existing in significant
numbers in the national economy. Id.; see Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Zurawski, 245 F.3d at 886; 20
C.F.R. § 404.1560(c)(2). If that burden is met, at step five, the burden shifts to the SSA to establish
that the claimant is capable of performing work existing in significant numbers in the national
economy. 20 C.F.R. § 404.1560(c)(2).
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At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since the alleged onset date. (R. 15.) At step two, the ALJ determined that plaintiff has the severe
impairments of “cervical degenerative disc disease and facet joint arthritis on the right side, lumbar
degenerative disc disease, migraines, obesity, depression, and anxiety.” (Id.) At step three, the
ALJ found that plaintiff does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments. (Id.) At step four, the ALJ found
that plaintiff is unable to perform any past relevant work but, from October 2, 2013 to May 20,
2015, she had the residual functional capacity (“RFC”) to perform light work with certain
exceptions, and beginning May 20, 2015, she had the RFC to perform sedentary work with certain
exceptions. (R. 18-19, 24.) At step five, the ALJ found that a significant number of jobs exist in
the national economy that plaintiff can perform, and thus she is not disabled. (R. 24-25.)
Plaintiff argues that the ALJ inadequately addressed listing 11.02, the listing applicable to
migraine headaches.1 The Court agrees. With respect to the listing the ALJ said: “I also
considered Listing 11.02, but the claimant has not presented the requisite evidence to comport with
the detailed description of the severity and frequency of episodes described by the Listing.” (R.
16.) This statement is even less illuminating than the one condemned by the Seventh Circuit in
Minnick v. Colvin, 775 F.3d 929, (7th Cir. 2015):
In determining Minnick’s degenerative disc disease did not meet or equal Listing
1.04, the ALJ stated:
The claimant’s degenerative disc disease was evaluated under
Listing 1.04 (disorders of the spine). The evidence does not establish
the presence of nerve root compression, spinal arachnoiditis, or
spinal stenosis resulting in pseudoclaudication, as required by that
listing.
1
There is no listing for migraines, so the SSA “routinely considers [this] impairment[] under the criteria for the
Listing [for epilepsy],” which is now 11.02. Cooper v. Berryhill, 244 F. Supp. 3d 824, 828 (S.D. Ind. 2017).
“A claimant may therefore demonstrate equivalence to Listing [11.02] by showing that his migraines cause
functional impairments equivalent to those described in the Listing.” Id. at 828-29.
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This is the very type of perfunctory analysis we have repeatedly found inadequate
to dismiss an impairment as not meeting or equaling a Listing. See Kastner v.
Astrue, 697 F.3d 642, 647-48 (7th Cir. 2012) (remanding where the ALJ’s cursory
Listing analysis failed to articulate rationale for denying benefits when record
supported finding in claimant’s favor); Barnett [v. Barnhart], 381 F.3d [664] at 670
[7th Cir. 2004] (concluding the ALJ’s “two-sentence consideration of the Listing
of Impairments [was] inadequate and warrant[ed] remand.”); Brindisi v. Barnhart,
315 F.3d 783, 786 (7th Cir.2003) (reversing because ALJ's Listing analysis was
“devoid of any analysis that would enable meaningful judicial review.”). The ALJ
dismissed the possibility of Minnick’s degenerative disc disease meeting or equally
Listing 1.04’s criteria in two sentences. Beyond these two sentences, she provided
no analysis whatsoever supporting her conclusion.
Id. at 935-36.
The SSA contends that the ALJ cured any error in the listing analysis by discussing the
evidence relating to plaintiff’s headaches later in the decision. (See Def.’s Mem. Supp. Mot.
Summ. J., ECF 25 at 8 (citing R. 20-21).) Nowhere in that discussion, however, does the ALJ
even identify the requirements of the listing, let alone explain why plaintiff does not meet them.
(R. 20-21.) That leaves the ALJ’s single-sentence “analysis” of listing 11.02, which as in Minnick,
is insufficient to sustain the ALJ’s conclusion that plaintiff does not equal the listing. Therefore,
this case must be remanded.2
2
Plaintiff also argues that the Appeals Council’s failure to consider new and material medical records warrants a
remand. Plaintiff submitted these purportedly new and material records with her brief but they are not contained in
the administrative record, and there is no evidence that she ever submitted them to the Appeals Council, the ALJ, or
anyone else at the SSA. The SSA cannot be faulted for failing to consider evidence that was not presented to it.
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Conclusion
For the reasons set forth above, the Court denies the SSA’s motion for summary judgment
[24], reverses the SSA’s decision, and remands this case for further proceedings consistent with
this Memorandum Opinion and Order.
SO ORDERED.
ENTERED: August 16, 2018
M. David Weisman
United States Magistrate Judge
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