7th Circuit upholds denial of disability benefits

An Indiana woman will not receive Social Security disability benefits after the 7^th Circuit Court of Appeals affirmed her ailments don’t limit her from, at a minimum, sedentary work.

Plaintiff-appellant Brenda Wilder applied for Social Security disability benefits in August 2016, alleging a disability onset date of Oct. 8, 2015. Wilder had a significant number of medical appointments in advance of filing her application, during which she reported pain, loss of balance and instances of falling down, among other similar ailments.

Wilder’s application for disability insurance benefits was administratively denied, so she requested a hearing before an administrative law judge. At her September 2018 hearing, Wilder testified that her “gait is off and my balance is off, real bad.” She also testified that she fell spontaneously “about three times a week” and she struggled to do daily activities like laundry, dishes and grocery shopping.

When asked if she believed she could work in an office, Wilder stated she would “have problems getting up walking” and that she could not type. She also believed she was moving more slowly due to her ataxia, a condition affecting a person’s gait, and that she would have difficulty maintaining regular attendance.

Wilder’s counsel at the time did not argue before the ALJ that she met or equaled Listing 11.17, “neurodegenerative disorders of the central nervous system, such as Huntington’s disease, Friedreich’s ataxia, and spinocerebellar degeneration.” Instead, at the beginning of the hearing, her attorney conceded she did not meet or equal any listing.

After Wilder’s testimony and the testimony of a vocational expert, however, Wilder’s attorney qualified his prior statement, saying, “I did say earlier that I didn’t think that she met a listing, because there isn’t a listing for this.” He then added, “there could be an equivalence argument” and, “I just wonder if it might be useful, if your honor does not have enough today to resolve the case, for an interrogatory [to a medical expert] to be sent out.”

In a written opinion issued after the hearing, the ALJ concluded Wilder was not disabled under the Social Security Administration’s five‐step method.

Wilder retained new counsel when she took her case to the United States District Court for the Northern District of Indiana, Hammond Division, where she argued the ALJ should have considered whether she met or equaled Listing 11.17(a). But the district court concluded that although there was “clear evidence” of “severe impairments that affect her balance,” Wilder did not satisfy the criteria of the listing.

“There is no doubt Plaintiff has had difficulty walking, squatting, and balancing,” but “the evidence does not show that she was unable to stand from a seated position or maintain an upright position,” the district court observed.

The court pointed to evidence in the record showing Wilder was able to walk short distances without falling. Additionally, it concluded the ALJ did not err by declining to seek a medical expert’s opinion as to whether Wilder’s impairments medically equaled Listing 11.17(a).

The Indiana Northern District Court relied on Social Security Ruling 17‐2p, which holds that ALJs “may ask for and consider evidence from medical experts,” but they are not required to do so if the ALJ believes “the evidence does not reasonably support a finding” that an individual meets or equals a listing.

Turning to Wilder’s subjective symptoms, the district court concluded the ALJ “could properly find that Plaintiff’s statements about not having falls” at various medical appointments were inconsistent with her testimony at the hearing that she fell about three times a week.

The district court did determine the ALJ erred by making a negative inference against her that she “never attended therapy as recommended” without first exploring whether she could afford therapy, but found any error harmless.

On appeal, Wilder challenged the finding that she did not meet or equal Listing 11.17(a) and the failure to require a medical expert. Also, she argued the judge improperly discredited her subjective symptoms, resulting in the erroneous finding that she had the residual functional capacity to perform sedentary work.

But the 7^th Circuit affirmed Tuesday in Brenda L. Wilder v. Kilolo Kijakazi, Acting Commissioner of Social Security, 21-1607.

“We agree with the district court that Wilder does not meet Listing 11.17(a). To satisfy that Listing, Wilder needed to provide evidence that she suffered from an ‘extreme limitation’ in her ability to either ‘stand up from a seated position [or] balance while standing or walking,’” 7^th Circuit Judge Amy St. Eve wrote for the court. “… By her own admission, Walker uses only one cane to walk, not two. Although she clearly struggles with her balance, there was evidence in the record that she was capable of standing up on her own and walking short distances without incident.”

The appellate court further concluded Wilder did not meet her burden of showing she medically equaled Listing 11.17(a), and the ALJ’s failure to explicitly consider Listing 11.17 was not reversible error. The circuit court cited Vance v. Berryhill, 860 F.3d 1114, 1118 (8th Cir. 2017), in reaching that conclusion.

“Similarly, we reject Wilder’s suggestion that the ALJ was required to seek evidence of medical equivalence from a medical expert,” St. Eve wrote, pointing to Social Security Ruling 17‐2p. “… This Court will uphold an ALJ’s credibility determination unless that determination is ‘patently wrong.’

“… To the extent that the ALJ found Wilder not credible,” St. Eve concluded, “there was evidence in support of that conclusion as well.”