Venable v. Commissioner of Social Security

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHRISTOPHER JOHN VENABLE,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant,
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)
)
)
)
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)
)
)
)
CASE NO. 3:25-CV-00483-JJH
JUDGE JEFFREY J. HELMICK
UNITED STATES DISTRICT JUDGE
MAGISTRATE JUDGE
CARMEN E. HENDERSON
REPORT & RECOMMENDATION
I. Introduction
Plaintiff, Christopher John Venable (“Venable” or “Claimant”), seeks judicial review of
the final 	decision 	of 	the Commissioner 	of 	Social 	Security 	denying 	his 	applications 	for
Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). This matter is
before me pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), and Local Rule 72.2(b). For the reasons
set forth below, it is RECOMMENDED that the Court OVERRULE Claimant’s Statement of
Errors and AFFIRM the Commissioner’s decision.
II. Procedural History
On November 14, 2022, Venable filed an application for DIB and on November 18,
2022, he filed an application for SSI, both alleging a disability onset date of April 4, 2022. (ECF
No. 7, PageID #: 46). The applications were denied initially and upon reconsideration, and
Venable requested a hearing before an administrative law judge (“ALJ”). 	(Id.). 	On March 20,
2024, an ALJ held a hearing, during which Claimant, represented by counsel, and an impartial
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vocational expert testified. 	(See id. at PageID #: 64-84). 	On May 6, 2024, the ALJ issued a
written decision finding Venable was not disabled. 	(See id. at PageID #: 46-58). 	The ALJ’s
decision became final on January 24, 2025, when the Appeals Council declined further review.
(Id. at PageID #: 29-31).
On March 11, 2025, Venable filed his Complaint to challenge the Commissioner’s final
decision. 	(ECF No. 1.) 	The parties have completed briefing in this case. (ECF Nos. 8, 10).
Venable asserts the following assignments of error:
(1) The ALJ erred when he failed to properly apply the criteria of
Social 	Security 	Ruling 	96-8p 	and 	consider 	all 	Plaintiff’s
impairments and related limitations when forming the residual
functional capacity evaluation.
(2) The ALJ erred when he failed to support his conclusions or
discuss supportability and consistency when he evaluated the
opinions of the treating, examining, and reviewing sources.
(3) The ALJ erred at Step Three of the Sequential Evaluation when
he failed to find that Plaintiff satisfied the criteria of Listing
11.02.
(ECF No. 8 at 1).
III. Background
A. Relevant Evidence
Throughout his decision, the ALJ summarized the relevant evidence, including Venable’s
disability allegations and the medical records:
The claimant’s last generalized tonic-clonic seizure happened in
November 2018, per the claimant’s Neurologists. There was a
reported tonic-clonic seizure in June 2023, that occurred in the
setting of missed anti-epileptic drugs. Furthermore, the claimant’s
psychiatric history and significant stress raises suspicion for
concurrent psychogenic nonepileptic seizures given the multiple
unremarkable EEGs and imaging (Exhibits B-5F/5, B17F/11).
During a 69-hour ambulatory EEG in November 2022, the
claimant marked an aura that had no abnormal EEG correlate
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(Exhibit B-6F/11). During another continuous video EEG in
February 2023, there was one pushbutton event of less than 30
seconds with no clear EEG background change with the event
(Exhibit B-11F/14). Additionally, medication non-compliance has
been a concern (Exhibits B-6F/42, B-13F/7). The claimant does
not take his medication when he drinks (Exhibit B-3F/13) which he
occasionally does per his father (Exhibit B-2F/6). He has missed
doses when sleeping (Exhibit B-13F/15).
…
The claimant attended an intake assessment at Firelands Regional
Medical Center in January 2023. He reported feeling sad, empty,
and hopeless, after experiencing a lot of losses (sister, great
grandparent, grandfather had passed away) and losing
independence from not being able to drive. He presented with
psychomotor retardation, feeling like a burden on his family with
whom he lived and who were supporting him until he gets SSDI.
He reported suicidal thoughts with a plan and admitted to owning
weapons. He reported feeling dread and irritable, with fatigue and
muscle tension, and was easily distracted. He presented with a
depressed mood, a flat affect, and some short-term memory
impairment. Intake diagnoses were major depressive disorder
single episode moderate and generalized anxiety disorder (Exhibit
B-10F/2). He admitted to financial stress, difficulties at home with
his stepfather’s temper, drinking wine using marijuana less than
once per month. He initiated medication reviews at Firelands and
received case management services (Exhibits 11F/12, 16) through
May 2023 (Exhibit 14F).
Consultative examiner Sudhir Dubey, PsyD, interviewed the
claimant in February 2023 for a psychological assessment in
connection with this application. The claimant reported a history of
seizures since childhood, arthritis of the left ankle, depression, and
anxiety since 2014 when his seizures restarted, and anger issues
since childhood. He lived with his mother, stepfather, and uncle.
The death of his sister in 2016 contributed to his depression, as did
financial issues. Sleep improved to seven or eight hours with
medication. Anxiety symptoms of increased heart rate and
thoughts occurred two to three days per week with no specific
trigger. He was seeing a psychiatrist and a counselor every two
weeks. He reported alcohol use between the ages of 16 and 22,
when he drank six beers and two or three shots about three times
per week, but he quit on his own. He had an IEP from first through
eleventh grade, but graduated high school with overall grades of
As and Bs. He received tutoring and modified testing. He had
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many friends in school and got along with others and with teaches
[sic]. The claimant quit working because of seizures in April 2022,
after being a carpenter for ten months. He was independent in
activities of daily living, shopping, managing money, caring for
pets, taking medications, maintaining a schedule, and doing
paperwork. He enjoyed working on cars, listening to music,
watching television, spending time with his family, walking,
exercising, and church. Eye contact was appropriate, posture, gait
and speech, unremarkable. He was calm and stable, did not need
words explained/defined or directions/questions repeated. Based
on performance, math skills were in the average range, general
fund of knowledge too and the ability to abstract was appropriate.
While cognitive function was estimated to be within the average
range, he demonstrated cognitive issues in being able to do two
digits backwards and not recalling three items after a five-minute
delay. Dr. Dubey offered diagnoses of alcohol use disorder
moderate in sustained remission, depressive disorder not otherwise
specified and unspecified neurocognitive disorder.
The claimant testimony focused on seizure activity and how he is
unable to drive because of it. He testified to taking his medications
and to no longer attending mental health services due to
transportation limitations (hearing testimony).
…
The undersigned carefully considered the claimant's statements
concerning their impairments and the effects of these on the ability
to perform work activity. He testified to not doing much because of
depression and anxiety as well as transportation limitations that has
limited attendance to therapy. He also testified to not working
primarily due to not knowing when he will have a seizure (hearing
testimony). In contrast, the activities reported in early 2023,
including shopping, caring for pets, maintaining a schedule,
working on cars and trucks, walking, hunting, and fishing,
exercising, and going to the YMCA three times per week (Exhibit
B-12F/5, B- 2F) involve handling guns, fishing gear, vehicle parts,
being in public, while managing time. The wide array of said
activities do not support fears of not knowing when a seizure
would come on, or the alleged level of fatigue (Exhibit B-3E/2),
the frequency of seizures alleged (hearing testimony) or disabling
intensity of residual psychologically based symptoms. The
claimant testified to having two to three seizures per month,
sometime a couple in a day, that require two to three days to
recover from (hearing testimony). While the claimant reports aura
episodes, his neurologist finds the last seizure was in November
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2018, followed by a reported tonic-clonic seizure in June 2023,
that occurred in the setting of missed anti-epileptic drugs and
severe stress (Exhibits B-17F/11).
(ECF No. 7, PageID #: 50-51, 54).
B. Opinion Evidence at Issue
The ALJ also considered various medical opinions in considering Plaintiff’s disability
claim. In addition to the opinions of the State agency medical and psychological consultants, the
ALJ considered the opinions of Plaintiff’s neurology care provider Alexandra McCarthy and
consultative examiner Sudhir Dubey. (ECF No. 7, PageID #: 55-56). These opinions and the
ALJ’s treatment of them are discussed in greater detail in relation to Plaintiff’s arguments.
IV. 	The ALJ’s Decision
The ALJ made the following findings relevant to this appeal:
1. 	The claimant meets the insured status requirements of the Social
Security Act through June 30, 2027.
2. 	The claimant has not engaged in substantial gainful activity since
April 4, 2022, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).
3. 	The claimant has the following severe impairments:
Seizures/temporal lobe epilepsy, fracture of the left orbit, bilateral
ankle arthritis and mild degenerative changes /status-post right
ankle sprain, anxiety, learning disorder (reading and writing), mild
neurocognitive disorder, depression unspecified (20 CFR
404.1520(c) and 416.920(c)).
4. 	The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
5. 	After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except postural limitations of no climbing of ladders,
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ropes, or scaffolds. Frequent climbing of ramps and stairs.
Occasional use of the bilateral lower extremities for operation of
foot controls. Environmental limitations to avoid all exposure to
moving mechanical parts, commercial driving, and high exposed
places. Additional environmental limitations to avoid more than
occasional, concentrated exposure to extreme cold, and vibrations.
Can understand, remember, and carry out simple instructions,
orally presented, or by demonstration, explained in advance, for
work not requiring a specific production rate, such as assembly
line work, nor work requiring hourly quotas. No instructions
provided in writing. Capable of using judgement to make simple
work-related decisions, with occasional changes in a routine work
setting. Occasional interaction with the general public, coworkers,
and supervisors
6. 	The claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).
…
10. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569, 404.1569a, 416.969, and 416.969a).
11. The claimant has not been under a disability, as defined in the
Social Security Act, from April 4, 2022, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
(ECF No. 7, PageID #: 48-50, 53, 56-58).
V. Law & Analysis
A. Standard of Review
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.” Winn v.
Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see also 42 U.S.C. § 405(g).
“[S]ubstantial 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
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support a conclusion.’” 	Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)
(quoting Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)).
“After the Appeals Council reviews the ALJ’s decision, the determination of the council
becomes the final decision of the Secretary and is subject to review by this Court.” Olive v.
Comm’r of Soc. Sec., No. 3:06 CV 1597, 2007 WL 5403416, at *2 (N.D. Ohio Sept. 19, 2007)
(citing Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990); Mullen v. Bowen, 800 F.2d 535,
538 (6th Cir. 1986) (en banc)). If the Commissioner’s decision is supported by substantial
evidence, it must be affirmed, “even if a reviewing court would decide the matter differently.”
Id. (citing 42 U.S.C. § 405(g); Kinsella v. Schweiker, 708 F.2d 1058, 1059–60 (6th Cir. 1983)).
B. Standard for Disability
The Social Security regulations outline a five-step process that the ALJ must use in
determining whether a claimant is entitled to supplemental-security income or disability-
insurance benefits: (1) whether the claimant is engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment or combination of impairments; (3) if so, whether
that impairment, or combination of impairments, meets or equals any of the listings in 20 C.F.R.
§ 404, Subpart P, Appendix 1; (4) if not, whether the claimant can perform her past relevant
work in light of her residual functional capacity (“RFC”); and (5) if not, whether, based on the
claimant’s age, education, and work experience, she can perform other work found in the
national economy. 20 C.F.R. § 404.1520(a)(4)(i)–(v); Combs v. Comm’r of Soc. Sec., 459 F.3d
640, 642–43 (6th Cir. 2006). The claimant bears the ultimate burden of producing sufficient
evidence to prove that she is disabled and, thus, entitled to benefits. 20 C.F.R. § 404.1512(a).
Specifically, the claimant has the burden of proof in steps one through four. Walters v. Comm’r
of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner at step
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five to establish whether the claimant has the residual functional capacity to perform available
work in the national economy. Id.
C. Discussion
Venable raises three issues on appeal. 	Plaintiff first argues the ALJ failed to properly
consider all of Plaintiff’s impairments and limitations when crafting the RFC. (ECF No. 8 at 1).
Next, Plaintiff argues the ALJ failed to properly support his conclusions concerning the medical
opinions by addressing the supportability and consistency of the opinions. 	(Id.). 	Finally,
Plaintiff argues the ALJ erred when he found Plaintiff did not meet Listing 11.02. (Id.).
1. 	Consideration of All Impairments
Plaintiff argues “the ALJ failed to consider the totality of the effects related to Plaintiff’s
continuing seizures, his psychological impairments, and the residual effects of his bilateral ankle
arthritis,” specifically Plaintiff’s report of continuing pain. 	(ECF No. 8 at 9). 	Plaintiff
summarizes the medical record and asserts that it “supported the fact that Plaintiff had pain
issues which interfered with his ability to sustain even his activities of daily living” such that the
ALJ’s failure to consider Plaintiff’s pain was harmful error necessitating remand. (Id. at 8-10).
The 	Commissioner 	responds 	that 	“the 	ALJ 	plainly 	considered 	all 	of 	Plaintiff’s
impairments, finding all of the impairments cited in Plaintiff’s argument to be severe at Step
Two and then evaluating them throughout the remainder of the sequential evaluation.” (ECF No.
10 at 11) (record citation omitted). 	The Commissioner argues Plaintiff is simply asking the
Court to reweigh the evidence, but such is improper and does not alter the fact that substantial
evidence supports the ALJ’s decision. (Id. at 11-12).
The Commissioner’s argument is persuasive. 	As indicated by the Commissioner, the
ALJ’s decision makes clear that he considered Plaintiff’s seizures, psychological impairments,
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and bilateral ankle arthritis because the ALJ found each of these impairments to be severe and
specifically discussed why he found they warranted the limitations included in Plaintiff’s RFC.
(See ECF No. 7, PageID #: 49, 54). As to Plaintiff’s ankle pain, the ALJ explained that such had
“diminished claimant’s exertional capacity” but there was “no indication of an inability to
perform work at the light level of exertion, provided the postural restriction of no climbing of
ladders, ropes or scaffolds … as well as slight limitation in climbing ramps and stairs, and only
occasional operation of foot controls.” 	(Id. at PageID #: 54). 	The ALJ adopted the more
restrictive of the two State agency medical opinions based on Plaintiff’s feet and ankle
conditions. 	(Id. at PageID #: 55). 	The records Plaintiff cites regarding his ankle pain—which
reflect x-rays showing mild degenerative changes and appointment notes indicating Plaintiff
complained of pain, declined surgery, and reported “significant relief with the use of [a] brace”
and being “able to walk for exercise and work without increased pain”—support the ALJ’s
conclusion concerning Plaintiff’s abilities. (See id. at PageID #: 461, 485-86).
The ALJ’s decision makes clear that he considered all of Plaintiff’s impairments and the
limitations he found supported by the record in formulating the RFC and substantial evidence
supports that conclusion. Plaintiff is essentially asking the Court to reweigh the evidence, but it
is not the role of this Court “to reconsider the facts, re-weigh the evidence, resolve conflicts in
evidence, decide questions of credibility, or substitute its judgment for that of the ALJ.”
Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011) (citing Youghiogheny &
Ohio Coal Co. v. Webb, 49 F.3d 244, 246 (6th Cir. 1995)). Rather, because substantial evidence
supports the Commissioner’s decision, the Court must defer to it, “even if there is substantial
evidence that would have supported an opposite conclusion.” 	Wright v. Massanari, 321 F.3d
611, 614 (6th Cir. 2003).
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2. 	Consideration of the Medical Opinions
Plaintiff next challenges the ALJ’s consideration of the medical opinions.
At step four, the ALJ must determine a claimant’s RFC by considering all relevant
medical and other evidence. 20 C.F.R. § 416.920(e). Under the current regulations, the SSA
“will not defer or give any specific evidentiary weight, including controlling weight, to any
medical opinion(s) or prior administrative medical finding(s).” 20 C.F.R. § 416.920c(a).
Nevertheless, an ALJ must “articulate how [he] considered the medical opinions and prior
administrative medical findings” in adjudicating a claim. Id. Medical source opinions are
evaluated using the factors listed in 20 C.F.R. § 416.920c(c). The factors include supportability;
consistency; the source’s relationship with the claimant; the source’s specialized area of practice,
if any; and “other factors that tend to support or contradict a medical opinion.” 20 C.F.R. §
416.920c(c). The ALJ is required to explain how he considered the supportability and
consistency of a source’s medical opinion but generally is not required to discuss other factors.
20 C.F.R. § 416.920c(b)(2). Under the regulations, “[t]he more relevant the objective medical
evidence and supporting explanations presented by a medical source are to support his or her
medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical
opinions or prior administrative medical finding(s) will be” and “[t]he more consistent a medical
opinion(s) or prior administrative medical finding(s) is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical findings(s) will be.” 20 C.F.R. § 416.920c(c)(1)-(2).
a. 	McCarthy’s Opinion
The ALJ explained his consideration of McCarthy’s opinion as follows:
Neurology care provider Alexandra McCarthy, PA-C, offered a
medical source statement in October 2022 (Exhibit 5F/1) providing
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a 	description 	of 	myoclonus 	seizures 	with 	memory 	changes,
convulsive with alternation of awareness during the episodes.
Altered mental status following the event involving confusion,
exhaustion, and difficulty concentrating, can last 30 minutes or
more, requiring the claimant rest at least 30 minutes after the
event. The physician assistant opined that unpredictability results
in safety concerns, and that stress can precipitate seizures, but the
claimant 	is 	capable 	of 	low 	stress 	work. 	The 	undersigned
considered the opinion of physician assistant McCarthy as it
pertains to safety concerns and to difficulty with stress and has
provided 	environmental 	and 	non-exertional 	restrictions 	in 	the
assessed 	residual 	functional 	capacity. 	However, 	the 	record
establishes that compliance with medications has been of concern
and a subject of discussion during appointments. The claimant has
admitted to the provider. He misses doses when sleeping (Exhibit
B-5F/5, 13F/7), or when drinking (Exhibit B-2F/6), which the
opinion did not consider. The need for unscheduled breaks and
being absent four days per month, is not supported by the record
that reflects a level of activity not consistent with being able to
keep a schedule. As such, the opinion of physician assistant
McCarthy is mostly persuasive.
(ECF No. 7, PageID #: 55).
Plaintiff argues “the ALJ failed to support his determination that the opinion … was not
consistent with the medical records” because while the ALJ noted that Plaintiff would miss doses
when drinking, the “[t]he referenced note from an emergency room admission does not reflect
anyone stating that he was drinking.” (ECF No. 8 at 14). 	While Plaintiff recognizes that other
notes reflect that he would miss doses of his medication, he argues that his levels remained in the
therapeutic range. (Id.).
The Commissioner responds that the ALJ “correctly observed that nothing in PA-C
McCarthy’s opinion expressly considered Plaintiff’s lack of consistent medication compliance,
and the ALJ’s consideration of that omission in assessing the persuasiveness of the opinion was
reasonable.” 	(ECF No. 10 at 13-14). 	Additionally, the Commissioner asserts that the ALJ
properly relied on Plaintiff’s daily activities being inconsistent with the portions of McCarthy’s
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opinion pertaining to absenteeism and a need for unscheduled breaks. (Id. at 14).
Plaintiff is correct that the records cited by the ALJ do not reflect a correlation between
drinking and missing doses of medication. 	However, as noted by the ALJ and as Plaintiff
appears to concede, Plaintiff admitted to missing doses of his medication throughout the record,
although largely attributed to sleep rather than drinking. 	(See ECF No. 7, PageID #: 493, 520,
526, 918, 922, 926). 	Regardless of the reason Plaintiff missed doses of his medication, it was
reasonable for the ALJ to find McCarthy’s opinion less than fully persuasive given it did not
consider Plaintiff’s non-compliance with his medication routine.
Further, the ALJ found McCarthy’s opinions concerning the need for unscheduled breaks
and absenteeism were not supported by the record, specifically Plaintiff’s activities. (ECF No. 7,
PageID #: 55). Earlier in the opinion, the ALJ highlighted that in early 2023, Plaintiff’s reported
activities included “shopping, caring for pets, maintaining a schedule, working on cars and
trucks, walking, hunting, and fishing, exercising, and going to the YMCA three times per week”
and these activities “involve handling guns, fishing gear, vehicle parts, being in public, while
managing time” which did “not support fears of not knowing when a seizure would come on, or
the alleged level of fatigue, the frequency of seizures alleged or disabling intensity of residual
psychologically based symptoms.” (Id. at PageID #: 54; (record cites removed) see id. at PageID
#: 865, 910).
Considering the ALJ’s decision as a whole, the ALJ adequately explained why he found
McCarthy’s 	opinions 	concerning 	Plaintiff’s 	need 	for 	additional 	breaks 	and 	absenteeism
unsupported and inconsistent with the record, and substantial evidence supports this decision.
b. 	State Agency and Consultive Examiner Opinions
In addition to challenging the ALJ’s consideration of McCarthy’s opinion, Plaintiff
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makes brief references to Dr. Dubey’s opinions and the State agency consultants’ opinions, all of
which the ALJ found persuasive or somewhat persuasive, and argues that “although the ALJ
found that these reports from the treating, examining, and reviewing examiners were at least
partially persuasive, he failed to include the totality of the opined limitations in the RFC.” (Id. at
14-15). Without specific citations, Plaintiff asserts that “[t]hese omitted limitations included the
fact that Plaintiff would have an altered mental status for 30 minutes after a seizure and that he
could perform simple instructions, such as one-step processes, was able to maintain attention and
concentration for simple tasks but not multi-step tasks independently, and he may have some
difficulty in dealing with work pressure.” (Id. at 15).
The Commissioner responds that the RFC fully accounts for the limitations assessed by
the State agency. 	(ECF No. 10 at 15). 	To the extent Plaintiff “references a purported opinion
that [he] would have an altered mental status for 30 minutes after a seizure,” the Commissioner
argues such is “not a medical opinion because it is not a statement about what the claimant can
still do despite his impairment and whether he has one or more impairment-related limitations or
restrictions.” 	(Id.). 	Finally, the Commissioner argues that Plaintiff’s allegation that the ALJ
failed to consider the supportability and consistency of the State agency and consultative
examiner is not developed and the ALJ’s decision indicates he considered the appropriate
factors. (Id. at 15-16).
It 	is 	unclear 	which 	aspect 	of 	the ALJ’s 	treatment 	of 	these opinions 	Plaintiff 	is
challenging. To the extent Plaintiff argues the opinions included limitations for “altered mental
status for 30 minutes after a seizure,” such was only mentioned in McCarthy’s opinion and was
discounted by the ALJ based on Plaintiff’s reported activities as discussed above. 	(ECF No. 7,
PageID #: 489-90). 	Neither the State agency nor Dr. Dubey’s opinion contained similar
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observations or limitations. 	(Id. at PageID #: 89-118, 908-14). 	Regarding Plaintiff’s argument
that “he could perform simple instructions, such as one-step processes, was able to maintain
attention and concentration for simple tasks but not multi-step tasks independently, and he may
have some difficulty in dealing with work pressure,” Plaintiff fails to articulate how the RFC is
inconsistent with or fails to account for these limitations. 	The ALJ’s RFC indicated Plaintiff
could “understand, remember, and carry out simple instructions, orally presented, or by
demonstration, explained in advance, for work not requiring a specific production rate, such as
assembly line work, nor work requiring hourly quotas,” and further limited him to “using
judgment to make simple work-related decisions, with occasional changes in a routine work
setting.” (Id. at PageID #: 53). Thus, contrary to Plaintiff’s argument, the ALJ largely adopted
the limitations from the persuasive opinions and adequately explained his reasoning for not
including additional limitations. Plaintiff’s second argument is without merit.
3. 	Listing 11.02
Finally, Plaintiff challenges the ALJ’s conclusion that he did not meet Listing 11.02.
(ECF No. 8 at 17).
At step three, an ALJ considers whether a claimant’s impairment is severe enough to
prevent them from completing gainful activity. 20 C.F.R. § 404.1525. If an impairment meets
or equals a “Listing of Impairments,” they are presumed disabled. 	Id.; Lee v. Comm’r of Soc.
Sec., 529 F. App’x 706, 710 (6th Cir. 2013) (“A claimant who meets or equals a listed
impairment is presumptively disabled, without consideration of her age, education, or work
experience.”). To meet a listing, the claimant “must satisfy all of the [listing’s] criteria.” Nash
v. Comm’r of Soc. Sec., No. 19-6321, 2020 WL 6882255, at *3 (6th Cir. Aug. 10, 2020). 	The
claimant “bears the burden of showing that an impairment meets or equals a listed impairment.”
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Id. 	If the ALJ’s listing finding is supported by substantial evidence, based on the record as a
whole, the Court will defer to the ALJ’s finding, “[e]ven if the record could support an opposite
conclusion.” 	Id. at *4. 	Moreover, if the ALJ’s listing finding is not supported by substantial
evidence, the error is harmless if the claimant cannot show that her impairments met or
medically equaled a listing. See Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 366 (6th Cir.
2014).
Listing 11.02 addresses epilepsy. Under the listings, epilepsy is defined as “a pattern of
recurrent and unprovoked seizures that are manifestations of abnormal electrical activity in the
brain.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 11.00(H)(1). Listing 11.02 provides:
Epilepsy, documented by a detailed description of a typical seizure
and characterized by A, B, C, or D:
A. Generalized tonic-clonic seizures ((see 11.00H1a), occurring at
least once a month for at least 3 consecutive months (see 11.00H4)
despite adherence to prescribed treatment (see 11.00C); or
B. Dyscognitive seizures (see 11.00H1b), occurring at least once a
week for at least 3 consecutive months (see 11.00H4) despite
adherence to prescribed treatment (see 11.00C); or
C. Generalized tonic-clonic seizures (see 11.00H1a), occurring at
least once every 2 months for at least 4 consecutive months (see
11.00H4) despite adherence to prescribed treatment (see 11.00C);
and a marked limitation in one of the following:
1. 	Physical functioning (see 11.00G3a); or
2. 	Understanding, remembering, or applying information (see
11.00G3b(i)); or
3. 	Interacting with others (see 11.00G3b(ii)); or
4. 	Concentrating, 	persisting, 	or 	maintaining 	pace 	(see
11.00G3b(iii)); or
5. 	Adapting or managing oneself (see 11.00G3b(iv)); or
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D. Dyscognitive seizures (see 11.00H1b), occurring at least once
every 2 weeks for at least 3 consecutive months (see 11.00H4)
despite adherence to prescribed treatment (see 11.00C); and a
marked limitation in one of the following:
1. 	Physical functioning (see 11.00G3a); or
2. 	Understanding, remembering, or applying information (see
11.00G3b(i)); or
3. 	Interacting with others (see 11.00G3b(ii)); or
4. 	Concentrating, 	persisting, 	or 	maintaining 	pace 	(see
11.00G3b(iii)); or
5. 	Adapting or managing oneself (see 11.00G3b(iv)).
Id. at § 11.02. 	The phrase “despite adherence to prescribed treatment” means that the claimant
takes 	medication 	or 	follows 	other 	treatment 	procedures 	for 	his 	neurological 	disorder 	as
prescribed by a physician for three consecutive months, but the impairment continues to meet the
other listing requirements despite treatment. Id. at 11.00(C).
Here, the ALJ explained his consideration of whether Plaintiff’s seizures met a listing:
The claimant’s impairments fail to meet the requirements of
medical 	listing 	11.02A 	(Generalized 	tonic-clonic 	seizures) 	as
argued by the claimant’s representative during the hearing (hearing
record), for lack of generalized tonic-clonic seizures occurring
despite adherence to prescribed treatment at least once per month
for three consecutive months, or once every two months with a
marked limitation in one of the areas of the B criteria, or,
dyscognitive seizures occurring despite adherence to prescribed
treatment at least once a week for at least three consecutive
months, or once every two weeks for at least three consecutive
months with a marked limitation in one of the areas of the B
criteria. 	The 	claimant’s 	last 	generalized 	tonic-clonic 	seizure
happened in November 2018, per the claimant’s Neurologists.
There was a reported tonic-clonic seizure in June 2023, that
occurred in the setting of missed anti-epileptic drugs. Furthermore,
the claimant’s psychiatric history and significant stress raises
suspicion for concurrent psychogenic non-epileptic seizures given
the multiple unremarkable EEGs and imaging (Exhibits B-5F/5, B-
17F/11). During a 69-hour ambulatory EEG in November 2022,
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the claimant marked an aura that had no abnormal EEG correlate
(Exhibit 	B-6F/11). 	During 	another 	continuous 	video 	EEG 	in
February 2023, there was one pushbutton event of less than 30
seconds with no clear EEG background change with the event
(Exhibit B-11F/14). Additionally, medication non-compliance has
been a concern (Exhibits B-6F/42, B-13F/7). The claimant does
not take his medication when he drinks (Exhibit B-3F/13) which he
occasionally does per his father (Exhibit B-2F/6). He has missed
doses when sleeping (Exhibit B-13F/15).
(ECF No. 7, PageID #: 50).
Plaintiff argues the ALJ erred in finding that he did not meet the criteria of Listing 11.02
because the “evidence established that Plaintiff had the requisite number of seizures documented
by his treating neurologist and hospital records.” 	(ECF No. 8 at 17). 	Specifically, Plaintiff
argues “the treating neurology physician’s assistant noted that the seizures were occurring on a
regular and consistent basis of at least once per week for the requisite three months” such that
Plaintiff meets Listing 11.02B. 	(Id. at 19). 	The Commissioner responds that “the record does
not document Plaintiff experiencing at least one dyscognitive seizure per week for at least three
consecutive months despite adherence to prescribed treatment” as required under the relevant
Listing and even Plaintiff “relies, in part, on [his] testimony that he experienced seizures two to
three times per month, not weekly.” (ECF No. 10 at 18).
Plaintiff has failed to carry his burden of establishing that he meets the criteria of Listing
11.02(B). 	Importantly, 	to 	satisfy 	this 	Listing, 	Plaintiff 	must 	establish 	that 	he 	suffered
dyscognitive seizures at least once per week for at least three consecutive months despite
adherence to prescribed treatment. 20 C.F.R. pt. 404, subpt. P, app. 1, § 11.02(B). Plaintiff cites
to records indicating he suffered seizures in February 2022, June 2022, October 2022, June 2023,
and October 2023. 	(See ECF No. 7, PageID #: 421, 432, 493, 918, 1009). 	These records fall
short of establishing weekly seizures for three consecutive months as required. 	To the extent
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Plaintiff relies on a single report in October 2022 that he was “still experiencing” seizures
weekly, even if this statement is excepted as true, it does not establish when the weekly seizures
started or how long they continued such that it is insufficient to satisfy the requirements.
Further, even if the Court were willing to accept this record as sufficient support that Plaintiff
experienced the requisite weekly seizures for three consecutive months, Plaintiff still cannot
show that he meets the listing because this record confirms that he was not fully compliant with
his medications. (Id. at PageID 493 (noting that Plaintiff “missed doses due to sleeping”). Thus,
he cannot show that his seizures occurred despite adherence to prescribed treatment.
Because Plaintiff cannot show that he satisfies all the requirements of Listing 11.02(B),
any error in the ALJ’s step three analysis is harmless. 	See Forrest, 591 F. App’x at 366.
Plaintiff’s third argument is without merit.
VI. Recommendation
Based on the foregoing, it is RECOMMENDED that the Court OVERRULE Venable’s
Statement of Errors and AFFIRM the Commissioner’s decision.
Dated: November 10, 2025
_______________________________________________________
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of
Courts within fourteen (14) days after being served with a copy of this document. Failure to file
objections within the specified time may forfeit the right to appeal the District Court’s order. See
Berkshire v. Beauvais, 928 F. 3d 520, 530-31 (6th Cir. 2019).
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