# Gang v. Commissioner of Social Security

> District Court, S.D. Ohio · July 6, 2021

URL: https://www.frixlaw.com/law-library/cases/10378153

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** July 6, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10378153

## How later opinions describe it (automated extraction)

- declining to disturb the ALJ’s credibility determination, stating that “[w]e will not try the case anew, resolve conflicts in the evidence, or decide questions of credibility” (citation omitted)
- finding the plaintiff could not meet Listing 1.04A where she did not point to “positive straight leg tests in both the sitting and supine positions”
- holding that “failure to object to the magistrate judge's recommendations constituted a waiver of [the defendant's] ability to appeal the district court's ruling”
- holding thatdefendant waived appeal of district court's denial of pretrial motion by failing to timely object to magistrate judge's report and recommendation

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

CAROL JEAN GANG,

Plaintiff,
Civil Action 2:20-cv-3267
v. Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, Carol Jean Gang, brings this action under 42 U.S.C. § 405(g) for review of a
final decision of the Commissioner of Social Security (“Commissioner”) denying her application
for supplemental security income (“SSI”). Pending before the Court is Plaintiff’s Statement of
Errors (ECF No. 7), the Commissioner’s Memorandum in Opposition (ECF No. 9), and the
administrative record (ECF No. 6). For the reasons that follow, the Undersigned
RECOMMENDS that the Court OVERRULE Plaintiff’s Statement of Errors, and AFFIRM
the Commissioner’s non-disability determination.
I. BACKGROUND
Plaintiff filed a previous application seeking SSI and disability insurance benefits
(“DIB”) on October 4, 2007 and alleged that she had become disabled on June 30, 2004. (R. at
81.) Those applications were denied initially and on reconsideration in 2008. (Id.) Plaintiff
filed an application for child’s disability benefits in 2009, and because of the commonality of
issues, it was escalated to be heard with her 2007 SSI and DIB applications. (Id.) In 2010, A
hearing was held before Administrative Law Judge Nino A. Sferrella (“ALJ Sferrella”) who
issued an unfavorable determination on July 20, 2010, finding that Plaintiff was not disabled
under any of the applicable provisions of the Social Security Act from June 30, 2004, through the
date of that determination.
Plaintiff subsequently filed the instant SSI application in 2017 and alleged that she
became disabled on October 1, 2004. (R. at 207, 213.) Plaintiff’s application was denied
initially and upon reconsideration. (R. at 95–110, 111, 112–128, 129.) After presiding over a
hearing on January 25, 2019, Administrative Law Judge Virginia Herring (“ALJ Herring”)
issued a decision on April 5, 2019, finding that Plaintiff was not disabled within the meaning of
the Social Security Act. (R. at 12–34.) AJL Herring’s determination became final when the
Appeals Council denied Plaintiff’s request for administrative review on April 27, 2020. (R. at 1–
6.)

Plaintiff timely commenced this action alleging that ALJ Herring erred by failing to
properly analyze whether she met the requirements for Listings 1.04A and 12.05. (ECF No. 7, at
PageID #828–30, 820–25.) Plaintiff additionally alleges that ALJ Herring erred when
performing a subjective-symptom analysis. (Id. at PageID #825–27.) The Undersigned finds
that Plaintiff’s allegations of error lack merit.
II. RELEVANT RECORD EVIDENCE
A. Plaintiff’s Testimony
At the January 25, 2019, hearing, Plaintiff testified to the following about her physical
impairments. She was prevented from working by a lumbar fusion done in May 2017 because
the hardware was pinching her left sciatic nerve and causing sharp pain that did not stop,

numbness in her thighs, pain in her calves, and her feet to be frozen. (R. at 49–50, 69–70.)

2
According to Plaintiff, her surgeon refused to brace her after her surgery. Plaintiff fell in August
of 2017, and it jolted the hardware which was now crooked. (R. at 60.) She took nerve damage
medication for her back pain and avoided certain positions such as sitting up or bending. (R. at
50.) If she was laying on her side or “kind of cockeyed” she was fine. (R. at 50.) It also
throbbed where her incision was located. (R. at 54.) She took things easy or did things “very
lightly.” (R. at 50–51.) She had an MRI with a new surgeon scheduled to take place in February
of 2019. (R. at 54.) She could probably stand for an hour so long as she could keep moving and
shifting her weight. (R. at 57.) Walking was less painful than standing. (Id.) Going up stairs,
however, was very painful. (R. at 58.) She had difficulty bending to do laundry. (R. at 59.)
Plaintiff also testified to the following about her mental impairments. She was prevented

from working by public anxiety. (R. at 48.) Plaintiff’s parents took her to small stores to do
shopping. (R. at 58.) Since 2016, a behavioral specialist from Integrated Services would get
Plaintiff from her home and accompany her to the store if her parents could not do so. (R. at 59–
60.) The behavioral specialist also accompanied her to doctor appointments. (Id.) She took
Ativan about ten minutes before she would leave the house and she would be fine. (R. at 61.)
She did not, however, go places by herself. (R. at 63, 64.) On average, she experienced twenty-
five panic attacks a week. (R. at 64–65.) She had an IEP in school and had been diagnosed with
ADHD. (R. at 65.) She had trouble with spelling, math, and reading. (R. at 65.) She also had
trouble concentrating and experienced anger outbursts during which she could not refrain from
speaking out about things she saw. (R. at 67–68.)

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B. Relevant Medical Records Related to Plaintiff’s Physical Impairments

1. Hocking Valley Medical Group, Inc.

On November 17, 2016, Plaintiff complained about sudden and persistent burning back
pain. (R. at 439.) She related that she had fallen into a manhole three years prior and that her LS
and L5 were deteriorating. (Id.) She reported that she had seen a specialist who recommended
injections, but she had declined them. (R. at 440.) She was prescribed prednisone and Baclofen
and advised to follow up if she saw no improvement. (Id.)
On November 29, 2016, Plaintiff reported that she injured her lower back in 2004 and
that her left lower extremity pain had worsened on November 18, 2016. (R. at 444.) She was
prescribed steroids, which made things feel better while she was taking them, but she was now
experiencing numbness in the left lower extremity. (Id.) She rated her pain as a 6 on a 10-point
scale. (Id.) Upon examination she had reduced lumbar lordosis. (R. at 444.) In her trunk range
of motion, she had 78° flexion, 10° extension with increased left lower extremity pain, and 20°
side bending. (R. at 445.) She had 4+/5 in all measures of lower right extremity strength. (Id.)
She scored a 4/5 on all measures of lower left extremity strength except ankle dorsiflexion,
which she scored a 4-/5. (Id.) There was tenderness to palpitation in the lumbar spine and left
sciatic area and she had a positive straight leg test on the left. (Id.) It appeared that Plaintiff had
good rehabilitation potential and she was to see a physical therapist twice a week for four weeks.
(Id.)
Notes indicate that Plaintiff completed physical therapy appointments on November 29,
2016, and December 5, 2016, but she was a “no show” for her next scheduled appointment and

4
that she did not return to physical therapy after December 16, 2016. (R. at 442, 448–49.) It was
noted that Plaintiff would be discharged from physical therapy absent a further referral. (R. at
442.)
2. Precision Pain Care in 2017

Plaintiff was examined at Precision Pain Care on February 1, 2017. (R. at 463.) The
doctor who examined Plaintiff noted that X-rays of the lumbar spine done in 2011 revealed
bilateral pars defect at L5 with grade 1 spondylolisthesis of L5 on S1. (Id.) Plaintiff had
decreased range of motion of the lumbar spine with pain noted during extension. (Id.) Moderate
tenderness to palpitation was noted along the lumbar paraspinal muscles and sacroiliac joint
regions. (Id.) She had hypersensitivity to light touch along the lateral aspect of the left lower
extremity. (Id.) Her patellar reflexes were 1-2 and equal bilaterally. (Id.) Her strength was 4/5
in all muscle groups in the lower extremities. (Id.) She had a positive straight leg raise on the
left at 90° extension. (Id.) Daypro and X-rays of the lumbar spine were prescribed. (R.at 464.)
On February 5, 2017, X-rays of the lower spine revealed anterolisthesis of L5 on S1
associated with disc degeneration as well as degenerative changes at L3–L4. (R. at 465.) On
March 7, 2017, it was recommended that Plaintiff receive epidural steroid injections. (Id.)
Plaintiff received an injection on May 2, 2017 and was scheduled to return in four weeks. (R. at
466.) On May 30, 2017, Plaintiff failed to note a significant response to her initial injection but
agreed to proceed with more. (R. at 763.) She also reported that Lodine was ineffective, and a

trial of Naproxen was prescribed in its place. (Id.)

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Plaintiff received another injection on July 18, 2017. (R. at 764.) On September 1, 2017,
Plaintiff reported a greater than 60% reduction of her pain. (R. at 765.) She received another
injection on October 23, 2017. (R. at 766.) On November 28, 2017, however, she failed to note
significant lasting benefit from treatment. (R. at 767.) Plaintiff also had symptoms consistent
with sacroiliitis. (Id.) It was recommended that treatment be redirected to that apparent
component of her pain and that a lumbar MRI be obtained. (Id.) On December 21, 2017,
Plaintiff received bilateral sacroiliac joint injections. (R. at 768.)
A December 29, 2017, MRI revealed Grade 1 anterolisthesis of L5 on S1 with chronic
bilateral pars defects and moderate disc degeneration associated with mild to moderate bilateral
foraminal stenosis. (R. at 770.) On January 2, 2018, she was referred for a surgical

consultation. (R. at 770.) On March 19, 2018, it was recommended that Plaintiff increase her
dosage of Neurontin to reduce the neuropathic component of her pain and that she continue using
Naprosyn or Ibuprofen and a trial of Baclofen to reduce the muscular component of her pain. (R.
at 771.)
3. OSU Spine Compression Center

On April 24, 2018, Plaintiff underwent a pre-operative assessment. (R. at 573.) She was
scheduled for surgery on May 11, 2018, but because she was positive for nicotine that day, her
surgery had to be rescheduled. (R. at 573, 588.) On May 14, 2018, the following procedures
were performed without complications: a posterior spinal decompression with laminectomy, a
foraminotomy, and a facetectomy, lumbar 5 to sacral 1; and a posterior spinal fusion lumbar 5 to
sacral 1. (R. at 606.)

6
Notes from a postoperative visit on May 29, 2018, indicate that a few days after her
surgery, Plaintiff visited the emergency room for bilateral swelling and discharge. (R. at 631.)
Plaintiff was prescribed Levaquin for presumed pneumonia and was doing well. (Id.) Her pain
was controlled. (Id.) Imaging revealed that s/p L5-S1 PLIF were in appropriate alignment. (R.
at 632.) She was OK to return to work with no bending, twisting, or lifting more than five
pounds. (Id.)
Notes indicate that Plaintiff reported that she fell directly on her back on or around July
1, 2018, and that after that fall, she experienced pain radiating down her left leg. (R. at 635.)
Plaintiff visited the emergency department after that fall where she was advised to see her
surgeon. (Id.)

At a follow-up visit with her surgeon on July 11, 2018, Plaintiff was doing fairly well and
was trying to wean off Norco. (R. at 633.) She was ambulating without the use of an assistive
device and her preoperative pain was improving. (Id.) Her sensation was intact to light touch.
(R. at 634.) A seated straight leg test, however, recreated her pain in a non-dermatomal patten in
her right lower extremity. (Id.) Imaging again revealed that s/p L5-S1 PLIF were in appropriate
alignment. (Id.) She was given a prescription to start physical therapy in six weeks. (Id.)
Notes dated August 23, 2018, indicate that Plaintiff reported that her surgeon did not
address her post-fall concerns. (R. at 635.) Upon examination, Plaintiff’s her lumbar range of
motion was 50/90 flexion with pain, 15/30 extension with pain, and 20/20 bilaterally without
pain. (R. at 638.) She had 5/5 strength in her hip flexion, adduction, and abduction bilaterally.

(Id.) She also had 5/5 strength in her knee flexion and extension; 4/5 in her right ankle DF and

7
PF; and 4+/5 in her left ankle DF and PF. (Id.) She was positive for a seated straight leg raising
test on the left but not the right. (R. at 639.) The July 1, 2018, imaging was reviewed. There
was no evidence of a compression fracture of the spine even though the laminectomy and
chronic, degenerative, and postsurgical changes were noted. (R. at 640.) It was determined that
a lumbar MRI was needed. (R. at 641.)
Additional X-Rays were done on September 13, 2018. (R. at 642–43.) They showed five
typical lumbar spine vertebral bodies in unchanged alignment with intact L5-S1 posterior fusion
hardware. (R. at 643.) No instability was seen on flexion or extension views, nor was there
compression deformity or spondylosis. (Id.) Disc spaces were also within normal limits and the
facet joints appeared anatomically aligned. (Id.) The impression was intact posterior fusion

hardware without instability on flexion or extension views. (Id.) Upon examination, Plaintiff’s
lumbar range of motion was noted to be “limited due to pain with ROM” but her strength scores
were identical to the strength scores she had prior to her post-surgical fall. (R. at 645, 638.)
4. Precision Pain Care in 2018
Plaintiff returned to Precision Pain Care five months after her lumbar fusion. (R. at 772.)
She reported that although the surgery reduced symptoms on her right, she now had similar pain
radiating from her low back into her left lower extremity. (Id.) It was recommended that she
receive lumbar steroidal epidural injections to reduce the apparent radicular component of her
pain. (Id.) She received an injection on October 29, 2018. (R. at 773.)

8
5. State Agency Reviewers Drs. Jasti and Sreenivas
On April 3, 2017, Plaintiff’s file was reviewed at the initial level by Dr. Jasti. (R. at 104–
05.) Dr. Jasti found that Plaintiff was capable of light work except that she was limited to
frequent stooping; occasionally climbing ramps and stairs; and never climbing ladders, ropes,
and scaffolds. (Id.) On May 31, 2017, Plaintiff’s file was reviewed at the reconsideration level
by Dr. Sreenivas. (R. at 121–22.) Dr. Sreenivas found that Plaintiff was capable of light work
except that she was limited to frequent balancing and crouching; occasionally stooping, kneeling,
crawling, and climbing ramps or stairs; and never climbing ladders, ropes, and scaffolds. (Id.)
C. Relevant Medical Records Related to Plaintiff’s Mental Impairments1
1. School Records

School records show that Plaintiff was placed on a student accommodation plan in grade
8 for low grades, poor standardized test scores and attendance, and high frustration level with
school. (R. at 274.) The accommodations deemed necessary were modification of
assignments/directions, additional time for assignments/tests, small group work/testing, use of a
calculator, having all or part of tests read, and additional breaks for movement or to get back on
task. (Id.) Plaintiff’s high school grades ranged from As to Fs. She failed to pass the Ohio
Ninth Grade Proficiency test despite taking it several times. (R. at 271, 273.) Elsewhere,
Plaintiff reported that she did not complete the twelfth grade as she lacked two credits. (R. at
336.)

1 Plaintiff’s allegations of error pertain only to her borderline intellectual functioning.
Accordingly, the Undersigned focuses her discussion on evidence related to the same.
9
2. 2007 Consultative Examination by T. Rodney Swearingen, PhD.
Plaintiff was consultatively evaluated by Dr. Swearingen, on December 8, 2007, to assess
cognitive and memory functions and identify any behavior or emotional problems. (R. at 336–
41.) Plaintiff was 22 years old on that date. (R. at 336.) She reported that she was going to take
her GED in the near future, that she had done well and enjoyed school, and that she got along
with other students and teachers but had attendance problems. (R. at 337.) She had no contact
with her neighbors but denied problems with them or authority figures. (Id.) Plaintiff also
denied having problems getting along with people or following directions at her last job, but she
had difficulty completing repetitive tasks due to distractions and was unable to work at that time
because she could not “stand to be around people” and had panic attacks. (Id.) She denied

having difficulty managing money. (R. at 338.) She spent her days at home watching television
and had one good friend with whom she socialized at home. (Id.) She reported that her reading
skills were fair but that her writing, spelling, and arithmetic skills were poor. (Id.) She
completed her ADLs independently. (Id.)
Dr. Swearingen administered the WAIS–II to Plaintiff. Plaintiff scored 76 on
Performance IQ, 66 on Verbal IQ, and 68 on the Full Scale IQ. (R. at 339.) These scores fell in
the borderline range for Performance IQ and extremely low range for Verbal IQ and the Full
Scale IQ. (Id.) Dr. Peterson also administered the WRAT–III to Plaintiff who scored in the low
average range in sentence comprehension (81) and spelling (84) and in the borderline range for
word reading (77), math computation (74), and reading composite (77). (Id.) Dr. Swearingen

opined that these scores warranted an Axis II diagnosis of borderline intellectual functioning.

10
(Id.) He further opined that her GAF rating was “58 or a moderate impairment.” (Id.) Dr.
Swearingen wrote that Plaintiff’s ability to relate to others including co-workers and supervisors
and to withstand stress and pressure related to work was moderately impaired. (R. at 339–40.)
Plaintiff’s ability to understand and follow simple directions, persist, and maintain a moderate
pace appeared to be intact. (Id.) Her ability maintain attention also appeared to be intact, but Dr.
Swearingen noted that Plaintiff was in a controlled environment with little distraction and that
her ability in this area was likely to be at least mildly impaired by her mental health symptoms.
(Id.)
3. Integrated Services for Behavioral Health (“ISBH”)
Plaintiff began treating at ISBH in April 2016. Session notes written by Ruth Porter-

Roberts, LSW, indicated that Plaintiff was on probation after being incarcerated for 90 days for
felony drug and children endangerment convictions. (R. at 350.) Plaintiff reported a history of
special education. (R. at 351.) LSW Roberts wrote that Plaintiff’s GAF rating was a 45, which
indicated serious symptoms or impairments in social, occupational, or school functioning. (R. at
353.) Upon a brief mental status examination, Plaintiff’s thought processes were goal directed
and logical. (R. at 354.) She was oriented x3, her short and long-term memory were intact, and
her insight was good. (Id.)
A mental status examination on June 22, 2016, done by psychiatrist Erin Roylance, D.O.,
at ISBH revealed that Plaintiff’s thought processes were logical and relevant, and her thought
content was appropriate. (R. at 362.) Plaintiff’s immediate, recent, and remote memory were all

intact. (R. at 363.) Plaintiff had fair concentration, insight, and judgment and was estimated to

11
have above average intelligence. (Id.) Mental status examinations done by Dr. Roylance on July
13, August 10, October 3, and November 29, 2016, and January 23, and March 1, 2017 found
that Plaintiff’s thought process and content were logical, her cognition was intact, and her
insight/judgment was fair. (R. at 386, 394, 402–03, 410, 418, 426.)
On March 17, 2017, Ms. Volquardsen, a therapist at ISBH, completed an Opportunities
for Ohioans with Disabilities Daily Activities Questionnaire which asked “[i]f applicable, what
behaviors or deficits prevent independent living?” (R. at 451–52.) Ms. Volquardsen responded
“ADHD, depression, drug abuse” but did not identify cognitive deficits. (Id.) In addition, in
response to a question asking for examples of anything that might prevent work activities, Ms.
Volquardsen responded: “Back issues prevent standing for long periods, lifting and squatting.

Anxiety prevents client from interacting with others. Client has trouble with attendance due to
depression,” but she did not identify cognitive issues. (Id.) Ms. Volquardsen also wrote that
Plaintiff did not do a lot of food preparation but microwaved her meals and did limited
housework at her own pace depending on how she was feeling. (Id.) She had no issues,
however, with personal hygiene. (Id.) Ms. Volquardsen noted that Plaintiff spent limited time in
stores due to anxiety, but she used public transportation because she had no driver’s license.
(Id.) Ms. Volquardsen also noted that Plaintiff’s father assisted with banking, bill paying, and
grocery shopping. (Id.) Ms. Volquardsen indicated that Plaintiff was very reliable about
keeping her appointments which took place one to two times per week. (Id.)
On June 27, 2018, Plaintiff’s saw Amanda Pack, CNP, as a transfer patient from Dr.

Roylance. (R. at 662–670.) A mental status examination that day, Plaintiff’s speech,

12
associations, thought process, orientation, recent and remote memory, language, and knowledge
fund were all normal. (R. at 667–68.) Her insight was fair. (R. at 667.) Her attention and
concentration were, however, abnormal. (R. at 668.) Mental status examinations on August 6,
and September 11, and October 12, 2018, again found that Plaintiff’s speech, associations,
thought process, orientation, and recent and remote memory were all normal and that Plaintiff’s
insight was fair. (R. at 678–79, 689–90, 699–700.) But on those dates, Plaintiff’s attention and
concentration were also normal. (R. at 679, 690, 700.)
4. State Agency Reviewers Drs. Kirwin and Rudy
On March 28, 2017, Plaintiff’s file was reviewed at the initial level by Dr. Kirwin. (R. at
106–08.) Dr. Kirwin found that Plaintiff was capable of performing simple repetitive tasks (1–3

steps) in an environment without fast pace or high production quotas and occasional superficial
interaction with others in the work setting. (Id.) Dr. Kirwin found that Plaintiff also retained the
ability to respond appropriately to changes in the work setting that were foreseen and gradually
implemented. (Id.) Dr. Rudy reviewed Plaintiff’s file at the reconsideration level on May 25,
2017, and made identical findings. (R. at 123–25.)
III. SUMMARY OF THE ADMINISTRATIVE DECISION
On April 5, 2019, ALJ Herring issued her decision. (R. at 15–29.) ALJ Herring initially
explained that because there had been a final determination on Plaintiff’s prior application, she
would be bound, pursuant to principles of res judicata, by the findings in that final determination
for the adjudicated period. (R. at 15.) ALJ Herring also explained that she would be bound by

the findings in the final determination for the unadjudicated period that began immediately after

13
the final determination had been issued in the absence of new and material evidence or evidence
of changed circumstances. (R. at 16.) ALJ Herring then concluded that Plaintiff’s instant
application was for an unadjudicated period and thus res judicata principles did not apply. (R. at
15–16.) ALJ Herring further found that there was and new and material evidence showing
changed circumstances, and thus, that she was not bound by the prior determination for the
unadjudicated period. (R. at 15–16.)
At Step One2 of the sequential evaluation process, ALJ Herring found that Plaintiff had
not engaged in substantially gainful during the period since January 17, 2017, her application
date. (R. at 18.) At Step Two, the ALJ found that through the date last insured, Plaintiff had the
following severe impairments: degenerative disc disease of the lumbar spine, borderline

intellectual functioning, bipolar disorder, major depressive disorder, generalized anxiety

2 Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:

1. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
4. Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
5. Considering the claimant’s age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
14
disorder, borderline personality disorder, attention-deficit hyperactivity disorder (ADHD), post-
traumatic stress disorder (PTSD), and opioid dependence. (Id.) She further found at Step Three
that Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(R. at 19.)
Before proceeding to Step Four, ALJ Herring set forth Plaintiff’s residual functional
capacity (“RFC”) as follows:
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform light work as
defined in 20 CFR 416.967(b) except that she could sit six hours in an
eight-hour workday, but stand and/or walk for four hours in an eight-hour
workday. Additionally, the claimant must be able to change positions
between sitting and standing every 15minutes or more as needed; and
must be able to shift weight while in a seated position. She could
occasionally stoop, kneel, crouch, crawl, and climb stairs or ramps, but
should avoid climbing ladders, ropes, or scaffolds. Further the claimant
should avoid hazards – meaning dangerous machinery and unprotected
heights. She could perform simple and routine tasks with no more than
occasional changes in the work setting. Further, this work should not be at
production rate pace, defined as where the production rate is set by an
external source such as an assembly line or conveyor belt. Lastly, the
claimant must work in an environment with occasional interaction with
supervisors and co-workers, but should avoid interaction with the public.

(R. at 22.) When assessing this RFC, ALJ Herring gave little weight to an opinion from
Plaintiff’s therapist at ISBH, Ms. Volquardsen, because she was an “other source” instead of an
acceptable medical source and her opinion conflicted with records from Plaintiff’s treating and
examining psychiatrist. (R. at 26.) ALJ Herring gave significant weight to the consultative
evaluation conducted in December 2007 by Dr. Swearingen, because it was consistent with the
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current medical records despite its age. (R. at 27.) ALJ Herring also accorded significant weight
to the opinions of the State Agency reviewers, Drs. Jasti, Kirwin, Sreenivas, and Rudy because
they were “grounded in the evidence of record.” (R. at 27–28.)
At Step Four, ALJ Herring determined that Plaintiff had no past relevant work. (R. at 28.)
At Step Five, ALJ Herring relied on testimony from a Vocational Expert (“VE”) to find that
given Plaintiff’s age, education, work experience, and RFC, Plaintiff could perform other jobs

that existed in significant numbers in the national economy such as an inspector, hand packer,
and bench assembler. (R. at 29.) Consequently, ALJ Herring concluded that Plaintiff had not
been disabled under the Social Security Act since January 17, 2017. (Id.)
IV. STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“‘take into account whatever in the record fairly detracts from [the] weight’” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
16
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley
v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision
of the Commissioner will not be upheld where the SSA fails to follow its own regulations and

where that error prejudices a claimant on the merits or deprives the claimant of a substantial
right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
V. ANALYSIS
Plaintiff alleges that ALJ Hering erred in her Listing analyses. Specifically, Plaintiff
alleges that ALJ Herring erred when determining that Plaintiff did not meet the criteria for
Listings 1.04A and 12.05. Plaintiff also alleges that ALJ Herring erred in her subjective-
symptom analysis. The Undersigned addresses each of these alleged errors and finds that they
do not have merit.
A. The ALJ’s Subjective Symptom/Credibility Analysis

Plaintiff alleges that the ALJ Herring erred in her assessment of Plaintiff’s subjective
symptoms. The Undersigned disagrees.
The Sixth Circuit has provided the following guidance in considering an ALJ’s credibility
assessment:3

3 An ALJ’s consideration of a claimant’s statements about symptoms and limitations, generally
known as credibility analysis, is required. But, as clarified by SSR 16-3p (applicable as of
17
Where the symptoms and not the underlying condition form the basis of the
disability claim, a two-part analysis is used in evaluating complaints of disabling
pain. 20 C.F.R. § 416.929(a); Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.
2001); Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994). First, the ALJ
will ask whether the there is an underlying medically determinable physical
impairment that could reasonably be expected to produce the claimant's
symptoms. 20 C.F.R. § 416.929(a). Second, if the ALJ finds that such an
impairment exists, then he must evaluate the intensity, persistence, and limiting
effects of the symptoms on the individual's ability to do basic work activities. Id.

Rogers, 486 F.3d at 247.

“The ALJ’s assessment of credibility is entitled to great weight and deference.”
Infantado v. Astrue, 263 F. App’x 469, 475 (6th Cir. 2008) (citing Walters v. Comm’r of Soc.
Sec., 127 F.3d 525, 531 (6th Cir. 1997)); Sullenger v. Comm’r of Soc. Sec., 255 F. App’x 988,
995 (6th Cir. 2007) (declining to disturb the ALJ’s credibility determination, stating that “[w]e
will not try the case anew, resolve conflicts in the evidence, or decide questions of credibility”
(citation omitted)). This deference extends to an ALJ’s credibility determinations “with respect
to [a claimant’s] subjective complaints of pain.” Allen v. Comm’r of Soc. Sec., 561 F.3d 646,
652 (6th Cir. 2009) (quoting Siterlet v. Sec’y of Health & Hum. Servs., 823 F.2d 918, 920 (6th
Cir. 1987)). Despite this deference, “an ALJ's assessment of a claimant’s credibility must be
supported by substantial evidence.” Walters, 127 F.3d at 531. Furthermore, the ALJ’s decision
on credibility must be “based on a consideration of the entire record.” Rogers, 486 F.3d at 247
(internal quotation omitted). An ALJ’s explanation of his or her credibility decision “must be

March 28, 2016), the focus is not on the claimant’s propensity for truthfulness or character but
rather on the consistency of her statements about the intensity, persistence, and limiting effects of
symptoms with the relevant evidence. See SSR 16-3p, 2017 WL 5180304 at *2, *6, *11.
Consequently, the Court uses the term “credibility” in the context the consistency of Plaintiff’s
statements about her symptoms with the evidence in the record.
18
sufficiently specific to make clear to the individual and to any subsequent reviewers the weight
the adjudicator gave to the individual’s statements and the reasons for that weight.” Id. at
248; see also Mason v. Comm’r of Soc. Sec. Admin., No. 1:06-CV-1566, 2012 WL 669930, at
*10 (N.D. Ohio Feb. 29, 2012) (“While the ALJ’s credibility findings ‘must be sufficiently
specific’, Rogers, 486 F.3d at 248, the intent behind this standard is to ensure meaningful
appellate review.”).

“Discounting credibility to a certain degree is appropriate where an ALJ finds
contradictions among the medical reports, claimant's testimony, and other evidence.” Walters,
127 F.3d at 531. In addition, the regulations list a variety of factors an ALJ must consider in
evaluating the severity of symptoms, including a claimant’s daily activities; the effectiveness of
medication; and treatment other than medication. 20 C.F.R. § 404.1529(c)(3); SSR 96-7p, 1996
WL 374186 (July 2, 1996); but see Ewing v. Astrue, No. 1:10-cv-1792, 2011 WL 3843692, at *9
(N.D. Ohio Aug. 12, 2011) (suggesting that although an ALJ is required to consider such factors,
he or she is not required to discuss every factor within the written decision) report and
recommendation adopted, 2011 WL 3843703, (N.D. Ohio Aug. 30, 2011).
At the first part of the two-part analysis, ALJ Herring determined that Plaintiff had a

medically determinable impairment that could reasonably be expected to cause her alleged
symptoms. (R. at 22.) But at the second part, ALJ Herring determined that Plaintiff’s statements
concerning the intensity, persistence and limiting effects of those symptoms were not entirely
consistent with the medical and other evidence in the record. (Id.) Plaintiff alleges that when
ALJ Herring made that second determination, she failed to consider that Plaintiff’s back
impairments were serious enough to necessitate lumbar surgery, that Plaintiff’s back pain may
19
have varied over time, and that Plaintiff persisted in efforts to obtain pain relief. (ECF No. 7, at
PageID # 825–27.)
Plaintiff mischaracterizes the ALJ’s subjective symptom analysis. ALJ Herring engaged
in a lengthy discussion of the medical records related to Plaintiff’s pre-surgery treatment,
including the handful of injections that she received from Precision Pain Care in 2017, and that
Plaintiff was referred for surgery in 2017. (R. at 23.) ALJ Herring then described the surgery

that Plaintiff had on May 14, 2018, and subsequent physical examination findings. (Id.) ALJ
Herring further noted that Plaintiff reported that she had fallen after her surgery and complained
about back pain that she experienced after that post-surgical fall. (Id.) ALJ Herring then
described examination findings from Plaintiff’s post-fall medical visits and noted that objective
diagnostic evidence showed that her fusion hardware remained intact despite her accident. (Id.)
ALJ Herring also noted that although Plaintiff had been prescribed post-surgical physical
therapy, there was no record evidence that Plaintiff had attended any such sessions and that
Plaintiff sought only a single post-surgery lumbar injection at Precision Pain Care. (Id.) ALJ
Herring concluded that this evidence supported the presence of a back impairment, but that it did
not demonstrate the level of impairment alleged by Plaintiff. (Id.) The Undersigned finds no

reason to disturb this determination.
Thus, contrary to Plaintiff’s claims, ALJ Herring considered Plaintiff’s pre-surgical,
surgical, and post-surgical treatment records and explicitly discussed the efforts that Plaintiff
took, or failed to take, to relieve her pain during all those times. (Id.) ALJ Herring’s analysis
accurately describes the information contained in medical records, and therefore, her analysis is
supported by substantial record evidence. For these reasons, this allegation of error lack merit.
20
B. ALJ Herring’s 1.04 Listing Analysis
Plaintiff additionally alleges that ALJ Herring erred when determining that she did not
meet the criteria for Listings 1.04A. This allegation also lacks merit.
The Listing of Impairments, located at Appendix 1 to Subpart P of the regulations,
describes impairments the Social Security Administration considers “severe enough to prevent

an individual from doing any gainful activity, regardless of his or her age, education, or work
experience.” 20 C.F.R. § 416.925(a). A claimant who meets or medically equals the
requirements of a listed impairment will be deemed conclusively disabled. See Reynolds v.
Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011). That said, “[a] claimant must
satisfy all of the criteria to meet the listing.” Rabbers, 582 F.3d at 653; Sullivan v. Zebley, 493
U.S. 521, 530 (1990) (“For a claimant to show that his impairment matches a listing, it must
meet all of the specified medical criteria. An impairment that manifests only some of those
criteria, no matter how severely, does not qualify.”); Blanton v. Soc. Sec. Admin., 118 F. App’x
3, 6 (6th Cir. 2004) (“When all the requirements for a listed impairment are not present, the
Commissioner properly determines that the claimant does not meet the listing.”). All criteria

must also be met concurrently for a period of twelve continuous months. See 20 C.F.R. §
416.925(c)(3), (4); 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(D) (“[b]ecause abnormal physical
findings may be intermittent, their presence over a period of time must be established by a record
of ongoing management and evaluation.”). A claimant bears the burden of proving that she
meets or equals all of the criteria of a listed impairment. Malone v. Comm’r of Soc. Sec., 507 F.
App’x 470, 472 (6th Cir. 2012); Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999)
21
(clarifying that the burden of proving disability remains with the Social Security claimant at
Steps 1 through 4 and does not shift to the ALJ until Step 5).
Listing 1.04A provides as follows:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:

A. Evidence of nerve root compression characterized by neuro-
anatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
(sitting and supine).

20 C.F.R. Pt. 404, Subpt. P, App, 1, §1.04A (emphasis added). Therefore, Plaintiff was required
to establish each of the following seven criteria in order to demonstrate that she met Listing
1.04A:
(1) A disorder of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal
stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture),
(2) resulting compromise of a nerve root (including the cauda equina) or the spinal cord,
(3) evidence of nerve root compression characterized by neuro-anatomic distribution of pain,
(4) limitation of motion of the spine,
(5) motor loss (atrophy with associated muscle weakness or muscle weakness [sic] )
accompanied by sensory or reflex loss,
(6) if there is involvement of the lower back, positive straight-leg raising test (sitting and
supine), and
(7) the impairment has lasted or can be expected to last for a continuous period of at least 12
months.

In this case, however, ALJ Herring determined that Plaintiff did not meet that burden of
proof. She wrote:
The criteria in Listing 1.00, Musculoskeletal System, more specifically 1.04
Disorders of the Spine, is not satisfied. The medical evidence fails to establish
any disorder of the claimant’s spine, such as osteoarthritis, herniated nucleus
22
pulposus, spinal arachnoiditis, spinal stenosis, or degenerative disc disease that
results in the compromise of a nerve root or the spinal cord, thereby failing to
meet the requirement of Listing 1.04.

(R. at 19.) (emphasis added).
ALJ Herring’s discussion of Listing 1.04A at Step Three is somewhat cursory. But when
read in its entirety, ALJ Herring’s non-disability determination demonstrates that substantial
evidence supports her Listing 1.04A conclusion. ALJ Herring noted elsewhere in the
determination that “the record does contain objective diagnostic studies of an impairment.” (R.
at 22.) Specifically, a December 2017, MRI showed “grade 1 anterolisthesis of L5 on S1 with
chronic bilateral pars defects and moderate disc degeneration associated with mild to moderate
bilateral foraminal stenosis.” (R. at 22–23, 770.) But ALJ Herring also noted that approximately
five months later, Plaintiff underwent surgery. (R. at 23, 606.) ALJ Herring explained that
Plaintiff fell on her back approximately one month after her surgery, but subsequent X-Rays did
not indicate abnormalities. (R. at 23.) In particular, ALJ Herring discussed that X-Rays on
September 13, 2018, showed five typical lumbar spine vertebral bodies in unchanged alignment
with intact L5-S1 posterior fusion hardware and that Plaintiff had no instability on flexion or
extension views. (R. at 23, 642–43.) There was also no compression deformity or spondylosis
on those same X-Rays. (Id.) In addition, Plaintiff’s disc spaces were within normal limits and
her facet joints appeared anatomically aligned. (Id.) Therefore, it is clear, from ALJ Herring’s
determination that there was no recent evidence that Plaintiff’s mild to moderate foraminal
stenosis resulted in compromise of the nerve root or spinal cord. See Lett v. Colvin, No. 1:13 CV
2517, 2015 WL 853425, at *17 (N.D. Ohio Feb. 26, 2015) (finding that plaintiff did not meet her

23
burden where she failed to establish more recent evidence that she met the criteria for Listing
1.04A).
Plaintiff asserts that ALJ Herring’s analysis is inadequate and cites Reynolds for the
proposition that when performing a Listing analysis, an ALJ must “actually evaluate the
evidence, compare it to Section 1.00 of the Listing, and give an explained conclusion, in order to
facilitate meaningful judicial review.” 424 Fed. App’x at 416. In Reynolds, the ALJ found that

the claimant had severe mental and physical impairments at Step Two, but at Step Three, the
ALJ analyzed only whether the claimant’s mental impairments met or equaled a Listing, and
completely failed to assess whether the claimant’s physical impairments met or equaled any
Listings. Id. at 415–16. The Sixth Circuit Court of Appeals found that remand was appropriate
because the ALJ “completely skipped an entire step of the necessary analysis.” Id. In this case,
however, ALJ Herring did not completely fail to consider if Plaintiff’s physical impairments met
any listed impairments. Here, however, ALJ Herring explicitly considered Listing 1.04A. And
although her analysis may have been brief, when combined with her detailed discussion of the
record evidence related to Plaintiff’s spinal impairments, it provided sufficient articulation for
adequate judicial review. Moreover, on several occasions, the Sixth Circuit has upheld an ALJ’s

sparse step three determination when an ALJ made “sufficient factual findings elsewhere in his
decision to support his conclusion at Step Three.” Forrest v. Comm’r of Soc. Sec., 591 Fed.
App’x 359, 366 (6th Cir. 2014) (citing See Bledsoe v. Barnhart, 165 Fed. App’x 408, 411 (6th
Cir. 2006) (looking to findings elsewhere in the ALJ’s decision to affirm a Step Three medical
equivalency determination, and finding no need to require the ALJ to “spell out every fact a

24
second time”)). Such is the case here. Accordingly, the Undersigned finds that the ALJ did not
err when analyzing if Plaintiff met the criteria for Listing 1.04A.
In any event, Plaintiff cannot point to evidence of requirement number 6 for Listing
1.04A— positive straight leg tests in both the sitting and supine positions. Although medical
records document two positive straight-leg raising tests prior to Plaintiff’s surgery, the records do
not indicate if those tests were performed in either the sitting and standing positions. Therefore,

those tests do not demonstrate the Plaintiff met Listing 1.04A. Asbury v. Comm’r of Soc. Sec.,
No. 1:18–cv–365, 2019 WL 3916479, at *10 (S.D. Ohio Aug. 20, 2019), (finding plaintiff could
not meet Listing 1.04A where there was “no indication” if straight leg raising tests were positive
for both the supine and sitting positions as Listing 1.04A requires”), report and recommendation
affirmed, 2019 WL 4452677, (S.D. Ohio September 17, 2019); Miller v. Comm’r of Soc. Sec.,
No. 1:10–cv–122778, 848 F. Supp. 2d 694, 710 (E.D. Mich. Oct. 21, 2011) (finding the plaintiff
could not meet Listing 1.04A where she did not point to “positive straight leg tests in both the
sitting and supine positions”). In addition, the medical records document two post-surgical
positive straight leg raising tests. (R. at 663, 639.) But the records indicate only that those tests
were done in the sitting position. (Id.) Those tests results do not suffice because Listing 1.04A

requires evidence of positive tests in both the sitting and the standing positions. 20 C.F.R. Pt.
404, Subpt. P, App, 1, §1.04A. Therefore, Plaintiff cannot satisfy her burden of demonstrating
that she meets all the criteria for Listing 1.04A. Thus, even if the ALJ had erred when analyzing
Listing 1.04A, any such error would have been harmless. For these reasons, the Undersigned
concludes that Plaintiff’s allegation of error lacks merit.

25
C. ALJ Herring’s Listing 12.05 Analysis
Plaintiff also alleges that the ALJ erred by failing to consider if Plaintiff met the criteria
for Listing 12.05. The Undersigned finds that this allegation lacks merit.
At Step Three, the regulations require an ALJ to determine if a claimant meets or equals a
Listing, but they “do not require the ALJ to address every Listing” or to “discuss listings that the
applicant clearly does not meet.” Sheeks v. Comm’r of Soc. Sec., 544 Fed. App’x 639, 641 (6th

Cir. 2013). Instead, an ALJ should consider a Listing if the record “‘raise[s] a substantial
question as to whether [the claimant] could qualify as disabled’ under a listing.” Id.
at 641 (citing Abbott v. Sullivan, 905 F.2d 918, 925 (6th Cir. 1990)). “A claimant must do more
than point to evidence on which the ALJ could have based his finding to raise a ‘substantial
question’ as to whether he satisfied a listing.” Smith-Johnson v. Comm’r of Soc. Sec., 579 F.
App’x 426, 432 (6th Cir. 2014) (quoting Sheeks, 544 F. App’x at 641–42). “Rather, the
claimant must point to specific evidence that demonstrates he reasonably could meet or equal
every requirement of the listing.” Id. (citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990)).
“Absent such evidence, the ALJ does not commit reversible error by failing to evaluate a listing
at Step Three.” Id. at 433. Furthermore, “where the ALJ makes findings elsewhere in the

decision supporting the conclusion that the claimant did not meet a listing, the Court may affirm
the decision because an ALJ need not ‘spell out every fact a second time.’” Bledsoe, 165 F.
App’x at 411; see also Forrest, 591 F. App’x at 366 (explaining that the ALJ’s step three
findings may be upheld where there are “factual findings elsewhere in his decision to support his
conclusion.”).

26
At Step Two, ALJ Herring determined that Plaintiff had several severe medically
determinable mental impairments, including borderline intellectual functioning. (R. at 18–19.)
At Step Three, ALJ Herring considered mental impairments and determined that they did not,
singly or in combination, meet the criteria for any of the following Listings: 12.04 (Depressive,
bipolar and related disorders); 12.06 (Anxiety and Obsessive-compulsive disorders); 12.08
(Personality and impulse control disorders); 12.11 (Neurodevelopmental disorders); and 12.15

(Trauma and Stressor-related disorders). (R. at 20.) Nevertheless, and as Plaintiff correctly
points out, ALJ Herring failed to mention or discuss whether Plaintiff met the criteria for Listing
12.05 at Step Three. 4
1. 12.05A
Listing 12.05 addresses intellectual disorders and sets forth two paths for satisfying its
requirements. Listing 12.05A applies to people whose intellectual disorders make them unable
to take standardized tests of intellectual functioning. It provides as follows:
A. Satisfied by 1, 2, and 3 (see 12.00H):

1. Significantly subaverage general intellectual functioning evident in your cognitive
inability to function at a level required to participate in standardized testing of
intellectual functioning; and

2. Significant deficits in adaptive functioning currently manifested by your
dependence upon others for personal needs (for example, toileting, eating,
dressing, or bathing); and

4 The Commissioner asserts that Plaintiff “incorrectly claims” that ALJ Herring did not mention
or evaluate Listing 12.05. (ECF No. 9, at PageID # 840.) But Defendant cites the determination
issued by ALJ Sferrella on July 20, 2010, not the determination issued by ALJ Herring on April
5, 2019. (Id., at PageID # 841.) As explained, supra, however, ALJ Herring determined that she
was not bound by the findings in the prior determination issued by ALJ Sferrella pursuant to
principles of res judicata or under Drummond and she did not adopt ALJ Sferrella’s findings (R.
at 15–16.)
27
3. The evidence about your current intellectual and adaptive functioning and about
the history of your disorder demonstrates or supports the conclusion that the
disorder began prior to your attainment of age 22.

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05.
In this case, the ALJ did not err by failing to consider Listing 12.05A because the record
did not raise a substantial question as to whether Plaintiff met that Listing. The record contains
evidence that Plaintiff was able to participate in standardized testing. Indeed, the record contains
Plaintiff’s scores on several standardized intellectual functioning tests the WAIS–III and the
WRAT–III. (R. at 339.)
2. 12.05B
Listing 12.05B applies to people whose intellectual disorders do not make them unable to
participate in standardized tests of intellectual functioning. Listing 12.05B provides as follows:
B. Satisfied by 1, 2, and 3 (see 12.00H):

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

a. A full scale (or comparable) IQ score of 70 or below on an individually
administered standardized test of general intelligence; or

b. A full scale (or comparable) IQ score of 71–75 accompanied by a verbal
or performance IQ score (or comparable part score) of 70 or below on an
individually administered standardized test of general intelligence; and

2. Significant deficits in adaptive functioning currently manifested by extreme
limitation of one, or marked limitation of two, of the following areas of mental
functioning:

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

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

c. Concentrate, persist, or maintain pace (see 12.00E3); or
28
d. Adapt or manage oneself (see 12.00E4); and

3. The evidence about your current intellectual and adaptive functioning and about
the history of your disorder demonstrates or supports the conclusion that the
disorder began prior to your attainment of age 22.

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05.
In this case, the ALJ did not err by failing to consider Listing 12.05B because the record
did not raise a substantial question as to whether Plaintiff met that Listing. When ALJ Herring
considered other Listings at Step Three (Listings 12.04, 12.06, 12.08, 12.11, and 12.15), she
determined that Plaintiff did not meet the “paragraph B” criteria for those Listings. That
paragraph B criteria requires a claimant’s “mental disorder” to result in “extreme” limitations in
one out of four, or “marked” limitations in two out of four, areas of mental functioning. 20
C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00. Those four areas of mental functioning are: (1)
understanding, remembering, or applying information; (2) interacting with others; (3)
concentrating, persisting, or maintaining pace; and (4) adapting or managing oneself. Id. ALJ
Herring determined that Plaintiff had only moderate limitations in all four of those areas. (R. at
20–21.)
The paragraph B criteria for Listings 12.04, 12.06, 12.08, 12.11, and 12.15 are identical
to the requirements for 12.05B(2)(a)–(d), which requires “extreme” limitations in one out of
four, or “marked” limitations in two out of four, of the same four areas of mental functioning.
Compare 20 C.F.R. Pt. 404, Subpt. P, App. 1§ 12.00(A)(2)(b) (“paragraph B criteria”) to
12.05B(2)(a)–(d). After ALJ Herring determined that Plaintiff only had moderate limitations in
those four areas when considering Listings 12.04, 12.06, 12.08, 12.11, and 12.15, ALJ Herring
29
did not need to consider 12.05B because the evidence did not raise a “substantial question” as to
whether Plaintiff could meet that Listing. As noted, an “ALJ need not discuss listings that the
applicant clearly does not meet.” Sheeks, 544 F. App’x at 641. ALJ Herring was not required to
“spell out every fact a second time” to show why Plaintiff could not meet the requirements
of 12.05B. Bledsoe, 165 F. App’x at 411. Therefore, ALJ Herring did not commit reversible
error by failing to expressly consider listing 12.05B. See Forman v. Saul, No. 7:19-CV-043-

CHB, 2020 WL 5521038, at *2–5 (E.D. Ky. Sept. 14, 2020) (finding that the record did not raise
a substantial question as to whether the plaintiff could meet Listing 12.05B; the ALJ found that
the plaintiff could not meet the paragraph B criteria in other Listings and that paragraph B
criteria was identical to the requirements in 12.05B(2)(a)-(d)).
This case is also distinguishable from Reynolds, cited by Plaintiff. As explained
previously, in Reynolds, the ALJ determined that the plaintiff had severe physical impairments at
Step Two, but at Step Three, failed to analyze if those physical impairments met any Listing at
all. 424 F. App’x 415–16. Such is not the case here. ALJ Herring determined that Plaintiff had
severe mental impairments at Step Two, and at Step Three, explicitly determined that those
mental impairments did not meet Listings 12.04, 12.06, 12.08, 12.11, and 12.15. (R. at 19–20.)

That explicit determination made it clear that the record did not raise a substantial issue question
about Listing 12.05. Reynolds is thus distinguishable. For these reasons, the Undersigned
concludes that Plaintiff’s allegation of error related to Listing 12.05 is without merit.

30
VI. CONCLUSION
For all the foregoing reasons, it is therefore RECOMMENDED that Plaintiff’s
Statement of Errors be OVERRULED and that the Commissioner’s decision be AFFIRMED.
VII. PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the
Report and Recommendation, specifically designating this Report and Recommendation, and the
part in question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat'l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge's recommendations constituted a waiver of [the defendant's] ability to appeal the district
court's ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding

thatdefendant waived appeal of district court's denial of pretrial motion by failing to timely
object to magistrate judge's report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge's report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . . ”) (citation
omitted)).
31
Date: July 6, 2021 /s/ Elizabeth A. Preston Deavers_____
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

32

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10378153. Public record. Not legal advice.