IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Justin Earl Robinson,

Plaintiff,

v. Case No. 2:18-cv-71

Commissioner of

Social Security,

Defendant.

ORDER

Plaintiff Justin Earl Robinson brings this action under 42

U.S.C. §§ 405(g) for review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying his

application for disability insurance benefits. In her November 29,

2016, decision, the administrative law judge (“ALJ”) found that

plaintiff had severe impairments consisting of ankylosis and

degenerative disc disease of the lumbar spine, intermittent

explosive disorder, and a major depressive disorder. PAGEID 56. 

The ALJ also found that plaintiff did not have a listed impairment. 

PAGEID 56-57. The ALJ concluded that plaintiff has the residual

functional capacity to perform light work, with specified

limitations. PAGEID 57-63. After considering the testimony of the

vocational expert, the ALJ concluded that plaintiff was capable of

performing jobs existing in significant numbers in the national

economy, and that he is not disabled. PAGEID 64-65. This matter

is before the court for consideration of plaintiff’s November 9,

2018, objections to the October 26, 2018, report and recommendation

of the magistrate judge, recommending that the decision of the

Commissioner be affirmed.
I. Standard of Review

If a party objects within the allotted time to a report and

recommendation, the 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); see also Fed. R. Civ. P. 72(b). Upon review, the

court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28

U.S.C. § 636(b)(1).

The court’s review “is limited to determining whether the

Commissioner’s decision ‘is supported by substantial evidence and

was made pursuant to proper legal standards.’” Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,

42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence,

shall be conclusive.”). Even if supported by substantial evidence,

however, “‘a decision of the Commissioner will not be upheld where

the [Commissioner] fails to follow its own regulations and where

that error prejudices a claimant on the merits or deprives the

claimant of a substantial right.’” Rabbers v. Comm’r of Soc. Sec.,

582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc.

Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

II. Plaintiff’s Objections

Plaintiff argues that the magistrate judge erred in concluding

that remand is not warranted due to the failure of the ALJ to

specifically address at step three of the disability analysis

whether plaintiff’s ankylosis satisfied the requirements of Listing

2
14.09C. Listing 14.09C requires proof of ankylosing spondylitis

or other spondyloarthropathies with:

1. Ankylosis (fixation) of the dorsolumbar or cervical

spine as shown by appropriate medically acceptable

imaging and measured on physical examination at 45" or

more of flexion from the vertical position (zero

degrees); or

2. Ankylosis (fixation) of the dorsolumbar or cervical

spine as shown by appropriate medically acceptable

imaging and measured on physical examination at 30" or

more of flexion (but less than 45") measured from the

vertical position (zero degrees), and involvement of two

or more organs/body systems with one of the organs/body

systems involved to at least a moderate level of

severity.

20 C.F.R. § Pt. 404, Subpt. P, App. 1, §14.09C.

At step three of the disability analysis, the ALJ must

determine whether the claimant’s impairment is of a severity

sufficient to meet or medically equal the criteria of an impairment

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. If the

impairment is of a severity sufficient to meet or medically equal

the criteria of a listing and meets the duration requirement in 20

C.F.R. §404.1509, then the claimant is disabled. At step three of

the evaluation process, it is the burden of the claimant to show

that he meets or equals the listed impairment. Thacker v. Social

Sec. Admin., 93 F. App’x 725, 727-28 (6th Cir. 2004)(citing Buress

v. Sec’y of Health & Human Servs., 835 F.2d 139, 140 (6th Cir.

1987)).

The “good reasons” requirement applicable to treating

physician opinions does not apply to the step-three analysis. 

Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 364-65 (6th Cir.

2014). Rather, the regulations governing the five-step inquiry

3
process only require the ALJ to consider all evidence in the case

record, and, at step three, to consider the medical severity of the

claimant’s impairments. Id. at 365; see also Bledsoe v. Barnhart,

165 F. App’x 408, 411 (6th Cir. 2006)(ALJ not required to spell out

every consideration that went into the step-three determination). 

The Commissioner’s decision may be upheld where the ALJ made

sufficient factual findings elsewhere in his decision to support

the conclusion at step three. Forrest, 591 F. App’x at 366.

Although the ALJ did not specifically discuss Listing 14.09C

in her decision, she did discuss medical records relevant to

plaintiff’s ankylosis. The ALJ noted: 2014 records concerning a

lumbar spine image which revealed multi-level ankylosing with

degenerative changes, and a physical examination in which plaintiff

displayed full strength without evidence of diminished sensation or

reflexes; a July, 2014, examination in which plaintiff showed a

reduced range of motion but a negative straight leg raise with no

evidence of muscle atrophy or decreased sensation; an October,

2014, neuromuscular examination with normal findings; a normal

November, 2014, examination; a December, 2014, treatment record

noting that plaintiff reported cutting a lot of firewood with an

ax; records of an April, 2015, MRI showing changes consistent with

spondyloarthropathy and a physical exam in which plaintiff

displayed mild lateral instability but had normal sensation,

strength and coordination; a February, 2016, examination showing

only mild lateral instability and minimally decreased range of

motion, with normal strength and coordination; an April, 2016,

report from plaintiff that he injured his hand while pushing 60-70

pounds of logs out of a truck; a May, 2016, report that plaintiff’s

condition was improved by a medial branch block at the L2-5 levels;

4
and plaintiff’s later reports of activities such as night fishing

and dragging brush down a hill. PAGEID 59-60. This analysis

supports the ALJ’s finding that plaintiff’s impairments did not

meet or medically equal the severity of any listed impairment. 

PAGEID 57.

Even if the ALJ’s factual findings fail to support the stepthree determination, any error in that regard is harmless if the

court finds, based on its own review of the record, that plaintiff

has failed to show that his impairments met or medically equaled in

severity the listed impairment. Forrest, 591 F. App’x at 366. The

Sixth Circuit has held that remand due to the failure to discuss a

listing is only appropriate when the record raises a “substantial

question” over whether a claimant meets a listing. See SmithJohnson v. Comm’r of Soc. Sec., 579 F. App’x 426, 432 (6th Cir.

2014); Sheeks v. Comm’r of Soc. Sec., 544 F. App’x 639, 641-42. 

The claimant must do more than point to evidence on which the ALJ

could have based her finding in order to raise a “substantial

question” as to whether he has satisfied a listing. Sheeks, 544 F.

App’x at 641-42. Rather, the claimant must point to specific

evidence that demonstrates he reasonably could meet or equal every

requirement of the listing. Sullivan v. Zebley, 493 U.S. 521, 530

(1990).

As the magistrate judge correctly noted, PAGEID 991, plaintiff

failed to point to evidence which would satisfy either the degree

of flexion requirement or the requirement of involvement of one or

more organs/body systems specified in Listing 14.09C. The

magistrate judge further observed that after the Commissioner

pointed out this deficiency in the opposition brief, plaintiff did

5
not file a reply brief identifying the required evidence. PAGEID

991. Plaintiff has likewise failed to point to any specific record

evidence in his objections. Although plaintiff’s counsel at the

administrative hearing invited the ALJ to consider Listing 14.09C,

counsel acknowledged that the “difficulty here is that nobody has

done measurements with the goniometer or the inclinometer.” PAGEID

191. The court agrees with the magistrate judge’s conclusion that

plaintiff has not raised a substantial question as to whether his

impairments could meet or equal Listing 14.09C.

Plaintiff notes that counsel at the hearing stated that “if

we’re unable to resolve this case at Step 5[,] that we do consider,

perhaps, having him sent out for a more thorough exam, with those

measurements of the fixation done.” PAGEID 191. Plaintiff argues

that the ALJ erred in failing to further develop the record. 

However, an individual claiming disability “bears the ultimate

burden of establishing the existence of a disability.” Cotton v.

Sullivan, 2 F.3d 692, 695 (6th Cir. 1993). It was plaintiff’s

burden to prove the severity of his impairments. See Higgs v.

Bowen, 880 F.2d 860, 863 (6th Cir. 1988). The ALJ had no special

duty to develop the record because plaintiff was represented by

counsel at the hearing. Culp v. Comm’r of Soc. Sec., 529 F. App’x

750, 751 (6th Cir. 2013); Norman v. Comm’r of Soc. Sec., 37 F.

App’x 765 (6th Cir. 2002). The ALJ was not required to assume the

role of counsel and aid plaintiff in developing the record. See

Smith v. Comm’r of Soc. Sec., 572 F. App’x 363, 367-68 (6th Cir.

2014).

III. Conclusion

For the reasons stated above, the court concludes that any

6
error due to the ALJ’s failure to specifically discuss Listing

14.09C at step three of the disability analysis was harmless

because plaintiff has failed to demonstrate that the record raises

a substantial question as to whether his impairment met or equaled

the listing. The Commissioner’s non-disability finding is

supported by substantial evidence. The court overrules the

plaintiff’s objections (Doc. 23), and adopts and affirms the

magistrate judge’s report and recommendation (Doc. 22). The

decision of the Commissioner is affirmed, and this action is

dismissed. The clerk is directed to enter final judgment in this

case.

It is so ordered.

Date: January 31, 2019 s/James L. Graham 

 James L. Graham

 United States District Judge

7