United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge.
Kristi Asbury brings this action pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3) for judicial review of the
final decision of the Commissioner of Social Security
("Commissioner") denying Plaintiffs applications
for disability insurance benefits ("DIB") and
supplemental security income ("SSI"). This matter
is before the Court on plaintiffs Statement of Errors (Doc.
10), the Commissioner's response in opposition (Doc. 16),
and plaintiffs reply (Doc. 17).
filed her applications for DIB and SSI in August 2015,
alleging disability since December 15, 2014, due to
spondylolisthesis in the back, depression, Post Traumatic
Stress Disorder ("PTSD"), anemia, Type II diabetes,
chronic pain, anxiety, subluxation in neck, and memory
issues. The applications were denied initially and upon
reconsideration. Plaintiff, through counsel, requested and
was granted a de novo hearing before administrative
law judge ("ALJ") Reuben Sheperd. Plaintiff and a
vocational expert ("VE") appeared and testified at
the ALJ hearing on October 6, 2017. On December 20, 2017, the
ALJ issued a decision denying plaintiffs DIB and SSI
applications. This decision became the final decision of the
Commissioner when the Appeals Council denied review on March
Legal Framework for Disability Determinations
qualify for disability benefits, a claimant must suffer from
a medically determinable physical or mental impairment that
can be expected to result in death or that has lasted or can
be expected to last for a continuous period of not less than
12 months. 42 U.S.C. §§ 423(d)(1)(A) (DIB),
1382c(a)(3)(A) (SSI). The impairment must render the claimant
unable to engage in the work previously performed or in any
other substantial gainful employment that exists in the
national economy. 42 U.S.C. §§ 423(d)(2),
promulgated by the Commissioner establish a five-step
sequential evaluation process for disability determinations:
1) If the claimant is doing substantial gainful activity, the
claimant is not disabled.
2) If the claimant does not have a severe medically
determinable physical or mental impairment - i.e.,
an impairment that significantly limits his or her physical
or mental ability to do basic work activities - the claimant
is not disabled.
3) If the claimant has a severe impairment(s) that meets or
equals one of the listings in Appendix 1 to Subpart P of the
regulations and meets the duration requirement, the claimant
4) If the claimant's impairment does not prevent him or
her from doing his or her past relevant work, the claimant is
5) If the claimant can make an adjustment to other work, the
claimant is not disabled. If the claimant cannot make an
adjustment to other work, the claimant is disabled.
Rabbers v. Comm'r of Soc Sec. 582 F.3d 647, 652
(6th Cir. 2009) (citing 20 C.F.R. §§
404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the
burden of proof at the first four steps of the sequential
evaluation process. Id.; Wilson v. Comm'r of
Soc. Sec, 378 F.3d 541, 548 (6th Cir. 2004). Once the
claimant establishes a prima facie case by showing an
inability to perform the relevant previous employment, the
burden shifts to the Commissioner to show that the claimant
can perform other substantial gainful employment and that
such employment exists in the national economy.
Rabbers, 582 F.3d at 652; Harmon v. Apfel,
168 F.3d 289, 291 (6th Cir. 1999).
The Administrative Law Judge's Findings
Sheperd applied the sequential evaluation process and made
the following findings of fact and conclusions of law:
1. The [plaintiff] meets the insured status requirements of
the Social Security Act through March 31, 2018.
2. The [plaintiff] has not engaged in substantial gainful
activity since December 15, 2014, the alleged onset date (20
CFR404.157I et seq., and 416.971 et seq.),
3. The [plaintiff] has the following severe impairments:
Obesity; diabetes mellitus, with neuropathy; lumbar
degenerative disc disease; asthma; and depressive, anxiety,
attention deficit hyperactivity, personality, and
post-traumatic stress disorders, with a history of substance
use/abuse/dependence (20 CFR 404.1520(c) and 416.920(c)).
4. The [plaintiff] does not have an impairment or combination
of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
5. The [plaintiff] has the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a); however, the [plaintiff] requires a
"sit/stand option, '" defined as the ability to
alternate between sitting and standing positions at will. She
can never climb ladders, ropes, or scaffolds, she can never
work at unprotected heights or with moving mechanical parts,
and the [plaintiff] cannot operate a motor vehicle as a part
of her duties. The [plaintiff] can frequently balance, but
she can no more than occasionally climb ramps/stairs, stoop,
kneel, crouch, or crawl. She can tolerate occasional
exposure to humidity, wetness, extreme temperatures, dust,
odors, fumes, gases, poor ventilation, or similar respiratory
irritants. Mentally, the [plaintiff] is limited to simple,
routine tasks involving no more than simple work-related
decisions; she is limited to frequent rather than constant
interaction with the general public, and she can tolerate few
changes in her routine work setting.
6. The [plaintiff] is unable to perform any past relevant
work (20 CFR 404.1565 and 416.965).
7. The [plaintiff] was born [in] ... 1969 and was 45 years
old, which is defined as a younger individual age 45-49, on
the alleged disability onset date (20 CFR 404.1563 and
8. The [plaintiff] has at least a high school education and
can communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the [plaintiff] is "not disabled," whether or
not the [plaintiff] has transferable job skills (See SSR
82-41 and 20 CFR Part 404 Subpart P, Appendix 2).
10. Considering the [plaintiff]'s age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy
that the [plaintiff] can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).
11. The [plaintiff] has not been under a disability, as
defined in the Social Security Act, from December 15, 2014,
through the date of this decision (20 CFR 404.1520(g) and
Judicial Standard of Review
review of the Commissioners determination is limited in scope
by 42 U.S.C. § 405(g) and involves a twofold inquiry:
(I) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the
correct legal standards. See Blakley v. Comm'r
of Soc. Sec, 581 F.3d 399, 406 (6th Cir. 2009);
see also Bowen v. Comm'r of Soc. Sec,
478 F.3d 742, 745-46 (6th Cir. 2007).
Commissioner's findings must stand if they are supported
by "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion;'
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(citing Consolidated Edison Co. v. N.L.R.B., 305
U.S. 197, 229 (1938)). Substantial evidence consists of
"more than a scintilla of evidence but less than a
preponderance......." Rogers v. Comm'r
of Soc Sec, 486 F.3d 234, 241 (6th Cir. 2007). In
deciding whether the Commissioner's findings are
supported by substantial evidence, the Court considers the
record as a whole. Hephner v. Mathews, 574 F.2d 359
(6th Cir. 1978).
Court must also determine whether the ALJ applied the correct
legal standards in the disability determination. Even if
substantial evidence supports the ALJ's conclusion that
the plaintiff is not disabled, "a decision of the
Commissioner will not be upheld where the SSA fails to follow
its own regulations and where that error prejudices a
claimant on the merits or deprives the claimant of a
substantial right." Rubbers, 582 F.3d at 651
(quoting Bowen, 478 F.3d at 746). See also
Wilson, 378 F.3d at 545-46 (reversal required even
though ALJ's decision was otherwise supported by
substantial evidence where ALJ failed to give good reasons
for not giving weight to treating physician's opinion,
thereby violating the agency's own regulations).
appeal, plaintiff alleges that the ALJ erred: (1) by finding
that plaintiff did not meet and/or equal the requirements of
Listings 1.04A and 1.04C for disorders of the spine; (2) by
fashioning a residual functional capacity ("RFC")
that does not fully account for plaintiffs mental
limitations; and (3) by failing to properly evaluate the
opinion of plaintiff s treating psychiatrist, Dr. Michael
Cerullo, M.D. (Docs. 10, 17).
Step Three of the sequential evaluation
alleges that the ALJ erred at step three of the sequential
evaluation process by finding that her degenerative disc
disease did not meet or equal § 1.04 of the Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. At
the third step in the disability evaluation process, a
claimant will be found disabled if her impairments meet or
equal a listing in the Listing of Impairments. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii);
Turner v. Comm'r of Soc. Sec., 381
Fed.Appx. 488, 491 (6th Cir. 2010). The Listings describe
impairments the Social Security Administration considers to
be "severe enough to prevent an individual from doing
any gainful activity, regardless of his or her age,
education, or work experience."' 20 C.F.R.
§§ 404.1525(a), 416.925(a). Each listing specifies
"the objective medical and other findings needed to
satisfy the criteria of that listing." 20 C.F.R.
§§ 404.1525(c)(3), 416.925(c)(3). A claimant must
satisfy all of the specified criteria to "meet" a
listing. Id.; Rabbers, 582 F.3d at 653. See also
Brauninger v. Comm'r of Soc. Sec., No. 18-3495, 2019
WL 2246791, at *5 (6th Cir. Feb. 25, 2019) (citing
Sullivan v. Zebley, 493 U.S. 521, 532 (1990)). In
addition, the regulations require that the requisite abnormal
findings must be established over a period of time and
"established by a record of ongoing management and
evaluation." 20 C.F.R. Part 404, Subpt. P, App. 1,
§ 1.00(D). See also Irvin v. Comm V of Soc.
Sec, No. 1:12-cv-837, 2013 WL 3353888, at *10 (S.D. Ohio
July 3, 2013); see also Brauninger, 2017 WL 5020137
at *21 ("[Occasional or intermittent findings of
decreased reflexes or changes in sensation of the lower
extremities are not sufficient to satisfy Listing
must "actually evaluate the evidence/' compare it to
the requirements of the relevant listing, and provide an
"explained conclusion, in order to facilitate meaningful
judicial review" of a step three finding. Reynolds
v. Comm'r of Soc. Sec, 424 Fed.Appx. 411, 416 (6th
Cir. 2011). If a claimant's impairment does not meet a
listed impairment, the claimant will still be found disabled
at step three if her impairment is the medical equivalent of
a listing. 20 C.F.R, §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). To be the medical equivalent of a listed
impairment, a claimant's impairment must be "at
least equal in severity and duration to the criteria of any
listed impairment." 20 C.F.R. §§ 404.1526(a),
416.926(a). An impairment is medically equivalent to a
listing if medical findings related to the impairment are at
least of equal medical significance to the findings necessary
to meet the Listings. 20 C.F.R. §§ 404.1526(b)(1),
416.926(b)(1). Tipton v. Comm 'r of Soc. Sec,
No. 2:14-cv-1209, 2015 WL 3505513, at *5 (S.D. Ohio June 3,
2015) (Report and Recommendation), adopted, 2015 WL
3952347 (S.D. Ohio June 29, 2015). The claimant bears the
burden of presenting "medical findings equal in severity
to all the criteria for the one most similar listed
impairment'' to establish equivalency.
Zebley, 493 U.S. at 530 (emphasis in the original).
The ALJ is required to compare the medical evidence with the
components of listed impairments in considering whether the
condition is equivalent in severity to the medical findings
for a listed impairment. See Lawson v. Comm'r
of Soc. Sec, 192 Fed.Appx. 521, 529 (6th Cir. 2006).
When performing this analysis, the ALJ must "consider
all evidence in [the] case record about [the claimant's]
impairment(s) and its effects on [the claimant] that is
relevant to this finding." 20 C.F.R. §§
Sixth Circuit law, the court may uphold a conclusory step
three finding if the ALJ's findings at other steps of the
sequential evaluation provide a sufficient basis for the
ALJ's step three finding. Forrest v. Comm'r of
Soc. Sec, 591 F. App"x 359, 366 (6th Cir. 2014)
(citing Bledsoe v. Barnhart, 165 Fed.Appx. 408, 411
(6th Cir. 2006) ("looking to findings elsewhere in the
ALJ's decision to affirm a step-three medical equivalency
determination, and finding no need to require the ALJ to
'spell out every fact a second time"')). Even if
adequate support for the ALJ's step three finding is
lacking, the error is harmless where the plaintiff has not
shown that her impairments met or medically equaled the
severity of any listed impairment. Id. at 366
(citing Reynolds, 424 Fed.Appx. at 416). See
also Layton ex rel. B.O. v. Colvin, No. 12-12934, 2013
WL 5372798, at **8, 15 (E.D. Mich. Sept. 25, 2013).
The ALJ's step three analysis
argues that the ALJ's step three finding is not supported
by substantial evidence because the ALJ did not properly
evaluate her physical impairments under Listing 1.04.
Plaintiffs counsel expressly informed the ALJ at the oral
hearing that plaintiff was not contending that her
impairments met a listing. (Tr. 46-47). The ALJ nonetheless
considered at step three whether plaintiffs spinal impairment
satisfied the criteria of Listing 1.04. The ALJ found that
"the medical evidence fails to establish the severity of
nerve root compression, spinal arachnoiditis or lumbar spinal
stenosis required by Listing 1.04, "" and the
record did not document that plaintiffs spinal impairment
resulted in "sensory or reflex loss, or in
severe burning or painful dysesthesia resulting in the need
for changes in position or posture more than once every 2
hours, or in an inability to ambulate effectively,
as that term is defined in Section 1.00(B)(2)(b) of the
listings." (Tr. 18) (emphasis in the original).
alleges that contrary to the ALJ's finding, she has
produced evidence that satisfies every requirement of
Listings 1.04 A and 1.04C. (Doc. 10 at 6-11). Plaintiff
argues that in determining otherwise, the ALJ did not fulfill
his duty to evaluate the evidence, compare it to Listing
1.04, and give an explanation for his conclusion,
(Id. at 10, citing Reynolds, 424 F.
App"x 416). Plaintiff contends that the ALJ's entire
analysis consists of one sentence, which is: "As the
record also fails to document the necessary findings, the
claimant's spinal impairment is likewise lacking in
listing-level severity." (Doc. 10 at 10, citing Tr. 18).
Plaintiff alleges the case must be remanded because the ALJ
did not "articulate a meaningful discussion of the
Listing or related criteria." (Id. at 10).