UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

LAVETTE R. HARDY, 

 Plaintiff, Civil Case No. 15-10010 

 Honorable Linda V. Parker 

v. 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

__________________________________/ 

OPINION AND ORDER ADOPTING REPORT AND 

RECOMMENDATION [ECF NO. 16], GRANTING IN PART PLAINTIFF'S 

MOTION FOR SUMMARY JUDGMENT [ECF NO. 13], DENYING 

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [ECF NO. 14], 

AND OVERRULING DEFENDANT'S OBJECTION [17]; AND 

REMANDING CASE 

 On January 5, 2015, Plaintiff filed this lawsuit challenging the 

Commissioner of Social Security’s (“Commissioner’s”) final decision denying 

Plaintiff’s application for Disability Insurance Benefits and Supplemental Security 

Income under the Social Security Act. On January 5, 2015, this Court referred the 

lawsuit to Magistrate Judge David R. Grand for all pretrial matters, including a 

hearing and determination of all non-dispositive matters pursuant to 28 U.S.C. § 

636(b)(1)(A) and/or a report and recommendation (“R&R”) on all dispositive 

matters pursuant to 28 U.S.C. § 636(b)(1)(B). (ECF No. 4.) The parties 

subsequently filed cross-motions for summary judgment. (ECF Nos. 13, 14.) On 

4:15-cv-10010-LVP-DRG Doc # 19 Filed 03/23/16 Pg 1 of 7 Pg ID 702
 2

January 22, 2016, Magistrate Judge Grand issued his R&R recommending that this 

Court: (1) deny the Commissioner’s motion; (2) grant in part Plaintiff’s motion to 

the extent it seeks remand, and deny in part to the extent it seeks an award of 

benefits; and (3) remand the matter pursuant to sentence four of 42 U.S.C. § 405(g) 

for further proceedings. (ECF No. 16.) 

 In his R&R, Magistrate Judge Grand found that the Administrate Law Judge 

(ALJ) erred in Step Three of its analysis by concluding that Plaintiff’s impairments 

did not meet or medically equal Listing 1.04A without having solicited an expert 

medical opinion regarding this issue. (ECF No. 16 at Pg. ID 685.) Step Three holds 

that “[i]f the claimant is not performing substantial gainful activity, has a severe 

impairment that is expected to last for at least twelve months, and the severe 

impairment meets or equals one of the impairments listed in the regulations, the 

claimant is conclusively presumed to be disabled regardless of age, education, or 

work experience.” Scheuneman v. Comm’r of Soc. Sec., 2011 WL 6937331, at *7 

(E.D. Mich. Dec. 6, 2011). 

 Magistrate Judge Grand asserted that while the ALJ found at Step Three that 

Plaintiff’s physical impairments do not meet the requirements of Listing 1.04A – 

because Plaintiff lacked the requisite motor and sensory deficits – the ALJ did not, 

however, address the issue of medical equivalency. (ECF No. 16 at Pg. ID 686.) In 

reliance on the Social Security regulations, he correctly stated that the regulations 

4:15-cv-10010-LVP-DRG Doc # 19 Filed 03/23/16 Pg 2 of 7 Pg ID 703
 3

mandate “that the judgment of a physician (or psychologist) designated by the 

Commissioner on the issue of equivalence on the evidence before the 

administrative law judge or the Appeals Council must be received into the record 

as expert opinion evidence and given appropriate weight.” Soc. Sec. Rul. 96-6p, 

1996 SSR LEXIS 3, at *8 (Jul. 2, 1996). Magistrate Judge Grand also correctly 

indicates that this requirement is satisfied if the record contains Disability 

Determination and Transmittal Forms, Psychiatric Review Technique Forms, or 

“various other documents on which medical and psychological consultants may 

record their findings that are signed by a state agency medical consultant.” (See id.; 

ECF No. 16 at Pg. ID 687.) 

 Magistrate Judge Grand then explained that in this case, the Disability 

Determination Explanation Form (“DDE”) was signed by Joyce Cowan, the Single 

Decision Maker (“SDM”) and psychologist Rom Kriauciunas, Ph.D. (Tr. 58-67.) 

Magistrate Judge Grand contends that with respect to Plaintiff’s physical 

impairments, neither Cowan nor Kriauciunas qualify as expert medical consultants 

under the regulations, and that therefore their DDE form does not qualify as expert 

testimony with respect to the issue of medical equivalency. (ECF No. 16 at Pg. ID 

687.) Magistrate Judge Grand further asserts that while there is a medical opinion 

in this case from a state agency physician, Jacinto DeBorja, M.D., the opinion 

“merely indicated [DeBorja’s] ‘complete agreement’ with the SDM’s RFC 

4:15-cv-10010-LVP-DRG Doc # 19 Filed 03/23/16 Pg 3 of 7 Pg ID 704
 4

assessment without any mention of Listing 1.04 or medical equivalency,” and that 

consequently: (1) the record contains no proper expert medical opinion concerning 

whether Plaintiff’s physical impairments are medically equivalent to Listing 

1.04A; and (2) the ALJ improperly failed to solicit a medical expert opinion 

addressing these issues. (Id. at Pg. ID 688.) Finally, Magistrate Judge Grand 

concluded, after reviewing the record evidence relating to medical equivalency, 

that the lack of an expert opinion on equivalence with respect to Listing 1.04 was 

not harmless error because an expert could have found that Plaintiff’s impairments 

were equivalent to the listing. (Id. at Pg. ID 688–89.) 

 Defendant, in objection to Magistrate Judge Grand’s R&R, states that the 

SDM found that Plaintiff retained the RFC to perform a limited range of sedentary 

work, and that the SDM’s signature on the DDE “implies consideration of the issue 

of medical equivalence to a listing.” (ECF No. 17 at Pg. ID 694.) Defendant further 

contends that while the SDM lacks medical expertise to make a determination 

concerning medical equivalence, DeBorja’s statement that he was in “complete 

agreement” with the SDM’s RFC assessment satisfies the requirement for a 

medical opinion addressing the issue of medical equivalence. (Id.) Defendant cites 

no binding authority for its assertion. The district court in Thomas v. Comm'r of 

Soc. Sec., No. 12-14758, 2014 WL 688197, at *8–9 (E.D. Mich. Feb. 21, 2014), 

held the following, in relevant part: 

4:15-cv-10010-LVP-DRG Doc # 19 Filed 03/23/16 Pg 4 of 7 Pg ID 705
 5

When a claimant has a listed impairment but does not meet the 

criteria, an ALJ can find that the impairment is “medically equivalent” 

to the listing if the claimant has “other findings related to [the] 

impairment that are at least of equal medical significance to the 

required criteria.” 20 C.F.R. § 416.926(a). The SSA requires that the 

“judgment of a physician (or psychologist) designated by the 

Commissioner on the issue of equivalence on the evidence before the 

administrative law judge or the Appeals Council must be received into 

the record as expert opinion evidence and given appropriate weight.” 

Social Security Ruling (“SSR”) 96–6p, 1996 WL 374180 at *3 

(1996)2

; see also 20 C.F.R. § 416.926(c) (“We also consider the 

opinion given by one or more medical or psychological consultants 

designated by the Commissioner.”); Retka v. Comm'r of Soc. Sec., 70 

F.3d 1272 (6th Cir.1995) ( “Generally, the opinion of a medical expert 

is required before a determination of medical equivalence is made.”); 

Fowler v. Comm'r of Soc. Sec., No. 12–12637, 2013 WL 5372883, at 

*4 (E.D.Mich. Sep.25, 2013) (remanding because there was no expert 

medical opinion on the issue of equivalence, collecting cases); 

Manson v. Comm'r of Soc. Sec., No. 12–11473, 2013 WL 3456960, at 

*11 (E.D.Mich. July 9, 2013) (remanding for an expert opinion at step 

three). SSA guidance provides that a “Disability Determination and 

Transmittal” form signed by a medical or psychological consultant, a 

“Psychiatric Review Technique” form, “and various other documents 

on which medical and psychological consultants may record their 

findings,” can fulfill this requirement to “ensure that this opinion has 

been obtained at the first two levels of administrative review.” See

SSR 96–6p, 1996 WL 374180 at *3. 

Defendant does not point to any evidence that the record before the 

ALJ contained an expert opinion on medical equivalence regarding 

physical impairments. In this case, the lack of an expert opinion on 

equivalence with respect to Listing 1.04 is not harmless error because 

an expert could have found that [Plaintiff’s] impairments were 

equivalent to the listing. See Barnett, 381 F.3d at 667, 671. The ALJ's 

finding that the listing was not equaled is therefore not supported by 

substantial evidence. See Reynolds, 424 F. App'x at 416. 

Thomas, No. 12-14758, 2014 WL 688197, at *8–9 (E.D. Mich. Feb. 21, 

2014). 

4:15-cv-10010-LVP-DRG Doc # 19 Filed 03/23/16 Pg 5 of 7 Pg ID 706
 6

 With the district court’s holding in Thomas in mind, this Court, having 

carefully reviewed the DDE, DeBorja’s opinion, the R&R, and the record, concurs 

with the conclusions reached by Magistrate Judge Grand. The record does not 

contain proper expert medical opinion concerning whether Plaintiff’s physical 

impairments are medically equivalent to Listing 1.04A, given that DeBorja’s 

opinion merely indicates his complete agreement with the SDM’s RFC assessment 

without any mention of Listing 1.04 or medical equivalency. Terry v. Comm'r of 

Soc. Sec., No. 14-12274, 2015 WL 5675746, at *3 (E.D. Mich. Sept. 28, 2015) 

(holding that “ALJs [ ] have an obligation under regulation and case law to consult 

a medical opinion on the issue of medical equivalency,” and that “therefore, by 

making an equivalency determination at step three without any medical opinion, 

the ALJ did not follow the requirement for a step three determination at a hearing 

according to SSR 96-6p, and as such the case should be remanded to obtain a 

medical opinion with which to assist in the equivalency determination.”). The 

Court therefore overrules Defendant’s objection and adopts the magistrate judge’s 

January 22, 2016, Report and Recommendation. 

 Accordingly, 

 For the abovementioned reasons, Plaintiff’s motion for summary judgment 

(ECF No. 13) is GRANTED IN PART AND DENIED IN PART; Defendant’s 

motion for summary judgment (ECF No. 14) is DENIED; and Defendant’s 

4:15-cv-10010-LVP-DRG Doc # 19 Filed 03/23/16 Pg 6 of 7 Pg ID 707
 7

Objection (ECF No. 17) is OVERRULED. This case is REMANDED pursuant to 

sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with 

Magistrate Judge Grand’s January 22, 2016, Report and Recommendation. 

 SO ORDERED. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: March 23, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, March 23, 2016, by electronic and/or U.S. 

First Class mail. 

 s/ Richard Loury 

 Case Manager 

4:15-cv-10010-LVP-DRG Doc # 19 Filed 03/23/16 Pg 7 of 7 Pg ID 708