Michael Zellweger v. Andrew Saul ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2472
MICHAEL K. ZELLWEGER,
Plaintiff-Appellee,
v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 17 CV 50195 — Iain D. Johnston, Magistrate Judge.
____________________
ARGUED MAY 20, 2020 — DECIDED JANUARY 14, 2021
____________________
Before SYKES, Chief Judge, and RIPPLE and KANNE, Circuit
Judges.
SYKES, Chief Judge. Michael Zellweger applied for Social
Security disability benefits, claiming that he suffered from a
spinal disorder equivalent to Listing 1.04 in the agency’s
Listing of Impairments. The Listings describe impairments
that are considered so severe as to be per se disabling. An
administrative law judge (“ALJ”) denied his claim, conclud-
2 No. 19-2472
ing that the medical evidence did not meet the criteria for
Listing 1.04 and that Zellweger could perform light work.
Zellweger sought judicial review. A magistrate judge re-
versed, ruling that the ALJ’s discussion was too cursory at
step three of the sequential analysis prescribed in the agency
regulations. That’s the step in the decision process at which
the ALJ is tasked with assessing whether the claimant has an
impairment that meets or medically equals one of the List-
ings. Although the ALJ explained his reasoning more thor-
oughly later in his decision, the magistrate judge refused to
consider that discussion. He thought the Chenery doctrine
barred him from doing so. See SEC v. Chenery, 318 U.S. 80(1943).
The magistrate judge was mistaken. As we recently ex-
plained in a similar case involving Listing 1.04, the sequen-
tial process is not so rigidly compartmentalized, and nothing
in the Chenery doctrine prohibits a reviewing court from
reading an ALJ’s decision holistically. Jeske v. Saul, 955 F.3d
583 (7th Cir. 2020). Here, as in Jeske, the ALJ thoroughly
analyzed the medical evidence at the step in the sequential
analysis that addresses the claimant’s residual functional
capacity. That analysis elaborated on the more cursory
discussion at step three and was easily adequate to support
the ALJ’s rejection of a per se disability under Listing 1.04.
Zellweger identifies no other infirmity in the ALJ’s decision,
so we reverse and remand with instructions to enter judg-
ment for the Commissioner of Social Security.
I. Background
Zellweger applied for disability benefits in June 2013,
claiming a per se disabling spinal condition equivalent to
No. 19-2472 3
Listing 1.04. He initially alleged an onset date in October
2008 but later amended it to August 28, 2013. His last-
insured status expired on September 30, 2013, so the applica-
tion presented a very narrow question: whether he was
disabled during the one-month period from August 28 to
September 30, 2013. See 42 U.S.C. § 416(i)(3)(B). The primary
medical basis for his application was cervical and lumbar
degenerative disc disease. His treatment history included
two spinal surgeries many years earlier: a cervical fusion in
2007 and lumbar surgery in 2010. In the meantime, he had
also been treated for carpal tunnel syndrome, shoulder pain,
diabetes, and other conditions.
Zellweger served time in prison from June 2011 to May
2013. About a month after his release, Zellweger visited
Dr. Michael Merry, his primary-care physician. They dis-
cussed his diabetes, and he asked to be referred to a special-
ist for treatment of shoulder pain. Dr. Merry’s notes indicate
that Zellweger’s diabetes had been well controlled by medi-
cation while he was in prison but that he suffered from
bilateral shoulder pain and a restricted range of shoulder
movement likely attributable to a rotator-cuff problem.
Dr. Merry also noted that Zellweger was suffering from
right-elbow epicondylitis, an inflammation of the tendons
colloquially known as “tennis elbow.” Zellweger had no
signs of wasting or muscle loss, and his reflexes were intact.
Dr. Merry referred Zellweger to Dr. Kevin Draxinger, an
orthopedist. Dr. Draxinger found a 20% restriction in
Zellweger’s ability to bend his neck and rotate his right arm
laterally. He referred Zellweger to Dr. M. Marc Soriano, a
neurosurgeon. Dr. Soriano’s September 2013 examination
revealed Zellweger’s neck and shoulder range of motion
4 No. 19-2472
were normal. All other sensory and reflex exams also
showed normal results.
Zellweger’s application for disability benefits was denied
in early 2014. The agency reconsidered it in August of that
year and again denied it. Zellweger then requested a hearing
before an ALJ, which took place in February 2016. The ALJ
denied the claim after working through the five-step analy-
sis required by 20 C.F.R. § 404.1520(a)(4).
A brief summary of the five-step sequential process will
help illuminate the narrow issue on appeal. At step one the
ALJ determines whether the claimant has engaged in gainful
employment between his alleged disability-onset date and
the expiration of his insurance. At step two the ALJ consid-
ers whether the claimant suffers from a serious impairment
or combination of impairments. At step three the ALJ de-
cides whether the claimant has an impairment that meets or
equals one of the categories listed in the agency’s Listing of
Impairments at 20 C.F.R. pt. 404, subpt. P, app. 1. If the
criteria for a listing are met, the claimant is per se disabled. If
not, the decision process moves on and the ALJ considers the
claimant’s residual functional capacity (“RFC”)—that is, his
ability to work despite his impairments. At step four the ALJ
determines whether the applicant can perform his past
relevant work in light of his RFC. Finally, at step five the ALJ
decides whether the claimant can do some other work that
exists in significant numbers in the national economy.
At steps one and two, the ALJ determined that Zellweger
had not worked since his alleged onset date and suffered
from the following severe impairments: cervical and lumbar
degenerative disc disease, diabetes, and carpal tunnel syn-
drome. At step three—the per se disability analysis—the ALJ
No. 19-2472 5
considered whether Zellweger’s impairments met or
equaled the criteria in Listing 1.04A, the relevant listing for
per se disabling spinal disorders. Those criteria are:
[E]vidence of nerve root compression charac-
terized by neuro-anatomic 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. pt. 404, subpt. P, app. 1.
The ALJ explained that the evidence did not establish the
necessary criteria:
As discussed more below, medical records es-
tablish lumbar and cervical degenerative disc
disease, with neurological involvement, status
post surgery. (See, for example, Exhibit
B4F/122-129). However, the criteria of
[L]isting 1.04 are not satisfied in this case. For
example, during an examination on June 19,
2013, the claimant displayed obesity, right lat-
eral epicondylitis, and limited shoulder range
of motion, but normal functioning otherwise.
(Exhibit B3F/6-8).
After step three, the ALJ provided an in-depth discussion
of the medical evidence in his analysis of Zellweger’s RFC.
He analyzed the reports of treating physicians and state-
agency consultants in order to assess Zellweger’s limitations.
The ALJ found that Zellweger’s claim of disabling pain was
6 No. 19-2472
not entirely credible because the medical evidence did not
support it and indeed some treating physicians reported that
Zellweger was not in pain. Although Zellweger could not
perform physically strenuous work, the ALJ concluded that
he had the residual functional capacity to perform light
physical labor.
At step four the ALJ concluded that Zellweger’s past rel-
evant work—as a truck driver, janitor, and machine opera-
tor—exceeded his RFC. At step five the ALJ determined that
considering Zellweger’s age, education, experience, and
RFC, there were jobs in significant numbers in the national
economy that Zellweger could perform. As such, Zellweger
was not disabled during the relevant time period. The ALJ
denied the claim for benefits.
Zellweger sought review in the district court. See
42 U.S.C. § 405(g). He challenged the ALJ’s step-three de-
termination that he was not per se disabled, arguing that the
ALJ had not adequately explained his conclusion that the
evidence did not satisfy the Listing 1.04A criteria.
The parties consented to transfer the case to a magistrate
judge for decision. The magistrate judge sided with
Zellweger and reversed. Though skeptical about the merits
of Zellweger’s claim, the magistrate judge held that the
ALJ’s cursory discussion at step three was inadequate and
that the Chenery doctrine barred consideration of the more
detailed explanation that appeared in the next section of the
decision. The Commissioner moved for reconsideration
under Rule 59(a) of the Federal Rules of Civil Procedure, but
the magistrate judge denied the motion, again citing the
Chenery doctrine. The Commissioner appealed.
No. 19-2472 7
II. Discussion
The sole issue in this case is whether the magistrate judge
correctly applied the Chenery doctrine. He did not. Chenery
generally confines a reviewing court to the agency’s actual
rationale for its decision, not an after-the-fact justification.
See Chenery, 318 U.S. at 87–88. As we recently explained in
Jeske, however, nothing in Chenery prohibits a reviewing
court from reviewing an ALJ’s step-three determination in
light of elaboration and analysis appearing elsewhere in the
decision. 955 F.3d at 590.
Like this case, Jeske involved a claim of per se disability
under Listing 1.04. The similarities continue: In Jeske the
ALJ’s analysis at step three was “brief,” but “the discussion
picked up in the next part of the ALJ’s decision.” Id. at 589.
We explained that a reviewing court does “not violat[e]
Chenery’s command by looking at the ALJ’s more thorough
discussion of the evidence” elsewhere in the decision. Id. at
590. We noted that the five-step decision process “comprises
sequential determinations that can involve overlapping
reasoning,” and “[t]his is certainly true of step three and the
RFC determination that takes place between steps three and
four.” Id. We summed up the point in this way:
[W]hen an ALJ explains how the evidence re-
veals a claimant’s functional capacity, that dis-
cussion may doubly explain how the evidence
shows the claimant’s impairment is not pre-
sumptively disabling under the pertinent list-
ing. And, as we’ve already recognized, “[t]o
require the ALJ to repeat such a discussion
throughout [the] decision would be redun-
dant.”
8 No. 19-2472
Id. (quoting Curvin v. Colvin, 778 F.3d 645, 650
(7th Cir. 2015)).
Jeske shows why the magistrate judge was wrong to think
he was barred from considering the whole of the ALJ’s
decision—more particularly, the ALJ’s discussion of the
medical evidence in the section of his decision addressing
Zellweger’s RFC. That discussion is quite detailed, and it
easily supports the ALJ’s step-three rejection of Zellweger’s
claim of per se disability under Listing 1.04. It’s worth noting
that the ALJ’s step-three analysis specifically incorporates
his evaluation of the medical evidence in the next section of
his decision. Zellweger hasn’t identified any substantive
flaw in that lengthy analysis; rather, his argument rests
entirely on the relative brevity of the ALJ’s step-three discus-
sion.
Zellweger argues that the magistrate judge’s application
of the Chenery doctrine finds support in Minnick v. Colvin,
775 F.3d 929 (7th Cir. 2015), and Kastner v. Astrue, 697 F.3d
642 (7th Cir. 2012). Not so. In Minnick both the step-three
discussion and the RFC analysis were inadequate. 775 F.3d
at 936–38. We did not suggest that an ALJ’s step-three
determination cannot be supported by a discussion of the
medical evidence appearing under the RFC heading. In
Kastner we relied on Chenery to reject the Commissioner’s
post hoc rationale for the ALJ’s decision because it did not
appear anywhere in the ALJ’s opinion. That’s hardly the case
here, where the RFC analysis is extensive and supports the
ALJ’s determination that Zellweger is not per se disabled
under Listing 1.04.
The magistrate judge’s misapplication of Chenery re-
quires reversal of the judgment below. Because Zellweger
No. 19-2472 9
identifies no other error in the ALJ’s decision, on remand the
court should enter judgment for the Commissioner.
REVERSED AND REMANDED