Anderson v. Commisioner of Social Security

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHELLE L. ANDERSON, ) CASE NO. 3:20-CV-02728-JDG

)

Plaintiff, )

)

vs. ) MAGISTRATE JUDGE

) JONATHAN D. GREENBERG

COMMISSIONER OF SOCIAL )

SECURITY, ) MEMORANDUM OF OPINION AND

) ORDER

Defendant. )

Plaintiff, Michelle Anderson (“Plaintiff” or “Anderson”), challenges the final decision of

Defendant, Kilolo Kijakazi,1 Acting Commissioner of Social Security (“Commissioner”), denying her

applications for a Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental

Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, and

1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and the consent of the

parties, pursuant to 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner’s final

decision is VACATED AND REMANDED for further consideration consistent with this opinion.

I. PROCEDURAL HISTORY

In December 2018, Anderson filed applications for POD, DIB, and SSI, alleging a disability onset

date of November 30, 2016 and claiming she was disabled due to bipolar disorder, schizophrenia, and an

inability to read and write. (Transcript (“Tr.”) at 11, 233, 251.) The applications were denied initially and

upon reconsideration, and Anderson requested a hearing before an administrative law judge (“ALJ”). (Id.

at 11.)

1 On July 9, 2021, Kilolo Kijakazi became the Acting Commissioner of Social Security.

On February 12, 2020, an ALJ held a hearing, during which Anderson, represented by counsel, and

an impartial vocational expert (“VE”) testified. (Id.) On March 31, 2020, the ALJ issued a written

decision finding Plaintiff was not disabled. (Id. at 11-20.) The ALJ’ s decision became final on October

14, 2020, when the Appeals Council declined further review. (Id. at 1-7.)

On December 8, 2020, Anderson filed her Complaint to challenge the Commissioner’s final

decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 16, 18-19.)

Anderson asserts the following assignments of error:

(1) The ALJ’s Step Three analysis fails to evaluate and discuss evidence of an

intellectual disability in light of Listing 12.05, and is not supported by substantial

evidence.

(Doc. No. 16 at 2.)

II. EVIDENCE

A. Personal and Vocational Evidence

Anderson was born in December 1980 and was 39 years-old at the time of her administrative

hearing (Tr. 19), making her a “younger” person under Social Security regulations. See 20 C.F.R. §§

404.1563(c), 416.963(c). She has a limited education and is able to communicate in English. (Tr. 19.)

She has past relevant work as a delivery driver. (Id. at 18.)

B. Relevant Medical Evidence2

On September 23, 1996, at 15 years old, Anderson underwent intellectual functioning testing

through her school, Penta Career Center. (Id. at 477.) Results from the Weschler Intelligence Scale for

Children-III exam revealed a verbal IQ scale of 63, performance IQ of 66, and a full-scale IQ of 62. (Id.)

2 The Court’s recitation of the medical evidence is not intended to be exhaustive and is limited to the

evidence cited in the parties’ Briefs. As Anderson only challenges the ALJ’s mental findings, the Court

further limits its discussion of the evidence to Anderson’s mental impairments.

These findings all fell within the mild mental retardation range and resulted in a determination that

Anderson would need continued special education services. (Id.)

In February 1999, a Penta Career Center IEP report indicated Anderson’s reading, spelling, and

math abilities tested within the 4th grade levels. (Id. at 464.) The IEP report described Anderson as

having a difficult time remaining employed and having numerous jobs during the past two years. (Id.)

Anderson tended to lose jobs due to being late to work, not showing up for work, poor co-worker and

employer relations, and poor-quality work. (Id.) These same areas of concerns had prevented Anderson

from meeting certain IEP objectives. (Id.)

On March 5, 2014, treatment providers admitted Anderson to Flowers Hospital after she presented

to the emergency room “in a state which was very akin to mania.” (Id. at 3678.) Anderson presented with

flight of ideas, poor concentration, and a belief that her cat and dog were talking to each other. (Id.)

Anderson had not slept for three days and was fighting and arguing with her husband in the ER. (Id.)

Treatment providers placed Anderson in the psychiatric ICU for her own safety and security. (Id.) On

examination, treatment providers found good eye contact, elevated mood and affect, pressured speech,

flight of ideas, racing thoughts, increased impulsivity, slightly impaired attention and concentration,

adequate intelligence and fund of knowledge, and “superficially present” insight and judgment. (Id.)

Diagnoses upon admission were bipolar disorder, not otherwise specified, anxiety disorder, not otherwise

specified, and possible attention deficit hyperactivity disorder, combined type. (Id. at 3679.)

Anderson remained hospitalized until March 9, 2014. (Id. at 3684.) On examination at discharge,

Anderson made good eye contact and demonstrated a euthymic mood, “less than normal” attention and

concentration, adequate intelligence, fund of knowledge, and cognition, “mildly concrete abstraction,” and

superficially present insight and judgment. (Id. at 3685.) Diagnoses at discharge were bipolar disorder,

not otherwise specified, anxiety disorder, not otherwise specified, and attention deficit hyperactivity

disorder, combined type. (Id.)

On March 15, 2016, Anderson underwent a consultative psychological evaluation by James Tanley

Ph.D. (Id. at 501.) Anderson reported she was bipolar but did not wish to describe her symptoms to Dr.

Tanley. (Id.) Anderson told Dr. Tanley she did not like going places by herself and that she had not taken

medication for over a year because it made her feel like a zombie. (Id. at 501-02.) Anderson reported

education through the 11th grade and that she was a “slow learner.” (Id. at 502.) Other students made fun

of her, although she got along okay with teachers. (Id.) Anderson reported getting along okay with other

people. (Id.) The longest job Anderson had was a cashier at a Shell gas station for one year. (Id.) They

had her working all three shifts in one week and she could not sleep. (Id.) She worked in a factory for six

months before “getting into it” with her boss and quitting. (Id.) Anderson denied any current mental

health treatment. (Id. at 502-03.) Anderson reported waking up between 1 p.m. and 2 p.m., cleaning,

playing video games, going grocery shopping with her husband, using Facebook, watching television,

listening to the radio, and going to bed between 11 p.m. and midnight, although she did not fall asleep

until 1 a.m. or 2 a.m. (Id. at 503.)

On examination, Dr. Tanely found Anderson “reasonably cooperative” with the exception of her

unwillingness to talk about her bipolar symptoms. (Id.) Dr. Tanley noted normal grooming and motor

behavior, as well as adequate speed and volume of speech and coherent, relevant, and goal-oriented

thought processes. (Id.) Anderson demonstrated appropriate affect and good eye contact. (Id.) Dr.

Tanley noted no signs of anxiety. (Id.) Anderson remembered six digits forward and three backward,

although she needed a reminder for the backward task. (Id.) Anderson “quickly and flawlessly counted

backwards and recited the alphabet,” although she made two mistakes in serial three addition. (Id. at 504.)

Anderson remembered two out of three items after five minutes with interference. (Id.) Based upon these

tasks and others, as well as her reported education and work histories, Dr. Tanley determined Anderson

had an average range of cognitive functioning. (Id.) No psychological testing was requested or

conducted. (Id.) Dr. Tanley diagnosed Anderson with unspecified bipolar disorder, currently depressed,

moderate severity. (Id.) Dr. Tanley estimated Anderson’s intellect was in the average range, which would

be expected of her in a work setting. (Id. at 505.) While Anderson “would be expected to show little or

no difficulty with tasks of increasing complexity and multistep tasks,” the worsening of mood problems

“could negatively impact” her ability to focus and concentrate. (Id.) Given Anderson’s past incident with

a supervisor and her current problems, Dr. Tanley opined Anderson “would likely be at some risk for

trying to deal with the free and easy commerce of social interaction on the job.” (Id.) Dr. Tanley further

opined that Anderson’s “current mood problems could lower her frustration tolerance a bit and put her

somewhat at risk for the pressures of work.” (Id.)

On December 28, 2016, Anderson underwent a psychiatric evaluation at Unison Behavioral

Healthcare following release from a hospitalization from December 18, 2016 through December 24, 2016.

(Id. at 1131.) Amanda Sherry, MA, PC-CR, noted Anderson and her husband argued throughout the

assessment. (Id.) Anderson reported she could hear her family members laughing during the assessment

and demonstrated disorganized speech, incoherence, and thought derailment. (Id.) Anderson told Sherry

she wanted someone like a friend to talk to and no other services. (Id.) Anderson reported she and her

husband had a difficult relationship. (Id.) Anderson told Sherry she had last worked at Mid-states Bolt

and Screw and had been fired for smoking in the bathroom. (Id. at 1132.) On examination, Anderson

demonstrated psychosis, although she was cooperative and answered all questions. (Id. at 1133-34.)

While Anderson accepted a referral for individual therapy, she declined psychiatric services. (Id. at 1134.)

On January 6, 2017, Anderson went to the emergency room presenting with reported auditory and

visual hallucinations and agitated, anxious, and aggressive behavior. (Id. at 514.) Anderson reportedly

had assaulted family members at home. (Id.) Treatment providers noted Anderson was not taking any

medications and her history was somewhat limited as Anderson was in denial and avoiding a lot of

questions. (Id.) On examination, Anderson demonstrated a flat and depressed mood, anxiousness, poor

judgment, and abnormal thought content. (Id. at 517.) Treatment providers pink slipped Anderson for

involuntary admission. (Id.) During a mental status examination, Anderson was “cooperative but poorly

informative” with a superficial affect and labile mood and a disorganized thought process showing

looseness of association and tangentiality. (Id. at 520.) Treatment providers noted Anderson was “very

bizarre, psychotic, paranoid,” and “out of contact with reality.” (Id.) While Anderson was alert, her

orientation, memory, and intellectual functions could not be evaluated because of the severity of her

psychosis. (Id.) Anderson showed poor judgment and no insight. (Id.) Anderson responded well to

medication and therapy while admitted, and her mood and reality testing improved. (Id. at 521.)

Treatment providers discharged Anderson on January 20, 2017 with a final diagnosis of bipolar disorder

with psychotic features. (Id. at 520-21.)

On January 23, 2017, Anderson underwent another psychiatric evaluation at Unison. (Id. at 1145.)

While Anderson had been compliant with her medication, she wanted to change medication as she was

getting headaches every day with her current dose of Latuda. (Id.) On examination, Anderson was

cooperative and friendly, “very disorganized at times and tangential,” although she was able to redirect,

and she answered questions appropriately. (Id.) Katheryn Palmer, PMHCNS-BC, noted Anderson

appeared stable at that time and seemed insightful about her treatment and her need for medication. (Id.)

Anderson demonstrated clear speech and concentration and focus that was “appropriate for the most part,”

and she appeared to have average intelligence, fair insight, and fair judgment. (Id. at 1147.) Palmer

switched Anderson from Latuda to Vraylar. (Id.)

On September 27, 2017, saw Peggyanne Klein, RN, requesting a decrease in her medication

because her family was concerned about her flat affect and that she would not respond when her family

talked to her. (Id. at 1218.) On examination, Anderson demonstrated stable mood, organized thought

process, flat affect, good eye contact, appropriate speech, fair hygiene, intact memory, normal intellect,

and adequate concentration. (Id.) Anderson reported drinking beer on the weekends, and Klein educated

her on the decreased effectiveness of her medication when using alcohol. (Id.) Klein reduced Anderson’s

dosage of Vraylar. (Id.)

On February 18, 2018, Anderson’s husband brought her to the emergency room with concerns for

Anderson’s increased stress and feelings of being overwhelmed. (Id. at 638.) Anderson reported a good

friend of hers was dying of cancer and she had gone to the funeral of her 41-year-old cousin the day

before. (Id.) Anderson told treatment providers she was compliant with her medication. (Id.) Anderson

babysat for a living and expressed she had been afraid to ask for a raise. (Id. at 639.) On examination,

Anderson appeared stressed and depressed and demonstrated a flat affect. (Id. at 639, 642.) Anderson

asked to be admitted for “at least” one night so she could receive counseling and group therapy. (Id. at

643.) Treatment providers noted Anderson did not meet admission criteria and determined it was okay to

discharge her home. (Id.) Treatment providers directed Anderson to follow up with her family doctor or

clinic in one to two days. (Id.)

On February 23, 2018, Anderson went to the emergency room presenting with suicidal thoughts

but no specific plan. (Id. at 649.) Anderson reported she had been thinking of killing herself for the past

week; she was feeling depressed and did not want to live any longer. (Id.) Anderson told treatment

providers these feelings had been brought on by stress and financial difficulties. (Id.) Treatment

providers noted a history of depression and bipolar disorder, as well as alcohol abuse, although Anderson

reported being sober for the past three months. (Id.) Anderson was admitted for inpatient psychiatric

treatment. (Id. at 653.) On February 26, 2018, treatment providers discharged Anderson with a diagnosis

of bipolar 1 disorder. (Id. at 654.) On examination at the time of discharge, Anderson demonstrated

cooperative behavior, good eye contact, organized thought process, intact recent and remote memory, and

fair judgment. (Id. at 655.)

Anderson received mental health treatment at Unison from March through June 2018. (Id. at

1188-93, 1208-13.) Anderson’s symptoms waxed and waned during this time. (Id.)

On September 1, 2018, Anderson went to the emergency room reporting she did not feel right,

although she could not explain further. (Id. at 913.) Anderson told treatment providers she felt better and

felt safe going home. (Id.) On examination, Anderson demonstrated normal mood and affect. (Id. at

914.)

On September 4, 2018, Anderson returned to the emergency room for psychiatric evaluation. (Id.

at 920.) Anderson reported feeling depressed and lacking motivation, although she said she was okay and

denied suicidal and homicidal ideation. (Id.) Treatment providers noted Anderson demanded the

behavioral health team edit their findings so she could be admitted. (Id. at 925.)

On September 14, 2018, Anderson went to the emergency room with her husband reporting

auditory hallucinations. (Id. at 932-33.) Anderson reported hearing voices saying, “I want to die” and that

she had stopped taking her medication because of weight gain. (Id. at 933.) Treatment providers noted

she had been seen at the emergency room several times over the past ten days. (Id.) A hospital social

worker discussed the case with Dr. Gupta, who wanted Anderson admitted to the behavioral unit. (Id. at

937.) Dr. Gupta noted Anderson’s reported timeline of when she stopped taking her medication and side

effects did not fit. (Id. at 940.) Dr. Gupta discharged Anderson on September 17, 2018 with a diagnosis

of bipolar affective disorder with psychosis. (Id.) On examination at discharge, Anderson demonstrated

organized thought process and insight into treatment compliance. (Id.) Dr. Gupta noted Anderson had

been making rational and realistic plans, had been “bright, reactive, and interacting appropriately with

staff and peers,” had tolerated her medication changes without adverse side effects, and had gone several

consecutive days without suicidal thoughts or safety concerns. (Id.)

On September 27, 2018, Anderson saw Margaret Overley, MA, LPC, at Unison for therapy. (Id. at

1186.) Anderson reported she had been hospitalized recently after failing to take her medications. (Id.)

Overley described Anderson as “tangential,” and she had “a great deal of difficulty staying on topic during

the session.” (Id.) Anderson reported she wanted to get her GED and apply for Social Security. (Id.)

Anderson told Overley she was concerned about her diagnosis and would rather be diagnosed with bipolar

disorder. (Id.) On examination, Overley found Anderson had a depressed mood and expansive affect,

disorganized and tangential thought process, agitated and restless behavior, appropriate speech, impaired

remote memory, intact recent memory, normal intellect, adequate concentration, and paranoia. (Id.)

Anderson received mental health treatment at Unison from September through December 2018.

(Id. at 1178-85, 1196-1205.) Anderson’s symptoms waxed and waned during this time. (Id.)

On December 19, 2018, Dr. Gupta noted Anderson was “really sharp” that day with a “bright

affect” and she was “quick and linear in terms of cognition.” (Id. at 1232.) On examination, Dr. Gupta

found normal psychomotor activity and speech, “okay” mood, congruent affect, intact memory, attention,

and concentration, linear thought form, and fair insight and judgment. (Id.)

On January 26, 2019, Anderson went to the emergency room with complaints of depression after

her brother committed suicide a week before. (Id. at 3749.) Anderson was tearful but “100% adamant

that she was not suicidal.” (Id. at 3750.) Treatment providers determined Anderson did not meet

admission criteria at that time. (Id.)

Anderson received mental health treatment at Unison throughout 2019. (Id. at 3590-3607, 3637-

40, 3628-36, 3644-50, 3891-3934, 3998-4011.) Anderson’s symptoms waxed and waned during this time.

(Id.) During several sessions, Dr. Gupta noted Anderson was “really sharp, quick and linear in terms of

cognition.” (See, e.g., id. at 3891, 3906, 3998.)

C. State Agency Reports

On April 5, 2019, Lisa Foulk, Psy.D., opined that Anderson had moderate limitations in her

abilities to understand, remember, or apply information, interact with others, concentrate, persist, or

maintain pace, and adapt or manage herself. (Id. at 240.) Dr. Foulk further opined Anderson was capable

of understanding, remembering, and following “1-23 step repetitive tasks.” (Id. at 244.) While Anderson

lacked the “capacity for detailed/complex tasks,” she could “complete 1-2 step simple routine tasks with

no fast pace.” (Id. at 245.) Dr. Foulk further opined Anderson could interact with others on a “superficial

and intermittent basis” and changes “should be well-explained and introduced slowly.” (Id.)

On June 23, 2019, on reconsideration, Irma Johnson, PsyD., affirmed Dr. Fuolk’s findings. (Id. at

256-57, 261-62.)

D. Hearing Testimony

During the February 12, 2020 hearing, Anderson testified to the following:

• She lives on the first floor of a duplex with her husband and 17-year-old twins. (Id.

at 187-88.) One of her children is homeschooled. (Id. at 188.) She makes sure her

child is doing his home schooling. (Id. at 203.) Her children do not participate in

extracurricular activities. (Id. at 204.)

• She answered the phone for her husband’s roofing business for five years. (Id. at

188-89.) Her husband’s brother does it now. (Id. at 189.) She cannot spell correctly

and has bad handwriting, so it was difficult for her husband to read her writing. (Id.

at 207.)

• She has a driver’s license and drives herself to daily AA meetings. (Id. at 189-90.)

They are only five to ten minutes away. (Id. at 190.) Some of the AA meetings have

60-70 attendees. (Id. at 202.) She drives five to ten minutes to visit her parents in

Toledo regularly. (Id. at 190.)

• She quit school in the 12th grade after her grandmother died. (Id. at 191.) She was in

special education classes. (Id.) She can read, but she cannot understand what she

reads. (Id.) She can read a recipe if it has short words. (Id. at 192.) She can add and

subtract. (Id.) She pays the gas and electric bills, but her husband manages the bank

account. (Id.) She pays the gas and electric bills with money orders. (Id. at 193.)

• She was fired from her most recent job packaging pans. (Id. at 193-94, 197.) She

has been fired from other jobs for smoking in the bathroom, being on her cell phone,

and people putting stuff in her water. (Id. at 209.)

• She cannot work now because she cannot get along with people and she cannot read

or spell. (Id. at 199.) She feels like coworkers are talking behind her back or trying

to start things. (Id. at 199-200.) She did not think she could do a job where she

worked by herself, but she could not explain why. (Id. at 200.)

• She grocery shops by herself four to five times a month for a half hour to an hour.

(Id. at 201.) She has a teacup Yorkie that she cares for. (Id. at 204-05.)

• She takes Vraylar for her mental health symptoms. (Id. at 205.) She has been on that

medication for at least two years. (Id.) She had not been to the hospital since 2019

and had not been admitted for mental health problems since 2018. (Id. at 206.)

Before her most recent hospitalization she had stopped taking her medication because

she didn’t like how it made her feel. (Id.)

• She does not do chores because she is not motivated to do it. (Id. at 207.) Her

mother, children, and her husband do the chores. (Id.)

During the February 12, 2020 hearing, Anderson’s husband testified to the following:

• Anderson tried to answer the phone for his roofing business, but she had to ask the

caller to repeat their name several times and how to spell it, and even then, it would

be wrong, so he would have to call the person back himself. (Id. at 213.) She would

misspell things, not hear things properly, would lose focus on things, and sometimes

she would not even answer the phone because she did not hear it ringing. (Id. at 213-

14.) Anderson attempted to answer the phone for him for five years. (Id. at 214.)

Even after Anderson stopped drinking, she could not properly answer the phone. (Id.

at 216-17.)

• Anderson experiences schizophrenic episodes where she sees or hears things. (Id. at

214.) He has witnessed these episodes. (Id. at 214-15.)

• Anderson cannot hold a job. (Id. at 216.) She has been hired and fired many times.

(Id.)

• Anderson has problems getting along with people. (Id. at 218.) She quits jobs

because she thinks people are talking behind her back. (Id.) She has confronted

people about talking about her or threatening to beat her up, and investigation by

management revealed the other employees did not even talk to her half the time. (Id.)

• One doctor told them that Anderson should not work because she is a danger to

herself and others. (Id. at 219.)

The VE testified Anderson had past work as a delivery driver. (Id. at 223.) The ALJ then posed

the following hypothetical question:

Assume an individual of the claimant’s age, education, and experience, has the

residual functional capacity for light work, can never push or pull with the left

lower extremity, occasionally climb ramps and stairs, never climb ladders, ropes,

or scaffolds, frequently stoop, kneel, and crouch, never crawl. Avoid all exposure

to hazards. Can understand, remember, and carry out simple instructions, perform

simple, routine, and repetitive tasks, but not at a production-rate pace such as an

assembly line, adapt to routine chances in the workplace that are infrequent, and

easily explained. Interact occasionally with supervisors and coworkers, and never

with the general public. Would the individual be able to perform the past work?

(Id. at 223-24.)

The VE testified the hypothetical individual would not be able to perform Anderson’s past work as

a delivery driver. (Id. at 224.) The VE further testified the hypothetical individual would be able to

perform other representative jobs in the economy, such as laundry worker, housekeeper, and inspector and

hand packager. (Id.) The ALJ asked the VE whether those jobs would still be available with a limitation

to a reasoning level of one or two. (Id. at 225.) The VE testified the jobs remained. (Id.) In response to

additional questions from the ALJ, the VE testified the identified jobs did not require reading or writing as

part of the general job duties. (Id. at 225-26.)

In response to questioning from Anderson’s counsel, the VE testified it was not inconsistent to say

that “a simple, routine, repetitive task job could have a reasoning level of two, and still be a simple,

routine, repetitive task job because what we’re talking about is the instructions, not the task themselves.”

(Id. at 227-29.)

III. STANDARD FOR DISABILITY

In order to establish entitlement to DIB under the Act, a claimant must be insured at the time of

disability and must prove an inability to engage “in substantial gainful activity by reason of any medically

determinable physical or mental impairment,” or combination of impairments, that can be expected to

“result in death or which has lasted or can be expected to last for a continuous period of not less than 12

months.” 20 C.F.R. §§ 404.130, 404.315, 404.1505(a).

A claimant is entitled to a POD only if: (1) she had a disability; (2) she was insured when she

became disabled; and (3) she filed while she was disabled or within twelve months of the date the

disability ended. 42 U.S.C. § 416(i)(2)(E); 20 C.F.R. § 404.320.

A disabled claimant may also be entitled to receive SSI benefits. 20 C.F.R. § 416.905; Kirk v.

Sec’y of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). To receive SSI benefits, a claimant must

meet certain income and resource limitations. 20 C.F.R. §§ 416.1100, 416.1201.

The Commissioner reaches a determination as to whether a claimant is disabled by way of a five-

stage process. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). See also Ealy v. Comm’r of Soc. Sec., 594

F.3d 504, 512 (6th Cir. 2010); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant

must demonstrate that she is not currently engaged in “substantial gainful activity” at the time of the

disability application. 20 C.F.R. §§ 404.1520(b), 416.920(b). Second, the claimant must show that she

suffers from a “severe impairment” in order to warrant a finding of disability. 20 C.F.R. §§ 404.1520(c),

416.920(c). A “severe impairment” is one that “significantly limits . . . physical or mental ability to do

basic work activities.” Abbot, 905 F.2d at 923. Third, if the claimant is not performing substantial gainful

activity, has a severe impairment that is expected to last for at least twelve months, and the impairment, or

combination of impairments, meets or medically equals a required listing under 20 CFR Part 404, Subpart

P, Appendix 1, the claimant is presumed to be disabled regardless of age, education, or work experience.

See 20 C.F.R. §§ 404.1520(d), 416.920(d). Fourth, if the claimant’s impairment or combination of

impairments does not prevent her from doing her past relevant work, the claimant is not disabled. 20

C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). For the fifth and final step, even if the claimant’s impairment

does prevent her from doing her past relevant work, if other work exists in the national economy that the

claimant can perform, the claimant is not disabled. 20 C.F.R. §§ 404.1520(g), 404.1560(c), 416.920(g).

Here, Anderson was insured on her alleged disability onset date, November 30, 2016, and

remained insured through June 30, 2020, her date last insured (“DLI”). (Tr. 11.) Therefore, in order to be

entitled to POD and DIB, Anderson must establish a continuous twelve-month period of disability

commencing between these dates. Any discontinuity in the twelve-month period precludes an entitlement

to benefits. See Mullis v. Bowen, 861 F.2d 991, 994 (6th Cir. 1988); Henry v. Gardner, 381 F.2d 191, 195

(6th Cir. 1967).

IV. SUMMARY OF COMMISSIONER’S DECISION

The ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act

through June 30, 2020.

2. The claimant has not engaged in substantial gainful activity since November 30,

2016, the alleged onset date (20 CFR 404.1571 et seq.).

3. The claimant has the following severe impairments: obesity, sprain of the left

ankle, avulsion fracture, status post Brostrom repair surgery, recurrent pleural

effusions, episodes of bronchitis, bipolar I disorder, schizoaffective disorder,

alcohol abuse in remission (20 CFR 404.1520(c)).

4. The claimant 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 and 404.1526).

5. After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform light work as defined in

20 CFR 404.1567(b) except she can never push and pull with left [sic] lower

extremity. She can occasionally climb ramps and stairs, but can never climb

ladders, ropes or scaffolds. She can frequently balance, stoop, kneel and crouch.

She must avoid all exposure to hazards. The claimant can understand, remember,

and carry out simple instructions and perform simple, routine, and repetitive tasks

but not at a production rate pace such as in an assembly line. She can adapt to

routine changes in the workplace that are infrequent and easily explained and can

interact occasionally with supervisors and coworkers, but never with the general

public. She must avoid concentrated exposure to fumes, odors, dusts, etc. The

job should not require reading or writing.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).

7. The claimant was born on December **, 1980 and was 35 years old, which is

defined as a younger individual age 18-49, on the alleged disability onset date (20

CFR 404.1563).

8. The claimant has a limited education and is able to communicate in English (20

CFR 404.1564).

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 claimant is “not disabled,” whether or not the claimant has transferable

job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the national

economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).

11. The claimant has not been under a disability, as defined in the Social Security

Act, from November 30, 2016, through the date of this decision (20 CFR

404.1520(g)).

(Tr. 13-20.)

V. STANDARD OF REVIEW

The Social Security Act authorizes narrow judicial review of the final decision of the Social

Security Administration (SSA).” Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011).

Specifically, this Court’s review is limited to determining whether the Commissioner’s decision is

supported by substantial evidence and was made pursuant to proper legal standards. See Ealy v. Comm’r

of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010); White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th Cir.

2009). Substantial evidence has been defined as “‘more than a scintilla of evidence but less than a

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y

of Health and Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In determining whether an ALJ’s findings

are supported by substantial evidence, the Court does not review the evidence de novo, make credibility

determinations, or weigh the evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681

(6th Cir. 1989).

Review of the Commissioner’s decision must be based on the record as a whole. Heston v.

Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The findings of the Commissioner are not subject

to reversal, however, merely because there exists in the record substantial evidence to support a different

conclusion. Buxton v. Halter, 246 F.3d 762, 772-73 (6th Cir. 2001) (citing Mullen v. Bowen, 800 F.2d

535, 545 (6th Cir. 1986)); see also Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999)

(“Even if the evidence could also support another conclusion, the decision of the Administrative Law

Judge must stand if the evidence could reasonably support the conclusion reached.”). This is so because

there is a “zone of choice” within which the Commissioner can act, without the fear of court interference.

Mullen, 800 F.2d at 545 (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).

In addition to considering whether the Commissioner’s decision was supported by substantial

evidence, the Court must determine whether proper legal standards were applied. Failure of the

Commissioner to apply the correct legal standards as promulgated by the regulations is grounds for

reversal. See, e.g., White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009); Bowen v. Comm’r of

Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if supported by substantial evidence, however, 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.”).

Finally, a district court cannot uphold an ALJ’s decision, even if there “is enough evidence in the

record to support the decision, [where] the reasons given by the trier of fact do not build an accurate and

logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D.

Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)); accord Shrader v. Astrue, No.

11-1300, 2012 WL 5383120, at *6 (E.D. Mich. Nov. 1, 2012) (“If relevant evidence is not mentioned, the

Court cannot determine if it was discounted or merely overlooked.”); McHugh v. Astrue, No. 1:10-cv-734,

2011 WL 6130824 (S.D. Ohio Nov. 15, 2011); Gilliam v. Astrue, No. 2:10-CV-017, 2010 WL 2837260

(E.D. Tenn. July 19, 2010); Hook v. Astrue, No. 1:09-cv-1982, 2010 WL 2929562 (N.D. Ohio July 9,

2010).

VI. ANALYSIS

In her sole assignment of error, Anderson argues the ALJ erred at Step Three3 by failing to: (1)

“consider evidence of significant cognitive and intellectual impairments”; (2) “evaluate evidence

regarding such impairments in light of the relevant listing”; and (3) “offer an explained conclusion with

respect to the listing for intellectual disability [12.05].” (Doc. No 16 at 15.) Anderson asserts:

Despite evidence of record documenting a full-scale IQ of 62 and a history of

repeated job losses due to poor performance, inability to maintain regular

attendance, and difficulty interacting with co-workers and supervisors, and

despite counsel’s argument at hearing calling attention to it, ALJ Sher’s

discussion at steps two and three of the sequential evaluation process contains no

reference to such evidence, and no explanation for rejecting it.

(Id.)

The Commissioner argues substantial evidence supports the ALJ’s listing determinations. (Doc.

No. 18 at 13.) The Commissioner characterizes Anderson’s argument as “an unfocused, scattershot

attack on the ALJ’s Step Two and Step Three analyses.” (Id. at 12.) The Commissioner asserts Anderson

failed to make a Listing 12.05 argument “at any stage” before judicial review, and Anderson complains of

the ALJ’s alleged failure “to take adequate notice of Plaintiff’s school records that predated her alleged

date of onset by nearly two decades.”4 (Id. at 12.)

3 Although Anderson also asserts the ALJ erred at Step Two, she does not identify what additional severe

impairments the ALJ should have recognized at Step Two. (Doc. No. 16 at 15-20.) In addition, Anderson

appears to have confused Steps Two and Three at one point, as she asserts that “The ALJ’s step two

analysis found that Plaintiff had a moderate limitation in understanding, remembering and applying

information . . . .” (Id. at 16) (emphasis added).

4 In this instance, the Commissioner’s argument about the timing is misplaced, as the timing requirement

for Listing 12.05(B) requires onset before age 22. 20 C.F.R. Pt. 404, Subpt. P, App’x 1, Listing 12.05.

Anderson disputes the fact that she did not raise a Listing 12.05 argument prior to judicial review,

asserting that counsel called the ALJ’s attention to her school records and intellectual ability at the

hearing. (Doc. No. 19 at 1-2.)

At the third step in the disability evaluation process, a claimant will be found disabled if her

impairment meets or equals one of the Listing of Impairments. See 20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii); Turner v. Comm’r of Soc. Sec., 381 F. App’x 488, 491 (6th Cir. 2010). The Listing of

Impairments, located at Appendix 1 to Subpart P of the regulations, describes 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). Essentially, a claimant who meets the requirements of a Listed Impairment, as well as the

durational requirement, will be deemed conclusively disabled and entitled to benefits.

Each listing specifies “the objective medical and other findings needed to satisfy the criteria of that

listing.” 20 C.F.R. §§ 404.1520(c)(3), 416.920(c)(3). It is the claimant’s burden to bring forth evidence to

establish that his impairments meet or are medically equivalent to a listed impairment. See, e.g., Lett v.

Colvin, No. 1:13 CV 2517, 2015 WL 853425, at *15 (N.D. Ohio Feb. 26, 2015). A claimant must satisfy

all of the criteria to “meet” the listing. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009).

“An impairment that manifests only some of those criteria, no matter how severely, does not qualify.”

Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990). A claimant is also disabled

if her impairment is the medical equivalent of a listing, 20 C.F.R. § 404.1525(c)(5), which means it is “at

least equal in severity and duration to the criteria of any listed impairment.” 20 C.F.R. §§ 404.1526(a),

416.926(a).

Where the record raises a “substantial question” as to whether a claimant could qualify as disabled

under a listing, an ALJ must compare the medical evidence with the requirements for listed impairments

in considering whether the condition is equivalent in severity to the medical findings for any Listed

Impairment. See Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414-15 (6th Cir. 2011). In order to

conduct a meaningful review, the ALJ must make sufficiently clear the reasons for her decision. Id. at

416-17. See also Harvey v. Comm’r of Soc. Sec., No. 16-3266, 2017 WL 4216585, at *5 (6th Cir. March

6, 2017) (“In assessing whether a claimant meets a Listing, the ALJ 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.’”) (quoting Reynolds, 424 F. App’x at 416); Joseph v. Comm’r of

Soc. Sec., 741 F. App’x 306, 311 (6th Cir. July 13, 2018) (same)). See also Snyder v. Comm’r of Soc.

Sec., No. 5:13cv2360, 2014 WL 6687227, at *10 (N.D. Ohio Nov. 26, 2014) (“Although it is the

claimant’s burden of proof at Step 3, the ALJ must provide articulation of his Step 3 findings that will

permit meaningful review. . . This court has stated that ‘the ALJ must build an accurate and logical bridge

between the evidence and his conclusion.’”) (quoting Woodall v. Colvin, 5:12CV1818, 2013 WL

4710516, at *10 (N.D. Ohio Aug. 29, 2013)).

However, “the ALJ’s lack of adequate explanation at Step Three can constitute harmless error

where the review of the decision as a whole leads to the conclusion that no reasonable fact finder,

following the correct procedure, could have resolved the factual manner in another manner.” Lett, 2015

WL 853425, at *16. See also Ford v. Comm’r of Soc. Sec., No. 13-CV-14478, 2015 WL 1119962, at *17

(E.D. Mich. Mar. 11, 2015) (finding that “the ALJ’s analysis does not need to be extensive if the claimant

fails to produce evidence that he or she meets the Listing”); Mowry v. Comm’r of Soc. Sec., No. 1:12-CV-

2313, 2013 WL 6634300, at *8 (N.D. Ohio Dec. 17, 2013); Hufstetler v. Comm’r of Soc. Sec., No.

1:10CV1196, 2011 WL 2461339, at *10 (N.D. Ohio June 17, 2011).

The RFC determination sets out an individual’s work-related abilities despite his or her limitations.

See 20 C.F.R. §§ 404.1520(a)(1), 416.945(a)(1). A claimant’s RFC is not a medical opinion, but an

administrative determination reserved to the Commissioner. See 20 C.F.R. §§ 404.1520(d)(2),

416.927(d)(2). An ALJ “will not give any special significance to the source of an opinion on issues

reserved to the Commissioner.” See 20 C.F.R. §§ 404.1520(d)(3), 416.927(d)(3). As such, the ALJ bears

the responsibility for assessing a claimant’s RFC based on all the relevant evidence (20 C.F.R. §§

404.1546(c), 416.946(c)) and must consider all of a claimant’s medically determinable impairments, both

individually and in combination. See SSR 96–8p, 1996 WL 374184 (SSA July 2, 1996).

“In rendering his RFC decision, the ALJ must give some indication of the evidence upon which he

is relying, and he may not ignore evidence that does not support his decision, especially when that

evidence, if accepted, would change his analysis.” Fleischer, 774 F. Supp. 2d at 880 (citing Bryan v.

Comm’r of Soc. Sec., 383 F. App’x 140, 148 (3d Cir. 2010) (“The ALJ has an obligation to ‘consider all

evidence before him’ when he ‘mak[es] a residual functional capacity determination,’ and must also

‘mention or refute [...] contradictory, objective medical evidence’ presented to him.”)). See also SSR 96-

8p, 1996 WL 374184, at *7 (SSA July 2, 1996) (“The RFC assessment must always consider and address

medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the

adjudicator must explain why the opinion was not adopted.”)). While the RFC is for the ALJ to

determine, the claimant bears the burden of establishing the impairments that determine her RFC. See Her

v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999).

It is well-established there is no requirement that the ALJ discuss each piece of evidence or

limitation considered. See, e.g., Conner v. Comm’r, 658 F. App’x 248, 254 (6th Cir. 2016) (citing

Thacker v. Comm’r, 99 F. App’x 661, 665 (6th Cir. May 21, 2004) (finding an ALJ need not discuss every

piece of evidence in the record); Arthur v. Colvin, No. 3:16CV765, 2017 WL 784563, at *14 (N.D. Ohio

Feb. 28, 2017) (accord). However, courts have not hesitated to remand where an ALJ selectively includes

only those portions of the medical evidence that places a claimant in a capable light and fails to

acknowledge evidence that potentially supports a finding of disability. See e.g., Gentry v. Comm’r of Soc.

Sec., 741 F.3d 708, 724 (6th Cir. 2014) (reversing where the ALJ “cherry-picked select portions of the

record” rather than doing a proper analysis); Germany–Johnson v. Comm’r of Soc. Sec., 313 F. App’x

771, 777 (6th Cir. 2008) (finding error where the ALJ was “selective in parsing the various medical

reports”). See also Ackles v. Colvin, No. 3:14cv00249, 2015 WL 1757474, at *6 (S.D. Ohio April 17,

2015) (“The ALJ did not mention this objective evidence and erred by selectively including only the

portions of the medical evidence that placed Plaintiff in a capable light.”); Smith v. Comm’r of Soc. Sec.,

No. 1:11-CV-2313, 2013 WL 943874, at *6 (N.D. Ohio March 11, 2013) (“It is generally recognized that

an ALJ ‘may not cherry-pick facts to support a finding of non-disability while ignoring evidence that

points to a disability finding.’”); Johnson v. Comm’r of Soc. Sec., No. 2:16-cv-172, 2016 WL 7208783, at

*4 (S.D. Ohio Dec. 13, 2016) (“This Court has not hesitated to remand cases where the ALJ engaged in a

very selective review of the record and significantly mischaracterized the treatment notes.”).

To satisfy the requirements of Listing 12.05(B),5 a claimant must have the following:

B. Satisfied by 1, 2, and 3 (see 12.00H):

1. Significantly subaverage general intellectual functioning evidenced by a or b:

a. A full scale (or comparable) IQ score of 70 or below on an individually

administered standardized test of general intelligence; or

b. A full scale (or comparable) IQ score of 71–75 accompanied by a verbal or

performance IQ score (or comparable part score) of 70 or below on an

individually administered standardized test of general intelligence; and

2. Significant deficits in adaptive functioning currently manifested by extreme

limitation of one, or marked limitation of two, of the following areas of mental

functioning:

a. Understand, remember, or apply information (see 12.00E1); or

b. Interact with others (see 12.00E2); or

5 Anderson concedes it is Listing 12.05(B) at issue. (Doc. No. 19 at 8.)

c. Concentrate, persist, or maintain pace (see 12.00E3); or

d. Adapt or manage oneself (see 12.00E4); and

3. The evidence about your current intellectual and adaptive functioning and

about the history of your disorder demonstrates or supports the conclusion that the

disorder began prior to your attainment of age 22.

20 C.F.R. Pt. 404, Subpt. P, App’x 1.

At Step Three, the ALJ found as follows:

The severity of the claimant’s mental impairments, considered singly and in

combination, do not meet or medically equal the criteria of listings 12.03

(schizophrenia spectrum and other psychotic disorders) and 12.04 (depressive,

bipolar and related disorders). In making this finding, the undersigned has

considered whether the “paragraph B” criteria are satisfied. To satisfy the

“paragraph B” criteria, the mental impairments must result in one extreme

limitation or two marked limitations in a broad area of functioning. An extreme

limitation is the inability to function independently, appropriately, or effectively,

and on a sustained basis. A marked limitation is a seriously limited ability to

function independently, appropriately, or effectively, and on a sustained basis.

In understanding, remembering or applying information, the claimant has a

moderate limitation. She reports difficulty understanding and following

instructions coupled with an inability to read (Exhibit 5E/3). However, she is

expected to function within average intelligence range (Exhibit 2F/6).

In interacting with others, the claimant has a moderate limitation. She claims to

“do alright with people”. However, she got into an argument with a boss that

combined with mood problems would likely place her at risk with social

interactions in the workplace (Exhibit 2F/6)[.]

With regard to concentrating, persisting or maintaining pace, the claimant has a

moderate limitation. Worsening mood problems would interfere with her ability

to focus and concentrate (Exhibit 2F/6).

As for adapting or managing oneself, the claimant has experienced a moderate

limitation. Her current mood problems could lower her frustration tolerance

placing her at risk for pressures of work (Exhibit 2F/6)[.]

Because the claimant’s mental impairments do not cause at least two “marked”

limitations or one “extreme” limitation, the “paragraph B” criteria are not

satisfied.

The undersigned has also considered whether the “paragraph C” criteria are

satisfied. In this case, the evidence fails to establish the presence of the

“paragraph C” criteria. Furthermore, the severity of the claimant’s mental

impairments does not meet the C criteria. There are no two (2) years of medically

documented history and evidence of both 1 medical treatment, mental health

therapy, psychosocial support, or highly structured setting that is ongoing and that

diminishes symptoms and signs of the mental disorder. 2 marginal adjustment,

that is, minimal capacity to adapt to changes in the environment or to demands

that are not already part of daily life.

(Tr. 14-15) (emphasis in original).

In his RFC analysis, the ALJ further found as follows:

Consultative examiner James C[.] Tanley, Ph.D., saw the claimant in March 2016,

for a disability evaluation in connection with prior applications. The claimant

reported two psychiatric hospitalizations in 2014 for bipolar disorder but was not

on medication or in mental health treatment at the time of the interview. She

appeared to function within the average range of intelligence. Dr. Tanley offered

diagnosis of unspecified bipolar disorder, currently depressed, moderate severity

(Exhibit 2F). The record documents an involuntary psychiatric hospitalization of

14 days [sic] January 2017. The claimant seemed to be having auditory and

visual hallucinations. She was agitated, anxious, aggressive and assaulting family

members at home. She was not taking psychotropic medications at the time.

Discharge diagnoses was bipolar disorder with psychotic features (Exhibit 3F/8).

Since, she follows at Unison, for schizoaffective disorder and bipolar disorder.

Medication compliance has been a problem (Exhibits 6F, 11F, 13F, 20F, 23F,

testimony).

The claimant went to the emergency room in February 2018, feeling stressed for

several days. She had remained sober from alcohol for almost three months and

wanted to be admitted but did not meet the requirements (Exhibit 3F/132). She

was in the hospital a few days later with suicidal ideations at a time when she was

overwhelmed and stressed with financial concerns. She [sic] treated for bipolar I

disorder, a severe depression episode and grief reaction (Exhibit 3F/181). She

continued attending AA meetings and maintaining remission (Exhibit 7F/34).

The record reflects several emergency room visits and one psychiatric admission

in September 2018 complaining of depression and hallucinations upon not taking

her psychotropic medications that caused weight gain (Exhibit 3F/427). She

testified that she has not been to the emergency room since. She continues to take

her medications although she does not like how they make her feel. She has

maintained sobriety and regularly attended AA meetings for two years (hearing).

The undersigned carefully considered the claimant’s statements concerning her

impairments and their effect on the ability to perform work activity and finds the

record, as a whole, does not demonstrate the existence of limitations severe

enough to preclude the performance of all work on a regular and continuing basis.

The claimant admits she can function better since she is sober, but contends with

significant difficulties getting along with others. She also testified to not being in

the emergency room since 2018 and to taking her medications despite not liking

how [sic] make her feel (testimony). Dwayne Anderson, the claimant’s spouse,

testified she tried but was unable to answer the phones for his roofing business

because of her spelling and loss of focus. She was not rude to others and there

were no complaints about how she treated callers. Mr. Anderson does not believe

she has tried working since she stopped drinking. He did witness episodes of

hearing and seeing things, the last time in 2018 before her admission to St.

Charles (hearing). The claimant asserts she does not get along with others but she

shops at the stores four to five times per month and regularly attends AA

meetings, many of which have 60 to 70 attendees.

While the record does demonstrate that the claimant has continued severe

impairments, there are no indications of record that these impairments cause

disabling limitations. Examinations, as discussed above, showed stability of her

chronic conditions with treatment, including her mental health symptoms. The

residual functional capacity assessment set forth herein, incorporates the onset,

nature, intensity, and duration of residual symptoms, as well as precipitating and

aggravating factors. Consequently, the specified residual functional capacity is

consistent with the functional limitations that can be expected from the nature and

extent of the claimant’s medically determinable impairments, based upon the

totality of the evidence of record[.]

(Tr. 17-18.)

As Anderson points out, the ALJ did not discuss Listing 12.05 at Step Three.6 (Id. at 14-15.) The

Southern District of Ohio recently addressed a similar argument:

In this case, the ALJ did not err by failing to consider Listing 12.05B because the

record did not raise a substantial question as to whether Plaintiff met that Listing.

When ALJ Herring considered other Listings at Step Three (Listings 12.04, 12.06,

12.08, 12.11, and 12.15), she determined that Plaintiff did not meet the

“paragraph B” criteria for those Listings. That paragraph B criteria requires a

claimant’s “mental disorder” to result in “extreme” limitations in one out of four,

or “marked” limitations in two out of four, areas of mental functioning. 20 C.F.R.

Pt. 404, Subpt. P, App. 1 § 12.00. Those four areas of mental functioning are: (1)

understanding, remembering, or applying information; (2) interacting with others;

(3) concentrating, persisting, or maintaining pace; and (4) adapting or managing

oneself. Id. ALJ Herring determined that Plaintiff had only moderate limitations

in all four of those areas. (R. at 20–21.)

6 Despite Anderson’s assertion to the contrary, she did not make a listing argument before the ALJ,

although she did direct the ALJ to her educational records, including her IQ testing, and asserted her

earning record suggested “something of a lifelong pattern that has not improved since high school days.”

(Tr. 185.) Anderson’s prehearing brief likewise did not assert she met or equaled Listing 12.05, although

it did address her IQ scores and educational record. (Id. at 452-58.)

The paragraph B criteria for Listings 12.04, 12.06, 12.08, 12.11, and 12.15 are

identical to the requirements for 12.05B(2)(a)–(d), which requires “extreme”

limitations in one out of four, or “marked” limitations in two out of four, of the

same four areas of mental functioning. Compare 20 C.F.R. Pt. 404, Subpt. P, App.

1 § 12.00(A)(2)(b) (“paragraph B criteria”) to 12.05B(2)(a)–(d). After ALJ

Herring determined that Plaintiff only had moderate limitations in those four areas

when considering Listings 12.04, 12.06, 12.08, 12.11, and 12.15, ALJ Herring did

not need to consider 12.05B because the evidence did not raise a “substantial

question” as to whether Plaintiff could meet that Listing. As noted, an “ALJ need

not discuss listings that the applicant clearly does not meet.” Sheeks, 544 F. App'x

at 641. ALJ Herring was not required to “spell out every fact a second time” to

show why Plaintiff could not meet the requirements of 12.05B. Bledsoe, 165 F.

App'x at 411. Therefore, ALJ Herring did not commit reversible error by failing

to expressly consider listing 12.05B. See Forman v. Saul, No. 7:19-CV-043-CHB,

2020 WL 5521038, at *2–5 (E.D. Ky. Sept. 14, 2020) (finding that the record did

not raise a substantial question as to whether the plaintiff could meet Listing

12.05B; the ALJ found that the plaintiff could not meet the paragraph B criteria in

other Listings and that paragraph B criteria was identical to the requirements in

12.05B(2)(a)-(d)).

This case is also distinguishable from Reynolds, cited by Plaintiff. As explained

previously, in Reynolds, the ALJ determined that the plaintiff had severe physical

impairments at Step Two, but at Step Three, failed to analyze if those physical

impairments met any Listing at all. 424 F. App’x 415–16. Such is not the case

here. ALJ Herring determined that Plaintiff had severe mental impairments at

Step Two, and at Step Three, explicitly determined that those mental impairments

did not meet Listings 12.04, 12.06, 12.08, 12.11, and 12.15. (R. at 19–20.) That

explicit determination made it clear that the record did not raise a substantial issue

question about Listing 12.05. Reynolds is thus distinguishable. For these reasons,

the Undersigned concludes that Plaintiff's allegation of error related to Listing

12.05 is without merit.

Gang v. Comm’r of Soc. Sec., No. 2:20-CV-3267, 2021 WL 2800709, at *13 (S.D. Ohio Jul. 6, 2021),

report and recommendation adopted by 2021 WL 3488015 (S.D. Ohio Aug. 9, 2021).

Here, like Gang, the ALJ addressed the “paragraph B” criteria for Listings 12.03 and 12.04 and

found no more than moderate limitations; therefore, the criteria for Listing 12.05(B) were not met and the

ALJ did not err by failing to address that listing. That said, however, nowhere in the ALJ’s opinion does

he discuss Anderson’s IQ testing and educational records, despite those records being raised by counsel in

both the pre-hearing brief and at the hearing. (Tr. 14-17.) While the Commissioner is correct that outside

the listing context, these records significantly predate the alleged onset date, counsel argued to the ALJ

that these records evidence a “lifelong pattern” of cognitive and mental impairments that would affect

Anderson’s ability to work. (Id. at 185, 452-53.)7

As explained in detail above, if relevant evidence is not mentioned, the Court cannot discern

whether the ALJ discounted or overlooked the evidence. Shrader, 2012 WL 5383120, at *6. In addition,

an ALJ may not overlook or ignore contrary lines of evidence. See, e.g., Gentry v. Comm’r of Soc. Sec.,

741 F.3d 708, 724 (6th Cir. 2014) (reversing where the ALJ “cherry-picked select portions of the record”

rather than doing a proper analysis); Germany–Johnson v. Comm’r of Soc. Sec., 313 F. App’x 771, 777

(6th Cir. 2008) (finding error where the ALJ was “selective in parsing the various medical reports”). See

also Ackles v. Colvin, No. 3:14cv00249, 2015 WL 1757474, at *6 (S.D. Ohio April 17, 2015) (“The ALJ

did not mention this objective evidence and erred by selectively including only the portions of the medical

evidence that placed Plaintiff in a capable light.”); Smith v. Comm’r of Soc. Sec., No. 1:11-CV-2313, 2013

WL 943874, at *6 (N.D. Ohio March 11, 2013) (“It is generally recognized that an ALJ ‘may not cherry-

pick facts to support a finding of non-disability while ignoring evidence that points to a disability

finding.’”); Johnson v. Comm’r of Soc. Sec., No. 2:16-cv-172, 2016 WL 7208783, at *4 (S.D. Ohio Dec.

13, 2016) (“This Court has not hesitated to remand cases where the ALJ engaged in a very selective

review of the record and significantly mischaracterized the treatment notes.”). Therefore, this matter must

be reversed and remanded.

7 The ALJ’s treatment of Anderson’s considerable mental health records outside of her hospitalization in

two sentences, with no mention of any findings supporting disability other than noting medication

compliance had been a problem, provides an additional ground for remand. Although Anderson does not

directly raise this error in her brief, the Court can raise such glaring errors sua sponte. See, e.g., Morris v.

Comm’r of Soc. Sec., No. 2:18-12090, 2019 WL 3755272, at *13 (E.D. Mich. July 18, 2019) (collecting

cases), report and recommendation adopted by 2019 WL 3753806 (E.D. Mich. Aug. 8, 2019); Naddra v.

Comm’r of Soc. Sec., No. 1:16-cv-340, 2016 WL 11268204, at *3 (S.D. Ohio Dec. 22, 2016) (citation

omitted), report and recommendation adopted by 2017 WL 1194708 (S.D. Ohio Mar. 31, 2017). While

this Court does not generally raise issues sua sponte, it is warranted in this case, especially as this case is

already being remanded.

VI. CONCLUSION

For the foregoing reasons, the Commissioner’s final decision is VACATED AND REMANDED

for further consideration consistent with this opinion

IT IS SO ORDERED.

Date: January 31, 2022 s/ Jonathan Greenberg

Jonathan D. Greenberg

United States Magistrate Judge