Shrout v. Commissioner of Social Security
Memorandum of Opinion and Order: This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Carmen E. Henderson (Doc. 15 ) recommending that the decision of the Commissioner be affirmed. The R&R is accepted and the decision of the Commissioner is affirmed. Judge Patricia A. Gaughan on 11/15/23. (LC,S)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
Marie Ellen Shrout,
Commissioner of Social Security,
CASE NO. 1:22 CV 1668
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This matter is before the Court on the Report and Recommendation (“R&R”) of
Magistrate Judge Carmen E. Henderson (Doc. 15) recommending that the decision of the
Commissioner be affirmed. Plaintiff filed an objection. For the reasons that follow, the R&R is
ACCEPTED and the decision of the Commissioner is AFFIRMED.
Only those facts necessary for a resolution of plaintiff’s objection are set forth herein.
Plaintiff filed an application for supplemental disability insurance (“SSI”) and disability
insurance benefits (“DIB”), alleging a disability onset date of January 1, 2015. After various
appeals and orders of remand from this Court and the Appeals Council, defendant consolidated
the applications. On June 22, 2022, a third Administrative Law Judge (“ALJ”) involved in the
case issued a decision finding plaintiff “not disabled.” Plaintiff did not appeal to the Appeals
Council, and the ALJ’s decision ultimately became final. Thereafter, plaintiff filed this lawsuit
alleging three assignments of error. The R&R recommends rejecting all assignments of error.
Plaintiff objects to only one assignment, claiming that the ALJ failed at Step Three to find that
plaintiff meets or equals Listing 8.05. According to plaintiff, the ALJ applied an incorrect
definition in his assessment.1
At Step Three, the clamant has the burden to prove that he has an impairment or
combination of impairments that meet or medically equal a listed impairment. Foster v.
Halter, 279 F.3d 348, 354 (6th Cir. 2001); 20 C.F.R. § 404.1520(a)(4)(iii). The claimant
is conclusively presumed disabled if he meets or medically equals a listed impairment;
otherwise, the evaluation proceeds to the fourth step. 20 C.F.R. § 1520(d) (e); Bowen v.
Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). To “meet” a listing,
‘the claimant must show that his impairment [satisfies] all of the requirements for a listed
impairment.’ Ridge v. Barnhart, 232 F. Supp. 2d 775, 787-88 (N.D. Ohio Sept. 10,
2002); 20 C.F.R. § 1525(c)(3). To “medically equal” a listing, the claimant's impairment
must be ‘at least equal in severity and duration to the criteria of any listed impairment.’
20 C.F.R. § 404.1526(a).
Galley v. Commissioner of Social Security, 2021 WL 1391779 at * 7 (N.D. Ohio March 29,
Listing 8.05 is directed at dermatological conditions. This listing requires “extensive
skin lesions that persist for at least 3 months despite continuing treatment as prescribed.”
“Extensive skin lesions,” in turn, “are those that involve multiple body sites or critical body
areas, and result in a very serious limitation.” As examples of conditions that amount to “very
serious limitations” are lesions that “very seriously limit” the “use of more than one extremity,”
The Court reviewed the other two assignments for clear error and
“ability to do fine and gross motor movements,” or “ability to ambulate.” Appendix 1, §
With respect to whether plaintiff’s psoriasis meets or equals the listing, the ALJ
determined as follows:
The claimant’s psoriasis has not met or medically equaled the severity
called for by Listing 8.05 because it has not caused “extensive fungating or
extensive ulcerating skin lesions that persist for at least 3 months despite
continuing treatment as prescribed.” This includes 2017, the year the
claimant was hospitalized secondary to psoriasis. On this point, the
undersigned does not find that the psoriatic plaques the claimant had
between January 2017 and June 2017 represent “extensive lesions.”
Moreover, the claimant engaged in disqualifying substantial gainful activity
between January 2017 and April 2017 (see Finding 3 above).
(Doc. PageID 2724)
Plaintiff correctly notes that the ALJ applied the wrong standard in assessing the listing.
There is no requirement that plaintiff suffer from “extensive fungating or extensive ulcerating”
lesions. It appears that the ALJ mistakenly applied the wrong listing. Upon review, however,
the Court finds that any error in this regard is harmless. In addressing the listing, the ALJ noted
that the most extensive flare-up of plaintiff’s psoriasis occurred between January 2017 and June
2017. During this time period, plaintiff was hospitalized due to “secondary psoriasis.” As noted
by the ALJ in the opinion, however, plaintiff engaged in substantial gainful employment during
this same time period. Thus, while the ALJ may have misapplied the standard for the type of
lesion at issue, the ALJ ultimately determined that the lesions did not cause “very serious
limitations,” as plaintiff was capable of disqualifying work. The ALJ noted that there is no
evidence that “the wages the claimant received were the result of anything other than work
involving significant physical and mental activities, or evidence these wages were not otherwise
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