Selner v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

MICHAEL S.,1 : Case No. 3:21-cv-00336

:

Plaintiff, : Magistrate Judge Caroline H. Gentry

: (by full consent of the parties)

vs.

:

:

COMMISSIONER OF THE SOCIAL

:

SECURITY ADMINISTRATION,

:

Defendant. :

DECISION AND ORDER

Plaintiff filed an application for Supplemental Security Income (SSI) on

November 13, 2015. Plaintiff’s claim was denied initially and upon reconsideration. After

a hearing at Plaintiff’s request, the Administrative Law Judge (ALJ) concluded that

Plaintiff was not eligible for benefits because he was not under a “disability” as defined

in the Social Security Act. After the Appeals Council denied Plaintiff’s request for review

of that decision, Plaintiff filed an action with this Court.2 The Court remanded the case to

the Commissioner under Sentence Four of 42 U.S.C. § 405(g). The Appeals Council

remanded the case pursuant to the District Court’s order. A different ALJ held another

hearing and again concluded that Plaintiff was not under a “disability” as defined in the

1 See S.D. Ohio General Order 22-01 (“The Committee on Court Administration and Case Management

of the Judicial Conference of the United States has recommended that due to significant privacy concerns

in social security cases federal courts should refer to claimants only by their first names and last

initials.”).

2 Assigned to Judge Michael J. Newman, Case Number 3:19-cv-00234.

Social Security Act. The Appeals Council denied Plaintiff’s request for review of that

decision, and Plaintiff subsequently filed this action.

Plaintiff seeks an order remanding this matter to the Commissioner for the award

of benefits or, in the alternative, for further proceedings. The Commissioner asks the

Court to affirm the non-disability decision. For the reasons set forth below, this Court

REVERSES the Commissioner’s decision and REMANDS for further proceedings.

I. BACKGROUND

Plaintiff asserts that he has been under a disability since September 15, 2014.3 At

the beginning of the relevant period, he was forty-eight years old and so was considered a

“younger person” under Social Security Regulations. See 20 C.F.R. § 416.963(c). He

subsequently turned age fifty and changed age categories to “closely approaching

advanced age.” 20 C.F.R. § 416.963(d). Plaintiff has a “high school education and

above.” See 20 C.F.R. § 416.964(b)(4).

The evidence in the Administrative Record (“AR,” ECF No. 8) is summarized in

the ALJ’s decision (id., PageID 708-20), Plaintiff’s Statement of Errors (“SE,” ECF No.

10), the Commissioner’s Memorandum in Opposition (“Mem. in Opp.,” ECF No. 11),

and Plaintiff’s Reply Memorandum (“Reply,” ECF No. 12). Rather than repeat these

summaries, the Court will discuss the pertinent evidence in its analysis below.

3 Regardless of the actual or alleged onset of disability, an SSI claimant is not entitled to SSI benefits

prior to the date that the claimant files an SSI application. Thus, the relevant time period in this case

began on the SSI protective filing application date of November 13, 2015. See 20 C.F.R. § 416.335;

Koster v. Comm’r of Soc. Sec., 643 F. App’x 466, 478 (6th Cir. 2016) (“For purposes of SSI, which is not

retroactive, the relevant period here is . . . the date [Plaintiff] filed his protective application.”).

II. STANDARD OF REVIEW

The Social Security Administration provides SSI to individuals who are under a

“disability,” among other eligibility requirements. Bowen v. City of New York, 476 U.S.

467, 470 (1986); see 42 U.S.C. §§ 402, 423(a)(1), 1382(a). The term “disability” means

“the inability to do any substantial gainful activity by reason of any medically

determinable physical or mental impairment which . . . has lasted or can be expected to

last for a continuous period of not less than 12 months.” 20 C.F.R. § 416.905(a).

This Court’s review of an ALJ’s unfavorable decision is limited to two inquiries:

“whether the ALJ applied the correct legal standards and whether the findings of the ALJ

are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,

406 (6th Cir. 2009); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence, shall be conclusive.”).

“Unless the ALJ has failed to apply the correct legal standards or has made findings of

fact unsupported by substantial evidence,” this Court must affirm the ALJ’s decision.

Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020). Thus, the Court “may

not try the case de novo, nor resolve conflicts in evidence, nor decide questions of

credibility.” Id.

“Under the substantial-evidence standard, a court looks to an existing

administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the

agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)

(citation omitted). This limited standard of review does not permit the Court to weigh the

evidence and decide whether the preponderance of the evidence supports a different

conclusion. Instead, the Court is confined to determining whether the ALJ’s decision is

supported by substantial evidence, which “means—and means only—‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.

(citation omitted). This standard “presupposes that there is a zone of choice within which

the decisionmakers can go either way, without interference by the courts.” Mullen v.

Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Thus, the Court may be required to affirm the

ALJ’s decision even if substantial evidence in the record supports the opposite

conclusion. Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997).

The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal

criteria—may result in reversal even when the record contains substantial evidence

supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651

(6th Cir. 2009). “[E]ven if supported by substantial evidence, ‘a decision of the

Commissioner will not be upheld where the SSA fails to follow its own regulations and

where that error prejudices a claimant on the merits or deprives the claimant of a

substantial right.’” Id. (citations omitted). Such an error of law will require reversal even

if “the outcome on remand is unlikely to be different.” Cardew v. Comm’r of Soc. Sec.,

896 F.3d 742, 746 (6th Cir. 2018) (internal quotations and citations omitted).

III. THE ALJ’S FACTUAL FINDINGS

The ALJ was tasked with evaluating the evidence related to Plaintiff’s application

for benefits. In doing so, the ALJ considered each of the five sequential steps set forth in

the Social Security Regulations. See 20 C.F.R. § 416.920. The ALJ made the following

findings of fact:

Step 1: Plaintiff has not engaged in substantial gainful activity since the SSI

application date of November 13, 2015.

Step 2: He has the severe impairments of “residual effects status-post closed

left ankle fracture and surgical correction with asymptomatic medial

malleolar nonunion; bipolar disorder, type I; anxiety disorder; panic

disorder without agoraphobia, and a history of mild alcohol abuse in

early remission.”

Step 3: He does not have an impairment or combination of impairments that

meets or equals the severity of one in the Commissioner’s Listing of

Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4: His residual functional capacity (RFC), or the most he can do despite

his impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235,

239 (6th Cir. 2002), consists of medium work as defined in 20

C.F.R. § 416.967(c), subject to the following limitations: “(1) no

climbing of ladders, ropes, or scaffolds; (2) no work around hazards,

such as unprotected heights or dangerous machinery; (3) no driving

of automotive equipment; (4) limited to performing simple,

repetitive tasks, with an SVP of 1 or 2; (5) occasional, superficial

contact with coworkers and supervisors, further defined as retaining

the ability to receive simple instructions, ask simple questions, and

receive performance appraisals, but lacking the ability to engage in

more complex social interaction, such as persuading other people or

resolving interpersonal conflicts; (6) no public contact; (7) no close,

over-the-shoulder supervision; (8) no fast-pace production work or

jobs that involve strict production quotas; (9) limited to performing

jobs that involve very little, if any, change in the job duties or the

work routine from one day to the next; and (10) no occupational

exposure to alcohol.”

He has no past relevant work.

Step 5: Considering Plaintiff’s age, education, work experience, and RFC,

there are jobs that exist in significant numbers in the national

economy that he can perform.

(AR, ECF No. 8-9, PageID 710-20.) These findings led the ALJ to conclude that Plaintiff

does not meet the definition of disability and is not entitled to benefits. (Id., PageID 720.)

IV. LAW AND ANALYSIS

Plaintiff asserts that the ALJ failed to properly evaluate the longitudinal record

from the SSI application date through March 2018. (SE, ECF No. 10, PageID 996.) For

several reasons, the Court finds that this assertion is well-taken. Plaintiff also contends

that the ALJ erred in his analysis of the opinions of treating psychologist Dr. Sheppard,

mental health provider Ms. Franks, and consultative physician Dr. Danopulos. (Id.)

Finding error in the ALJ’s analysis of the longitudinal record, the Court does not address

Plaintiff’s other assigned errors and instead instructs the ALJ to address all of them on

remand.

A. The ALJ’s RFC Is Not Supported By Substantial Evidence

A claimant’s residual functional capacity (“RFC”) describes the most he can do in

a work setting despite his physical and mental limitations. 20 C.F.R. § 416.945(a)(1).

Determination of the RFC is a task reserved for the ALJ. 20 C.F.R. § 416.946(c). When

formulating the RFC, the ALJ must consider the claimant’s “ability to meet the physical,

mental, sensory, and other requirements of work.” 20 C.F.R. § 416.945(a)(4). The ALJ

must base the RFC on all relevant evidence in the record. 20 C.F.R. § 416.945(a)(1).

Relevant evidence includes “information about the individual’s symptoms and any

‘medical source statements’—i.e., opinions about what the individual can still do despite

his or her impairment(s)—submitted by an individual’s treating source or other

acceptable medical sources.” SSR 96-8p, 1996 SSR LEXIS 5, *5-6 (July 2, 1996).

Here, although the ALJ stated that he considered the “overall objective evidence

of record,” he emphasized that Plaintiff’s condition had improved as of March 2018 due

to treatment compliance and substance use cessation. (AR, ECF No. 8-9, PageID 712-13,

715-16, 718.) The ALJ reasoned that because Plaintiff’s condition had improved, he did

not need to include more restrictive limitations in the RFC. (Id.) But by essentially

limiting his RFC assessment to evidence from the end of the relevant time period, the

ALJ did not fully account for the longitudinal evidence since the SSI application date.

Therefore, his RFC assessment is not supported by substantial evidence.

For example, when discussing Plaintiff’s mental impairments in connection with

formulating the RFC, the ALJ summarized the objective evidence from the application

date through March 2018 in just one sentence: “[Plaintiff’s] treatment notes show that he

has a history of impairment with memory through 2017 (1F/18, 1F/22, 5F/10, 5F/13,

5F/17, 5F/23, 5F/25, 6F/5, 10F/5, 13F/1, 13F/6, 16F/1).” (AR, ECF No. 8-9, PageID 715-

16.) Conversely, the ALJ provided a detailed and lengthy description of the objective

evidence dated since March 2018. (Id., PageID 716.) He described several evaluations

and concluded that although some of them showed tangential thought associations and

impaired judgment, all of the other findings were “average” or normal. (Id.)

The evidence prior to March 2018, however, shows several other abnormalities in

addition to an impaired memory. For example, in mental health treatment notes dated

between January 2016 and March 2018, Plaintiff complained of symptoms associated

with depression and anxiety, including anhedonia, fatigue, feelings of worthlessness,

difficulty concentrating, panic attacks, worry, racing thoughts, irritability, and feeling

tense. (E.g., AR, ECF No. 8-7, PageID 518; ECF No. 8-14, PageID 917.) He also

reported manic symptoms including racing thoughts, hyperactivity, talkativeness,

increased goal-oriented activity, and flight of ideas. (Id.) Counselor Joseph Cimoch,

L.P.C.C. indicated in January 2016 that Plaintiff appeared anxious and was “overly

verbal.” (AR, ECF No. 8-8, PageID 679, 685.) Mr. Cimoch also reported that Plaintiff

minimized his alcohol use, isolated from others, and reported a low level of motivation.

(Id.) The RFC did not adequately account for this evidence.

It is true that Plaintiff’s mental status examinations showed some normal findings,

such as a euthymic mood, full-ranged affect, cooperative behavior, and no suicidal or

homicidal ideation. (AR, ECF No. 8-7, PageID 366, 512, 514, 544.) But Plaintiff’s

providers also documented abnormalities that included pressured or rapid speech,

hyperkinetic movements, tangential and/or disorganized thought processes, impaired

insight, and impairment of memory and/or concentration. (AR, ECF No. 8-7, PageID

366, 512, 516, 518, 547; ECF No. 8-14, PageID 917.) Notably, in addition to omitting

this evidence from the RFC analysis, the ALJ also failed to mention any of these findings

in the “Paragraph B” analysis at Step 3. (AR, ECF No. 8-9, PageID 712-13.)

Accordingly, the Court finds that the ALJ’s one-sentence summary of the pre-

March 2018 evidence failed to address significant evidence that supports Plaintiff’s

mental health complaints. The ALJ’s failure to consider this evidence signifies an

impermissibly selective review of the record. E.g., Minor v. Comm'r of Soc. Sec., 513

Fed. App’x 417, 435 (6th Cir. 2013) (reversing where the ALJ “cherry-picked select

portions of the medical record”). An ALJ is not required to directly address every piece

of evidence submitted by a party. Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 469,

508 (6th Cir. 2006). But the ALJ’s failure to acknowledge almost any of the Plaintiff’s

mental health evidence before the end of the relevant time period leads the Court to

conclude that the RFC is not supported by substantial evidence.

B. The ALJ Failed to Consider Whether a Closed Period of Disability

Was Warranted.

A claimant must meet the twelve-month durational requirement before he can be

found disabled. 42 U.S.C. § 423(d)(1)(A). The Sixth Circuit has held that while “[t]he

Act itself does not provide for a closed period of benefits . . . we think it clear that such a

closed period of benefits may be awarded.” Myers v. Richardson, 471 F.2d 1265, 1267

(6th Cir. 1972). Thus, a claimant who satisfies the twelve-month durational requirement

“may be entitled to benefits from the time his disability commences until such time as the

disability ceases.” Lang v. Sec'y of Health & Hum. Servs., No. 88-1561, 1989 WL 40188,

at *2 (6th Cir. 1989) (citing Howse v. Heckler, 782 F.2d 626 (6th Cir.1986)).

An ALJ need not use any “magic words” to indicate that he has considered

whether a closed period of disability is warranted. Sielaff v. Comm’r of Soc. Sec., No.

1:10-CV-1571, 2012 WL 567614, at *1 (N.D. Ohio Feb. 21, 2012). But the ALJ must

nevertheless consider “every period during which [a claimant] may have been disabled.”

Cash v. Comm’r of Soc. Sec., No. 3:16-CV-175, 2017 WL 3473813, at *4 (S.D. Ohio

Aug. 14, 2017) (Newman, M.J.) (citation omitted), report and recommendation adopted,

No. 3:16-cv-175, 2017 WL 3769371 (S.D. Ohio Aug. 29, 2017) (Rice, D.J.).

Here, given the ALJ’s heavy reliance on evidence showing that Plaintiff’s

condition had improved, it is apparent that he failed to consider whether Plaintiff might

be entitled to a closed period of disability. This error, too, requires reversal.

C. The ALJ Failed to Comply With SSR 16-3p When Evaluating

Plaintiff’s Symptom Severity

The ALJ reversibly erred by failing to comply with the Social Security

Administration’s rule for evaluating symptom severity, SSR 16-3p, when he evaluated

the longitudinal record. Specifically, the ALJ apparently relied upon Plaintiff’s

noncompliance with treatment prior to March 2018 to conclude that his symptoms were

not disabling. Because the ALJ did not comply with the requirements of SSR 16-3p when

he drew this conclusion, reversal is required.

When a claimant alleges symptoms of disabling severity, the Social Security

Administration requires ALJs to use a two-step process for evaluating an individual’s

symptoms. SSR 16-3p, 2017 WL 5180304, *3 (revised and republished Oct. 25, 2017).

At the first step, the ALJ must “determine whether the individual has a medically

determinable impairment that could reasonably be expected to produce the individual’s

alleged symptoms.” SSR 16-3p at *3. The ALJ must make this determination based upon

objective medical evidence in the form of medical signs or laboratory findings. Id.

Medical signs are “anatomical, physiological, or psychological abnormalities established

by medically acceptable clinical diagnostic techniques that can be observed apart from an

individual’s symptoms.” Id. The ALJ will not consider whether the objective medical

evidence supports the alleged severity of the individual’s symptoms. Id.

At the second step, the ALJ must “evaluate the intensity and persistence of an

individual’s symptoms . . . and determine the extent to which an individual’s symptoms

limit his or her ability to perform work-related activities.” SSR 16-3p at *9. The Social

Security Administration “recognize[s] that some individuals may experience symptoms

differently and may be limited by symptoms to a greater or lesser extent than other

individuals with the same medical impairments, the same objective medical evidence,

and the same non-medical evidence.” Id. The ALJ must therefore examine “the entire

case record, including the objective medical evidence; an individual’s statements about

the intensity, persistence, and limiting effects of symptoms; statements and other

information provided by medical sources and other persons; and any other relevant

evidence in the individual’s case record.” Id.

When evaluating the intensity, persistence and limiting effects of the claimant’s

alleged symptoms, the ALJ must consider the following factors:

1. Daily activities;

2. The location, duration, frequency, and intensity of pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any medication an

individual takes or has taken to alleviate pain or other symptoms;

5. Treatment, other than medication, an individual receives or has received for

relief of pain or other symptoms;

6. Any measures other than treatment an individual uses or has used to relieve

pain or other symptoms (e.g., lying flat on his or her back, standing for 15

to 20 minutes every hour, or sleeping on a board); and

7. Any other factors concerning an individual's functional limitations and

restrictions due to pain or other symptoms.

SSR 16-3p at *7-8; cf. 20 C.F.R. § 416.929(c)(3). The ALJ need only discuss those

factors that are pertinent based upon the evidence in the record. Id. The ALJ's discussion

of the applicable factors “must contain specific reasons for the weight given to the

individual's symptoms, be consistent with and supported by the evidence, and be clearly

articulated so the individual and any subsequent reviewer can assess how the adjudicator

evaluated the individual's symptoms.” Id. at *10.

As part of this analysis, the ALJ is required to determine whether an individual’s

symptoms and accompanying limitations are consistent with the evidence in the record.

SSR 16-3p at *8. For example, the ALJ will consider whether an individual’s statements

are consistent with his symptoms, keeping in mind that the statements may themselves be

inconsistent because “[s]ymptoms may vary in their intensity, persistence, and functional

effects, or may worsen or improve with time.” Id. at *8-9.

The ALJ will also consider whether the claimant sought medical treatment and

followed treatment that was prescribed. SSR 16-3p at *9. Attempts to obtain treatment

may show that symptoms are intense and persistent; conversely, a lack of such efforts

may show that an individual’s symptoms are not intense or persistent. Id. However, the

ALJ “will not find an individual’s symptoms inconsistent … on this basis without

considering possible reasons he or she may not comply with treatment or seek treatment

consistent with the degree of his or her complaints.” Id. The ALJ must consider these

reasons “before drawing an adverse inference from the claimant’s lack of medical

treatment.” Dooley v. Comm'r of Soc. Sec., 656 F. App'x 113, 119 (6th Cir. 2016).

Further, “if the individual fails to follow prescribed treatment that might improve

symptoms, [the ALJ] may find the alleged intensity and persistence of an individual’s

symptoms are inconsistent with the overall evidence of record.” Id. at *9. However, an

ALJ “will not find an individual’s symptoms inconsistent [] on this basis without

considering possible reasons he or she may not comply with treatment or seek treatment

consistent with the degree of his or her complaints.” Id. The SSR explains, for example,

that individuals may not seek or follow treatment due to side effects from medications, an

inability to afford treatment, or an inability to understand the need for treatment due to a

mental impairment. Id. at *9-10. The ALJ may need to contact the claimant—or to

question the claimant at the administrative hearing—to ascertain the reason(s) for the lack

of treatment. Id. at *9. The ALJ “will explain how [he or she] considered the individual’s

reasons” in the evaluation of the individual’s symptoms. Id. at *10 (emphasis added).

Here, the ALJ repeatedly stated that Plaintiff’s condition had improved as of

March 2018 because of treatment compliance and substance use cessation:

However, by March 2018, with treatment, [Plaintiff’s] objective

treatment notes show that his memory, including both recent and remote

memory, improved to average . . . . (AR, ECF No. 8-9, PageID 712)

However, with treatment, since March 2018, [Plaintiff’s] objective

treatment notes consistently show that his attention span and

concentration improved to average . . . . (Id., PageID 713)

Instead, the State Agency psychologist findings in 2016 are most

consistent with the overall objective evidence, including the objective

treatment notes, especially since early 2018. Prior to that time,

[Plaintiff] was non-compliant with alcohol and cannabis cessation . . . .

[Plaintiff] also had an alcohol relapse in 2017, where he was non-

compliant with his prescribed treatment plan of cessation . . . . [Plaintiff]

also has a past history of non-compliance with his medicines . . . .

However, when [Plaintiff] became compliant, his symptoms improved .

. . . Recent notes from May 2020 show that with treatment compliance,

[Plaintiff] now has average attention span and average concentration . . .

. (Id.)

However, [Plaintiff] became compliant with his treatment, including

alcohol cessation in 2018, and with cannabis cessation in 2017 or 2018 .

. . . (Id.)

[Plaintiff] alleged that he now only drinks alcohol on occasion, and the

notes show that when [Plaintiff] became complaint with alcohol

cessation, his symptoms improved, especially since March 2018,

because [Plaintiff] had a relapse in 2017 . . . . (Id., PageID 715-16)

[Plaintiff’s] treatment notes show that he has a history of impairment

with memory through 2017 . . . . However, since March 2018, when

[Plaintiff] became compliant with his treatment plan, the claimant’s

concentration and memory improved to “average” . . . . (Id., PageID

716)

Since [Plaintiff] was compliant with his treatment plan, including

marijuana and alcohol cessation, [Plaintiff’s] objective treatment notes

consistently show that his attention span and concentration improved to

average . . . . (Id.)

Moreover, Dr. Sheppard’s initial evaluation in 2016 occurred during a

time where [Plaintiff] was non-compliant with treatment, including with

medication, alcohol cessation, and marijuana cessation. The record

shows that when [Plaintiff] became compliant with his psychiatric

treatment, his symptoms improved. (Id. at PageID 717)

Notably, [Plaintiff] has been mostly compliant with his treatment since

March 2018, and his symptoms have notably improved since that time,

which is inconsistent with Ms. Franks’ submitted opinion (Id. at PageID

718).

(AR, ECF No. 8-9, PageID 712-13, 715-16, 718.) The ALJ concluded that

although Plaintiff’s medically determinable impairments could reasonably be

expected to cause the symptoms alleged, Plaintiff’s statements about the intensity,

persistence, and limiting effects of his symptoms were “not entirely consistent

with the medical evidence and other evidence in the record.” (Id., PageID 714-15.)

The ALJ’s approach does not comply with the Social Security

Administration’s requirement that an ALJ consider why a claimant’s treatment

history is inconsistent with his complaints when evaluating symptom severity:

[I]f the frequency or extent of the treatment sought by an individual is not

comparable with the degree of the individual's subjective complaints, or if

the individual fails to follow prescribed treatment that might improve

symptoms, we may find the alleged intensity and persistence of an

individual's symptoms are inconsistent with the overall evidence of record.

We will not find an individual's symptoms inconsistent with the evidence

in the record on this basis without considering possible reasons he or she

may not comply with treatment or seek treatment consistent with the

degree of his or her complaints. We may need to contact the individual

regarding the lack of treatment or, at an administrative proceeding, ask why

he or she has not complied with or sought treatment in a manner consistent

with his or her complaints. . . . We will explain how we considered the

individual's reasons in our evaluation of the individual's symptoms.

SSR 16-3p, 2017 WL 5180304, *9-10 (revised and republished Oct. 25, 2017) (emphasis

added). Notably, SSR 16-3p requires an ALJ to consider possible reasons why a claimant

failed to seek medical treatment consistent with the degree of his or her complaints

“before drawing an adverse inference from the claimant’s lack of medical treatment.”

Dooley v. Comm'r of Soc. Sec., 656 F. App'x 113, 119 (6th Cir. 2016). An individual’s

inability to understand the need for consistent treatment and an individual’s lack of

awareness that treatment is needed4 are two possible reasons an ALJ should consider

when evaluating a claimant’s lack of treatment. SSR 16-3p at *10.

The ALJ failed to comply with SSR 16-3p because he did not consider possible

reasons why Plaintiff failed to comply with or seek treatment consistent with the degree

4 SSR 16-3p specifically states that a mental impairment that affects judgment, reality testing, or orientation may

prevent an individual from being aware that she has a disorder that requires treatment. 2017 WL 5180304 at *10.

of his complaints. The ALJ also did not develop the record regarding possible reasons for

Plaintiff’s noncompliance as required by SSR 16-3p. During the July 2020 hearing, the

ALJ asked Plaintiff about his mental health treatment and his drinking. (AR, ECF No. 8-

9, PageID 733-51.) Plaintiff testified that he had seen Dr. Sheppard and Sara Ferguson at

Eastway Mental Health “once every couple of months.” (Id., PageID 736, 749-51.)

Plaintiff explained that he had difficulty concentrating and remembering, which made it

difficult to keep track of medical appointments. (Id., PageID 743, 749.) When the ALJ

asked about alcohol use, Plaintiff acknowledged a history of alcohol use but said he was

no longer drinking. (Id., PageID 747.) He said he “went on . . . a three or four week

binge” after he “got turned down” after “[t]he State hearing” and had not consumed

alcohol since then. (Id., PageID 747-48.) But the ALJ did not ask Plaintiff why he was

noncompliant with treatment recommendations, including a recommendation to stop

drinking alcohol, prior to March 2018. (Id., PageID 733-51.)

SSR 16-3p recognizes that an individual’s mental impairments and limitations

may prevent an individual from understanding the need for treatment, or may affect the

individual’s judgment to the point he is unaware he has a disorder which requires

treatment. 2017 WL 5180304 at *10. Similarly, the Sixth Circuit has observed that “it is a

questionable practice to chastise one with a mental impairment for the exercise of poor

judgment in seeking rehabilitation.” Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir.

1989). Here, the ALJ did not acknowledge, much less address, Plaintiff’s explanation that

his difficulties with concentration and memory caused difficulty keeping track of medical

appointments. (AR, ECF No. 8-9 PageID 743, 749.) The ALJ did not consider any other

possible explanations for Plaintiff’s failure to comply with or seek treatment consistent

with the degree of complaints alleged. Nor did the ALJ develop the record by inquiring

about why Plaintiff was noncompliant with or failed to seek treatment. The ALJ’s failure

to comply with SSR 16-3p is an error of law that warrants reversal.

D. The ALJ Reversibly Erred By Failing to Comply With SSR 13-2p

When Evaluating Plaintiff’s Substance Abuse.

The ALJ also erred by failing to comply with the Social Security Administration’s

rule for evaluating substance abuse, SSR 13-2p, when he evaluated the longitudinal

record. For this reason, too, reversal is required.

The Social Security Act provides that “[a]n individual shall not be considered to

be disabled . . . if alcoholism or drug addiction would . . . be a contributing factor

material to the Commissioner's determination that the individual is disabled.” 42 U.S.C.

§ 1382c(a)(3)(J). Social Security Ruling 13–2p interprets this regulation and governs the

evaluation of cases involving drug addiction and alcoholism (DAA). 2013 WL 621536

(Feb. 20, 2013) (effective March 22, 2013).

SSR 13-2p applies if “evidence from acceptable medical sources … establish[es]

that DAA is a medically determinable impairment(s).” 2013 WL 621536 at *3. The ALJ

will determine materiality if: (1) there is “medical evidence from an acceptable medical

source establishing that a claimant has a Substance Use Disorder,” and (2) the claimant is

found to be disabled “considering all impairments, including the DAA.” Id. at *4; see

also 20 C.FR. § 404.1535. The ALJ must decide “whether the claimant would continue to

be disabled if he or she stopped using drugs or alcohol, that is . . . whether DAA is

material to the finding that the claimant is disabled.” Id. (emphasis in original). If the

claimant were to stop using drugs or alcohol, DAA is material if he would not be disabled

in that circumstance, and is not material if he would be disabled in that circumstance. Id.

Here, the ALJ did not consider Plaintiff’s alcohol abuse in the manner required by

SSR 13-2p. The ALJ did find that Plaintiff’s history of alcohol abuse was a severe

impairment at Step 2. (AR, ECF No. 8-9, PageID 710.) But instead of considering the

cumulative effect of Plaintiff’s alcoholism on his alcoholic neuropathy, cirrhosis, and

other impairments—as required by SSR 13-2p—the ALJ only considered whether

Plaintiff’s alcoholism detracted from the consistency of his reported symptoms. (Id.,

PageID 712-13, 715-16, 718.)

The ALJ’s comments about Plaintiff’s noncompliance with substance abuse

recommendations prior to March 2018 suggests that the ALJ essentially considered the

net effects of Plaintiff’s severe impairments in the sequential evaluation process for that

time period. This was incorrect. The ALJ should have first considered the full effects of

Plaintiff’s impairments, including alcohol abuse, and then proceeded to determine

whether Plaintiff’s alcoholism was material—that is, whether he would or would not

have been disabled if he had stopped the alcohol abuse. See SSR 13-2p. Thus, the ALJ

failed to apply the correct legal standard for evaluating Plaintiff’s alcoholism. This failure

constitutes reversible error and is another reason why the case should be remanded.

VI. CONCLUSION

In sum, the ALJ’s RFC is unsupported by substantial evidence, the ALJ failed to

consider whether a closed period of disability is warranted, and the ALJ failed to evaluate

Plaintiff’s symptom severity and substance use in accordance with the applicable Social

Security rules. Accordingly, reversal is warranted. The Court does not address Plaintiff’s

other assigned errors and instead instructs the ALJ to address all of them on remand. In

light of the Court’s opinion, however, the ALJ should reconsider its reliance on a finding

that Plaintiff’s condition improved by March 2018 to discount the medical opinions.

VII. REMAND

Under Sentence Four of 42 U.S.C. § 405(g), the Court has authority to affirm,

modify, or reverse the Commissioner’s decision “with or without remanding the cause for

rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand

under Sentence Four may result in the need for further proceedings or an immediate

award of benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041

(6th Cir. 1994). The latter is warranted where the evidence of disability is overwhelming

or where the evidence of disability is strong while contrary evidence is lacking. Faucher

v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994).

A judicial award of benefits is unwarranted in the present case because the

evidence of disability is neither overwhelming nor strong while contrary evidence is

lacking. Faucher, 17 F.3d at 176. However, Plaintiff is entitled to an Order remanding

this case to the Social Security Administration pursuant to Sentence Four of Section

405(g) for the reasons stated above. On remand, the ALJ should further develop the

record as necessary, particularly as to the time period prior to March 2018 and to the

medical opinions of record, and evaluate the evidence of record under the applicable legal

criteria mandated by the Commissioner’s regulations and rulings and governing case law.

The ALJ should evaluate Plaintiff’s disability claim under the required five-step

sequential analysis to determine anew whether Plaintiff was under a disability and

whether his application for SSI should be granted.

IT IS THEREFORE ORDERED THAT:

1. Plaintiff’s Statement of Errors (Doc. 10) is GRANTED;

2. The Court REVERSES the Commissioner’s non-disability determination;

3. No finding is made as to whether Plaintiff was under a “disability” within

the meaning of the Social Security Act;

4. This matter is REMANDED to the Social Security Administration under

Sentence Four of 42 U.S.C. § 405(g) for further consideration consistent

with this Decision and Order; and

5. This case is terminated on the Court’s docket.

s/ Caroline H. Gentry

Caroline H. Gentry

United States Magistrate Judge