Jones v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CASE NO. 1:23-cv-0636

Earnest Jones, III,

MAGISTRATE JUDGE

Plaintiff,

James E. Grimes Jr.

vs.

MEMORANDUM OPINION

Commissioner of Social Security,

AND ORDER

Defendant.

Plaintiff Earnest Jones, III filed a complaint against the Commissioner

of Social Security seeking judicial review of the Commissioner’s decision

denying disability insurance benefits. This Court has jurisdiction under 42

U.S.C. §§ 405(g) and 1383(c). The parties consented to my jurisdiction in this

case. Doc. 12. Following review, and for the reasons stated below, I affirm the

Commissioner’s decision.

Procedural background

In June 2019, Jones filed an application for disability insurance

benefits alleging a disability onset date of June 14, 2019.1 Tr. 235–41. In

pertinent part, Jones claimed that he was disabled due to “epilepsy with

seizures only when sleeping” as well as several other illnesses, injuries, and

1 “Once a finding of disability is made, the [agency] must determine the

onset date of the disability.” McClanahan v. Comm’r of Soc. Sec., 193 F. App’x

422, 425 (6th Cir. 2006).

conditions. Tr. 79. He listed his last insured date as March 31, 2023.2 The

Commissioner denied Jones’s application at the initial level and upon

reconsideration. Tr. 95–105, 106–16. In June 2020, Jones requested a hearing

before an Administrative Law Judge (ALJ). Tr. 136–37. In January 2021,

ALJ William Leland held a hearing at which Jones and vocational expert

Suman Srinivasan testified. See Tr. 52–78. Two weeks later, ALJ Leland

issued a written decision finding that Jones was disabled due to limitations

caused by epilepsy and depression. Tr. 107–16; see also Tr. 119. ALJ Leland

found, in pertinent part, that Jones had the physical residual functional

capacity (RFC)3 to perform work at all exertional levels with additional

limitations and the mental RFC to perform simple work with no more than

occasional interaction with coworkers and supervisors and no interaction

with the public. Tr. 111. ALJ Leland made an additional finding that, in

2 To be entitled to disability insurance benefits, a claimant must

establish that he or she is a wage-earner who accumulated sufficient earning

credits and became disabled before the date on which he or she was last

insured. See, e.g., 42 U.S.C. § 423(c)(1); see also Higgs v. Bowen, 880 F.2d 860,

862 (6th Cir. 1988); Soc. Sec. Disab. Claims Prac. & Proc. § 5:3 (2nd ed.

2022). Jones was last insured on March 31, 2023, so to demonstrate

eligibility, he needed to establish disability before that date. See Tr. 79.

Accordingly, the relevant time period runs from June 14, 2019, Jones’s

alleged disability onset date, through March 31, 2023, when he was last

insured. See Tr. 79–80.

3 An RFC is an “assessment of” a claimant’s ability to work, taking his

or his “limitations … into account.” Howard v. Comm’r of Soc. Sec., 276 F.3d

235, 239 (6th Circ. 2002). Essentially, it is the Social Security

Administration’s “description of what the claimant ‘can and cannot do.’” Webb

v. Comm’r of Soc. Sec., 368 F.3d 629, 631 (6th Cir. 2004) (quoting Howard,

276 F.3d at 239).

addition to normal work breaks, Jones would be off task 20 percent of the day

and absent from work two days per month. Id.

In March 2021, the Appeals Council notified Jones that it would be

reviewing ALJ Leland’s hearing decision. See Tr. 119, 183; see also 20 C.F.R.

§ 404.969(a) (“Anytime within 60 days after the date of a decision …, the

Appeals Council may decide on its own motion to review the action that was

taken in your case”). In June 2021, the Appeals Council issued a written

decision vacating the ALJ’s decision and remanding the case. Tr. 117–24. The

Appeals Council found that ALJ Leland had committed reversible error and

that substantial evidence did not support his assessment of Jones’s maximum

RFC. See Tr. 119 (citing 20 C.F.R. § 404.970).

The Appeals Council directed that on remand, ALJ would “offer the

claimant an opportunity for a hearing, take any further action needed to

complete the administrative record[,] and issue a new decision” in accord with

the following directives:

• Obtain additional evidence concerning the

claimant’s impairments in order to complete the

administrative record in accordance with the

regulatory standards regarding consultative

examinations and existing medical evidence (20

CFR 404.1512 and Social Security Ruling 17-

4p). The additional evidence may include, if

warranted and available, a consultative

examination and medical source opinions about

what the claimant can still do despite the

impairment.

• If available, obtain evidence from a medical

expert, preferably a neurologist, related to the

nature and severity of and functional

limitations resulting from the claimant’s

impairment, including whether the impairment

meets or equals a listing impairment (20 CFR

404.1513a(b)(2)).

• Further evaluate the claimant’s alleged

symptoms and provide rationale in accordance

with the disability regulations pertaining to

evaluation of symptoms (20 CFR 404.1529).

• Give further consideration to the claimant’s

maximum residual functional capacity during

the entire period at issue and provide rationale

with specific references to evidence of record in

support of assessed limitations (Social Security

Ruling 96-8p). In so doing, evaluate the medical

source opinion(s) and prior administrative

medical findings pursuant to the provisions of

20 CFR 404.1520c. As appropriate, the

Administrative Law Judge may request the

medical source provide additional evidence

and/or further clarification of the opinion (20

CFR 404.1520b).

• Obtain supplemental evidence from a vocational

expert to clarify the effect of the assessed

limitations on the claimant’s occupational base

(Social Security Ruling 83-14). The hypothetical

questions should reflect the specific capacity/

limitations established by the record as a whole.

The Administrative Law Judge will ask the

vocational expert to identify examples of

appropriate jobs and to state the incidence of

such jobs in the national economy (20 CFR

404.1566). Further, before relying on the

vocational expert evidence the Administrative

Law Judge will identify and resolve any

conflicts between the occupational evidence

provided by the vocational expert and

information in the Dictionary of Occupational

Titles (DOT) and its companion publication, the

Selected Characteristics of Occupations (Social

Security Ruling 00-4p).

Tr. 121–22.

In October 2021, ALJ Timothy G. Keller held a hearing on remand at

which Jones and vocational expert Rebecca Kendrick testified. Tr. 36–51.

ALJ Keller issued a written decision in November 2021 finding that Jones

was not disabled. Tr. 12–35. ALJ Keller’s decision became final in January

2023, when the Appeals Council declined further review. Tr. 1–6; see 20

C.F.R. § 404.981.

Jones filed this action in March 2023. Doc. 1. In it, he asserts the

following assignments of error:

1. The ALJ failed to identify substantial evidence

supporting the step 3 finding, failed to consider

reasonable justifications for missing medication

doses, and failed to properly develop the record.

2. The ALJ failed to identify substantial evidence

supporting the residual functional capacity finding.

Doc. 9, at 1.

Factual background

1. Personal and vocational evidence

Jones was born in 1967 and was 51 years old on the alleged disability

onset date. Tr. 287. He has a GED. Tr. 300. Jones previously worked

insulating agricultural trailers, conducting merchandise inventories, and

operating a molding machine at an electronic parts factory. See Tr. 41–44,

300, 317.

2. Medical and evidence4

Seizure-related treatment. In May 2018, Jones established care with

neurologist Robert T. Woodruff, M.D., for generalized tonic-clonic seizures.5

See Tr. 966. In the year before his alleged disability onset date, Jones was

hospitalized 10 times for seizure activity.6 See Doc. 9, at 4 (citing Tr. 540–

614, 801–05, 816–22, 836–62, 963–1004, 1061–1183). Dr. Woodruff initially

prescribed the antiseizure medication Keppra. See Tr. 968. Jones’s seizures

continued and after six months, Dr. Woodruff replaced Keppra with

Lamictal.7 See Tr. 968, 972. In addition to seizures, Jones was diagnosed

with, pertinently, obstructive sleep apnea, post-traumatic stress disorder

4 This recitation of medical evidence is not intended to be exhaustive.

The discussion of the evidence is limited to the evidence cited by the parties

in their briefs and any additional evidence necessary to provide context.

5 Generalized tonic-clonic seizures are characterized by “a loss of

consciousness … [with] a tonic phase (sudden muscle tensing causing the

person to lose postural control) followed by a clonic phase (rapid cycles of

muscle contraction and relaxation, also called convulsions).” 20 C.F.R. Pt.

404, Subpart P, App. 1 § 11.00H(1)(a).

6 It’s not clear when Jones’s seizures began. He has said that he first

experienced seizure activity after he was assaulted in May 2017. Tr. 3114,

3227. Jones also reported that his seizures or “clinical activity” started in

2015. See Tr. 1288, 1307, 1317. On another occasion, he said that he was first

diagnosed with epilepsy in May 2019. Tr. 1304. He also indicated that his

seizures began in May 2018. Tr. 966.

7 Lamictal is one of two major brand names for the antiseizure

medication lamotrigine. See Lamotrigine Tablets, Cleveland Clinic Health

Library, https://my.clevelandclinic.org/health/drugs/20217-lamotrigine-

tablets [https://perma.cc/Z2FY-5Y3A]. In the record, Lamictal and

lamotrigine are used interchangeably. Here, I refer to this medication as

Lamictal to avoid confusion.

(PTSD), major depressive disorder, generalized anxiety disorder, and mood

issues. See Tr. 1335, 1850, 1873.

In May 2019, a few weeks before Jones’s alleged disability onset date,

he was admitted to Mansfield Hospital due to seizure activity. Tr. 963–1004.

He reported not taking his Lamictal over the weekend “likely due to lab.”8 Tr.

972. Jones’s wife9 spoke to the emergency department physician, Ahmed

Mohamed Ayed Eid, M.D., and explained that Jones hadn’t taken his

Lamictal because he vomited during the day and was nauseated. Id. A CT

scan of Jones’s brain was unremarkable. Tr. 963. Dr. Eid contacted the

neurology department and Gubert Lee Tan, M.D., responded to consult. Tr.

963, 966.

Dr. Tan reviewed Jones’s history and observed that Jones had a

Lamictal level of 3.3 micrograms per milliliter10 in January 2019. Tr. 968. Dr.

Tan noted that Jones “mentioned occasionally forgetting the dose” of his

Lamictal, which was 100 milligrams twice daily. Tr. 966. Dr. Tan indicated

that Jones’s compliance was “unclear” because “sometimes Jones missed his

8 It’s not clear what lab means in this context.

9 The record contains no other reference to Jones being married but does

refer frequently to Jones’s live-in girlfriend, who appears to be the same

individual as the “wife” here. See, e.g., Tr. 41, 717, 1297, 3005.

10 A Lamictal level of 3.3 micrograms per milliliter is low but within the

reference range for seizure control of between 3 and 14 or 15 micrograms per

milliliter. See Tr. 1367; see also Lamotrigine (Lamictal) Drug Level,

Laboratory Services Handbook, University of Iowa Department of Pathology,

https://www.healthcare.uiowa.edu/path_handbook/handbook/test13.html

[https://perma.cc/CP2P-2SWM].

medication.” Tr. 968. Dr. Tan increased Lamictal to 125 milligrams twice

daily and advised Jones to follow-up with Dr. Woodruff. See Tr. 972.

Jones saw Dr. Woodruff in June. Tr. 1236. Jones reported that he had

not taken his nighttime dose of Lamictal before his seizures in May. Id. His

seizure activity used to involve no more than staring spells, however, Jones

reported that he had started convulsing during seizures. Id. Dr. Woodruff

found that Jones was depressed, withdrawn, and scared. See Tr. 1236, 1238.

He looked unwell and overwhelmed. Tr. 1238. Jones nonetheless had a

normal gait and neurological examination with normal speech, judgment,

memory, cognition, thought content, strength, and coordination. Id. Dr.

Woodruff increased Lamictal to 100 milligrams in the morning and 200

milligrams at night. See Tr. 1239.

Jones arrived at the Mansfield Hospital emergency department less

than a week later complaining of seizure activity that happened while he was

sleeping. Tr. 631. The treatment team noted that Jones “claimed” to be

medication compliant. Id. Once his postictal11 symptoms resolved, Jones

11 The period of brain recovery time after a seizure until a patient

returns to baseline is called the postictal phase with “ictal” meaning the

actual seizure. See Reza Shouri, M.D., The Postictal Phase of a Seizure,

Verywell Health, https://www.verywellhealth.com/postictal-seizure-phase-

1204459 [https://perma.cc/ZV66-PC6L]. In a postictal state, a patient may

experience mental symptoms including exhaustion, confusion, fear, anxiety,

agitation, frustration, embarrassment or shame, memory loss, or depression.

Id. He or she may also experience physical symptoms such as migraine or

headache, loss of bladder or bowel control, nausea or upset stomach,

weakness, faintness, or muscle soreness. Id.

signed himself out of the hospital against medical advice. See Tr. 634–35,

646.

Jones returned a few hours later and reported that he had two more

seizures at home. Tr. 633–34. He had another seizure—his fourth in as many

hours—in the emergency room. Tr. 633. Treating physician Michael Elias,

M.D., found that Jones, who was postictal, had status epilepticus12 and

severe metabolic acidosis “probably sec[ondary] to lactic acidosis from

seizure.” Tr. 632. Jones reported “likely miss[ing] 2 doses [of Lamictal]” while

he was “busy helping his son.” Tr. 646. Dr. Elias ordered Jones admitted to

the intensive care unit and administered 125 milligrams of Lamictal as well

as Ativan and valproic acid intravenously. Tr. 635, 646. Jones’s condition

“improved significantly within 24 hours.” Id. Dr. Tan also evaluated Jones.

See Tr. 634–36. He recorded that Jones “claimed to be complaint with his

medication.” Tr. 634. Jones’s Lamictal level was 4.2 milligrams per milliliter.

Id. His care team expressed surprise that Jones’s Lamictal level was “within

[the] reference limit.” See Tr. 646.

Mansfield Hospital admitted Jones for seizure activity in July and

August 2019. Tr. 674–703. During both stays, Jones said that he was

12 Status epilepticus is when a seizure lasts more than five minutes or

when seizures occur close in time to one another without the patient

recovering consciousness in between.

https://www.epilepsy.com/complications-risks/emergencies/status-epilepticus.

See Status Epilepticus, The Epilepsy Foundation, Seizure Emergencies,

https://www.epilepsy.com/complications-risks/emergencies/status-epilepticus

[https://perma.cc/7MRZ-EA9J].

medication compliant. Tr. 678, 705. After Jones’s July seizures, Dr. Woodruff

increased Lamictal to 200 milligrams in the morning and 300 milligrams at

night. See Tr. 677, 1226, 1233.

In September 2019, Mansfield Hospital admitted Jones for seizure

activity. Tr. 712–65. Jones’s girlfriend reported witnessing him have two

seizures at home. Tr. 717. He had a third seizure in the emergency room

before being admitted. Id. Cardiologist James M. Koch, M.D., recorded

Jones’s noncompliance with Diltiazem.13 Tr. 716. He also noted Jones’s

noncompliance with his medication under the “[p]lan per neurology.” Id.

Neurologist Suraj Rajan, M.D., arrived to assess Jones and to develop a

discharge plan. Tr. 717–18. Dr. Rajan reviewed with Jones that he had

needed emergency care as an admitted patient at Mansfield Hospital

monthly for seizure activity since June. Tr. 717. Dr. Rajan noted that Jones’s

seizures were “mostly associated” with missing doses of Lamictal. Id. He

pointed out that Jones had “[a]dmitted … missing evening doses [of Lamictal]

in the past several days.” Id. Dr. Rajan emphasized the fact that Jones

“[f]requently misse[d] [his] nighttime dose” and advised him to discuss ways

to improve compliance with Dr. Woodruff. Id. Dr. Rajan also suggested

strategies Jones could use to help “surmount his compliance issues.” Id.

13 Diltiazem is a blood pressure medication. See Diltiazem, MedicineNet,

https://www.medicinenet.com/diltiazem/article.htm [https://perma.cc/R3BA-

DTB8].

Jones saw Dr. Woodruff about two weeks later. Tr. 1226–30. He was

prescribed 200 milligrams of Lamictal in the morning and 300 milligrams at

night, however, Jones reported that he’d only been taking 100 milligrams in

the morning. Tr. 1226. Dr. Woodruff noted that Jones was dealing with

“severe mood disorder” and post-traumatic stress disorder in addition to the

seizures. Id. He found that Jones wasn’t agitated or confused and didn’t have

behavioral problems, decreased concentration, hallucinations, self-injury,

sleep disturbance, or suicidal ideation, though Jones’s mood was dysphoric.14

Tr. 1227. He did not appear to be ill or in any distress. Tr. 1228. Although

Jones was withdrawn and tearful, his speech, judgment, and thought content

were normal. Id. He was alert and oriented to person, place, and time. Id. He

had a normal gait with normal strength, muscle tone, and coordination. Id.

In October 2019, Jones arrived at Mansfield Hospital late in the

evening complaining of seizure activity. Tr. 793. He arrived in a postictal

state and had a seizure in the emergency room before he was admitted to the

hospital. Tr. 788, 793. Jones said that he “may have missed a few doses of his

Lamictal” but also reported medication compliance and expressed frustration

that he was still having seizures. Tr. 786, 788. His labs were unremarkable.

Id. Certified Nurse Practitioner (CNP) Beth Ashley Seymour noted that

Jones frequently missed his evening Lamictal doses. Id. She observed that

Jones had no further seizure activity after he was given Lamictal and Keppra

14 A dysphoric mood is disquiet, restlessness, or malaise. See Dorland’s

Illustrated Medical Dictionary 573 (33rd ed. 2020).

in the hospital. Id. In the early morning hours of the next day, Jones asked to

be discharged but Seymour advised Jones to stay to be assessed by someone

from neurology. See Tr. 792. Jones left against medical advice. Tr. 792–93.

In November 2019, the Mansfield Hospital emergency staff treated

Jones. Tr. 1297. The night before, Jones’s girlfriend witnessed Jones having a

seizure in his sleep and called emergency services. Id. After Jones arrived at

the hospital but before he was admitted, he had a second seizure. Id. At the

recommendation of the neurology department, Mansfield Hospital

transported Jones to Riverside Methodist Hospital for ongoing evaluation in

a specialized epilepsy monitoring unit. See Tr. 1297, 1300, 1333.

At Riverside, Jones reported “complete compliance” with his Lamictal

as prescribed. Tr. 1302. Brooklyn Elaine Hill, CNP, found that Jones’s level of

Lamictal was “low normal” and “suspect[ed] nonadherence.” Tr. 1302. Jones

experienced no further seizure activity at Riverside and had a normal

neurological exam. Tr. 1300. Riverside neurologist Emily Terese Klatte, M.D.,

assessed Jones. Tr. 1300; Tr. 1306. Dr. Klatte noted that he “never had a

seizure while awake.” Tr. 1304. She recited Jones’s Lamictal dosages—200

milligrams of in the morning and 300 milligrams at bedtime—and found that

his assertion of complete compliance was contradicted by “documentation

from OLH.”15 Tr. 1305. Dr. Klatte ordered long-term EEG testing.16 Tr. 1304.

15 It’s not clear what Dr. Klatte meant by OLH.

She indicated that she might ease Jones’s driving restriction since his events

were strictly nocturnal. Tr. 1304.

Later that day, Jones underwent the testing that Dr. Klatte ordered.

Tr. 1313–14. For 17 hours, an EEG continuously monitored and recorded

Jones’s neurological activity. Id. The study did not detect or observe any

seizure activity or find any diagnostic markers showing epilepsy. Tr. 1313.

Jones’s results were normal as was the “[b]ackground activity” of his brain.

Tr. 1314. Galen Benedict Hayek, D.O., authorized Jones’s discharge. Tr.

1320–22. Dr. Hayek noted that Jones had been admitted for seizures “due to

probable med non-compliance.” Tr. 1321.

In mid-December 2019, Jones had a follow-up with his pulmonologist,

Robert Denton, M.D., for obstructive sleep apnea. Tr. 1850–65. Jones had

been using a CPAP machine for his sleep apnea and reported that it “ma[de]

a difference.”17 Tr. 1850–65. Dr. Denton found Jones alert, well-oriented,

cooperative, and in no apparent acute distress. Tr. 1850. His head, neck,

chest, abdomen, and extremities were normal. Id. Jones had a normal

16 Electroencephalography (EEG) is the primary diagnostic test for brain

function. See David Y. Ko, M.D., Epileptiform Discharges, Medscape Drugs &

Diseases, https://emedicine.medscape.com/article/1138880-overview?form=fpf

[https://perma.cc/HCA7-2KMV]. EEG continuously measures brain function

and allows for greater detection of interictal—between seizure—electrical

brain activity. Id.

17 A CPAP (continuous positive airway pressure) machine is a common

treatment for sleep apnea. It keeps the airways open during sleep ensuring

that one’s body receives oxygen. See CPAP Machine, Cleveland Clinic Health

Library, https://my.clevelandclinic.org/health/treatments/22043-cpap-

machine [https://perma.cc/H27A-GXZR].

neurological exam during which Dr. Denton found no obvious focal

abnormalities. Id.

Jones returned to Riverside’s Epilepsy Monitoring Unit a week later to

undergo additional testing. See Tr. 1333–72. Since the previous

“nondiagnostic” long-term EEG study had not captured any seizure spells,

Dr. Klatte suggested that additional monitoring might capture Jones’s “spells

of unclear etiology” so she could classify and investigate them. See Tr. 1335,

1347. When Jones arrived, he had a Lamictal level of 7.9 micrograms per

milliliter, which is within the therapeutic range for seizure prevention. Tr.

1367.

Dr. Klatte recited Jones’s “various medical problems including post-

traumatic stress disorder, possible epilepsy versus nonepileptic spells,

hyperlipidemia, sleep apnea, and kidney disease.” Tr. 1335. Jones “believe[d]

he was still having fairly frequent seizures[,] … the majority … occur[ing]

during sleep.” Id. Jones was still “struggle[ing] with mood issues.” Id. He was

alert and oriented with fluent speech and language, a reactive affect,

symmetrical movement in all extremities, normal coordination, and a steady

gait. Id.

The second long-term EEG showed normal sleep activity and didn’t

capture any clinical events. Tr. 1348. The interictal recordings showed

“occasional sharp transients18 with a benign morphology” in Jones’s left

temporal region. Id. The presence of transients suggested that Jones’s brain

was able to generate seizures. See Tr. 1364. According to Dr. Klatte, this

could suggest a predisposition to focal onset seizures,19 but the study hadn’t

captured any of his “clinical events” so it wasn’t clear whether Jones’s

seizures were epileptic or nonepileptic in nature. Tr. 1348. Dr. Klatte

discharged Jones with instructions to keep taking Lamictal, refrain from

driving, and follow-up with Dr. Woodruff. Tr. 1362–64. She recommended

ongoing treatment for sleep issues, stress, and PTSD because improving

these issues would also help with his seizures. Id.

About two weeks later, in January 2020, Jones arrived at Mansfield

Hospital in a postictal state seeking emergency treatment due to seizure

activity. See Tr. 1773; see also Tr. 1772–1802, 1960–94. He had a second

seizure in the hospital and reported poor sleep and significant stress. Tr.

1794. Dr. Rajan treated Jones and noted that “there [was] a question of

18 Dr. Klatte described Jones’s transients as “sharp waves (‘or sparks’).”

Tr. 1364. See also David Y. Ko, M.D., Epileptiform Discharges, Medscape

Drugs & Diseases, https://emedicine.medscape.com/article/1138880-

overview?form=fpf [https://perma.cc/HCA7-2KMV](defining sharp transients

as spiky electrical discharges).

19 Focal onset—as opposed to generalized—seizures begin in one side of

the brain. https://www.epilepsy.com/what-is-epilepsy/seizure-types/focal-

onset-aware-seizures [https://perma.cc/R4EV-BQ3E]. Focal onset aware

seizures, where one doesn’t lose awareness of his or her surroundings, are the

most common type of seizure experienced by people with epilepsy. Id.

whether … [Jones had] additional function nonepileptic seizures on top of his

epileptic seizures.” Id.

Jones saw his primary care provider, physician’s assistant Charles O.

Davis, the following week. See Tr. 1806–08. Davis noted that it wasn’t clear

whether Jones’s seizures were due to neurological issues or stress and mental

health. Tr. 1806. Davis recorded that in addition to seizures, Jones was

reporting anxiety and depression. Id. Davis found that Jones was emotional,

sad, and stressed. Id. He had a depressed mood and no interest in hobbies

and a lack of motivation and energy. Id. Despite taking Paxil daily, Jones’s

symptoms had not improved. Id. Davis increased Jones’s Paxil dose. Id.

In early February 2020, Jones arrived at Mansfield Hospital

complaining of seizures and dizziness. Tr. 1918–59, 2155. He said that he felt

extremely tired, lightheaded, and nauseated. Tr. 1918. He had low blood

pressure. Tr. 1918, 1924. Jones’s treating physician suspected that Jones had

a syncopal20 episode rather than a seizure. Tr. 1924.

In March, Mansfield Hospital’s emergency department staff treated

Jones for seizures. Tr. 1996–2154, 2254–2315. He had been at home when he

experienced a two-minute seizure. Tr. 2126. Jones was discharged but

returned later the same day and reported experiencing another seizure at

home. Tr. 2258. In the emergency department before he was admitted for the

20 Also called fainting, syncope is the medical term for a temporary

suspension or loss of consciousness. See Dorland’s Illustrated Medical

Dictionary 1788 (33rd ed. 2020).

second time, Jones had a generalized seizure that involved drooling and

foaming in the mouth. Tr. 2267. The emergency department staff intubated

him to protect his airway, sedated him, and placed him on a ventilator. Id.

Jones admitted using drugs but “would not give the details of what drugs he

was using.” Id. He had an unremarkable CT scan that did not detect any

acute abnormality. Id. Dr. Tan reviewed Jones’s EEG results and found them

unremarkable. Tr. 2303. After two days of treatment, Dr. Tan authorized

Jones’s discharge. Id. He increased Jones’s dose of Lamictal and prescribed

Vimpat.21 Id.

Later that month, Jones transferred neurological care to Dr. Tan, with

whom he had a follow-up telehealth appointment. Tr. 2752–57. Dr. Tan

recited Jones’s history of PTSD and cocaine and marijuana use. Tr. 2753. He

noted that Jones was having seizures every several months and that most

were nocturnal or during the transition between sleeping and waking. Id.

“Occasionally,” Dr. Tan found, Jones’s stress “caused him to have a

breakthrough seizure.” Id.

After March 2020, Jones was next hospitalized for seizures in June. Tr.

2165. He reported that he “recently stopped taking Keppra due to a reaction

he was having.” Tr. 2165. He was “otherwise feeling well [and] denie[d]

missing any other medications.” Id. His Lamictal level was 4.8 milliliters per

microgram. Tr. 2379.

21 For financial reasons, Jones discontinued Vimpat. See Tr. 2747.

Jones received emergency medical treatment for seizures in July,

September, October, and November 2020. See Tr. 2165, 2365, 2558–59, 2590,

2649, 2699. He reported medication compliance during those hospital visits.

Tr. 2367, 2559, 2649. In July, Jones had two seizures which brought him to

the hospital and then a third seizure just as he was about to be discharged.

Tr. 2372–73. His Lamictal level in July was 3.9 milliliters per microgram. See

Tr. 2558. Thereafter, Jones began taking Trileptal in addition to Lamictal.

See Tr. 2389.

In September 2020, Jones had two seizures at home and was admitted

to Mansfield Hospital. Tr. 2553. 2316–64, 2551–88. He was discharged but

readmitted after having a third seizure while waiting for a ride. Tr. 2747,

2554. After three days of in-patient treatment, Hani Al Sali Al Krad, M.D.,

authorized Jones’s discharge and increased Jones’s dosages of Lamictal and

Trileptal. Tr. 2566–67.

In October 2020, Jones saw Dr. Tan for a follow-up. Tr. 2745–52. Dr.

Tan instructed Jones to avoid triggers including alcohol and to maintain

regular sleep and dietary habits. Tr. 2748. Later that same day, Jones

arrived at Mansfield Hospital for emergency medical treatment due to

seizure. See Tr. 2746, 2521. He arrived in a postictal state and reported

shaking for four minutes. Tr. 2522, 2527. Jones said that he was taking his

medications as prescribed. Tr. 2522. He was observed then sent home. Tr.

2685. Within 20 minutes, Jones returned and reported having experienced

another seizure. Tr. 2685, 2692; see also Tr. 2466–2550, 2683–2744. Jones

was admitted in the early hours of the next day for observation and

neurologic consultation. Tr. 2685. Despite initially indicating he had been

compliant with his medications, Jones later admitted missing doses of his

seizure medications “at times because he [] often ma[de] trips to help family

and forg[ot] his evening doses.” Tr. 2699.

In November, primary care provider Davis found that Jones had an

anxious mood. Tr. 1891. Jones said he was drowsy and didn’t feel like himself

when he was taking his most recently increased dose of Lamictal as well as a

new medication, Oxcarbazepine. Id. Three days later, Jones was treated at

Mansfield Hospital for seizure activity. Tr. 2644–82. His girlfriend observed

him have three seizures overnight and called emergency services. Tr. 2649.

Jones reported that he had taken his medications—250 milligrams of

Lamictal in the morning, 300 milligrams of Lamictal at night, and 300

milligrams of Trileptal twice daily—the night before but not in the morning.

Id. He reported being compliant with his current medication regimen. Id.

Jones next had a seizure in March 2021 and he was admitted to

Mansfield Hospital. Tr. 2849, 2861. The following day, Dr. Tan found that

Jones was awake, alert, bright, and interactive. Id. He had no appetite but

also no headache, nausea, vomiting, angina, dyspnea, focal motor weakness,

or numbness. Id. Jones “claimed” to have missed three to four days of

anticonvulsant medications. Id. Dr. Tan noted that Jones had not had any

recurrent seizures since being treated in the hospital. Id. Long-term EEG

monitoring showed normal wakefulness and sleep. Tr. 3243. “No clinical

events were captured” and the recordings did not show any epileptiform

discharges or ictal activity. Id.

In April 2021, Jones had a Lamictal level of 5.6 milligrams per

microgram. Tr. 3004.

In May 2021, Jones was admitted to Mansfield Hospital for seizures.

Tr. 3369–3441. He reported that his doctors had recently decreased his

antiseizure medications and he had been compliant with the new dosages. Tr.

3376. He denied using any drugs or alcohol. Id.

In June, Jones was admitted to Mansfield Hospital after having three

seizures. Tr. 2989. He reported that he “wasn’t sure whether he had taken

his medications.” Tr. 2989, 2997.

In July, Jones was admitted to Mansfield Hospital for two seizures he

reported experiencing in the morning Tr. 3101, 3094–3206. Jones had a third

seizure in the emergency department while he waited to be admitted. Tr.

3110. Jones said that he hadn’t missed any doses of Lamictal and wasn’t

sure what triggered his seizures. Id. Dr. Rajan noted that Jones appeared

visibly confused and “foggy.” Id. He observed that this hospitalization marked

Jones’s tenth admission for seizure within the previous 18 months. Tr. 3113.

Dr. Rajan noted that there was no clear etiology for the seizures other than

Jones’s self-reported “history of traumatic brain injury from a past assault.”

Tr. 3113. He noted that previous treatment providers had assumed that

noncompliance, not a cognitive issue, caused Jones’s seizures. Tr. 3114.

Before July, Jones’s most recent spell had been in early May. Id. Although

Jones’s Lamictal level was in the therapeutic range, Dr. Rajan wasn’t sure

that this level of Lamictal was “efficacious enough.” Tr. 3116. Dr. Rajan

prescribed a new medication, extended release capsules of Dilantin. Id. He

noted that Jones had a “baseline normal” neurological exam, a normal motor

and sensory exam, and no focal deficits. Tr. 3115, 3118.

Jones was treated at Mansfield Hospital for seizures in August 2021.

Tr. 3207–3347. Test results showed low levels of his antiseizure medications.

Tr. 3225, 3243. Dr. Rajan observed Jones’s dysphoric mood and noted that

Jones reported sleep disturbance, anxiety, and PTSD symptoms. Tr. 3004.

Jones said that his girlfriend had been preparing and administering his

medications. Tr. 3005. He said he was dealing with a lot of stress. Tr. 3229.

Dr. Rajan increased the twice daily doses of Lamictal. Tr. 3242.

Other mental health treatment. Starting in March 2020, Jones received

mental health treatment at Third Street Family Health Services. See Tr.

1866–88. Carlos Molina Arriloa, M.D., listed Jones’s diagnoses as post-

traumatic stress disorder, generalized anxiety disorder, major depressive

disorder, and marijuana use. See Tr. 1873. Jones also had impulse control

issues, mood swings, and emotional instability. Id. He reported a history of

physical and emotional abuse and a family history of violence. Tr. 1867. He

reported trauma stemming from his father’s murder when Jones was a senior

in high school. Id. Jones also discussed an incident during which he shot a

man who had entered his home, for which he served several months in jail.

Id. He reported feeling hypervigilant, experiencing flashbacks, isolating

himself, and often being consumed by this event. Tr. 1867–68. Jones had

“kind of [a] down mood.” Tr. 1887. His insight and judgment were fair. Id.

In June 2020, Jones reported being more depressed and often angry

with an “up and down mood.” Tr. 1875. Christina E. Stout, CNP, found that

Jones had anhedonia and determined that he had a loss of motivation,

trouble sleeping, trouble concentrating, irritability, feelings of restlessness,

crying spells nearly daily or daily, suicidal or homicidal thoughts, and short-

term memory loss. Tr. 1875–76. Jones’s behavior, speech pitch and volume,

thought process, and thought content were normal. Tr. 1876. His insight and

judgment were fair. Id. Jones had a calm affect and appeared depressed. Id.

In July 2020, Jones reported waking up in a negative mood and said he

hadn’t wanted to attend his appointment with Third Street counselor Jamie

Pelfrey. Tr. 1871. Jones reported feeling depressed and irritable. Id.

In October 2020, Jones told social worker Ashley Risner at Third

Street that he hadn’t been sleeping well and felt “very depressed and

constantly anxious.” Tr. 1866. Jones reported that he was supposed to have a

psychiatric follow-up with Dr. Molina but “‘waited for over an hour,’” became

frustrated, and left. Id. He said he felt like his medication wasn’t working

and expressed his intention to transfer psychiatric care to another doctor. Id.

Risner found Jones well-groomed and appropriately dressed. Id. She observed

that he had a pleasant and cooperative demeanor and fair eye contact,

though he “had a flat affect and appeared to be depressed.” Tr. 1866.

In August 2021, Jones arrived at Mansfield Hospital seeking

treatment for a panic attack. Tr. 3325–47. He appeared to be tearful and

reported that his brother had died the night before from a heart attack. Tr.

3330–33.

3. State agency and other medical opinion evidence22

In January 2021, consultative psychological examiner Sudhir Dubey

Ph.D., examined Jones. See Tr. 1288–95. Dr. Dubey found that Jones did not

need simple directions. Tr. 1291. He found that Jones appeared to

understand the questions Dr. Dubey asked and didn’t need questions

repeated. Id. Jones reported the ability to independently perform his own

activities of daily living, complete his own paperwork, and shop for himself in

stores. Id. Dr. opined on Jones’s psychological capabilities as further

discussed below.

22 When a claimant applies for disability benefits, the state agency

creates a record. The record includes the claimant’s medical evidence. A state

agency disability examiner and a state agency physician or psychologist

review the claimant’s record and determine whether and to what extent

the claimant’s condition affects his or her ability to work. If the state agency

denies the claimant’s application, the claimant can ask for reconsideration.

On reconsideration, the state agency updates the record and a second

disability examiner and doctor review the file and make a new determination.

See, e.g., 20 C.F.R. § 404.1615.

In October 2019, initial state agency consulting physician Bradley J.

Lewis, M.D., reviewed the medical evidence and found that Jones had several

severe impairments including epilepsy, neurocognitive disorders, and

depressive, bipolar, and related disorders. Tr. 85. Dr. Lewis also found

several nonsevere impairments including essential hypertension and

substance addiction to drugs and alcohol. Id. Dr. Lewis indicated that he

considered Listing 11.02 for epilepsy. Tr. 87. He found that Jones was

capable of work at any level of exertion because Jones had “nonexertional

limitations only.” Tr. 93.

During reconsideration in April 2020, state agency consulting

physician Leon Hughes, M.D., reviewed the medical evidence and adopted

Dr. Lewis’s findings. Tr. 96–105.

In December 2019, state agency consulting psychologist Darrell

Snyder, Ph.D., reviewed the medical evidence and found that Jones had no

more than moderate understanding and memory limitations, sustained

concentration and persistence limitations, social interaction limitations, and

adaptation limitations. Tr. 90–92. Dr. Snyder found that Jones was

moderately limited in the ability to understand and remember detailed

instructions. Tr. 90. Dr. Snyder further found that Jones was moderately

limited in the ability to carry out detailed instructions. Tr. 91. Jones was

moderately limited in the ability to complete a normal workday and

workweek without interruption from psychologically based symptoms and to

perform at a consistent pace without an unreasonable number and length of

rest periods. Tr. 91. Dr. Snyder also found Jones moderately limited in the

ability to interact appropriately with the general public and to respond

appropriately to changes in the work setting. Tr. 91–92. Jones was not

significantly limited in any other work activities. See Tr. 90–92.

In April 2020, state agency consulting psychologist Karla Delcour,

Ph.D., reviewed the medical evidence and adopted Dr. Snyder’s findings.

4. Testimonial evidence

Jones and a vocational expert testified during the hearing in October

2021. Tr. 36–51. Jones was represented by attorney David Dick, who

submitted two pre-hearing briefs advocating that the ALJ find Jones

disabled. See Tr. 384–89; 405–409.

Jones testified that he was still having seizures despite taking 400

milligrams of Lamictal twice daily. Tr. 40–41. His seizure medication dosage

was increased three months ago and Jones had a seizure as recently as 17

days before the hearing. Tr. 41. Jones typically experienced seizures while

sleeping. Id. His girlfriend usually observed the seizure activity and took him

to the emergency room. Id. In 2021, Jones estimated that he experienced

“[m]aybe ten, 15” seizures. Tr. 41. September was the only month that year in

which Jones said he did not experience seizure activity. Id. He dislocated his

shoulder in the course of a seizure and was attending therapy for his rotator

cuff. Tr. 42. He reinjured his shoulder during his most recent seizure. Id. On

Dr. Tan’s recommendation, Jones stopped driving in March 2021 due to his

seizures. Tr. 45. In addition to his seizures, Jones had post-traumatic stress

disorder and that affected his sleep and social life. Tr. 44.

After Jones, vocational expert Rebecca Kendrick testified. Tr. 45–50.

Kendrick testified that a hypothetical individual Jones’s age with the same

level of education, work experience, and limitations as assessed in Jones’s

RFC, described below, would not be able to perform Jones’s past work. Tr.

48–49. Such an individual could, however, perform unskilled labor with a

medium level of exertion such as a kitchen helper, linen room attendant, or

cook helper. Tr. 49. Being absent more than once a month on an ongoing

basis would preclude such an individual from all work. Tr. 50.

The ALJ’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

March 31, 2024.

2. The claimant has not engaged in substantial

gainful activity since June 14, 2019, the alleged

onset date (20 CFR 404.1571 et seq.).

3. The claimant has the following severe

impairments: obesity, bilateral carpal tunnel

syndrome, status post left carpal tunnel release;

and bilateral knee osteoarthritis, status post left

knee surgery (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 a full

range of work at all exertional levels but with

the following nonexertional limitations: The

claimant cannot climb ladders, ropes, or

scaffolds; cannot do commercial driving; cannot

work around moving machinery or unprotected

heights; is limited to simple, repetitive tasks

performed in a work environment free of fast-

paced production requirements involving only

simple work-related decisions with few if any

workplace changes; and is capable of brief

interactions with supervisors and coworkers

sufficient to learn the unskilled job, adapt to

changes as stated, and exchange appropriate

work information, but with no public contact.

6. The claimant is unable to perform any past

relevant work (20 CFR 404.1565).

7. The claimant was born [in] July … 1967 and

was 51 years old, which is defined as an

individual closely approaching advanced age, on

the alleged disability onset date (20 CFR

404.1563).

8. The claimant has at least a high school

education (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, 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

404.1569a).

Tr. 17–27.

Standard for disability

Eligibility for benefit payments depends on the existence of a

disability. 42 U.S.C. §§ 423(a, 1382(a). “Disability” is defined as the “inability

to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which 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[.]” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. §

1382c(a)(3)(A).

An ALJ is required to follow a five-step sequential analysis to make a

disability determination:

1. Is the claimant engaged in substantial gainful

activity? If so, the claimant is not disabled.

2. Does the claimant have a medically determinable

impairment, or a combination of impairments, that

is “severe”? If not, the claimant is not disabled.

3. Does the claimant’s impairment meet or equal one

of the listed impairments and meet the duration

requirement? If so, the claimant is disabled. If not,

the ALJ proceeds to the next step.

4. What is the claimant’s residual functional capacity,

and can the claimant perform past relevant work?

If so, the claimant is not disabled. If not, the ALJ

proceeds to the next step.

5. Can the claimant do any other work considering

the claimant’s residual functional capacity, age,

education, and work experience? If so, the claimant

is not disabled. If not, the claimant is disabled.

20 C.F.R. §§ 404.1520, 404.1520. Under this sequential analysis, the claimant

has the burden of proof at steps one through four. Walters v. Comm’r of Soc.

Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the

Commissioner at step five to establish whether the claimant has the

vocational factors to perform available work in the national economy. Id. If a

claimant satisfies each element of the analysis and meets the duration

requirements, the claimant is determined to be disabled. Id.

Standard of review

A reviewing court must affirm the Commissioner’s conclusions unless

it determines “that the ALJ has failed to apply the correct legal standards or

has made findings of fact unsupported by substantial evidence in the record.”

Jordan, 548 F.3d at 422. “‘[S]ubstantial evidence’ is a ‘term of art’” under

which “a court … asks whether” the “existing administrative record …

contains ‘sufficien[t] evidence’ to support the agency’s factual

determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations

omitted). The substantial evidence standard “is not high.” Id. Substantial

evidence “is ‘more than a mere scintilla’” but it “means only[] ‘such relevant

evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Id. (citations omitted). The Commissioner’s “findings … as to

any fact if supported by substantial evidence [are] conclusive.” 42 U.S.C. §

405(g); Biestek, 139 S. Ct. at 1152.

A court may not try the case de novo, resolve conflicts in evidence, or

decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.

1984). Even if substantial evidence or a preponderance of the evidence

supports a claimant’s position, a reviewing court cannot overturn the

Commissioner’s decision “so long as substantial evidence also supports the

conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,

477 (6th Cir. 2003). This is so because there is a “‘zone of choice within

which’” the Commissioner can act, without fear of court “‘interference.’”

Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler,

730 F.2d 1147, 1150 (8th Cir. 1984).

Discussion

1. Challenging the ALJ’s step three finding that Jones did not meet or

medically equal Listing 11.02 for epilepsy

ALJ Keller found that epilepsy was one of several medically

determinable severe impairments. Tr. 17–18. At step three, however, the ALJ

determined that Jones’s neurological impairments did not meet or medically

equal Listing 11.02 for epilepsy.23 See Tr. 19. The ALJ based this finding

23 The “listings” are found at 20 C.F.R Part 404, Subpart P, App. 1. They

are a catalog of disabling impairments organized by “body systems.”

Generally, each body system section has an Introduction, which contains

information relevant to that system, and a Category of Impairments, which

contains each numbered listing. Each listing describes the objective medical

and other findings needed to satisfy the criteria of that listing. See id; 20

C.F.R. § 404.1525.

primarily on Jones’s noncompliance with prescribed treatment, which

prevented him from satisfying the listing’s frequency requirement. See Tr. 19.

In the neurological section of the listings, the Social Security

Administration defines epilepsy as “a pattern of recurrent and unprovoked

seizures that are manifestations of abnormal electrical activity in the brain.”

20 C.F.R. Pt. 404, Subpart P, App. 1 § 11.00H.24 Listing 11.00H states that

“[t]here are various types of generalized and ‘focal’ or partial seizures,” of

which generalized tonic-clonic seizures are one type. Id. § 11.00H(1)(a). A

claimant may, in pertinent part, satisfy Listing 11.02A with evidence of

documented epilepsy that is characterized by “[g]eneralized tonic-clonic

seizures, occurring at least once a month for at least [three] consecutive

months despite [the claimant’s adherence] to prescribed treatment.” 20

C.F.R. Pt. 404, Subpart P, App. 1 § 11.02. The listings define despite

adherence to prescribed treatment as meaning that for at least three

consecutive months, the claimant took medication as directed—or followed

other treatment procedures as prescribed by a physician—and yet his

epilepsy continued to meet the listing’s “requirements despite [the]

treatment.” See 20 C.F.R. Pt. 404, Subpart P, App. 1 § 11.00C.

In 20 C.F.R. Pt. 404, Subpart P, App. 1 § 11.00H(4), the Social

Security Administration defines epilepsy and explains how it evaluates

24 Disability Evaluation Under Social Security, 11.00 Neurological -

Adult https://www.ssa.gov/disability/professionals/bluebook/11.00-

Neurological-Adult.htm#11_02 [https://perma.cc/U6BE-BJPM].

epilepsy under Listing 11.02. It also explains that the Commissioner and his

agents will consider adherence to prescribed treatment during the relevant

time period in calculating the number of qualifying seizures for the listing’s

frequency requirement. 20 C.F.R. Pt. 404, Subpart P, App. 1 § 11.00H(4). The

agency does not count seizures occurring during a period of noncompliance

unless the claimant has established good cause for the noncompliance. See 20

C.F.R. Pt. 404, Subpart P, App. 1 § 11.00H(4)(d). The agency explains that

“[w]hen it determines that [a claimant] had good reason for not adhering to

prescribed treatment, [it] will consider [the claimant’s] physical, mental,

educational, and communicative limitations (including any language

barriers).” Id. “[I]f, for example, the treatment [were] very risky … due to its

consequences or unusual nature,” the agency would consider that “good

reason” for the claimant’s non-adherence to such treatment. Id.

The agency states in Listing 11.00H(4)(d) that it follows the guidelines

established in 20 C.F.R. §§ 404.1530(c) and 416.930(c) when considering why

a claimant did not adhere to his or her prescribed treatment. The following

are the regulations’ examples of good cause:

(1) The specific medical treatment is

contrary to the established teaching and

tenets of [the claimant’s] religion.

(2) The prescribed treatment would be

cataract surgery for one eye, when there

is an impairment of the other eye

resulting in a severe loss of vision and is

not subject to improvement through

treatment.

(3) Surgery was previously performed with

unsuccessful results and the same

surgery is again being recommended for

the same impairment.

(4) The treatment because of its magnitude

(e.g., open heart surgery), unusual nature

(e.g., organ transplant), or other reason is

very risky for [the claimant]; or

(5) The treatment involves amputation of an

extremity, or a major part of an

extremity.

20 C.F.R. §§ 404.1530(c), 416.930(c).

a. Whether substantial evidence supported the ALJ’s step three finding

Jones says that he had “tonic-clonic (grand mal) seizures occurring at

least once a month for at least 3 months during periods of compliance [and

that] [t]he ALJ failed to evaluate this evidence or consider whether there was

good cause for failing to comply with treatment when there was

noncompliance.” Doc. 9, at 17. Jones acknowledges that the ALJ identified

periods with documented evidence of missed doses of medication in May,

September, and October 2019, and June and August 21, 2021. Doc. 9 at 17

(citing Tr. 19, in turn citing Tr. 716, 788, 963, 1226, 2989, 3225, 3243, 3250).

He claims, “[h]owever,” that “there is evidence of adherence to treatment

during the remaining time frames, and this evidence was not evaluated at

step 3.” Id.

In general, the claimant bears the burden of establishing that a

condition meets or equals a listing. Thacker v. Soc. Sec. Admin., 93 F. App’x

725, 727–28 (6th Cir. 2004) (citing Buress v. Sec’y of Health & Human Servs.,

835 F.2d 139, 140 (6th Cir. 1987)). A claimant “must present specific medical

findings that satisfy the various tests listed in the description of the

applicable impairment or present medical evidence which describes how the

impairment has such equivalency.” Id. at 728 (citing Evans v. Sec’y of Health

& Human Servs., 820 F.2d 161, 164 (6th Cir. 1987)). “Each listing specifies

‘the objective medical and other findings needed to satisfy the criteria of that

listing’” and a claimant “must satisfy all the criteria to ‘meet’ the listing.”

Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011). “[A]

claimant is also disabled if her impairment is the medical equivalent of a

listing[.]” Id. There is no heightened articulation standard at step three.

Bledsoe v. Barnhart, 165 F. App’x 408, 411 (6th Cir. 2006).

Notably, the only citations to the record that Jones lists in his

argument are his own self-reported statements professing adherence to

treatment, see Doc. 9, at 18 (citing Tr. 2156–62, 2163–2253, 2316–64, 2365–

2465, 2466–2550, 2551–88, 2522, 2644–82, 2683–2744), or provider

references to “breakthrough” seizures without establishing what any provider

meant by this reference, see id (citing Tr. 2375, 2558, 2745–52, 2747, 2748,

2522, 2685). Jones does not provide factual evidence or legal authority to

support his assertion that “evidence of [his] adherence to treatment during

the remaining time frames … was not evaluated at step [three].” Doc. 9, at

17. Crucially, Jones hasn’t provided support for the assumption at the heart

of his argument—that, essentially, any period of time without documented

evidence of a claimant’s medication noncompliance must be considered

affirmative evidence of the claimant’s medication compliance. See Doc. 9, at

17–19. Jones has no basis for the assertion that he was having seizures

despite adhering to his prescribed treatment—except his own statements,

which are contradicted by the evidence. Id; see also, e.g., Tr. 631, 716, 792–93,

788, 963, 1018, 1226, 2989, 3112, 3130, 3137.

Substantial evidence thus supports the ALJ’s finding. As noted in the

factual background, above, the record is replete with evidence of

noncompliance, much of which the ALJ cited in his decision. Tr. 22–23 (citing

Tr. 716, 788, 963, 1226, 2989, 3112, 3130, 3137). He noted that Jones’s

symptoms were “generally brought under control once medications were

administered in a controlled setting (e.g. the emergency room). Tr. 23 (citing

Tr. 793, 3137). The ALJ noted that Jones had “left the emergency room

against medical advice on multiple occasions. Id. (citing Tr. 631, 792, 1018).

The ALJ cited specific instances of noncompliance in the record

including Jones’s September 2019 statement to neurologist Dr. Woodruff that

he was only taking his morning dose of Lamictal. Tr. 19 (citing Tr. 1226). The

ALJ noted that during a seizure-related hospitalization in October 2019,

Jones reported that he “may have missed a few doses” of his Lamictal. Id

(citing Tr. 788). Jones was supposed to take 100 milligrams of Lamictal in the

morning and 300 milligrams at night, but admitted in September 2019 that

he “frequently misse[d] the evening doses.” See Tr. 788.

The ALJ also discussed additional instances of suspected

noncompliance, including Jones’s hospitalization in October 2019. See Tr. 19

(citing Tr. 788). The ALJ noted that this began when Jones had a seizure at

home and went to Mansfield Hospital for emergency medical treatment,

where he had a second seizure while waiting to be admitted. See Tr. 19 (citing

Tr. 788, 93). Jones reported that he might have missed a few doses of

Lamictal, refused an EEG and having stayed less than 24 hours, left against

medical advice. See Tr. 19, 788, 793. In June 2021, Jones said that he wasn’t

sure whether he had been taking his medications. Tr. 19 (citing Tr. 2989).

There were many instances in which his Lamictal levels were lower than

would be expected if Jones were completely compliant with his medication.

Tr. 19; see also Tr. 634, 646, 968, 1302, 2379, 2558, 3225, 3243. And Jones’s

treatment providers—the professionals in the best position to opine on the

issue—concluded that his seizures were likely due to medication non-

adherence. See Tr. 19, 2989, 3114, 1302, 3243. In August 2021, Jones was

hospitalized due to a seizure and had a seizure at the hospital. See Tr. 19,

3242–43, 3248. Lab results again revealed a low Lamictal level. Tr. 19 (citing

Tr. 3225, 3243, 3250). Through these and other examples, the ALJ supported

his findings regarding noncompliance in several ways and with adequate

citation to the record. See Tr. 22–23. And because the record supports the

ALJ’s noncompliance finding, Jones cannot show that he met the listing

requirement for epilepsy. See 20 C.F.R. Pt. 404, Subpart P, App. 1 § 11.00C.

(“we require that limitations from these neurological disorders exist despite

adherence to prescribed treatment”).

Jones acknowledges the evidence of his noncompliance but argues that

it shows he wasn’t adherent to his treatment in May 2019, September 2019,

October 2019, June 2021, and “August 21, 2021.” See Doc. 9, at 17 (citing Tr.

19). He claims that he is entitled to remand because ALJ Keller did not

evaluate “evidence of adherence to treatment during the remaining time

frames.” See id. at 17. Jones then says that his seizures between May 28,

2019, and September 3, 2019, occurred despite adherence to treatment. Doc.

9, at 18. But there is no evidence affirmatively establishing this in the record,

which, as noted, is replete with evidence to the contrary. See, e.g., Tr. 968,

1302, 1335, 1348, 2284 (showing treatment providers who were suspicious of

Jones’s claims of compliance, lower Lamictal levels than would be expected if

Jones had been completely compliant, and unremarkable study results).

Even if Jones’s flawed premise—that any days without documented

evidence of noncompliance in the record affirmatively show that he was

compliant—were valid, remand still would not be warranted. As discussed,

whether substantial evidence exists to support a different interpretation of

the evidence is irrelevant because substantial evidence also supports the view

of noncompliance adopted by the ALJ. See Tr. 23–24, 728–29. And “[s]o long

as substantial evidence supports the conclusion reached by the ALJ,” it

doesn’t matter if substantial evidence also supports a claimant’s position. See

Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). Whether substantial

evidence supports the conclusion that Jones might have compliant is

irrelevant unless he shows that substantial evidence does not support the

ALJ’s determination that he wasn’t, which Jones failed to do.

b. Whether the ALJ had an obligation, under the Appeals Council’s

order or in general, to further develop the record with medical

opinion evidence and failed to meet that obligation

In its remand order, the Appeals Council said that ALJ Leland’s

recitation of the evidence had been only a general summary and that it didn’t

sufficiently support the decision’s findings. Tr. 120. The Appeals Council said

that ALJ Leland failed to connect specific evidence to specific RFC findings.

Tr. 120. The Appeals Council took particular issue with ALJ Leland’s

“significant” off-task and absenteeism limitations and RFC assessment that

Jones would be off-task 20 percent per day or absent from work two days per

month. Tr. 119–20. The Appeals Council found that ALJ Leland did not

support his conclusions with citations to the record and that he failed to

properly explain his rationale. Id.

In determining that substantial evidence did not support ALJ Leland’s

RFC findings, the Appeals Council cited ALJ Leland’s assessment of Jones’s

seizure activity. See id. It noted that ALJ Leland crafted an RFC based, in

part, on the premise that Jones’s—primarily nocturnal—seizure activity

increased after June 2019 despite Jones’s adherence to medication. Tr. 119

(citing Tr. 545, 615, 634–35, 722, 780, 1297, 1307, 1323, 1352). The Appeals

Council credited the increased frequency of Jones’s medical treatment for

seizures, Tr. 120 (citing Tr. 112), but pointed out that with treatment, Jones

generally had normal examinations with “few abnormalities except occasional

episodes of high blood pressure or headaches,” id.

For example, the Appeals Council discussed Jones’s hospitalization in

late June 2019. Id (citing Tr. 633). Jones was sleeping when he experienced

seizure activity for which he needed emergency care. See Tr. 120, 634. He was

admitted at Mansfield Hospital but left against medical advice once his

seizure symptoms resolved. See Tr. 120, 634–35. Jones experienced two

seizures at home and returned to the hospital. See Tr. 120, 642. The Appeals

Council noted that Jones was alert, oriented, and in no apparent distress. Tr.

120 (citing Tr. 634). He had a normal heart rate and rhythm and normal

movement in all extremities. Id (citing Tr. 634). His neurological system was

“grossly normal without focal findings.” Id (citing Tr. 634).

In this manner, the Appeals Council reviewed Jones’s emergency room

records for visits throughout the rest of 2019 and 2020 and noted normal

exam findings each time. See Tr. 120. The Appeals Council noted Jones’s

normal EEG findings in March 2020. Tr. 121. The Appeals Council noted

many instances throughout 2019 and 2020 in which Jones was treated at the

emergency room for seizures and his condition stabilized once he received

seizure medication. Id (citing Tr. 1918–2744). Based on these and other

examples, the Appeals Council concluded that neither ALJ Leland’s decision

nor the record supported RFC findings of two absences per month and 20

percent of each day off task. Tr. 119, 120. Accordingly, the Appeals Council

remanded the case for additional consideration. Tr. 120.

Jurisdiction. Jones contends that he is entitled to remand because the

ALJ failed to comply with the Appeals Council’s order of remand. Doc. 9, at

19–20. Jones argues that the ALJ violated the remand order in relation to the

medical opinion evidence of Jones’s neurological disorder. Doc. 9, at 19.

The Commissioner argues that the Court does not have jurisdiction to

examine the ALJ’s compliance with the Appeals Council’s order of remand

because the order concerns “an internal agency matter,” which arose “prior to

the issuance” of the ALJ’s final decision. Doc. 12, at 17–18 (citing Staten v.

Comm’r of Soc. Sec., No. 1:22-cv-260, 2022 WL 18863825, at *9 (N.D. Ohio

Dec. 14, 2022) (quoting Brown v. Comm’r of Soc. Sec., No. 1:08-cv-183, 2009

WL 465708, at *6 (W.D. Mich. Feb. 24, 2009), report and recommendation

adopted, 2023 WL 2568006 (N.D. Ohio Mar. 20, 2023). The Commissioner

urges this Court to follow the reasoning in Staten. Doc. 12, at 18. He implies

that the Appeals Council’s acceptance of the ALJ’s second decision, see Tr. 1–

6, should be understood as acknowledgement that the Appeals Council’s

remand order was satisfied, see Doc. 12, at 18. In his reply brief, Jones

ignores the jurisdictional issue raised by the Commissioner and does not

contest the Commissioner’s assertion that the Appeals Council’s decision not

to grant Jones’s second request for appeal implies that the ALJ complied with

the remand order.

Despite Jones’s disregard of the issue, this Court must consider

whether it can evaluate the ALJ’s compliance with the Appeals Council’s

remand order. As the Commissioner notes, there is no consensus regarding

whether an ALJ’s failure to adhere to an Appeals Council’s remand order

constitutes an independent ground for reversal. Compare Brown, 2009 WL

465708, at *6 (holding that that the court lacked jurisdiction to evaluate

whether an ALJ complied with the Appeals Council’s remand order), Blajei v.

Comm’r of Soc. Sec., No. 11-cv-13269, 2012 WL 3020026, at *8 (E.D. Mich.

June 18, 2012), with Kaddo v. Comm’r of Soc. Sec., 238 F.Supp.3d 939, 943–

45 (E.D. Mich. Feb. 28, 2017). And the Sixth Circuit has not addressed the

issue. See Gritzinger, 2021 WL 3672230, at *10 n.1.

Most courts in this Circuit, however, have found that federal courts

lack jurisdiction to consider the issue. See Hubbard v. Comm’r of Soc. Sec.,

No. 18-cv-11758, 2019 WL 4866733, at *3 (E.D. Mich. June 10, 2019), report

and recommendation adopted, 2019 WL 4593624 (E.D. Mich. Sept. 23, 2019),

Smith v. Comm’r of Soc. Sec., No. 2:17-cv-13367, 2018 WL 7364646, at *10

(E.D. Mich. Oct. 26, 2018), report and recommendation adopted, 2019 WL

700096 (E.D. Mich. Feb. 20, 2019), Sisson v. Colvin, No. 5:15-cv-552, 2016 WL

8671906, at *12 (N.D. Ohio June 14, 2016), report and recommendation

adopted, 2016 WL 3360509 (N.D. Ohio June 14, 2016). I agree with the

majority.

Under 42 U.S.C. §405(g), a claimant may appeal “the final decision of

the Commissioner of Social Security.” As the Supreme Court observed in

Smith v. Berryhill, “the phrase ‘final decision’ clearly denotes some kind of

terminal event.” 139 S. Ct. 1765, 1774 (2019). As one court has explained, if

the Appeals Council denies review, the ALJ’s decision is the final decision of

the Commissioner. Shope v. Comm’r of Soc. Sec., 2015 WL 3823165 at *9

(S.D. Ohio June 19, 2015), report and recommendation adopted, 2015 WL

6155919 (S.D. Ohio Oct. 20, 2015). And when a court reviews the final

decision of the Commissioner, it’s review “is confined to” the ALJ’s decision

and “the evidence presented” before the ALJ. Id (relying on Jones, 336 F.3d

at 477). “‘Whether an ALJ complies with an Appeals Council order of remand

is an internal agency matter which arises prior to the issuance of the agency’s

final decision.’” Id. (quoting Brown, 2009 WL 465708, at *6).

As noted, Jones does not contest the Commissioner’s jurisdictional

argument. He does however cite Wilson v. Comm’r of Soc. Sec., in which the

Sixth Circuit explained that an ALJ is required to comply with an Appeals

Council’s remand order. 783 F.App’x. 489, 496-497 (6th Cir. 2019). The Court,

however, did not analyze the threshold jurisdictional issue the Commissioner

raises here. See Gritzinger, 2021 WL 3672230, at *10 n.1. And “[w]hen a

potential jurisdictional defect is neither noted nor discussed in a federal

decision, the decision does not stand for the proposition that no defect

existed.” Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 144 (2011).

So Wilson does not support finding that this Court has the authority to

review whether the ALJ complied with the Appeals Council’s remand order.

Merits. Even setting the jurisdictional issue aside, as discussed below,

Jones’s claim fails on the merits. Jones says that ALJ Keller improperly

denied his attorney’s requests that the agency obtain a consultative

examination and expert opinion evidence specific to Jones’s physical

impairments. See id (citing Tr. 15, 39–40, 402). He first says that the ALJ

had a heightened duty to develop the record and “should have requested an

opinion from a treating medical source, obtained a consultative examination,

or obtained a medical expert to review the complete medical history.” Doc. 9,

at 20. He then argues in the alternative that “even if the facts of the instant

case did not require … a heightened duty to develop the record,” the ALJ did

not meet his obligation to ensure that a reasonable record was developed. See

Doc. 9, at 21. Jones says that the record needed “an opinion from a treating

source or examining source regarding Plaintiff’s physical impairments” and

claims that none of the state agency doctors made findings as to whether

Jones’s impairments met or medically equaled any listing. Id. at 21. He

claims that the record was insufficient without a consultative physical

examination “prior to after the prior ALJ’s decision.”25 Id at 21. He says—

again—that the ALJ’s rejection of his requests for such a consultative

physical examination or medical expert were “in contra[di]ction to the

remand order.” Id at 21. To the extent that Jones claims the record was

insufficient in general and that this insufficiency obligated the ALJ to obtain

additional expert opinion or consultative examination evidence, he is

incorrect.

While an ALJ must ensure that every claimant receives a “full and fair

hearing,” the ultimate burden of proving entitlement to benefits lies with the

claimant. Moats v. Comm’r of Soc. Sec., 42 F.4th 558, 563 (6th Cir. 2022),

cert. denied sub nom. Moats v. Kijakazi, 143 S. Ct. 785 (2023); 20 C.F.R. §

404.1512(a)). Although social security proceedings are inquisitorial rather

than adversarial, that doesn’t mean that the ALJ advocates for the claimant.

See Moats, 42 F.4th at 563 (“Promoting the claimant’s case, of course, is not

the ALJ’s obligation. The ALJ, remember, is a neutral factfinder, not an

advocate.”) (citing Sims v. Apfel, 530 U.S. 103, 110–11 (2000) (plurality

opinion)).

It is only under “extreme circumstances”—not present here—that the

ALJ could be said to have a “special duty” to help develop the record. See

25 It’s not clear what Jones means by “prior to after the prior ALJ’s

decision.” Doc. 9, at 21. For the purposes of this decision, I interpret this as a

reference to the nine months after ALJ Leland issued his decision and before

ALJ Keller issued his decision. Doc. 9, at 20. So Jones is claiming the record

was insufficient because it didn’t contain consultative physical exam findings

generated between February and November 2021. See id; Tr. 28; Tr. 116.

Moats, 42 F.4th at 563–64 (discussing Lashley v. Sec’y of Health and Human

Servs., 708 F.2d 1048, 1051–52 (6th Cir. 1983)). Jones, however, ignores

Moats and its relegation of Lashley to “extreme” situations, cites several

cases that rely on Lashley, and argues that the ALJ erred by not developing

the record. Doc. 9, at 14–18; Doc. 12, at 7–9. To the extent that Jones argues

that the ALJ erred under Lashley and its progeny, his argument fails. Jones

hasn’t shown that his case was an “extreme” situation in which the ALJ had

a heightened duty to develop the record. See Moats, 42 F.4th at 564

(distinguishing Lashley and declining to impose a duty-to-develop-the record-

obligation even though the claimant was unrepresented).

The problem for Jones is that the rule on which his develop-the-record

argument relies does not enjoy the support of binding legal precedent. Jones’s

claim seems to stem from Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908,

912 (N.D. Ohio 2008). See Doc. 9, at 20 (citing a report and recommendation

relying on Deskin). In Deskin, the court held that:

As a general rule, where the transcript contains

only diagnostic evidence and no opinion from a

medical source about functional limitations (or only

an outdated nonexamining agency opinion), to

fulfill the responsibility to develop a complete

record, the ALJ must recontact the treating source,

order a consultative examination, or have a medical

expert testify at the hearing. This responsibility

can be satisfied without such opinion only in a

limited number of cases where the medical

evidence shows “relatively little physical

impairment” and an ALJ “can render a

commonsense judgment about functional capacity.”

605 F. Supp. 2d at 912 (quoting Manso-Pizarro v. Sec’y of Health & Hum.

Servs., 76 F.3d 15, 17 (1st Cir. 1996)). But Deskin isn’t controlling, and it has

received mixed reviews. See Winans v. Comm’r of Soc. Sec., No. 5:22-CV-

01793, 2023 WL 7622634, at *4 (N.D. Ohio Nov. 15, 2023) (“Deskin …

conflicts with the regulations and Sixth Circuit case law”); Henderson v.

Comm’r of Soc. Sec., No. 1:08-cv-2080, 2010 WL 750222, at *2 (N.D. Ohio

Mar. 2, 2010) (“The Court finds, however, that Deskin … is not representative

of the law established by the legislature, and interpreted by the Sixth Circuit

Court of Appeals.”); see also Berrier v. Comm’r of Soc. Sec., No. 3:20-cv-1655,

2021 WL 6881246, at *6 (N.D. Ohio Sept. 10, 2021) (citing cases that followed

Deskin and those that did not), report and recommendation adopted, 2022 WL

189855 (N.D. Ohio Jan. 21, 2022). Indeed, “[a]fter some criticism from other

district courts in the Sixth Circuit, the Deskin court [in Kizys v. Comm'r of

Soc. Sec., No. 3:10 CV 25, 2011 WL 5024866, at *1 (N.D. Ohio Oct. 21, 2011)]

clarified its decision” to hold “that Deskin potentially applies in only two

circumstances.” Berrier, 2021 WL 6881246, at *6 (emphasis added); Kizys,

2011 WL 5024866, at *2 (“Properly understood, Deskin sets out a narrow rule

that does not constitute a bright-line test” and “potentially applies only when

an ALJ makes a finding of work-related limitations based on no medical

source opinion or an outdated source opinion that does not include

consideration of a critical body of objective medical evidence”) (emphasis

added).

The bottom line is that various courts apply various standards from

largely unpublished district court opinions. I return to the language of the

regulations and Sixth Circuit authority, which make clear that the burden to

prove his case rests on the claimant, not the ALJ. See Moats, 42 F.4th at 563;

20 C.F.R. § 404.1512(a). Further, “the regulations do not require an ALJ to

refer a claimant to a consultative specialist, but simply grant him the

authority to do so if the existing medical sources do not contain sufficient

evidence to make a determination.” Landsaw v. Sec’y of Health & Hum.

Servs., 803 F.2d 211, 214 (6th Cir. 1986) (emphasis added) (citing 20 C.F.R. §

416.917(a)); see Winans, 2023 WL 7622634, at *3–4 nn. 39–40, 42–43, 50

(citing Landsaw). While the ALJ has a duty to conduct a “full inquiry,” that

duty “does not require a consultative examination at government expense

unless the record establishes that such an examination is necessary to enable

the administrative law judge to make the disability decision.” Landsaw, 803

F.2d at 214 (quoting Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977));

see also 20 C.F.R. § 416.919a(b)(1) (an ALJ may be required to obtain a

consultative exam when “[t]he additional evidence needed is not contained in

the records of [the claimant’s] medical sources”).

Jones hasn’t shown why the record was insufficient for the ALJ to

make a disability determination without additional medical opinion evidence

regarding his physical impairment allegations. See Foster v. Halter, 279 F.3d

348, 355 (6th Cir. 2001) (“An ALJ has discretion to determine whether

further evidence, such as additional testing or expert testimony, is

necessary.”); see also Owens v. Berryhill, No. 1:18-cv-1043, 2019 WL 2465229,

at *13 (N.D. Ohio Feb. 13, 2019), report and recommendation adopted, 2019

WL 1929695 (N.D. Ohio Apr. 30, 2019) (“Owens has offered no information

concerning what evidence further record development could offer that would

have enhanced a determination of disability”).

Here, none of the medical professionals who assessed Jones’s physical

health found that he had any physical impairment that prevented him from

performing any labor. See, e.g., Tr. 88–89, 93, 102, 104. While the medical

professionals and ALJ Keller agreed that Jones required additional

limitations—he was to avoid exposure to environmental hazards and never

climb ropes, scaffolds, or ladders—no one found that these limitations were

work-preclusive at any level of exertion. See Tr. 88–89, 101, 102, 104, 111.

Even ALJ Leland in the initial RFC found that Jones had the physical

capacity to perform work at all exertional levels with the same additional

limitations. See Tr. 111. And contrary to Jones’s claims, both of the state

agency physicians indicated that they had considered the requirements of

Listing 11.02 for epilepsy when considering Jones’s evidence, crafting their

RFCs, and formulating their medical opinions. See Tr. 87, 100. So there was

ample support for ALJ Keller’s finding that the consultative and expert

opinion evidence already in the record was a sufficient basis for him to

determine Jones’s vocationally relevant physical abilities and limitations. See

Tr. 15.

Jones argues that the record demanded additional analysis because he

generated additional treatment notes related to seizures that occurred after

the state agency physicians rendered their opinions. See Doc. 9, at 21. But

the ALJ explained how the opinions of state agency physicians Dr. Lewis and

Dr. Hughes were nonetheless adequately supported by the record. See Tr. 23.

And the ALJ’s decision specifically and repeatedly referenced Jones’s

treatment for seizures after Dr. Hughes’s April 2020 opinion. See, e.g, Tr. 22

(citing episodes of confusion for two weeks in November 2020 and emergency

room visits on November 16, 2020; March 3, 2021; June 15, 2021; and August

21, 2021); see also Tr. 23 (noting noncompliance in June and August 2021 and

comparing statements about alcohol use from November 2019 that Jones

contradicted in November 2020 and March 2021). As such, the ALJ showed

that the state agency physician’s opinions were “supported by the totality of

evidence in the record and [that he had] considered the evidence obtained

after [the state agency doctors] issued [their] opinion[s].” Myland v. Comm’r

of Soc. Sec., No. 17-1592, 2017 WL 5632842, at *2 (6th Cir. Nov. 13, 2017)

(citing McGrew v. Comm’r of Soc. Sec., 343 F.App’x. 26, 32 (6th Cir. 2009).

ALJ Keller thus did not err when he determined additional medical

expert opinion evidence about Jones’s physical health wasn’t required for the

ALJ to evaluate neurological impairments under Listing 11.02. See Tr. 15.

And the record was not insufficient. The ALJ permissibly relied on the state

agency doctors’s opinions in finding that Jones did not meet or medically

equal Listing 11.02 or any other listing. See Tr. 19. Jones may disagree with

the ALJ’s determination but disagreement does not “provide a basis for

remand.” Steed v. Colvin, No. 4:15-cv-1269, 2016 WL 4479485, at *10 (N.D.

Ohio Aug. 25, 2016).

c. Whether the ALJ properly considered Jones’s mental and cognitive

impairments when considering noncompliance with treatment

Jones says that the ALJ failed to properly consider whether Jones had

“reasonable justifications for missing medication doses” when he considered

Listing 11.02A. Doc. 9, at 22. Jones says that the ALJ was obligated under

Social Security Ruling (SSR) 16-3p to consider possible reasons for his

“failure to seek medical treatment consistent with his alleged degree of

impairment before drawing an adverse inference” from that “lack of medical

treatment.”26 Id; see Social Security Ruling 16-3p: Titles II and XVI:

Evaluation of Symptoms in Disability Claims, 2016 WL 1119029 (Mar. 16,

2016). But SSR 16-3p isn’t relevant here. SSR 16-3p instructs adjudicators

about how to evaluate the “intensity, persistence, and functionally limiting

effects of symptoms” and whether a claimant’s alleged impairments could

“reasonably be expected to produce those symptoms.” See 2016 WL 1119029,

26 Jones also cites “SSR 18-3p” but does not explain how or why it applies

or what it might require. Doc. 9, at 22. So he has forfeited any argument

based on that ruling. See Kennedy v. Comm’r of Soc. Sec., 87 F. App’x 464,

466 (6th Cir. 2003).

at *2. It clarifies, generally, how an adjudicator ought to consider various

types of evidence when evaluating a claimant’s subjective statements. See id.

SSR 16-3p does not, on its face, apply here, where the issue is an ALJ’s

evaluation of a claimant’s noncompliance with prescribed treatment and

where there is no dispute about the extent to which the claimant sought

medical treatment. And Jones hasn’t provided any explanation or legal

authority showing that SSR 16-3p does apply. So, SSR 16-3p isn’t relevant.

As discussed within Jones’s first claim, the agency’s rules for counting

seizures under the listing do apply and are relevant. And, also as discussed,

the ALJ adequately supported his findings under the listing with substantial

evidence of Jones’s noncompliance. See Tr. 22–23. Jones says that the ALJ

was obligated to consider whether Jones had good cause for his

noncompliance. Doc. 9, at 22. He claims that the ALJ should have considered

the potential effect that Jones’s memory issues and cognitive impairments

might have had on the ability to comply with treatment. Id.

But Jones hasn’t provided anything demonstrating that his memory or

cognitive issues affected his compliance. He seems to suggest that cognitive

issues might have affected his compliance, but concedes that his providers

presumed that his seizures did not result from cognitive decline. See Doc. 9,

at 22–23 (citing Tr. 3113–14). In fact, the objective medical evidence contains

multiple statements contrary to Jones’s argument. See, e.g., Tr. 646, 972

(reciting Jones’s statements that he did not take his Lamictal because he

vomited and felt nauseated throughout the day and because he was busy

helping his son); see also, e.g., Tr. 716, 717–18, 788, 963, 1226, 2699, 2989,

3114, 3225, 3243, 3250.

Even assuming that Jones could produce some evidence to establish a

causal connection between his memory or cognition and his noncompliance,

he hasn’t cited any legal authority demonstrating that these excuses qualify

as acceptable good cause under the agency’s guidelines. Notably, the reasons

Jones reported for not taking his seizure medication—because he felt unwell

or left his medicine at home or was busy, see, e.g., Tr. 646, 972, 2699—were

not nearly as severe as those in the agency’s list of “good reason[s] for not

following treatment.” See 20 C.F.R. Pt. 404, Subpart 1, App. 1 § 11.00H.4.d,

20 C.F.R. §§ 404.1530(c), 416.930(c). So even if Jones could show some sort of

connection between his memory or cognition and his noncompliance, he

provides no authority showing that his excuses could be material. Simply

because memory issues are present in the record does not excuse Jones’s

noncompliance with prescribed treatment for the purposes of Listing 11.02.

See Kyle v. Berryhill, No. 5:18-cv-63, 2019 WL 3325812, at *2 (W.D. Ky. July

24, 2019) (finding that Listing 11.02 did not excuse a claimant’s

noncompliance with prescribed treatment simply because memory issues

were present in the record). As the Commissioner says, the Court’s

determination in Kyle similarly applies here. See Doc. 12, at 12.27

Moreover, as noted, the claimant bears the burden of establishing that

his condition meets or equals a listing. Thacker, 93 F. App’x at 727–28 (6th

Cir. 2004) (citing Buress v. Sec’y of Health & Human Servs., 835 F.2d 139,

140 (6th Cir. 1987)). The ALJ cited substantial evidence in the record to

establish Jones’s noncompliance, see Tr. 22–23, and Jones hasn’t provided

any facts or legal authority to justify the suggestion that his noncompliance

was rooted in good cause. The assertions Jones makes aren’t supported by

caselaw or the record. So he hasn’t met his burden show that he met or

equaled Listing 11.02. See Doc. 9, at 22–23.

And, while it’s true that the ALJ didn’t specifically mention Jones’s

mental impairments when discussing noncompliance, as the Commissioner

points out, at step three, an ALJ isn’t under a heightened duty to explain

each consideration that went into each determination. See Doc. 12, at 12

(citing Bledsoe, 165 F. App’x at 411). It isn’t reversible error for an ALJ not to

consider memory issues as to noncompliance, particularly where the claimant

does not have any evidence showing that memory issues caused the

noncompliance. Jones isn’t entitled to remand on this basis.

27 Jones’s attempts to distinguish his case from Kyle are unpersuasive, as

his protests do not address the cited aspect of the Kyle holding. See Doc. 14,

at 4–5.

2. Challenging the ALJ’s RFC

a. Whether the ALJ was able to determine the most that Jones could do

despite impairments due to Jones’s neurological disorder

In his second issue, Jones asserts that the ALJ’s RFC is not supported

by substantial evidence. Doc. 9, at 23. Jones first implies error—without

directly explaining the error—when he asserts that the record did not contain

a medical opinion that sufficiently addressed his neurological disorder and

that ALJ Keller “was not qualified to determine [Jones’s] functioning in the

absence of [such] a medical opinion.” See Doc. 9, at 24. Without citing any fact

or evidence in support, Jones says that these errors “harmed” him apparently

because of ALJ Leland’s overturned determination that Jones was “disabled

primarily with the limitation that” Jones would be off-task 20 percent of each

workday and absent twice a month. See id.

The most immediate problem with Jones’s apparent argument is that

the ALJ can formulate an RFC without a medical opinion. See Tucker v.

Comm’r of Soc. Sec., 775 F. App’x 220, 226 (6th Cir. 2019) (“No bright-line

rule exists in our circuit directing that medical opinions must be the building

blocks of the residual functional capacity finding”); see also Mokbel-Aljahmi v.

Comm’r of Soc. Sec., 732 F. App’x 395, 401 (6th Cir. 2018); Brown v. Comm’r

of Soc. Sec., 602 F. App’x 328, 331 (6th Cir. 2015) (affirming that “neither the

applicable regulations nor Sixth Circuit law limit the ALJ to consideration of

direct medical opinions on the issue of RFC” and, moreover “none of the[]

cases [cited by the claimant] even remotely suggests that an ALJ must, as a

matter of law, seek out a physician’s medical opinion where one is not

offered.”); Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 728 (6th Cir. 2013)

(rejecting the plaintiff’s argument that the ALJ is required “to base her RFC

finding on a physician’s opinion”).

Further, Jones cites Falkosky, in which this Court found a lack of

support for an ALJ’s RFC on the grounds that additional consultative opinion

evidence was necessary. See Doc. 9, at 24 (citing Falkosky v. Comm’r of Soc.

Sec., No. 1:19-cv-2632, 2020 WL 5423967, at *8 (N.D. Ohio Sept. 10, 2020)).

The Court held that since the record was rather limited, the ALJ must have

extrapolated facts in crafting an RFC that determined Falkosky was able to

perform labor at a medium level of exertion. No doubt, an ALJ who

extrapolates facts from a sparse record could develop an RFC that wasn’t

supported by substantial evidence. And it’s true that an ALJ in that position

might decide to order an evaluation of the claimant by a consultative medical

professional. But Falkosky hinges on facts which are distinguishable from the

circumstances here. In Falkosky, the Court held that another medical opinion

might not have been necessary if the ALJ were able to support the RFC

findings with “medical records demonstrating Falkosky’s functional abilities”

such as, for example, findings that Falkosky was capable of meeting the

exertional requirements of work at a medium level. See 2020 WL 5423967, at

*8.

Here, in contrast, ALJ Keller had over 3,500 pages of evidence,

comprised primarily of objective medical records, assessments, and opinions

based on examinations, reports, and treatment for Jones’s neurological

issues, seizure activity, and injuries resulting therefrom. See Tr. 40–42, 44,

49–50, 59–60, 62, 65–72, 79–95, 96–106, 117–24, 125–27, 183–87, 235–41,

287–89, 298–307, 325–35, 336–44, 356–561, 373–78, 384–89, 410–32, 433–80,

491–534, 541–947, 948–1225, 1226–39, 1240–85, 1288–95, 1296–1372, 1390–

1802, 1803–42, 1843, 1844–49, 1866–88, 1889–1917, 1918–2744, 2745–57,

2763–69, 2770–2813, 2814–28, 2829–3501.28 And the ALJ cited evidence in

support of his determination. So Falkosky doesn’t support Jones argument.29

28 In his reply brief, Jones claims that because the Commissioner

indicated that the record “contained over 3,500 pages of evidence” and that

“3,000 [of those pages] were medical records,” over 1,650 pages of medical

evidence were not reviewed by the state agency consultant physicians Doc.

14, at 7. But Jones does not cite any evidence showing that the 1,650 pages of

the record were not reviewed. To the contrary, as discussed, in his decision,

ALJ Keller referenced evidence generated and submitted after Dr. Hughes’s

reconsidered opinion was rendered. See Tr 22–23. Moreover, Jones has

forfeited this issue by waiting until his reply brief to raise it. United States v.

Abboud, 438 F.3d 554, 589 (6th Cir. 2006).

29 Jones cites ALJ Leland’s findings to support this argument, Doc. 9, at

24, however, the Appeals Council already found that ALJ Leland’s findings

were invalid due to the lack of evidentiary support in the record. Moreover,

ALJ Leland’s findings aren’t factual evidence demonstrating how or why

Jones would be expected to miss two or more days per month or be off task for

20 percent of the workday.

b. Whether the ALJ properly evaluated Dr. Dubey’s medical opinion

evidence and accounted for Dr. Dubey’s opinions in the RFC

Jones next says that the ALJ erred in his evaluation of Dr. Dubey’s

consultative psychological examination. Jones says that the ALJ erred when

he credited only a portion of the opinion and that this cited portion was

inconsistent with the ALJ’s RFC findings. See Doc. 9, at 24 (citing Tr. 26,

1288–95). According to Jones, Dr. Dubey “articulated specific limitations that

were not reflected in the RFC finding.” Id. Jones refers to one limitation in

specific, that “[in] a work setting, based on the available information, he

would be able to understand, remember and carry out simple instructions

independently, such as one-step processes.” Doc. 9, at 24 (underlined in

original) (quoting Tr. 1293); see also Tr. 24–26. Jones says that the ALJ erred

when he did not limit Jones to one-step processes and failed to explain his

exclusion of this limitation from the RFC. See Doc. 9, at 24. This argument

fails for several reasons.

First, the ALJ demonstrated full consideration of Dr. Dubey’s opinion.

After reviewing it at great length, the ALJ found that the opinion was

generally persuasive based on the factors of supportability and consistency.

See 20 C.F.R. §§ 416.920c(a), 416.920c(b)(2), (c)(1)-(5), Toennies v. Comm’r of

Soc. Sec., 2020 WL 2841379, at *14 (N.D. Ohio June 1, 2020). Despite finding

Dr. Dubey’s opinion generally persuasive and relying on it throughout his

analysis, as explained below, ALJ Keller did not err when he did not fully

incorporate all of Dr. Dubey’s opined limitations in the RFC. Compare Tr. 21

with Tr. 1292–94; see also Tr. 25–26.

The ALJ’s citations to objective medical records provide adequate

evidence of the supportability and consistency of Dr. Dubey’s findings as

compared to the rest of the record. These citations included treatment records

finding normal cognition, memory, alertness, attention span, and

concentration with normal recent and remote memory. Tr. 1128, 1311. They

included findings that Jones was alert and attentive, oriented to person,

place, time, and the reason for his admission to the hospital, that he was

using fluent language with intact repetition and comprehension, and that he

demonstrated immediate recall and working memory as well as an intact

long-term memory. Tr. 3233, 3241.

The ALJ also heavily relied on Dr. Dubey’s opinions throughout his

discussion of his rationale for the RFC, beyond just the quoted portion Jones

cites, which the ALJ excerpted at the end of his explanation for the RFC. See

Tr. 21, 24–26. For example, as the ALJ considered Jones’s mental

impairment evidence, he cited Dr. Dubey’s notes reciting Jones’s alleged

symptoms of “anxious mood, depressed mood, trouble sleeping, loss of interest

in activities, nightmares, flashbacks, social isolation, irritability, suicidal

ideation, crying spells, appetite loss, sleep disturbance, and racing thoughts.”

Tr. 24 (citing Tr. 510, 1289, 1333, 2860, 3237). The ALJ noted that Jones

reported significant past trauma to Dr. Dubey. Id (citing Tr. 1289). After

further discussing Jones’s mental health treatment, the ALJ again cited Dr.

Dubey’s report, as well as hospital records, in finding that there was no

evidence of hospitalization on a psychiatric basis in the record. Id (citing

1289, 3237).

The ALJ cited additional aspects of Dr. Dubey’s report in support of

the finding that Jones’s symptoms were not as severe as Jones alleged. See

Tr. 24. For example, in finding that Jones had the RFC to perform simple,

repetitive tasks, the ALJ acknowledged Jones’s assertions of poor memory

and difficulty understanding and following instructions. See id. The ALJ then

considered contradictory evidence of normal comprehension, cognition, and

intelligence as found by Dr. Woodruff, as well as the emergency department

staff at Riverside Methodist Hospital and Mansfield. See Tr. 24 (citing Tr.

1228, 1311, 3233, 3241). The ALJ noted Dr. Dubey’s opinions that Jones:

did not need simple directions or questions

repeated. He did not need multi-step directions or

questions repeated. He appeared to understand the

questions he was asked. He was able to complete

five digits forward and three digits backward. His

performance on serial sevens was limited, and

delayed recall of three items was 0/3. Overall, the

level of cognitive functioning was estimated to be in

the low average range. Additional explanations of

words or phrases did not need to be given.

Observed recall of recent events and past

experiences was unremarkable.

Tr. 24 (citing Tr. 1291–92). The ALJ determined that Jones had the RFC for

“brief interactions with supervisors and coworkers sufficient to learn [an]

unskilled job, adapt to changes … , and exchange appropriate work

information, but [could not have] public contact,” despite Jones’s claims that

PTSD affected his social life. See Tr. 21, 24–25. The ALJ relied partially on

Dr. Dubey’s observation that Jones “had minimal eye contact but was calm

and cooperative” to support this finding. See Tr. 24–25 (citing Tr. 1291).

The ALJ further cited portions of Dr. Dubey’s opinions when

evaluating Jones’s ability to pay attention and concentrate. See Tr. 25. The

ALJ noted Jones’s claim that he could not concentrate for long, then

discussed contrary notes from treatment providers who observed intact

attention and concentration. See Tr. 25 (citing Tr. 1311, 3233, 3241). The ALJ

then turned to Dr. Dubey’s opinions, reciting that:

Dr. Dubey did not observe any attention problems.

He was able to complete five digits forward and

three digits backward. His performance on serial

sevens was limited, but math skills were in the

average range. He alleged that he has difficulty

completing tasks, but Dr. Dubey did not mention

any problems with persistence or pace.

Tr. 25 (citing Tr. 1291–92).

The ALJ relied on Dr. Dubey’s opinions in crafting the RFC as to

adaptation and self-management. See Tr. 21, 25. The ALJ compared Jones’s

statements that he could not handle stress to contrary evidence from

treatment providers who generally observed normal mood and affect. See Tr.

25 (citing Tr. 1346, 1749, 2594, 2858, 3241). Dr. Dubey’s findings, among

other evidence, provided a basis for the RFC finding that Jones had the

ability to work in an environment with few workplace changes. See Tr. 21, 25.

The ALJ cited Dr. Dubey’s observations that Jones had unremarkable

hygiene and grooming, unremarkable motor activity, and arrived for his

physical evaluation dressed appropriately. Id (citing Tr. 1291). He noted Dr.

Dubey’s findings that general interaction with Jones was calm, however,

Jones appeared “depressed and tearful when discussing changes.” Id (citing

Tr. 1291). The ALJ also cited to Dr. Dubey’s report that Jones indicated that

he was able to perform daily activities such as “washing up and showering,

changing clothes, shopping for personal items, and completing paperwork”

independently. Id (citing Tr. 1292). The ALJ noted that Dr. Dubey found, in a

vocational setting, that Jones would be able to “understand, remember and

carry out simple instructions independently, such as one-step processes[,] …

understand, remember and carry out multi-step instructions independently[,]

… maintain persistence and pace to remember and carry out simple

instructions independently.” Tr. 25–26 (citing Tr. 1293–94).

The ALJ continued to quote Dr. Dubey’s opinion, including that Jones

“would not be able to maintain persistence and pace to remember and carry

out multi-step instructions independently, as evidenced by cognitive issues

and memory problems … [but] would be able to perform these types of tasks

with supervision.” Tr. 26 (citing Tr. 1293–94). The ALJ noted that Dr. Dubey

found Jones would, “overall[,] … have some issues dealing with co-workers

and supervisors” possibly due to “problems stemming from memory issues

and mood related problems, leading to associated frustration for the

claimant, co-workers, and supervisors.” Tr. 26 (citing Tr. 1294). He recited

Dr. Dubey’s finding that, “overall[,]” Jones would likely have “some issues

dealing with work pressure” possibly related to “problems stemming from

cognitive and memory issues, leading to associated frustration for the

claimant, co-workers, and supervisors.” Tr. 26 (citing Tr. 1294).

Given the above, it is clear that the ALJ fully considered Dr. Dubey’s

findings.

The second reason that Jones’s argument fails is because the ALJ, not

a physician, is responsible for assessing a claimant’s RFC. See 20 C.F.R. §

404.1546 (c); Poe v. Comm’r of Soc. Sec., 342 F.App’x. 149, 157 (6th Cir. 2009).

When determining an RFC, an ALJ “is not required to recite the medical

opinion of a physician verbatim in his residual functional capacity finding ...

[and] an ALJ does not improperly assume the role of a medical expert by

assessing the medical and nonmedical evidence before rendering a residual

functional capacity finding.” Id. And, “[e]ven where an ALJ provides ‘great

weight’ to an opinion,” there is no requirement that an ALJ adopt a

consultative medical opinion verbatim or adopt its limitations wholesale.

Reeves v. Comm’r of Soc. Sec., 618 F.App’x. 267, 275 (6th Cir. 2015); see also

Moore v. Comm’r of Soc. Sec., 2013 WL 6283681, *7-8 (N.D. Ohio Dec. 4,

2013) (holding that even though the ALJ did not incorporate into the RFC all

limitations from a consultative examiner's opinion to which the ALJ assigned

great weight, the ALJ’s decision was neither procedurally inadequate nor

unsupported by substantial evidence). Furthermore, an ALJ is not obligated

to explain each and every limitation or restriction adopted or not adopted

from a non-examining physician’s medical opinion. See Smith v. Comm’r of

Soc. Sec., 2013 WL 1150133, *11 (N.D. Ohio Mar. 19, 2013), aff’d, No. 13-3578

(6th Cir. Jan. 30, 2014).

The third reason that Jones’s argument fails is because the ALJ

explained why he didn’t fully adopt Dr. Dubey’s opinion. Jones’s argument

ignores much of Dr. Dubey’s report, including the sentence immediately after

the one Jones cites. See, e.g., Tr. 21, 25–26, 1293–94. Jones also overlooks the

rationale the ALJ provided explaining how he arrived at an RFC that was

more restrictive than Dr. Dubey’s opinions suggested. See Tr. 26, 1293–94.

After finding that Jones was able to handle simple instructions

independently, Dr. Dubey found the same with respect to Jones’s ability to

handle instructions requiring multiple steps. See Tr. 1293. He found that“[i]n

a work setting, based on the available information, [Jones] would be able to

understand, remember and carry out multi-step instructions independently.”

Id. Dr. Dubey opined that Jones had an unlimited ability to understand,

remember, and carry out simple and multi-step instructions. Tr. 1293. He

could maintain the persistence and pace to remember and carry out simple

instructions. Tr. 1293–94. According to Dr. Dubey, Jones was, however,

limited in his ability to maintain persistence and pace sufficient to remember

and carry out multi-step instructions and could only perform those tasks if

supervised. See 1293–94.

In the RFC, the ALJ limited Jones to “simple, repetitive tasks

performed in a work environment free of fast-paced production requirements

involving only simple work-related decisions with few if any workplace

changes” and “brief interactions with supervisors and coworkers.” Tr. 21. He

explained that these more restrictive limitations avoided the need for special

supervision. See Tr. 21, 26. The ALJ incorporated limitations based on Dr.

Dubey’s opinion as to the effect Jones’s cognitive abilities and memory issues

would have on his ability to maintain enough persistence and pace to

remember and carry out complex tasks. See Tr. 21, 25–26. Then, the ALJ

explained why he had not adopted Dr. Dubey’s less restrictive complex-tasks-

with-supervision findings. See Doc. 9, at 24; Tr. 26. The ALJ also explained

that he found Dr. Dubey’s social interaction and adaptation limitations

“overly vague,” so he crafted the RFC to include “more specific language” in

those domains. Tr. 26.

The ALJ’s task-and-instruction limitations were thus more restrictive

than those suggested by Dr. Dubey. Compare Tr. 21, 26 with Tr. 1293–94.

Jones does not point any medical opinion in the record more restrictive as to

complex and simple tasks and instructions than those in the RFC. See 21, 25–

26, 79–94, 96–106, 1288–95. So even if the ALJ erred in analyzing Dr.

Dubey’s medical opinions, the error—which benefitted Jones—would be

harmless at best. See Pistole v. Kijakazi, No. 3:20-cv-00249, 2021 WL

5238777, at *7 (E.D. Tenn. Nov. 10, 2021) (finding “harmless error at most”

where an ALJ discounted medical opinion evidence but determined an RFC

that was more restrictive than the medical opinion recommended); see also

Laney v. Comm’r of Soc. Sec., No. 5:21-cv-1290, 2022 WL 2176539, at *7 (N.D.

Ohio June 16, 2022) (“The Court will not fault the ALJ for finding more

restrictions than the state agency reviewers opined”); Berrier, 2021 WL

6881246, at *9; Ferris v. Comm’r of Soc. Sec., No. 5:16-cv-2459, 2017 WL

5187796, at *11 n.4 (N.D. Ohio Nov. 9, 2017).

The fourth reason that Jones’s argument fails is that Jones seems to

conflate the actual ability to understand, remember, and carry out

instructions with the cognitive ability and memory to maintain persistence

and pace in order to remember and carry out instructions. See Doc. 9, at 24–

25. The Functional Assessment portion of Dr. Dubey’s report, which Jones

ignores, demonstrated this distinction. See Tr. 1293; Doc. 9, at 24–25. In the

section addressing “[t]he claimant’s abilities and limitations in maintaining

attention and concentration, and in maintaining persistence and pace to

perform simple tasks and to perform multi-step tasks,” Dr. Dubey discussed

Jones’s attention, concentration, persistence, and maintenance of pace insofar

as they affected his performance of simple and multi-step tasks. Tr. 1293. He

estimated that Jones had an overall intellectual level of functioning in the

low average range. Id. He considered Jones’s performance of daily activities,

skilled and unskilled job history, and self-reports that he had previously met

the mental requirements of his work. Id. Dr. Dubey then found that Jones

“would be able to maintain persistence and pace to remember and carry out

simple instructions independently.” Tr. 1294. He further found that Jones

“would not be able to maintain persistence and pace to remember and carry

out multi-step instructions independently, as evidenced by cognitive issues

and memory problems.” Id. He opined that, with supervision, Jones would be

able to perform these types of tasks. Id. Thus the assessment of whether

Jones had enough cognition and memory to maintain pace and persist in the

act of carrying out simple or complex instructions is a separate question from

whether Jones had the practical ability to understand, remember, and carry

out such instructions. Jones’s argument disregards this distinction. See Doc.

9, at 24.

Fifth, Jones implies that the ALJ cherry picked evidence. Doc. 9, at

24–25. But he provides no analysis, instead choosing to state what he claims

is a rule before offering a conclusion. Id. at 24–25. By omitting any argument

or analysis, Jones has forfeited his cherry-picking argument. See Kennedy, 87

F. App’x at 466.

But even if this argument is not forfeited, it fails. It’s true that an ALJ

may not cherry-pick facts to support a finding of non-disability while ignoring

evidence that points to a disability finding. See Gentry v. Comm’r, 741 F.3d

708, 723–24 (6th Cir. 2014). But an ALJ’s decision to mention certain

evidence in one section of his decision doesn’t mean that he was cherry-

picking evidence. Afterall, ALJs aren’t “require[d] … to discuss every piece of

evidence in the record.” Showalter v. Kijakazi, No. 22-5718, 2023 WL

2523304, at *3 (6th Cir. Mar. 15, 2023); see Thacker, 99 F. App’x at 665.

Indeed, “with a[n] [over three]-thousand-page record, the ALJ cannot be

expected to discuss every piece of evidence that [Jones] believes is

inconsistent with the” ALJ’s findings. See Byler v. Kijakazi, No. 5:20-cv-1822,

2022 WL 980099, at *9 (N.D. Ohio Jan. 21, 2022), report and recommendation

adopted sub nom. Byler v. Comm’r of Soc. Sec. Admin., No. 5:20-cv-1822, 2022

WL 971384 (N.D. Ohio Mar. 31, 2022).

What’s more, an ALJ is not required to reanalyze evidence at each step

of the analysis. Throughout his decision, ALJ Keller reviewed objective

medical evidence, medical opinion evidence, and testimonial evidence that

was relevant to his assessment of Dr. Dubey’s medical opinions. See, e.g., Tr.

19, 20, 21, 22, 23, 24, 25, 26. The ALJ also explicitly discussed his findings as

to those medical opinions. Tr. 25–26. So in explaining the rationale for the

RFC, ALJ Keller needn’t have recapped this evidentiary review. See Crum v.

Comm’r of Soc. Sec., 660 F. App’x 449, 457 (6th Cir. 2016) (“No doubt, the

ALJ did not reproduce the list of these treatment records a second time when

she explained why Dr. Bell’s opinion was inconsistent with this record. But it

suffices that she listed them elsewhere in her opinion.”); Bledsoe, 165 F.

App’x at 411. Remembering that courts do not reweigh the evidence, it is thus

unsurprising that some courts have noted that cherry-picking-evidence

arguments are “seldom successful.” DeLong v. Comm’r of Soc. Sec., 748 F.3d

723, 726 (6th Cir. 2014) (“The District Court observed that this allegation is

seldom successful because crediting it would require a court to re-weigh the

evidence. It is no more availing on appeal.”). This cherry-picking argument is

no different.

So the ALJ adequately explained his decision and was not obligated to

seek the opinion of another medical source. See Wright v. Colvin, No. 1:15-cv-

01931, 2016 WL 5661595, at *10 (N.D. Ohio Sept. 30, 2016); Jefferson v.

Colvin, No. 1:14-cv-01851, 2015 WL 4459928, at *6 (N.D. Ohio July 21, 2015).

Jones has not demonstrated any flaw in the ALJ’s logic or otherwise shown

that the ALJ’s conclusions were based on less than substantial evidence.

Jones’s RFC challenge thus fails. He is not entitled to remand on the basis

that “[t]he ALJ did not limit [him] to one-step processes” and the ALJ was not

obligated to explain why he did not include a limitation to simple or one-step

instructions in the RFC.

Conclusion

For the reasons explained above, I affirm the Commissioner’s decision.

Dated: January 2, 2024

/s/ James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge