UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

BEVERLY PAGE, )

)

Plaintiff, )

)

v. ) Cause No. 1:15-cv-142

)

CAROLYN W. COLVIN, Acting )

Commissioner of Social Security, )

)

Defendant. )

OPINION AND ORDER

An administrative law judge denied Beverly Page’s application for disability

insurance benefits and supplemental security income. Page argues, among other things,

that the ALJ’s decision should be reversed because she erred in step three by finding

that Page’s impairments do not meet or equal a listed impairment. I agree with Page.

Because the ALJ failed to adequately address whether Page’s back problems and/or

combined impairments meet or equal a listed impairment at step three, I will remand

the case for further analysis and development of the record.

BACKGROUND

At the time of Page’s hearing before the ALJ on October 24, 2013, she was a 46-

year-old high school graduate who stood 5'3'' tall and weighed 108 pounds. (DE 12 at

55.) She was unemployed and last worked in June 2009, when she quit a four-year stint

in a factory inspecting mobile homes. (Id. at 57.) Prior to that, she had worked as a line
worker, a painter, a cleaner, a spot welder, a production assembler, a forklift driver, a

group leader, and a machine operator. (Id. at 29, 62.)

Page stopped working in June 2009 because she “kept getting worse, the

breathing and trying to do things” and because “they just kept sending [her] for more

testing and more things going on.” (Id. at 57.) She filed for disability benefits and

supplemental security income in 2012 alleging an onset date of June 25, 2009. (Id. at

169–70.) At the hearing, the ALJ heard testimony from Page and from a vocational

expert. (Id. at 53.) Page testified that she suffered from chronic obstructive pulmonary

disease (COPD), asthma, fibromyalgia, tension headaches, panic attacks, carpal tunnel

syndrome, and pain between her shoulder blades and in her neck, elbows, wrists, lower

back, hips/posterior, and knees. (Id. at 62–80.) She also testified that she had trouble

reaching above her head and in front of her, numbness and weakness in her hands,

difficulty walking for any sustained period because of her COPD, tingling and burning

in her arms, and weakness in her legs, and difficulty sitting for sustained periods

because of pain in her hips. (Id. at 62–63, 69–70, 79.) Page also told the ALJ that she was

taking prescription medication for fibromyalgia, COPD, asthma, pain, and

anxiety/depression and that she was taking over the counter medication for her tension

headaches. (Id. at 66–69, 76.)

The ALJ issued a decision denying benefits. (Id. at 23-50.) The ALJ found that

Page met the insured status requirements of the Social Security Act and that she has not

engaged in substantial gainful activity since June 25, 2009, the alleged onset date. (Id. at

2
25.) At step two, the ALJ concluded that Page had the following severe impairments:

COPD/asthma, fibromyalgia, cervical spondylosis (neck arthritis), depression, and

panic disorder without agoraphobia. (Id.) The ALJ also found that Page suffered from

tension headaches and carpal tunnel syndrome but that they are non-severe

impairments. (Id. at 25–26.) At step three, the ALJ concluded that Page does not have an

impairment or combination of impairments meeting or medically equaling a listed

impairment, including, most relevant to this appeal, Listing 3.02 (chronic pulmonary

insufficiency) and the section 1.01 listings (musculoskeletal impairments). (Id.) 

At step four, the ALJ found that Page had the capacity to perform “sedentary

work,” as defined in the regulations, but with the following limitations: 

only occasional climbing of ramps/stairs, balancing, stooping,

crouching, kneeling and crawling and never climbing ladders,

ropes, or scaffolds. The claimant also needs to avoid

concentrated exposure to pulmonary irritations (i.e. fumes,

odors, dusts, gases and poorly ventilated areas), extreme

cold/heat/humidity, hazards (i.e. unprotected heights and

dangerous unguarded machinery), bright and/or flashing

lights and very loud noise.

(Id. at 28-29.) In addition, the ALJ found mental health limitations, specifically:

the claimant retains the capacity to perform simple, routine

and repetitive tasks involving low stress jobs consistent with

unskilled work and [to] sustain and [] attend to such tasks

throughout the workday, but cannot perform complex or

detailed tasks. Definition of the term low stress jobs is no more

than occasional decision-making or more than occasional

changes in the work setting.

3
(Id. at 29.) At step five, the ALJ found that Page could not perform any past relevant

work but that there was a sufficient number of jobs in the national economy that she

could perform. (Id. at 41.)

The Appeals Council denied review, making the ALJ’s decision the final decision

of the Commissioner. (Id. at 6-9.) Page timely sought review of that decision by filing

this case.

DISCUSSION

Page challenges two components of the ALJ’s step three analysis. (DE 19 at 15-

19.) At step three, a claimant is presumed disabled and entitled to benefits, if she shows

she has an impairment that meets or equals the criteria for an impairment found in the

Listing of Impairments or if her “impairment is accompanied by symptoms that are

equal in severity to those described in a specific listing.” Barnett v. Barnhart, 381 F.3d

664, 668 (7th Cir. 2004) (citing 20 C.F.R. § 404.1526(a)). In determining whether a

claimant’s condition meets or equals the criteria for a listed impairment, “the ALJ must

discuss the listing by name and offer more than a perfunctory analysis of the listing.” Id.

(internal citations omitted). 

Page argues that the ALJ’s finding that Page’s COPD did not meet or equal the

severity in Listing 3.02 was not supported by sufficient evidence because two of four

evaluations of Page’s pulmonary functioning placed her within the listing’s criteria, and

one evaluation put her just outside the range. Substantial evidence means “such

relevant evidence as a reasonable mind might accept as adequate to support a

4
conclusion.” Nelms v. Astrue, 553 F.3d 1093, 1097 (7th Cir. 2009) (quoting Richardson v.

Perales, 402 U.S. 389, 401 (1971)). Review of the ALJ’s findings is deferential. Overman v.

Astrue, 546 F.3d 456, 462 (7th Cir. 2008). “Although this standard is generous, it is not

entirely uncritical and the case must be remanded if the decision lacks evidentiary

support.” Id. (internal quotation marks and citation omitted). To determine whether

there was substantial evidence, I must review the record as a whole but cannot reweigh

the evidence or substitute my judgment for the ALJ’s. Id.

Page’s pulmonary functioning was first measured on March 13, 2012, via a forced

expiratory volume in one second (“FEV1”) test. (DE 12 at 467, 469.) Although the results

of that test were below the maximum value provided in the listing for a person between

61 and 63 inches tall (1.15 liters) and indicated a “[s]evere airway obstruction” and

reduced lung volumes consistent with COPD, the test was administered just once (preand post-bronchodilator), instead of three times as required by the regulations. (See id.

(showing Page’s highest post-bronchodilator FEV1 was 1.11 liters); 20 C.F.R. § 404(P),

App. 1, ¶ 3.00(E).) As a result, the results of this test support neither a finding that

Page’s pulmonary impairment meets the listing criteria nor the ALJ’s determination that

it does not.

Page’s pulmonary functioning was measured again on March 23, 2012. On that

day, the best of three FEV1 tests met the criteria in the listing. (See DE 12 at 381;

20 C.F.R. § 404(P), App. 1, ¶ 3.02, Tbl. I.) The record of the testing notes that Page

“maybe [gave a] poor initial effort,” but it does not say whether that refers to the first

5
complete test (i.e., a pre- and a post-bronchodilator measurement) or all three prebronchodilator measurements. (DE 12 at 381.) Assuming that Page’s initial effort, if

poor, did not affect the overall validity of the test, this is the sole measure of Page’s lung

function that clearly supports a finding that her impairment meets or equals the criteria

in the Listing of Impairments. This finding is somewhat bolstered by x-rays taken a few

days later, on March 29, 2012, which showed “hyperinflation, suggestive of some

degree of COPD.” (Id. at 471.)

Page’s pulmonary functioning was measured a third time on April 17, 2012, and

was better than the criteria provided in the listing. (See id. at 508; 20 C.F.R. § 404(P),

App. 1, ¶ 3.02, Tbl. I.) Page’s FEV1 values on the first two tests met the criteria for her

height, and her FEV1 value on the last test was only 0.01 liter above the 1.15 liter limit.

(DE 12 at 508 (showing post-bronchodilator FEV1s of 1.07, 1.14, and 1.16 liters).) As a

result, while this series of measurements does not support a finding that Page’s

impairment meets or equals the listing criteria, it also does not strongly support the

ALJ’s determination that Page’s COPD does not meet or equal the criteria.

The last evaluation of Page’s pulmonary functioning in the record took place on

May 7, 2012 and was an arterial blood gas study, which measures the amount of oxygen

and carbon dioxide in arterial blood. (Id. at 530.) The results of that test indicated that

Page’s pulmonary function was significantly better than the listed criteria. (See id.

(showing partial pressure of oxygen of 69 mm Hg and partial pressure of carbon

dioxide at 48.8 mm Hg.) This result strongly supports the ALJ’s finding. 

6
On this record, I cannot say that the ALJ’s decision with respect to Listing 3.02

was not supported by sufficient evidence. It’s a close call, but Page’s pulmonary

functioning was measured four times, yet only one test satisfied the listing criteria—and

recall that Page may have given a poor initial effort on that test. Nor has Page’s briefing

or my own review of the record uncovered other evidence that shows Page’s COPD

equaled the listing. Page argues that records from a June 6, 2013 emergency room visit

show that her breathing problems were as severe as the listing, but her breathing

problems at that time were exacerbated by pneumonia, a condition for which she was

subsequently treated. (See DE 19 at 11–12, 17–18; DE 12 at 734–37; see also DE 12 at 651

(record reporting that Page’s lungs were cleared and had “[n]o acute inflitrates, airspace

consolidation, . . . or active pulmonary process” on July 31, 2013).) In short, there was

enough “relevant evidence as a reasonable mind might accept as adequate to support”

the ALJ’s decision that Page’s COPD did not met or equal a listing. See Nelms, 553 F.3d

at 1097(quoting Richardson, 402 U.S. at 401).

If breathing problems were all there was to Page’s application for benefits, I

would affirm the ALJ’s decision. But Page also challenges the ALJ’s finding that her

back problems do not meet or equal a listed impairment. In step three, the ALJ wrote

just two sentences justifying this determination:

Medical evidence related to the claimant’s back . . . does not

support a finding that she is unable to ambulate effectively, as

defined within Listing 1.00B2b or unable to perform fine/gross

movements effectively as defined within Listing 1.00B2c[.]

(Exhibits 11F; 20F). In addition, the medical evidence does not

7
support criteria contemplated within Listing 1.00

(musculoskeletal) for any of the listed conditions.

(DE 12 at 27.) Page argues that this paragraph is insufficient because the ALJ was

required to mention Listing 1.04 (Disorders of the Spine) and to assess Page’s back

problems in the context of that particular listing. (DE 19 at 16–17.)

In response, the Commissioner argues that Page bears the burden of showing

that her lower back problems meet or equal the requirements of Listing 1.04(A) and that

she failed to do so. I disagree. The listing requires “[e]vidence of nerve root

compression characterized by neuro-anatomic distribution of pain, limitation of motion

of the spine, motor loss. . . accompanied by sensory or reflex loss and . . . positive

straight-leg raising test (sitting and supine)[.]” 20 C.F.R. § 404(P), App. 1, ¶ 1.04(A). The

record here includes a report from a lumbar MRI conducted on February 27, 2013,

showing a “tiny diffuse disc bulge, eccentric leftward . . . encroach[ing] on the inferior

aspect of the left neural foramen and abuts the exiting left nerve root.” (DE 12 at 608).

The record also includes evidence of “axial low back pain radiating into the mid left

thigh[,]” numbness and tingling in Page’s lower left leg, and “decreased strength, range

of motion and flexibility in [the] trunk[.]” (Id. at 609 (February 25, 2013 report); see also

id. at 594 (June 13, 2013 physical therapy report describing lower back pain radiating

into hips).) Finally, the record documents “diffusely decreased” sensation in Page’s left

leg, the absence of reflexes in both Achilles distributions, and a positive straight leg

raise test on the left side, in a seated position. (Id. at 609.)

8
Notwithstanding this evidence, all of which was favorable to Page, the ALJ did

not mention Listing 1.04(A) or delineate at step three why the evidence did not meet or

equal the listing’s criteria. (See DE 12 at 26–28.) Instead, she noted that there was no

evidence of an inability to ambulate or perform fine and gross motor movements

effectively, as defined in paragraph 1.00(B)(2)(b) and (c) and concluded with no

additional analysis that evidence of Page’s back problems did not “support criteria

contemplated within Listing 1.00 (musculoskeletal) for any of the listed conditions.”

(Id.) Yet an inability to ambulate or perform fine and gross motor movements effectively

is not a requirement of Listing 1.04, which means that the ALJ provided no support at

this step for her conclusion that Page’s condition didn’t satisfy Listing 1.04(A). See

20 C.F.R. § 404(P), App. 1, ¶ 1.04(A); see also Cinatl v. Astrue, No. 10-C-2398, 2011 WL

1743408, at *13 (N.D. Ill. May 6, 2011) (finding that Listing 1.04(A) was not intended to

require satisfaction of paragraph 1.00(B)). This is the type of perfunctory analysis that

requires remand. See Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006). 

Nor is this deficiency alleviated by the ALJ’s statements at step four that Page’s

lumbar MRI “do[es] not support more than [a] minimal deficit” and that “other than

one or two references over a more than four-year period, there are no sustained findings

for positive straight leg raising or for significant lower extremity deficits in

standing/walking and engaging in postural maneuvers[.]” (Id. at 39-40.) As explained

above, Listing 1.04 does not include among its criteria difficulty walking or an inability

to walk. See 20 C.F.R. § 404(P), App. 1, ¶ 1.04(A). It also does not require deficits in

9
standing or in postural maneuvers, so a lack of evidence of such symptoms does not

mean that Page’s condition does not meet or equal the listing. See id.

In addition, although the ALJ characterizes Page’s lumbar MRI as showing only a

“minimal deficit,” the opinion does not make clear why the MRI findings fall short of

the criteria in the listing. (See DE 12 at 39–40.) There also is no indication that the ALJ

assessed whether Page’s symptoms equaled Listing 1.04(A), if they didn’t meet it. (Id.) To

be valid, such an assessment requires the opinion of an expert. See Barnett, 381 F.3d at

670; 20 C.F.R. § 404.1526. The Commissioner claims that the ALJ relied on the opinions

of two consulting physicians in finding that Page’s impairments did not equal a listing,

but the record shows that the consulting physicians examined the record in 2012, before

the records evidencing Page’s lower back problems were created. (See DE 12 at 93–96.)

This is another remandable error. See Barnett, 381 F.3d at 670.

Furthermore—and particularly because Page was close to qualifying as

presumptively disabled at step three on the basis of her COPD alone—the ALJ should

have sent the evidence of Page’s lower back problems from 2013 to the consulting

physician(s) to see her more recent lower back problems and resulting pain, were a

tipping point causing the combination of her COPD, neck problems, lower back

problems, and other impairments to equal a listing. See 20 C.F.R.§ 404.1526(b)(3).

Instead, she just assumed that wasn’t the case and didn’t look into it further.

For these reasons, a remand is necessary to permit the agency to further assess

the evidence and develop the record regarding whether Page’s lower back problems,

10
alone or in combination with other impairments, meet or equal a listed impairment.

Because these grounds already require remand, I will not address Page’s remaining

arguments, but the ALJ should consider and address them as appropriate.

CONCLUSION

For the reasons stated above, this cause is REMANDED for further proceedings

consistent with this order. 

SO ORDERED.

ENTERED: September 22, 2016

s/ Philip P. Simon 

CHIEF JUDGE

UNITED STATES DISTRICT COURT

11