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Hardesty v. Berryhill

United States District Court, N.D. Indiana, Fort Wayne Division

March 29, 2017

NANCY BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.



         William Hardesty, Jr., has a history of lower back problems, bipolar depression, anxiety, and severe headaches. In the fall of 2012, he applied for disability insurance benefits and supplemental security income, alleging he became disabled on March 28, 2012 when he re-injured his back at work. (A.R. at 204-217.[2]) His application was denied initially and on reconsideration by an Administrative Law Judge who found him capable of sedentary work and therefore not disabled. (Id. at 11, 16, 27.) Hardesty argues that the ALJ made a host of errors, but I will focus on just one of them- his claim that the ALJ erred by failing to consider whether and/or articulate why Hardesty's back problems alone or together with other impairments did not meet or equal Listing 1.04(A). Because I agree that the ALJ erred, this case will be remanded.


         At the time of his hearing before the ALJ on February 10, 2014, Hardesty was thirty-one years old and lived with his wife and three sons in a one-story home in Fremont, Indiana. (Id. at 38.) He had stopped working in mid-2012 due to back pain and was supported by his wife. (Id. at 38-39, 41.) Prior to that, he had been regularly employed for fifteen years, most recently at the Potawatomi Inn in Pokagon State Park doing banquet set up. (Id. at 41-45, 61, 228.)

         But Hardesty's back problems started long before he stopped working in 2012. His medical records suggest he sought treatment for back pain as early as 2004, when he was 23 years old. (See, e.g., Id. at 400-1, 470-71.) In 2011, Hardesty severely herniated the disc at ¶ 5-S1. (Id. at 360, 403, 558.) After that injury, he tried physical therapy, spinal injections, and pain relievers, but they failed to provide sufficient relief from the pain he was experiencing and so, on October 12, 2011, he underwent surgery to remove the disc. (See Id. at 42, 349, 360, 403, 558.)

         He returned to work in late 2011 or early 2012, but just a few months later he injured his back again, this time while moving a heavy ping-pong table at work. (Id. at 219, 333, 363.) An MRI taken shortly thereafter showed “severe degenerative changes at ¶ 4-5 and L5-S1 with recurrent disc herniation and L5-S1 and displacement of the S1 nerve root.” (Id. at 494.) Hardesty again first sought out conservative treatments, including physical therapy, spinal injections, and pain medication, but ultimately he decided to undergo a second back surgery because of the pain. (Id. at 333, 380, 438, 493- 494, 578-79.) The second surgery was conducted in June 2013, during which Hardesty's surgeon removed a “large recurrent disc fragment at ¶ 5-S1” and fused the vertebrae in spinal segment L4-sacrum. (Id. at 578.)

         Unfortunately, the June 2013 surgery did not resolve Hardesty's back problems. An x-ray of his lumbar spine taken about a month after the second surgery showed degeneration at the sacroiliac joints and hips and some spondylosis at ¶ 3-L4. (Id. at 486.) His treating physicians noted lumbosacral paraspinal muscle spasms and positive straight-leg raising tests on both sides in both November and December 2013 and continued to prescribe him powerful muscle relaxers and nerve medications. (Id. at 504-7; see also Id. at 46.) And, at his hearing before the ALJ, Hardesty testified that even after the second surgery, he continued to have significant pain that was difficult to mitigate, had trouble standing, walking, and getting out of bed, and found it painful to sit for more than 20 or 30 minutes in one position. (Id. at 46-49, 59.) He also reported that he always needed a cane to stand and walk and that he had four or five bad days a month (for example, after driving too much), on which he could not get out of bed or get dressed without help. (Id. at 48, 54-56; see also Id. at 61-62.)

         Hardesty applied for disability insurance benefits and supplemental security income on September 24, 2012, alleging an onset date of March 28, 2012, when he injured his back the second time. (Id. at 11.) The ALJ held a hearing and concluded that Hardesty was not disabled. (Id. at 11-32.) Most relevant to this appeal, the ALJ found at Step Two that Hardesty suffered from two severe impairments, headaches and degenerative disc disease of the lumbar spine with history of left leg injury and left leg radicular pain, and she found at Step Three that he had no impairment or combination of impairments that meets or equals the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart. P, Appendix 1. (Id. at 13-14.)


         An ALJ's decision should be affirmed so long as the ALJ applied the correct legal standard and substantial evidence supports the decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009) (internal quotation marks and citations omitted).

         A claimant is presumptively disabled and eligible for benefits if he has an impairment or a combination of impairments that meets or equals the severity of a Listed Impairment. See 20 C.F.R. § 404.1520(d); 20 C.F.R. § 404.1523(c); Browning v. Colvin, 766 F.3d 702, 706 (7th Cir. 2014); Golembiewski v Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) (requiring the ALJ to consider the aggregate effect of severe and non-severe ailments). “In considering whether a claimants' condition meets or equals a listed impairment, an ALJ must discuss the listing by name and offer more than a perfunctory analysis of the listing.” Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015) (internal quotation marks and citation omitted).

         Hardesty argues that the ALJ erred at Step Three by failing to address (or even mention) Listing 1.04(A). Instead, the ALJ referred to the musculoskeletal impairments in Listing 1.00 only generally, and her analysis in that regard was meager. Here's what the ALJ said in total:

The medical evidence related to the claimant's back and lower extremity complaints does not support a finding that he is unable to ambulate effectively . . . or unable to perform fine/gross movements effectively[.] In addition, the evidence is unsupportive of the medical criteria contemplated ...

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