Riccota v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

Filing 24

ORDER Affirming the Commissioner's Decision. Signed by Chief Magistrate Judge Tu M. Pham on August 2, 2022. (cmp)

Case 1:20-cv-01259-tmp Document 24 Filed 08/02/22 Page 1 of 35

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
ADRIAN RICCOTA,

)
)
Plaintiff,
)
)
v.
)
No. 20-cv-1259-TMP
)
COMMISSIONER OF SOCIAL
)
SECURITY ADMINISTRATION,
)
)
Defendant.
)
________________________________________________________________
ORDER AFFIRMING THE COMMISSIONER’S DECISION
________________________________________________________________
On November 17, 2020, Adrian Riccota filed a Complaint seeking
judicial review of a social security decision.1 (ECF No. 1.)
Riccota seeks to appeal a final decision of the Commissioner of
Social Security (“Commissioner”) denying his application for Title
II and XVI disability benefits. (ECF No. 16 at PageID 1783.) For
the

following

reasons,

the

decision

of

the

Commissioner

is

AFFIRMED.
I.
A.

BACKGROUND

Procedural History

1After

the parties consented to the jurisdiction of a United States
magistrate judge on August 30, 2021, this case was referred to the
undersigned to conduct all proceedings and order the entry of a
final judgment in accordance with 28 U.S.C. § 636(c) and Fed. R.
Civ. P. 73. (ECF No. 13.)

Case 1:20-cv-01259-tmp Document 24 Filed 08/02/22 Page 2 of 35

On

October

15,

2018,

Riccota

PageID 1840

protectively

filed

an

application for a period of disability and disability insurance
benefits under Title II of the Social Security Act (“Act”), 42
U.S.C. §§ 404-434, and for supplemental security income (“SSI”)
under Title XVI of the Act, 42 U.S.C. §§ 1381-1385. (ECF No. 16 at
PageID 1783.) The applications, which alleged an onset date of May
15, 2018, were denied initially and on reconsideration. (Id.)
Riccota

then

requested

a

hearing,

which

was

held

before

an

Administrative Law Judge (“ALJ”) on February 26, 2020. (Id.) In a
hearing decision issued on March 24, 2020, the ALJ found that
Riccota was not disabled under sections 216(i) and 223(d) of the
Act. (R. 26.)
On October 6, 2020, the Social Security Appeals Council denied
Riccota’s

request

for

further

review.

(R.

1-6.)

Riccota

has

exhausted his administrative remedies, and the ALJ’s decision
stands as the final decision of the Commissioner. Under section
205(g) of the Act — 42 U.S.C. § 405(g) — judicial review of the
Commissioner’s “final decision” is available if requested within
sixty days of the mailing of the decision. Riccota timely filed
the instant action. (ECF No. 1.)
B.

The ALJ’s Decision and the Five-Step Analysis
After considering the record and the testimony given at the

hearing, the ALJ used the five-step analysis set forth in the
Social Security Regulations to conclude that Riccota was not
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disabled.

See

C.F.R.

§

404.1520(a);

(R.

26.)

That

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five-step

sequential analysis is as follows:
1. An individual who is engaging in substantial gainful
activity will not be found to be disabled regardless
of medical findings.
2. An individual who does not have a severe impairment
will not be found to be disabled.
3. A finding of disability will be made without
consideration of vocational factors, if an individual
is not working and is suffering from a severe
impairment which meets the duration requirement and
which meets or equals a listed impairment in Appendix
1 to Subpart P of the regulations.
4. An individual who can perform work that he has done
in the past will not be found to be disabled.
5. If an individual cannot perform his or her past work,
other factors including age, education, past work
experience and residual functional capacity must be
considered to determine if other work can be
performed.
Petty v. Comm’r of Soc. Sec., No. 1:14-cv-01066-STA-dkv, 2017 WL
396791, at *2 (W.D. Tenn. Jan. 30, 2017) (citing Willbanks v. Sec’y
of Health & Human Servs., 847 F.2d 301 (6th Cir. 1988)). “The
claimant bears the burden of proof through the first four steps of
the inquiry, at which point the burden shifts to the Commissioner
to ‘identify a significant number of jobs in the economy that
accommodate the claimant’s residual functional capacity.’” Warner
v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (quoting
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003)).

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At the first step, the ALJ found that Riccota had engaged in
substantial gainful activity from April 2019 to June 2019. The ALJ
summarized his step one findings as follows:
Verified earning records show that the claimant was
hired by NPC International, Inc. on October 19, 2018. He
testified that in this position, he was delivering
pizzas for Pizza Hut. After he was hired, the claimant
earned $1,924.00 and $2,783.00 during the fourth quarter
of 2018 and the first quarter of 2019. He then went on
to earn $3,934.00 during the second quarter of 2019. In
2018, substantial gainful activity was $1,180.00 per
month and it increased to $1,220.00 per month in 2019.
The claimant’s earnings during the fourth quarter of
2018 and the first quarter of 2019 did not rise to the
level of substantial gainful activity. However, his
earnings during the second quarter of 2019 did reach
substantial gainful activity.
The claimant testified that he worked until August 2019.
During his seven-month period of employment after his
alleged onset date, he did not note any special work
conditions, assistance from others, special equipment,
irregular hours, rest periods, lower productivity
standards, or special relationships with his employers
in the above positions. This period of substantial
gainful activity does not constitute an unsuccessful
work attempt.
(R. 13.) (internal citations omitted.) However, the ALJ found that
“there ha[d] been a continuous 12-month period[] during which the
claimant did not engage in substantial gainful activity,” and the
ALJ’s subsequent findings and analysis concerned this period of
time. (R. 13.)
At the second step, the ALJ concluded that Riccota had the
following severe impairments: “obesity, status post lumbar fusion,
asthma, and tachycardia.” (R. 13.)

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At

the

third

step,

the

ALJ

concluded

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that

Riccota’s

impairments do not meet or medically equal, either alone or in the
aggregate, the severity of one of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1. (R. 15.) The ALJ considered
three listings: 1.04 (disorders of the spine), 3.03 (Asthma), and
4.05 (recurrent arrhythmias). (Id.)
The ALJ found that Riccota’s spinal disorder did not meet or
medically equal section 1.04 for the following reasons:
The record evidence fails to demonstrate a nerve root
compression
characterized
by
neuro-anatomic
distribution of pain, limitation of motion of the spine,
motor loss accompanied by sensory reflex loss, and
positive straight leg raising in both the sitting and
supine positions (1.04A). Furthermore, the record
evidence fails to establish spinal arachnoiditis (1.04B)
or lumbar spinal stenosis with pseudoclaudication
(1.04C). Accordingly, the undersigned finds that the
claimant’s spinal disorder fails to meet or medically
equal listing level severity.
(Id.) The ALJ found that Riccota’s asthma did not meet listing
3.03 because “there is no evidence that the FEV1 values are met or
that the claimant has frequent asthma attacks requiring physician
intervention and occurring at least once every two months (or at
least six times per year).” (Id.) The ALJ also found that Riccota’s
tachycardia did not meet Listing 4.05 for the following reasons:
The
undersigned
notes
the
claimant's
recurrent
arrhythmias are not related to reversible causes, such
as electrolyte abnormalities, digitalis glycoside, or
antiarrhythmic drug toxicity. The claimant has failed to
demonstrate uncontrolled and recurrent episodes of
cardiac syncope or near syncope, despite being on
prescribed treatment. He has also not presented
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documented evidence of a resting or ambulatory (Holter)
electrocardiography, or by other appropriate medically
acceptable testing, coincident with occurrence of
syncope or near syncope. Accordingly, the claimant
tachycardia does not rise to the level of severity
contemplated by listing 4.05.
(Id.) The ALJ also considered Riccota’s clinical obesity and found
it to be “severe.” (Id.) However, the ALJ found that “the signs,
symptoms, and laboratory findings of [Riccota’s] obesity are not
of such severity as found in any listing.” (R. 15-16.)
When a claimant’s impairments do not meet or equal a Listed
Impairment, an assessment of their residual functional capacity
(“RFC”) is conducted, based on all the relevant medical and other
evidence in the case record. 20 C.F.R. § 404.1520(e). The RFC is
used at step four and, if necessary, step five in the process.
First, at step four, it is used to determine whether the claimant
can

perform

their

past

relevant

work.

20

C.F.R.

§§ 404.1520(a)(4)(iv), (f). If a claimant has the RFC to perform
their

past

relevant

work,

they

are

not

disabled.

20

C.F.R.

§ 404.1520(a)(4)(iv). The ALJ found that Riccota had the RFC to
perform light work except no lifting from below the waist. (R.
16.)

Additionally,

“[h]e

could

stand

and

walk

for

45-minute

intervals for 2 to 4 hours per day and sit in 1-hour intervals for
6 hours per day. The claimant can occasionally perform postural
activities.

He

should

avoid

concentrated

exposure

to

extreme

temperature, vibrations, fumes, dust, gases, and inhalants.” (Id.)

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The ALJ found that based on Riccota’s RFC, he was unable to perform
any past relevant work. (R. 24.)
In

reaching

the

RFC

determination,

the

ALJ

discussed

Riccota’s testimony and the medical evidence in the record. The
ALJ summarized Riccota’s testimony as follows:
In his Disability Report, the claimant alleged that his
ability to work was limited by a back injury. He stated
that he stopped working on May 15, 2018 because of his
conditions. The claimant completed a function report and
alleged that he experienced constant, intense, stabbing
pain that made it impossible to stand, bend, lift, stoop,
or sit for longer than 15 minutes at a time. When
questioned why he could not return to work that he had
done in the past, he responded that he could not do this
work because he could not walk or sit down for more than
30 to 40 minutes at a time, lift more than 20 to 30
pounds, and lift anything from below his knees without
assistance. Then, when asked what would prevent him from
working a job where he was primarily sitting and did not
have to lift more than 20 pounds or do any bending, the
claimant responded that if he sits for approximately 40
minutes to 1 hour, he experiences pain near his tailbone.
(R.

16-17)

(internal

citations

omitted).

Although

Riccota

testified during his hearing that he experienced frequent asthma
attacks, particularly at night, the ALJ found that the “evidence
fails to show that the claimant received regular treatment for his
asthma or tachycardia and he did not follow up with a pulmonologist
or a cardiologist.” (R. 20.) The ALJ concluded that “the claimant’s
medically determinable impairments could reasonably be expected to
cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of

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these

symptoms

are

not

entirely

consistent

with

evidence and other evidence in the record. . .”
The

ALJ

then

considered

Riccota’s

PageID 1846

the

medical

(R. 17.)

medical

records

and

treatment history, stating: “while there may be some mention of
treatment, symptoms, and limitations in the medical evidence of
record, the undersigned finds a lack of persuasive evidence that
such limitations were placed on the claimant by any qualified
treating medical source.” (R. 22.)
Prior to his alleged onset date, Riccota was diagnosed with
lumbar stenosis and herniated nucleus puposus with right lower
extremity radiculopathy. (R. 17.) On February 28, 2018, he had an
MRI of his lumbosacral spine that showed findings consistent with
severe lumbar spondylosis with a very large disc herniation at the
L4-L5 level and to a lesser degree, at the L5-S1 level. (Id.) On
April 25, 2018, Riccota was admitted to the hospital under the
neurosurgery service and underwent L4-L5 decompression with right
medial facetectomy and foraminotomy, right L4-L5 discectomy, and
L4-S1

instrumented

fusion.

(R.

17-18.)

After

this

operation,

Riccota continued to allege moderately severe low back pain that
radiated to his hips and buttocks, but he denied that it radiated
to his legs. (R. 18.)
Riccota reported that he was able to start a new job after
his surgery and was working upwards of sixty hours per week before
he began experiencing a resurgence in his back pain. (Id.) As a
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result, Riccota started receiving pain management in October 2018
and his treatment included injection therapy and medication. (Id.)
During his initial visit, he received a sacroiliac injection and
was prescribed Diclofenac, Baclofen, and Amitriptyline. (Id.) Two
months later, in December 2018, he told Melani Sidwell, NP that
that the injection had not helped his low back pain, but instead,
worsened it, and that the Diclofenac, Baclofen, and Amitriptyline
that she prescribed at his last visit had not helped his symptoms.
(Id.) As a result, Nurse Practitioner Sidwell prescribed Riccota
400 mg of Gabapentin three times per day and indicated that he
should follow-up in two months. (Id.)
Two months later, on February 5, 2019, the claimant presented
for a pain management appointment with Matthew Fabian, M.D. and
alleged experiencing 6/10 pain in his lower back, with associated
bilateral

lower

extremities

muscle

spasms.

(Id.)

Dr.

Fabian

indicated that Riccota exhibited 5/5 strength in his bilateral
lower

extremities

with

hip

flexion

extension,

knee

flexion

extension, and ankle plantar dorsiflexion. (Id.)
As a result of Riccota’s continued reports of back pain, he
had a bilateral lumbar medial branch block injection on February
20, 2019. (Id.) Riccota stated that the injection immediately
provided him with eighty-five percent relief and a month later he
was experiencing fifty percent ongoing relief. (R. 18-19.) At this
time, he was prescribed 600 mg of Gabapentin three times per day,
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1000 mg of Nabumetone twice per day, and 1500 mg of Robaxin. (R.
19.) Riccota ambulated with a non-antalgic gait and without the
use

of

assistive

devices,

demonstrated

5/5

strength

in

his

bilateral lower extremities, his sensation to light touch was
preserved, and had an equivocal straight leg raise. (Id.)
After his initial application was denied, Riccota alleged
that

his

back

pain

had

gotten

worse

and

that

he

was

now

experiencing pain that was moving down his right leg into his knee.
(Id.) On April 10, 2019, he received another bilateral lumbar
medial branch block injection. (Id.) Two months later, at a visit
with Nurse Practitioner Hannah Paige Livingston, Riccota reported
that the injections did not help his pain and that his pain was
affecting his job and how much he was able to work. (Id.) Riccota
stated that he was no longer taking his prescribed medication
because he did not make enough money to pay for medication that
was not working. (Id.) He also declined a course of physical
therapy because of the costs and expressed frustration regarding
his lack of relief following his spinal surgery. (Id.) Nurse
Practitioner Livingston observed that his physical examination
remained

unchanged

sensation;

however,

with
his

respect

to

straight

his
leg

gait,

strength,

raise

was

and

positive

bilaterally. (Id.) Nurse Practitioner Livingston gave Riccota an
intramuscular injection of Depo Medrol and scheduled him for a
right sacroiliac injection. (Id.)
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On

July

17,

2019,

Riccota

received

another

PageID 1849

Depo

Medrol

injection. Prior to the injection, he exhibited 4+/5 bilateral hip
flexion
received

and

extension.

another

(Id.)

bilateral

On

September

lumbar

medical

27,

2019,

branch

Riccota

block

and

reported more than ninety percent relief initially. (Id.) Two
months later he reported sustained eighty percent relief. (Id.) On
November 26, 2019, Riccota expressed that he felt that blocks were
beginning to wear off but continued to rate his pain as a 3/10.
(Id.) He also stated that his pain was moderately alleviated by
the medications Flexeril, Mobic, and Tramadol. (Id.) Given his
excellent pain relief, Nurse Practitioner Livingston scheduled him
to have a lumbar radiofrequency ablation on December 27, 2019.
(Id.)
After the radiofrequency ablation, on January 29, 2020, the
claimant’s bilateral lower extremities hip flexion and extension
increased to 5/5, but he alleged that his pain had returned and he
described it as “excruciating.” (R. 20.) As a result, Dr. Fabian
administered

a

right

medial

branch

block

and

radiofrequency

ablation. (Id.) The same day, Riccota presented for an evaluation,
arranged by his attorney, with Dr. Samuel Chung, D.O. (R. 20.) The
ALJ summarized Dr. Chung’s findings as follows:
Dr. Chung examined the claimant and noted that the active
range of motion in his dorsolumbar and cervical spine
was abnormal, he had a positive straight leg raise on
the left while in the seated position, decreased
sensation to light touch bilaterally, 4+/5 strength in
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PageID 1850

the plantarflexion of the left foot, and 1+ Achilles
reflex bilaterally. The examiner added that the claimant
demonstrated a slightly antalgic gait with increasing
weight bearing on the right lower extremity during the
stance phase of the gait cycle. However, there was no
evidence of any kyphosis of the thoracic spine or extreme
lordosis of the lumbar spine, and his Spurling sign was
negative on either side of his neck. Additionally, the
claimant’s seated straight leg raise was negative in the
right lower extremity, his bilateral deep tendon
reflexes of the patella and medial hamstring were normal
bilaterally, and all his other sensory examinations were
within normal limits, including his right L3, L4, and
sacroiliac. The claimant maintained bilateral 5/5 muscle
strength on the hip flexors, knee extensors, and
dorsiflexion of the feet and the examiner indicated that
he did not require the use of an assistive device for
ambulation. At the end of the examination, Dr. Chung
diagnosed the claimant with residual from post
laminectomy syndrome status post L4-S1 two level lumbar
arthrodesis with persistent discogenic back pain, left
S1 lumbar radiculopathy, left sacroiliitis, and lumbar
facet arthropathy of multiple levels of L3 down to S1
bilaterally. The physician also noted that the claimant
had a history of ADD, asthma, gastroesophageal reflux
disease, and marijuana/tobacco abuse.
(Id.) (internal citations omitted).
The ALJ also considered the findings of two State medical
examiners, Dr. Thomas Thrush, M.D. and Dr. Javier Torres, M.D.,
who reviewed all of Riccota’s medical records as part of his
benefit application.2 (R. 24.) The ALJ also considered the reports
of two State agency psychological consultants, Dr. Larry Welch,
Ed.D. and Dr. Paula Kresser. Drs. Welch and Kresser found that

Although the ALJ does not summarize the findings of the medical
consultants, he does cite to specific details of their findings
when determining their persuasiveness.
2

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“the claimant’s mental impairments did not cause more than mild
limitations in any area of mental functioning.” (R. 22.)
The

ALJ

then

looked

at

all

of

the

medical

evidence

holistically, without “any specific evidentiary weight, including
controlling weight, to any prior administrative medical finding(s)
or medical opinion(s), including those from [Riccota’s] medical
sources.” (Id.) The ALJ found Dr. Thrush and Dr. Torres’s opinions
to be persuasive. However, the ALJ found that Dr. Thrush’s opinion
“that the claimant could frequently climb stairs, balance, kneel,
and crawl” failed “to account for the exacerbating effects of his
obesity on his comorbidities.” (Id.) Additionally, the ALJ stated
that “[t]he postural limitations provided by Dr. Torres are more
consistent with the preponderance of all the evidence, but the
evidence does not support the physician’s assessment that the
claimant could only stand and/or walk for a total of 2 hours.”
(Id.)
The ALJ found that the psychological reviews of Drs. Welsh
and

Kresser

were

“consistent

with

the

preponderance

of

the

evidence, which shows that the claimant was never psychiatrically
hospitalized and his mental impairments were well managed by his
primary care provider and medications.” (Id.)
However, the ALJ found Dr. Chung’s opinion “not persuasive,
as it is inconsistent with the preponderance of all the evidence,

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PageID 1852

is not supported by the claimant’s own subjective reports, and is
internally [in]consistent.” (R. 23.) The ALJ explained that:
First, there is no evidence that the claimant alleged or
contended with manipulative limitations that would
render him only able to occasionally handle, finger, and
feel. During Dr. Chung’s examination, he noted some
decreased sensation in the claimant’s lower extremities,
but he stated that all other sensory examinations ere
within normal limits. While he had some decreased
abduction in his left shoulder, his bilateral elbow
flexion and extension were normal, as was his bilateral
wrist flexion and extension, and the claimant’s right
shoulder range of motion was normal. Dr. Chung’s own
examination of the claimant’s upper extremities fail to
support his restrictive manipulative limitations.
Second, while Dr. Chung stated that the claimant could
never use either foot to operate foot controls, he also
stated that the claimant could occasionally operate a
motor vehicle, which requires the operation of foot
controls. Further, there is no evidence that the
claimant had a treating relationship with Dr. Chung, his
representative arranged the examination, and the record
indicates that the physician only examined him on a
single occasion. Therefore, the undersigned finds that
Dr. Chung’s opinion is not persuasive.
(Id.) (internal citations omitted). In light of this evidence, the
ALJ concluded that Riccota has the RFC to perform light work with
the limitations described above. (R. 16.) A vocational expert
assessed that “the exertional demands of the claimant’s past
relevant work as a tire builder and construction worker [] exceed
the residual functional capacity . . . the claimant could not
return to his past relevant work in these positions.” (R. 24.)
Finally, at step five, the ALJ found that “considering the
claimant’s

age,

education,

work

experience,

and

residual

functional capacity, there are jobs that exist in significant
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PageID 1853

numbers in the national economy that the claimant can perform.”
(R. 24.) The ALJ explained that “[Riccota’s] ability to perform
all or substantially all of the requirements of [light work] has
been impeded by additional limitations.” (Id.) The vocational
expert testified that, considering these limitations along with
Riccota’s age, education, RFC, and work experience, Riccota would
be able to perform the requirements of representative occupations,
such as “inspector,” “packager,” and “assembler.” (R. 25.) Based
on this testimony, the ALJ concluded Riccota “is capable of making
a successful adjustment to other work that exists in significant
numbers in the national economy.” (Id.)
On appeal, Riccota argues that the ALJ erred at step one by
finding that he had engaged in substantial gainful activity when
working at Pizza Hut, that the ALJ should have found that Riccota
met

Listing

1.04,

that

the

ALJ

did

not

afford

Dr.

Chung’s

examination the correct weight under the regulations, and that the
ALJ improperly granted weight to DDS source forms and statements
from non-examining reviewing experts.
II.
A.

ANALYSIS

Standard of Review
Under 42 U.S.C. § 405(g), a claimant may obtain judicial

review of any final decision made by the Commissioner after a
hearing to which they were a party. “The court shall have power to
enter, upon the pleadings and transcript of the record, a judgment
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affirming,

modifying,

or

reversing

the

decision

PageID 1854

of

the

Commissioner of Social Security, with or without remanding the
cause for a rehearing.” 42 U.S.C. § 405(g). Judicial review of the
Commissioner's decision is limited to whether there is substantial
evidence to support the decision and whether the Commissioner used
the proper legal criteria in making the decision. Id.; Cardew v.
Comm'r of Soc. Sec., 896 F.3d 742, 745 (6th Cir. 2018); Cole v.
Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v. Comm'r of
Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial evidence
is more than a scintilla of evidence but less than a preponderance,
and is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Kirk v. Sec'y of Health &
Human Servs., 667 F.2d 524, 535 (6th Cir. 1981) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)).
In

determining

whether

substantial

evidence

exists,

the

reviewing court must examine the evidence in the record as a whole
and “must ‘take into account whatever in the record fairly detracts
from its weight.’” Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.
1990) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir.
1984)).

If

substantial

Commissioner's

decision,

evidence

is

found

to

support

the

however,

the

court

must

affirm

that

decision and “may not even inquire whether the record could support
a decision the other way.” Barker v. Shalala, 40 F.3d 789, 794
(6th Cir. 1994) (quoting Smith v. Sec'y of Health & Human Servs.,
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PageID 1855

893 F.2d 106, 108 (6th Cir. 1989)). Similarly, the court may not
try the case de novo, resolve conflicts in the evidence, or decide
questions of credibility. Ulman v. Comm'r of Soc. Sec., 693 F.3d
709, 713 (6th Cir. 2012) (citing Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007)). Rather, the Commissioner, not the court, is
charged with the duty to weigh the evidence, to make credibility
determinations,

and

to

resolve

material

conflicts

in

the

testimony. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th
Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990).
B.

Medical Opinion Evidence
Riccota

argues

that

the

regulations when determining

ALJ
his

did

not

follow

applicable

RFC and that the ALJ's RFC

determination was not supported by substantial evidence. Because
both arguments involve the ALJ's consideration of medical opinion
evidence, the undersigned addresses them together under the same
heading.
As

a

preliminary

matter,

because

Riccota

filed

his

application for benefits after March 27, 2017, the ALJ was required
to adhere to 20 C.F.R. § 404.1520c in considering medical opinions
and prior administrative medical findings in the record. See Jones
v. Berryhill, 392 F. Supp. 3d 831, 839 (E.D. Tenn. 2019). For
claims filed before March 27, 2017, 20 C.F.R. § 404.1527 governs
the evaluation of medical opinion evidence. The distinction is
meaningful

because

the

revisions
-17-

to

the

regulatory

language

Case 1:20-cv-01259-tmp Document 24 Filed 08/02/22 Page 18 of 35

“eliminate

the

‘physician

hierarchy,’

deference

PageID 1856

to

specific

medical opinions, and assigning ‘weight’ to a medical opinion.”
Lester v. Saul, No. 5:20CV1364, 2020 WL 8093313, at *10 (N.D. Ohio,
Dec. 11, 2020), report and recommendation adopted by, 2021 WL
119287 (N.D. Ohio Jan. 13, 2021) (quoting Ryan L.F. v. Comm'r of
Soc. Sec., No. 6:18-cv-01958-BR, 2019 WL 6468560, at *4 (D. Ore.
Dec. 2, 2019)). In other words, claims filed on or after March 27,
2017, which fall under 20 C.F.R. § 404.1520c, are not subject to
the “treating physician rule.” Jones, 392 F. Supp. 3d at 839.
Much of Riccota’s argument rests on precedent and cases
decided under the old framework of strictly defined, hierarchical
deference depending on the source of the medical opinion. (See ECF
No. 16.) Many of Riccota’s arguments lack merit because although
he references § 404.1520c, he bases his arguments on standards set
forth in § 404.1527 and cites exclusively to cases dealing with
the

evaluation

regulatory

of

medical

language.

For

opinion

example,

evidence
Riccota

under

states

the

prior

that

“[Dr.

Chung’s] findings and opinions are entitled to the most weight,
since he had all of the records and an opportunity to examine the
claimant, and is the exactly appropriate specialist,” (id. at
PageID 1787-88), argues that the ALJ improperly afforded weight to
opinions of the agency medical consultants, (id. at 1800), and
claims that “the ALJ must assign and explain the weight afforded
medical opinions in the record,” (id. at 1796). Riccota also
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PageID 1857

asserts that “[t]he Regulation requires that all medical opinions
will be weighed, regardless of source” and that “failure to do so
is error requiring reversal.” (Id. at 1797.) The changed approach
contained in 20 CFR 404.1520c, Riccota argues, is a “dilution of
the [articulation] requirements” for weighing

medical opinion

evidence. (Id.)
This

court

has

routinely

rejected

identical

arguments

regarding the new regulations. See, e.g., Harris v. Comm’r of Soc.
Sec., No. 21-cv-1071-tmp, 2022 WL 1516319, at *7 (W.D. Tenn May
13, 2022) (Pham, M.J.); Lee v. Comm’r of Soc. Sec., No. 1:20-cv01175-JAY, at *8 (W.D. Tenn. Feb. 17, 2022)(York, M.J.); Hart v.
Comm’r of Soc. Sec., 1:20-cv-01126-ATC, at *18-19 (W.D. Tenn. Sept.
21, 2021)(Christoff, M.J.); Strawn v. Comm’r of Soc. Sec., No. 20cv-1065-TMP,

2021

WL

3487176,

at

*9-10

(W.D.

Tenn.

Aug.

9,

2021)(Pham, M.J.). The changes contained in 20 C.F.R. § 404.1520c
do not represent the “dilution” of a previous standard, but instead
a wholly reoriented approach towards medical opinion evidence. “We
will not defer or give any specific evidentiary weight, including
controlling

weight,

administrative
medical

medical

sources.”

20

to

any

medical

finding(s),
C.F.R.

§

opinion{s}

including

404.1520c(a)

those

or

prior

from

(emphasis

your

added).

Instead, ALJs now “articulate [their] determination or decision
[of] how persuasive [they] find all of the medical opinions and
all of the prior administrative medical findings” in the record.
-19-

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PageID 1858

Id. Persuasiveness is judged based on the consideration of any
medical opinion’s supportability, consistency, relationship with
the claimant, and specialization. 20 C.F.R. § 404.1520(b)-(c).
Other factors that may be considered include the opinion source’s
familiarity with the other evidence in the claim, and experience
with program policy and requirements. Id. The ALJ is only required
to

explain

“how

[they]

considered

the

supportability

and

consistency factors for a medical source’s medical opinions or
prior administrative medical findings” in order to comply with the
regulation. 20 C.F.R. § 404.1520(b)(2); see also Strawn, 2021 WL
3487176, at *10 (“Accordingly, the ALJ was not obligated to show
greater deference to the opinions of the treating sources than
those of the consultative and non-examining sources. Rather, the
ALJ needed only consider the persuasiveness of each opinion.”)
(internal citations omitted).
Here, the ALJ followed the law. The ALJ explained that Dr.
Chung’s opinion was “not persuasive,” because it was “not supported
by

the

claimant’s

own

subjective

reports

and

is

internally

[in]consistent.” (R. 23.) For example, Dr. Chung stated that
Riccota could never use either foot to operate foot controls,
however, he also stated that Riccota could occasionally operate a
motor vehicle, which requires the operation of foot controls. (Id.)
The ALJ found the opinions of Drs. Thrush and Torres to be
persuasive. (Id.) Although he did not summarize the findings of
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PageID 1859

these specialists, he noted that “Dr. Thrush’s opinion that the
claimant could frequently climb stairs, balance, kneel, and crawl,
fails to account for the exacerbating effect of his obesity on his
comorbidities. The postural limitations provided by Dr. Torres are
more consistent with the preponderance of all the evidence, but
the evidence does not support the physician’s assessment that the
claimant could only stand and/or walk for a total of 2 hours.”
(Id.) For every medical opinion, the ALJ properly followed the
regulatory procedures, and was well within his role in finding
other opinions more persuasive than Dr. Chung’s.
Riccota makes a more specific argument regarding the opinions
of Drs. Thrush and Torres, who served as the State agency’s medical
consultants and conducted an administrative review of Riccota’s
file. (Id.) Riccota contends that “[i]t is error to give weight to
the form reports of DDS agency reviewers who we now know are often
unqualified and make millions apparently signing off on reports of
non-medical agency sources.” (ECF No. 16 at PageID 1799.) Riccota
alleges that these opinions are functionally worthless, as they
are only “based on a few minutes’ review of prepared files.” (Id.)
In support of these allegations, Riccota provides and summarizes
a recent Tennessean article focusing on administrative contractors
such as Drs. Thrush and Torres. (ECF Nos. 16 at PageID 1799-1800,
16-1.)

This

court

has

previously

considered

this

exact

same

argument, involving the same article and Dr. Thrush (as well as
-21-

Case 1:20-cv-01259-tmp Document 24 Filed 08/02/22 Page 22 of 35

PageID 1860

Dr. Chung) in Lucy v. Saul, No. 19-1083-TMP, 2020 WL 1318803 (W.D.
Tenn. Mar. 20, 2020). In that case, the court said the following:
This court has an extremely limited role in the Social
Security disability determination process: to evaluate
whether the ALJ's decision was supported by substantial
evidence and whether the ALJ used the correct legal
criteria to make his or her decision. See, e.g., Cardew
v. Comm'r of Soc. Sec., 896 F.3d 742, 745 (6th Cir.
2018). It is not free to restructure the disability
determination process to suit its policy preferences.
Similarly, the court generally cannot consider evidence
outside of the administrative record, such as newspaper
articles. Miller v. Comm'r of Soc. Sec., 811 F.3d 825,
839 (6th Cir. 2016). Under governing regulations, “an
ALJ is permitted to rely on state agency physician's
opinions to the same extent as she may rely on opinions
from other sources.” Reeves v. Comm'r of Soc. Sec., 618
F. App'x 267, 274 (6th Cir. 2015). Governing regulations
also permit ALJ's to consider program knowledge. 20
C.F.R. § 404.1527(c)(6). Lucy's objection is not
supported by law.
Lucy, 2020 WL 1318803, at *7. Riccota makes identical arguments,
and the court’s prior analysis adequately addresses Riccota’s
claims as well. The court is unable to consider these claims in
its review. Regardless, the record makes clear that the ALJ went
beyond administrative findings and considered the evaluations of
Dr. Chung and Riccota’s medical history as well. Because the ALJ
explained his supportability and consistency findings regarding
all of these medical opinions, Riccota’s argument that an examining
physician’s opinion is afforded greatest weight is unavailing.
(ECF No. 16 at PageID 1799.)
Beyond arguing against allegedly misapplied legal criteria,
Riccota also argues that the ALJ’s decision was not supported by
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PageID 1861

substantial evidence. As discussed above, substantial evidence is
more than a scintilla of evidence but less than a preponderance,
and is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Kirk, 667 F.2d at 535.
Riccota seemingly argues against this well-established precedent
in full, suggesting that “[t]he unfavorable opinions [the ALJ]
bases a denial upon must be supported by a preponderance of the
substantial evidence and free from significant factual error and
legal.” (ECF No. 16 at PageID 1801) (emphasis added).
This construction has no support in case law. Riccota’s
argument confuses the operating standard imposed on ALJs and the
agency, who must base their opinions on a preponderance of the
evidence, and the standard of review imposed on reviewing courts,
who must uphold the ALJ’s initial decision if it is supported by
substantial evidence. ALJ’s make their decisions based on “a
preponderance of the evidence.” 20 C.F.R. § 416.1453. At the
Appeals

Council

level,

decisions

are

also

reviewed

on

the

“preponderance of the evidence” standard. 20 C.F.R. § 416.1479.
But

once

a

case

is

appealed

to

federal

court,

“if

the

administrative findings are supported by substantial evidence,
they are conclusive, and a reviewing court may not reweigh the
evidence or substitute its judgment for that of the administrative
fact-finder, even if the reviewing court views the evidence as
preponderating otherwise.” Powell v. Schweiker, 514 F. Supp. 439,
-23-

Case 1:20-cv-01259-tmp Document 24 Filed 08/02/22 Page 24 of 35

450

(M.D.

Fla.

1981);

42

U.S.C.

§

405(g).

This

PageID 1862

approach

is

supported by a mountain of case law. See Cardew, 896 F.3d at 74546; Blakley, 581 F.3d at 406. Riccota’s assertions to the contrary
are not accurate.
With the correct “substantial evidence” standard established,
the court must evaluate Riccota’s arguments regarding an alleged
lack of substantial evidence in the ALJ’s opinion. First, Riccota
argues that the opinions of Drs. Thrush and Torres cannot be
“substantial evidence,” seemingly as a matter of law. (ECF No. 16
at

1800)

(“Richardson

clearly

holds

that

to

be

substantial

evidence, opinions must at least be from examiners, and we urge
within the reporter’s area of expertise.”) The ALJ’s decision here
was

based

on

more

than

just

the

administrative

reviewers’

assessments, as discussed above. But even were it not so, Riccota’s
wider

proposition

overreads

Richardson

far

beyond

its

pages.

Richardson itself contemplated the use of “medical adviser[s]” to
provide evidence, even those who had not examined the patient but
nonetheless examined their records and gave an opinion as to their
condition. See Richardson, 402 U.S. at 408. Further, federal
regulations
evidence

require

“because

ALJs
our

to

evaluate

Federal

or

administrative

State

agency

medical

medical

or

psychological consultants are highly qualified and experts in
Social

Security

disability

evaluation.”

20

C.F.R.

§§ 404.1513a(b)(1). As a matter of law, these opinions must at
-24-

Case 1:20-cv-01259-tmp Document 24 Filed 08/02/22 Page 25 of 35

PageID 1863

least be considered. Where the ALJ finds them substantiated and
consistent, they are within their role in finding them persuasive
as well.
Lastly, Riccota functionally asks the court to reweigh the
evidence and credit the opinion of Dr. Chung more than the ALJ
did. (ECF No. 16 at PageID 1799) (“We respectfully urge that fair
evaluation of the medical source opinion, which this Court has
considered

many

times,

leads

only

to

the

finding

that

Dr.

Johnson’s3 opinion is entitled to the greatest weight.”) The court
cannot.

Blakely,

581

F.3d

at

406

(“the

substantial-evidence

standard . . . presupposes that there is a zone of choice within
which the decisionmakers can go either way, without interference
by the courts”) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th
Cir. 1986)). The undersigned finds that the ALJ adhered to the
regulations in considering medical opinion evidence, and that the
record

provides

substantial

evidence

to

support

the

ALJ’s

decision.
C.

Whether Substantial Evidence Supported the ALJ’s Step One
Finding
Riccota challenges the ALJ’s finding at step one that he

performed “substantial gainful activity” at Pizza Hut. He argues

3The

undersigned believes that Riccota is referring to Dr. Chung
here and that the reference to Dr. Johnson is a typographical
error. There is no other reference to a “Dr. Johnson” in the
administrative record.
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Case 1:20-cv-01259-tmp Document 24 Filed 08/02/22 Page 26 of 35

PageID 1864

that the ALJ overlooked a letter from his manager, which he argues
shows that he worked under “special conditions” during his time at
that job. The letter states:
To whom it may concern. Adrian Ricotta [sic] was an employee
of mine at Pizza Hut in Henderson. He worked for me for 1
year. He was a great employee always came to work on time
however, I could not work him very much he was unable to due
[sic] heavy lifting and complete a task in a timely manner.
He could not bend down so I could not schedule him to work
alone. As time went on he would sit down to get the job done
and still would not get it done. Adrian got worse the longer
he worked here. If you have any questions please contact me.

(R. 214.) This letter was not mentioned in the ALJ’s opinion.
“Substantial gainful activity is work activity that is both
substantial and gainful.” Cardew, 896 F.3d at 746 (quoting 20
C.F.R. § 404.1572)). “Substantial work activity is work activity
that involves doing significant physical or mental activities.”
Id. (quoting 20 C.F.R. § 404.1572(a)). “Gainful work activity is
work activity that you do for pay or profit.” Id. (quoting 20
C.F.R. § 404.1572(b)). In general, the Commissioner looks to five
factors to determine whether a claimant has the ability to work at
the substantial gainful activity level:

(1)

the

nature

of

the

claimant’s work; (2) how well the claimant performs; (3) whether
the claimant’s work is done under special conditions; (4) whether
the claimant is self-employed; and (5) time the claimant spent in
work. Id. (citing 20 C.F.R. §§ 404.1573(a)–(e)).
If the claimant “is unable, because of their impairments, to
do

ordinary

or

simple

tasks
-26-

satisfactorily

without

more

Case 1:20-cv-01259-tmp Document 24 Filed 08/02/22 Page 27 of 35

PageID 1865

supervision or assistance than is usually given other people doing
similar

work,

this

may

show

that

they

are

not

working

at

the substantial gainful activity level.” Id. (quoting 20 C.F.R. §
404.1573(b)). Moreover, if the claimant’s “work is done under
special conditions, [the Commissioner] may find that it does not
show

that

[the

claimant]

has

gainful activity.” Id. (quoting

the
20

ability
C.F.R. §

to

do

substantial

404.1573(c)).

This

section also states that “work done under special conditions may
show” that a claimant has “the necessary skills and ability to
work at the substantial gainful activity level.” Id.
20 C.F.R. § 404.1573(c) lists examples of special conditions
that may relate to an impairment:
(1)[Claimant]
required
and
received
special
assistance from other employees in performing [their]
work;
(2)[Claimant] w[as] allowed to work irregular hours
or take frequent rest periods,
(3)[Claimant] w[as] provided with special equipment
or w[as] assigned work especially suited to [their]
impairment;
(4)[Claimant] w[as] able to work only because of
specially arranged circumstances, for example, other
persons helped [them] prepare for or get to and from
[their] work;
(5)[Claimant] w[as] permitted to work at a lower
standard of productivity or efficiency than other
employees”; or
(6)[Claimant] w[as] given the opportunity to work
despite
[their]
impairment
because
of
family

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Case 1:20-cv-01259-tmp Document 24 Filed 08/02/22 Page 28 of 35

PageID 1866

relationship, past association with [their] employer,
or [their] employer’s concern for [their] welfare.
Separately, 20 C.F.R. § 404.1574 provides “several guides” to
determine whether the claimant is “able to do substantial gainful
activity.” Cardew, 896 F.3d at 747. “An overarching consideration
in determining whether a claimant has engaged in substantial
gainful activity is the amount of compensation he earned.” Id. The
relevant regulation states: “Generally, in evaluating your work
activity for substantial gainful activity purposes, our primary
consideration will be the earnings you derive from the work
activity . . . . Generally, if you worked for substantial earnings,
we

will

find

that

you

are

able

to

do

substantial

gainful

activity.” 20 C.F.R. § 404.1574(a)(1). The regulations likewise
set income thresholds that establish compensation floors. See
id. § 404.1574(b).
However, “[t]he mere existence of earnings over the statutory
minimum is not dispositive.” Cardew, 896 F.3d at 747 (quoting Keyes
v. Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990)). Instead, when
a claimant earns income above the floor, a presumption arises that
they have engaged in substantial gainful activity. Id. A claimant
may rebut the “presumption” based on gross earnings in two ways.
Id.

First,

the

regulations

provide

a

framework

to

subtract

subsidized earnings and impairment-related work expenses from
gross

earnings. Id.

(citing

20

-28-

C.F.R.

§§

404.1574,

1576).

Case 1:20-cv-01259-tmp Document 24 Filed 08/02/22 Page 29 of 35

PageID 1867

Adjusting for subsidized earnings based on special conditions
attendant to the claimant’s position is particularly appropriate
where special conditions are easily quantified. Id. “For example,
when a person with a serious impairment does simple tasks under
close and continuous supervision, our determination of whether
that person has done substantial gainful activity will not be based
only on the amount of the wages paid.” 20 C.F.R. § 1574(a)(2).
Rather, “[w]e will first determine whether the person received a
subsidy; that is, we will determine whether the person was being
paid

more

than

the

reasonable

value

of

the

actual

services

performed.” Id. “We will then subtract the value of the subsidy
from the person’s gross earnings to determine the earnings we will
use

to

determine

if

he

or

she

has

done

substantial

gainful

activity.” Id.
Second, “the presumption may be rebutted in a rare case where
a claimant’s adjusted income does not demonstrate that he has the
‘ability to engage in substantial . . . activity,’ or ‘work
activity

that

activities.’”

involves
Cardew,

doing

896

F.3d

significant
at

748

physical

(quoting

20

or

mental

C.F.R.

§

404.1572(a); citing 20 C.F.R. §§ 404.1573(b), 404.1574(b)(2)).
“The

presumption

may

be

rebutted

based

on

the

claimant’s

performance, 20 C.F.R. § 404.1573(b), or the special conditions
attached to his work, id. § 404.1573(c), where the subsidy and
impairment-related work expense framework does not adequately
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Case 1:20-cv-01259-tmp Document 24 Filed 08/02/22 Page 30 of 35

PageID 1868

account for these factors.” Cardew, 896 F.3d at 748 (citing Boyes
v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994)
(reversing and awarding benefits because “[a]ny presumption that
the work constituted substantial gainful activity created by the
level of money [he] earned is destroyed” given his performance and
“the special conditions under which he performed his work”)).
“Whether the claimant’s work history demonstrates his ability to
engage

in

substantial

gainful

activity

requires

a

holistic

analysis of a variety of factors, guided but not dictated solely
by income in all cases, and tailored to the medical and vocational
evidence

in

an

individual

claimant’s

case.”

Id.

(internal

citations omitted).
In this case, the ALJ found that Riccota’s earnings during
the second quarter of 2019 reached the level of substantial gainful
activity. (R. 13.) The ALJ stated that “[d]uring [Riccota’s] sevenmonth period of employment after his alleged onset date, he did
not note any special work conditions, assistance from others,
special

equipment,

productivity

irregular

standards,

or

hours,

special

rest

periods,

relationships

lower

with

his

employers in the above positions.” (Id.) The ALJ did not refer to
the letter from Riccota’s employer at Pizza Hut, which described
several

“special

conditions”

contemplated

by

20

C.F.R.

§ 404.1573(c). For example, the letter stated that because Riccota
could not bend down, his employer “could not schedule him to work
-30-

Case 1:20-cv-01259-tmp Document 24 Filed 08/02/22 Page 31 of 35

PageID 1869

alone.” (R. 214.) Additionally, “he was unable to [do] heavy
lifting and complete a task in a timely manner.” (Id.) Although
substantial evidence could arguably otherwise support the ALJ’s
finding that Riccota engaged in substantial gainful activity, the
ALJ failed to analyze any of the “special conditions” listed in §
1573(c) before or after engaging in a subsidy analysis under §
1574. However, the ALJ’s error is harmless. At step five, the ALJ
also found that Riccota could perform other work found in the
national economy for the period between his alleged onset and the
ALJ’s decision (a period that includes the three month period that
the ALJ found him to be not disabled because he participated in
substantial gainful activity). (R. 24.) Because the ALJ’s no
disability decision at step five is supported by substantial
evidence, the ALJ’s failure to consider the “special conditions”
at step one is harmless error. See Soto v. Comm’r of Soc. Sec.,
No. 1:15 CV 1484, 2016 WL 3692125, at *7 (N.D. Ohio, Jul. 12,
2016).
D.

Whether Substantial Evidence Supported the ALJ’s Step Three
Finding
Riccota argues briefly that the ALJ erred in finding that

Riccota does not meet Listing 1.04.4 In support of this argument,
Riccota states:

4On

December 3, 2020, the Social Security Administration revised
the medical criteria for evaluating musculoskeletal disorders. 85
FR 78164 (Dec. 3, 2020). Under the revised Listings, Listing 1.04
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PageID 1870

Dr. Chung opined the inability to walk a block at a
reasonable pace on rough or uneven surfaces, use public
transportation, or climb a few steps at a reasonable
pace with the use of a single handrail, which indicates
the musculoskeletal listings in effect at the time of
the decision would be met.
(ECF No. 16 at PageID 1793.)
At step three of the sequential evaluation process, the
claimant has the burden of establishing a condition that satisfies
the requirements of an impairment listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (the Listings). See 20 C.F.R. §§ 404.1505,
404.1520, 416.905, 416.920; Foster v. Halter, 279 F.3d 348, 354
(6th

Cir.

2001).

Because

the

Listings

permit

a

finding

of

disability based solely on medical evidence (without considering
a

claimant's

vocational

profile),

the

Commissioner

applies

a

heightened evidentiary standard at step three. Lee v. Comm'r of
Soc. Sec., 529 F. App'x 706, 710 (6th Cir. 2013). To establish an
impairment that meets a Listing, a claimant must present “specific
medical

evidence

to

satisfy

all

of

the

criteria”

of

the

Listing. Perschka v. Comm'r of Soc. Sec., 411 F. App'x 781, 786
(6th Cir. 2010) (citing 20 C.F.R. § 416.925). An impairment that

has been replaced by Listing 1.15, which has different criteria.
Compare, 85 FR 78164 *78179-80, with 20 C.F.R. pt. 404, Subpt. P.,
App. 1 § 1.04 (2019). The revised Listings were effective April 2,
2021, and were only given prospective application. 85 FR 78164
*78164. Listing 1.04 was in effect when the ALJ rendered his
decision on March 24, 2020, and it still applies to Riccota’s case.
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Case 1:20-cv-01259-tmp Document 24 Filed 08/02/22 Page 33 of 35

PageID 1871

manifests only some of the criteria, no matter how severely, does
not qualify. See Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
If the claimant presents sufficient evidence to raise a
“substantial question” at step three, “[a]n administrative law
judge must compare the medical evidence with the requirements for
Listed

Impairments

in

considering

whether

the

condition

is

equivalent in severity to the medical findings for any Listed
Impairment.” Reynolds, 424 F. App'x at 415. Additionally, the ALJ
looks to the opinions of the State agency medical advisors and/or
the opinion of a testifying medical expert for guidance on the
issue

of

whether

the

claimant's

impairment

is

the

medical

equivalent of a Listing. See 20 C.F.R. § 404.1526(c) and (d); SSR
17-2p, 2017 WL 3928306, at *3-4 (Mar. 27, 2017); Deters v. Sec'y
of Health, Educ. & Welfare, 789 F.2d 1181, 1186 (5th Cir. 1986).
The Sixth Circuit has instructed that when an ALJ finds that a
claimant does not meet or medically equal a specific Listing, the
ALJ must actually evaluate the evidence, compare it to the section
of the Listing at issue, and give an explained conclusion, in order
to facilitate meaningful judicial review. Reynolds, 424 F. Appx.
at 415-16. “Without it, it is impossible to say that the [ALJ's]
decision

at

Step

Three

was

supported

by

substantial

evidence.” Id. at 416 (citing Burnett v. Comm'r of Soc. Sec., 220
F.3d 112, 120 (3d Cir. 2000); Senne v. Apfel, 198 F.3d 1065, 1067
(8th Cir. 1999); Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir.
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PageID 1872

1996)). However, the Sixth Circuit has also held that if there are
sufficient factual findings elsewhere in the ALJ's opinion, those
findings

are

sufficient

to

support

their

conclusion

at

step

three. Forrest v. Comm'r of Soc. Sec., 591 F. App'x 359, 366 (6th
Cir. 2014); Bledsoe v. Barnhart, 165 F. App'x 408, 411 (6th Cir.
2006) (looking to findings elsewhere in the ALJ's decision to
affirm a step-three medical equivalency determination and finding
no need to require the ALJ to “spell out every fact a second
time”).
Here, the ALJ determined that Riccota had the following severe
impairments: “obesity, status post lumbar fusion, asthma, and
tachycardia.” (R. 13.) However, the ALJ concluded that these
impairments did not meet or medically equal the severity of a
Listed

Impairment.

(Id.)

Specifically,

the

ALJ

stated,

“No

treating or examining physician has mentioned findings equivalent
in severity to the criteria of any Listed Impairment, nor does the
evidence show medical findings that are the same or equivalent to
those of any listed impairment.” (R. 15.) Specifically in regard
to Listing 1.04, the ALJ stated:
The claimant’s spinal disorder fails to meet or
medically equal section 1.04. The record evidence fails
to demonstrate a nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of
motion of the spine, motor loss accompanied by sensory
reflex loss, and positive straight leg raising in both
the sitting and supine positions (1.04A). Furthermore,
the
record
evidence
fails
to
establish
spinal
arachnoiditis (1.04B) or lumbar spinal stenosis with
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PageID 1873

pseudoclaudication
(1.04C).
Accordingly,
the
undersigned finds that the claimant’s spinal disorder
fails to meet or medically equal listing level severity.
(Id.)
Riccota does not identify which section of the Listing he
believes he meets, nor does he provide any evidence that he
fulfills the requirements of Listing 1.04. This argument is not
sufficiently developed and is therefore waived. See Leary, 528
F.3d at 449; see also Rogers, 486 F.3d at 247 (“It is not sufficient
for a party to mention a possible argument in the most skeletal
way, leaving the court to . . . put flesh on its bones.”) Further
the undersigned finds that the ALJ’s determination that Riccota
did not meet a Listing under 20 CFR § 404.1520(a)(4)(iii) is
supported by substantial evidence.
III. CONCLUSION
For the reasons above, the decision of the Commissioner is
AFFIRMED.
IT IS SO ORDERED.
s/ Tu M. Pham
____
TU M. PHAM
Chief United States Magistrate Judge
August 2, 2022
Date

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___