UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

LONETTE HOUSTON, 

 

 Plaintiff, 

 

v. 

 Case No.: 15-cv-11939 

Honorable Gershwin A. Drain

CAROLYN W. COLVIN, 

Commissioner of Social Security, 

 

 Defendant. 

___________________________/ 

 

ORDER ACCEPTING AND ADOPTING REPORT AND 

RECOMMENDATION (#24), OVERRULING PLAINTIFF’S OBJECTION 

(#25), GRANTING DEFENDANT’S MOTION FOR SUMMARY 

JUDGMENT (#20), DENYING PLAINTIFF’S MOTION FOR SUMMARY 

JUDGMENT (# 17), AND DISMISSING ACTION

 I. INTRODUCTION 

 This matter is before the court on the parties’ Cross-Motions for Summary 

Judgment as to Plaintiff Lonette Houston’s claim for judicial review of Defendant 

Commissioner of Social Security’s denial of her applications for a period of 

disability, for disability insurance benefits and supplemental security income 

benefits. The matter was referred to Magistrate Judge Mona K. Majzoub, who 

issued a Report and Recommendation on November 9, 2016, recommending that 

Plaintiff’s Motion for Summary Judgment be denied, Defendant Commissioner’s 

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Motion for Summary Judgment be granted, and Plaintiff’s Complaint be dismissed. 

Plaintiff filed an objection to the Report and Recommendation on November 22, 

2016. The Commissioner filed a Response to Plaintiff’s Objection on November 

30, 2016. For the reasons discussed below, the Court will accept and adopt the 

Magistrate Judge’s recommendation and dismiss this action. 

 II. ANALYSIS 

 The standard of review to be employed by the court when examining a 

report and recommendation is set forth in 28 U.S.C. § 636. This Court “shall make 

a de novo determination of those portions of the report or specified proposed 

findings or recommendations to which objection is made.” 28 U.S.C. § 

636(b)(1)(C). This court “may accept, reject or modify, in whole or in part, the 

findings or recommendations made by the magistrate.” Id. 

 A district court may affirm, modify, or reverse the Commissioner’s decision, 

with or without remand. See 42 U.S.C. § 405(g). Findings of fact by the 

Commissioner are conclusive if supported by substantial evidence. Id. The court 

must affirm the decision if it is “based on [an appropriate] legal standard and is 

supported by substantial evidence in the record as a whole.” Studaway v. Sec’y of 

Health and Human Servs., 815 F. 2d 1074, 1076 (6th Cir. 1987). Substantial 

evidence is “such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). 

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 Plaintiff applied for a period of disability, disability insurance benefits and 

supplemental security income benefits on November 26, 2012, alleging a disability 

onset date of January 19, 2012. The Administrative Law Judge (ALJ) determined 

that while the Plaintiff had not engaged in substantial gainful activity since January 

19, 2012, and had the following severe impairments: degenerative disc disease, left 

shoulder partial tear, bilateral knee pain, and anemia; she had not been under a 

disability within the meaning of the Social Security Act from January 19, 2012 

through the date of the ALJ’s decision. The ALJ concluded that Plaintiff was 

capable of performing past relevant work as a receptionist, as well as a significant 

number of other jobs in the local and national economy. 

 Plaintiff’s sole objection concerns the ALJ’s Step Three analysis. The 

Magistrate Judge found harmless error occurred when the ALJ failed to address 

whether Plaintiff’s impairments met the criteria for Listing 1.04A (Disorders of the 

Spine) in her Step Three analysis. While acknowledging the ALJ’s oversight at 

Step Three, the Magistrate Judge also noted that later in the ALJ’s decision, she 

“discussed Plaintiff’s spinal impairments in specific enough terms to make it clear 

that Plaintiff did not meet the criteria of Listing 1.04A . . . .” Pg ID 488. 

 “At the third step in the disability evaluation process, a claimant will be 

found disabled if his impairment meets or equals one of the listings in the Listing 

of Impairments.” Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 

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Apr. 1, 2011)(citing 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Turner v. 

Comm’r of Soc. Sec., 381 F. App’x 488, 491(6th Cir. 2010)). “Each listing 

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

that listing.’” Id. (citing C.F.R. § 404.1525(a)). The ALJ “must analyze the 

claimant’s impairments in relation to the Listed Impairments and give a reasoned 

explanation of his findings and conclusions in order to facilitate meaningful 

review.” Christephore v. Comm’r of Soc. Sec., No. 11-cv013547, 2012 WL 

2274328, at *6 (E.D. Mich. Jun. 18, 2012)(citing Reynolds, 424 F. App’x at 416). 

 Listing 1.04A states: 

Disorders of the spine (e.g., herniated nucleus pulposus, spinal 

arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, 

facet arthritis, vertebral fracture), resulting in compromise of a nerve 

root (including the cauda equine) or the spinal code. With: 

 A. Evidence of nerve root compression characterized by 

neuro-anatomic distribution of pain, limitation of motion of the spine, 

motor loss (atrophy with associated muscle weakness or muscle 

weakness) accompanied by sensory or reflex loss and, if there is 

involvement of the lower back, positive straight-leg raising test . . . . 

20 C.F.R. pt. 404, subpt. P., App.1. 

 It is conceded that the ALJ failed to properly analyze or explain why 

Plaintiff’s impairments did not meet or medically equal Listing 1.04A. However, 

as the Magistrate Judge correctly found, the evidence demonstrates that Plaintiff’s 

condition could not have met or equaled Listing 1.04A because she did not present 

any medical evidence of “motor loss . . . accompanied by sensory or reflex loss.” 

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Id. As noted by the Magistrate Judge, after her Step Three Analysis, the ALJ 

thoroughly discussed Plaintiff’s impairments rendering it beyond dispute that 

Plaintiff is unable to satisfy the criteria of Listing 1.04A. Pg ID 488. Thus, the 

ALJ’s error at Step Three was harmless. 

 This Court has held in the past that it will not overturn an ALJ’s decision if 

the failure to articulate step-three findings is harmless. See M.G. v. Comm’r of 

Soc. Sec., 861 F. Supp.2d 846, 859-60 (E.D. Mich. 2012)(citing Scott ex rel. Scott 

v. Astrue, 529 F.3d 818, 822 (8th Cir. 2008) (“As a general rule, we have held that 

an ALJ’s failure to adequately explain his factual findings is ‘not a sufficient 

reason for setting aside an administrative finding’ where the record supports the 

overall determination.”); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 

(1969)(noting that courts are not required to “convert judicial review of agency 

action into a ping-pong game” where “remand would be an idle and useless 

formality.”); White v. Colvin, No. 4:12-cv-11600, 2013 WL 5212629, at *7 (E.D. 

Mich. Sept. 16, 2013)(recognizing that a court may find an ALJ’s failure to 

explicitly discuss whether a claimant meets or medically equals a listing at step 

three to be harmless error when the ALJ on the record “described evidence 

pertaining to all impairments, both severe and non-severe, . . . in his opinion and 

made factual findings.”); Bacon v. Astrue, No. 1:11-cv-01805-BYP, 2012 WL 

3112366, at *5 (N.D. Ohio Jul. 31, 2012)(“[a]ssuming arguendo that the ALJ did 

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not provide the analysis until after Step Three, during the determination of residual 

functioning capacity before Step Four, ‘if the ALJ’s lack of discussion . . . at step 

three is error, it is harmless, as the ALJ’s findings at Step Four provided sufficient 

consideration and the Court is confident that no reasonable administrative 

factfinder would have resolved the matter differently.”) 

 Remand is only justified where the record evidence leaves open the 

possibility that a Listing is met or equaled. See Reynolds, 424 F. App’x at 416 

(“[I]n this case, correction of such an error is not merely a formalistic matter of 

procedure, for it is possible that the evidence [the plaintiff] put forth could meet the 

listing.”). In this case, Plaintiff’s medical evidence does not contain any findings 

of sensory or reflex loss, a requirement for Listing 1.04A. See Sullivan v. Zebley, 

493 U.S. 521, 530 (1990) (holding that a claimant must establish her impairment 

matches all of the specified medical criteria; an impairment that involves only 

some of the requisite criteria, no matter how severe, does not qualify). Indeed, the 

ALJ specifically noted these normal findings on examination with Dr. Noel Upfall. 

Pg ID 98. And the other examinations in the record indicated normal findings in 

these areas as well. Pg ID 319, 321, 389, 400, 407, 408. 

 Moreover, the non-examining state agency physician, Larry Jackson, M.D., 

reviewed the evidence of record, specifically considered Listing 1.04, and did not 

find that Plaintiff’s impairments met or equaled the listing. The ALJ was entitled 

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to rely on this opinion. See 20 C.F.R. § 404.1527(e)(1); see also Wladysiak v. 

Comm’r of Soc. Sec., No.11-14494, 2013 WL 2480665 (E.D. Mich. Jun. 10, 2013). 

 As such, the Magistrate Judge correctly concluded that the ALJ’s error was 

harmless because the medical evidence of record “shows that even if the ALJ had 

made the required findings [at Step Three], the ALJ would have found the 

[Plaintiff] not disabled . . . .” Juarez v. Astrue, No. 2:09-cv-160, 2010 WL 743739, 

at *5-6 (E.D. Tenn. Mar. 1, 2010) (citing Rabbers v. Comm’r of Soc. Sec., 582 F.3d 

647, 657-58 (6th Cir. 2009). 

 III. CONCLUSION 

 Accordingly, Plaintiff’s objection [#25] is OVERRULED. The Court 

hereby ACCEPTS AND ADOPTS Magistrate Judge Mona K. Majzoub’s 

November 9, 2016 Report and Recommendation, GRANTS Defendant 

Commissioner’s Motion for Summary Judgment [#20], DENIES Plaintiff Lonette 

Houston’s Motion for Summary Judgment [#17] and DISMISSES Plaintiff’s 

Complaint with prejudice. 

 SO ORDERED. 

Dated: January 10, 2017 /s/Gershwin A. Drain 

 GERSHWIN A. DRAIN 

 United States District Judge 

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CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

January 10, 2017, by electronic and/or ordinary mail. 

/s/ Tanya Bankston 

Deputy Clerk 

 

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