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Grisanzio v. Berryhill

United States District Court, N.D. Illinois, Western Division

December 18, 2017

Nicholle L. Grisanzio Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1]Defendant.


          Iain D. Johnston Magistrate Judge

         Starting when she was a young girl and continuing into her adult life, plaintiff Nicholle Grisanzio has periodically suffered from headaches, balance problems, numbness, and loss of vision. Although a few doctors speculated about the cause of these problems, it was only many years later until plaintiff finally learned that they were likely caused by an uncommon neurological disorder known as Chiari malformation.[2]

         Sometime around early 2010, plaintiff's symptoms worsened. One critical date for purposes of this case is January 16, 2010. This is when plaintiff went the emergency room complaining about a severe headache, nausea, and vision problems. She told doctors then that she was having bad headaches at the frequency of once a month. In 2011 and 2012, plaintiff worked part-time as a school cafeteria worker, making only a couple thousand dollars each year, and eventually had to quit because the job became too taxing with her deteriorating condition. In May 2012, she had the first of three surgeries to address the continuing problems caused by the Chiari malformation. Although these surgeries provided some temporary relief, the symptoms returned and worsened. There is no dispute that, by sometime around January 2013, plaintiff's condition had reached the point where she would qualify as disabled based on, among other things, having headaches at the frequency of once a week. R. 17. However, because plaintiff's claim was based on Title II, she had to prove that she was disabled by the date last insured (“DLI”) of June 30, 2010.

         On October 23, 2014, a hearing was held before an administrative law judge (“ALJ”). The ALJ made clear at the outset that the critical issue was timing-namely, whether plaintiff was disabled by the DLI (i.e. over four years earlier). There were only two witnesses, plaintiff and the impartial medical expert.

         Plaintiff, who was then 39 years old, testified that she currently had trouble getting through the day and had to significantly limit her activities, for example showering only twice a week and then using a shower chair. R. 49. As for her condition in 2010, plaintiff testified that she had episodes where she would have a headache and her body would go numb, like she was “having mini-strokes, ” and that these were once a month and more if it rained. R. 50. She would then have to “go to bed, get to ice, get medical treatment, ” and it would last “up to three days.” R. 51. She also had loss of vision with the headaches.

         Dr. Semerdjian focused his analysis on whether plaintiff's headaches in 2010 were occurring at the frequency of once a week, which he stated was the primary requirement for meeting Listing 11.03. He concluded that they were not, and this conclusion was based largely on the one visit to the emergency room on January 16, 2010 when plaintiff told doctors that her severe headaches were then about once a month. Dr. Semerdjian's testimony emphasized that plaintiff had little treatment in the period leading up to the DLI. He noted, for example, that there was no treatment in 2011 and the record “jumps into 2012.” R. 56. However, he did agree that plaintiff had Chiari malformation as of the DLI and that, as of January 2013, her weekly headaches likely were frequent enough to meet the listing. R. 62.

         On December 15, 2014, the ALJ found that, although plaintiff's Chiari malformation was a medically determinable impairment, it was not severe impairment as of June 30, 2010. Therefore, plaintiff's case failed at Step Two. By deciding the case at this early stage, the ALJ did not go on to conduct a residual functional analysis (“RFC”) at Steps Four and Five. The ALJ's conclusion largely tracked the reasoning of Dr. Semerdjian-namely, she relied heavily on the January 2010 visit to the emergency room and more generally on the lack of treatment. R. 18.


         Plaintiff has two primary arguments for remand. The first is that the ALJ prematurely decided the case at Step Two. The second is that the record was incomplete. The Court finds that a remand is justified based on the first argument.

         This argument is relatively straightforward. At Step Two, the ALJ must determine whether a claimant has one or more severe impairments. Somewhat contrary to the common connotation of the word “severe, ” in Social Security disability litigation at Step 2, the word has a more diluted meaning. As the Seventh Circuit has stated, the inquiry at Step Two is meant to be only “a de minimis screening for groundless claims.” See Meuser v. Colvin, 838 F.3d 905, 910 (7th Cir. 2016); O'Connor-Spinner v. Colvin, 832 F.3d 690, 697 (7th Cir. 2016) (“The Step 2 determination is ‘a de minimis screening for groundless claims' intended to exclude slight abnormalities that only minimally impact a claimant's basic activities.”) (emphasis added).[3] For example, in Meuser, the Seventh Circuit remanded the case because the ALJ, in considering whether schizophrenia was a severe impairment, applied a too-demanding standard at Step 2 by “conflat[ing] Steps 2, 4, and 5.” 838 F.3d at 910.

         The same basic problem exists here. In finding that plaintiff's Chiari malformation was not a severe impairment, the ALJ engaged in the type of extended and critical analysis that is typically done in the later RFC analysis at Steps Four and Five. Here, there was both objective evidence (e.g. MRI scans from 2010), as well as subjective testimony that plaintiff was being affected by her Chiari malformation in ways that were more than de minimis. The ALJ did not dispute that plaintiff's condition in 2010 caused severe headaches at least monthly, ones sometimes requiring her to stay in bed for three days to recover. Insofar as this Court can tell, none of plaintiff's many treating doctors ever questioned the credibility of her self-reports about her problems. Based on this Court's experience in reviewing disability cases, this Court finds that the evidence was sufficient to meet the relatively lax standard of not being a “groundless claim.”

         But there is an additional, more concrete reason why the ALJ's Step Two analysis is insufficient. The ALJ relied on the opinions of both the State agency physician (Dr. Panepinto) and the testifying expert (Dr. Semerdjian) who, according to the ALJ, agreed with her Step Two determination. However, as plaintiff persuasively argues, both assertions are questionable at best. As for Dr. Panepinto's opinion (Ex. 4A), plaintiff argues in her opening brief that this opinion rested on “fundamental factual error”-namely, that plaintiff's treating physician opined that she was able to work in 2010 without restrictions. Dkt. #14 at 10. The Court need not sort through the details regarding this allegation because, to its credit, the Government agrees that the doctor made a mistake. Dkt. #21 at 4. The Government argues that this problem is not significant because Dr. Semerdjian's testimony provides independent support for the ALJ's finding.

         But throwing all the eggs into Dr. Semerdjian's basket is not a solution. His testimony never squarely addressed the Step Two question, but instead leapfrogged to the Step Three question. The doctor's testimony is lengthy, with the typical twists and turns of live testimony, but the Court cannot find any instance where he clearly answered the basic question of whether plaintiff's Chiari malformation was a severe impairment as of June 30, 2010. The question was raised several times, but each time the testimony veered into another direction. See R. 60, 61. The hearing focused instead on the narrow question of whether plaintiff's headaches were frequent enough, in 2010, to meet the listing requirements. However, the ALJ decided the case at Step Two, which meant that the ALJ essentially repackaged Dr. Semerdjian's Step Three testimony back into the Step Two analysis.[4]

         One might argue that this was merely a procedural error and that the analysis at these two steps is roughly the same. But such an argument glosses over the divergent purposes of these steps. Despite their numerical contiguity, these two steps are ...

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