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Steele v. Barnhart

May 21, 2002

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.

Before Flaum, Chief Judge, and Bauer and Rovner, Circuit Judges.

The opinion of the court was delivered by: Rovner, Circuit Judge.

Argued March 26, 2001

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 ...


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