Paolo S. Ribaudo v. Jo Anne B. Barnhart, Commissioner of Social Security

458 F.3d 580, 2006 U.S. App. LEXIS 20575, 2006 WL 2328693
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 11, 2006
Docket05-2541
StatusPublished
Cited by247 cases

This text of 458 F.3d 580 (Paolo S. Ribaudo v. Jo Anne B. Barnhart, Commissioner of Social Security) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paolo S. Ribaudo v. Jo Anne B. Barnhart, Commissioner of Social Security, 458 F.3d 580, 2006 U.S. App. LEXIS 20575, 2006 WL 2328693 (7th Cir. 2006).

Opinion

KANNE, Circuit Judge.

Paolo Ribaudo appeals from the district court’s order affirming the decision of the Commissioner of Social Security denying his claim for social security benefits. Because the district court did not adequately explain its conclusion that Ribaudo’s herniated disc did not meet or equal a listed impairment, we vacate and remand the district court’s decision.

Background

Ribaudo, who is an Italian citizen and does not speak English, injured his back while working in construction in the United States. He was initially treated by Dr. Jay Levin, an orthopedic surgeon, who diagnosed a herniated nucleus pulposus, a type of herniated disc, on the basis of an MRI. The MRI also revealed that the herniated disc was “displacing both the right L4 and L5 nerve roots.” Dr. Levin reported that surgery was necessary to correct the problem and “decompress the nerve roots.” This surgery was performed in March 1999, but it was not successful. Ribaudo continued to complain of lower back pain that radiated down to his right leg. He also complained of tingling and numbness in his right leg, difficulty walk *582 ing, and difficulty standing or sitting for extended periods of time. Dr. Levin treated Ribaudo through May 2000, and his reports reveal that Ribaudo experienced tenderness in the back, pain when flexing forward, and pain during straight-leg raising tests. He also noted that Ribaudo had difficulty walking on his right heel, and had decreased sensation in the right calf area. Dr. Levin believed that Ribaudo’s continuing symptoms were caused either by a recurrence of the herniated disc or by scar tissue from his surgery. In February 2000, one of Dr. Levin’s partners gave Ribaudo an epidural steroid injection in an effort to relieve his pain. Nonetheless, Dr. Levin concluded, in a letter to the insurance company that provided Ribaudo’s workers’ compensation benefits, that Ribaudo could return to work at the medium/heavy level with a maximum weightlifting restriction of fifty pounds.

Another examining physician, Dr. Jit Kim Lim, a neurological surgeon, whom Ribaudo consulted in September 1999, took a somewhat less optimistic view of Ribaudo’s condition. Dr. Lim diagnosed Ribaudo with sciatic pain and recommended that Ribaudo have additional surgery on his back, but there is no evidence that this surgery ever took place. He observed that Ribaudo’s gait was abnormal and that Ribaudo presented with a “stooping posterior” due to his lower back and leg pain. He also noted significant limitations on the range of motion in his spine and pain during straight-leg raising tests.

In May 2000, Ribaudo was evaluated by the HealthSouth Rehabilitation Center, which performed a functional capacity evaluation. HealthSouth evaluators, including a physical therapist, noted that Ribaudo had “functional lower extremity weakness, low back pain, right buttock pain, as well as right lower extremity symptoms.” Specifically, they noted that Ribaudo’s strength in his right lower extremity tested at a 3 to 4 Grade on a scale of 5; that Ribaudo experienced pain performing kneeling, squatting, and straight-leg raising exercises; and that his gait was slow and abnormal. However, the evaluators also believed that Ribaudo had not put forth maximum effort during the exam. HealthSouth believed that Ribaudo was capable of lifting twenty pounds occasionally and ten pounds frequently. They also believed that he could sit for up to two hours at a time for a total of up to eight hours in a day and that he could stand for up to two hours at a time for a total of up to four hours in a day. They concluded that he could perform light work.

Finally, Ribaudo was examined by Dr. Spiros Stamelos, an orthopedic surgeon, in June 2000. Dr. Stamelos concluded that Ribaudo had “postoperative fibrosis from a permanent irreversible significant pain secondary to pressure of the nerve roots.” He indicated that Ribaudo complained of lower back pain and subjective numbness in the right leg and had a limited range of motion. He also found that Ribaudo had sciatica and nerve damage. He believed that Ribaudo was “not a good candidate to return to work.”

Ribaudo applied for benefits in July 2000. His application was denied initially and on reconsideration. Ribaudo then had a hearing before an administrative law judge. The ALJ, applying the familiar five-step analysis, 20 C.F.R. § 404.1520(a)(4), found at Step 1 that Ribaudo was not engaged in substantial gainful activity and at Step 2 that Ribaudo had a serious impairment. He then found at Step 3 that Ribaudo’s impairment did not medically equal any listing in Appendix 1, Subpart P, Regulation No. 4. The ALJ based his Step 3 finding on Disability Determination and Transmittal forms filled out by the Social Security Administration’s non-examining experts which concluded *583 that Ribaudo was not disabled. In determining Ribaudo’s residual functional capacity, the ALJ did not completely credit Ribaudo’s claims of extreme pain because he found them inconsistent with Ribaudo’s testimony that he only took over-the-counter pain medications. Nonetheless, the ALJ found at Step 4 that Ribaudo did not have the residual functional capacity to return to his previous work as a construction worker. However the ALJ, relying on the testimony of a vocational expert, concluded at Step 5 that a person with Ribaudo’s limitations could still work in a “bench assembly” job and that there are nearly 40,000 such jobs in the Chicago region. Therefore, the ALJ determined that Ribaudo was not disabled.

Because the Appeals Council denied Ribaudo’s request for review, the ALJ’s decision became the final decision of the Commissioner of Social Security. That decision was affirmed by a magistrate judge who was presiding with the consent of the parties.

Analysis

Ribaudo first challenges the ALJ’s cursory finding at Step 3 that his back injury does not meet or equal a listed impairment. The ALJ’s two-sentence discussion of this question said only the following:

The claimant does not have an impairment which meets or equals the severity criteria of any impairment in the Listings. The Social Security Administration’s non-examining experts [SSR 96-6p], reviewed the evidence of record and opined that the claimant’s condition did not medically equal any Listing (see Exhibits 1A-2A, 10F).

Ribaudo argues that these two sentences do not adequately explain the reasoning behind the ALJ’s decision. Specifically, he contends that the ALJ should not have rested his decision entirely on the conclusions of the agency’s non-examining experts while ignoring other evidence in the record that showed that his impairment met the requirements for Listing 1.04A. This listing includes disorders of the spine such as a herniated nucleus pulposus with evidence of “nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).” 20 C.F.R. Part 404, Subpart P, App. 1, 1.04A. Ribaudo points to reports of Dr. Levin and Dr.

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Bluebook (online)
458 F.3d 580, 2006 U.S. App. LEXIS 20575, 2006 WL 2328693, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paolo-s-ribaudo-v-jo-anne-b-barnhart-commissioner-of-social-security-ca7-2006.