Gilliam v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

DESTINY G.,1 : Case No. 3:22-cv-00286

:

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) in January

2021. 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.2 The Appeals Council denied Plaintiff’s request for review. 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

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 Plaintiff identifies as male and will be referred to as such in this decision.

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 January 20, 2019.3 He

was twenty-four years old on the date that he filed his SSI application. Accordingly,

Plaintiff was considered a “younger person” under Social Security Regulations. 20 C.F.R.

§ 416.963(c). He has a “high school education and above.” 20 C.F.R. § 416.964(b)(4).

The evidence in the Administrative Record (“AR,” Doc. No. 7) is summarized in

the ALJ’s decision (“Decision,” Doc. No. 7-2 at PageID 35-58), Plaintiff’s Statement of

Errors (“SE,” Doc. No. 8), and the Commissioner’s Memorandum in Opposition (“Mem.

In Opp.,” Doc. No. 10). Rather than repeat these summaries, the Court will discuss the

pertinent evidence in its analysis below.

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).

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 period of consideration in

this case begins on January 4, 2021. See 20 C.F.R. § 416.335; Koster v. Comm’r of Soc. Sec., 643 Fed.

Appx. 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.”).

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

“[W]hether 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. FACTS

A. 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 January

4, 2021, the application date.

Step 2: He has the severe impairments of peripheral neuropathy, lumbar

degenerative disc disease, headaches, complex regional pain

syndrome (CRPS), obesity, anxiety, depression, schizoaffective

disorder, bipolar type, and gender dysphoria.

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 light work as defined in 20 C.F.R.

§ 416.967(b), subject to the following limitations: “(1) frequently

balancing; (2) occasionally climbing ramps and stairs, stooping,

kneeling, crouching, and crawling; (3) never climbing ladders, ropes,

or scaffolds; (4) no exposure to unprotected heights or moving

mechanical parts; (5) occasional[,] superficial interaction with

coworkers and supervisors but no teamwork, tandem tasks, conflict

resolution[,] or over-the-shoulder supervision (“superficial contact”

is defined as retaining the ability to receive simple instructions, ask

simple questions, and receive performance appraisals but as lacking

the ability to engage in more complex social interactions such as

persuading other people or rendering advice); (6) no contact with the

general public as part of job duties; and (7) occasional changes in an

otherwise routine work setting explained in advance to allow time

for adjustment to new expectations.”

He is unable to perform any of his 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.

(Decision, Doc. No. 7-2 at PageID 41-53.) These findings led the ALJ to conclude that

Plaintiff does not meet the definition of disability and so is not entitled to benefits. (Id. at

PageID 53-54.)

B. The ALJ’s Analysis of Plaintiff’s Symptom Severity

The ALJ summarized Plaintiff’s testimony, claimed symptoms, and subjective

complaints during his medical appointments. (Decision, Doc. No. 7-2 at PageID 40-49.)

The ALJ also explained the applicable legal standard for evaluating Plaintiff’s symptoms.

(Id. at PageID 51 (citing 20 C.F.R. § 416.929 and Social Security Ruling (SSR) 16-3p).)

The ALJ then found that Plaintiff’s complaints of disabling physical symptoms

were inconsistent with the objective medical evidence:

After careful consideration of the entire record, the undersigned finds that

[Plaintiff’s] medically determinable impairments could reasonably be

expected to cause the alleged symptoms; however, the extent of limitation

alleged - such as taking days to recover when walking longer than one hour

(Exhibit 4E at 1) - is largely unsubstantiated by convincing objective

medical evidence or clinical findings. There is no evidence of joint

abnormalities or other debilitating physical symptoms which would

compromise [Plaintiff’s] ability to perform any and all physical activity,

certainly given the imaging evidence and nerve conduction studies as well

as examination findings. [Plaintiff] has sufficient physical capacity to

engage in activities like exercising with breaks (Exhibit 1F at 15) and

taking long walks despite pain (Exhibit 11F at 7) which actually has

responded “well” to physical therapy and medications (Exhibits 1F at 9, 11,

18 / 12F at 15).

(Decision, Doc. No. 7-2 at PageID 51-52.)

The ALJ also found that Plaintiff did not seek treatment at a level consistent with

his complaints of disabling mental symptoms. Specifically, although Plaintiff received

“some routine outpatient therapy . . . he has declined – or at least delayed – medication

management . . . and there is otherwise minimal evidence . . . of the type of treatment one

would reasonably expect” given Plaintiff’s claimed loss of functioning. (Decision, Doc.

No. 7-2 at PageID 52.)

The ALJ concluded that “[t]he evidence of record generally does not support the

alleged loss of functioning and allegations of disability are not persuasive.” (Decision,

Doc. No. 7-2 at PageID 52.) Therefore, the ALJ formulated an RFC that restricted

Plaintiff to a light exertion level, with postural restrictions and mental limitations. (Id.)

IV. LAW AND ANALYSIS

Plaintiff asserts that the ALJ erred by: 1) failing to properly weigh the medical

opinions of record; 2) insufficiently considering the appropriate Listings of Impairments

at Step Three of the sequential evaluation; and 3) failing to properly evaluate Plaintiff’s

symptom severity under Social Security Ruling (SSR) 16-3p. (SE, Doc. No. 8 at PageID

451, 460-76.) Finding error in the ALJ’s evaluation of Plaintiff’s subjective symptoms,

the Court does not address Plaintiff’s other alleged errors and instead instructs the ALJ to

address all of them on remand.

A. Applicable Law

The ALJ was required to comply with the applicable Social Security regulation

when evaluating Plaintiff’s symptoms. See 20 C.F.R. § 404.1529. Also, because Plaintiff

alleged symptoms of disabling severity, the ALJ was required to use a two-step process

for evaluating those symptoms. SSR 16-3p, 2016 SSR LEXIS 4, 2017 WL 5180304, *3

(revised and republished Oct. 25, 2017).4

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

4 Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all

components of the Social Security Administration. 20 C.F.R. § 402.35(b)(1).

individual’s symptoms.” Id. The ALJ will not, however, 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. § 404.1529(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).

B. The ALJ Reversibly Erred When Evaluating Plaintiff’s Symptom

Severity

The ALJ erred when analyzing Plaintiff’s symptom severity. Specifically, the ALJ

failed to consider possible reasons why Plaintiff did not seek treatment at a level

consistent with the degree of his complaints. Because the ALJ did not comply with the

requirements of SSR 16-3p, the Court reverses and remands the ALJ’s decision.

With respect to Plaintiff’s mental health, the ALJ acknowledged that he was

“diagnosed with a generalized anxiety disorder and a depressed/bipolar-type

schizoaffective disorder . . . and alleges a litany of symptoms largely consisting of panic

attacks, mood swings, socially avoidant behaviors, motor tension, and poor

concentration.” (Decision, Doc. No. 7-2 at PageID 42.) But the ALJ discounted the

opinion of treating mental health counselor Ms. French because “[Plaintiff] never been

psychiatrically hospitalized, and the relatively minimal treatment he has received for

depressive symptoms is inconsistent with the marked and extreme level ratings alleged by

Ms. French who apparently has treated [Plaintiff] for only 9 sessions.” (Id. at PageID 43.)

Finding that Plaintiff received minimal counseling and declined or delayed medication

for his mental health symptoms, the ALJ concluded that “there is otherwise minimal

evidence in the record of the type of treatment one would reasonably expect in order to

support the alleged loss of functioning.” (Id. at PageID 52).

The ALJ also relied on the conservative nature of Plaintiff’s treatment for his

physical impairments to discount the severity of his claimed symptoms. When analyzing

consultative physician Dr. Oza’s opinion, the ALJ discounted a proposed limitation for

sedentary to light work because it “seems to be based upon an uncritical acceptance of his

subjective complaints given that it is entirely disproportionate to [Plaintiff’s] conservative

treatment history and is inconsistent with nearly all of Dr. Oza’s own physical

examination findings.” (Decision, Doc. No. 7-2 at PageID 49.) Similarly, the ALJ

discounted physical therapist Lunsford’s opinion because “restricting [Plaintiff] to

performing at a sedentary exertional level is grossly disproportionate to these findings as

well as the conservative level of treatment he has received.” (Id.)

The ALJ supported her conclusions by citing Plaintiff’s minimal, conservative, or

routine treatment history. But she did not comply with the requirement to consider why a

claimant’s treatment history is inconsistent with his subjective complaints:

[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). This regulation 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 afford treatment and adverse medication side effects are two possible reasons

an ALJ should consider when evaluating a lack of treatment. SSR 16-3p at *10.

The ALJ plainly failed to comply with SSR 16-3p because she did not consider

possible reasons why Plaintiff failed to seek treatment consistent with the degree of his

complaints. For example, at the March 2022 hearing, Plaintiff testified that he had been

seeing a therapist since approximately March 2021. (AR, Doc. No. 7-2 at PageID 69.).

Plaintiff reported that he tried to see his therapist every other week, but she “cancel[led]

appointments more often than [he had] appointments.” (Id. at PageID 76-77.) Plaintiff

explained that he had not taken psychotropic medications because his therapist wanted to

“wor[k] with the behavior” before starting medication. (Id. at PageID 76.) He also

testified that he wanted to start seeing a “better therapist” but that he could not afford

one. (Id. at PageID 76-77.)

The ALJ asked Plaintiff questions about his medications and treatment in the past

three years. (Id. at PageID 79.) Plaintiff said that a previous pain medication, Duloxetine,

also treated his anxiety symptoms but caused “really terrible side effects.” (Id.) He had

not yet seen a psychiatrist but had an upcoming appointment with one for an assessment.

(Id. at PageID 80.) Plaintiff testified that he did not have CareSource insurance coverage

until November 2021 and did not know that he could apply for coverage sooner. (Id.)

Notably, the ALJ did acknowledge some of these statements in the decision. She

noted that Plaintiff “receives some counseling but not regularly and is not on medications

for financial reasons.” (Decision, Doc. No. 7-2 at PageID 40.) When the ALJ summarized

consultative psychologist Dr. Rosenthal’s report, she acknowledged Plaintiff’s statement

that he “no longer received counseling for financial reasons.” (Id. at PageID 43 (citing

AR, Doc. No. 7-7 at PageID 317).)

But although Plaintiff’s statements could provide a reasonable explanation for his

limited treatment history, the ALJ did not consider them when she evaluated the opinion

evidence and Plaintiff’s subjective complaints. For example, the ALJ ignored these

explanations when she rejected counselor French’s opinion because of “the relatively

minimal treatment” that Plaintiff had received. (Decision, Doc. No. 7-2 at PageID 43.)

Likewise, the ALJ ignored these explanations when she discounted the opinions of

consultative physician Dr. Oza and physical therapist Lunsford for being “entirely” and

“grossly disproportionate” to Plaintiff’s “conservative treatment history.” (Id. at PageID

49.) The ALJ also ignored Plaintiff’s explanations when she concluded that his treatment

history did not support the severity of his alleged symptoms. (Id. at PageID 52.)

The Court concludes that the ALJ did not comply with the applicable regulatory

framework when she evaluated Plaintiff’s symptom severity. This error of law requires

reversal. See Deanna S. v. Comm’r of Soc. Sec., No. 1:22-cv-602, 2023 U.S. Dist. LEXIS

172825, at *12-13 (S.D. Ohio Sept. 27, 2023) (Bowman, M.J.).

VI. REMAND

Under Sentence Four of 42 U.S.C. § 405(g), the Court has the 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 Plaintiff’s subjective complaints and treatment history, 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. No. 8) 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