Payne

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

RICHARD PAYNE, CASE NO. 1:25-CV-01842-PAG

Plaintiff, JUDGE PATRICIA A. GAUGHAN

vs. MAGISTRATE JUDGE DARRELL A. CLAY

COMMISSIONER OF THE SOCIAL REPORT AND RECOMMENDATION

SECURITY ADMINISTRATION,

Defendant.

INTRODUCTION

Plaintiff Richard Payne challenges the Commissioner of Social Security’s decision denying

disability insurance benefits (DIB) and supplemental security income (SSI). (ECF #1). The District

Court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). This matter was referred to me

under Local Civil Rule 72.2 to prepare a Report and Recommendation. (Non-document entry

dated Sept. 4, 2025). For the reasons below, I recommend the District Court AFFIRM the

Commissioner’s decision denying DIB and SSI.

PROCEDURAL BACKGROUND

This is the second time Mr. Payne’s claim for benefits is before this court. On August 20,

2020, Mr. Payne applied for DIB and period of disability benefits, alleging disability beginning

June 12, 2020 due to a traumatic brain injury/hematoma, short-/long-term memory loss, bipolar

disorder, post-traumatic stress disorder (PTSD), tinnitus, depression, left-ear deafness, vascular

issues, back pain from broken vertebrae, and vertigo. (Tr. 145, 63). After his claim was denied

initially and on reconsideration, Mr. Payne requested a hearing before an administrative law judge.

(Tr. 87, 98, 102). On August 24, 2022, Mr. Payne (without the aid of a representative) and a

vocational expert (VE) testified before the ALJ. (Tr. 38-62). On December 7, 2022, the ALJ

determined Mr. Payne was not disabled. (Tr. 21-33). On October 16, 2023, the Appeals Council

denied Mr. Payne’s request for review. (Tr. 1-3). Mr. Payne then sought review in this court. (Tr.

717-18; see also ECF #1, Payne v. Comm’r of Soc. Sec., Case No. 1:23-cv-2398 (N.D. Ohio Dec. 18,

2023)). Mr. Payne and the Commissioner jointly stipulated to remand the ALJ’s decision with

instructions to hold a new hearing and issue a new decision. (Tr. 719).

While the proceedings on remand were pending, Mr. Payne applied again for DIB in

December 2023 and also applied for SSI in April 2024. (Tr. 818, 825). After those claims were

denied on initial review, they were consolidated with Mr. Payne’s 2020 claim for DIB for an

administrative hearing before the ALJ. (Tr. 722-23, 746). On April 9, 2025, Mr. Payne (now

represented by counsel) and a VE testified before the ALJ. (Tr. 668-91). On June 16, 2025, the ALJ

again found Mr. Payne was not disabled (Tr. 609-27). Mr. Payne did not file exceptions to the

Appeals Council, nor did it assume jurisdiction within 60 days, so the second hearing decision is

the final decision of the Commissioner. (See 20 C.F.R. §§ 404.984(d), 416.1484(d)). Mr. Payne

timely filed this action. (ECF #1).

FACTUAL BACKGROUND

I. Personal and Vocational Evidence

Mr. Payne was 39 years old on the original application date and 43 years old at the second

hearing. (See Tr. 75, 674). He completed 11th grade and previously worked as a cook and a kitchen

helper. (Tr. 675-76, 685-86).

II. Relevant Medical Evidence

Mr. Payne’s medical records span more than 1,500 pages and document treatment for

multiple medical and psychological conditions between February 2020 and February 2025. His

arguments before this court challenge the analysis of his migraine headaches and residuals from his

traumatic brain injuries as well as his mental health conditions. (See ECF #10 at PageID 2196-08).

I thus discuss the record as it relates to those conditions.

A. Migraine headaches and traumatic brain injury

Mr. Payne has a history of intermittent headaches stemming from three traumatic brain

injuries (TBI). He sustained the first TBI during a 2004 motorcycle accident that also caused many

broken vertebrae in his back and neck. (Tr. 538, 462). A 2020 MRI showed a “[s]mall left

preseptal/left frontal scalp hematoma,” “no intracranial hemorrhage or midline shift,” and

evidence of previous “left frontotemporal craniotomy.” (Tr. 341). In January 2021, Mr. Payne

experienced a headache during a consultative psychological evaluation that prevented him from

participating fully and affected both his diagnostic scores and the final opinion. (Tr. 465, 468-71).

In February 2021, Mr. Payne reported “constant headaches” to his psychiatrist. (Tr. 456). In March

2021, he complained of headaches every other day and he was prescribed propranolol for

headache control and sumatriptan to treat breakthrough headaches.1 (Tr. 538, 540). By the end of

March, he reported propranolol had helped and his headaches decreased in intensity, but not

1 Propranolol is a beta blocker commonly prescribed to reduce blood pressure but is

also used to treat migraine headaches. It is also referred to in the record under the brand name

Inderal. See Propranolol, MedlinePlus, http://medlineplus.gov/druginfo/meds/a682607.html (last

accessed Sept. 10, 2026).

Sumatriptan is a selective serotonin receptor agonist prescribed to treat the symptoms of

migraine headaches. It does not stop migraine headaches nor reduce the frequency of headaches.

It is also referred to in the record under the brand name Imitrex. See Sumatriptan, MedlinePlus,

http://medlineplus.gov/druginfo/meds/a614029.html (last accessed Sept. 10, 2026).

frequency. (Tr. 535). His dosage of propranolol was increased and he was also prescribed Elavil,

both as an antidepressant and to help his migraines.2 (Id.). The records of his next visit in May

2021 do not address his headaches, though they were listed under his active problems. (See Tr.

532-34).

Mr. Payne’s headaches are next mentioned in the record in June 2023 when he suffered his

second TBI. In June 2023, paramedics took him to the emergency room after he was assaulted and

struck in the head multiple times. (Tr. 1585). A CT scan of his head “demonstrated a large acute

left epidural hematoma with mass effect and accompanying skull fracture” and he was referred for

neurosurgery. (Tr. 1591). Later treatment notes reported he underwent a “craniotomy in the

posterior aspect of the head” that “removed [an] intracranial hematoma” though the treatment

notes for that procedure are not in the record. (See Tr. 923, 950).

In July 2023, Mr. Payne complained of headaches and reported taking medications.

(Tr. 923). He was diagnosed with post-traumatic headaches that month. (Tr. 950). In August, he

reported an increase in headaches and that his Imitrex (brand-name sumatriptan) worked initially

but wore off after about an hour and so his dosage was increased. (Tr. 1463). But by October

2023, he reported he “still had daily headaches and has not been on his regular sumatriptan or

Inderal” (brand-name propranolol). (Tr. 921).

In December 2023, Mr. Payne suffered his third TBI. He was a passenger in a van that

collided head-on with another vehicle, throwing him head-first through the windshield. (See Tr.

1723; see also Tr. 679-80). In January 2024, Mr. Payne reported daily headaches. (Tr. 2112). An

2 Elavil is a brand name for amitriptyline, an antidepressant commonly prescribed to

treat depression but also used to prevent migraine headaches. See Amitriptyline, MedlinePlus,

http://medlineplus.gov/druginfo/meds/a682388.html (last accessed Sept. 10, 2026).

MRI of his brain taken that month found a “pattern is highly suspect for/consistent with

traumatic brain injury/post-concussive type process.” (Tr. 2097). In March, he complained he still

experienced headaches and pressure across his face and he was restarted on propranolol and Elavil

for headaches, as well as other conditions. (Tr. 919). Though in May, he reported about three

headaches per week. (Tr. 1857). By June, he reported he “sometimes gets some he[ad]aches.” (Tr.

901). In December, he reported his “migraines are also doing well.” (Tr. 2069).

B. Mental health conditions

Mr. Payne has a history of depression with suicidal ideation and anxiety. From May to

December 2020, he saw a psychiatrist monthly and the resulting mental status examinations noted

a depressed or anxious mood with otherwise normal findings. (Tr. 450, 453, 456, 459). Parallel to

his mental health treatment in 2020, he also received inpatient treatment for symptoms of drug

and alcohol abuse. (See, e.g., Tr. 306, 271-73, 288).

In January 2021, Mr. Payne underwent a consultative psychiatric examination in

connection with his first application for benefits. (Tr. 461-71). The examiner, Michael Faust,

Ph.D., diagnosed him with PTSD, recurrent and severe major depressive disorder, and opioid and

alcohol use disorders. (Tr. 468). Mr. Payne complained of being easily startled, anxious, frequent

nightmares, panic attacks, depression, twice-weekly crying spells, sleep difficulties, headaches,

racing thoughts, and irritability. (Tr. 464). In addition to medication, he reported being previously

in counseling, but not recently. (Tr. 464).

At Mr. Payne’s next psychiatry appointment in February 2021, his “[d]epression and

anxiety [were] ongoing but stabilizing gradually on the current medication regimen.” (Tr. 486). A

mental status examination yielded fair-to-good findings. (Id.). Later in February and again in July,

Mr. Payne was noted to be “functioning at baseline” with “no recurrence of depressive symptoms.”

(Tr. 488, 583). By November 2021, he was doing “fairly well” with an improved mood and stability

but occasional struggles with anxiety. (Tr. 1367). Around this time, Mr. Payne had been working as

a chef. (Id.; see also Tr. 612).

The next mental health treatment records are from July 2023 when Mr. Payne went to the

emergency room after attempting suicide when he was overwhelmed by personal crisis. (Tr. 928-

29). Six weeks before, he had been assaulted and hospitalized for four days and then over the

ensuing weeks, he lost his job, lost his apartment, his wife asked for a divorce, and his father had

been verbally harassing him. (See Tr. 929). He also reported stopping taking medications in part

because of a lapse in insurance coverage and because he was tired of taking medications. (Id.). He

was restarted on medications, though they required some recalibration, and he worked with a

therapist. (Tr. 935, 941, 942, 947, 948, 950). On discharge, he denied suicidal ideation, had good

insight into his condition and the need for treatment, had a mild deficit in recent and remote

memory, and had no deficit in attention or concentration. (Tr. 925).

After discharge, Mr. Payne enrolled in a residential substance addiction treatment

program. (See Tr. 1375, 1502, 1515). He was prescribed medications, but they required tailoring

the dosage to respond to worsening symptoms and last all day while limiting the side-effects. (See

Tr. 1437, 1456 (adjusting medications for increased anxiety), 1463 (adjusting dosage due to

wearing off early), 1470 (adjusting to reduce side effect of troubled sleep)). He also participated in

counseling. (Tr. 1551-52, 1554). His mental status examinations noted a depressed mood some

days but noted otherwise normal findings. (Tr. 1434, 1439, 1451). By late August, he reported

worsening depression and nightmares of suicidal ideation. (Tr. 1477, 1484). He was discharged at

the end of August to a sober living facility. (Tr. 1532).

In September 2023, he presented again to the emergency room with suicidal ideation on

the advice of his therapist to seek further evaluation and treatment after discussing those thoughts

in a session. (Tr. 1639). On admission, he had a blunted affect and denied active suicidal thinking

but endorsed constant passive suicidal thoughts. (Tr. 1641). He denied feeling worse than his

discharge from the hospital in July and reported many of his medications had changed since then.

(Tr. 1644). His medication dosages were reduced. (Tr. 1649). His mental status examinations

noted an okay mood, fair attention and concentration, and poor insight and judgment into his

conditions. (Tr. 1647). On discharge, he demonstrated a euthymic mood, made jokes, and had

good insight and judgment, and no suicidal ideation. (Tr. 1657).

But Mr. Payne was readmitted later in September after he attempted suicide upon learning

his wife was having an affair. (Tr. 1684). He reported a depressed mood, disturbed sleep,

anhedonia, and auditory hallucinations. (Id.). After admission, he endorsed some symptoms of

depression and had some difficulty acquiring all his medications. (Tr. 1690). A mental status

examination noted his suicidal ideation became passive but it remained ongoing, a depressed

mood, fair attention and concentration, and good insight and judgment. (Tr. 1688). He was

discharged after his symptoms “markedly improved” with him taking his full medication regimen.

(Tr. 1698). In October 2023, he returned to his doctor and demonstrated a normal mood and

affect along with good judgment and insight. (Tr. 921-22).

In August 2024, Mr. Payne attended another consultative psychiatric examination in

connection with his second application for benefits. (Tr. 2049-53). The examiner, Thomas Evans,

Ph.D., diagnosed Mr. Payne with unspecified depressive and anxiety disorders. (Tr. 2052). Mr.

Payne reported being depressed on a daily basis with twice-weekly crying spells, but Dr. Evans did

not observe signs of depression during the evaluation. (Tr. 2050). Mr. Payne also reported

“unremitting” anxiety on a daily basis, endorsed various physical symptoms of anxiety, and denied

experiencing panic attacks, but Dr. Evans did not observe signs of anxiety during the evaluation.

(Tr. 2051). Mr. Payne reported taking his medications as prescribed, but that he only had

counseling while in his sober living facility. (Tr. 2052). A mental status examination noted normal

mood and affect, no hallucinations, and adequate judgment. (Tr. 2051-52).

III. Relevant Opinion Evidence

A. Opinions issued before the 2024 remand

On January 5, 2021, Mr. Payne underwent a consultative psychological examination with

Michael Faust, Ph.D., in connection with his first disability application. (Tr. 461-71). Dr. Faust

diagnosed Mr. Payne with PTSD, recurrent and severe major depressive disorder, opioid use

disorder, and alcohol use disorder. (Tr. 468). Dr. Faust noted Mr. Payne would become frustrated

and emotional when his memory or thinking were taxed and complained of increasing headache

pain over the session that prevented administering the Wechsler Memory Scale. (Tr. 461, 468).

Mr. Payne completed Wechsler Adult Intelligence Scale testing, though Dr. Faust considered his

score invalid and lower than expected because of his headache pain. (Tr. 468). Mr. Payne scored

“extremely low” on intelligence ability, scoring below the bottom 0.1 percentile of full-scale

intelligence with an IQ of 49. (Tr. 467-68).

Dr. Faust opined Mr. Payne:

• “[C]an be expected to experience difficulty with understanding, remembering

and carrying out instructions related to ongoing symptoms of depression and

PTSD”;

• Has “some limitations in persistence and work pace, particularly when

frustrated, and he also demonstrates impairment in attention and

concentration”;

• Has “limitations regarding responding appropriately to supervision or to

coworkers in an employment setting”; and

• Has “limitations in his ability to respond appropriately to work pressures in

an employment setting.”

(Tr. 468-70). Dr. Faust also opined Mr. Payne would be unable to manage his own finances.

(Tr. 470).

On February 8, 2021, state agency psychological consultant Kristen Haskins, Psy.D.,

reviewed Mr. Payne’s file, including Dr. Faust’s examination report. (Tr. 70-72). First, Dr. Haskins

opined Mr. Payne was moderately limited in his ability to remember locations, work-like

procedures, and to understand and remember detailed instructions, but not otherwise significantly

limited in understanding and memory. (Tr. 71). Dr. Haskins explained Mr. Payne can “perform

simple, routine and repetitive tasks. 1-2 steps.” (Id.). Second, Dr. Haskins opined Mr. Payne was

moderately limited in his ability to carry out detailed instructions, maintain attention and

concentration, sustain an ordinary routine without special supervision, work in coordination with

or in proximity to others without being distracted by them, and complete a normal schedule

without interruptions from psychological symptoms, but was otherwise not limited or not

significantly limited in sustaining concentration and persistence. (Id.). Dr. Haskins explained Mr.

Payne can “perform simple, routine and repetitive tasks in a setting that does not have fast-pace

demand[s]” but “[w]hen symptoms increase, he will occasionally need flexibility in work schedule,

taking breaks, and pacing.” (Id.). Third, Dr. Haskins opined Mr. Payne was moderately limited in

his ability to interact appropriately with the general public, accept instructions, respond

appropriately to criticism from supervisors, and get along with coworkers or peers without

distracting them or exhibiting behavioral extremes, but he was otherwise not limited or not

significantly limited in social interaction. (Id.). Dr. Haskins explained that Mr. Payne “should have

no interactions with the public and only brief and superficial interaction with co-workers and with

no tandem tasks involved.” (Id.). Last, Dr. Haskins opined Mr. Payne was moderately limited in his

ability to respond appropriately to changes in the work setting and set realistic goals or make plans

independently of others, but he was otherwise not limited or not significantly limited in adaption.

(Tr. 72). Dr. Haskins explained Mr. Payne can “work in a setting where there are well-defined work

goals and can carry out a simple routine despite minor changes in the work setting” but he “will

need major changes explained beforehand and gradually implemented to allow [him] time to

adjust to the new expectations.” (Id.). On reconsideration review in June 2021, state agency

psychological consultant Leslie Rudy, Ph.D., reviewed updated records and affirmed Dr. Haskins’

findings. (Tr. 81-83).

B. Opinions issued after the 2024 remand

In connection with his second disability application, on August 22, 2024, Mr. Payne

underwent a consultative psychological examination with Dr. Evans. (Tr. 2049-53). When

describing Mr. Payne’s limitations in understanding, remembering, and carrying out instructions,

Dr. Evans noted:

The claimant last completed the 11th grade. He was in regular classes throughout

school. No formal cognitive testing was conducted during today’s appointment. He

had no difficulties understanding and answering questions posed during today’s

appointment. He would not appear to have any difficulties understanding and

carrying out simple to moderately complex instructions in a workplace setting.

(Tr. 2052). When describing Mr. Payne’s limitations in maintaining attention, concentration,

persistence, and pace and in performing simple and multi-step tasks, Dr. Evans noted:

The claimant stated that since his head injury he has had significant difficulties with

long-and short-term memory. He did struggle somewhat recalling fairly simple

information during the clinical interview. He performed poorly on the mental status

examination. He stated that he had to quit his last job because he could no longer

do it due to memory problems.

(Id.). When describing Mr. Payne’s limitations in responding appropriately to supervision and to

coworkers, Dr. Evans noted:

The claimant reported that prior to his second head injury, he was always able to get

along well with supervisors and coworkers. Since the last head injury, he is short

tempered and argumentative. He was quite pleasant and cooperative during today’s

appointment.

(Tr. 2053). When describing Mr. Payne’s limitations in responding appropriately to work

pressures, Dr. Evans noted:

The claimant reported ongoing suicidal ideation and appears to have poor coping

skills. He stated that he contemplated checking himself in the psychiatric hospital

last week due to suicidal ideation. He denied current plan or intent.

(Id.).

On August 31, 2024, state agency psychological consultant Joan Williams, Ph.D., reviewed

Mr. Payne’s file from after his case was remanded, including Dr. Evans’s examination report.

(Tr. 728-31, 739-40). First, Dr. Williams opined Mr. Payne was moderately limited in his ability to

understand and remember detailed instructions, but not otherwise significantly limited in

understanding and memory. (Tr. 730, 739). Dr. Williams explained Mr. Payne can “understand

and remember simple, repetitive instructions in a work setting that can be learned after a short

demonstration.” (Id.). Second, Dr. Williams opined Mr. Payne was moderately limited in his ability

to carry out detailed instructions and to maintain attention and concentration, but not otherwise

significantly limited in sustaining concentration and persistence. (Id.). Dr. Williams explained Mr.

Payne can “sustain attention and concentration on simple, routine tasks in a work setting.” (Id.).

Third, Dr. Williams opined Mr. Payne was moderately limited in his ability to accept instructions,

respond appropriately to criticism from supervisors, and get along with coworkers or peers without

distracting them or exhibiting behavioral extremes, but he was otherwise not limited or not

significantly limited in social interaction. (Tr. 731, 740). Dr. Williams explained Mr. Payne can

“interact with coworkers and supervisors appropriately on a superficial basis regarding work-related

activities” but he “is likely to engender irritation in others due to unreliability.” (Id.). Last, Dr.

Williams opined Mr. Payne was markedly limited in his ability to respond appropriately to changes

in the work setting, but he was otherwise not limited or not significantly limited in adaption. (Id.).

Dr. Williams explained Mr. Payne will “present as if unable to withstand external requirements

and pressures.” (Id.).

IV. Relevant Testimonial Evidence

A. First hearing

In the first hearing in August 2022, Mr. Payne was not aided by counsel. (Tr. 40). Mr.

Payne was in a severe dirt bike accident when he was 23 where he broke all his vertebrae and

suffered a hematoma. (Tr. 50). He lost his hearing in his left ear, which has rendered him unable

to drive. (Tr. 50, 46). A “fake material” was placed into his skull as a result of the accident. (Tr.

48). He was left with nerve damage that has caused progressive degradation of his memory. (Tr. 50,

52). His memory loss affected his ability to hold down jobs. (Tr. 42). Similarly, in his daily life, he

would forget to do things, where things go in the house, or what was happening in books he was

reading. (Tr. 51-52).

Mr. Payne explained he stopped looking for work because he was very depressed and full of

anxiety. (Tr. 49). His depression saps his motivation as if there were a weight on him. (Tr. 53).

Some days he does not get out of bed. (Id.). He has at times been suicidal, though one of his

medications had worsened his suicidal thoughts. (Tr. 53). When he gets anxious, he will freeze up,

his mind will “go blank,” and he will “forget everything.” (Tr. 56-57). His anxiety is brought on by

stress, loud noises, or people speaking in the wrong tone. (Tr. 56).

B. Second hearing

In the second hearing on April 9, 2025, Mr. Payne was represented by counsel. (Tr. 668).

Mr. Payne explained he cannot work because he cannot reach or bend; he struggles to stay

motivated, on task, and focused; and he had been hospitalized multiple times for suicidal ideation.

(Tr. 678). His depression and anxiety make him impatient, frustrated, and irritable, as well as cause

difficulty sleeping. (Tr. 679, 683). He must write everything down and still struggles remembering

tasks. (See Tr. 679). He last worked in 2024 preparing food in a hotel kitchen. (Tr. 676). He

worked for about two to three weeks before his memory issues and pain while standing were too

much for him. (Id.). He had done similar work in 2021, but quit for similar reasons. (Id.). His

memory loss caused him to struggle to remember details of his work history in the hearing. (Tr.

677).

Mr. Payne has suffered three head injuries. The first was when he was in a dirt bike

accident at age 23 and he broke his neck and almost all the vertebrae in his back. (See Tr. 679; see

also Tr. 50). The second was in 2023 when he was assaulted near his apartment. (Tr. 679; see also

Tr. 1585). The third was also in 2023 when the transportation van of the treatment center he was

in got into a head-on collision and he was thrown through the windshield. (Tr. 679; see also

Tr. 1723). He suffered seven herniated and two bulging discs. (Tr. 680).

After the 2023 motor-vehicle accident, Mr. Payne had at least 12 cervical epidurals to treat

back pain and the next step in his treatment plan is to have several nerve endings burned.

(Tr. 677, 681). He also began using a cane to walk and to stand at all times, even if to step off a

curb. (Tr. 681, 684). He also takes gabapentin for the pain, among other medications. (Tr. 682).

Mr. Payne treats his depression and anxiety primarily through medications from his

primary care physician. (Tr. 678). He does make counseling appointments when he feels the need

to talk to someone. (See id.; Tr. 683). His lack of transportation makes it difficult to keep regularly

scheduled appointments. (Tr. 681). He reported his medication is helpful some, but not all, of the

time and he has both good and bad days. (Tr. 679).

At the time of the hearing, Mr. Payne had been homeless for nine months. (Tr. 680). His

daily activities thus involve a daily struggle to find where to stay and what to eat. (Id.). He relies on

friends and family for transportation. (See Tr. 675). While he had a driver’s license in the past, he

did not have one at the time of the hearing because he could not afford the cost of reinstatement.

(Tr. 675). He avoids going to grocery stores unless he absolutely must. (Tr. 682). Instead, he

typically gets food from food banks. (Tr. 683). It is extremely difficult for him to walk day-to-day

and short distances such as from the car to the room he used for the hearing. (Tr. 682). He

estimated he could stand without his cane for a minute or two but he would have to hold onto

something. (Tr. 684). He has not tried to lift weight due to pain but estimated he could lift five or

ten pounds if he were lucky. (Id.).

STANDARD FOR DISABILITY

Eligibility for benefits turns on the existence of a disability. 42 U.S.C. § 423(a).

“Disability” is defined as the “inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in death or

which has lasted or can be expected to last for a continuous period of not less than 12 months.” Id.

§ 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a).

The Commissioner follows a five-step evaluation process—found at 20 C.F.R. §§ 404.1520

and 416.920—to determine whether a claimant is disabled:

1. Was claimant engaged in a substantial gainful activity?

2. Did claimant have a medically determinable impairment, or a combination

of impairments, which is “severe,” defined as one which substantially limits

an individual’s ability to perform basic work activities?

3. Does the severe impairment meet one of the listed impairments?

4. What is claimant’s residual functional capacity and can claimant perform

past relevant work?

5. Can claimant do any other work considering his or her residual functional

capacity, age, education, and work experience?

Under this five-step sequential analysis, the claimant has the burden of proof in Steps One

through Four. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts

to the Commissioner at Step Five to prove whether the claimant has the residual functional

capacity (RFC) to perform available work in the national economy. Id. The ALJ considers the

claimant’s RFC, age, education, and past work experience to determine whether the claimant

could perform other work. Id. Only if a claimant satisfies each element of the analysis, including

inability to do other work, and meets the duration requirements, is the claimant deemed disabled.

20 C.F.R. §§ 404.1520(b)-(f), 416.920(b)-(f); see also Walters, 127 F.3d at 529.

THE ALJ’S DECISION

At Step One, the ALJ determined Mr. Payne had engaged in substantial gainful activity

during 2021 and 2022, but otherwise had not worked since the date he claimed his disability

began. (Tr. 612). At Step Two, the ALJ identified obesity, lumbar and cervical degenerative disc

disease, varicose veins, anxiety, depression/bipolar disorder, PTSD, a substance use disorder,

residuals from a 2004 TBI/status post-hematoma and frontotemporal craniotomy, and migraine

headaches as severe impairments. (Tr. 613). At Step Three, the ALJ found Mr. Payne’s

impairments did not meet or medically equal the requirements of a listed impairment. (Tr. 613-

16).

At Step Four, the ALJ determined Mr. Payne’s RFC as follows:

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

in 20 C.F.R. 416.967(b) except no climbing of ladders, ropes, or scaffolds; occasional

climbing of ramps/stairs, balancing, stooping, kneeling, crouching, and crawling;

should avoid unprotected heights and hazardous machinery; can tolerate no more

than moderate noise level as defined in the SCO; can understand, remember, and

carry out simple instructions; can make simple work-related decisions; cannot

perform work requiring a specific production rate pace, such as assembly-line work,

or an hourly production quota; can meet production requirements that allow a

flexible and goal-oriented pace; can maintain the focus, persistence, concentration,

pace, and attention to engage in such tasks for two-hour increments, for eight-hour

workdays, within the confines of normal work breaks and lunch periods; can deal

with occasional changes in a routine work setting; can tolerate occasional interactions

with supervisors and coworkers, but cannot interact with the general public as a job

requirement; can tolerate superficial interactions with coworkers, defined as should

not engage in tasks that involve arbitration, negotiation, confrontation, directing the

work of others, persuading others, or being responsible for the safety or welfare of

others, and brief interactions, meaning no sustained communication or problem-

solving; and no tandem tasks.

(Tr. 617). The ALJ concluded Mr. Payne could not perform his past work as a cook. (Tr. 625). At

Step Five, the ALJ determined Mr. Payne could perform other work in the national economy,

including as a mail clerk, marker, and sorter. (Tr. 626). Thus, the ALJ concluded Mr. Payne was

not disabled. (Tr. 627).

STANDARD OF REVIEW

In reviewing the denial of Social Security benefits, the court “must affirm the

Commissioner’s conclusions absent a determination that the Commissioner has failed to apply the

correct legal standards or has made findings of fact unsupported by substantial evidence in the

record.” Walters, 127 F.3d at 528. The Commissioner’s findings “as to any fact if supported by

substantial evidence shall be conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833

(6th Cir. 2006) (citing 42 U.S.C. § 405(g)). “Substantial evidence” is “more than a scintilla of

evidence but less than a preponderance and is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Besaw v. Sec’y of Health & Hum. Servs., 966 F.2d 1028,

1030 (6th Cir. 1992). But “a substantiality of evidence evaluation does not permit a selective

reading of the record. Substantiality of evidence must be based upon the record taken as a whole.

Substantial evidence is not simply some evidence, or even a great deal of evidence. Rather, the

substantiality of evidence must take into account whatever in the record fairly detracts from its

weight.” Brooks v. Comm’r of Soc. Sec., 531 F.App’x 636, 641 (6th Cir. 2013) (cleaned up).

In determining whether substantial evidence supports the Commissioner’s findings, the

court does not review the evidence de novo, make credibility determinations, or weigh the

evidence. Brainard v. Sec’y of Health & Hum. Servs., 889 F.2d 679, 681 (6th Cir. 1989). Even if

substantial evidence (or indeed a preponderance of the evidence) supports a claimant’s position,

the court cannot overturn “so long as substantial evidence also supports the conclusion reached by

the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). This is because there is a

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

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

Apart from considering whether substantial evidence supports the Commissioner’s

decision, the court must determine whether proper legal standards were applied. The failure to

apply correct legal standards is grounds for reversal. Walters, 127 F.3d at 528. Even if substantial

evidence supports the ALJ’s decision, the court must overturn when an agency does not follow its

own regulations and thereby prejudices or deprives the claimant of substantial rights. Wilson v.

Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004).

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

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

accurate and logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F.Supp.2d

875, 877 (N.D. Ohio 2011) (internal quotations omitted); accord Shrader v. Astrue, No. 11-13000,

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

Court cannot determine if it was discounted or merely overlooked.”).

DISCUSSION

Mr. Payne argues the ALJ erred by omitting without explanation the limitations in medical

opinions the ALJ found persuasive, applying an impermissible “sit and squirm” test, and

improperly assessing his migraine headaches and TBI’s at Step Three. (ECF #10 at PageID 2196,

2200, 2201).

I. Whether the ALJ properly explained the omission of certain limitations in the

psychological opinions.

Mr. Payne first argues the ALJ erred by not incorporating limitations contained in medical

opinions the ALJ found persuasive and not explaining those omissions. (ECF #10 at PageID 2196-

99). The Commissioner responds that the ALJ properly rejected the consultative examiners’

opined limitations, explained the basis for those rejections, and substantial evidence supports the

ALJ’s explanations. (ECF #12 at PageID 2226-31).

The ALJ must assess a claimant’s RFC “based on all the relevant medical and other

evidence” of record, including the medical opinions. Reeves v. Comm’r of Soc. Sec., 618 F.App’x 267,

275 (6th Cir. 2015) (quoting 20 C.F.R. § 416.945(a)(3)). But the ALJ does not have to recite the

opinion “verbatim” in the RFC. Id. Nor must the ALJ incorporate every limitation from a medical

source’s recommendation, even if the ALJ finds that medical source persuasive. Kinney v. Comm’r of

Soc. Sec., No. 23-3889, 2024 WL 2273365, at *3 (6th Cir. May 20, 2024). But “if the ALJ’s ‘RFC

assessment conflicts with an opinion from a medical source, the [ALJ] must explain why the

opinion was not adopted.’” Id. (quoting Social Security Ruling (SSR) 96-8p, 1996 WL 374184, at

*7 (July 2, 1996)) (alteration in original).

Specifically, Mr. Payne contends the ALJ omitted without explanation three limitations: he

(1) could perform simple, routine, one-to-two-step tasks in a setting without fast pace demands and

occasional flexibility in work schedule, breaks, and pacing for when his symptoms would increase;

(2) could understand and remember simple, repetitive instructions, but it was likely that he would

engender irritation in others due to unreliability; and (3) he would be expected to experience

difficulty with understanding, remembering, and carrying out instructions and have some

limitations in persistence and work pace. (See ECF #10 at PageID 2196-97).

Mr. Payne relies on Kinney v. Comm’r of Soc. Sec., an unpublished Sixth Circuit case, to

argue the ALJ “should incorporate the limitations set forth by a persuasive source or proffer an

explanation as to why the opinion was not adopted.” (ECF #10 at PageID 2199). In Kinney, the

Sixth Circuit reversed an ALJ’s decision that found a medical opinion “consistent with and

supported by the record as a whole” and “persuasive” but which omitted without explanation a

limitation contained therein requiring flexible breaks. 2024 WL 2273365, at *5. The court

determined that “although the ALJ was not required to incorporate the flexible break scheduling

limitation, the failure to do so without explaining its omission warrant[ed] reversal” because the

ALJ found the opinion persuasive. Id. at *9. But here the ALJ found the prior administrative

findings from before the 2024 remand “mostly persuasive,” Dr. Faust’s consultative opinion “not

fully persuasive,” Dr. Evans’ consultative opinion “not fully persuasive,” and the prior

administrative findings from after the 2024 remand “partially persuasive.” (Tr. 623-25). Other

district courts in this district have distinguished Kinney when the ALJ finds an opinion less than

fully persuasive. See, e.g., Haahr v. Comm’r of Soc. Sec., No. 3:23-cv-2159, 2024 WL 5242214, at *4

(N.D. Ohio Dec. 30, 2024). Thus, the district court could reject Mr. Payne’s argument as

overreading Kinney to apply to opinions the ALJ partially rejected. But even were Kinney squarely

applicable, the ALJ explained the reasoning for why the omitted limitations were not adopted.

A. 2021 state agency opinion that Mr. Payne is limited to simple, routine, and one-

to-two step tasks and he needs a flexible schedule when his symptoms increase.

The first omission Mr. Payne raises is the state agency consultants in 2021 limited him to

simple, routine, and one-to-two-step tasks and needing flexibility in his schedule when his

symptoms increase. (ECF #10 at PageID 2196-97). During the state agency review conducted

before the 2024 remand, state agency psychological consultants opined Mr. Payne can “perform

simple, routine and repetitive tasks” with “1-2 steps” and “simple, routine and repetitive tasks in a

setting that does not have fast-pace demand” but “[w]hen [his] symptoms increase, he will

occasionally need flexibility in work schedule, taking breaks, and pacing.” (Tr. 71, 81-83).

The ALJ analyzed that opinion as follows:

. . . More specifically, state agency psychologists who reviewed this record in 2021

said the claimant had work-related mental limitations in general alignment with the

mental limitations the undersigned assesses the claimant as having. These opinions

are mostly persuasive because they are mostly internally supported and because they

are mostly consistent with the evidence, and lack of evidence, concerning the

claimant’s mental functioning since June 12, 2020, including the evidence, and lack

of evidence, referenced in this decision. Aside from suicidal ideation in the context

of alcohol use, the claimant’s mental status examinations were generally normal.

That said, the undersigned has not adopted all the above-referenced state agency

psychologists’ opinions in toto including their description of the claimant as being

able to perform one-to-two-step tasks. This is because such a description does not

speak to the claimant’s maximum abilities. In addition, Social Security rules do not

speak about a claimant’s ability to understand, remember, and apply information in

terms of steps. Nor does the Dictionary of Occupational Titles. Consequently, the

undersigned has again not adopted this source’s wording as her own.

* * *

The above-referenced state agency psychologists also said the claimant would

“occasionally need flexibility in work schedule, taking breaks, and pacing” when

symptoms increased. These opinions are also vague because these sources did not

indicate the frequency of times the claimant’s symptoms increased since the June 12,

2020 alleged onset date, what symptoms they are referring to, and how many of these

times the claimant “occasionally [would] need flexibility in work schedule, taking

breaks, and pacing.” More importantly, the record taken whole does not support the

claimant would have needed “flexibility in work schedule, taking breaks, and pacing”

since June 12, 2020 if he worked within the parameters of his assessed residual

functional capacity, a fact supported by the evidence, and lack of evidence, referenced

in this decision, including the fact the claimant engaged in substantial gainful activity

in 2021 and 2022.

(Tr. 623-24) (cleaned up).

The ALJ explained why not all the limitations were adopted. First, to the ALJ, the wording

of the one-to-two-step-task limitation was inapt because neither the Social Security rules nor the

Dictionary of Occupational Titles “describe a claimant’s ability to understand, remember, and apply

information in terms of steps.” (Tr. 623). Instead, the ALJ found Mr. Payne can “understand,

remember, and carry out simple instructions” and “make simple work-related decisions.” (Tr. 617).

Other courts in this district have accepted as adequate the explanation that the wording of simple

tasks is more appropriate than a limitation to a specific number of steps. See, e.g., Briggs v. Comm'r of

Soc. Sec., No. 1:24-cv-947, 2025 WL 1322659, at *20 (N.D. Ohio May 7, 2025), report and

recommendation adopted, 2025 WL 2673390 (N.D. Ohio Sept. 18, 2025). Because the ALJ explained

that “simple tasks” is, in the ALJ’s view, more in line with Social Security terminology than a

specific number of steps, the ALJ properly explained why the opinion was not adopted.

Second, the ALJ found the opined limitation that “[w]hen [Mr. Payne’s] symptoms

increase, he will occasionally need flexibility in work schedule, taking breaks, and pacing” both

vague and unsupported by the record. (Tr. 624). Vagueness, or the failure to propose specific

functional limitations, is a valid factor on which the ALJ may rely in assessing an opinion’s

persuasiveness. See Quisenberry v. Comm’r of Soc. Sec., 757 F.App’x 422, 434 (6th Cir. 2018)

(affirming the ALJ’s conclusion the discounted opinion was “quite vague”). The ALJ found the

opinion vague because the state agency consultants “did not indicate the frequency of times the

claimant’s symptoms increased . . . what symptoms they are referring to, and how many of these

times” Mr. Payne would need additional flexibility. (See Tr. 624). Thus, the ALJ explained the

limitation was not adopted in part because it was unclear when the additional limitation would

apply to Mr. Payne and what it would precisely require.

The ALJ also found “the record taken [as a] whole does not support” the specific limitation

for additional flexibility and breaks when Mr. Payne’s symptoms worsen, even though the ALJ

found the opinion overall was “mostly internally supported” by and “mostly consistent with the

evidence.” (Tr. 624, 623). Social security regulations require the ALJ to consider how much the

record and the source’s explanation supports an opinion. See 20 C.F.R. §§ 404.1520c(c)(1), (b)(2);

416.920c(c)(1), (b)(2). Mr. Payne argues the opinion was supported by and consistent with the

records of his mental health diagnoses, psychiatric hospitalizations, and suicidal ideation. (ECF

#10 at PageID 21987-98). But the ALJ also thought the opinion was not wholly unpersuasive but

“mostly internally supported” and “mostly consistent.” (Tr. 623) (emphasis added). So bolstering the

opinion overall does not show the ALJ mis-evaluated the specific limitation at issue. And pointing

to evidence that Mr. Payne was hospitalized (and unable to work at all) when his symptoms are

worse does not show Mr. Payne could have worked despite those symptoms with the aid of added

breaks and a flexible schedule. Because the ALJ explained that the limitation for added breaks and

flexibility when Mr. Payne’s symptoms worsen is both vague and not supported by the evidence,

the ALJ adequately explained why that limitation was not included in the RFC.

B. 2024 state agency opinion that Mr. Payne would engender irritation in others

due to unreliability.

The second omission Mr. Payne raises is the state agency consultants in 2024 opined he

would have limitations in memory, persistence, work pace, and social interaction. (ECF #10 at

PageID 2196-97). In the administrative process after the 2024 remand, the state agency

psychological consultants opined that Mr. Payne can “understand and remember simple, repetitive

instructions in a work setting that can be learned after a short demonstration” and can “interact

with coworkers and supervisors appropriately on a superficial basis regarding work-related

activities” but he “is likely to engender irritation in others due to unreliability.” (Tr. 730-31).

The ALJ analyzed this opinion as follows:

Finally, this record includes opinions about the claimant’s residual functional

capacity offered by a state agency psychologist who reviewed this record on August

31, 2024. According to this source, the claimant had a mental residual functional

capacity generally in alignment with the assessed mental residual functional capacity.

However, the psychologist found the claimant had marked limitation in adapting or

managing oneself and found “[C]laimant will present as if unable to withstand

external requirements and pressures.” This limitation is not further defined and does

not give function by function limitations. A marked limitation is not consistent with

the record either. While the claimant was hospitalized in July 2023 after a head injury

and, in the context of alcohol use and suicidal ideation, and reported suicidal

ideation in the August 2024 consultative examination, the consultative examiner

found the claimant capable of managing his own finances and having adequate

insight and social judgment, which is not consistent with marked limitation in

adapting or managing oneself. Further, mental status examination in May 2024

reflected good insight and judgment with normal mood and affect. This source’s

opinions are partially persuasive.

(Tr. 625) (citations omitted). By finding the state agency consultant opined Mr. Payne “had a

mental residual functional capacity generally in alignment with the assessed mental residual

functional capacity,” the ALJ thought the opinion and the RFC did not conflict. The sole area of

conflict the ALJ identified was in the area of adapting or managing oneself and the ALJ did not

mention limitations in understanding and remembering instructions or social interactions.

The ALJ must only explain why an opinion was not adopted “if the ALJ’s ‘RFC assessment

conflicts with an opinion from a medical source.’” See Kinney, 2024 WL 2273365, at *3 (quoting

SSR 96-8p, 1996 WL 374184, at *7). But the ALJ need not recite the opinion “verbatim” in the

RFC. Reeves, 618 F.App’x at 275. When the RFC “reflects the limitations” in an opinion, the ALJ

need not provide further explanation for his reasoning. Wilds v. Comm’r of Soc. Sec., No. 24-5504,

2025 WL 1001806, at *5 (6th Cir. Mar. 31, 2025). Thus, if RFC reflects the limitations in the

opinion, the ALJ does not have to explain further.

The RFC and the 2024 prior administrative findings do not conflict in describing Mr.

Payne’s limitations in understanding and memory. The RFC finds, in relevant part, that Mr. Payne

“can understand, remember, and carry out simple instructions.” (Tr. 617). The 2024 prior

administrative findings opined Mr. Payne “could understand and remember simple repetitive

instructions.” (Tr. 730-731, 739-740). Though the RFC does not require the instructions be

repetitive, the RFC does reduce the complexity of Mr. Payne’s work by limiting him to making

“simple work-related decisions.” (Tr. 617). Thus, the RFC reflected the opinion’s limitations in

understanding and memory and the ALJ was not obligated to explain further. See Wilds, 2025 WL

1001806, at *5.

Next, the RFC does not contain a specific social limitation to accommodate potential

irritation by Mr. Payne’s coworkers, though it does contain other social limitations. The RFC

finds, in relevant part, that Mr. Payne can have “occasional” and “superficial” interactions with

supervisors and coworkers, but no interactions with the general public. (See Tr. 617). The 2024

prior administrative findings opined Mr. Payne can “interact with coworkers and supervisors

appropriately on a superficial basis regarding work-related activities” though he is “likely to

engender irritation in others due to unreliability.” (Tr. 730-731, 739-740). The RFC thus

straightforwardly reflects the limitation to superficial interactions with coworkers and supervisors.

Though the RFC does not include any social limitation expressly intended to reduce

potential irritation Mr. Payne’s future coworkers may have, the RFC does additionally limit him to

occasional interactions with supervisors and coworkers. Limiting the frequency of interactions Mr.

Payne has with coworkers would help mitigate potential irritation he may engender. As the

opinion expressed a speculative and future irritation by coworkers and not a specific vocational

limitation, there was no error in the ALJ using more concrete terminology of “occasional”

interactions. See Thomas v. Comm’r of Soc. Sec., No. 3:25-cv-441, 2025 WL 2774862, at *13 (N.D.

Ohio Sept. 30, 2025), report and recommendation adopted, 2026 WL 882833 (N.D. Ohio Mar. 31,

2026) (noting the ALJ converted a speculative opinion that the claimant “might do best with tasks

he already knows well how to perform” into a concrete limitation to “work that can be learned in

30 days, or less, with simple routine tasks.”). Thus, the RFC reflects the spirit of the opinion’s

social limitations, though it uses more concrete vocational terms, and so the ALJ was not obligated

to provide any further explanation.

C. Dr. Faust’s opinion that Mr. Paye would be expected to experience difficulty

with understanding, remembering, and carrying out instructions and have some

limitations in persistence and work pace.

The third omission Mr. Payne raises is Dr. Faust’s opinion that he would have difficulty

with understanding, remembering, and carrying out instructions and he exhibited attention

deficits and a low tolerance for the stress of testing, so he would have some limitations in

persistence and work pace. (ECF #10 at PageID 2197) (citing Tr. 469-70). In his January 2021

consultative report, Dr. Faust opined Mr. Payne “can be expected to experience difficulty with

understanding, remembering and carrying out instructions related to ongoing symptoms of

depression and PTSD” and he has “some limitations in persistence and work pace, particularly

when frustrated, and he also demonstrates impairment in attention and concentration.” (Tr. 469-

70).

The ALJ analyzed Dr. Faust’s opinion as follows:

The opinions of the above-referenced reviewing state agency psychologist are also

uncontradicted in the sense no other medical source, acceptable or otherwise, has

described the claimant as having had a more restricted mental residual functional

capacity since the June 12, 2020, alleged onset date. This includes a consulting

psychologist who evaluated the claimant on January 5, 2021. According to this

source, the claimant had problems understanding, remembering, and carrying out

instructions due to depression and post-traumatic stress disorder. This source also

said the claimant had some limitations with respect to persistence and work pace,

and with respect to the claimant’s ability to interact with others. However, this source

did not offer specific work-related limitations. Although the opinion is supported by

the examination, the examiner also noted the claimant’s headache during the exam

as affecting performance. The opinion is not fully consistent with mental status

examinations showing cooperative attitude, normal speech and mood, linear, logical,

and goal-oriented thought process, oriented times four, grossly intact memory, and

fair to good judgment. Therefore, the opinions are not fully persuasive or probative.

(Tr. 624) (citations omitted).

The ALJ found not fully persuasive Dr. Faust’s opinion that Mr. Payne “had some

limitations with respect to persistence and work pace, and with respect to the claimant’s ability to

interact with others.” To the ALJ, Dr. Faust “did not offer specific work-related limitations,” Mr.

Payne’s “headache during the exam” affected his performance, and the opinion was “not fully

consistent with mental status examinations” yielding findings the ALJ found generally benign. (See

Tr. 624). These are each adequate explanations for why a particular limitation would not be

adopted.

As discussed above, vagueness, or the failure to provide specific functional limitations, is a

valid reason for rejecting an opinion. See Quisenberry, 757 F.App’x at 434. The limitations Mr.

Payne argues were improperly ignored are that he “can be expected to experience difficulty with

understanding, remembering and carrying out instructions”; has “some limitations in persistence

and work pace;” and “demonstrates impairment in attention and concentration.” (Tr. 469-70)

(emphasis added). While terms such as “experience difficulty,” “some limitation” and

“impairment” each convey meaning in ordinary parlance, they are vague in the context of Social

Security terminology. See, e.g., Martin v. Comm’r of Soc. Sec., No. 1:25-cv-17, 2026 WL 738089, at *3

(E.D. Tenn. Mar. 16, 2026) (finding “would have difficulty” performing certain tasks vague); Hollis

v. Comm’r of Soc. Sec., No. 1:25-cv-867, 2026 WL 41113, at *11 (N.D. Ohio Jan. 7, 2026) (finding

depression “would limit” maintaining attention and concentration vague), report and

recommendation adopted, 2026 WL 243912 (N.D. Ohio Jan. 29, 2026); Katelyn M. v. Comm’r of Soc.

Sec., No. 2:23-cv-12276, 2024 WL 4124675, at *10 (E.D. Mich. Sept. 9, 2024) (finding “somewhat

impaired” vague). Thus, the ALJ properly explained that the limitations from Dr. Faust’s opinion

were omitted because they were vague.

Next, the ALJ noted Mr. Payne’s “headache during the exam” affected his performance

during Dr. Faust’s consultative examination. (Tr. 624). Social Security regulations require the ALJ

to consider how much the record and the source’s explanation supports an opinion. See 20 C.F.R.

§§ 404.1520c(c)(1), (b)(2); 416.920c(c)(1), (b)(2). Dr. Faust noted Mr. Payne held his head and

complained of increasing headache pain over the session and became frustrated and emotional

when his memory or thinking were taxed. (Tr. 468). Dr. Faust was unable to administer the

Wechsler Memory Scale and Mr. Payne’s score on the Wechsler Adult Intelligence Scale was

“extremely low” because of his headache and presumptively invalid. (Tr. 461, 467-68). The ALJ did

not state any other inferences or conclusions drawn from that fact beyond observing the

examination was affected. Thus, the ALJ accurately noted that Dr. Faust’s examination of Mr.

Payne may not be representative of his residual functional capacity because of his headache.

Third, the ALJ found Dr. Faust’s opinion was “not fully consistent with mental status

examinations showing cooperative attitude, normal speech and mood, linear, logical, and goal-

oriented thought process, oriented times four, grossly intact memory, and fair to good judgment.”

(Tr. 624) (citing Tr. 1356-68). Like supportability, an ALJ must consider how much an opinion’s

limitations are consistent with other evidence in the record. See 20 C.F.R. §§ 404.1520c(c)(2),

(b)(2); 416,920c(c)(2), (b)(2).

Mr. Payne argues the ALJ did not consider or cite “any of the exhibits which documented

contrary findings.” (ECF #10 at PageID 2199) (citing Tr. 1552, 1647). This argument is essentially

that the ALJ cherry-picked the mental status examinations to justify omitting Dr. Faust’s opined

limitations. Such a claim is rarely successful in the Sixth Circuit because it so often depends on

finding the omitted evidence of a greater weight than the evidence that the ALJ discussed. See

DeLong v. Comm’r of Soc. Sec., 748 F.3d 723, 726 (6th Cir. 2014); see also White v. Comm’r of Soc.

Sec., 572 F.3d 272, 284 (6th Cir. 2009) (“[W]e see little indication that the ALJ improperly cherry-

picked evidence; the same process can be described more neutrally as weighing the evidence.”). In

the rare cases where a cherry-picking claim is successful, there is usually a misrepresentation of the

record as a whole. See, e.g., Cross o/b/o K.C. v. Comm’r of Soc. Sec., No. 5:20-cv-2787, 2022 WL

574260, at *5 (N.D. Ohio Feb. 25, 2022).

While Mr. Payne is correct that the ALJ cited only one examination in 2021 when

analyzing Dr. Faust’s opinion, that does not show the ALJ cherry-picked the evidence. The ALJ

discussed the numerous examination findings elsewhere in the decision and there no requirement

of “tidy packaging” where the examinations must appear next to Dr. Faust’s opinion; rather the

court “read[s] the ALJ’s decision as a whole and with common sense.” See Buckhannon ex rel. J.H. v.

Astrue, 368 F.App’x 674, 678-79 (7th Cir. 2010). Elsewhere in the decision, the ALJ extensively

cites the numerous examination findings in the record:

The undersigned has also considered what the claimant’s representative did not

mention. Namely, that this record is strewn since the June 12, 2020, alleged onset

date with descriptions of normal physical and mental signs to include being alert and

properly oriented, and not being in distress, and to having normal breathing, normal

cardiac signs, normal spinal motion, normal muscle strength, normal gait, normal

moods, normal memory, normal attention and concentration normal behavior, and

good insight and judgment (see, for example, Exs. 1F, p. 11; 2F, p. 13; 4F, pps. 4, 7,

10, and 13; 6F, pps. 2 and 4; 8F, pps. 3 and 6; 10F, pps. 43 and 60; 11F, pps. 11, 19,

21, 26, 27, 40, 41, 47, 59, and 63; 12F, pps. 5, 9, 10, and 12; 13F, pps. 7 and 10;

14F, pps. 93, 103, 114, 121, 128; 17F, pps. 11, 16, 30, 31, 37, 39, 43, 49, and 53;

and 19F, pps. 9 and 15; see also exhibit 11E).

(Tr. 618) (citing Tr. 279, 309, 450, 453, 456, 459, 486, 488, 509, 512, 583, 600, 901, 909, 911,

916, 917, 930, 931, 937, 949, 953, 1341, 1345, 1346, 1348, 1362, 1365, 1461, 1471, 1482, 1489,

1496, 1859, 1864, 1878, 1879, 1885, 1887, 1891, 1897, 1901, 2062, 233-64). This discussion is

far from perfect: some citations do not show examination findings (see Tr. 1345, 1346, 1348,

2062), one citation (Exhibit 19F) has no page 15, and the ALJ inexplicably cites to Mr. Payne’s

education records (Tr. 233-64). But the records the ALJ cites correctly document numerous mental

status examinations with findings that match the ALJ’s summary of the evidence that is

inconsistent with Dr. Faust’s opinion.

In another example, the ALJ recounted the examinations in 2024:

More recently, on March 21, 2024, April 9, 2024, and May 6, 2024, the claimant was

again described as not being in distress (see Ex. 11F, pps. 19, 21, and 26). The

claimant was also described on April 9, 2024, and May 6, 2024, as having a normal

gait and normal balance and stance (see Ex. 11F, pps. 19 and 26), and he was

described on April 9, 2024, as being neurologically intact and as having normal

lumbar motion, normal muscle strength in all four extremities, normal reflexes, and

normal sensation (see Ex. 11F, pps. 26 and 27).

(Tr. 619) (citing Tr. 909, 911, 916-17). The ALJ then compared those to previous examinations:

The above-described normal physical signs are also replicated in other exhibits (see,

for example, Exs. 11F, pps. 19, 21, 26, 40, 41, 47, 59, and 63; 13F, pps. 7 and 10; 14F,

pps. 93, 103, 114, 121, 128; 17F, pps. 11, 16, 30, 37, 39, 43, 49, and 53; and 19F,

p. 9).

(Id.) (citing Tr. 930, 931, 937, 949, 953, 1362, 1365, 1461, 1471, 1482, 1489, 1496, 1859, 1864,

1878, 1885, 1887, 1891, 1897, 1901, 2062). These extensive citations show the ALJ considered

the record as a whole when discussing the mental status examinations.

Mr. Payne points to two examinations as exemplars of what the ALJ ignored showing fair

insight and judgment in August 2023 and poor insight and judgment and chronic suicidal

ideation in September 2023. (See ECF #10 at PageID 2199) (citing Tr. 1552, 1647). While the ALJ

did not cite those examinations, these omissions do not overcome the ALJ’s extensive discussion

of the record above. An ALJ is not required to “discuss every piece of evidence in the record” for

substantial evidence to support the decision. Showalter v. Kijakazi, No. 22-5718, 2023 WL

2523304, at *3 (6th Cir. Mar. 15, 2023). Moreover, the ALJ considered other records from mid-

2023. The ALJ cited examinations in July 2023 when Mr. Payne’s judgment was rated “needs

improvement” and “[c]an make reasonable decisions about ordinary activities of daily living and

necessary medical care recommendations” while his insight was described as “help seeking” and

“good.” (Tr. 619) (citing Tr. 937, 953). The ALJ also cited multiple mental status examinations in

August 2023 that found Mr. Payne was “[a]lert and oriented x3, no motor deficits, speech fluent.

No acute neuro deficits.” (Tr. 619) (citing Tr. 1461, 1482, 1489, 1496). The court cannot decide

anew which examinations taken in mid-2023 were most representative of Mr. Payne’s mental state

at that time. See Brainard, 889 F.2d at 681; see also White, 572 F.3d at 284 (noting cherry-picking

claims “can be described more neutrally as weighing the evidence”).

In sum, the ALJ adequately explained that the limitations in Dr. Faust’s opinion were

omitted because they were vague, Mr. Payne’s headache affected Dr. Faust’s examination findings,

and Dr. Faust’s opinion was inconsistent with mental status examinations.

II. “Sit and squirm” test and the ALJ’s personal observations

Mr. Payne argues the ALJ erred in applying a “sit and squirm” test by basing the decision

on the ALJ’s personal observation of Mr. Payne’s ability to understand and answer questions

during the hearing. (ECF #10 at PageID 2200-01). The Commissioner responds that an ALJ may

rely on personal observations without amounting to an impermissible “sit and squirm” test so long

as the ALJ also relies on other evidence beyond personal observation. (ECF #12 at PageID

2231-33).

When the only factor the ALJ relies upon in denying disability is the claimant’s demeanor

at the hearing, the ALJ has erred by employing the “infamous and thoroughly discredited ‘sit and

squirm’ test.” See Martin v. Sec’y of Health and Hum. Servs., 735 F.2d 1008, 1010 (6th Cir. 1984).

Accordingly, an “ALJ must cite some other evidence for denying a claim for pain in addition to

personal observation.” But that does not mean an ALJ cannot consider a claimant’s observed

behavior. To the contrary, a claimant’s behavior at a hearing is a “material, relevant, and

admissible” factor for the ALJ to consider. Sorrell v. Comm’r of Soc. Sec., 656 F.App’x 162, 171-72

(6th Cir. 2016). Social Security regulations also state the agency considers “other evidence” in

evaluating a claimant’s symptoms, including, among other things “observations by our employees

and other persons.” 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

Here, the ALJ did rely on personal observations of Mr. Payne’s behavior in the hearings,

but those observations were not the sole consideration. As Mr. Payne recounts, “the ALJ used five

pages to detail symptoms and conclusions,” some of which contained personal observations of

him. (ECF #10 at PageID 2200) (citing Tr. 614-16, 621-22). In those cited pages, the ALJ laid out

61 bullet points (many duplicative) of evidence describing whether Mr. Payne’s mental conditions

met or equaled a listing and supporting the mental RFC. (Tr. 614-16, 621-22). Of the 34 bullet

points provided at Step Three, 12 are personal observations of Mr. Payne by the ALJ or other

agency employees about his ability to understand and answer questions, interact adequately,

concentrate (one of which was repeated twice), and manage stress during claims interviews and two

hearings. (See Tr. 614-16). The other 22 bullet points detail Mr. Payne’s statements, his daily

activities, and his treatment records. (Id.). Of the 27 bullet points provided at Step Four, all 12

personal observations (complete with the duplicate) reappear alongside findings about Mr. Payne’s

statements, the lack of complaints to treatment providers, and his treatment records. (See Tr. 621-

22). In addition to those bullet points, the ALJ provided pages of other analysis of the treatment

records (Tr. 618-20), daily activities (Tr. 620), and opinion evidence (Tr. 623-25).

Thus, while the ALJ did consider personal observations of Mr. Payne in deciding his claim,

the ALJ did so as one part of an extensive discussion of several types of evidence. The mere

presence of personal observations does not mean the ALJ automatically applied an impermissible

“sit-and-squirm” test; rather the ALJ discharged the administrative function of considering the

entire record and using that to determine Mr. Payne’s RFC.

I thus decline to recommend remand on this basis.

III. Evaluation of migraine headaches and TBI at Step Three

Last, Mr. Payne argues that at Step Three the ALJ misevaluated his migraine headaches and

TBI. (ECF #10 at PageID 2202-08). The Commissioner responds that the ALJ properly evaluated

Mr. Payne’s migraines under the appropriate listing and substantial evidence supported the finding

that he did not medically equal the listing. (ECF #12 at PageID 2233-36). The Commissioner also

contends the ALJ properly evaluated the appropriate listing for TBI and Mr. Payne’s argument

amounts to an impermissible invitation to reweigh the evidence. (Id. at PageID 2237). Mr. Payne

replies his headaches were frequent enough to meet the requirements of the listing and the

Commissioner’s arguments amount to an impermissible post-hoc rationalization. (ECF #13 at

PageID 2242).

At Step Three, a claimant will be found disabled if the claimed impairment meets or equals

one of the listings in the Listing of Impairments. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1526,

416.920(a)(4)(iii), 416.926; Turner v. Comm’r of Soc. Sec., 381 F.App’x. 488, 491 (6th Cir. 2010).

The Listing of Impairments in Subpart P, Appendix 1 of the regulations describes impairments the

Commissioner considers to be “severe enough to prevent an individual from doing any gainful

activity, regardless of his or her age, education, or work experience.” 20 C.F.R. §§ 404.1525(a),

416.925(a). An impairment medically equals a listed impairment when “it is at least equal in

severity and duration to the criteria of [the] listed impairment.” Id. §§ 404.1526(a), 416.926(a).

Medical equivalency can be found by comparing the factual findings regarding a claimant’s

impairment with a closely analogous listed impairment. Id. §§ 404.1526(b)(2), 416.926(b)(2).

When considering whether a claimant’s impairment meets or equals a listed impairment,

an ALJ must evaluate the evidence, compare it to the relevant listed impairment, and give an

explained conclusion to facilitate meaningful judicial review, without which is it impossible to say

whether substantial evidence supports the ALJ’s decision at Step Three. Reynolds v. Comm’r of Soc.

Sec., 424 F.App’x. 411, 416 (6th Cir. 2011). The ALJ need only analyze the relevant listing when

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

under a listing. Smith-Johnson v. Comm’r of Soc. Sec., 579 F.App’x 426, 432 (6th Cir. 2014). To raise

a substantial question, the claimant must point to specific evidence demonstrating she reasonably

could meet or equal every requirement of the listing. Id.

A. The record did not present a substantial question whether Mr. Payne’s migraine

headaches medically equaled the listing for epilepsy.

Migraine headaches are not a listed impairment but, under Social Security Ruling 19-4p,

headaches can medically equal the most closely analogous listed impairment of epilepsy, governed

by paragraphs B and D of Listing 11.02. See SSR 19-4p, 2019 WL 4169635 (Aug. 26, 2019).

“Paragraph B of listing 11.02 requires dyscognitive seizures occurring at least once a week for at

least 3 consecutive months despite adherence to prescribed treatment” while “Paragraph D of

listing 11.02 requires dyscognitive seizures occurring at least once every 2 weeks for at least 3

consecutive months despite adherence to prescribed treatment and marked limitation in one area

of functioning.” Id., 2019 WL 4169635, at *7. To evaluate whether a claimant’s headaches are

equal in severity and duration to dyscognitive seizures in Listing 11.02(B) and (D), the ALJ

considers:

A detailed description from an [accepted medical source] of a typical headache event,

including all associated phenomena (for example premonitory symptoms, aura,

duration, intensity, and accompanying symptoms); the frequency of headache events;

adherence to prescribed treatment; side effects of treatment (for example, many

medications used for treating a primary headache disorder can produce drowsiness,

confusion, or inattention); and limitations in functioning that may be associated with

the primary headache disorder or effects of its treatment, such as interference with

activity during the day (for example, the need for a darkened and quiet room, having

to lie down without moving, a sleep disturbance that affects daytime activities, or

other related needs and limitations).

* * *

[W]e also consider whether the overall effects of the primary headache disorder on

functioning results in marked limitation in: Physical functioning; understanding,

remembering, or applying information; interacting with others; concentrating,

persisting, or maintaining pace; or adapting or managing oneself.

Id. The Listings define the phrase “despite adherence to prescribed treatment” to mean that “you

have taken medication(s) or followed other treatment procedures for your neurological disorder(s)

as prescribed by a physician for three consecutive months but your impairment continues to meet

the other listing requirements despite this treatment.” See Listing 11.00(C), 20 C.F.R. Pt. 404,

Subpt. P, App’x 1.

I note as an initial matter, the ALJ did not make findings specifically about Mr. Payne’s

migraines at Step Three but did make general findings about the severity of the mental limitations

he faced. (See Tr. 613-16). In the ALJ’s defense, in his prehearing brief Mr. Payne did not

specifically argue (nor waive) whether his migraines medically equaled a listing and at the start of

the hearing Mr. Payne stated “I’m not making a Step Three argument.” (See Tr. 889, 674). While

this does not operate as a forfeiture of the issue, as the ALJ made findings at Step Three, it also

does not mean the ALJ necessarily erred by not specifically addressing Mr. Payne’s migraines. See

Wells v. Comm’r of Soc. Sec., No. 1:22-cv-1969, 2023 WL 7923863, at *8-9 (N.D. Ohio Oct. 13,

2023) (noting that while there is no forfeiture despite the listings not being expressly raised before

the ALJ because the ALJ addressed other listings, at the same time the ALJ was not obligated to

specifically address a particular listing), report and recommendation adopted, 2024 WL 1340187 (N.D.

Ohio Mar. 29, 2024). This is so because 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 Soc. Sec., 544 F.App’x 639, 641 (6th Cir. 2013). The ALJ should discuss the

relevant listing, however, where the record raises “a substantial question as to whether [the

claimant] could qualify as disabled” under a listing. Smith-Johnson, 579 F.App’x at 432. To raise a

substantial question as to whether a claimant satisfied a listing, the claimant must point to specific

evidence that shows 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.

The record does not raise a substantial question whether Mr. Payne’s headaches are

medically equal in severity to epilepsy under Listing 11.02. Mr. Payne points to a diagnosis of post-

traumatic headaches in July 2023 for which he was prescribed sumatriptan and then he

complained of headaches in August, October, and December 2023 as well as March, May, and July

2024. (ECF #9 at PageID 2202) (citing Tr. 950, 956, 1463, 921, 1732, 919, 910, 908, 899). In July

2023, Mr. Payne complained of headaches, reported taking medications, and was prescribed

sumatriptan. (Tr. 923, 950, 956). He reported increasing headaches in August 2023 and his

Imitrex (a brand-name for sumatriptan) was temporarily effective. (Tr. 1463). But by October 2023,

Mr. Payne “still had daily headaches” but he “has not been on his regular Sumatriptan or Inderal.”

(Tr. 921). While Mr. Payne was experiencing significant personal hardship at the time, he

nonetheless was not adhering to his prescribed headache treatment. (See Tr. 921). The note from

December 2023 is a CT scan result that recounts “HISTORY: Blunt trauma, sudden severe

headache” but does not indicate whether Mr. Payne was experiencing headaches at that time or if

the note merely described his symptoms in June 2023 after he was assaulted and struck in the head

multiple times. (See Tr. 1732; see also Tr. 1585).

In January 2024, Mr. Payne reported daily headaches during a physical therapy

appointment. (Tr. 2112). The note does not state anything about whether he took his medications

and states “no known medications.” (Tr. 2113). Then on March 7, 2024, Mr. Payne complained

he still experienced “a lot of headaches and pressure across his face” and he reported “has not been

on the amitriptyline [Elavil] in some time either” so his doctor planned “we will go back on

propranolol” and “will use Elavil” for headaches, as well as other conditions. (Tr. 919). This

indicates Mr. Payne was no longer taking his headache medications before March 7, 2024 as they

had been previously prescribed in March 2021. (See Tr. 535 (“We will try Elavil”), 538 (“Patient

was started on propranolol and sumatriptan for headaches”)). Mr. Payne endorsed headaches on

April 9, 2024 (Tr. 910) and reported about three headaches per week on May 7, 2024 (Tr. 908).

But by June 17, 2024, he reported he “sometimes gets some he[ad]aches.” (Tr. 901). In December,

he reported his “migraines are also doing well.” (Tr. 2069).

To be sure, these records show Mr. Payne suffered chronic headaches despite treatment,

but they do not raise a substantial question whether those headaches medically equaled all the

requirements for epilepsy Listing 11.02(B) or (D). See Smith-Johnson, 579 F.App’x at 433. To start,

SSR 19-4p requires a “detailed description from an [accepted medical source] of a typical headache

event,” including all associated phenomena, the frequency of headache; adherence to prescribed

treatment, side effects of treatment, and limitations in functioning that may be associated with the

primary headache disorder or effects of its treatment. See 2019 WL 4169635, at *7. Mr. Payne does

not direct the court to such a statement nor does one appear in the record. The closest is Dr.

Faust’s 2021 consultative psychological opinion where Mr. Payne was experiencing a headache

during the examination as that opinion reveals some of the limitations in functioning Mr. Payne

faces during a headache, but that opinion does not describe any associated phenomena, headache

frequency, or the compliance with and side effects of treatment. (See Tr. 461, 468-70). Moreover,

Dr. Faust’s opinion does not describe Mr. Payne’s condition during March through June 2024, the

only period when Mr. Payne complained of headaches despite treatment. (See Tr. 919, 910, 908,

901). The consultative examination that described Mr. Payne’s status in August 2024 did not

mention any issues from headaches. (See Tr. 2052-53). Without any of this evidence, the ALJ had

nothing to determine whether Mr. Payne’s headaches were medically equal in severity and

duration to dyscognitive seizures so as to equal Listing 11.02. See SSR 19-4p, 2019 WL 4169635,

at *7.

Were the required detailed description present in the record, the record could raise a

substantial question whether Mr. Payne’s headaches medically equaled the listing. Over the period

from March through June 2024, Mr. Payne restarted his medications in March and he complained

of headaches, worsening to three per week in May until improving to “sometimes” having “some

headaches.” (See Tr. 919, 910, 908, 901). While these notes suggest his headaches persisted despite

treatment during March through June 2024 and were of the required frequency in May, those

records mentioned no other characteristic required by SSR 19-4p to raise a substantial question.

Mr. Payne’s contention that the above amounts to an improper post-hoc rationalization for

the ALJ lacks merit. The Commissioner’s “decision must be affirmed on the grounds noted in the

decision” and not on after-the-fact justifications. Berryhill v. Shalala, 4 F.3d 993, 1993 WL 361792,

at *7 (6th Cir. 1993) (table). True, the ALJ did not go through Mr. Payne’s treatment records and

explain how they did not suffice under SSR 19-4p. But 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, 544 F.App’x at 641. As the Sixth Circuit puts it, there is “a fine line” between an

improper post-hoc rationalization and a determination the record does not raise a substantial

question that a claimant meets a listing. See Smith-Johnson, 579 F.App’x at 435. Here, Mr. Payne did

not put forward before the ALJ that his headaches medically equaled Listing 11.02 (See Tr. 889,

674) (each eschewing a step-three argument in favor of other arguments). The only evidence that

his headaches medically equaled the listing for epilepsy was that his headaches persisted despite

treatment for three months in 2024 and in one of those months, his headaches had sufficient

frequency. (See Tr. 919, 910, 908, 901). But there was no other evidence establishing any of the

other factors that allow an ALJ to determine whether Mr. Payne’s headaches were equal in severity

and duration to dyscognitive seizures under Listing 11.02. See SSR 19-4p, 2019 WL 4169635, at

*7. Thus, while the ALJ did not address whether the evidence met SSR 19-4p, the “conclusion that

the record evidence does not raise a substantial question” is not automatically a post-hoc

rationalization. See Smith-Johnson, 579 F.App’x at 435.

Mr. Payne’s contention that the ALJ “failed to acknowledge the relevant factors or

discussion of daily activities, the location etc. of her [sic] headaches, the effectiveness of her [sic]

treatment for headaches, any measures taken to relieve her [sic] pain, and the limiting effects of her

[sic] headaches” also lacks merit. (See ECF #10 at PageID 2203). Mr. Payne relies on Harper v.

Comm’r of Soc. Sec., No. 1:20-cv-1304, 2021 WL 2383833, at *12 (N.D. Ohio May 25, 2021) in

support, but the cited page addresses the ALJ’s evaluation of a claimant’s statements at Step Four—

it does not apply to the analysis at Step Three. No Step Three errors were raised in Harper. The

argument also directly invokes the factors that guide an ALJ’s evaluation of a claimant’s statements

about his or her own symptoms. See 20 C.F.R. §§ 404.1529(c), 416.929(c); SSR 16-3p, 2017 WL

5180304, at *7-8 (Oct. 25, 2017). As Mr. Payne’s counsel is no doubt aware from the multiple

warnings, it is improper to “combin[e] together disparate challenges and arguments of the

sequential disability evaluation.” See Elledge v. Comm’r of Soc. Sec., No. 1:23-cv-1979, 2024 WL

3237455, at *6 (N.D. Ohio Apr. 9, 2024) (collecting cases), report and recommendation adopted, 2024

WL 3228390 (N.D. Ohio June 28, 2024). That Mr. Payne’s counsel misgenders Mr. Payne four

times in that sentence and mentions “pain” when the rest of the sentence focuses on headaches

suggests this was a simple cut-and-paste error and not a developed, yet improper, argument. (See

ECF #10 at PageID 2203). If this was intended as a discrete argument, such an argument is waived.

See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“Issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation, are deemed waived”).

B. The record does not present a substantial question that Mr. Payne’s traumatic

brain injury meets Paragraph A of Listing 11.18 and substantial evidence

supports the ALJ’s determination that he does not meet Paragraph B of the

Listing.

Mr. Payne also argues his TBIs met the requirements of Listing 11.18 because he has

marked limitations in both physical functioning and the mental-functioning areas of

understanding, remembering, or applying information and adapting or managing oneself. (See

ECF #10 at PageID 2203-04). The Commissioner responds that Mr. Payne’s argument amounts to

an impermissible request to reweigh the evidence and redetermine his limitations de novo. (See

ECF #12 at PageID 2237).

Listing 11.18 applies to TBIs, characterized by one of the following:

A. Disorganization of motor function in two extremities, resulting in an extreme

limitation in the ability to stand up from a seated position, balance while

standing or walking, or use the upper extremities, persisting for at least 3

consecutive months after the injury; or

B. Marked limitation in physical functioning, and in one of the following areas

of mental functioning, persisting for at least 3 consecutive months after the

injury):

1. Understanding, remembering, or applying information;

2. Interacting with others;

3. Concentrating, persisting, or maintaining pace; or

4. Adapting or managing oneself.

See 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 11.18.

1. Paragraph B

I begin with paragraph B of Listing 11.18 because the ALJ made specific findings for that

paragraph:

To the above point, the claimant’s physical impairments have not caused, over any

continuous 12-month period since the June 12, 2020, alleged onset date, the types

of problems described in Listings 1.15, 4.11, and 11.18. Nor is there evidence of a

listing-level mental impairment(s). In part, this is because there is no evidence the

claimant’s mental impairments have caused, over any continuous 12-month period

since the June 12, 2020, alleged onset date, a minimal capacity to adapt to changes

in his environment or to demands that are not already part of his daily life. The

claimant’s mental impairments also have not caused, over a continuous 12-month

period since June 12, 2020, an extreme limitation of one, or marked limitation of

two, of the four areas of mental functioning which are: understand, remember, or

apply information; interact with others; concentrate, persist, or maintain pace; and

adapt or manage oneself. Rather, the claimant’s mental impairments have caused no

more than moderate limitations on these areas . . .

(Tr. 613-14).

The ALJ then made 34 bullet points of factual findings covering the four areas of mental

functioning, of which 17 are relevant to Mr. Payne’s challenge that he is markedly limited in

understanding, remembering, or applying information and adapting or managing oneself:

• The claimant has not complained to treating medical sources since the June

12, 2020 alleged onset date of ongoing marked or extreme problems

understanding, remembering, or applying information.

• The claimant’s treatment records since the June 12, 2020, alleged onset date

do not document ongoing marked or extreme problems he has been observed

to have understanding, remembering, or applying information.

• The claimant was able to understand and answer questions during a

September 8, 2020 claims representative interview.

• The claimant has been described as having average intelligence, and there is

no evidence since the June 12, 2020 alleged onset date that depicts the

claimant as having an intellectual disability aside from intelligence testing on

January 5, 2021, where his performance was affected by a headache.

• The claimant was able to understand and answer questions during his August

24, 2022 and April 9, 2025 hearings.

• The claimant has been described on different occasions since the June 12,

2020 alleged onset date as having an intact memory.

• The claimant has been able to understand information about his

impairments and medical treatment since the June 12, 2020 alleged onset

date.

• The claimant’s treatment records since the June 12, 2020 alleged onset date

show he has been able to understand and answer questions about his health.

• Since the June 12, 2020 alleged onset date, the claimant has spent some of

his time reading and watching television, activities that require some ability

to understand, remember, and apply information; so does shopping and

managing money.

* * *

• The claimant has not complained to treating sources since the June 12, 2020

alleged onset date of ongoing marked or extreme problems adapting to

changes or managing his affairs because of a mental impairment(s).

• The claimant’s treatment records since the June 12, 2020 alleged onset date

do not document ongoing marked or extreme problems he has been observed

to have adapting to changes or managing his affairs because of a mental

impairment(s).

• As above, since the June 12, 2020 alleged onset date, the claimant has been

able to take care of his personal needs, shop in stores, read, manage money,

and watch television. The claimant also engaged in substantial gainful activity

in 2021 and 2022.

• The claimant was able to manage the stress associated with the above-

mentioned claims representative interview on September 8, 2020.

• The claimant was able to manage the stress associated with his August 24,

2022 hearing.

• The claimant was able to manage the stress associated with his April 9, 2025

hearing.

• The claimant has received relatively little outpatient mental health counseling

since the June 12, 2020 alleged onset date.

• The claimant has not been psychiatrically hospitalized aside from the

inpatient alcohol and drug rehabilitation he had between the June 12, 2020

alleged onset date and July 6, 2020.

(Tr. 613-16) (cleaned up).

Mr. Payne does not acknowledge or challenge this discussion. Rather, Mr. Payne discusses

extensively over about five pages the evidence that supports marked limitations in physical

functioning and in understanding, remembering, or applying information and adapting or

managing oneself. (See ECF #10 at PageID 2204-08). But even if the Court found that the evidence

Mr. Payne marshals shows he has a listing-level impairment, substantial evidence would still

support the ALJ’s Step Three finding and the court cannot overturn “so long as substantial

evidence also supports the conclusion reached by the ALJ.” Jones, 336 F.3d at 477. At bottom, Mr.

Payne’s argument is a request to reweigh the evidence and find he is markedly limited, which this

Court cannot do. Brainard, 889 F.2d at 681.

2. Paragraph A

The ALJ did not address Paragraph A of Listing 11.18 and marked limitations in mental

functioning are not required to meet its requirements so the ALJ’s discussion of Paragraph B is

immaterial. Rather, a claimant must have “disorganized motor function in two extremities,

resulting in an extreme limitation in the ability to stand up from a seated position, balance while

standing or walking, or use the upper extremities” See 20 C.F.R. Part 404, Subpt. P, App’x 1,

§ 11.18(A). Because the ALJ did not address Paragraph A, Mr. Payne must raise a substantial

question by advancing specific evidence demonstrating he reasonably could meet or equal every

requirement of that paragraph. Smith-Johnson, 579 F.App’x at 432.

Mr. Payne does not advance any evidence raising a substantial question whether he had a

“disorganized motor function in two extremities” nor “an extreme limitation in the ability to stand

up from a seated position, balance while standing or walking, or use the upper extremities. Listing

11.00(D)(1) defines “disorganization of motor function” to mean “interference, due to your

neurological disorder, with movement of” both upper or both lower extremities. See 20 C.F.R. Part

404, Subpt. P, App’x 1, § 11.00(D)(1). The closest evidence he advances showing “disorganization

of motor function in two extremities” is that “he used the cane every day to move around and

when standing.” (ECF #10 at PageID 2207) (citing Tr. 684). While Mr. Payne’s use of a cane was

mentioned in the 2024 consultative examination (see Tr. 2051), and some records document poor

coordination (Tr. 279), the record also contains numerous physical examinations noting a normal

range of motion, muscle strength, and gait (see, e.g., Tr. 308-09, 453, 930-31, 937, 949, 953, 1461

(“musculoskeletal: [moves all extremities] x4 . . . normal ROM. Steady gait.”), 1471, 1482, 1489,

1496, 916-17, 911-12, 902 (“musculoskeletal: [moves all extremities]” “5/5 strength [both upper

extremities]”), 1344) (ordered chronologically).

Similarly, the record does not show he was “extremely limited in his ability to stand up,

maintain balance while walking, or use his upper extremities.” See 20 C.F.R. Part 404, Subpt. P,

App’x 1, § 11.18(A). Mr. Payne advances considerable evidence about his back pain. (See ECF #10

at PageID 2205-06). While that evidence shows he faces limitations, it does not raise a substantial

question if he meets Listing 11.18(A)’s requirement that he be extremely limited in standing up,

balancing while walking, or using his upper extremities. Listing 11.00(D)(2) defines “extreme

limitation” to mean “the inability to stand up” or “maintain balance” while standing or walking

“without the assistance of another person or the use of an assistive device, such as a walker, two

crutches, or two canes” or “a loss of function of both upper extremities . . . that very seriously

limits your ability to” perform fine and gross motor movements. 20 C.F.R. Part 404, Subpt. P,

App’x 1, § 11.00(D)(2) (emphasis added). Various examinations document normal balance, gait,

and stance as well as full muscle strength in his upper extremities. (See, e.g., Tr. 308-09, 453, 930-

31, 937, 949, 953, 1461, 1471, 1482, 1489, 1496, 916-17, 911-12, 902, 1344). Mr. Payne does not

advance any evidence showing he was limited in fine or gross manipulation, nor did any medical

source opine he was limited in those abilities. (See Tr. 69-70, 725-26, 729-30). Thus, Mr. Payne has

not raised a substantial question that he meets either requirement of Listing 11.18(A).

I thus decline to recommend remand on this basis.

CONCLUSION AND RECOMMENDATION

Following review of the arguments presented, the record, and the applicable law, I

recommend the District Court AFFIRM the Commissioner’s decision denying disability insurance

benefits and supplemental security income.

Dated: September 10, 2026

} } |

DARRELL A. CLAY

UNITED STATES MAGISTRATE JUDGE

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. See Fed. R. Civ.

P. 72(b)(2); see also 28 U.S.C. § 636(b)(1); Local Civ. R. 72.3(b). Properly asserted

objections shall be reviewed de novo by the assigned district judge.

Failure to file objections 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 a

subsequent appeal to the United States Court of Appeals, depending on how or

whether the party responds to the Report and Recommendation. 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 v. Sec’y of Health & 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-186, 2018 WL

3018175, at *2 (W.D. Ky. June 15, 2018) (quoting Howard, 932 F.2d at 509). The

46

failure to assert specific objections may in rare cases be excused in the interest of

justice. , 924 F.3d 868, 878-79 (6th Cir. 2019).