UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JUSTIN EARL ROBINSON, 

 Plaintiff, 

v. 

COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant. 

Case No. 2:18-cv-71 

Judge James L. Graham 

Magistrate Judge Chelsey M. Vascura 

REPORT AND RECOMMENDATION 

Plaintiff, Justin Earl Robinson (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) 

for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying 

his application for social security disability insurance benefits. This matter is before the Court 

on Plaintiff’s Statement of Errors (ECF No. 12), the Commissioner’s Memorandum in 

Opposition (ECF No. 18), and the administrative record (ECF No. 9). For the reasons that 

follow, the undersigned concludes that substantial evidence supports the ALJ’s decision denying 

benefits. Accordingly, it is RECOMMENDED that the Court OVERRULE Plaintiff’s 

Statement of Errors and AFFIRM the Commissioner of Social Security’s decision. 

I. BACKGROUND 

Plaintiff filed his application for Title II Social Security Disability Benefits on May 29, 

2014, alleging that he had been disabled since May 13, 2014. (R. 314–20, 321–27). On October 

27, 2016, following initial administrative denials of Plaintiff’s application, a hearing was held via 
2 

videoconference before Administrative Law Judge Anne Shaughnessy (the “ALJ”). (Id. at 132–

61). 

At the hearing, Plaintiff and Vocational Expert Suman Srinivasan (the “VE”) testified, 

and Plaintiff’s counsel was given an opportunity “to summarize the record, with regard to the 

argument for disability.” (R. 148.) After pointing out recent MRI scans of Plaintiff’s lumbar 

spine and his history of decreased range of motion, Plaintiff’s counsel expressly requested that 

the ALJ consider Plaintiff’s ankylosing spondylitis under Listing 14.09C (ankylosis of the 

dorsolumbar or cervical spine). (Id. at 149–50.) 

On November 29, 2016, the ALJ issued a decision finding that Plaintiff was not disabled 

within the meaning of the Social Security Act. (R. 12–24.) At step one of the sequential 

evaluation process,1

 the ALJ found that Plaintiff had not engaged in substantially gainful activity 

during the period from his alleged onset date of May 13, 2014. (Id. at 15.) The ALJ found at 

step two that Plaintiff had the severe impairments of ankylosis and degenerative disc disease of 

 

1

 Social Security Regulations require ALJs to resolve a disability claim through a five-step 

sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive 

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th 

Cir. 2007), if fully considered, the sequential review considers and answers five questions: 

1. Is the claimant engaged in substantial gainful activity? 

2. Does the claimant suffer from one or more severe impairments? 

3. Do the claimant’s severe impairments, alone or in combination, meet or equal the 

criteria of an impairment set forth in the Commissioner’s Listing of Impairments, 20 

C.F.R. Subpart P, Appendix 1? 

4. Considering the claimant’s residual functional capacity, can the claimant perform his 

or her past relevant work? 

5. Considering the claimant’s age, education, past work experience, and residual 

functional capacity, can the claimant perform other work available in the national 

economy? 

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); 

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 
3 

the lumbar spine, intermittent explosive disorder, and major depressive disorder. (Id.) The ALJ 

noted that “[a]n MRI of the claimant’s lumbar spine revealed multi-level ankylosing with 

degenerative changes. More recently, in April 2015, a new MRI of the claimant’s lumbar and 

cervical spine continued to show changes consistent with spondyloarthropathy.” (Id.) 

The ALJ concluded at step three that Plaintiff did not, however, have an impairment or 

combination of impairments that met or medically equaled one of the listed impairments 

described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 15.) Specifically, the ALJ 

considered and rejected Listings 12.04 (affective disorders), 12.08 (personality disorders), and 

1.04 (disorders of the spine). (Id. at 15–16.) The ALJ did not, despite Plaintiff’s counsel’s 

express request at the hearing, mention Listing 14.09C (ankylosis of the dorsolumbar or cervical 

spine) in her decision. 

After setting forth Plaintiff’s residual functional capacity (“RFC”)2

, the ALJ relied on the 

hearing testimony of a vocational expert to conclude that Plaintiff is capable of making a 

successful adjustment to other work that exists in significant numbers in the national economy. 

She therefore concluded that Plaintiff was not disabled under the Social Security Act during the 

relevant period. (R. 24.) In this action, Plaintiff challenges only the ALJ’s failure to consider 

whether Plaintiff’s impairments met or equaled Listing 14.09C. (Pl.’s Statement of Errors 5, 

ECF No. 12.) 

II. STANDARD OF REVIEW 

When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

 

2

 A claimant’s RFC is an assessment of “the most [she] can still do despite [her] limitations.” 20 

C.F.R. § 404.1545(a)(1). 
4 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. 

§ 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by 

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is 

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486 

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)). 

Although the substantial evidence standard is deferential, it is not trivial. The Court must 

“‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). 

Nevertheless, “if substantial evidence supports the ALJ’s decision, this Court defers to 

that finding ‘even if there is substantial evidence in the record that would have supported an 

opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. 

Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ’s decision meets the 

substantial evidence standard, “a decision of the Commissioner will not be upheld where the 

SSA fails to follow its own regulations and where that error prejudices a claimant on the merits 

or deprives the claimant of a substantial right.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 

746 (6th Cir. 2007). 

III. ANALYSIS 

Plaintiff argues that the ALJ’s failure to consider Listing 14.09C requires remand. 

(Statement of Errors 9, ECF No. 12.) The Commissioner counters that any error by the ALJ was 

harmless, because Plaintiff has not directed the Court to sufficient evidence that his impairments 
5 

met or equaled Listing 14.09. (Resp. 9, ECF No. 18.) For the following reasons, the 

undersigned agrees with the Commissioner. 

The relevant Social Security regulations require the ALJ to find a claimant disabled if he 

meets a listing. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Sullivan v. Zebley, 493 U.S. 

521, 532 (1990). But neither the listings nor the Sixth Circuit require the ALJ to “address every 

listing” or “to discuss listings that the applicant clearly does not meet.” 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. Abbott v. Sullivan, 905 F.2d 918, 925 (6th Cir. 1990); see 

also Sheeks, 544 F. App’x at 641. 

Plaintiff must therefore direct the Court to evidence in the record that raises “a substantial 

question” as to whether his impairment met or equaled Listing 14.09C. This Plaintiff has failed 

to do. The Sixth Circuit has held that “[a] claimant must do more than point to evidence on 

which the ALJ could have based his finding to raise a ‘substantial question’ as to whether he has 

satisfied a listing.” Smith-Johnson v. Comm’r of Soc. Sec., 579 F. App’x 426, 432–33 (6th Cir. 

2014) (citing Sheeks, 544 F. App’x at 641–42 (finding claimant did not raise a substantial 

question as to satisfying the listing for intellectual disability where the ALJ’s finding of 

borderline intellectual functioning simply left open the question of whether he meets a listing and 

where claimant pointed to only a few pieces of tenuous evidence addressing the listing)). 

“Rather, the claimant must point to specific evidence that demonstrates he reasonably could meet 

or equal every requirement of the listing.” Id. (citing Sullivan, 493 U.S. at 530 (“For a claimant 

to show that his impairment matches a listing, it must meet all of the specified medical criteria. 

An impairment that manifests only some of the criteria, no matter how severely, does not 
6 

qualify.”) and Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 416 (6th Cir. 2011) (holding 

that it was not harmless error for the ALJ to fail to analyze Step Three as to an impairment found 

to be severe at Step Two where the claimant put forth evidence that could meet the relevant 

listing)). Absent such evidence, the ALJ does not commit reversible error by failing to evaluate 

a listing at Step Three. Smith-Johnson, 579 F. App’x at 433. 

Plaintiff has not carried his burden to offer evidence that his impairment meets every 

requirement of Listing 14.09C. This listing requires: 

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. Although Plaintiff points out, and the ALJ 

mentioned in her decision, that Plaintiff had medical imaging consistent with ankylosing 

spondylitis (R.15), Plaintiff does not point to any evidence in the record that would satisfy the 

criteria related to flexion or involvement of organs/body systems. And after these deficiencies 

were noted by the Commissioner in the opposition brief, Plaintiff declined to file a reply brief 

identifying the required evidence. As a result, because Plaintiff has not raised a substantial 

question as to whether his impairments could meet or equal Listing 14.09C, the ALJ’s failure to 

consider that listing was harmless. 
7 

IV. DISPOSITION 

In sum, from a review of the record as a whole, the undersigned concludes that 

substantial evidence supports the ALJ’s decision denying benefits. Accordingly, it is 

RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM

the Commissioner of Social Security’s decision. 

V. PROCEDURE ON OBJECTIONS 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this Report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A Judge of 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. Upon proper objections, a Judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. 

§ 636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the District Judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

/s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE