By: dmc-admin//May 28, 2002//
“At step three the ALJ needed to determine whether Steele was conclusively disabled based on one of the agency’s listed impairments. One relevant provision is listing 11.03, which deals with ‘minor motor seizures.’ It provides for a disability finding where the applicant has documented seizures ‘occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment.’ … Although Steele’s medical records plainly documented his history of seizures, the ALJ altogether failed to discuss, or even cite, listing 11.03. In at least two circuits, omitting a key listed impairment like listing 11.03- coupled with the otherwise perfunctory analysis provided by the ALJ at step three-alone would require a remand. See Burnett v. Commissioner, 220 F.3d 112, 119-20 (3d Cir. 2000); Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). The Eighth Circuit, on the other hand, has concluded that a cursory discussion at step three is not automatically fatal. See Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999). But we need not explore the possible tension in these cases, for the ALJ’s decision could not stand even if she cited the correct rule.
“The chief problem lies in the ALJ’s mischaracterization of the medical evidence of Steele’s epilepsy. The ALJ’s determinations that Steele’s May 1994 EEG was ‘generally unremarkable’ and that his November EEG was ‘unremarkable,’ for example, are untenable on the current record. There are in fact two EEG reports from May. One demonstrates twenty episodes of ictal rhythms during an over night EEG, and the other shows a one- minute episode during a regular EEG. … Likewise, although the November report does not show any ictal patterns, it does show a ‘slight neurophysiological disturbance’ in Steele’s brain. Nothing in the ALJ’s decision or the medical records explains the insignificance of this disturbance, and without further explanation, we are left to wonder how a report documenting a neurophysiological disturbance, however ‘slight,’ could be characterized as ‘unremarkable.'”
Vacated and remanded.
Appeal from the United States District Court for the Northern District of Illinois, Bucklo, J., Rovner, J.