UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

LAURA L. HAY, 

 Plaintiff, 

v. 

COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant. 

Civil Action 2:18-cv-742 

Chief Judge Edmund A. Sargus, Jr. 

Magistrate Judge Chelsey M. Vascura 

REPORT AND RECOMMENDATION 

Plaintiff, Laura L. Hay (“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 her 

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

Plaintiff’s Statement of Errors (ECF No. 11), the Commissioner’s Memorandum in Opposition 

(ECF No. 17), and the administrative record (ECF No. 7). Plaintiff has not filed a reply. For the 

reasons that follow, it is RECOMMENDED that Plaintiff’s Statement of Errors be 

OVERRULED and that the Commissioner’s decision be AFFIRMED. 

I. BACKGROUND 

Plaintiff filed her application for disability insurance benefits on August 14, 2014, 

alleging that she had been disabled since September 30, 2014. (R. 253–59.) On February 14, 

2017, following administrative denials of Plaintiff’s application, a video hearing was held before 

Administrative Law Judge Patricia Carey (the “ALJ”). (Id. at 50–89.) The ALJ issued a 

decision on March 29, 2017, finding that Plaintiff was not disabled within the meaning of the 
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Social Security Act. (Id. at 16–29.) In her decision, the ALJ noted that Plaintiff met the insured 

status requirements through December 31, 2018. (Id. at 18.) 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 her alleged onset date of September 30, 2013. (Id.) The ALJ found at 

step two that Plaintiff had the severe impairments of removal of colon, ulcerative colitis, 

osteoporosis, trochanteric bursitis of both hips, empty sella syndrome, and depression. (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. (Id. at 19.) Specifically, the ALJ 

considered and rejected Listings 5.06 (inflammatory bowel disease) and 12.04 (affective 

disorders). (Id. at 19–21.) The ALJ did not consider Listing 5.08 (weight loss due to a digestive 

disorder). 

 

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 

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

, and relying on the 

hearing testimony of a vocational expert, the ALJ ultimately concluded 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. (Id. at 28.) 

On May 30, 2018, the Appeals Council denied Plaintiff’s request for review and adopted 

the ALJ’s decision as the Commissioner’s final decision. (Id. at 1–7.) Plaintiff then timely 

commenced the instant action, in which she challenges only the ALJ’s failure at step three to 

consider whether Plaintiff’s impairments met or equaled Listing 5.08. 

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 

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 

 

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 

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 raises a single issue in her Statement of Errors (ECF No. 11): that the ALJ 

committed reversible error when she failed to consider whether Plaintiff’s impairments met or 

equaled the severity of Listing 5.08. This listing requires “[w]eight loss due to any digestive 

disorder despite continuing treatment as prescribed, with BMI of less than 17.50 calculated on at 

least two evaluations at least 60 days apart within a consecutive 6-month period.” 20 C.F.R. Pt. 

404, Subpt. P, Appendix 1, § 5.08. 

Social Security Regulations require ALJs to consider relevant listings in reaching their 

disability determinations. “Yet they do not require the ALJ to address every listing.” Sheeks v. 

Comm’r of Soc. Sec. Admin., 544 F. App’x 639, 641–42 (6th Cir. 2013). In particular, “the ALJ 

need not discuss listings that the applicant clearly does not meet, especially when the claimant 

does not raise the listing before the ALJ.” Id. “If, however, the record ‘raise[s] a substantial 

question as to whether [the claimant] could qualify as disabled’ under a listing, the ALJ should 

discuss that listing.” Id. (quoting Abbott v. Sullivan, 905 F.2d 918, 925 (6th Cir. 1990)). 
5 

Here, Plaintiff cannot demonstrate that the record raises a substantial question as to 

whether she could qualify as disabled under Listing 5.08. Although she identifies four dates on 

which her body mass index was less than 17.50 (Feb. 26, 2013, June 24, 2013, April 28, 2014, 

and June 27, 2014, R. at 586, 574, 519, and 511, respectively), the Commissioner correctly 

points out that only the latter two dates fall within her alleged period of disability (September 30, 

2013 through the present). 

Further, although her low BMIs on April 28, 2014, and June 27, 2014, were observed at 

least 60 days apart within a consecutive 6-month period, the low BMI observed on April 28, 

2014, cannot be said to have been observed “despite continuing treatment as prescribed” for a 

digestive disorder as required by the Listing. Plaintiff argues that “Dr. Sage [Plaintiff’s primary 

care physician] has provided treatment for Ms. Hay for several years and has specifically treated 

her for her ulcerative colitis and repeatedly documented her BMI and weight loss.” (Statement 

of Errors, ECF No. 11 at 8.) However, a review of Dr. Sage’s treatment notes reveals that she 

was not treating Plaintiff for any digestive problems as of the office visit on April 28, 2014 (the 

date of Plaintiff’s first low BMI within the period of disability). (R. 519.) Rather, although Dr. 

Sage noted Plaintiff’s low weight and occasional reports of diarrhea over several years, she 

treated Plaintiff only for other complaints, such as knee pain, hypothyroidism, and depression. 

Instead of treating Plaintiff’s digestive issues herself, Dr. Sage referred Plaintiff to Dr. Levin, a 

gastroenterologist, for treatment of Plaintiff’s digestive problems. (Id. at 526–616.) 

But Dr. Levin’s notes dated May 8, 2014, indicate that “[Plaintiff] was last seen in my 

office back in 2012. She never followed back up as she was supposed to.” (Id. at 661.) Dr. 

Levin also noted at that time that “[Plaintiff currently is on no medication from an [inflammatory 

bowel disease] standpoint and has not been since her surgery [in 2002].” (Id. at 662.) While the 
6 

record does reflect that Plaintiff was treated by Dr. Levin for digestive problems going forward 

from this time, the record does not demonstrate that she was being treated at the time of her first 

relevant low BMI score on April 28, 2014. 

Accordingly, only one low BMI score, recorded on June 27, 2014, was observed “despite 

continuing treatment as prescribed” for a digestive disorder. The Listing requires two such BMI 

observations at least 60 days apart within a consecutive 6-month period. Plaintiff therefore 

cannot show that the record raises a substantial question as to whether she could qualify as 

disabled under Listing 5.08. Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (impairment “must 

meet all of the specified medical criteria. An impairment that manifests only some of those 

criteria, no matter how severely, does not qualify.”) (emphasis in original); Dorton v. Heckler, 

789 F.2d 363, 367 (6th Cir. 1989) (Commissioner’s decision affirmed where medical evidence 

“almost establishes a disability” under Listing). The ALJ accordingly did not err in not 

considering whether Plaintiff’s impairments met or equaled the severity of Listing 5.08. 

IV. DISPOSITION 

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

evidence supports the ALJ’s decision denying benefits. For the foregoing reasons, 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 
7 

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