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March 12, 2026 Get Citation Alerts Download PDF Add Note

R.A. v. Frank Bisignano, Commissioner of Social Security

District Court, D. Colorado

• Citations: None known
• Docket Number: 1:24-cv-01566

• Precedential Status: Unknown Status

• Opinion

• Authorities (3)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 24-cv-01566-CYC

R.A.1,

Plaintiff,

v.

FRANK BISIGNANO, Commissioner of Social Security,2

Defendant.

                    ORDER                                        

Cyrus Y. Chung, United States Magistrate Judge.

This case illustrates the folly of considering an argument first raised in a reply brief.
Contending that the Court erred in applying a rescinded regulation in its previous decision in this
case, R.A. v. Dudek, No. 24-cv-01566-CYC, 2025 WL 887408, at *3–4 (D. Colo. Mar. 21, 2025),
the Social Security Commissioner (“Commissioner”) moves to alter the judgment. ECF No. 21.
Because the Commissioner is correct that, under current regulations, an administrative law judge
(“ALJ”) need not obtain and consider the opinion of a medical expert on the question of medical
equivalence at step three of the evaluation process and because substantial evidence exists to
support the ALJ’s decision that the plaintiff’s migraines were not the equivalent of a per se
disability, the Commissioner’s motion is GRANTED.

1 Pursuant to D.C.COLO.LAPR 5.2(b), this order identifies the plaintiff by initials only.
2 Frank Bisignano has become the Commissioner of Social Security and is automatically
substituted as the defendant in this case pursuant to Fed. R. Civ. P. 25(d).
The Court assumes general familiarity with its previous opinion. That opinion,
considering case law cited for the first time in the plaintiff’s reply brief, held that the ALJ erred
by failing to receive a medical opinion on step-three equivalence. R.A., 2025 WL 887408, at *4
(citing Social Security Ruling (“SSR”) 96-6P, 1996 WL 374180, at *3 (July 3, 1996)). Judgment

entered accordingly. ECF No. 20. The Commissioner moves to alter the judgment.
A motion to amend or alter the judgment must be filed “no later than 28 days after the
entry of the judgment.” Fed. R. Civ. P. 59(e). The motion was timely filed here. See ECF No. 21.
Such a motion “is appropriate where the court has misapprehended the facts, a party’s position,
or the controlling law,” not “to revisit issues already addressed or advance arguments that could
have been raised in prior briefing.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000). Having not had that prior opportunity when the Court considered the plaintiff’s reply
argument, the Commissioner now correctly points out that “SSR 96-6P was rescinded and
replaced by SSR 17-2p, effective March 27, 2017.” Pascuzzo v. Colvin, No. 16-cv-02989-CMA, 2017 WL 6033680, at *3 n.1 (D. Colo. Sep. 12, 2017). The Court’s prior analysis therefore

misapprehended the controlling law.

That does not end the matter, though. The plaintiff also argued that the ALJ’s explanation
of why he rejected her migraines as being equivalent to a per se listing at step three was
insufficient. ECF No. 13 at 16–19. The Court’s previous opinion did not address this argument.
That now requires consideration of the argument under the correct standard. The plaintiff
bears the “step three burden to present evidence establishing her impairments meet or equal
listed impairments.” Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005) (citing Burnett
v. Comm’r, 220 F.3d 112, 120 n.2 (3d Cir. 2000)).

To demonstrate the required support of a finding that an individual is disabled based
on medical equivalence at step 3, the record must contain one of the following:
1. A prior administrative medical finding from an [Medical Consultant] or
[Psychological Consultant] from the initial or reconsideration adjudication
levels supporting the medical equivalence finding, or

2. [Medical Expert] evidence, which may include testimony or written
responses to interrogatories, obtained at the hearings level supporting the
medical equivalence finding, or

3. A report from the [Appeals Council]’s medical support staff supporting
the medical equivalence finding.

SSR 17-2P, 2017 WL 3928306, at *3 (Mar. 27, 2017). The plaintiff relies on the second of these
categories. See ECF No. 16 at 4.

At step three, when an ALJ “believes that the evidence already received in the record
does not reasonably support a finding that the individual’s impairment(s) medically equals a
listed impairment, the adjudicator is not required to articulate specific evidence supporting his or
her finding that the individual’s impairment(s) does not medically equal a listed impairment.”
SSR 17-2P, 2017 WL 3928306, at *4 (Mar. 27, 2017). Instead, at this step, “a statement that the
individual’s impairment(s) does not medically equal a listed impairment” generally “constitutes
sufficient articulation for this finding.” Id. Thus, an “ALJ [is] not required to point to evidence
disproving each criterion of the listing.” J.C. v. Comm’r Soc. Sec. Admin., No. 23-cv-01754-
RMR, 2024 WL 1694061, at *3 (D. Colo. Mar. 29, 2024).

That is what the ALJ did. Noting that “there are no listing criteria for headaches,” the ALJ
considered “the most closely analogous listed impairment,” epilepsy in listing 11.02. ECF No. 12
at 25. After so considering, he concluded that “there is no evidence that the claimant’s primary
headache disorder medically equals a listing, either individually or in combination with another
impairment.” Id. At step three, no more was exigible.

Of course, an ALJ’s explanation of his decision must be sufficient to allow for
meaningful judicial review. See Lindsay M. v. Kijakazi, No. 2:21-cv-02063-EFM, 2022 WL
612452, at *10 (D. Kan. Mar. 2, 2022). But that explanation need not be self-contained at step
three. Instead, “an ALJ’s findings at other steps of the sequential process may provide a proper
basis for upholding a step three conclusion that a claimant’s impairments do not meet or equal
any listed impairment.” Fischer-Ross, 431 F.3d at 733; see SSR 17-2P, 2017 WL 3928306, at *4

(“An adjudicator’s articulation of the reason(s) why the individual is or is not disabled at a later
step in the sequential evaluation process will provide rationale that is sufficient for a subsequent
reviewer or court to determine the basis for the finding about medical equivalence at step 3.”).
Here, they do.

The ALJ, for instance, noted that the evidence showed that the plaintiff’s migraines were
not as frequent as she claimed. ECF No. 12 at 31. In the record the ALJ cited, the plaintiff
reported that “she ha[d] not had” a migraine “in a while.” ECF No. 12 at 911. This is significant:
when considering migraines’ equivalency to listing 11.02, a court must consider that
“[p]aragraph B of listing 11.02 requires dyscognitive seizures occurring at least once a week for
at least 3 consecutive months despite adherence to prescribed treatment.” SSR 19-4P, 2019 WL

4169635, at *7 (Aug. 26, 2019). Likewise, “[p]aragraph D of listing 11.02 requires dyscognitive
seizures occurring at least once every 2 weeks for at least 3 consecutive months despite
adherence to prescribed treatment, and marked limitation in one area of functioning.” Id. Migraines that had not come for “a while” are inconsistent with the frequency required for
medical equivalency to listing 11.02.

The plaintiff protests. Elsewhere in the record, she says, she complained more frequently
of migraines and, thus, the ALJ’s conclusion that “no evidence” supported medical equivalency
is unsupported. ECF No. 16 at 6–7. But some of her citations merely note by way of medical
history that she has migraines. See ECF No. 12 at 465, 472, 598, 654, 910–11. Others recount
specific instances, spaced months or years apart, of the plaintiff seeking help for migraine-related
symptoms. See id. at 754, 866. None constitute “a description from a medical source detailing all
symptoms, duration, intensity, frequency, adherence to prescribed treatment, side effects of
treatment, and resulting limitations in functioning,” N.V.T. v. Dudek, No. 23-cv-02588-LTB, 2025

WL 2490478, at *5 (D. Colo. Apr. 8, 2025) (citing SSR 19-4p, 2019 WL 4169635, at *7), such
that the ALJ’s comment about the lack of evidence supporting medical equivalency would be
divorced from reality. Indeed, while some of the records to which the plaintiff points note a
frequency that might fall within listing 11.02, none of them — or at least none to which she
directs the Court — detail how long that frequency persisted, let alone that it did for the three
months required for medical equivalency with listing 11.02.

The plaintiff also attacks the ALJ’s “no evidence” verbiage, ECF No. 12 at 25, by arguing
that it hid an implicit corollary that she suffered from zero migraines. ECF No. 16 at 7–9. But the
ALJ’s conclusion that no evidence of equivalence existed is not the same as stating that no
evidence of migraines existed. Fairly read, it simply asserts — and the plaintiff has not rebutted

— that no record evidence satisfied the various criteria required by SSR 19-4p for medical
equivalency to listing 11.02. That is unsurprising; SSR 19-4 itself predicts that medical
equivalency between a primary headache disorder and epilepsy would be “uncommon.” 2019
WL 4169635, at *7. This case, then, simply falls within that prediction.

The short of it is that the Court’s earlier decision on the necessity of a medical opinion at
step three was incorrect and, measured by the correct standards, the ALJ’s decision at step three
was sufficiently grounded in substantial evidence.

For the foregoing reasons, then, the Commissioner’s Motion to Alter or Amend Judgment
Pursuant to Fed. R. Civ. P. 59(e), is GRANTED. This matter is REMANDED for further
proceedings consistent with this opinion, pursuant to 42 U.S.C. § 405 (g).
SO ORDERED this 12th day of March, 2026, at Denver, Colorado.
BY THE COURT:

                                Cyrus Y. Chung 
                               United States Magistrate Judge