Hardesty v. Commissioner of Social Security

Filing 31

OPINION AND ORDER: The decision of the Administrative Law Judge is REVERSED and this matter is REMANDED for further consideration consistent with this Opinion and Order. Clerk DIRECTED to enter judgment in favor of Plaintiff William Hardesty Jr and against Defendant Commissioner of Social Security. Signed by Judge Philip P Simon on 3/29/17. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
WILLIAM HARDESTY, JR.,
Plaintiff,
v.
NANCY BERRYHILL,1 Acting
Commissioner of the Social Security
Administration,
Defendant.

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Cause No. 1:15-cv-283

OPINION AND ORDER
William Hardesty, Jr., has a history of lower back problems, bipolar depression,
anxiety, and severe headaches. In the fall of 2012, he applied for disability insurance
benefits and supplemental security income, alleging he became disabled on March 28,
2012 when he re-injured his back at work. (A.R. at 204–217.2) His application was denied
initially and on reconsideration by an Administrative Law Judge who found him
capable of sedentary work and therefore not disabled. (Id. at 11, 16, 27.) Hardesty
argues that the ALJ made a host of errors, but I will focus on just one of them— his
claim that the ALJ erred by failing to consider whether and/or articulate why
Hardesty’s back problems alone or together with other impairments did not meet or
equal Listing 1.04(A). Because I agree that the ALJ erred, this case will be remanded.
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Federal Rule of Civil Procedure 25(d) provides for the automatic
substitution of Nancy Berryhill for her predecessor, Carolyn Colvin.
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I will cite to the administrative record, which appears at docket entry 12,
by reference to the Social Security Administration’s Bates stamp number.

Background
At the time of his hearing before the ALJ on February 10, 2014, Hardesty was
thirty-one years old and lived with his wife and three sons in a one-story home in
Fremont, Indiana. (Id. at 38.) He had stopped working in mid-2012 due to back pain and
was supported by his wife. (Id. at 38–39, 41.) Prior to that, he had been regularly
employed for fifteen years, most recently at the Potawatomi Inn in Pokagon State Park
doing banquet set up. (Id. at 41–45, 61, 228.)
But Hardesty’s back problems started long before he stopped working in 2012.
His medical records suggest he sought treatment for back pain as early as 2004, when
he was 23 years old. (See, e.g., id. at 400–1, 470–71.) In 2011, Hardesty severely herniated
the disc at L5–S1. (Id. at 360, 403, 558.) After that injury, he tried physical therapy, spinal
injections, and pain relievers, but they failed to provide sufficient relief from the pain he
was experiencing and so, on October 12, 2011, he underwent surgery to remove the disc.
(See id. at 42, 349, 360, 403, 558.)
He returned to work in late 2011 or early 2012, but just a few months later he
injured his back again, this time while moving a heavy ping-pong table at work. (Id. at
219, 333, 363.) An MRI taken shortly thereafter showed “severe degenerative changes at
L4–5 and L5–S1 with recurrent disc herniation and L5–S1 and displacement of the S1
nerve root.” (Id. at 494.) Hardesty again first sought out conservative treatments,
including physical therapy, spinal injections, and pain medication, but ultimately he
decided to undergo a second back surgery because of the pain. (Id. at 333, 380, 438, 4932

494, 578–79.) The second surgery was conducted in June 2013, during which Hardesty’s
surgeon removed a “large recurrent disc fragment at L5–S1” and fused the vertebrae in
spinal segment L4–sacrum. (Id. at 578.)
Unfortunately, the June 2013 surgery did not resolve Hardesty’s back problems.
An x-ray of his lumbar spine taken about a month after the second surgery showed
degeneration at the sacroiliac joints and hips and some spondylosis at L3–L4. (Id. at
486.) His treating physicians noted lumbosacral paraspinal muscle spasms and positive
straight-leg raising tests on both sides in both November and December 2013 and
continued to prescribe him powerful muscle relaxers and nerve medications. (Id. at
504–7; see also id. at 46.) And, at his hearing before the ALJ, Hardesty testified that even
after the second surgery, he continued to have significant pain that was difficult to
mitigate, had trouble standing, walking, and getting out of bed, and found it painful to
sit for more than 20 or 30 minutes in one position. (Id. at 46–49, 59.) He also reported
that he always needed a cane to stand and walk and that he had four or five bad days a
month (for example, after driving too much), on which he could not get out of bed or
get dressed without help. (Id. at 48, 54–56; see also id. at 61–62.)
Hardesty applied for disability insurance benefits and supplemental security
income on September 24, 2012, alleging an onset date of March 28, 2012, when he
injured his back the second time. (Id. at 11.) The ALJ held a hearing and concluded that
Hardesty was not disabled. (Id. at 11–32.) Most relevant to this appeal, the ALJ found at
Step Two that Hardesty suffered from two severe impairments, headaches and
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degenerative disc disease of the lumbar spine with history of left leg injury and left leg
radicular pain, and she found at Step Three that he had no impairment or combination
of impairments that meets or equals the severity of one of the listed impairments in
20 C.F.R. § 404, Subpart. P, Appendix 1. (Id. at 13–14.)
Discussion
An ALJ’s decision should be affirmed so long as the ALJ applied the correct legal
standard and substantial evidence supports the decision. Barnett v. Barnhart, 381 F.3d
664, 668 (7th Cir. 2004). Substantial evidence means “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Nelms v. Astrue,
553 F.3d 1093, 1097 (7th Cir. 2009) (internal quotation marks and citations omitted).
A claimant is presumptively disabled and eligible for benefits if he has an
impairment or a combination of impairments that meets or equals the severity of a
Listed Impairment. See 20 C.F.R. § 404.1520(d); 20 C.F.R. § 404.1523(c); Browning v.
Colvin, 766 F.3d 702, 706 (7th Cir. 2014); Golembiewski v Barnhart, 322 F.3d 912, 918 (7th
Cir. 2003) (requiring the ALJ to consider the aggregate effect of severe and non-severe
ailments). “In considering whether a claimants’ condition meets or equals a listed
impairment, an ALJ must discuss the listing by name and offer more than a perfunctory
analysis of the listing.” Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015) (internal
quotation marks and citation omitted).
Hardesty argues that the ALJ erred at Step Three by failing to address (or even
mention) Listing 1.04(A). Instead, the ALJ referred to the musculoskeletal impairments
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in Listing 1.00 only generally, and her analysis in that regard was meager. Here’s what
the ALJ said in total:
The medical evidence related to the claimant’s back and lower
extremity complaints does not support a finding that he is
unable to ambulate effectively . . . or unable to perform
fine/gross movements effectively[.] In addition, the evidence
is unsupportive of the medical criteria contemplated within
Listing 1.00 (musculoskeletal) for any of the listed conditions.
(A.R. at 14.)
The ALJ’s curt treatment of the 1.00 Listings may or may not have been adequate
to explain why Hardesty’s condition does not meet any impairment that requires an
inability to ambulate effectively or to perform fine/gross movements effectively (e.g.,
Listing 1.04(C)). But that’s neither here nor there because the ALJ’s two sentence
analysis provides no insight into why Hardesty’s condition doesn’t meet or equal
Listing 1.04(A), which has altogether different requirements. Here’s the Listing:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis, vertebral fracture),
resulting in comprise of a nerve root (including the cauda
equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and,
if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine)[.]
See 20 C.F.R. § 404(P), App. 1, ¶ 1.04 (A). Without any discussion of the medical
evidence in the context of this listing, I have “grave reservations as to whether [the
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ALJ’s] factual assessment addressed adequately the criteria of the listing[,]” and I am
left without the necessary means to review the ALJ’s conclusion. Scott v. Barnhart,
297 F.3d 589, 596 (7th Cir. 2002) (internal citations omitted); accord Brindisi ex rel Brindisi
v. Barnhart, 315 F.3d 783, 787 (7th Cir. 2003).
The Commissioner counters that the ALJ wasn’t required to say anything about
Listing 1.04 because reviewing physicians hired by the agency “determined that
Plaintiff’s primary impairment, ‘Disorders of the Back-Discogenic and Degenerative,’
did not meet any listed impairment” and their signatures “confirm that they also
considered medical equivalence.” (DE 29 at 3-4.) Frankly, I don’t know why the
Commissioner believes that to be the case. The Disability Determination Explanation
that Dr. Sands completed at the time of initial review state that he considered two
listings: Listing 12.06 (Anxiety Disorders) and Listing 1.02 (Dysfunction-Major Joints).
(A.R. at 90.) Like the ALJ’s opinion, Dr. Sands’ explanation never mentions Listing 1.04
or analyzes whether Hardesty’s back condition meets or equals it. (See generally id. at 8593.) The same is true of the Disability Determination Explanation that Dr. Ruiz
completed upon reconsideration—it never mentions Listing 1.04, and it does not
analyze or explain why Hardesty’s back condition doesn’t meet or equal the severity of
that Listing. (Id. at 110.)
Nor do the cases cited by the Commissioner counsel in favor of affirming the
ALJ’s decision despite the oversight. In Filus v. Astrue, 694 F.3d 863, 867 (7th Cir. 2012),
the Seventh Circuit affirmed the ALJ’s opinion that the claimant’s impairments didn’t
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meet or equal Listing 1.04, based upon the opinions of two agency-hired reviewing
physicians. Id. at 867. But, there, the ALJ’s opinion “specifically contemplated Listing
1.04‘ and “observed that the evidence did not satisfy the Listing’s criteria.” Filus v.
Astrue, No. 1:11-cv-106, 2011 WL 6826394, at *8 (N.D. Ind. Dec. 28, 2011). Further, there
was no “evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal
stenosis with accompanying ineffective ambulation.” Id. Here, the opposite is true. The
ALJ’s opinion does not contemplate Listing 1.04, and there is evidence that Hardesty’s
back condition has some of the characteristics set out in Listing 1.04(A).
The other cases cited by the Commissioner are similarly inapposite. In Scheck v.
Barnhart, 357 F.3d 697 (7th Cir. 2004), the Seventh Circuit affirmed an ALJ’s opinion
finding the claimant’s impairments did not meet or equal any of the listings because
“there was no evidence which would support the position that [the claimant] met or
equaled the listing.” 357 F.3d at 701 (emphasis in original); see also id. at 702 (noting a
“dearth of documentary medical evidence” from the claimant’s alleged onset date to his
last insured date). Likewise, in Knox v. Astrue, 327 Fed. App’x 652 (7th Cir. 2009), the
Seventh Circuit affirmed an ALJ’s decision, even though the ALJ did not identify any
specific listing or explain why the claimant’s back condition didn’t equal a listing,
because the claimant “did not present any medical evidence supporting the position that
his impairments meet or equaled a particular listing.” 327 Fed. App’x at 655 (emphasis
added) (citation omitted).
Here, as I mentioned, there is evidence that Hardesty’s back condition had many
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of the characteristics set out in Listing 1.04(A). That evidence includes medical records
documenting the following, all after the alleged date of onset: (1) nerve root
displacement or compression (see, e.g., A.R. at 463 (noting MRI “[f]indings consistent
with a small disc fragment on the left at L5-S1 . . . surrounded by enhancing scar tissue
and . . . causing displacement of the left S1 root”); id. at 493–94 (noting “displacement of
the S1 root,” as well as “severe degenerative changes” and “recurrent disc herniation”);
(2) spinal blocks and epidural injections for pain (see, e.g., id. at 327, 406–7); (3) restricted
range of motion (see, e.g., id. at 333–34, 382, 438, 493–94); (4) positive straight-leg raise
tests on one or both sides or positive root tension signs (see, e.g., id. at 333–34, 493–94,
504–5, 506–7, 510–11, 512); (5) decreased strength (see, e.g., id. at 333–34); (6) reflex loss
(see, e.g., id. at 494); (7) hypesthesia (sensory loss) (see, e.g., id.); and (8) lumbosacral
paraspinal muscle spasms (see, e.g., id. at 504–5, 506–7, 510–11, 512).
This evidence may not have satisfied all the requirements of Listing 1.04(A), but
it should have prompted the ALJ to consider whether it equaled the Listing, particularly
since Hardesty’s attorney argued that it did at the hearing (See id. at 37; see also 20 C.F.R.
§ 404.1526.) The ALJ failed to do that, and so a remand is necessary to permit her to
further assess the evidence and develop the record. The ALJ may yet again find that
Hardesty’s lower back problems, alone or in combination with other impairments, do
not meet or equal Listing 1.04(A), or do not meet or equal the listing for the entire
period since the alleged date of onset, but, if that’s the case, then she must say so and
explain why. Because remand is already required, I will not address Hardesty’s
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remaining arguments, but the ALJ should consider and address them as appropriate.
Conclusion
For the reasons stated above, the decision of the ALJ is REVERSED, and this
matter is REMANDED for further consideration consistent with this opinion. The Clerk
of Court is DIRECTED to enter judgment in favor of the plaintiff and against the
defendant.
SO ORDERED.
ENTERED: March 29, 2017.
s/ Philip P. Simon
JUDGE, UNITED STATES DISTRICT COURT

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