United States District Court, N.D. Illinois, Western Division
Nicholle L. Grisanzio Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
D. Johnston Magistrate Judge
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
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.
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.
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.
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.
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.
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.
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). 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
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
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.
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.
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