UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

Lisa M. Baker, 

Plaintiff, 

v. 

Carolyn W. Colvin, 

Acting Commissioner 

of Social Security 

Case No. 2:12-cv-264 

Judge Michael H. Watson 

OPINION AND ORDER 

Magistrate Judge Abel issued a Report and Recommendation ("R&R") in 

this Social Security case recommending the Court remand this case to the 

Administrative Law Judge ("ALJ") for consideration of whether Plaintiff meets or 

equals Listing 12.05C and for consideration of Plaintiff's allegations concerning 

her cognitive impairment when making his credibility determination. Report and 

Recommendation 14, 22, ECF No. 12. Defendant-Commissioner timely objected 

to the R&R. Objection, ECF No. 13. For the following reasons, the Court 

OVERRULES Defendant-Commissioner's objections, ADOPTS the Report and 

Recommendation, and REMANDS this case to the ALJ. 

Pursuant to Federal Rule of Civil Procedure 72(b)(3), when a party timely 

objects to a magistrate judge's recommendations on a dispositive matter, the 

district judge must determine de novo any portion of the recommendations that 

were properly objected to. Fed. R. Civ. P. 72(b)(3). The district court "may 

accept, reject, or modify, in whole or in part, the findings or recommendations 

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made by the magistrate judge. The judge may also receive further evidence or 

recommit the matter to the magistrate judge with instructions." 28 U.S.C. 

§ 636(b )( 1 ). 

The R&R recommended remanding the case because the ALJ failed to 

consider whether Plaintiff met or equaled Listing 12.05C, mental retardation. 

R&R 14, ECF No. 12. 

Listing 12.05 provides in pertinent part: 

12.05 Mental Retardation: Mental retardation refers to 

significantly subaverage general intellectual functioning with deficits 

in adaptive functioning initially manifested during the developmental 

period, i.e., the evidence demonstrates or supports onset of the 

impairment before age 22. 

The required level of severity for this disorder is met when the 

requirements in A, B, C, or Dare satisfied. 

C. A valid verbal, performance, or full scale IQ of 60 through 

70 and a physical or other mental impairment imposing an additional 

and significant work-related limitation of function; 

20 C.F.R. 404, Appx 1. 

Defendant-Commissioner does not contest that the ALJ failed to consider 

whether Plaintiff met Listing 12.05C. Defendant-Commissioner's objection is that 

Plaintiff does not meet the listing of 12.05C because she was not diagnosed with 

mental retardation, she did not prove that she had significant adaptive deficits, 

and she did not show impairment onset prior to age 22. Objections 2, ECF No. 

13. Defendant-Commissioner states it is Plaintiff's burden to prove her condition 

met or equaled the listing criteria, citing Foster v. Halter, 279 F.3d 348, 354 (6th 

Cir. 2001 ). 

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While it is Plaintiff's burden to prove she meets a listing, it was not her "job 

to point the relevant listings out to the ALJ; it was the ALJ's job to identify and 

address them." Christephore v. Comm'rof Social Sec., No. 11-13547, 2012 WL 

2274328, at *7 (E.D. Mich. June 18, 2012) (citing Burnett v. Comm'r Social Sec., 

220 F.3d 112, 120 n. 2 (3d Cir. 2000) ("While the burden is on the claimant to ... 

show his or her impairment matches a listing ... , it is unclear from the 

regulations or case law whether a claimant must identify the relevant listing( s ). 

The applicable regulations indicate that it is within the realm of the ALJ's 

expertise to determine the closest applicable listed impairment ... [.]" (internal 

citation omitted)). 

Here, the ALJ found that Plaintiff had borderline intellectual functioning 

which amounted to a severe impairment. Admin. Record PageiD # 38, ECF No. 

8. Moreover, the record reflects that on September 8, 2009, Dr. Donaldson 

performed an IQ test, for which Plaintiff obtained a full IQ score of 69. Admin 

Record PageiD # 262, ECF No.8. Thus, the ALJ should have at least discussed 

whether Plaintiff met Listing 12.05C, but he did not. See Admin. Record at 

PageiD # 38-40, ECF No.8 (discussing Listings 12.02 and 12.04 but not 12.05); 

McClellan v. Astrue, 804 F. Supp. 2d 678, 683 (E. D. Tenn. 2011) (concluding 

ALJ should have considered Listing 12.05C where the record raised a substantial 

question as to the applicability of the Listing and where ALJ considered 

applicability of Listing 12.02 and 12.04 but not 12.05); Abbott v. Sullivan, 905 

F.2d 918,926 (6th Cir. 1990) (failure to analyze Listing 12.058 and C where 

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evidence raised substantial question as to whether plaintiff qualified); but see 

Pasco v. Comm'rof Social Sec., 137 F. App'x 828, 843 (6th Cir. 2005) 

("[Claimant] has not provided the Court, and we have not found, any authority 

that requires the ALJ to evaluate a claimant's symptoms of mental disorder under 

one mental disorder listing ... if evaluation of the symptoms under other listings . 

. . is more appropriate."). 1 Accordingly, Defendant-Commissioner's objection that 

Plaintiff does not substantively meet or equal the Listing is misplaced; it was the 

ALJ's failure to consider the Listing that was error. See Reynolds v. Comm'r 

Social Sec., 424 F. App'x 411, 415-16 (6th Cir. 2011) (finding ALJ erred by 

listing both physical and mental impairments in step two but then analyzing only 

listings for mental impairments in step three). 

"The ALJ's error was not harmless, for the regulations indicate that if a 

person is found to meet a Listed Impairment, they are disabled within the 

meaning of the regulations and are entitled to benefits; no more analysis is 

necessary." Reynolds, 424 F. App'x at 416. The Court cannot say that 

correcting such an error in this case would be merely formalistic, because, 

although the Defendant-Commissioner argues otherwise, it is possible the 

evidence Plaintiff put forth could meet this Listing. See id. 

1 The Court notes that even in Pasco, the ALJ appears to have considered at step two 

the listings applicable to each impairment determined to be severe. Pasco, 137 F. 

App'x at 843-44. 

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Moreover, the Magistrate Judge concluded the ALJ failed to consider 

whether Plaintiff's allegations that her cognitive impairment precluded substantial 

gainful activity were credible. 

Defendant-Commissioner's objection to this finding is three-fold: 

( 1) Plaintiff's allegations of physical disability were severely undermined by the 

record; (2) the ALJ discussed Plaintiff's testimony, including her testimony 

regarding her anxiety; and (3) the ALJ found Plaintiff's ability to engage in daily 

activities undermined her credibility. Objections 9-12, ECF No. 13. 

Defendant-Commissioner's objections are again misplaced. None of the 

considerations listed by Defendant-Commissioner demonstrate the ALJ 

considered whether Plaintiff's allegations of cognitive impairment precluding 

substantial gainful activity were credible. The ALJ did not consider those 

allegations. The closest he came was stating that Plaintiff's "allegations as to the 

disabling symptoms of her borderline intellectual functioning, and major 

depressive and general anxiety disorders" were undermined by lack of treatment 

and inconsistent statements. Admin Record PageiD # 43, ECF No. 8. However, 

in the discussion, the ALJ identified only lack of treatment with respect to, and 

inconsistent statements Plaintiff made regarding, her anxiety, not her cognitive 

impairments. Admin. Record PageiD # 43, ECF No. 8. Accordingly, the Court 

accepts Magistrate Judge Abel's finding that the ALJ failed to consider whether 

Plaintiff's allegations that her cognitive impairment precluded substantial gainful 

activity were credible. 

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In conclusion, the Court OVERRULES Defendant-Commissioner's 

objections, ADOPTS the Magistrate Judge's R&R, and REMANDS the case to 

the ALJ for consideration of Listing 12.05C and a determination of whether 

Plaintiff's allegations of a cognitive impairment precluding substantial gainful 

activity are credible. 

IT IS SO ORDERED. 

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