Steele, Terry v. Barnhart, Jo Anne B. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3407
Terry Steele,
Plaintiff-Appellant,
v.
Jo Anne B. Barnhart, Commissioner of Social
Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 5455--Elaine E. Bucklo, Judge.
Argued March 26, 2001--Decided May 21, 2002
Before Flaum, Chief Judge, and Bauer and
Rovner, Circuit Judges.
Rovner, Circuit Judge. Terry Steele, a
former City of Chicago firefighter,
applied for supplemental security income
at the age of forty-five asserting that
he could not work because of debilitating
epileptic seizures and low back pain. An
administrative law judge found Steele not
disabled and denied benefits, and the
Social Security Administration’s appeals
council declined review. Steele then
commenced this action in the district
court, which upheld the agency’s
decision, and Steele now appeals.
Although our review of the Commissioner’s
decision is deferential, we hold that a
remand is necessary because the ALJ
misconstrued the medical evidence of
Steele’s epilepsy, inadequately explained
why she discredited Steele’s own
testimony, and relied on incomplete
vocational testimony.
Steele’s documented medical problems
began with a back injury and assumed
larger proportions when Steele was later
diagnosed with epilepsy and depression.
Steele’s first reported back problems
occurred after a fall in 1991 that caused
him to miss six months of work. Steele
further aggravated his back in 1993, and
pain and difficulty walking again forced
him to miss work. Dr. Nasim Rana, an
orthopedist who examined Steele in
January 1994, observed decreased range of
motion in Steele’s lower back and also
determined from x-rays that Steele had
degenerative disk disease. Two months
later, Steele was fighting a fire when he
passed out from smoke inhalation, fell
down a flight of stairs, and struck his
head. After the fall Steele suffered an
acute lumbar sprain along with chronic
low back pain. Soon after, Steele also
began to experience what his doctors
described as "absences"--periods of
incoherence marked by lapses in
consciousness and occasional
hallucinations-- which Dr. Steven Brint,
a neurologist, thought might be related
to the fall.
The absences were diagnosed as epileptic
seizures, and electroencephalograms
(EEGs) performed in May confirmed that
diagnosis by documenting "ictal rhythms"
(electrical patterns in the brain that
occur during a seizure). To treat the
seizures, doctors prescribed
anticonvulsant medication. Since placing
Steele on the medication, Dr. Brint
reported in November that the "spells
have stopped and he feels much better."
An EEG administered in November also
revealed no evidence of clear ictal
patterns, but the EEG did reflect a
"slight neurophysiological disturbance"
in the temporal areas of Steele’s brain.
After Dr. Brint examined Steele in April
1995, he stated in an epilepsy report
that the seizures appeared "well
controlled" on anticonvulsant medication.
But in the same report, Dr. Brint notably
went on to observe that Steele continued
to have several seizures a month, despite
taking the medication as prescribed.
By January 19, 1996, when Steele applied
for benefits, the frequency of his
seizures allegedly had increased. During
an assessment of Steele’s physical
capacity to work conducted that April,
for example, Dr. Julius Villaflor
reported that Steele complained of
"frequent" seizures and suggested that
they might be better controlled if Steele
followed up with his treating physician.
According to Dr. Villaflor, Steele could
lift up to sixty pounds and sit or stand
(with breaks) for between six and eight
hours a day, but his seizures prevented
him from operating machinery, driving
motorized vehicles, or working at
heights. Dr. Rochelle Hawkins, a
specialist in internal medicine, also ex
amined Steele about two months later and
prepared a report for the Illinois
Department of Public Aid. According to
Dr. Hawkins, Steele complained of daily
seizures, though Dr. Hawkins also wrote
that Steele "admits he is not compliant
with medication or follow up."
After his epilepsy diagnosis, Steele
became depressed and began attending
individual psychotherapy sessions.
Inconnection with his application for
benefits, Steele underwent psychiatric
and psychological evaluations, and both
concluded that he had "depressive
neurosis." According to Dr. J. Chen’s
psychiatric evaluation, Steele’s
depression would spoil his appetite,
trigger insomnia, agitate him, and lead
him to isolate himself. Although Steele’s
depression was not impairing, Dr. Thomas
Low’s psychological report further
concluded that depression restricted
Steele’s daily activities and social
functioning and also affected Steele’s
ability to timely complete tasks by
interfering with his concentration,
persistence, and pace.
At a hearing in August 1997, the ALJ
received Steele’s medical records (many
of which we have not discussed because
they are either duplicative or
inconsequential) and heard testimony from
Steele. He testified that he suffered
from depression, had difficulty walking,
and had trouble lifting heavy objects
because of his back. Steele also
testified that despite taking his
medication, he continued to have
seizures, typically twice a day and
lasting five seconds. Steele added that
two months earlier he had suffered a
five-minute blackout, during which he
fell and injured his hand. As recently as
the morning of the hearing, Steele
continued, he experienced a seizure that
lasted five or more seconds.
The ALJ also arranged for a psychiatrist
and a vocational expert to testify at the
hearing. Based on Dr. Chen’s evaluation,
the psychiatrist opined that he did not
think Steele’s depression was impairing,
and beyond that he lacked the expertise
to evaluate Steele’s neurological
condition. The vocational expert
concluded that a hypothetical person of
Steele’s age and vocational background--
who could not operate equipment or work
at heights and who required a daily
fifteen-minute break (at an unspecified
time) to recover from a seizure--could
still work light and sedentary jobs as a
security guard, cashier, interviewer, or
housekeeper. But when asked to assume all
of the functional limitations reported by
Steele, the vocational expert could not
suggest any available jobs.
The ALJ issued a decision denying
Steele’s application for benefits. In her
decision the ALJ concluded that Steele’s
May EEG was "generally unremarkable,"
that his November EEG was "unremarkable,"
that Steele’s seizures were controlled by
medication, and that the seizures
occurred only when Steele failed to
follow prescribed treatment. The ALJ also
determined that despite Steele’s back
problems, seizures, and depression, he
did not have a conclusively disabling
impairment and he retained the capacity
for light work. After finding Steele’s
own testimony not credible to the extent
it suggested he could not perform light
work, the ALJ determined from the
vocational expert’s testimony that Steele
could hold 15,000 jobs as a security
guard and 2,000 jobs as a housekeeper.
Engaging in the familiar five-step
analysis used to evaluate disability
claims, 20 C.F.R. sec. 416.920, the ALJ
concluded that Steele (1) did not have a
job, (2) had a severe impairment, (3) did
not have an impairment or combination of
impairments listed in the agency’s
regulations, (4) could not return to his
job as a firefighter, (5) but could work
a significant number of jobs as either a
security guard or a housekeeper. Steele
then appealed to the agency’s appeals
council and submittedanother EEG taken in
September 1998 that suggested ictal
rhythms. But Steele’s request for review
was denied, making the ALJ’s decision the
final decision of the Commissioner. 20
C.F.R. sec. 416.1481.
We will uphold the Commissioner’s
decision if it is supported by
substantial evidence and is free of legal
error. 42 U.S.C. sec. 405(g). Although
this standard is generous, it is not
entirely uncritical, Clifford v. Apfel,
227 F.3d 863, 869 (7th Cir. 2000), and
where the Commissioner’s decision lacks
evidentiary support or is so poorly
articulated as to prevent meaningful
review, the case must be remanded. On
appeal Steele advances three principal
contentions: (1) the ALJ’s findings at
step three of the sequential evaluation
process do not command the support of
substantial evidence; (2) the ALJ
insufficiently explained why she
discredited Steele’s own testimony; and
(3) the ALJ’s findings at step five of
the sequential evaluation process were
based on incomplete vocational testimony.
We consider these arguments in turn.
At step three the ALJ needed to
determine whether Steele was conclusively
disabled based on one of the agency’s
listed impairments. One relevant
provision is listing 11.03, which deals
with "minor motor seizures." It provides
for a disability finding where the
applicant has documented seizures
"occurring more frequently than once
weekly in spite of at least 3 months of
prescribed treatment." 20 C.F.R. Pt. 404,
Subpt. P, App. 1, sec. 11.03; see Lewis
v. Apfel, 236 F.3d 503, 512-13 & n.10
(9th Cir. 2001); Brown v. Apfel, 174 F.3d
59, 64 (2d Cir. 1999); Flanery v. Chater,
112 F.3d 346, 349 (8th Cir. 1997); Brown
v. Bowen, 845 F.2d 1211, 1214 (3d Cir.
1988). Although Steele’s medical records
plainly documented his history of
seizures, the ALJ altogether failed to
discuss, or even cite, listing 11.03. In
at least two circuits, omitting a key
listed impairment like listing 11.03--
coupled with the otherwise perfunctory
analysis provided by the ALJ at step
three--alone would require a remand. See
Burnett v. Commissioner, 220 F.3d 112,
119-20 (3d Cir. 2000); Clifton v. Chater,
79 F.3d 1007, 1009 (10th Cir. 1996). The
Eighth Circuit, on the other hand, has
concluded that a cursory discussion at
step three is not automatically fatal.
See Senne v. Apfel, 198 F.3d 1065, 1067
(8th Cir. 1999). But we need not explore
the possible tension in these cases, for
the ALJ’s decision could not stand even
if she cited the correct rule.
The chief problem lies in the ALJ’s
mischaracterization of the medical
evidence of Steele’s epilepsy. The ALJ’s
determinations that Steele’s May 1994 EEG
was "generally unremarkable" and that his
November EEG was "unremarkable," for
example, are untenable on the current
record. There are in fact two EEG reports
from May. One demonstrates twenty
episodes of ictal rhythms during an over
night EEG, and the other shows a one-
minute episode during a regular EEG. The
ALJ did not specify which report she was
referring to, but even the Commissioner
admits in her appellate brief that a
report demonstrating seizure episodes
"should be regarded as remarkable."
Likewise, although the November report
does not show any ictal patterns, it does
show a "slight neurophysiological
disturbance" in Steele’s brain. Nothing
in the ALJ’s decision or the medical
records explains the insignificance of
this disturbance, and without further
explanation, we are left to wonder how a
report documenting a neurophysiological
disturbance, however "slight," could be
characterized as "unremarkable."
The ALJ also depreciated the medical
evidence of Steele’s epilepsy by
concluding that his seizures were
controlled by medication. According to
Social Security Ruling 87-6, advances in
clinical approaches to epilepsy have
rendered most epileptic seizures
controllable through drug therapy.
Consequently, before granting an
application for benefits under listing
11.03, the ALJ must have current evidence
showing a therapeutic level of medication
in the applicant’s blood. Lewis, 236 F.3d
at 513; SSR 87-6. Here the ALJ did not
receive evidence of the level of
medication in Steele’s blood--even though
the partly adversarial, partly inquisito
rial, procedure for adjudicating social
security claims requires the ALJ to order
additional tests if necessary to render
an informed disability determination. See
Smith v. Apfel, 231 F.3d 433, 437-38 (7th
Cir. 2000); SSR 87-6 (requiring ALJs to
solicit further evidence upon a treating
physician’s ambiguous report of ongoing
seizures); see also Green v. Apfel, 204
F.3d 780, 781 (7th Cir. 2000) (requiring
the ALJ to summon a medical expert to
interpret clinical records).
Instead the ALJ concluded that Dr.
Brint’s epilepsy report establishes that
Steele’s seizures were controlled by
anticonvulsant medication and that Dr.
Hawkins’s report for the Illinois
Department of Public Aid demonstrates
that Steele’s seizures were uncontrolled
only because he failed to follow
prescribed treatment. But neither report
supports the inference drawn by the ALJ.
Dr. Brint’s report, for instance, is at
best ambiguous: It observes that by April
1995 Steele’s seizures were both "well
controlled" by anticonvulsant medication
and persisting at a rate of "several/
month." And Dr. Hawkins’s report relays
merely that Steele "admits he is not
compliant with medication." It fails to
address the effect of Steele’s alleged
noncompliance, if any, on the frequency
of his seizures. The cases recognize that
evidence of noncompliance by itself
proves nothing under listing 11.03; what
matters instead is whether the record
contains evidence of a causal link
between the noncompliance and the ongoing
seizure episodes. See Brown, 174 F.3d at
63; Lucas v. Sullivan, 918 F.2d 1567,
1572 (11th Cir. 1990). To answer this
question, the ALJ must have some reason
to think that the applicant’s seizures
would not continue at their current rate
were the prescribed treatment followed.
The Commissioner insists that "the
record as a whole" fills the gaps in the
ALJ’s analysis left by the reports of Dr.
Brint and Dr. Hawkins. But regardless
whether there is enough evidence in the
record to support the ALJ’s decision,
principles of administrative law require
the ALJ to rationally articulate the
grounds for her decision and confine our
review to the reasons supplied by the
ALJ. See SEC v. Chenery Corp., 318 U.S.
80, 93-95 (1943); Johnson v. Apfel, 189
F.3d 561, 564 (7th Cir. 1999); Sarchet v.
Chater, 78 F.3d 305, 307 (7th Cir. 1996).
That is why the ALJ (not the
Commissioner’s lawyers) must "build
anaccurate and logical bridge from the
evidence to her conclusion." Dixon v.
Massanari, 270 F.3d 1171, 1176 (7th Cir.
2001). Here the ALJ referred to no
evidence other than the reports of Dr.
Brint and Dr. Hawkins to support her view
that medication controlled Steele’s
seizures and that Steele’s noncompliance
with treatment caused his seizures to
become uncontrolled. Because these
reports do not provide a rational basis
for the ALJ’s conclusion, the ALJ’s
decision at step three cannot be upheld.
Along with the ALJ’s tenuous discussion
of the medical evidence, we also agree
with Steele that the ALJ provided
insufficient reasons for discounting his
own testimony-- including his assertions
of depression, difficulty walking, daily
seizures, and trouble lifting heavy
objects because of his bad back.
According to Social Security Ruling 96-
7p, which applies to the ALJ’s evaluation
of an applicant’s description of
symptoms, the evaluation must contain
"specific reasons" for a credibility
finding; the ALJ may not simply "recite
the factors that are described in the
regulations." SSR 96-7p. Without an
adequate explanation, neither the
applicant nor subsequent reviewers will
have a fair sense of how the applicant’s
testimony is weighed. Zurawski v. Halter,
245 F.3d 881, 887 (7th Cir. 2001); Briggs
v. Massanari, 248 F.3d 1235, 1239 (10th
Cir. 2001); Schaudeck v. Commissioner,
181 F.3d 429, 433 (3d Cir. 1999); SSR 96-
7p.
The ALJ dismissed Steele’s description
of his limitations in a single sentence.
The assessment reads in its entirety:
"The claimant’s subjective complaints and
alleged limitations were considered under
the criteria of Social Security Ruling
96-7p and found credible only to the
extent of precluding the claimant from
performing work in excess of light
level." This statement does not suggest
how Steele could still perform light and
sedentary work despite his reported
problems with depression, walking and
lifting, and seizures--which when
considered cumulatively left the
vocational expert unable to identify any
jobs for Steele to perform. And the ALJ’s
evaluation does not seek to apply the
factors for evaluating symptoms set forth
in Social Security Ruling 96-7p, such as
the degree to which Steele’s stated
limitations were consistent with the
medical evidence or the ALJ’s own
observations. See Zurawski, 245 F.3d at
887-88; Schaudeck, 181 F.3d at 433.
Invoking a legal rule does not substitute
for complying with the requirements of
that rule, and here the ALJ’s evaluation
of Steele’s credibility does no more than
cite ruling 96-7p without supplying any
of the details demanded by that
provision.
Moreover, Steele is also correct that
the ALJ appears to have elicited
incomplete testimony from the vocational
expert. In her hypothetical questions to
the vocational expert, the ALJ included
many of Steele’s impairments. But she
addressed neither how Steele’s depression
restricted his daily activities and
social functioning, nor how depression
affected his ability to timely complete
tasks by interfering with his
concentration, persistence, and pace.
Hypothetical questions posed to
vocational experts ordinarily must
include all limitations supported by
medical evidence in the record. Cass v.
Shalala, 8 F.3d 552, 555-56 (7th Cir.
1993); Gilbert v. Apfel, 175 F.3d 602,
604 (8th Cir. 1999); Winfrey v. Chater,
92 F.3d 1017, 1024 n.5 (10th Cir. 1996).
The reason for the rule is to ensure that
the vocational expert does not refer to
jobs that the applicant cannot work
because the expert did not know the full
range of the applicant’s limitations. An
exception therefore exists for cases in
which the vocational expert independently
learned of the limitations (through other
questioning at the hearing or outside
review of the medical records, for
example) and presumably accounted for
them. See Ragsdale v. Shalala, 53 F.3d
816, 818-21 (7th Cir. 1995).
Yet nothing in the record reflects that
the vocational expert independently knew
of all the limitations related to
Steele’s depression that were omitted by
the ALJ. True, the vocational expert
testified at length about how bouts of
hostility brought on by Steele’s
depression might affect his vocational
profile. And it is also true that the
jobs identified for Steele to work (such
as housekeeper and security guard) might
not demand levels of sociability or
concentration beyond his capabilities.
See Donahue v. Barnhart, 279 F.3d 441,
444 (7th Cir. 2002). So our misgivings
about this problem are not acute. But
given the other difficulties in the case,
we mention the ALJ’s incompletely formed
hypothetical questions as well.
The judgment of the district court is
Vacated, and the case is Remanded to the
district court with instructions to
remand the case to the Commissioner for
further proceedings consistent with this
opinion.