Paolo S. Ribaudo v. J O ANNE B. BARNHART , Commissioner of Social Security

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2541
P AOLO S. R IBAUDO ,
Plaintiff-Appellant,
v.
J O A NNE B. B ARNHART ,
Commissioner of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 2810—Morton Denlow, Magistrate Judge.
____________
A RGUED J ULY 11, 2006—D ECIDED A UGUST 11, 2006
____________
Before B AUER , P OSNER , and K ANNE , Circuit Judges.
K ANNE , Circuit Judge. Paolo Ribaudo appeals from the
district court’s order affirming the decision of the Com-
missioner of Social Security denying his claim for social
security benefits. Because the district court did not ade-
quately 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

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2 No. 05-2541
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 per-
formed 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 walking, 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 symp-
toms 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. Nonethe-
less, 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 me-
dium/heavy level with a maximum weight-lifting restriction
of fifty pounds.
Another examining physician, Dr. Jit Kim Lim, a neuro-
logical 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

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No. 05-2541 3
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.” Specifi-
cally, 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 cap-
able 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 con-
cluded 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 re-
turn 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.

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4 No. 05-2541
§ 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 Adminis-
tration’s non-examining experts which concluded 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 con-
struction worker. However the ALJ, relying on the testi-
mony 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 af-
firmed 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-

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No. 05-2541 5
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. Specifi-
cally, 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 require-
ments 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 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. Part
404, Subpart P, App. 1, 1.04A. Ribaudo points to reports of
Dr. Levin and Dr. Lim which he says show that he meets all
of the criteria in Listing 1.04A.
Ribaudo has the burden of showing that his impair-
ments meet a listing, and he must show that his impair-
ments satisfy all of the various criteria specified in the
listing. Maggard v. Apfel, 167 F.3d 376, 380 (7th Cir. 1999).
But this court has also held that an ALJ should mention the
specific listings he is considering and his failure to do so, if
combined with a “perfunctory analysis,” may require a
remand. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir.
2004); Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783,
786 (7th Cir. 2003); see also Scott v. Barnhart, 297 F.3d 589,
595 (7th Cir. 2002).
We agree with Ribaudo that the ALJ did not provide a
sufficient analysis of the Step 3 question. What is troubling
is that the ALJ, in addition to not mentioning List-
ing 1.04A, did not evaluate any of the evidence on its

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6 No. 05-2541
required criteria that is favorable to Ribaudo. For instance,
as Ribaudo points out, the reports of Dr. Levin and Dr. Lim
note that he complained of lower back pain that radiated to
his right leg, had a limited range of motion in his spine, and
experienced pain during straight-leg raising tests. Dr. Lim’s
report also notes that he had sciatic pain, which is a specific
type of the radicular pain required by Listing 1.04A. See 20
C.F.R. Part 404, Subpart P, App. 1, 1.00K3; www.spine-
health.com/topics/cd/hurt/h04.html (last visited June 19,
2006). Listing 1.04A requires evidence of sensory loss, and
the reports of Dr. Levin cited by Ribaudo indicate that
Ribaudo had loss of sensation in his calf area and com-
plained of numbness in his right leg.
In addition, our own review of the record turned up
several other pieces of evidence unaddressed by the ALJ
that also support Ribaudo’s case. For example, Dr. Levin’s
notes indicated that Ribaudo’s nerve roots were compressed,
which is another of the requirements of Listing 1.04A.
Furthermore, Dr. Stamelos, like Dr. Lim, noted that
Ribaudo had sciatica. The HealthSouth records reveal that
Ribaudo had difficulty squatting, and Dr. Levin noted that
Ribaudo had difficulty walking on his right heel. Inability
to squat or to walk on the toes or heels can be evidence of
significant motor loss, 20 C.F.R. Part 404, Subpart P, App.
1, 1.00E1, which is yet another of Listing 1.04A’s criteria.
Finally, Listing 1.04A also says that motor loss can be
indicated by muscle weakness, and HealthSouth records
show that Ribaudo had lower extremity weakness and that
strength tests on certain areas of his lower right extremity
resulted in scores as low as 3 on a scale of 0 to 5, 20 C.F.R.
Part 404, Subpart P, App. 1, 1.00E1 (explaining that muscle
strength should be assessed using a scale of 0 to 5 with 5
being maximum strength).
The agency points out that the ALJ did cite the Disability
Determination and Transmittal forms filled out by its non-
examining experts which concluded that Ribaudo was not
disabled, and that this is all that is required under Scheck

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No. 05-2541 7
v. Barnhart, 357 F.3d 697, 700-01 (7th Cir. 2004). But that
case also makes clear that the ALJ may rely solely on
opinions given in Disability Determination and Transmittal
forms and provide little additional explanation only so long
as there is no contradictory evidence in the record, id., and
here Ribaudo has presented contradictory evidence suggest-
ing that his impairment meets Listing 1.04A.
Although the ALJ is not required to mention every
piece of evidence in the record, Rice v. Barnhart, 384
F.3d 363, 371 (7th Cir. 2004), his failure here to evaluate
any of the evidence that potentially supported Ribaudo’s
claim does not provide much assurance that he adequately
considered Ribaudo’s case. See Brindisi, 315 F.3d at 786
(criticizing ALJ’s failure to discuss conflicting evidence at
Step 3 inquiry including the strongest piece of evidence
supporting claimant’s case). For this reason, the case
must be remanded to the Social Security Administration
so the agency can conduct a more thorough analysis of
the evidence at Step 3.
We also think that the case must be remanded because
the ALJ’s adverse credibility finding is not supported by the
record. Each of the ALJ’s reasons for his adverse credibility
finding is flawed. First, the record does not support the
ALJ’s finding that Ribaudo’s complaints of severe pain were
not consistent with the objective medical evidence. An ALJ’s
credibility determinations are given special deference, but
the ALJ must still “build an accurate and logical bridge
between the evidence and the result.” Shramek v. Apfel, 226
F.3d 809, 811 (7th Cir. 2000) (internal citation and quota-
tion marks omitted). The ALJ did not do this here. Although
he determined that Ribaudo’s complaints of pain were
inconsistent with the objective medical evidence, he did not
specify what objective medical evidence he was considering,
nor is this clear from the record. Further, he never assessed
the medical evidence that seems to support Ribaudo’s
contention that he was in significant pain. For example,

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8 No. 05-2541
Ribaudo points to the report of Dr. Stamelos, which shows
that he had significant scarring from his back surgery as
well as sciatica—both conditions that can cause pain. The
record also contains an MRI, CT scan, and myelogram
showing that Ribaudo had a herniated disc and a later MRI
showing that Ribaudo had scar tissue from his back sur-
gery. Finally, Ribaudo frequently experienced back pain
during clinical tests, such as straight-leg raising tests.
Moreover, the record does not support the ALJ’s discredit-
ing of Ribaudo’s complaints of severe pain because of his
testimony that he was taking only over-the-counter pain
medications. As Ribaudo points out, he explained at his
hearing that he did not take prescription pain medications
because they did not work, and his doctors did not want him
to take ineffective medications. Yet the ALJ never mentions
Ribaudo’s explanation. Ribaudo’s failure to pursue ineffec-
tive treatments does not suggest that he is not in severe
pain, and therefore cannot be a sound basis for the ALJ’s
adverse credibility finding. See Shramek, 226 F.3d at 813
(ALJ’s finding that claimant’s complaints of leg swelling
were not credible because she refused to wear prescribed
elastic stockings not supported by the record because
claimant testified that hospital personnel instructed her to
remove stockings when they made swelling worse).
Because the ALJ did not adequately explain his Step 3
finding and because his adverse credibility determination
is not supported by the record, we V ACATE the decision of
the district court and R EMAND the case to the Social
Security Administration.

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No. 05-2541 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-11-06

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