                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-4076
JOANNE BARNETT,
                                             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 Indiana, Hammond Division.
            No. 4:03-CV-14-AS—Allen Sharp, Judge.
                          ____________
    ARGUED AUGUST 3, 2004—DECIDED AUGUST 25, 2004
                     ____________



 Before POSNER, ROVNER, and DIANE P. WOOD, Circuit
Judges.
  ROVNER, Circuit Judge. Joanne Barnett suffers from non-
convulsive epileptic seizures and seeks disability insurance
benefits under 42 U.S.C. § 423(a)(1). An administrative law
judge (ALJ) concluded that her condition is not severe
enough to be presumptively disabling, and that even with
the condition, she is not disabled because she can still perform
a substantial number of jobs in the local economy. The
Appeals Council denied review, rendering the ALJ’s
decision the final decision of the Commissioner of Social
2                                                No. 03-4076

Security. 20 C.F.R. § 404.981. Barnett then sought review in
the district court, 42 U.S.C. § 405(g), without success.
Because we conclude that the ALJ made significant errors
in finding that Barnett is not presumptively disabled, we
reverse the judgment of the district court and remand for
further proceedings.


                    I. BACKGROUND
  Barnett began experiencing seizures after the birth of her
son over thirty-five years ago. For years the seizures were
sporadic and minor, and they did not stop Barnett from
owning a restaurant with her husband, Jack, where she
cooked and performed administrative tasks. But over time
Barnett’s seizures became more frequent, ultimately forcing
the couple to sell their restaurant in May 2000 after fifteen
years. Barnett applied for disability benefits the following
year, alleging an onset date of May 2000. However, in
August 2001, a few months after Barnett filed, she and her
husband resumed ownership of the restaurant when the
sale fell through, and Barnett is working there again about
four hours a week.
   Barnett sought long-term treatment primarily from her
family physician, Dr. Francis O’Brien. Throughout the early
1990s, Dr. O’Brien prescribed anti-seizure medications, but
still Barnett experienced seizures with increasing, though ir-
regular, frequency. Medical records show that in early 1993
the seizures might be separated by weeks, but over the
following three years the frequency had jumped to where
Barnett reportedly suffered three a month on average and
occasionally four or five in a single day. Increasing the dos-
age of her medications provided only temporary relief, so in
July 1999 Barnett consulted a neurologist, Dr. Richard
Cristea. Dr. Cristea ordered tests including an MRI and con-
firmed Dr. O’Brien’s diagnosis of epilepsy. He then adjusted
Barnett’s medications, yet the number of seizures increased
No. 03-4076                                                 3

during late 1999 to a reported average of four or five a
month. The following year was better, and in June 2000
Barnett reported to Dr. O’Brien that she went an entire
month without a seizure and that she was “having less
seizures than ever before.” At her next annual examination
in June 2001—after she had applied for disability benefits—
Barnett told her new treating physician, Dr. Marianne Plascak
(who is also Dr. O’Brien’s daughter), that she sometimes has
seizures every day but had recently gone a week without one.
Barnett returned to Dr. Plascak in October 2001, reporting
that she had suffered three seizures in eleven days.
  The Indiana Department of Family and Social Services
consulted three doctors regarding Barnett’s application for
benefits. Dr. Robert Kaye wrote after an August 2001 exam-
ination that Barnett reported having a seizure about every
two weeks and that her seizures were “not followed by any
long episodes of lack of concentration.” He opined that
Barnett’s seizures were “not terribly out of control” but
rendered no opinion regarding their severity. In September
2001 Dr. A. Dobson completed a Physical Residual Functional
Capacity Report (“RFC”) after reviewing Barnett’s medical
records. In the RFC, Dr. Dobson opined that Barnett had no
exertional limitations as a consequence of her seizures but
should avoid all exposure to hazards such as machinery and
heights. Dr. J. Sands reviewed Barnett’s medical records
and agreed with Dr. Dobson’s RFC findings.
  In contrast to these consultants’ opinions, Dr. Plascak sub-
mitted two opinion letters for the ALJ to consider. In a
January 2002 letter, Dr. Plascak opined that Barnett was
totally disabled by her seizures: “Joanne Barnett has a long
history of seizure disorder. More recently she is having re-
current uncontrolled absence seizures. This condition renders
her totally disabled. She is not able to be gainfully employed
at any job.” In an August 2002 letter, Dr. Plascak also dis-
agreed with statements in Dr. Kaye’s report about Barnett’s
recurrent seizures:
4                                                 No. 03-4076

    Joanne Barnett has a known diagnosis of epilepsy. She
    states that the related seizures are more frequent when
    she is overtired. Seizures are two to three minutes in dur-
    ation. The after effects of a seizure include blackouts,
    numb lips, inability to speak, in addition to impaired
    thought concentration. After these seizures the patient
    sleeps for approximately four hours.
  At her disability hearing in September 2002, Barnett de-
scribed the frequency and nature of her seizures. Barnett
explained that as of the date of the hearing she sometimes
had seizures two to three times a day and on average eight
to nine times a week. According to Barnett, the seizures
come with no real warning; if she senses the onset, though,
she will try to move to the restaurant’s office. She testified
that during the seizures, which last two to three minutes,
she will black out, feel her mouth go numb, and not be able
to speak. Afterwards she cannot concentrate for three to
four hours and usually sleeps. Although she worked in the
restaurant’s kitchen around knives and stoves and occasion-
ally drove a car, she acknowledged that she had never been
injured because of her seizures.
  Jack Barnett also testified at his wife’s disability hearing,
confirming that she might have two to three seizures a day
and eight to ten a week, and that the frequency was
increasing. Jack added that his wife “can’t talk, she can’t
move, she can’t do anything” during a seizure. He used one
of Barnett’s recent seizures as an example:
    [S]he’ll be sitting in the car, and then all of a sudden,
    she’ll say something, and I’ll look at her, and then she
    can’t talk no more, that’s it. I mean, her mouth, then she
    starts feeling of her mouth, and her mouth gets numb,
    and so I don’t say nothing to her, just for a little while.
    And then after it’s over with, I ask her if she’s all right.
When asked if Barnett lost consciousness during a seizure,
Jack responded that he did not know, but added that Barnett
will fall down if she is standing when a seizure occurs.
No. 03-4076                                                  5

   Applying the standard five-step analysis, see 20 C.F.R.
§ 416.920(a)(4), the ALJ concluded that Barnett is not dis-
abled. At step one, he “reserved” deciding whether Barnett
was engaging in substantial gainful activity given that she
had resumed working at her restaurant. The ALJ found at
step two that Barnett suffers from a severe seizure disorder.
At step three, however, the ALJ concluded that Barnett’s
disorder does not meet or equal any listed impairment be-
cause, according to the ALJ, Barnett’s seizures are too in-
frequent to satisfy the listing criterion for nonconvulsive
epilepsy that seizures occur at least once weekly. The ALJ
discredited Barnett’s account of more frequent seizures
because, according to the ALJ, her hearing testimony was
inconsistent with her work history and activities, and with
her earlier descriptions to her treating doctors of the seiz-
ures, their side effects, and their frequency. The ALJ also
found Jack Barnett not credible because his testimony simply
“reiterated” Barnett’s testimony. And the ALJ discounted
Dr. Plascak’s opinion that Barnett is totally disabled because
the opinion rests on Barnett’s “description of her seizures
and their effects and is inconsistent with the medical evidence
in the record.” The ALJ found at step four that Barnett cannot
perform her past restaurant work, but can hold a job that
does not entail climbing to unprotected heights, proximity
to machinery, or driving. Finally, at step five, the ALJ re-
lied on a vocational expert’s testimony in concluding that
Barnett could work as a cashier, clerk, or messenger—of
which there are a substantial number of positions in Indiana.


                       II. ANALYSIS
  We will uphold an ALJ’s decision as long as the ALJ ap-
plied the correct legal standard, and substantial evidence
supports the decision. Steele v. Barnhart, 290 F.3d 936, 940
(7th Cir. 2002). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
6                                                 No. 03-4076

support a conclusion.” Gudgel v. Barnhart, 345 F.3d 467,
470 (7th Cir. 2003) (internal quotation marks and citation
omitted). On appeal Barnett challenges the ALJ’s determi-
nation that her seizures do not occur at least one time per
week on average. If the ALJ had credited Barnett’s testimony
that she currently suffers sometimes two to three seizures
a day and on average eight to nine a week, the ALJ would
have found her presumptively disabled at step three.
   Under a theory of presumptive disability, a claimant is
eligible for benefits if she has an impairment that meets or
equals an impairment found in the Listing of Impairments.
20 C.F.R. § 404.1520(d); 20 C.F.R. Pt. 404, Subpt. P, App. 1.
The listings specify the criteria for impairments that are
considered presumptively disabling. 20 C.F.R. § 404.1525(a).
A claimant may also demonstrate presumptive disability by
showing that her impairment is accompanied by symptoms
that are equal in severity to those described in a specific
listing. Id. § 404.1526(a). In considering whether a claim-
ant’s condition meets or equals a listed impairment, an ALJ
must discuss the listing by name and offer more than a per-
functory analysis of the listing. See Brindisi ex rel. Brindisi
v. Barnhart, 315 F.3d 783, 786 (7th Cir. 2003); Scott v.
Barnhart, 297 F.3d 589, 595-96 (7th Cir. 2003); Steele, 290
F.3d at 940. The ALJ never identified by name the listing
relevant to Barnett’s disability claim. But, giving the ALJ
the benefit of the doubt, we infer from his written decision
that he correctly recognized the applicability of Listing 11.03.
That listing applies to “nonconvulsive epilepsy,” which must
be documented by a “detailed description of a typical seizure
pattern, including all associated phenomena.” 20 C.F.R. Pt.
404, Subpt. P., App. 1, § 11.03. Seizures must occur “more
frequently than once weekly” despite prescribed treatment,
and with “alteration of awareness or loss of consciousness
and transient postictal manifestations of unconventional
behavior or significant interference with activity during the
day.” Id.
No. 03-4076                                                 7

  The ALJ’s first mistake in evaluating whether Barnett’s
impairment meets or equals Listing 11.03 was his refusal
to give careful consideration to the medical records predat-
ing her May 2000 abandonment of full-time employment.
Having a job is not necessarily inconsistent with a claim of
disability; the claimant “may have a careless or indulgent
employer or be working beyond his capacity out of despera-
tion.” Henderson v. Barnhart, 349 F.3d 434, 435 (7th Cir.
2003); see Wilder v. Apfel, 153 F.3d 799, 801 (7th Cir. 1998).
Barnett’s medical records, going back more than ten years
before she ever filed an application for benefits, document
that she suffers from nonconvulsive epilepsy, as confirmed
by the MRI in 1999 that revealed a loss of brain cells in the
hippocampus as often seen in individuals with temporal
lobe epilepsy. While it may be true that these records do not
establish an average of one seizure per week over the entire
course of treatment, they do establish an upward trend in the
frequency and severity of Barnett’s seizures. Beginning in
1999 a pattern emerged where Barnett’s seizures become
more frequent and adjustments to her medications only
temporarily controlled the upsurge; the seizures then
become more frequent again, leading to further adjustments
in her medications.
  The ALJ also mistakenly disregarded Dr. Plascak’s opinion
that Barnett suffers from recurrent seizures and is disabled;
the ALJ reasoned that Dr. Plascak’s opinion is inconsistent
with the medical record, but this conclusion is but another
reflection of the ALJ’s unwillingness to give effect to a de-
cade of treatment records. Dr. Plascak’s opinion is not incon-
sistent with Barnett’s record of past treatment. But if the
ALJ’s real concern was the lack of backup support for Dr.
Plascak’s opinion, the ALJ had a mechanism to rectify the
problem. An ALJ has a duty to solicit additional informa-
tion to flesh out an opinion for which the medical support is
not readily discernable. 20 C.F.R. § 404.1527(c)(3); see also
S.S.R. 96-2p at 4 (“[I]n some instances, additional develop-
8                                                No. 03-4076

ment required by a case—for example, to obtain more evi-
dence or to clarify reported clinical signs or laboratory find-
ings—may provide the requisite support for a treating source’s
medical opinion that at first appeared to be lacking or may
reconcile what at first appeared to be an inconsistency
between a treating source’s medical opinion and the other
substantial evidence in the case record.”); Smith v. Apfel, 231
F.3d 433, 437-38 (7th Cir. 2000) (finding that the ALJ’s duty
to develop the record included soliciting updated medical rec-
ords when the ALJ did not afford the treating doctor’s
opinion controlling weight on that basis); Smolen v. Chater,
80 F.3d 1273, 1288 (9th Cir. 1996) (“If the ALJ thought he
needed to know the basis of [medical] opinions in order to
evaluate them, he had a duty to conduct an appropriate
inquiry, for example, by subpoenaing the physicians or
submitting further questions to them.”). Further, although
a medical opinion on an ultimate issue such as whether the
claimant is disabled is not entitled to controlling weight,
the ALJ must consider the opinion and should recontact the
doctor for clarification if necessary. S.S.R. 96-5p at 2. Thus,
the ALJ should have contacted Dr. Plascak for clarification
of her medical opinions, asking for more detail regarding the
frequency of Barnett’s seizures or for updated medical
records that supported Dr. Plascak’s opinion that Barnett
was disabled. See S.S.R. 87-6 at 2 (“There must be a
satisfactory description by the treating physician of the
treatment regimen and response, in addition to corrobora-
tion of the nature and frequency of seizures, to permit an
informed judgment on impairment severity.”).
  The ALJ’s decision to discredit the Barnetts’ testimony also
stems from a narrow view of the record and, at least insofar
as the reasons given, is “patently wrong.” See Jens v.
Barnhart, 347 F.3d 209, 213 (7th Cir. 2003) (explaining that
an ALJ’s credibility determination will not be overturned
unless it is “patently wrong” and not supported by the
record). The ALJ assumed that, if Barnett’s testimony that
No. 03-4076                                                    9

she sometimes suffers two to three seizures a day and eight
to nine seizures a week is credible, she likely would have
been injured. Barnett explained, however, that because she
was her own boss she could take “liberties,” like going into
the restaurant’s office if she felt a seizure coming, to avoid
an injury. The ALJ’s remaining reason for discrediting
Barnett’s testimony—that her hearing testimony was incon-
sistent with what she told her doctors about the frequency
and nature of her seizures—again reveals the ALJ’s misap-
prehension of the record. The record establishes an upward
trend in the frequency and severity of Barnett’s seizures,
and Barnett’s testimony reflects that the trend continued
through her disability hearing. We are given no reason to
assume, as did the ALJ, that Barnett is necessarily lying
about the current frequency of her seizures just because the
interval between them has grown shorter. And because the
ALJ discredited Jack Barnett’s testimony merely because he
reiterated his wife’s testimony, that credibility determina-
tion is also “patently wrong.” Mr. Barnett was corroborating
his wife’s testimony, and the ALJ appears to have no
independent reason to disbelieve him.
   Ultimately, though, even apart from the ALJ’s misap-
prehension of the evidence, we would conclude that his two-
sentence consideration of the Listing of Impairments is in-
adequate and warrants remand. See Brindisi, 315 F.3d at
786; Scott, 297 F.3d at 595-96; Steele, 290 F.3d at 940. All that
the ALJ ever said is that he disbelieved Barnett’s testimony
concerning the number of seizures she was experiencing; he
never affirmatively determined how many seizures he believed
Barnett actually experienced. And, thus, we cannot discern
if the ALJ ever considered whether Barnett’s impairment
equals Listing 11.03 despite her assumed lack of credibility.
  Moreover, as is evident from the perfunctory discussion of
the listing, the ALJ never consulted a medical expert re-
garding whether the listing was equaled. Whether a claim-
ant’s impairment equals a listing is a medical judgment,
10                                                No. 03-4076

and an ALJ must consider an expert’s opinion on the issue.
See 20 C.F.R. § 404.1526(b) (“Medical equivalence must be
based on medical findings. . . . We will also consider the
medical opinion given by one or more medical or psychologi-
cal consultants designated by the Commissioner in deciding
medical equivalence.”); S.S.R. 96-6P at 3 (“[L]ongstanding
policy requires that the judgment of a physician (or psy-
chologist) designated by the Commissioner on the issue of
equivalence on the evidence before the administrative law
judge or the Appeals Council must be received into the record
as expert opinion evidence and given appropriate weight.”),
reinstating S.S.R. 83-19; see Farrell v. Sullivan, 878 F.3d 985,
990 (7th Cir. 1989) (concluding that ALJ complied with re-
quirement of Social Security Ruling 83-19 that he consider
a consulting physician’s opinion regarding medical equiva-
lency). Here, the ALJ did not consult an expert regarding
medical equivalence—neither Drs. Kaye, Dobson, nor Sands
opined on the issue. Nor can we locate a SSA-831-U5, SSA-
832-U5, or SSA-833-U5 form that would otherwise satisfy
the ALJ’s duty to consider an expert’s opinion on medical
equivalence. See S.S.R. 96-6P at 3; Farrell, 878 F.3d at 990.
Yet, rather than soliciting a neurologist’s opinion on the mat-
ter, the ALJ simply assumed the absence of equivalency
without any relevant discussion. That assumption cannot
substitute for evidence and does not support the decision to
deny benefits.
  Finally, we cannot discern from the record whether there
are truly any jobs in the economy for a person suffering sei-
zures on the level shown by the medical record here. Com-
mon sense causes us to question the validity of a finding
that a woman suffering multiple seizures in a single day
could be employed as a cashier, for example.
No. 03-4076                                            11

                   III. CONCLUSION
  The judgment of the district court is REVERSED, and the
case is REMANDED to the Social Security Administration for
further proceedings consistent with this opinion.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—8-25-04
