UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ROBERT LYLE,

Plaintiff, 

vs.

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION,

Defendant.

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Case No. 3:17-cv-00368

District Judge Walter H. Rice

Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS1

I. Introduction

The Social Security Administration has twice denied Plaintiff Robert Lyle’s

October 10, 2010 application (protectively filed) for Supplemental Security Income. He

brings the present case challenging the most recent denial, which is embodied in 

Administrative Law Judge (ALJ) Eric Anschuetz’s written decision. ALJ Anschuetz 

concluded that Plaintiff was not eligible to receive Supplemental Security Income 

because he was not under a disability. (Doc. #6, PageID #s 841-66).

Plaintiff contends that ALJ Anschuetz erred in evaluating the opinions of various 

medical authorities, including his treating psychiatrist, an examining psychologist, and 

others. The Commissioner finds no error in ALJ Anschuetz’s decision and asks the Court 

 1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.
2

to affirm.

II. “Disability” Defined

Plaintiff’s eligibility to receive Supplemental Security Income hinged on whether 

he was under a “disability” as defined by social security law. See 42 U.S.C. § 1381a; see 

also Bowen v. City of New York, 476 U.S. 467, 470 (1986). Narrowed to its statutory 

definition, a person is “considered to be disabled ... if he is unable to engage in any 

substantial gainful activity by reason of any medically determinable physical or mental 

impairment which ... can be expected to last for a continuous period of not less than 

twelve months.” 42 U.S.C. § 1382c(a)(3)(A).

III. Background

Plaintiff asserts that his disabilities began on October 19, 2010, when he was 39

years old. This age placed him in the category of a younger person under social security 

law. 20 C.F.R. § 416.963(c). He did not complete high school. He worked, at various 

times, as a plumber’s assistant, a commercial cleaner, and a store laborer.

Plaintiff’s application for benefits was denied during a first round of

administrative proceedings by ALJ Mary F. Withum. (Doc. #6, PageID #s 989-1001). 

On appeal to this Court, Plaintiff established that ALJ Withum erred in her assessment of 

Plaintiff’s treating psychiatrist Mahmood Rahman, M.D.’s opinions. The errors deprived 

the ALJ’s decision of substantial supporting evidence, and the matter was remanded for 

further administrative proceedings. Id. at 966-80.

On remand, the matter was assigned to ALJ Anschuetz, who held a hearing during
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which Plaintiff testified that he started to have “really bad emotional issues...” before 

2010. Id. at 924. He explained, “I suffer with really severe depression....” Id. He 

understood that he was diagnosed with bipolar disorder, major depressive disorder, and 

post-traumatic stress disorder. Id. Medication did not help him. He felt medication hurt 

more than it helped. His physical condition caused his depression to get worse. He felt 

useless because he couldn’t do simple things, like play with his children.

Plaintiff told ALJ Anschuetz that sitting for 30 minutes would cause him a lot of 

pain. He described his pain as “really like arthritic, tightness in my back, and pain. And 

it’s about the same with standing up....” Id. at 925. He had spinal-fusion surgery in 

2013. Since then, he “had nothing but severe pain issues and very limited 

maneuverability and mobility with it....” Id.

Plaintiff rated his ability to focus as poor. He can’t read books or remember what 

he has read. Id. at 941. He has difficulty getting along, including his family. He spent 

some time in prison for domestic violence. And he seems to acknowledge that his posttraumatic stress disorder is from an assault he suffered in prison. Id.

IV. Medical Evidence

Mahmood Rahman, M.D

Dr. Rahman examined Plaintiff in May 2009 as part of an initial psychiatric 

evaluation. Plaintiff reported depression, decreased energy, decreased motivation, 

irritability, increased stress, hyperactivity, and insomnia. (Doc. #6, PageID #707). Dr. 

Rahman, Plaintiff’s treating psychiatrist, completed a Mental Functional Capacity 
4

Assessment in May 2009. He reported that Plaintiff had “marked” limitations in his

understanding and memory, sustained concentration and persistence, social interaction, 

and adaptation. His specific “marked” limitations included his ability to remember 

locations and work-like procedures; to understand and remember detailed instructions; to 

carry out detailed instructions; to maintain concentration and attention for extended 

periods; the ability to perform; to perform activities within a schedule, maintain regular 

attendance, and be punctual within customary tolerances; to sustain ordinary routine 

without special supervision; to work in coordination with or proximity to others without 

being distracted by them; to complete a normal workday or workweek without 

interruption from psychologically based symptoms; to interact appropriately with the 

general public; to accept instructions and respond appropriately to criticism from 

supervisors; and to be aware of normal hazards and take appropriate precautions. Id. at 

428. Dr. Rahman believed that Plaintiff was unemployable and would remain so for 12 

months or more. Id.

In November 2009, Dr. Rahman reached the same conclusions he had previously 

reached about Plaintiff’s many marked limitations. He again concluded that Plaintiff was 

unemployable for 12 months or more. Id. at 427. About one year later, Dr. Rahman 

identified nearly all of the same marked limitations and concluded he was unemployable 

for 12 months or more. Id. at 334.

In December 2010, Dr. Rahman diagnosed Plaintiff with Bipolar Affective 

Disorder (he used the acronym “BAD”). Id. at 380. He reported that Plaintiff was 
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emotionally labile and agitated, and his thinking disorder was characterized by

disorganized thoughts. He believed that Plaintiff’s cognitive functioning was impaired or 

compromised in many areas—specifically, his ability to maintain attention and

concentration; to persist at tasks and complete them in a timely fashion; and to socially 

interact. Id. at 379-80. Dr. Rahman noted that Plaintiff would be unable to work with 

stress. Id. 

In May 2011, Dr. Rahman again diagnosed Plaintiff with bipolar affective 

disorder. Id. at 425. He observed that Plaintiff’s flow of conversation and speech was 

“pressured,” his mood and affect were “labile,” and he showed signs of “severe anxiety.” 

Id. at 424. Plaintiff’s attention, concentration, and ability to socially interact were 

impaired or compromised, and Dr. Rahman concluded that Plaintiff was unable to work 

with stress. Id. at 425.

Michael W. Firmin, Ph.D.

In February 2011, psychologist Dr. Firmin evaluated Plaintiff at the request of the

state agency. Id. at 386-394. Dr. Firmin noticed that Plaintiff was “very fidgety and 

nervous.” Id. at 386. Plaintiff told Dr. Firmin that during his teen years, his family 

relationships were unsupportive, cold and distant, argumentative, and marked by physical 

fights. His family had recurrent financial problems. Id. at 388.

Plaintiff received below-average grades, had special tutoring, disliked school, got

along poorly with teachers, and experienced discipline problems. Plaintiff also told Dr. 

Firmin that he had experienced problems at work about his understanding what the boss 
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expected, speed of work, supervision difficulties, quality of work, and reprimands. Id. at 

389. Mental-health issues also impacted his past jobs, causing attendance problems due 

to depression, going home early due to anxiety or panic, difficulties due to anger or 

temper, avoiding co-workers to an extreme degree, not being able to control emotions 

while at work, not getting along with co-workers, and being distracted to the point of 

affecting his job performance. Id.

Dr. Firmin observed that Plaintiff’s overall presentation “exhibited mental health 

symptoms ... that seemingly might interfere with work-related activities because of 

mood, anxiety, attention, distractibility, excessive talking, and lack of focus.” Id. Dr. 

Firmin noted that Plaintiff’s “manner of dress was messy and his hygiene appeared poor,” 

and his “facial expressions were sad and nervous, and eye contact was shifting.” Id. 

Plaintiff’s “mood was generally downcast, nervous, and pessimistic, and his affect or

emotional responsiveness was judged to be sad.” Id. He “showed outward 

manifestations of sighing, fidgeting, picking, shifting, inattention, lack of focus, and 

excessive talking.” Id.

Plaintiff informed Dr. Firmin that his anxiety was triggered by stress, including 

significant life stress in his daily functioning. Id. at 389-90. Dr. Firmin wrote, “There 

were no indications of delusions, compulsions, obsessive thoughts, or phobias. 

Hallucinations of auditory kinds were noted, including hearing people talking in the 

backyard....” Id. at 390. Plaintiff informed Dr. Firmin that he was taking prescribed

medications, including Abilify, Tegretol, Invega, Adderall, Trazadone, and Oxycodone.
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Dr. Firmin opined that Plaintiff “presented as an individual who potentially 

possesses ADHD [attention deficit hyperactivity disorder].” Id. at 391. He diagnosed 

Plaintiff with bipolar II disorder, most recent episode depressed; generalized anxiety 

disorder; and alcohol, cocaine, and polysubstance dependence in full remission. Id.

As to Plaintiff’s mental-work abilities, Dr. Firmin concluded that Plaintiff’s ability

to relate to others—including fellow workers and supervisors—was markedly impaired. 

Id. at 392. Dr. Firmin further found that Plaintiff was moderately impaired in his abilities 

to understand, remember, and follow instructions for simple, repetitive tasks. He also 

thought Plaintiff was moderately impaired “relating to maintaining attention,

concentration, and persistence [and] pace to perform routine tasks...” id., and moderately 

impaired in “abilities to withstand stress and pressures associated with day-to-day work 

activity....” Id. at 393 (italics removed).

Robyn Hoffman, Ph.D. and Karen Terry, Ph.D.

In March 2011, psychologist Dr. Hoffman reviewed the record at the request of 

the state agency. She opined that Plaintiff was markedly limited in his ability to interact 

appropriate with the public. Id. at 127. Dr. Hoffman also concluded that Plaintiff was 

either moderately or not significantly limited in the other areas of mental-work 

functioning. She placed “partial weight” on Dr. Firmin’s opinions, and she noted that 

Plaintiff “is no more than moderately impaired in relating to others.” Id. at 128. Dr. 

Hoffman also concluded that Plaintiff could do “a variety of simple, routine tasks. No 

fast pace or strict quotas. No tasks requiring sustained concentration. [He] is capable of 
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performing tasks he can accomplish alone. No frequent changes. Any changes need [to 

be] explained and an adequate period of adjustment needed.” Id.

Three months later, Dr. Terry also concluded that Plaintiff was markedly impaired 

in his ability to interact appropriately with the general public. Id. at 144. Dr. Terry also 

agreed with Dr. Hoffman about Plaintiff’s moderate or insignificant limitations. Id. at 

144-45.

Hospitalizations

Plaintiff has a history of emergency-department visits and hospitalizations. A few 

examples are representative.

In March 2011, he went the emergency department where a mental-status 

evaluation revealed his mood was depressed, and his affect was consistent with 

depression. His had normal thought process but his insight and judgment were somewhat 

impaired. Id. at 435. He was diagnosed with a mood disorder and polysubstance 

dependency. Id. at 432. 

He was hospitalized in December 2011 after he phoned the police and stated that 

he was feeling suicidal. He told emergency-room personnel that he came to the hospital 

“’because of feeling suicidal...,” but he also stated, “I’m not but my wife threw away my 

pain meds.’” Id. at 625. His wife threw away his medications, id. at 626, because they 

made him like “a zombie.” Id. at 625. Hospital notes indicate that his wife was recently 

diagnosed with schizophrenia. A physician “recommended getting his psychiatric 

medications filled for his long-standing bipolar disorder and ADHD.” Id. at 624.
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In August 2012, Plaintiff was admitted to a hospital emergency department. His 

diagnoses consisted of bipolar disorder I, manic with “aggressive ideas in his mind 

toward self and others”; personality disorder with borderline personality

characteristics; and he had financial problems and “[n]oncompliance to 

treatment.” Id. at 746. Further notes state that his marital problems were severe and he 

presented with some suicidality and some homicidality. Id.

Additional Medical Evidence

Plaintiff had an MRI in February 2013 that revealed multilevel degenerative disc 

disease with disc herniations and various degrees of spinal canal and neural foraminal 

stenosis, most prominent at L1-L2, L4-L5, and L5-S1. Id. at 2169.

In April 2013, Plaintiff underwent a laminectomy and interbody fusion at L4 and 

L5. Id. at 2192-93. Plaintiff subsequently began treatment with Robert F. Linn, D.O. Id. 

at 1509-23. In April 2015, Dr. Linn wrote a brief letter containing his opinion about 

Plaintiff’s inability to work:

Robert [Lyle] is currently under medical care and is not able 

to work at this time. It is unknown when and if he will ever 

be able to resume any gainful employment. [His] current 

estimated return to work date is August 3, 2015.

Id. at 2581.

V. ALJ Anschuetz’s Decision

As noted previously, it fell to ALJ Anschuetz to evaluate the evidence connected 

to Plaintiff’s application for Supplemental Security Income. He did so by considering 

each of the five sequential steps set forth in the social security Regulations. See 20 
10

C.F.R. § 416.920. His significant findings for present purposes began with his 

conclusion that Plaintiff had severe impairments—lumbar spine degenerative disc 

disease; obesity; bipolar disorder; anxiety disorder; and substance abuse disorder—but 

his impairments did not constitute a disability under the Listings, 20 C.F.R. Part 404, 

Subpart P, Appendix 1.

The ALJ next found that the most Plaintiff could do despite his impairments, his 

residual functional capacity, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th 

Cir. 2002), was light work subject to certain mental and physical limitations. As to 

mental-work limitations, the ALJ determined that Plaintiff was limited to “performing 

simple, routine, and repetitive tasks; but not at a production rate pace. He can have 

occasional interaction with supervisors, coworkers, and the public.” (Doc. #6, PageID

#847). Based on these limitations (and certain physical-work limitations), the ALJ found 

that Plaintiff could not perform his past relevant work. Id. at 864.

In the end, the ALJ concluded that Plaintiff could perform a significant number of 

jobs available in the national economy and, therefore, he was not under a disability and 

not eligible for Supplemental Security Income. Id. at 865-66.

VI. Standard of Review

The Administration’s denial of Plaintiff’s application for benefits is subject to 

judicial review along two lines: whether ALJ Anschuetz applied the correct legal 

standards and whether substantial evidence supports his findings. Blakley v. Comm’r of 

Social Sec., 581 F.3d 399, 405 (6th Cir. 2009); see Bowen v. Comm’r of Social Sec., 478 
11

F3d 742, 745-46 (6th Cir. 2007).

Reviewing the ALJ’s legal criteria for correctness may result in reversal even if 

the record contains substantial evidence supporting the ALJ’s factual findings. Rabbers 

v. Comm’r of Social Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F3d at 746. 

Substantial-evidence review does not ask whether the Court agrees or disagrees with the 

ALJ’s factual findings or whether the administrative record contains evidence contrary to 

those factual findings. Rogers v. Comm’r of Social Sec., 486 F.3d 234, 241 (6th Cir. 

2007); see Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). Instead, 

substantial evidence supports the ALJ’s factual findings when a “‘reasonable mind might 

accept the relevant evidence as adequate to support a conclusion.’” Blakley, 581 F.3d at

406 (quoting Warner v. Comm’r of Social Sec., 375 F.3d 387, 390 (6th Cir. 2004)). 

Substantial evidence consists of “more than a scintilla of evidence but less than a 

preponderance...” Rogers, 486 F.3d at 241.

VII. Discussion

Social Security Regulations require ALJs to adhere to certain standards when

weighing medical opinions. “Key among these is that greater deference is generally

given to the opinions of treating physicians than to those of non-treating physicians,

commonly known as the treating physician rule.” Rogers, 486 F.3d at 242 (citations

omitted). The rule is straightforward:

Treating-source opinions must be given “controlling weight”

if two conditions are met: (1) the opinion “is well-supported

by medically acceptable clinical and laboratory diagnostic

techniques”; and (2) the opinion “is not inconsistent with the
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other substantial evidence in [the] case record.”

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting in part 20

C.F.R. § 404.1527(c)(2)); see Gentry, 741 F.3d at 723.

If the treating physician’s opinion is not controlling, “the ALJ, in determining how

much weight is appropriate, must consider a host of factors, including the length,

frequency, nature, and extent of the treatment relationship; the supportability and

consistency of the physician’s conclusions; the specialization of the physician; and any

other relevant factors.” Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d 541, 544 (6th 

Cir. 2004)); Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (quoting, in part, 20 C.F.R. 

§ 404.1527(d)(2)).

Plaintiff argues that the ALJ erred in evaluating Dr. Firmin’s opinions because (1) 

Dr. Firmin properly relied on Plaintiff’s self-reports, (2) Dr. Firmin’s opinion about 

Plaintiff’s marked limitation in his abilities to relate to others, including coworkers and 

supervisors (Doc. #6, PageID #391) is well supported by acceptable diagnostic 

techniques; and, (3) the ALJ is not allowed to substitute in own lay medical opinion in 

place of Dr. Firmin’s.

The Commissioner contends that the ALJ properly evaluated Dr. Firmin’s 

opinions. The Commissioner reasons that the ALJ correctly recognized the shortcoming 

of Dr. Firmin’s opinion—namely, Dr. Firmin based his opinion (that Plaintiff was 

markedly limited in dealing with others) largely on Plaintiff’s subjective reports. The 

Commissioner further argues that Plaintiff mistakenly relies on observations that Dr. 
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Firmin did not cite in his analysis, and “Dr. Firmin’s entire discussion consisted of 

Plaintiff’s subjective report.” (Doc. #10, PageID #2829).

The ALJ placed partial weight on the opinions Dr. Firmin, Dr. Hoffman, and Dr. 

Terry provided. The ALJ explained that Dr. Firmin based “the marked limitation in 

dealing with others largely on the self-reports of [Plaintiff] (Exhibit 7F, page 7), and Drs. 

Hoffman and Terry apparently adopted this assessment....” (Doc. #6, PageID #863). 

There are several problems here.

The ALJ inaccurately described Dr. Firmin’s report. The ALJ wrote, “Dr. Firmin 

acknowledged that he based the marked limitation in dealing with others largely on the 

self-reports of the claimant ....” (Doc. #6, PageID #862) (emphasis added). This is 

incorrect. Dr. Firmin said he based his marked-limitation conclusion “partly on 

[Plaintiff’s] self-report data as indicated during the interview....” Id. at 391 (emphasis 

added). Because Dr. Firmin “partly” relied on Plaintiff’s self-reports, substantial 

evidence fails to support ALJ’s conclusion that Dr. Firmin acknowledged he “largely”

relied on Plaintiff’s self-reports.

The difference here is significant because the fact that Dr. Firmin “partly” relied 

on Plaintiff’s self-reports implies that he had other reasons to find Plaintiff markedly 

impaired in his ability to deal with others in the workplace. And indeed he did. Dr. 

Firmin wrote that he derived his conclusion about Plaintiff’s marked limitation in dealing 

with others on “interview data.” Id. at 392. Interview data appears in Dr. Firmin’s 

mental-status examination where he observed that Plaintiff’s “manner of dress was 
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messy, hygiene appeared poor...”; his “overall thought processes were characterized by 

pessimism and distraction, thought preoccupations centered on the presenting 

problem...”; “during the clinical interview, the claimant’s facial expressions were sad 

and nervous, and eye contact was shifting....”; his “mood was generally downcast, 

nervous, and pessimistic, and his affect or emotional responsiveness was judged to be 

sad....”; he “showed outward manifestations of sighing, fidgeting, picking, shifting, 

inattention, lack of focus, and excessive talking....”; and, “Overall, stability of insight 

and judgment seemed relatively disrupted & unfocused to the progression required in the 

clinical interview....” Id. at 389-90. These observations fit squarely within the social 

security Regulation’s definition of “psychiatric signs.” See 20 C.F.R § 416.928(b)

(“Psychiatric signs are medically demonstrable phenomena that indicate specific 

psychological abnormalities, e.g., abnormality of behavior, mood, thought, memory, 

orientation, development, or perception. They must be shown by medically observable 

facts that can be medically described and evaluated.”).

Case law further confirms the validity of such psychiatric observations in the 

social-security context. “‘[W]hen mental illness is the basis of a disability claim, clinical 

and laboratory data may consist of the diagnosis and observations of professionals trained 

in the field of psychopathology. The report of a psychiatrist should not be rejected 

simply because of the relative imprecision of the psychiatric methodology or the absence 

of substantial documentation, unless there are other reasons to question the diagnostic 

techniques.’” Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) (citation 
15

omitted); see Keeton v. Comm’r of Soc. Sec., 583 F. App’x 515, 526 (6th Cir. 2014)

(relying on Blankenship); see also Buck v. Berryhill, 869 F.3d 1040, 1049 (6th Cir. 2017)

(quoting Blankenship and stating, “Psychiatric evaluations may appear subjective, 

especially compared to evaluation in other medical fields. Diagnoses will always depend 

in part on the patient’s self-report, as well as on the clinician’s observations of the 

patient. But such is the nature of psychiatry....”).

Although the parties have not noticed it, the ALJ found that Plaintiff had a 

moderate impairment in his ability to deal with others based on the reasons he discussed 

earlier in his Decision (“Finding Number 3 above”). (Doc. #6, PageID #862). Close 

examination of the record reveals that substantial evidence fails to support those reasons. 

At step three of the sequential evaluation, the ALJ found that Plaintiff had moderate 

limitations in part because “he said he helps watch and supervise his children (Exhibit 

11E)....” Id. at 846. The ALJ’s citation to Exhibit 11E (PageID #312) is to a form 

Plaintiff completed in support of his application for benefits. Plaintiff indicated in this 

form that he did not take care of anyone else, including children. Id. He wrote that he 

had a hard time taking care of his children, and he noted that had once been able to care 

for his children but could no longer. Id. at 312. The ALJ also ignored Plaintiff’s 

statements elsewhere in this form that tend to support the conclusion that he was 

markedly limited in his social functioning. When asked about his ability to socialize, he 

acknowledged that he had problems getting along with family and neighbors. He 

explained, “Family and neighbors make fun of me.” Id. at 314. He also indicated that he 
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never spent time with others, never went places on a regular basis, no longer went 

anywhere, and had “no social life.” Id. It was error for the ALJ to misconstrue Plaintiff’s 

statements about caring for his children while ignoring other information he provided in 

the same form that tended to confirm he was markedly impaired in social functioning. 

See Brooks v. Comm'r of Soc. Sec., 531 F. App’x 636, 641 (6th Cir. 2013) (“[A] 

substantiality of evidence evaluation does not permit a selective reading of the 

record.”); see also Minor v. Comm'r of Soc. Sec., 513 F. App’x 417, 435 (6th Cir. 2013) 

(reversing where the ALJ “cherry-picked select portions of the record” rather than doing 

a proper analysis); Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (“ALJ must consider 

all the record evidence and cannot ‘pick and choose’ only the evidence that supports his 

position.”)

Turning to Dr. Rahman, the ALJ placed little weight on his assessment “because it 

is unsupported by objective medical evidence, both in [his] own treatment notes and in 

the preponderance of the record.” (Doc. #6, PageID #863). The weight to be accorded a 

treating psychiatrist’s assessment does not hinge on the existence of objective evidence. 

Instead, and again, it is the psychiatric signs documented in the record that matter. See 

20 C.F.R § 416.928(b). Such signs appear in Dr. Rahman’s report where he notes that he 

observed that Plaintiff’s flow of conversation and speech was “pressured,” his mood and 

affect were “labile,” and he showed signs of “severe anxiety.” Id. at 424-25. These 

observations by Dr. Rahman—a professional trained in the field of psychopathology—

support his opinions that Plaintiff had many marked limitations in his mental-work 
17

abilities. Dr. Rahman’s opinions are also in line with Dr. Firmin’s findings that 

Plaintiff’s limitations on his ability abilities to relate to others—including fellow workers 

and supervisors—is markedly impaired. Id. at 391. Moreover, Dr. Firmin’s observation 

that Plaintiff Lyle “showed outward manifestations of sighing, fidgeting, picking, 

shifting, inattention, lack of focus, and excessive talking” and that his anxiety is triggered 

by stress is consistent with Dr. Rahman’s opinion that Plaintiff is unable to work with 

any stress and with his observations that Plaintiff’s flow of conversation and speech was 

“pressured,” his mood and affect “labile,” and that he showed signs of “severe anxiety.” 

Id. at 386, 389-90, 424-25. This Court, moreover, previously explained, “Here, Dr. 

Rahman, a psychiatrist, observed that Plaintiff was ‘agitated’; had ‘rapid’ and ‘pressured’ 

flow of conversation; showed signs of ‘severe anxiety’; had a ‘labile’ mood and affect; 

and had decreased energy and motivation. These findings are based on Dr. Rahman’s 

personal observations, not Plaintiff’s subjective complaints.” Id. at 976-77 (citing 390, 

435, 718).

The ALJ also placed little weight on Dr. Rahman’s opinion because it is “out of 

proportion with the other medical records.... [H]e has relatively intermittent treatment 

since the alleged disability onset date, and since stopping treatment with Dr. Rahman in 

April 2012....” Id. at 863. As cogently explained in Sarp v. Comm’r of Soc. Sec., No. 

16cv10099, 2017 WL 1365414, at *8 (E.D. Mich. 2017):

[P]enalizing an individual suffering from mental impairments 

like bipolar disorder for failing to seek treatment or take 

medication is “a questionable practice.” Blankenship v. 

Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989). See Kellett v. 
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Colvin, No. 13-CV-12884, 2015 WL 181650, at *15 (E.D. 

Mich. Jan. 14, 2015) (“[P]laintiffs suffering from mental 

impairments, particularly bipolar disorder, should not be 

penalized for failure to seek psychiatric treatment.”), adopted 

by 2015 WL 181650 (E.D. Mich. Jan 14, 2015); McDonough 

v. Comm'r of Soc. Sec., No. 15-CV-11916, 2016 WL 

8115404, at *6 (E.D. Mich. Aug. 18, 2016), adopted by, No. 

15-11916, 2016 WL 5402936 (E.D. Mich. Sept. 26, 2016) 

(same). See also Kangail v. Barnhart, 454 F.3d 627, 630 (7th 

Cir. 2006) (explaining that bipolar disorder “may prevent the 

sufferer from taking her prescribed medicines or otherwise 

submitting to treatment.”).

In addition, other than Dr. Firmin and Dr. Rahman, no treating or examining 

source provided a mental functional-capacity assessment of Plaintiff. This leaves the 

record without a treating or examining source’s opinion disagreeing with Dr. Firmin’s or 

Dr. Rahman’s. And the record-reviewing psychologists—Drs. Hoffman and Terry—

concluded that Plaintiff had marked limitations in his ability to interact appropriately with 

the general public. This tends to substantiate Dr. Firmin’s and Rahman’s opinions about 

Plaintiff’s marked mental-work limitations.

There is one more feature of the ALJ’s decision that is concerning. The ALJ 

described many of Plaintiff’s emergency-room visits and hospitalizations for mentalhealth issues as part of his assessment of Plaintiff’s credibility. This by itself was not 

error because the Commissioner instructs ALJs to consider the facts of each case under 

the Regulations and applicable Ruling and to not presume that all claimants with a 

substance addiction disorder are inherently less credible than other claimants. See Soc. 

Sec. R. 13-2P, 2013 WL 621536, *13 (Feb. 20, 2013). Ruling 13-2P continues, “In 

addition, adjudicators must consider a claimant’s co-occurring mental disorder(s) when 
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they evaluate the credibility of the claimant’s allegations.” Id. (italics added). The 

concern crops up here: The ALJ did not consider, in any meaningful way, what impact 

Plaintiff’s bipolar disorder combined with his substance addiction disorder had on his 

credibility. The ALJ should have considered this for three reasons. First,

“bipolar disorder can precipitate substance abuse, for example as a means by which the 

sufferer tries to alleviate her [or his] symptoms.” Kangail, 454 F.3d at 629 (citing, in 

part, Frederick K. Goodwin & Kay Redfield Jamison, Manic–Depressive Illness 219-25 

(1990); Li–Tzy Wu et al., “Influence of Comorbid Alcohol and Psychiatric Disorders on 

Utilization of Mental Health Services in the National Comorbidity Survey,” 156 Am. J. 

Psychiatry 1235 (1999) (other citations omitted). Second, Plaintiff’s many emergencyroom visits and hospitalizations for suicidal ideation, detailed by the ALJ, see Doc. #6, 

PageID #s 855-58, should have alerted the ALJ to consider whether bipolar disorder 

precipitated Plaintiff’s substance abuse. Instead, the ALJ overly focused on what he saw 

as dishonesty in Plaintiff’s drug abuse, non-compliance with treatment, and possible 

drug-seeking conduct. Cf. Ruling 13-2P, 2013 WL 621536, *13 (“adjudicators must 

consider a claimant’s co-occurring mental disorder(s) when they evaluate the credibility 

of the claimant’s allegations.”). Third, Plaintiff’s attorney alerted the ALJ to the 

possibility that drug abuse was not causing Plaintiff’s mental-health problems. He 

argued that drug abuse was “unfortunately making it a lot harder for him and he’s been 

his own worst enemy, but he’s got psychological problems whether he’s using or not. 

When he’s completely clean..., he’s still suicidal ....” Id. at 945.
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There remains the possibility that the ALJ’s errors were harmless. Yet, because 

the Commissioner does not raise harmless error, the record lacks any present controversy 

over Plaintiff’s contention that the ALJ’s errors were not harmless given that the 

vocational expert testified during the ALJ’s hearing that there would be no jobs at any 

exertional level available to a hypothetical person (1) who is limited to working in 

isolation would be unable to sustain light work, and (2) who, due to psychological 

distress, would be off-task one-third of the workday, or absent from work three times per 

month. Id. at 954-55.

Accordingly, Plaintiff’s Statement of Errors is well taken.2

VIII. Remand

A remand is appropriate when the ALJ’s decision is unsupported by substantial 

evidence or when the ALJ failed to follow the Administration’s own Regulations and that 

shortcoming prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial 

right. Bowen, 478 F.3d at 746. Remand may be warranted when the ALJ failed to 

provide “good reasons” for rejecting a treating medical source’s opinions, see Wilson, 

378 F.3d at 545-47; failed to consider certain evidence, such as a treating source’s 

opinions, see Bowen, 478 F.3d at 747-50; failed to consider the combined effect of the 

plaintiff’s impairments, see Gentry, 741 F.3d at 725-26; or failed to provide specific 

reasons supported by substantial evidence for finding the plaintiff lacks credibility, see 

 2 Because of this conclusion and the resulting need to remand this case, an in-depth analysis of Plaintiff’s 

remaining challenge to the ALJ’s decision is unwarranted.
21

Rogers, 486 F.3d at 249.

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 not overwhelming and the evidence of disability is not strong 

while contrary evidence is lacking. However, Plaintiff is entitled to an Order remanding 

this case to the Social Security Administration pursuant to sentence four of § 405(g) due 

to the problems discussed above. On remand, the ALJ should be directed to evaluate the 

evidence of record, including the medical source opinions, under the applicable legal 

criteria mandated by the Commissioner’s Regulations and Rulings and by case law; and 

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 

Supplemental Security Income should be granted.

The ALJ should likewise be directed to consider whether Plaintiff’s borderline 

personality disorder precipitated his substance addiction disorder; and if so, whether 
22

Plaintiff is disabled considering all his medically determinable impairments including, 

but not limited, to his bipolar disorder, anxiety disorder, and substance addiction 

disorder; and if so, whether Plaintiff would continue to be disabled if he stopped using 

drugs and alcohol. See Ruling 13-2P, 2013 WL 621536, *2 (“When ... we determine that 

a claimant is disabled considering all of the claimant’s medically determinable 

impairments..., we must then determine whether the claimant would continue to be 

disabled if he or she stopped using drugs or alcohol....”); see also 42 U.S.C. §

1382c(a)(3)(J); 20 C.F.R. § 416.935.

IT IS THEREFORE RECOMMENDED THAT:

1. The Commissioner’s non-disability finding be vacated;

2. No finding be made as to whether Plaintiff Robert Lyle was under a

“disability” within the meaning of the Social Security Act;

3. This case be remanded to the Commissioner and the Administrative Law

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

consistent with this Report; and

4. The case be terminated on the docket of this Court.

May 8, 2019 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge
23

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to the proposed findings and recommendations within FOURTEEN days after 

being served with this Report and Recommendations. Such objections shall specify the 

portions of the Report objected to and shall be accompanied by a memorandum of law in 

support of the objections. If the Report and Recommendation is based in whole or in part 

upon matters occurring of record at an oral hearing, the objecting party shall promptly 

arrange for the transcription of the record, or such portions of it as all parties may agree 

upon or the Magistrate Judge deems sufficient, unless the assigned District Judge 

otherwise directs. A party may respond to another party’s objections within 

FOURTEEN days after being served with a copy thereof.

Failure to make objections in accordance with this procedure may forfeit rights on 

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).