In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2541

PAOLO S. RIBAUDO,

Plaintiff-Appellant,

v.

JO ANNE B. BARNHART,

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.

____________

ARGUED JULY 11, 2006—DECIDED AUGUST 11, 2006

____________

Before BAUER, POSNER, and KANNE, Circuit Judges.

KANNE, Circuit Judge. Paolo Ribaudo appeals from the

district court’s order affirming the decision of the Commissioner of Social Security denying his claim for social

security benefits. Because the district court did not adequately 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
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 performed 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 symptoms 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. Nonetheless, 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 medium/heavy level with a maximum weight-lifting restriction

of fifty pounds.

Another examining physician, Dr. Jit Kim Lim, a neurological 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
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.” Specifically, 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 capable 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 concluded 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 return 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.
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 Administration’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 construction worker. However the ALJ, relying on the testimony 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 affirmed 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-
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. Specifically, he contends that the ALJ should not have rested his

decision entirely on the conclusions of the agency’s nonexamining experts while ignoring other evidence in the

record that showed that his impairment met the requirements 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 neuroanatomic 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 impairments meet a listing, and he must show that his impairments 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 Listing 1.04A, did not evaluate any of the evidence on its
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.spinehealth.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 complained 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 nonexamining experts which concluded that Ribaudo was not

disabled, and that this is all that is required under Scheck
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 suggesting 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 quotation 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,
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 surgery. Finally, Ribaudo frequently experienced back pain

during clinical tests, such as straight-leg raising tests.

Moreover, the record does not support the ALJ’s discrediting 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 ineffective 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 VACATE the decision of

the district court and REMAND the case to the Social

Security Administration.
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