Barnett v. Barnhart, 03-4076.

• Decision Date: 25 August 2004
• Docket Number: No. 03-4076.,03-4076.
• Citation: 381 F.3d 664
• Parties: Joanne BARNETT, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

381 F.3d 664

Joanne BARNETT, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

No. 03-4076.

United States Court of Appeals, Seventh Circuit.

Argued August 3, 2004.

Decided August 25, 2004.

Appeal from the United States District Court for the Northern District of Indiana, Allen Sharp, J.

COPYRIGHT MATERIAL OMITTED

Ralph L. Robinson (argued), Lafayette, IN, for Plaintiff-Appellant.

Edward P. Studzinski (argued), Office of the General Counsel, Chicago, IL, for Defendant-Appellee.

Before POSNER, ROVNER, and DIANE P. WOOD, Circuit Judges.

ROVNER, Circuit Judge.

Joanne Barnett suffers from nonconvulsive epileptic seizures and seeks disability insurance benefits under 42 U.S.C. § 423(a)(1). An administrative law judge (ALJ) concluded that her condition is not severe enough to be presumptively disabling, and that even with the condition, she is not disabled because she can still perform a substantial number of jobs in the local economy. The Appeals Council denied review, rendering the ALJ's decision the final decision of the Commissioner of Social Security. 20 C.F.R. § 404.981. Barnett then sought review in the district court, 42 U.S.C. § 405(g), without success. Because we conclude that the ALJ made significant errors in finding that Barnett is not presumptively disabled, we reverse the judgment of the district court and remand for further proceedings.

I. BACKGROUND

Barnett began experiencing seizures after the birth of her son over thirty-five years ago. For years the seizures were sporadic and minor, and they did not stop Barnett from owning a restaurant with her husband, Jack, where she cooked and performed administrative tasks. But over time Barnett's seizures became more frequent, ultimately forcing the couple to sell their restaurant in May 2000 after fifteen years. Barnett applied for disability benefits the following year, alleging an onset date of May 2000. However, in August 2001, a few months after Barnett filed, she and her husband resumed ownership of the restaurant when the sale fell through, and Barnett is working there again about four hours a week.

Barnett sought long-term treatment primarily from her family physician, Dr. Francis O'Brien. Throughout the early 1990s, Dr. O'Brien prescribed anti-seizure medications, but still Barnett experienced seizures with increasing, though irregular, frequency. Medical records show that in early 1993 the seizures might be separated by weeks, but over the following three years the frequency had jumped to where Barnett reportedly suffered three a month on average and occasionally four or five in a single day. Increasing the dosage of her medications provided only temporary relief, so in July 1999 Barnett consulted a neurologist, Dr. Richard Cristea. Dr. Cristea ordered tests including an MRI and confirmed Dr. O'Brien's diagnosis of epilepsy. He then adjusted Barnett's medications, yet the number of seizures increased during late 1999 to a reported average of four or five a month. The following year was better, and in June 2000 Barnett reported to Dr. O'Brien that she went an entire month without a seizure and that she was "having less seizures than ever before." At her next annual examination in June 2001—after she had applied for disability benefits—Barnett told her new treating physician, Dr. Marianne Plascak (who is also Dr. O'Brien's daughter), that she sometimes has seizures every day but had recently gone a week without one. Barnett returned to Dr. Plascak in October 2001, reporting that she had suffered three seizures in eleven days.

The Indiana Department of Family and Social Services consulted three doctors regarding Barnett's application for benefits. Dr. Robert Kaye wrote after an August 2001 examination that Barnett reported having a seizure about every two weeks and that her seizures were "not followed by any long episodes of lack of concentration." He opined that Barnett's seizures were "not terribly out of control" but rendered no opinion regarding their severity. In September 2001 Dr. A. Dobson completed a Physical Residual Functional Capacity Report ("RFC") after reviewing Barnett's medical records. In the RFC, Dr. Dobson opined that Barnett had no exertional limitations as a consequence of her seizures but should avoid all exposure to hazards such as machinery and heights. Dr. J. Sands reviewed Barnett's medical records and agreed with Dr. Dobson's RFC findings.

In contrast to these consultants' opinions, Dr. Plascak submitted two opinion letters for the ALJ to consider. In a January 2002 letter, Dr. Plascak opined that Barnett was totally disabled by her seizures: "Joanne Barnett has a long history of seizure disorder. More recently she is having recurrent uncontrolled absence seizures. This condition renders her totally disabled. She is not able to be gainfully employed at any job." In an August 2002 letter, Dr. Plascak also disagreed with statements in Dr. Kaye's report about Barnett's recurrent seizures:

Joanne Barnett has a known diagnosis of epilepsy. She states that the related seizures are more frequent when she is overtired. Seizures are two to three minutes in duration. The after effects of a seizure include blackouts, numb lips, inability to speak, in addition to impaired thought concentration. After these seizures the patient sleeps for approximately four hours.

At her disability hearing in September 2002, Barnett described the frequency and nature of her seizures. Barnett explained that as of the date of the hearing she sometimes had seizures two to three times a day and on average eight to nine times a week. According to Barnett, the seizures come with no real warning; if she senses the onset, though, she will try to move to the restaurant's office. She testified that during the seizures, which last two to three minutes, she will black out, feel her mouth go numb, and not be able to speak. Afterwards she cannot concentrate for three to four hours and usually sleeps. Although she worked in the restaurant's kitchen around knives and stoves and occasionally drove a car, she acknowledged that she had never been injured because of her seizures.

Jack Barnett also testified at his wife's disability hearing, confirming that she might have two to three seizures a day and eight to ten a week, and that the frequency was increasing. Jack added that his wife "can't talk, she can't move, she can't do anything" during a seizure. He used one of Barnett's recent seizures as an example:

[S]he'll be sitting in the car, and then all of a sudden, she'll say something, and I'll look at her, and then she can't talk no more, that's it. I mean, her mouth, then she starts feeling of her mouth, and her mouth gets numb, and so I don't say nothing to her, just for a little while. And then after it's over with, I ask her if she's all right.

When asked if Barnett lost consciousness during a seizure, Jack responded that he did not know, but added that Barnett will fall down if she is standing when a seizure occurs.

Applying the standard five-step analysis, see 20 C.F.R. § 416.920(a)(4), the ALJ concluded that Barnett is not disabled. At step one, he "reserved" deciding whether Barnett was engaging in substantial gainful activity given that she had resumed working at her restaurant. The ALJ found at step two that Barnett suffers from a severe seizure disorder. At step three, however, the ALJ concluded that Barnett's disorder does not meet or equal any listed impairment because, according to the ALJ, Barnett's seizures are too infrequent to satisfy the listing criterion for nonconvulsive epilepsy that seizures occur at least once weekly. The ALJ discredited Barnett's account of more frequent seizures because, according to the ALJ, her hearing testimony was inconsistent with her work history and activities, and with her earlier descriptions to her treating doctors of the seizures, their side effects, and their frequency. The ALJ also found Jack Barnett not credible because his testimony simply "reiterated" Barnett's testimony. And the ALJ discounted Dr. Plascak's opinion that Barnett is totally disabled because the opinion rests on Barnett's "description of her seizures and their effects and is inconsistent with the medical evidence in the record." The ALJ found at step four that Barnett cannot perform her past restaurant work, but can hold a job that does not entail climbing to unprotected heights, proximity to machinery, or driving. Finally, at step five, the ALJ relied on a vocational expert's testimony in concluding that Barnett could work as a cashier, clerk, or messenger—of which there are a substantial number of positions in Indiana.

II. ANALYSIS

We will uphold an ALJ's decision as long as the ALJ applied the correct legal standard, and substantial evidence supports the decision. Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir.2002). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir.2003) (internal quotation marks and citation omitted). On appeal Barnett challenges the ALJ's determination that her seizures do not occur at least one time per week on average. If the ALJ had credited Barnett's testimony that she currently suffers sometimes two to three seizures a day and on average eight to nine a week, the ALJ would have found her presumptively disabled at step three.

Under a theory of presumptive disability, a claimant is eligible for benefits if she has an impairment that meets or equals an impairment found in the Listing of Impairments. 20 C.F.R. § 404.1520(d); 20 C.F.R. Pt. 404, Subpt. P, App. 1. The listings specify the criteria for impairments that are considered presumptively disabling. 20 C.F.R. § 404.1525(a). A claimant may also demonstrate presumptive disability by showing that her impairment is accompanied by symptoms that are equal in severity to those described in...