UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

MARK D. BERGNER, ) 

 ) 

 Plaintiff, ) 

 ) 

 v. ) CAUSE NO. 1:15-cv-00381-SLC 

 ) 

COMMISSIONER OF SOCIAL ) 

SECURITY, sued as Carolyn W. )

Colvin, Acting Commissioner of SSA,

1

 ) 

 ) 

 Defendant. ) 

OPINION AND ORDER 

Plaintiff Mark D. Bergner appeals to the district court from a final decision of the 

Commissioner of Social Security (the “Commissioner”) denying his application under the Social 

Security Act (the “Act”) for disability insurance benefits (“DIB”) and supplemental security 

income benefits (“SSI”).2 (See DE 1). For the following reasons, the Commissioner’s decision

will be REMANDED. 

I. PROCEDURAL HISTORY 

On August 3, 2009, Bergner filed his applications for DIB and SSI, alleging disability as 

of July 1, 2006. (DE 8 Administrative Record (“AR”) 169-80). Bergner’s application was 

denied on November 13, 2009 (AR 113-20), and he did not request a review of the denial. On 

August 31, 2012, Bergner filed a second application for DIB, alleging the same onset date of 

July 1, 2006. (AR 18, 179-85). This application was denied on December 7, 2012, and was 

 1

 Nancy A. Berryhill is now the Acting Commissioner of Social Security, see Casey v. Berryhill, 853 F.3d 

322 (7th Cir. 2017), and thus, she is automatically substituted for Carolyn W. Colvin in this case, see Fed. R. Civ. P. 

25(d). 

2

 All parties have consented to the Magistrate Judge. (DE 11); see 28 U.S.C. § 636(c). 
2 

again denied upon reconsideration on February 26, 2013. (AR 18). Bergner filed a request for a 

hearing before an Administrative Law Judge, and Administrative Law Judge Patricia Melvin (the 

“ALJ”) held a hearing on March 18, 2014, at which Bergner and Robert Stephen Barkhaus, a 

vocational expert (the “VE”), testified. (AR 37-81). Bergner was represented by attorney Ann 

Trzynka at the hearing. (AR 37). On June 17, 2013, the ALJ issued an unfavorable decision, 

finding that Bergner was not disabled as defined in the Act. (AR 15-36). Bergner requested that 

the Appeals Council review the ALJ’s decision (AR 14), and the Appeals Council denied his 

request, making the ALJ’s decision the final, appealable decision of the Commissioner (AR 1-6). 

 Bergner filed a complaint with this Court on December 15, 2015, seeking relief from the 

Commissioner’s final decision. (DE 1). In his appeal, Bergner alleges that the ALJ erred by: 

(1) failing to consider evidence that Bergner’s condition equaled impairment Listings 4.12, 

11.14, and 1.02; (2) failing to assign appropriate weight to the opinion of Dr. H.M. Bacchus, Jr., 

in her residual functional capacity (“RFC”) determination; (3) failing to incorporate evidence of 

Bergner’s limitations in her hypothetical question to the VE; and (4) failing to assign appropriate 

weight to Bergner’s symptom testimony. (DE 14 at 13-25). 

II. FACTUAL BACKGROUND3

A. Background

Bergner was 46 years old as of the alleged onset date, and 54 years old as of the date of 

the ALJ’s decision.4

 He has a high-school education and was not working at the time of the 

administrative hearing. (AR 41). His employment history includes work in unskilled and semi-

 3

 In the interest of brevity, this Opinion recounts only the portions of the 885-page administrative record 

necessary to the decision. 

4

 For the purposes of the Act, a person under the age of 50 is considered a “younger person,” whose age 

“will [not] seriously affect” that person’s “ability to adjust to other work.” 20 C.F.R. § 404.1563(c). However, a 

person who is between the ages of 50 and 54 is considered a “person closely approaching advanced age,” whose age 

may “seriously affect” that person’s “ability to adjust to other work.” 20 C.F.R. § 404.1563(d). 
3 

skilled positions. (AR 42-45). 

B. Bergner’s Testimony at the Hearing

At the hearing Bergner testified as follows: Bergner lives alone; he is not married and 

has no children. (AR 41). He is approximately five-foot seven-inches tall, and weighs about 190 

pounds. (AR 41). While in high school, Bergner received vocational experience in building 

trades. (AR 41). Bergner does not have any source of income; Park Center paid his rent and 

utilities, and he receives food stamps and Medicaid. (AR 41-42). From 1999 to approximately 

2006, Bergner worked at a variety of jobs that required him to occasionally lift more than 20 

pounds; each job lasted between six months and two years, and he was fired from each position. 

(AR 42-45). He last worked in 2010 or 2011. (AR 42). Bergner has had trouble getting along 

with coworkers and supervisors in the past. (AR 59). 

 Bergner was not looking for work. (AR 45). He claimed that two physical impairments 

prevent him from working: he needs a knee replacement and complications from neuropathy. 

(AR 45). Neuropathy causes numbness, sharp shooting pain, and throbbing pain in both feet but 

it mainly affects his left foot. (AR 45; see also AR 69). Bergner started to experience problems 

from neuropathy in 2011. (AR 45). The longer Bergner stands, the more his feet go numb, 

however, his feet cramp or become numb even while he is sitting. (AR 68-69). The pain can last 

for hours, but it mostly occurs at night. (AR 46). On a scale of zero to 10, with zero being no 

pain and 10 being a trip to the emergency room, Bergner rated the pain in his feet as an eight 

during the day and a six at night. (AR 46). Bergner takes Tramadol for the pain, and Mobic and 

Robaxin for arthritis. (AR 46, 48). The Tramadol is somewhat effective, reducing the pain in 

his feet to a seven during the day and to a five at night. (AR 47). Bergner’s pain subsides when 

he soaks his feet in the bathtub or elevates his feet. (AR 48). 
4 

Bergner can walk for about 10 minutes at a time; stand for about 20 minutes at a time and 

about four hours total in an eight-hour period; sit for about 20 to 30 minutes at a time; and lift 20 

pounds. (AR 56). Bergner can grip doorknobs, steering wheels, cups, and silverware; button 

buttons, zip zippers, and tie shoelaces; push bike pedals with his legs; bend over and touch his 

knees but not his toes; but has limitations climbing stairs. (AR 57). Bergner is able to dress, 

shower, and ride the bus by himself. (AR 59-60). Bergner can go shopping, do the dishes, do 

the laundry, make his bed, clean his kitchen and bathroom, and take out the garbage. (AR 60-

61). 

Bergner is an alcoholic, and despite attempting to stay sober, he occasionally relapses. 

(AR 61). He had one relapse in the past year. (AR 61). Bergner’s alcohol use contributed to the 

reasons for his termination from jobs in the past and played a role in his mental health problems. 

(AR 62). Bergner feels more positive when he does not drink. (AR 63). Bergner smokes about 

half a pack of cigarettes a day and has not done any illegal drugs since about 2007. (AR 61). 

Apart from attending Alcoholics Anonymous twice a week, Bergner does not attend any clubs, 

organizations, or churches. (AR 58-59). Bergner was in a group home for a year in 2009 for 

treatment related to his PTSD, depression, and alcohol abuse. (AR 55). 

C. Summary of Relevant Medical Evidence

From November 12, 2008, until April 12, 2012, Bergner was a patient at the Northeastern 

Center and received treatment for various mental conditions. (AR 352-410). At his initial 

evaluation on November 12, 2008, Bergner reported that he was an alcoholic but he had been 

sober for three years. (AR 352). Bergner claimed to suffer from anxiety, depression, mental 

confusion, fatigue, grief, and hypertension. (AR 352). 

On February 17, 2012, Bergner was seen by Candice Rosa, MSN, NP. (AR 425). In Ms. 
5 

Rosa’s report, she assessed that Bergner had hypertension, osteoarthritis, rosacea, insomnia, and 

fluid in his right knee. (AR 425-26). On May 17, 2012, Ms. Rosa examined Bergner again and 

opined that his knee condition had improved. (AR 423). 

On October 26, 2012, Kari Kennedy, Psy.D., a state agency psychologist, reviewed 

Bergner’s record. (AR 95). Dr. Kennedy opined that Bergner was moderately limited in his 

ability to carry out detailed instructions, understand and remember detailed instructions, and 

concentrate for extended periods. (AR 94). In her narrative, Dr. Kennedy found that Bergner 

could understand and carry out simple instructions; make judgments associated with unskilled 

work; respond appropriately to brief supervision and interactions with coworkers; and deal with 

changes in a routine work setting. (AR 95). Dr. Kennedy concluded that Bergner could perform 

unskilled work. (AR 95). A second state psychologist, F. Kladder, Ph.D., reviewed Bergner’s 

record on February 26, 2013, and reached the same conclusion as Dr. Kennedy. (AR 109-10). 

Dr. Kladder also opined that Bergner had mild limitations in activities of daily living and in 

maintaining social functioning, and moderate limitations in maintaining concentration, 

persistence, or pace. (AR 105-06). 

On November 1, 2012, Dr. Bacchus examined Bergner. (AR 560-63). Dr. Bacchus’s 

impression included that Bergner had depression, PTSD, a history of alcohol abuse, an MCL 

strain in his left knee, generalized joint pain, a history of chronic sinusitis, carpel tunnel 

syndrome in his left wrist, and tobacco abuse. (AR 562). Dr. Bacchus opined that Bergner could 

perform light to moderate duties, standing three to four hours in a six- to eight-hour day noncontinuous, and that he had limitations with repetitive squatting, stooping, climbing, walking on 

uneven ground, kneeling, and crawling. (AR 562). 

On December 4, 2012, Dr. Richard Wenzler, a state agency physician, reviewed 
6 

Bergner’s record and opined that he could lift and carry 20 pounds occasionally and 10 pounds 

frequently; stand or walk six hours in an eight-hour work day; sit six hours in an eight-hour work 

day; climb stairs and ramps occasionally; never climb ladders; and occasionally balance, stoop, 

kneel, crouch, and crawl. (AR 91-93). Dr. Wenzler also found that Bergner had some 

environmental limitations. (AR 93). On February 26, 2013, Dr. Joshua Eskonen, a state agency 

physician, reviewed Bergner’s record and reached the same conclusions as Dr. Wenzler. (AR 

106-08). 

On September 5, 2013, Bergner submitted to an examination by neurologist Dr. Carolyn 

Yap. (AR 755-57). Bergner’s chief complaints were cramps and numbness in both feet. (AR 

755). Dr. Yap’s treatment plan for Bergner included an arterial Doppler ultrasound and an EMG 

of Bergner’s lower extremities. (AR 757). On September 11, 2013, Bergner underwent an EMG 

and nerve conduction study with Dr. Ajay Gupta, who reported that the results of Bergner’s 

“nerve conduction study” were compatible with “a nearly symmetrical sensory motor peripheral 

polyneuropathy with demyelinating features.” (AR 753). On September 13, 2013, Bergner 

presented to Dr. Yap again for an arterial Doppler ultrasound. (AR 751-52). The Doppler 

ultrasound showed that Bergner had a diminished ankle brachial index (“ABI”) on the left at 0.36 

to 0.41, and a mildly diminished ABI on the right at 0.75 to 0.81. (AR 751). Dr. Yap opined 

that Bergner had significant left iliofemoral and to a lesser extent trifurcation disease. (AR 751). 

Additionally, Dr. Yap noted that Bergner had claudication in the left leg worse than the right. 

(AR 751). 

On February 6, 2014, Dr. Gupta saw Bergner again. (AR 642). Bergner presented with 

“numbness in his toes and feet for the past one and a half years” (AR 642) and “difficulty doing 

tandem gait” (AR 643). Dr. Gupta’s impressions included “peripheral polyneuropathy[,]” 
7 

“[l]eft-side sciatica,” and “[s]evere osteoarthritis” in Bergner’s left knee. (AR 643). 

On February 7, 2014, Bergner was found outside his apartment in a drunken state, and he 

was subsequently admitted to St. Joe Hospital. (AR 719). On February 20, 2014, Dr. Yap 

examined Bergner and found that he had frostbite and “multiple injuries” related to the February 

7, 2014, incident. (AR 746). Dr. Yap noted that Bergner had an ulcer on his left heel, 6 

millimeters in diameter, and numbness in his toes; she diagnosed him with peripheral arterial 

disease. (AR 746). 

On March 6, 2014, Bergner was examined by Dr. Cynthia Vanderbosch. (AR 868). Dr. 

Vanderbosch reported that Bergner was given Levaquin for his frostbite, and that, although his 

condition had improved from the frostbite, he still had two painful spots on his left foot. (AR 

868). In the section of her report regarding Bergner’s peripheral vascular system, Dr. 

Vanderbosch noted that he had a “min[imal] if any palpable pulses . . . .” (AR 868). Dr. 

Vanderbosch recommended that Bergner see a cardiovascular surgeon due to “severe [ABI]” on 

the left and a minimal ABI on the right. (AR 868). 

III. STANDARD OF REVIEW 

Section 405(g) of the Act grants this Court “the power to enter, upon the pleadings and 

transcript of the record, a judgment affirming, modifying, or reversing the decision of the 

Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 

U.S.C. § 405(g). The Court’s task is limited to determining whether the ALJ’s factual findings 

are supported by substantial evidence, which means “such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 

(7th Cir. 2005) (citation omitted). The decision will be reversed only if it is not supported by 

substantial evidence or if the ALJ applied an erroneous legal standard. Clifford v. Apfel, 227 
8 

F.3d 863, 869 (7th Cir. 2000). 

 To determine if substantial evidence exists, the Court reviews the entire administrative 

record but does not re-weigh the evidence, resolve conflicts, decide questions of credibility, or 

substitute its judgment for the Commissioner’s. Id. Rather, if the findings of the Commissioner 

are supported by substantial evidence, they are conclusive. Id. Nonetheless, “substantial 

evidence” review should not be a simple rubber-stamp of the Commissioner’s decision. Id. 

IV. ANALYSIS 

A. The Law 

Under the Act, a claimant is entitled to DIB if he establishes an “inability to engage in 

any substantial gainful activity by reason of any medically determinable physical or mental 

impairment which can be expected to . . . last for a continuous period of not less than 12 

months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A), 1382c(a)(3)(A). A physical or mental 

impairment is “an impairment that results from anatomical, physiological, or psychological 

abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic 

techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). 

 In determining whether Bergner is disabled as defined by the Act, the ALJ conducted the 

familiar five-step analytical process, which required her to consider the following issues in 

sequence: (1) whether the claimant is currently unemployed; (2) whether the claimant has a 

severe impairment; (3) whether the claimant’s impairment meets or equals one of the 

impairments listed by the Commissioner, see 20 C.F.R. § 404, Subpt. P, App’x 1; (4) whether the 

claimant is unable to perform his past work; and (5) whether the claimant is incapable of 

performing work in the national economy.5

 See Dixon v. Massanari, 270 F.3d 1171, 1176 (7th 

 5

 Before performing steps four and five, the ALJ must determine the claimant’s RFC, or what tasks the 

claimant can do despite his limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a), 416.920(a)(4). The RFC is then 
9 

Cir. 2001); 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. An affirmative answer leads either to 

the next step or, on steps three and five, to a finding that the claimant is disabled. Zurawski v. 

Halter, 245 F.3d 881, 886 (7th Cir. 2001). A negative answer at any point other than step three 

stops the inquiry and leads to a finding that the claimant is not disabled. Id. The burden of proof 

lies with the claimant at every step except the fifth, where it shifts to the Commissioner. Id. at 

885-86. 

B. The ALJ’s Decision

 At step one, the ALJ found that Bergner satisfied the “insured status requirements” of the 

Act through June 30, 2014. (AR 20). At step two, the ALJ determined that Bergner had the 

following severe impairments: severe degenerative changes in the left knee, neuropathy, and 

alcohol dependence. (AR 20-23). At step three, that ALJ determined that Bergner did not have 

an impairment or a combination of impairments that met or medically equaled the severity of one 

of the listed impairments. (AR 23-24). Before proceeding to step four, the ALJ, in determining 

Bergner’s RFC, found that he could: 

lift and/or carry 20 pounds occasionally and 10 pounds frequently. 

He [could] stand and/or walk for six hours and sit for six hours out 

of an eight-hour workday. [Bergner] [could] []not climb ladders, 

ropes, and scaffolds. He [could] occasionally climb ramps/stairs, 

balance, stoop, kneel, crouch and crawl. [Bergner] should avoid 

concentrated exposure to extreme cold, heat, wetness, humidity,

excessive vibrations, irritants (such as fumes, odors, dust, and 

gases), poorly ventilated areas, and wet/slick/uneven surfaces. He 

is also limited to simple routine repetitive tasks with simple work 

defines [sic] as SVP 1-2. 

(AR 24). Based on this RFC, the ALJ found at step four that Bergner could not perform his past 

relevant work. (AR 28-29). The ALJ, considering the testimony of the VE and other evidence in 

 

used during steps four and five to help determine what, if any, employment the claimant is capable of. 20 C.F.R. §§ 

404.1520(e), 404.945(a)(5), 416.920(a)(4). 
10 

the record, then found at step five that Bergner could perform a significant number of jobs in the 

national economy, and therefore, was not disabled. (AR 29-30). 

C. The ALJ Failed to Properly Consider Evidence of 

Bergner’s Impairments at Step Three 

Bergner argues that the ALJ erred at step three, which requires the ALJ to consider 

whether a claimant’s medical findings meet or equal a Listing’s criteria. Specifically, Bergner 

argues that the ALJ erred by failing to discuss Listing 4.12, peripheral arterial disease, and by 

failing to conclude that he met or equaled the Listing criteria for subsection (A) of Listing 4.12. 

At step three, the ALJ considered whether Bergner’s condition met or equaled the 

requirements for Listings “1.02 Major Dysfunction of a Joint, 11.13 for Peripheral 

Neuropathies, 12.09 Substance Abuse Disorders, or any impairments listed . . . .” (AR 23 

(emphasis in original)). The ALJ determined that none of Bergner’s impairments satisfied any 

listing criteria; however, the majority of the ALJ’s reasoning focused on evidence of Bergner’s 

alleged mental impairments. (See AR 24). Regarding whether Bergner’s other alleged 

impairments met or equaled a listing, the ALJ merely stated that his “condition does not satisfy 

the standard.” (AR 23). The ALJ never mentioned Listing 4.12 by name or any evidence related 

to it during her step-three analysis. 

To meet or equal a listed impairment, the claimant must satisfy all of the criteria of the 

listed impairment. Maggard v. Apfel, 167 F.3d 376, 379-80 (7th Cir. 1999). The criteria of 

Listing 4.12 is as follows: 

4.12 Peripheral arterial disease, as determined by appropriate

medically acceptable imaging (see 4.00A3d, 4.00G2, 4.00G5, and 

4.00G6), causing intermittent claudication (see 4.00G1) and one of 

the following: 

A. Resting ankle/brachial systolic blood pressure ratio of 

less than 0.50. 
11 

OR 

B. Decrease in systolic blood pressure at the ankle on 

exercise (see 4.00G7a and 4.00C16–4.00C17) of 50 percent 

or more of pre-exercise level and requiring 10 minutes or 

more to return to pre-exercise level. 

OR 

C. Resting toe systolic pressure of less than 30 mm Hg 

(see 4.00G7c and 4.00G8). 

OR 

D. Resting toe/brachial systolic blood pressure ratio of less 

than 0.40 (see 4.00G7c). 

20 C.F.R. § 404, Subpt. P, App’x. 1, 4.12. The claimant bears “the burden of showing that his 

impairments meet a listing, and he must show that his impairments satisfy all of the various 

criteria specified in the listing.” Ribaudo v. Barnhart, 458 F.3d 580, 583 (7th Cir. 2006) (citing 

Maggard, 167 F.3d at 380). However, the Seventh Circuit has not required a lengthy articulation 

at step three. Wurst v. Colvin, 520 F. App’x 485, 488 (7th Cir. 2013) (“The ALJ’s [onesentence] analysis here was cursory, but it was nevertheless supported by substantial evidence 

that Wurst could ambulate effectively.”). “In considering whether a claimant’s condition meets 

or equals a listed impairment, an ALJ must discuss the listing by name and offer more than a 

perfunctory analysis of the listing.” Minnick v. Colvin, 775 F.3d 929, 936 (7th Cir. 2015). “[A] 

failure to do so . . . may require a remand.” Ribaudo, 458 F.3d at 583 (citations omitted). 

 The ALJ did not specifically mention Listing 4.12 at step three of the analysis, and 

therefore the Court must determine whether this failure was combined with a perfunctory 

analysis, such that a remand is required. Id. The Court agrees with Bergner that the ALJ did not 

provide a sufficient analysis of the step-three question. In addition to not mentioning Listing 
12 

4.12, the ALJ did not evaluate at step three any of the evidence favorable to Bergner that was 

relevant to that listing. 

Specifically, Dr. Yap diagnosed Bergner with peripheral arterial disease in her report 

dated February 20, 2014. (AR 746). In fact, during the administrative hearing, Attorney 

Trzynka brought evidence of Dr. Yap’s diagnosis to the ALJ’s attention. (AR 80). But even 

before making that diagnosis, Dr. Yap’s notes reveal that Bergner may have satisfied some of the 

criteria of Listing 4.12. For example, Listing 4.12 requires an ABI of 0.50 or less, and on 

September 13, 2013, Dr. Yap found that Bergner’s left ABI was between 0.36 and 0.41.6 (AR 

751-52). Moreover, Dr. Yap’s use of ultrasound imaging to find a diminished ABI is consistent 

with Listing 4.12’s requirements for using medical equipment to establish peripheral arterial 

disease. See 20 C.F.R. § 404, Subpt. P, App’x 1, § 4.00G2. Additionally, Dr. Yap found that 

Bergner had claudication in his left leg worse than in his right (AR 751), which may satisfy 

Listing 4.12’s “intermittent claudication” requirement, 20 C.F.R. § 404, Subpt. P, App’x 1, 4.12; 

see also 20 C.F.R. § 404, Subpt. P, App’x 1, § 4.00G1 (“If you have peripheral arterial disease, 

you may have pain in your calf . . . .”). Therefore, the record contains at least some evidence, 

which the ALJ did not address at step three, that Bergner’s condition may satisfy the 

requirements of Listing 4.12 subparagraph (A).7

 See 20 C.F.R. § 404, Subpt. P, App’x. 1, 4.12. 

 An ALJ’s failure to “mention the specific listing [s]he is considering,” combined with a 

“‘perfunctory analysis’ may require remand.” Ribaudo, 458 F.3d at 583 (citations omitted). 

Moreover, it is well established that an ALJ may not ignore entire lines of evidence. Arnett v. 

 6

 The ALJ was apparently aware of Dr. Yap’s findings during this examination, as she mentioned Dr. Yap’s 

report in her step-two determination. (See AR 22 (“The claimant also stated that he experienced numbness in both 

feet with cramping in the legs. . . . Furthermore, diagnostics revealed mildly diminished right ABI and severely 

diminished left ABI as well as mild right ileofemoral disease, and significant left ilefemoral trifurcation disease.”)). 

7

 Bergner does not argue that his condition satisfies the criteria listed in subparagraphs (B) through (D), of 

Listing 4.12. 
13 

Astrue, 676 F.3d 586, 592 (7th Cir. 2012). The Court finds that the ALJ’s failure to mention 

Listing 4.12 or provide any analysis, much less a perfunctory analysis, at step three was error and 

warrants a remand. 

 The Commissioner argues that the ALJ’s failure to discuss any evidence relevant to 

Listing 4.12 or mention the Listing by name is excused because Bergner did not provide 

evidence that he suffered from peripheral arterial disease for the requisite duration of 12 months. 

(DE 21 at 6 (citing 42 U.S.C. § 423(d)(1)(A); Bauzo v. Bown, 803 F.2d 917, 923 (7th Cir. 

1986)). The Commissioner is correct that Bergner bears the burden “to show that [he] is unable 

to engage in any substantial gainful activity by reason of any medically determinable physical or 

mental impairment . . . which has lasted or can be expected to last for a continuous period of not 

less than 12 months.” Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998) (citing 42 U.S.C. § 

423(d)(1)(A)). However, it is well established that the Commissioner “may not advance an 

explanation that the [ALJ] never made [her]self and may not attempt to support the decision with 

evidence the [ALJ] apparently did not consider.” Arnett, 676 F.3d at 592 (citations omitted); see 

Spiva v. Astrue, 628 F.3d 346, 348 (7th Cir. 2010) (“[I]n defiance of the principle of SEC v. 

Chenery Corp., 318, U.S. 80, 87-88 (1943), the government’s lawyers who defend denials of 

disability benefits often rely heavily on evidence not (so far as appears) relied on by the 

administrative law judge, and defend the tactic by invoking an overbroad conception of harmless 

error.” (collecting cases)). 

Here, as discussed supra, the ALJ did not consider at step three any evidence related to 

peripheral arterial disease, including its duration. Consequently, the Commissioner may not 

claim before the district court that Bergner’s peripheral arterial disease diagnosis was “made 

only once, or need[s] to be evaluated in context.” Arnett, 676 F.3d at 592-93 (citations omitted). 
14 

Moreover, absent any mention of the medical evidence concerning peripheral arterial disease, the 

Court cannot decipher what impact the evidence had on the ALJ’s determination at step three or 

whether the ALJ even considered the evidence at all at step three. Brindis ex rel. Brindisi v. 

Barnhart, 315 F.3d 783, 786 (7th Cir. 2003) (“[T]he ALJ’s opinion is important not in its own 

right but because it tells us whether the ALJ has considered all the evidence, as the statutes 

requires h[er] to do.” (quoting Stephens v. Heckler, 766 F.2d 284, 288 (7th Cir. 1985))); see, e.g., 

Silva v. Barnhart, No. 02 C 5681, 2003 WL 22425010, at *7 (N.D. Ill. Oct. 23, 2003) 

(remanding the ALJ’s step-three decision where he failed to adequately address the criteria of 

Listing 14.02). 

Nor does the ALJ’s reliance on the state agency doctors rehabilitate her step-three 

oversight. Typically, “[t]he ALJ may properly rely upon the opinion” of state agency doctors 

regarding “medical equivalence at the initial and reconsideration levels of administrative review . 

. . .” Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004) (citations and internal quotation 

marks omitted). But in this case, the diagnosis and other medical evidence concerning peripheral 

arterial disease (see AR 746, 751) occurred after the state agency doctors reviewed Bergner’s 

medical records (AR 91-93, 95, 105-08). Thus, the state agency doctors never had the 

opportunity to review this evidence or to consider whether Bergner met or equaled Listing 4.12. 

Therefore, the Commissioner’s argument that that the ALJ’s decision should be affirmed 

despite omitting any discussion of Listing 4.12 or medical evidence concerning peripheral 

arterial disease fails, and the case will be remanded.8

 

 

 8

 Because the Court finds that remand is warranted due to the ALJ’s failure to properly consider whether 

Bergner met or medically equaled Listing 4.12, the Court need not reach the remainder of Bergner’s arguments for 

remand. 
15 

V. CONCLUSION 

For the reasons articulated herein, the decision of the Commissioner is REVERSED, and 

the case is REMANDED to the Commissioner for further proceedings in accordance with this 

Opinion and Order. The Clerk is directed to enter a judgment in favor of Bergner and against the 

Commissioner. 

 SO ORDERED. 

 

 Entered this 14th day of December 2017. 

 /s/ Susan Collins _ 

 Susan Collins 

 United States Magistrate Judge