*3 is not able to for qualify benefits under EASTERBROOK, KANNE, Before three, step analysis proceeds steps to ROVNER, Circuit Judges. four and five. The fourth requires an assessment of whether claimant’s re- KANNE, Judge. Circuit
sidual capacity1 functional will allow the Background I. claimant to pursue past her work. 20 416.920(e). 404.1520(e), §§ C.F.R. Where eligible disability To be for insurance the impairment precludes performance benefits under Title II of the Social Securi- work, of past RFC, the claimant’s age, (“Act”), 416(i), 423, §§ Act ty 42 U.S.C. education, experience and work are consid- supplemental security income under ered to determine if other work exists that Act, 1382, 1382c, §§ Title XVI of the a would accommodate the claimant. prove claimant must is unable to she en- 404.1520(f),416.920(f). §§ C.F.R. any in gage gainful activity by substantial medically reason of a physi- determinable Rice was August born on 1945. She cal or mental impairment which can be graduated high from school and is a certi- to expected result in or which death has fied nursing assistant. She has worked lasted or can be to expected last for a past nursing as a assistant and baby- period continuous less than not twelve injuring sitter. After her back while lift- 432(d)(1)(A), §§ months. U.S.C. ing patient a elderly nursing in an facility 1382c(a)(3)(A). The Commissioner disability she received insurance Security uses a Administration five- benefits between when she ' step sequential analysis to ascertain gainful returned to substantial employ- is disabled. See 20 ment at a homeless shelter. a claimant whether 4041620(a)-©, §§ 416.920(a)-©; C.F.R. 29, 1998, On applied October Rice Halter, Zurawski 885-86 disability benefits supple- insurance (7th Cir.2001). one and Steps two are income, mental security claiming she be- first, threshold determinations assess came disabled on October 1998 due to presently a claimant whether is work- back and leg related the result of pain, second, ing, and the complained whether 1985 injury subsequent and a fall. Rice’s impairment(s) required are of the duration applications initially were denied significantly ability limit the claimant’s 18, 1999, reconsideration. On November a §§ 404.1520(a)-(c), work. to C.F.R. hearing was held before an administrative 416.920(a)-(c). three, In step evidence (“ALJ”). judge law demonstrating impairments the claimant’s compared impairments to a list of pre- Testimony A. before preclude sumed severe enough any See gainful work. C.F.R. pt. hearing, At the Rice testified generally P, subpt. (“listing level, App. impair- age, job about her educational histo- ments”). ry, history. impairment Specifically, Where an meets or and medical she equals impairments, one of the previous surgeries listed described two back 404.1545(a). capacity § 1. The residual functional denotes her limitations. 20 C.F.R. do, despite a what claimant can still his or brace, cane, sup- or other does not use that after She indicated and 1988. benefits, from home-fashioned disability port she returned device aside being on - stick, only occasionally in only to day provider, care used work as no de- after the used assistive 1994. One month cold Rice a fall in weather. suffer limp day hearing. fall, pronounced vice due to heavy objects, testified inability lift had been also testified she to continue for her impossible it became past years. by herself for the three living babysitter. was unem- working as a She assist that while children She stated 1997, when until she from 1994 ployed time, occasionally she time to from *4 at a homeless part-time began working daily a load of herself and does cooks for there, in- which employment shelter. Her trip up necessitating one difficult laundry, cleaning, and su- preparation, cluded meal goes flight a stairs. She also and down of clients, in October ended pervision assistance, washes grocery shopping with out,” causing “legs gave 1998 when her of In dishes, garbage. out the takes result, a she to fall on the stairs. As her addition, that she reads she testified testified, resigned. she three four Sun- church services attends specifically about her spoke Rice also month, choir, and at- days sings a testified that the leg pain. back stated that practices. choir She also tends constant, a toothache- of primary source it television, although enjoys watching she occasionally by cold pain, aggravated type through for her to sit an entire difficult However, weather, lower back. that she is able program. testified activities cause described how certain she herself, problems but that she has bathe body. to other of her pain parts to radiate out of bathtub and therefore getting time, of After for a certain amount she also stated that takes showers. She leg go that her will numb. Rice testified put can dress herself and shoes time, standing after for a of period And in- Finally, she problem. socks without experiences pain that Rice indicated she she a driver’s although dicated that has neck, between her shoulder blades license, she had not driven since October pain legs, particularly well as down her neu- upon based recommendation leg, causing numbness right sometimes Wayne Kelly. Dr. D. rologist, Moreover, complained that her toes. she position. must in an sleep upright she B. Evidence submitted to the ALJ of medication and other treat- terms on be- The medical evidence submitted for that for pain, ment Rice indicated However, half it of Rice was extensive. approximately one month she had been taking Tylenol-3 every hours revealed marked differences of six professionals. To health We previously, among she took Darvoset. counter care evidence, for inflammation, taking simplicity pur- had summarize the she been Lodine poses, according treating physician.2 also to the since 1997. She indicated that she Servs., 815, 817 Appeals eventually & 2. Because the Council re- Health Human Shalala, (7th Cir.1993), request fused unfa- cited in review ALJ's Wolfe decision, (7th Cir.1993). Although appro- is not 322 n. 3 vorable note that it part technically a rec- priate for us to which was administrative consider evidence ALJ, ord, to the but the additional evidence submitted not before the which Rice later sub- Council, 366-438), (or (R. Appeals argu- Appeals 10 at cannot any mitted to the Council evidence). finding as a for of revers- ment based such See now be used basis § 405(g); Dep’t Eads U.S.C. v. Sec. ible error. 1. Dr. L. Pohl any David ent and that Rice did not have limita- in her range tions of motion her cervical Dr. that an reported Pohl October spine or her spine. lumbosacral Dr. Patel (“MRI”) resonance magnetic imaging reported that sitting spine postopera- Rice’s lumbar showed more than one-half hour worsened Rice’s the L5 changes tive level. At the L5- pain Rice was “unable to lift.” level, degenerative S1 Dr. Pohl noted Dr. office Patel’s notes also refer to Rice’s tissue, changes but indi- and scar he also complaints constant toothache back cated be may that the abnormalities burning pain and numbness in her result of a recurrent herniated nucleus right leg, for which Dr. referred Rice Patel disk). pulposus (slipped Wayne to Dr. D. Kelly, neurologist. 2. Dr. Donald G. Rumer Wayne Kelly D. 4.Dr.
Dr. February Rumer examined Rice on 4, 1997. He noted that a 1985 accident Kelly, neurologist, treated Rice be- disk, resulted in a herniated which was *5 April in of ginning 1999. His records re- that, chemonucleolysis, treated with veal following diagnoses: results 1998, Rice underwent a bilateral laminec- (cid:127) 23, April 1999 exam revealed bilateral tomy L5 laminectomy with total reflexes, 2+ symmetrical patellar de- neurolysis exploration and of the first and pin prick creased right sensation second sacral roots. made nerve He also leg, positive entire mild weakness in the findings: the following tibial anterior peroneous muscle and lon- (cid:127) Lesegue’s positive sign3 gus, positive paraspinal lumbosacral (cid:127) atrophy calf, possible of the right spasm muscle with stiffness difficul- measuring compared sixteen inches couch, getting straight up ties out of sixteen half and a inches on the left slightly antalgic gait. (cid:127) patellar absent reflexes (cid:127) April electromyogram (cid:127) trace Achilles reflex on left (“EMG”) was consistent with chronic bi- (cid:127) absent Achilles reflex on right polyradiculopathy, lateral L5-S1 with (cid:127) tender posterior spine involvement, evidence of axonal as well diagnosed He Rice with traumatic luinbo- (right) as a mild superimposed right (the dorsal of phase fascitis chronic compression/entrapment peroneal neu- strain) acute aggravation lower back head, ropathy at the fibular evi- postlaminectomy syndrome. mildly dence of slowed nerve conduction velocity across the fibular head. No 3. Dr. D. Patel electro-physiological of an un- evidence Patel, family doctor, Dr. complet- Rice’s sensory/motor derlying polyneuropathy. ed a “Spinal questionnaire Disorders” (cid:127) request paracen- on November left July 1998 MRI showed it, he degenerative compres- noted that Rice had tric disc herniation with L3-4 joint disease, atrophy root, but had no and could left L4 sion of nerve central L5- herniation, walk without assistance. He also indicated left disk at S1 disc herniated compression pres- L3-4, that no nerve root was small central herniated disk at which, extended, indicating 3. This refers to results of a test instead knee lum- positive, hip when eliminates disease of bar root or nerve irritation the cause. joint painful hip as the when cause flexion Bilinsky Dr. further indi- pain. radi- C3-4, with relieve C2-3, and C4-5 cervical climb, balance, spur at C5-6. cated that could and a bone culopathy, crouch, kneel, occasionally, stoop, or crawl (cid:127) August 1999 Rice 1999 and June avoid concentrated Rice should but injections epidural steroid reported that further noted exposure heights. She lot,” pain “a but her back helped reduce unassisted and had a that Rice could walk 2 months. She for about lasted Moreover, range normal motion. difficulty walk- sleeping, reported no that there was twice indicated doctor pain, includ- ing, and because muscle panvertible spasm. evidence She pain. neck declined ing leg and “pain has out that Bilinsky, pointing Dr. injections trial treatment of steroid evaluation,” then considered this been Rice had Kelly Dr. noted that neck. perform that Rice could medi- concluded disks, herniated C2-3 and C3-4 small af- activity. work Dr. James Graham um C5-6; secondary spur at with a bone Bilinsky’s firmed Dr. assessment on De- cerviealgia; L5 lum- radioculopathy with cember chronic radiculopathy, with bar far;
responsive long-run treatment so proceedings Outcome of the C. sleeping and a disorder. February the ALJ issued an On (cid:127) Kelly reported September Spe- opinion denying applications. Rice’s chronic cervical and lumbosa- cifically, the ALJ found that one radiculopathies cral had been “recalci- had employed not been satisfied as treatment so far” and also indi- trant to *6 disability. alleged the of since onset disorder, sleeping that Rice cated had Second, implicitly ALJ found that her secondary sleep apnea. to likely impairment sufficiently severe and was three, Physical step to where he deter- Mary’s proceeded Hospital Ther- 5. St. did impairments mined that her not meet apy listing impair- equal those Dr. Kelly physical recommended thera- four, noted Reaching ments. 9, August for and py Rice. 1999 Between subjective allegations regarding that Rice’s 1, 1999, September six underwent pain fully limitations were not therapist therapy physical sessions. The Although the ALJ concluded credible. range noted of mo- significantly reduced that she to former could return (R. tion and muscle weakness. 10 at 329- work, ultimately at step he determined five 41.) perform medium that she could work therefore, not, to was entitled benefits. Bilinsky 6. Dr. A. Sandra The Council denied sub- Appeals Rice’s 1998, 17, Bilinsky re- On December review, sequent making for request completed viewed Rice’s claim file decision the final decision of the “Physical Capacity Residual Functional Security. of Social The dis- Commissioner Bilinsky Assessment” form. Dr. conclud- 13, 2003, August trict court affirmed on ed that Rice lift 25 fre- pounds could appeals. and Rice now pounds occasionally. quently and 50 She indicated Rice could stand or sit Analysis II. per eight-hour a total of work- six hours A. of review Standard day, attending but also noted Rice’s suggested that to review the Commissioner physician Rice needed We standing Security Administration’s decision alternate between
369 deny following to determine whether it with the persisting benefits for at least supported by substantial evidence or 3 despite prescribed months therapy and Lopez is of an error of law. expected the result v. 12 to last months. both 1 With (7th Barnhart, Cir.2003); F.3d 336 539 and 2: (7th Apfel, 201 Schmidt v. F.3d 972 Pain, spasm, significant muscle Cir.2000). Evidence is substantial when it spine; limitations of motion in the for a person is sufficient reasonable 2. Appropriate radicular distribution of supports conclude that the evidence significant motor loss with muscle weak- Apfel, decision. v. 227 F.3d Clifford sensory ness and and reflex loss. (7th Cir.2000). 869 In our review of the The applicant satisfy must all of crite- decision, we “reweigh will not evi ria in Listing order to receive an dence, conflicts, questions resolve decide disability award of insurance benefits and credibility, judg or substitute own [our] supplemental security income under step ment for that of the Commissioner.” Lo Shalala, three. Pope v. 998 F.2d 539; at
pez, Clifford, see F.3d (7th Cir.1993), grounds overruled on other F.3d at And while the ALJ must (7th by Apfel, Johnson v. 189 F.3d “logical bridge have built a from the evi Cir.1999). conclusion!,]” dence to his Steele Barn A plethora subjective objec hart, Cir.2002), tive evidence demonstrates that Rice suf “give will nonetheless a eom- fers from sensory and reflex loss. reading nitpicking monsensical rather than However, record evidence also reveals that it,” v. Apfel, Shramek 226 F.3d Rice did not meet all of the criteria of (7th Cir.2000) (quoting Apfel, Johnson v. 1.05(C), Listing required. It suffi (7th Cir.1999)). cient to note that the entire medical record The main argument thrust contains spasms, reference to muscle appeal is that the decision the ALJ is a cursory Kelly’s mention Dr. otherwise not supported substantial evidence be- thorough and voluminous medical records. *7 ignored cause the ALJ signif- misstated Bilinsky And Dr. affirmatively indicated findings icant medical in record. We any that Rice did not suffer from muscle disagree. Furthermore, spasm. the record contains significant no evidence of motor loss. step B. ALJ’s determination at 3 1998, reported Dr. Patel that she could complains first that because the ambulate without assistance and ALJ did expressly not mention Listing Kelly reported gait only that her was 1.05(C)4 listing of the impairments, 20 “slightly antalgic.” This is to insufficient 1.05(C) P, pt. subpt. § C.F.R. App. demonstrate that Rice met all of the crite (1999), which Rice only admits was the 1.05(C). ria of Listing listing to applications, relevant we 1.05(C) Listing must reverse remand. argument As to Rice’s that provides: explicitly ALJ’s failure to refer to the rele vertebrogenic
other
(e.g.,
disorders
her-
vant listing alone necessitates reversal and
stenosis)
remand,
puplosus,
niated nucleus
spinal
yet
we
not
so
and de-
have
held
1.05(C)
(Nov. 19, 2001).'
1.05(C)
Listing
Listing
was rescinded effective Feb-
010
Because
ruary
listing
2002. Revised
Criteria for
was the
in effect
time
Medical
at the
decision,
Disability,
only listing
Determination of
it
Musculoskeletal
ALJ's
is the
we need
Criteria,
58,-
System
Fed.Reg.
and Related
now consider.
long
that an
Steele,
credibility. We have
held
at
290 F.3d
here. See
to do so
cline
Moreover,
attorney
provide
“complete
to
given
required
that Rice’s
ALJ
not
testified at
testi-
expert
every piece
who
and the vocational
evaluation of
written
Chater,
referred
hearing
evidence,”
both
v.
the November
Diaz
mony and
(and
1.05(C)
con-
(7th
Listing
Cir.1995),
to
because
find
and we
F.3d
1.05(C)
list-
is the sole
Listing
cedes that
respect
with
that the ALJ’s determination
her),
safely con-
to
can
ing applicable
supported
to
three was
substantial
step
applied
ALJ considered
clude the
evidence.5
he
listing, although
nowhere
appropriate
February
in his
it
expressly referred
step
at
C. ALJ’s determinations
decision.
step
that
five
The ALJ concluded
as to the
arguments
Mirroring
work
able to
medium
perform
Rice was
Rice also at
step
analysis,
five
ALJ’s
not disabled. Rice’s
and was therefore
that the
argument
tempts to bolster
impermissibly
re-
ALJ
complains
fatally
analysis
three
Bilinsky
Drs.
opinions
lied
upon
“perfuncto
it as
by characterizing
flawed
Graham,
Security
the Social
Administra-
recently held that where
ry.” We have
agency
who determined
tion state
doctors
applicable
reference to the
list
ALJ omits
RFC,
testimony
failed to treat her
Rice’s
than a su
ing
nothing
more
provides
crucial
properly, and omitted discussion of
analysis,
and remand is
perficial
reversal
pieces of evidence. We address each
Barnhart, 315
required. See Brindisi v.
arguments in turn.
these
(7th Cir.2003);
Scott
F.3d
786-87
(7th
Barnhart,
Cir.
595-96
ca
The ALJ’s residual functional
2002); Steele,
But we
371 Rice’s sub- presumably upon duty were based minimal to articulate his reasons jective complaints. opinions And bridge medical make a between the evidence rely ALJ should need to be which the outcome as to his step five determina- objective based observations and not summarize, tion. To we conclude that the merely to a a claim- amount recitation of five ALJ’s sup- determination was subjective complaints. Farrell v. ant’s See ported by substantial evidence. Sullivan, (7th Cir.1989) 878 F.2d P, D. Rule 30
(citing pt. subpt. App. 20 C.F.R. violation Circuit 1.00(B)). § final matter at deserves our One Despite 30(b)(3), tention. Circuit Rule protesta
We next address Rice’s
which requires every appellant to include
tion that
the ALJ
mischaracterized
copy
with the
brief
“all the
testimony
opinions,
in unfavorably concluding that
orders, findings of fact and
conclusions
she was
credible. There is no basis in
law
by
rendered
the case
the
administrative
record
this assertion. In his as
agencies ... whether the original
of Rice’s
the
credibility,
sessment
review
of the administrative
properly considered the
to which
decision is in this
degree
objective
court or was
supported
medical
conducted
evidence
district
court[,]”
severity
subjective
Rice’s brief
degree
of Rice’s
included
dis
activities;
trict
complaints;
daily
the du
court’s
and judgment, omit
ration,
frequency,
intensity of
ting
decision.
Counsel
filed
pain;
precipitating
30(d)
aggravating
a statement under Circuit Rule
in
factors;
taken;
medications
correctly certifying
and treat
that all
re
materials
Scheck,
30(a)
(citing
ment.
at
quired by
F.3d
70S
Po
Rule
had been included.
Heckler,
(8th
laski
v.
F.2d
When this omission was
at
drawn to the
Cir.1984)). All
analysis
lawyer
of the ALJ’s
tention of Rice’s
argument,
oral
record,
amply supported by
hearing
he was
to offer any
unable
excuse other
argument
is,
and Rice’s
nothing
oversight.
amounts to
than sheer
This violation
itself,
phraseol
more than
dislike of the
enough
yield
summary affir-
such,
Dorner,
ogy.
As
we see no
to over
reason
mance.
In re
F.3d
(7th Cir.2003)
turn
eminently
(citing
the ALJ’s
reasonable cred
Mortell v. Mortell
determination,
Co.,
(7th
ibility
Cir.1989));
particularly given
887 F.2d
1326-27
States,
credibility
factual finding,
deter Ur so v.
United
61-62
(7th Cir.1995).
special
minations are due
deference.
Id.
See also
Ill.
Snipes v.
Corr.,
Dept.
463-64
Rice also lists
of evidence
items
Cir.2002).
that the ALJ did not
mention
specifically
However,
in his decision.
an ALJ need
III. Conclusion
only “minimally
justi
articulate his or
reasons,
foregoing
For
although
for rejecting
accepting specific
fication
sympathize with Ms. Rice due to her indu-
of disability.”
evidence
Steward Bow
*9
condition,
bitably
the
trying
district court’s
en,
Cir.1988),
judgment
Scheck,
cited in
pointed
previously,
out
the ALJ need not
ROYNER,
Judge, concurring
Circuit
provide
every piece
written evaluation of
judgment.
the
Diaz,
of evidence.
explained Jeffrey SULLIVAN, Plaintiff- J. judgment. As in the concur therefore Appellant, case, that agree I cannot merits the by sub- supported decision was “reasoning” The ALJ’s evidence. stantial Whealon, and Ed BORNEMANN Jon best, contained a substan- thin at Defendants-Appellees. acknowledged the SSA error that even tial response 12 of the In footnote appeal. No. 03-2479. explains that brief, the Commissioner Appeals, Court of United States capable of finding Rice was that Circuit. Seventh consistent with work is not medium by the State’s opinion advanced medical Argued Jan. opined agency doctors doctors. The own Sept. Decided climb, only occasionally Rice could that kneel, balance, crouch and crawl. stoop, work, capa- person must be
For medium crouching. stooping and frequent
ble
Nonetheless, agency doctors conclud- regula-
ed, contrary agency’s to the own
tions, capable medium Rice was unsup-
work, adopted this and the ALJ The Commissioner
ported conclusion. be- this error harmless
urged us find would agency opinions doctors’
cause perform that Rice
support finding could work, thus was not disabled.
light documenting record
Given medical accompa- disorder and spinal
Rice’s severe analytical as the error
nying pain, well agency doctors
overlooked both ALJ, I no have confidence ana- the ALJ
agency properly doctors or capacity. functional
lyzed residual I find that the ALJ’s deci-
Because would evi- not supported
sion was substantial
dence, judg- respectfully I concur in the
ment.