Lazuka v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JONATHAN LAZUKA, ) Case No. 1:24-cv-01873

)

Plaintiff, ) JUDGE PATRICIA A. GAUGHAN

)

v. ) MAGISTRATE JUDGE

) REUBEN J. SHEPERD

COMMISSIONER OF SOCIAL SECURITY, )

) REPORT AND RECOMMENDATION

Defendant. )

I. Introduction

Plaintiff, Jonathan Lazuka (“Lazuka”), seeks judicial review of the final decision of the

Commissioner of Social Security denying his application for Disability Insurance Benefits

(“DIB”) under Title II of the Social Security Act. Lazuka raises two issues on review of the

Administrative Law Judge’s (“ALJ”) decision, arguing:

1. The ALJ erroneously failed to comply with the Order of Remand when he failed

to properly evaluate the opinion of the treating neurologist, Dr. Kristen Smith,

and,

2. The ALJ committed harmful error, when at Step Three of the Sequential

Evaluation, he failed to find, during the relevant closed period of time, that

Plaintiff’s seizures did not satisfy the criteria Listing 11.02.

(ECF Doc. 6, p. 1). This matter is before me pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) and

Local Rule 72.2(b). Because the Administrative Law Judge failed to apply proper legal standards

in evaluating the opinion of neurologist Dr. Kristen Smith, I recommend that the

Commissioner’s final decision denying Lazuka’s application for DIB be vacated and that

Lazuka’s case be remanded for further consideration of Dr. Smith’s opinion.

II. Procedural History

On April 10, 2019, Lazuka protectively filed a Title II application for DIB alleging his

disability began December 31, 2018. (Tr. 177). The claim was denied initially and upon

reconsideration. (Tr. 95, 110). Lazuka filed a written request for hearing before an ALJ on

February 21, 2020. (Tr. 128-29). Lazuka, with counsel and a vocational expert (“VE”), testified

before an ALJ on August 14, 2020. (Tr. 31-81).

On July 27, 2021, the ALJ issued a written decision finding Lazuka not disabled. (Tr. 10-

30). The Appeals Council denied his request for review on June 13, 2022, rendering the ALJ’s

decision the final decision of the Commissioner. (Tr. 1-6). On August 3, 2022, Lazuka filed a

Complaint in this Court seeking review of the adverse decision of the Commissioner (Tr. 1033-

37), and on January 3, 2023, the Court accepted the parties Joint Stipulation to Remand to

Commissioner, thereby remanding the matter back to the Commissioner for further proceedings.

(Tr. 1025-26).

Lazuka was scheduled for a hearing before an ALJ on January 31, 2024, but failed to

appear. (Tr. 1015-25). He was scheduled for another hearing on June 27, 2024, and both he, with

counsel, and a VE testified. (Tr. 976-1014). At that hearing counsel for Lazuka requested the

ALJ consider a closed period of disability, December 31, 2018 through September 2023, as

Lazuka had returned to full time employment. (Tr. 983). On August 23, 2024, the ALJ issued a

written decision finding Lazuka not disabled. (Tr. 955-75). Lazuka timely instituted this action

on October 28, 2024. (ECF Doc. 1).

III. Evidence

A. Personal, Educational and Vocational Evidence.

Lazuka was 36 years old on the alleged onset date. (Tr. 24). He has at least a high school

education. (Id.). In the original decision issued on July 27, 2021, the ALJ found Lazuka had past

relevant work as a sales representative – vending and coin machine, DOT #275.357-050, SVP 5,

light exertion; sales agent – business services, DOT #251.357-010, SVP 5, light exertion;

vending machine repairer, DOT #639.281-014, SVP 5, medium exertion, performed at light;

manager – brokerage office, DOT #186.117-034, SVP 8, sedentary exertion; and computer

assistance hardware analyst, DOT #033.167-010, SVP 7, sedentary exertion. (Id.). On remand,

however, the ALJ found that he had no past relevant work. (Tr. 967).

B. Relevant Medical Evidence

Records submitted from the Atrium Medical Group, Inc. show that on October 24, 2016,

Lazuka presented for a new patient visit following a recent hospitalization for a right peripheral

pulmonary embolism (“PE”) discovered in the post-operative phase after a calcaneal fracture and

open reduction internal fixation (“ORIF”). (Tr. 598). Previously, after several days in the

hospital, Lazuka was released with prescriptions for Percocet, Xanax, and Ambien. (Id.). At the

new patient office visit, Lazuka appeared in a walking boot and reported that the pain was much

worse. (Id.). At a subsequent visit on May 3, 2017, Lazuka reported ongoing right ankle pain and

was assessed with generalized anxiety disorder (“GAD”); left ankle degenerative joint disease;

recent PE; status-post right calcaneal fracture, routine healing; and non-intractable epilepsy. (Tr.

606).

On June 20, 2018, EMS was called to the scene of a motor vehicle accident, and on

arrival found Lazuka sitting on the pavement next to a police officer. (Tr. 897). He was “pale in

color and was not making any sense when he talked.” (Id.). Once he arrived at the hospital

Lazuka reported he had not had a seizure in over a year, and when informed he had been

involved in an accident, he did not remember it. (Id.). At discharge, Lazuka was diagnosed with

diastolic hypertension, tongue laceration, motor vehicle collision; seizure, polysubstance abuse,

and electrolyte imbalance. (Tr. 836). A brain CT returned normal results. (Tr. 867). He was

given a return-to-work notice for June 21, 2018, and restricted from driving until permitted by a

physician. (Tr. 839).

Lazuka presented to the emergency department on November 7, 2018, with right calf

pain. (Tr. 346). He was given a chest CT which revealed small bilateral pulmonary emboli in the

segmental pulmonary arteries. (Tr. 347). An ultrasound also revealed an acute deep vein

thrombosis (“DVT”) of the right lower extremity. (Tr. 348). He was started on anti-coagulants.

(Id.). While Lazuka was in the hospital, his wife and mother told doctors that he had been having

seizures more often recently, with the last one occurring about 10 days previously. (Tr. 351). He

had also had episodes of passing out, where his legs give out and he collapses. (Id.). Lazuka

admitted he had been “largely noncompliant” with his medications. (Tr. 359). An EEG

performed on November 8, 2018 was interpreted as a “normal awake and sleep EEG. No

epileptiform discharges, EEG seizures, or lateralizing signs are seen.” (Tr. 295). At discharge it

was noted that Lazuka had tested positive for THC, benzos, opiates, and oxycodone, and he

admitted to current misuse of oxycodone. (Tr. 371).

On November 21, 2018, Lazuka attended an office visit complaining of right-side chest

pain and shortness of breath. (Tr. 340). He had been started on suboxone and appeared “very

verbose” with “increased anxiety” at times. (Id.). He was assessed with pleurisy, pulmonary

embolism, seizure disorder, and opioid dependence with opioid-induced disorder. (Tr. 341).

On December 19, 2018, Lazuka was brought by ambulance to the emergency department

following a seizure. (Tr. 334). His wife reported finding him in bed seizing, where he was blue,

drooping, and apparently choking on his saliva. (Id.). He had been confused postictally, but it

had resolved by the time he arrived at the hospital. (Id.). A CT scan was normal. (Tr. 336).

Lazuka attended a follow up visit for his left calcaneal fracture on December 26, 2018.

(Tr. 331). He was assessed with post-traumatic arthritis of the left subtalar joint; left hind foot

capsulitis-synovitis; residual ankle equinus; and a history of hypercoagulable state with multiple

pulmonary emboli. (Id.).

On January 9, 2019, Lazuka attended an office visit with his neurologist, Kristen Smith,

M.D. (Tr. 290). He was assessed with focal epilepsy and was noted to have had “prior strokes.”

(Id.). He described his seizure from a few weeks prior as his first since starting on Keppra. (Id.).

He also suggested he may be having staring spells, and noted that fevers and sleep deprivation

have been triggers for his seizures. (Id.). On January 31, 2019, Lazuka reported awakening in the

morning with episodes of confusion, and felt he may have had a seizure overnight. (Tr. 654). He

reported he had been doing a slow up titration of his Keppra dosage. (Id.).

At a March 7, 2019 office visit with Dr. Smith, Lazuka reported having three or four

seizures since his most recent visit. (Tr. 291). He also described several occasions when he felt a

seizure was coming but he was able to continue speaking and the feeling subsided. (Id.). He felt

his seizures were becoming more frequent, he felt depressed, and was not “his usual jovial,

happy self.” (Id.). He was assessed with focal epilepsy, anxiety, and was noted to have a clotting

disorder. (Tr. 292). On March 11, 2019, Lazuka reported having another seizure after starting on

Paxil. (Tr. 648).

Lazuka presented at the emergency department on March 19, 2019, complaining of left

thigh pain he felt was consistent with prior DVTs he had experienced. (Tr. 326). He also

believed he may have had a seizure the night before as he woke up feeling confused. (Id.). An

ultrasound was negative for DVT. (Tr. 328). On March 27, 2019, Lazuka reported experiencing

four seizures in the past three weeks. (Tr. 645). He had missed one dose of his anti-seizure

medication in early March. (Id.). A Digicloud EEG was found to be abnormal and indicative of

generalized myoclonic epilepsy. (Tr. 825). On April 10, 2019, Lazuka reported he had been

having increased stress, as well as increased seizure frequency. (Tr. 637). His wife stated that she

has noticed him twitch which led to a seizure, and she further indicated that his personality is

now “flat” and that his thinking appears to be slower. (Id.).

On May 1, 2019, Lazuka was brought to the emergency department by ambulance on an

initial call for calf pain. (Tr. 701). Upon EMS arrival, Lazuka also complained of chest pain and

shortness of breath. (Id.). At the emergency department he experienced a witnessed seizure

lasting about 30 seconds with virtually no postictal period. (Id.).

Examination notes from a May 14, 2019 office visit with Dr. Smith indicated that Lazuka

has not done well on several medications, so they were going to try Onfi to gain better control of

his mood and seizures. (Tr. 813). On June 19, 2019, Lazuka underwent a primary repair of the

right flexor hallucis longus tendon and a full-thickness laceration of the right great toe, and a

removal of a retained foreign body. (Tr. 683).

On September 9, 2019, Dr. Smith noted that Lazuka’s intractable epilepsy was getting

worse despite his medications, and referred him for Vagus Nerve Stimulation (“VNS”) therapy.

(Tr. 811). Lazuka reported having six seizures within the last two weeks, and that he is aware of

some before they start. (Id.). The VNS was implanted in October 2019, and the device was

turned on November 12, 2019. (Tr. 809). He returned for a VNS check on January 7, 2020, and

noted that although he did have three or four seizures after implantation, he had not had one in a

few weeks. (Tr. 933). He and his family agreed that since implantation the seizures that he did

have were less violent and, therefore, less disruptive. (Id.).

On February 5, 2020, at an office visit with Dr. Smith, Lazuka’s family expressed

concern that he might have multiple personalities and were concerned that he may be incapable

of sitting for a deposition with the F.B.I. as he was under investigation for wire fraud. (Tr. 931).

Dr. Smith learned of his history of opioid dependence, so she discontinued his valium

prescription. (Id.). Lazuka also reported he had been having more seizures that come on quickly

but were shorter in duration. (Id.). At an April 13, 2020 office visit, Lazuka stated he had not had

a seizure since early March, but he was having trouble with his voice due to the VNS, and he has

gained significant weight. (Tr. 929).

C. Medical Opinion Evidence

i. State Agency Reviewers

On August 3, 2019, state agency reviewing physician Dimitri Teague, M.D., determined

that Lazuka had only non-exertional physical limitations. (Tr. 91). Dr. Teague opined that

Lazuka was limited to occasional climbing of ramps and stairs but could never climb ladders,

ropes or scaffolds; he was limited to frequent balancing; and he must avoid all exposure to

unprotected heights and heavy moving machinery. (Tr. 91-92). On December 21, 2019, state

agency reviewing physician William Bolz, M.D., adopted the limitations suggested by Dr.

Teague and added the additional limitation restricting Lazuka from commercial driving. (Tr.

105).

On August 4, 2019, state agency reviewing psychologist Maria Yapondjian-Alvarado,

Psy.D., opined that there were no severe mental health impairments established in the record.

(Tr. 89). State agency reviewing psychologist Paul Tangeman, Ph.D. affirmed Dr. Yapondjian-

Alvarado’s opinion on December 20, 2019. (Tr. 103).

ii. Consultative Examiner

On July 8, 2019, Paul Josell, Psy.D., conducted a mental health consultative examination

of Lazuka and determined that he did not qualify for a diagnosis. (Tr. 665-67). He opined that

there were no limitations in the domains of understanding, remembering, and carrying out

instructions; interaction with others; concentration, maintaining persistence and pace; and

adaptation. (Tr. 667).

iii. Medical Source Statement

On May 14, 2019, Dr. Smith opined that Lazuka was not currently able to work, but she

remained hopeful that he could return to work once his seizures were under better control. (Tr.

813). Dr. Smith completed a Seizures Medical Source Statement on May 30, 2019, indicating

Lazuka suffers from grand mal seizures that last 5-15 minutes, as well as absence seizures that

lasted 30-60 seconds. (Tr. 661). She noted that these happen once or twice weekly, or 4-10 times

monthly. (Id.). She noted the seizures were generalized in onset without warning. (Id.). He rarely

has an aura but will bite his tongue and loses control of his bladder. (Tr. 662). Postictally, he

experiences confusion, irritability, anger, rage, frustration, and difficulty communicating. (Id.).

She opined that Lazuka is capable of low stress work and could function normally physically

between seizures. (Id.). He is capable of working at a light exertional level. (Tr. 663). He does

experience associated cognitive and behavioral issues, including short attention span, irritability,

memory problems, and behavior extremes. (Tr. 664). Dr. Smith believed that Lazuka would be

absent four times monthly, and she “believes strongly that [Lazuka] is currently not employable

due to high frequency of seizures in recent months and the significant behavioral effects of his

seizures – causing frontal lobe dysfunction.” (Id.).

On June 26, 2020, Dr. Smith wrote that she had “reviewed the opinion I offered on

5/30/2019. After review of my previously offered opinion and a review of my current treatment

notes, I am now able to affirm that the limitations, in my opinion, continue to be consistent with

my patient’s current level of functioning.” (Tr. 830).

D. Administrative Hearing Evidence

Lazuka first testified before an ALJ on August 14, 2020. (Tr. 31-81). He testified that he

has not had an active driver’s license since he had an accident caused by a seizure in 2018. (Tr.

42-43). He has a high school education and was most recently employed operating his own

business just prior to filing for disability. (Tr. 44). He stated that when he was younger, he had

been non-compliant with his seizure treatment because he was in denial, and he was trying to

hide his seizures from his family. (Tr. 55). He reported that he does not know when he is going

to have a seizure, and that for a couple of days after a seizure he cannot think clearly, and he has

difficulty speaking. (Tr. 57). From the time in question, around 2018, Lazuka stated he has been

having seizures at least once per week, and he could have as many as four in three days. (Tr. 58).

Lazuka further testified that he has been through many cocktails of anti-seizure

medications. (Tr. 59). Because he was having side-effects, and his seizures were not controlled,

he had a VNS implanted near the end of 2018 or the beginning of 2019. (Tr. 59-60). His doctor is

still raising the voltage to get to therapeutic level, which is generally a 12-18-month process. (Tr.

60). He continues to have seizures, but less regularly, with his last one occurring ten days ago,

but the one before that was about a month ago prior to that. (Tr. 62). He did have three the prior

month. (Id.). He has seen improvement in 2020, but he noted the seizures tend to come in waves.

(Id.).

Lazuka mentioned that he has had issues with opiates in the past, but he has not used

them since he started on suboxone. (Tr. 64). He currently assists his two young daughters with

their schoolwork, and he is able to manage his personal hygiene and perform household chores,

unless he is recovering from a seizure. (Tr. 66-67). He reports that 50% of his days are normal,

and the rest he either has a seizure or is recovering from having one. (Tr. 67). He goes on walks

and he stills sees friends and family. (Tr. 68).

Under questioning from his attorney, Lazuka testified that on a bad day he is “completely

out of it” and he spends most of his day in bed. (Tr. 69). He also experiences tremors that are not

full-blown seizures but cause his body to tense up and sometimes cause him to drop things. (Tr.

70). Those occur daily, and at times he does not even realize it is happening. (Id.). He only

experiences an aura before a grand mal seizure, and he tends to have those about once per month.

(Tr. 70-71). He sometimes bites his tongue or loses control of his bladder during grand mal

seizures. (Tr. 72). He believes he is having absence seizures daily. (Id.). After a grand mal

seizure he is confused and sleeps for a long time. (Id.).

The VE, Kenneth Jones, then testified. He classified Lazuka’s past work as a sales agent,

business services, DOT #251.357-010, SVP 5, light exertion as generally and actually

performed; sales representative, vending and coin machines, DOT #275.357-050, SVP 5, light

exertion as generally performed, sedentary as actually performed; vending machine repairer,

DOT #639.281-014, DOT #639.281-014, SVP 5, medium exertion as generally performed, light

as actually performed; and computer systems hardware analyst, DOT #033.167-010, SVP 7,

sedentary exertion level as generally and actually performed. (Tr. 74-76). For her first

hypothetical, the ALJ asked the VE to consider an individual of the same age, educational and

work history as Lazuka whose limitations are non-exertional only and include restrictions to

occasional climbing of ramps and stairs but never climbing ladders, ropes or scaffolds, frequent

balancing, and avoiding all exposure to workplace hazards such as unprotected heights and

moving mechanical parts. (Tr. 77). Such an individual could perform all of Lazuka’s past work,

and could also perform work as a cashier II, DOT #211.462-010, SVP 2, light exertion, with

400,000 jobs in the national economy; as a fast food worker, DOT #311.472-010, SVP 2, light

exertion, with 3,650,000 jobs in the national economy; and sales attendant, DOT #299.677-010,

SVP 2, light exertion, with 295,000 jobs in the national economy. (Tr. 77-78).

For her second hypothetical, the ALJ asked the VE to consider an individual with all of

the same limitations as the individual in the prior hypothetical, but who could also perform

complex tasks, but not at a production rate pace and not with strict production quotas. (Tr. 78).

Such an individual could perform all of Lazuka’s past work, as well as the other jobs identified

with the first hypothetical. (Id.).

For the third hypothetical the ALJ asked the VE to consider all the restrictions of the

second hypothetical, but here would also limit the individual to the performance of detailed but

not complex tasks, meaning he could perform semi-skilled work, and the individual can adapt to

occasional changes in the routine work setting so long as those changes are explained in advance

and implemented gradually. (Tr. 78-79). Such an individual could not perform Lazuka’s past

work but could perform the other jobs indicated in the first two hypotheticals. (Tr. 79). The VE

then noted that employers will not tolerate an employee being off task more than 10% of time

and would tolerate no more than one absence per month. (Id.).

Following a District Court remand, Lazuka appeared for a second hearing before a

different ALJ on June 27, 2024. (Tr. 976-1014). It was noted at the hearing that there were

outstanding medical records being sought from a correctional institution where Lazuka had been

incarcerated, (Tr. 980), and that since his release Lazuka had begun working full-time in

September 2023, and he was therefore seeking benefits for a closed period. (Tr. 983). Lazuka

testified he had been working at Omni Systems since September 18, 2023 as a press operator

making labels. (Tr. 986). His employer is unaware of his medical condition, and Lazuka

indicated his seizures had been less frequent and he had not experienced a tonic-clonic seizure

since April 8, 2023. (Tr. 988). He testified that he took time off from work when he did not feel

right and was concerned a seizure could happen at work. (Id.).

Lazuka further testified that he is re-establishing care with a neurologist following his

release from prison, and while had been taking his medications, he had not been able to refill his

prescription and has been without his medications for about a month. (Tr. 990-91). He stated that

his “shaking seizures” are happening about once or twice per quarter, or roughly every other

month. (Tr. 992). He attributes the decreasing frequency to reduced stress in his life that started

when he was serving his prison sentence. (Tr. 993-94). Before going to prison he had been

experiencing tonic-clonic seizures monthly. (Tr. 996). The period when he was having seizures

most frequently was in 2019 before the VNS was implanted. (Id.). While he does feel the VNS

helped reduce the frequency of the seizures, Lazuka also felt reduced stress and better sleep

habits helped as well. (Tr. 997).

Lazuka also testified to experiencing absence seizures where he feels “a quick jolt.” (Tr.

998-99). He hardly notices them anymore, but those who know him may notice, and it

sometimes causes him to drop what he is holding. (Tr. 999). He also has experienced staring

spells and has had fainting episodes, although these have not occurred for about two or three

years. (Tr. 1001). He admitted to a past addiction to opioids that may have contributed to his

seizures, but he has remained clean since 2019. (Tr. 1003).

Following Lazuka’s testimony, VE Thomas Nimberger testified. (Tr. 1008-11). It was

determined that there was no past relevant work for the VE to consider. (Tr. 1009). For his first

hypothetical the ALJ asked the VE to consider a younger individual with at least a high school

education and no past relevant work; the individual has no exertional limitations but can only

occasionally climb ramps or stairs and never climb ladders, ropes or scaffolds; the individual can

frequently balance; the individual must avoid all exposure to workplace hazards such as

unprotected heights or moving mechanical parts; the individual can perform detailed, but not

complex tasks, meaning the individual is limited to semi-skilled work; the individual cannot

perform tasks at a production rate pace or pursuant to strict production quotas; and the individual

can adapt to occasional changes in the work setting or duties so long as those changes are

explained in advance and gradually implemented. (Id.). The VE opined the individual could

perform work as a packager, DOT #920.587-018, SVP 2, medium exertional level, with 40,000

jobs in the national economy; as an office cleaner, DOT #323.687-014, SVP 2, light exertional

level, with 200,000 jobs in the national economy; and as a marker, DOT #209.587-034, SVP 2,

light exertional level, with 129,000 jobs in the national economy. (Tr. 1010).

Under questioning from Lazuka’s attorney, the VE opined that if the individual were

absent more than four days per month there would be no work in the national economy. (Tr.

1010-11). If the individual were off task 20% of the workday, the VE further opined that there

would be no work in the national economy. (Tr. 1011).

IV. The ALJ’s Decision

In his decision dated August 23, 2024, the ALJ made the following findings:

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

Act through December 31, 2024.

2. The claimant engaged in substantial gainful activity during the following

periods: the 4th quarter of 2023 and the 1st quarter of 2024. (20 CFR

404.1520(b) and 404.1571 et seq.).

3. However, there has been a continuous 12-month period(s) during which

the claimant did not engage in substantial gainful activity.

4. The claimant has the following severe impairments: epilepsy,

osteoarthritis of the left foot, status post fracture and open reduction and

internal fixation, opioid dependence, and anxiety. (20 CFR 404.1520(c)).

5. 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, 404.1526).

6. 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 non-exertional

limitations: he can occasionally climb ramps or stairs, but can never climb

ladders, ropes or scaffolds. He can frequently balance. He must avoid all

exposure to workplace hazards such as unprotected heights and moving

mechanical parts. He can perform detailed but not complex tasks, meaning

he can perform semiskilled work, but not at a production rate pace and not

with strict production quotas. He can adapt to occasional changes in work

setting or routine, so long as those changes are explained in advance and

implemented gradually.

7. The claimant has no past relevant work (20 CFR 404.1565).

8. The claimant was born on September 3, 1982, and was 36 years old, which

is defined as a younger individual age 18-49, on the alleged disability

onset date. (20 CFR 404.1563).

9. The claimant has at least a high school education (20 CFR 404.1564).

10. Transferability of job skills is not an issue because the claimant does not

have past relevant work. (20 CFR 404.1568).

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

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

national economy that the claimant can perform (20 CFR 404.1569 and

404.1569a).

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

Security Act, from December 31, 2018, through the date of this decision

(20 CFR 404.1520(g)).

(Tr. 14-40).

V. Law and Analysis

A. Standard for Disability

Social Security regulations outline a five-step process the ALJ must use to determine

whether a claimant is entitled to benefits:

1. whether the claimant is engaged in substantial gainful activity;

2. if not, whether the claimant has a severe impairment or combination of

impairments;

3. if so, whether that impairment, or combination of impairments, meets or equals

any of the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1;

4. if not, whether the claimant can perform their past relevant work in light of his

RFC; and

5. if not, whether, based on the claimant’s age, education, and work experience, they

can perform other work found in the national economy.

20 C.F.R. § 404.1520(a)(4)(i)-(v)1; Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642-43 (6th

Cir. 2006). The Commissioner is obligated to produce evidence at Step Five, but the claimant

bears the ultimate burden to produce sufficient evidence to prove they are disabled and, thus,

entitled to benefits. 20 C.F.R. § 404.1512(a).

1 The regulations governing DIB claims are found in 20 C.F.R. § 404, et seq. and the regulations

governing SSI claims are found in 20 C.F.R. § 416, et seq. Generally, these regulations are duplicates

and establish the same analytical framework. For ease of analysis, I will cite only to the relevant

regulations in 20 C.F.R. § 404, et seq. unless there is a relevant difference in the regulations.

B. Standard of Review

This Court reviews the Commissioner’s final decision to determine if it is supported by

substantial evidence and whether proper legal standards were applied. 42 U.S.C. § 405(g);

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). However, the substantial

evidence standard is not a high threshold for sufficiency. Biestek v. Berryhill, 587 U.S. 97, 102-

03 (2019). “It means – and means only – ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Id., quoting Consolidated Edison Co. v. NLRB, 305

U.S. 197, 229 (1938). Even if a preponderance of the evidence supports the claimant’s position,

the Commissioner’s decision cannot be overturned “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).

Under this standard, the court cannot decide the facts anew, evaluate credibility, or re-

weigh the evidence. Id. at 476. And “it is not necessary that this court agree with the

Commissioner’s finding,” so long as it meets the substantial evidence standard. Rogers, 486 F.3d

at 241. This is so because the Commissioner enjoys a “zone of choice” within which to decide

cases without court interference. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986).

Even if substantial evidence supported the ALJ’s decision, the court will not uphold that

decision when the Commissioner failed to apply proper legal standards, unless the legal error

was harmless. Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“[A] decision

. . . will not be upheld [when] the SSA fails to follow its own regulations and that error

prejudices a claimant on the merits or deprives the claimant of a substantial right.”); Rabbers v.

Comm’r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009) (“Generally, . . . we review

decisions of administrative agencies for harmless error.”). Furthermore, this Court will not

uphold a decision when the Commissioner’s reasoning does “not build an accurate and logical

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

Ohio 2011). Requiring an accurate and logical bridge ensures that a claimant and the reviewing

court will understand the ALJ’s reasoning, because “[i]f relevant evidence is not mentioned, the

court cannot determine if it was discounted or merely overlooked.” Shrader v. Astrue, No. 11-

13000, 2012 WL 5383120, at *6 (E.D. Mich. Nov. 1, 2012).

VI. Discussion

Lazuka raises two issues for this Court’s review:

1. Did the ALJ erroneously fail to comply with the Order of Remand by failing to

properly evaluate the opinion of the treating neurologist, Dr. Kristen Smith?

2. Did the ALJ commit harmful error when, at Step Three of the sequential

evaluation, he found that Lazuka’s seizures did not satisfy the criteria of Listing

11.02 during the relevant closed period of time?

(ECF Doc. 6, p. 1).

a. The ALJ erred in failing to comply with the Order of Remand as he did not

properly evaluate the opinion of the treating neurologist, Dr. Kristen Smith.

Lazuka contends that the ALJ, despite the mandate provided in the Order of Remand,

again failed to adequately consider the factors of supportability and consistency when evaluating

the opinion of the treating neurologist, Dr. Smith. (ECF Doc 6, p. 11). Lazuka specifically argues

that although the ALJ found Dr. Smith’s opinion unpersuasive owing to the lack of reference in

the records confirming the frequency of his seizures, this conclusion is contrary to the medical

evidence. (Id. at p. 12). Lazuka notes several references throughout the record to instances of

documented and witnessed seizures as well as EEG testing indicative of generalized myoclonic

epilepsy. (Id. at pp. 12-13). He further points to the placement of his VNS in October 2019 as

support for Dr. Smith’s opinion. (Id. at p. 13). Lazuka argues that the ALJ failed to build an

accurate and logical bridge between the evidence and the ALJ’s decision to deny benefits, and

therefore did not comply with the mandate of the federal district court in its reversal of the earlier

decision. (Id. at pp. 14-15).

In response, the Commissioner asserts the ALJ adequately addressed the supportability

and consistency of Dr. Smith’s opinions and thereby did comply with the mandate contained in

the Order of Remand. (ECF Doc. 9, p. 12). Specifically, the ALJ addressed supportability by

referencing Dr. Smith’s treatment notes that documented seizures occurred at a much less

frequent basis than her opinion would suggest. (Id. at p. 13). The Commissioner argues that the

only witnessed seizures documented were twitching seizures observed by Lazuka’s wife, and

that Dr. Smith herself did not witness any seizures and generally reported normal findings in her

examinations. (Id.). Further, Dr. Smith’s opinions were identical, even though the second opinion

post-dated placement of the VNS by several months and was rendered during a period when Dr.

Smith reported Lazuka was doing well and capable of functioning. (Id. at pp. 13-14). Finally, Dr.

Smith’s notes failed to document findings indicative of “significant behavioral effects” from his

seizures, nor did Dr. Smith’s notes indicate a basis for any exertional limitations. (Id. at p. 14).

As to consistency, the Commissioner contends the ALJ wrote that Dr. Smith’s notes

reported only sporadic seizures with little objective confirmation of their frequency, and this was

consistent with the notes of Dr. Maronian prior to placing the VNS, as well as his primary care

provider, Dr. Ashraf. (Id.). The Commissioner further notes that only one seizure has ever been

witnessed by a medical provider throughout the three-year period in question. (Id. at pp. 14-15).

In the Commissioner’s view, Lazuka’s argument is merely an attempt to have the court reweigh

the medical evidence, an exercise beyond its purview. (Id. at p. 15).

When the Appeals Council issues a remand order to an ALJ, the ALJ must “take any

action that is ordered by the Appeals Council and may take any additional action that is not

inconsistent with the Appeals Council’s remand order.” 20 C.F.R. § 404.977(b); Wilson v.

Comm’r of Soc. Sec., 783 F. App’x. 489, 496 (6th Cir. 2019). When a remand order contains

detailed instructions concerning the scope of the remand and the issues to be addressed, “further

proceedings in the trial court or agency from which appeal is taken must be in substantial

compliance with such directions; and if the cause is remanded for a specified purpose, any

proceedings inconsistent therewith is [sic] error.” Mefford v. Gardner, 383 F.2d 748, 758 (6th

Cir. 1967). (“[T]he failure by an ALJ to follow a remand order from the Appeals Council, even if

that failure is allowed to stand by a later Appeals Council ruling, can constitute a reversible error

in federal court. This holds true regardless of whether substantial evidence otherwise supports

the Commissioner’s final decision.”).

In the present case, this Court accepted a Joint Stipulation to Remand to Commissioner

the first ALJ decision rendered July 27, 2021. (Tr. 1026). Accordingly, the Appeals Council

vacated the final decision of the Commissioner to address the hearing decision’s failure to

adequately evaluate the medical source opinions of Dr. Smith, the treating neurologist. (Tr.

1029-30). The Appeals Council ordered the ALJ to “articulate the persuasiveness of all the

medical opinions and prior administrative findings in the case record, including an explanation of

how the [ALJ] considered the factors of supportability and consistency (20 C.F.R. 404.1520c).”

(Tr. 1029).

The ALJ must “articulate how [he] considered the medical opinions” and “how

persuasive [he] find(s) all of the medical opinions.” 20 C.F.R § 416.920c; see Gamble v.

Berryhill, No. 5:16-CV-2869, 2018 WL 1080916 at 5 (N.D Ohio, Feb. 28, 2018). Factors to be

considered include: (1) Supportability; (2) Consistency; (3) Relationship with the claimant,

including length of treatment relationship, frequency of examinations, purpose of the treatment

relationship, extent of the treatment relationship, and examining relationship; (4) Specialization;

and (5) other factors. 20 C.F.R. § 416.920c. Supportability and consistency are considered the

two most important factors; therefore, the regulations dictate that the ALJ “will explain” how the

supportability and consistency factors were considered. 20 C.F.R. § 416.920c.

In his assessment of Dr. Smith’s opinion, the ALJ clearly addressed the factor of

supportability. He noted that “[w]hile [Dr. Smith] treated the claimant, the record did not

confirm the degree of limitations she described.” (Tr. 965). He further added that “the treatment

notes did not make mention of such frequent seizures on an ongoing basis and thus there is no

support for the finding that the claimant would miss work as frequently as Dr. Smith asserted.”

(Id.). The determination that Dr. Smith’s opinion was unpersuasive was clearly driven by

discrepancies between her treatment notes and the suggestion in her opinions that Lazuka would

suffer significantly more frequent seizures than her treatment notes would support.

This clarity with regard to supportability is not reflected with an equally robust

articulation of how the ALJ considered consistency. The only specific reference to consistency is

found where the ALJ wrote, “[s]he did not explain, nor did the record support, the basis for any

exertional limitations.” (Id.). This vague intonation to the record does not create the necessary

accurate and logical bridge that would allow a subsequent reader to understand how this critical

factor was considered.

The Commissioner argues that Dr. Smith’s opinion was, in fact, consistent with the

findings of two other treating physicians, Dr. Maronian, who placed his VNS, and his primary

care physician, Dr. Ashraf. While that may in fact be so, the ALJ did not make any reference in

his discussion of consistency to the findings of other doctors or specific evidence in the record

that was consistent with Dr. Smith’s opinion. This Court is barred from accepting the type of

post-hoc rationalization the Commissioner sets forth, as judicial review of agency action is

limited to the reasoning employed by the agency and should not take into account its position in

litigation. SEC v. Cherney Corp., 332 U.S. 194 (1947). Accordingly, given the lack of

articulation regarding the factor of consistency, I must recommend remand on this basis.

b. The ALJ did not err at Step Three of the sequential evaluation when he

found that Lazuka’s seizures did not satisfy the criteria of Listing 11.02.

Lazuka argues that the evidence established he had experienced the requisite number of

seizures to meet Listing 11.02A. (ECF Doc. 6, p. 15). He specifically points to seizures suffered

May 1, 2019, July 15, 2019, and throughout September 2019 as support for this contention, and

further notes the implantation of a VNS to assist in controlling his seizures and his continuous

attempts to treat his seizures with medication. (Id.). He further testified that while he had

experienced only three or four seizures annually prior to 2018, throughout 2018 and 2019 he was

having seizures weekly. (Id.). Lazuka also notes that his wife wrote on August 1, 2020, that he

could not be left alone with his children because he did not know when he would have a seizure.

(Id. at p.16). He also referred to several occasions when he reported his seizures to his

neurologist, and that he had an EEG that was interpreted as abnormal and indicative of

generalized myoclonic epilepsy. (Id. at p. 17).

The Commissioner responds that the ALJ specifically noted the portions of Listing 11.02

pertaining to generalized tonic-clonic seizures that require the seizures to occur at least once a

month for three consecutive months or at least once every two months for at least four

consecutive months with a marked limitation in physical or mental functioning. 20 C.F.R. § 404,

Subpart P, Appendix 1, Listing 11.02(A),(C). (ECF Doc. 9, pp. 15-16). The Commissioner

further notes that the ALJ discussed that the evidence failed to document the frequency of

seizures adequate to meet the Listing; that there were only sporadic notes of seizures with little

objective confirmation of their frequency; and that Lazuka described episodes of feeling “fuzzy,”

though it was not clear these were actually seizures. (Id. at p. 16). The Commissioner argues that

the ALJ found significant Lazuka’s generally normal findings at physical examinations with no

indication of marked physical restrictions, and that the ALJ considered the four “paragraph B”

criteria found in 11.02(D)(2)-(5) and found no more than moderate limitations. (Id.). The

Commissioner provides the litany of evidence the ALJ cited in determining that Lazuka did not

meet the Listing, and adds that the ALJ acknowledged Lazuka’s EEG findings, evidence from

his treating providers regarding his seizure-related complaints, his typically normal neurological

findings, and the efficacy of his treatment regimen, including his VNS placement. (Id. at pp. 16-

17). He also considered Lazuka’s confessed “poor life choices,” lack of treatment between 2020-

2022, and his work activity in assessing whether he met the Listing. (Id. at p. 18). Finally, the

ALJ considered multiple expert opinions in arriving at his conclusion. (Id.).

At Step Three, a claimant has the burden to show that they have an impairment or

combination of impairments that meets or medically equals the criteria of an impairment listed in

20 C.F.R. § 404, Subpart P, Appendix 1. Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001); 20

C.F.R. § 404.1520(a)(4)(iii). If the claimant meets all of the criteria of a listed impairment, they

are disabled; otherwise, the evaluation proceeds to Step Four. 20 C.F.R. § 404.1520(d)-(e);

Bowen v. Yuckert, 482 U.S. 137, 141 (1987); see also Rabbers, 582 F.3d at 653. (“A claimant

must satisfy all of the criteria to meet the listing.”).

In evaluating whether a claimant meets or equals a listed impairment, an ALJ must

“actually evaluate the evidence, compare it to [the relevant listed impairment], and give an

explained conclusion, in order to facilitate meaningful judicial review.” Reynolds v. Comm’r of

Soc. Sec., 424 F. App’x 411, 416 (6th Cir. 2011) (noting that, without such analysis, it is

impossible for a reviewing court to determine whether substantial evidence supported the

decision). The ALJ “need not discuss listings that the [claimant] clearly does not meet, especially

when the claimant does not raise the listing before the ALJ.” See Sheeks v. Comm’r of SSA, 544

F. App’x 639, 641 (6th Cir. 2013). “If, however, the record raises a substantial question as to

whether the claimant could qualify as disabled under a listing, the ALJ should discuss that

listing.” Id. at 641; see also Reynolds, 424 F. App’x at 415-16 (holding that the ALJ erred by not

conducting any Step Three evaluation of the claimant’s physical impairments when the ALJ

found that the claimant had the severe impairment of back pain).

“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. “Absent such evidence, the ALJ does

not commit reversible error by failing to evaluate a listing at Step Three.” Id. at 433; see also

Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 366 (6th Cir. 2014) (finding harmless error

when a claimant could not show that he could reasonably meet or equal a listing’s criteria).

Here, Lazuka does no more than point to evidence on which the ALJ could have based

his finding to raise a substantial question as to whether he satisfied the listing. Lazuka suggests

that he meets the requirements of Listing 11.02(A) or (C), which reads in pertinent part:

11.02 Epilepsy, documented by a detailed description of a typical seizure and

characterized by A [or] C:

A. Generalized tonic-clonic seizures (see 11.00H1a), occurring at least once a

month for at least 3 consecutive months (see 11.00H4) despite adherence

to prescribed treatment (see 11.00C); or

C. Generalized tonic-clonic seizures (see 11.00H1a), occurring at least once

every 2 months for at least 4 consecutive months (see 11.00H4) despite

adherence to prescribed treatment (see 11.00C); and a marked limitation in

one of the following:

1. Physical functioning (see 11.00G3a); or

2. Understanding, remembering, or applying information (see

11.00G3b(i)); or

3. Interacting with others (see 11.00G3b(ii)); or

4. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii));

or

5. Adapting or managing oneself (see 11.00G3b(iv))

20 C.F.R. § Pt. 404, Subpt. P. App.1.

The ALJ thoroughly and explicitly addressed the evidence he considered in arriving at his

conclusion that Lazuka did not meet Listing 11.02(A) or (C). (ECF Doc 9, pp. 15-18). He

provided a well-informed conclusion making clear to subsequent reviewers exactly how he

reached his determination that the listing was not met. I concur with the Commissioner who

suggests that Lazuka’s recitation of evidence that he believes supports a finding that the Listing

was met amounts to nothing more than an invitation to reweigh the evidence in the case and does

not demonstrate in any way that the ALJ’s findings relative to the Listing lacked support by

substantial evidence. Accordingly, I recommend that the ALJ’s determination that Lazuka’s

seizures did not meet the criteria of Listing 11.02 be affirmed.

VII. Recommendation

Because the Administrative Law Judge failed to apply proper legal standards in

evaluating the opinion of neurologist Dr. Kristen Smith, I recommend that the Commissioner’s

final decision denying Lazuka’s application for disability insurance be vacated and that Lazuka’s

case be remanded for further consideration of Dr. Smith’s opinion. The Administrative Law

Judge need not reconsider whether Lazuka’s seizures satisfy the criteria of Listing 11.02.

Dated: June 17, 2025 JU

Lupa

United States Magistrate Judge

OBJECTIONS

Objections, Review, and Appeal

Within 14 days after being served with a copy of this report and recommendation, a party

may serve and file specific written objections to the proposed findings and recommendations of

the magistrate judge. Rule 72(b)(2), Federal Rules of Civil Procedure; see also 28 U.S.C

636(b)(1); Local Rule 72.3(b). Properly asserted objections shall be reviewed de novo by the

assigned district judge.

3s 2 3

Failure to file objection within the specified time may result in the forfeiture or waiver of

the right to raise the issue on appeal either to the district judge or in subsequent appeal to the

United States Court of Appeals, depending on how or whether the party responds to the report

and recommendations. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be

specific and not merely indicate a general objection to the entirety of the report and

recommendation; “a general objection has the same effect as would a failure to object.” Howard

25

v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). Objections should focus

on specific concerns and not merely restate the arguments in briefs submitted to the magistrate

judge. “A reexamination of the exact same argument that was presented to the Magistrate Judge

without specific objections ‘wastes judicial resources rather than saving them, and runs contrary

to the purpose of the Magistrates Act.” Overholt v. Green, No. 1:17-CV-00186, 2018 WL

3018175, 2 (W.D. Ky. June 15, 2018) quoting Howard. The failure to assert specific objections

may in rare cases be excused in the interests of justice. See United States v. Wandashega, 924

F.3d 868, 878-79 (6th Cir. 2019).