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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

MICHAEL H. POTYSMAN, 

Plaintiff, 

vs. 

CAROLYN W. COLVIN, 

Acting Commissioner of 

Social Security, 

Defendant. 

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NO. 3:14–CV-00573 

OPINION AND ORDER

 This matter is before the Court for review of the Commissioner 

of Social Security’s decision denying Disability Insurance 

Benefits and Supplemental Security Income to Plaintiff Michael H. 

Potysman. For the reasons set forth below, the decision of the 

Commissioner is REVERSED and this case is REMANDED to the Social 

Security Administration for further proceedings consistent with 

this opinion pursuant to sentence four of 42 U.S.C. section 405(g). 

BACKGROUND 

 In March 2011, Plaintiff Michael H. Potysman (“Potysman”) 

filed an application for Social Security Disability Insurance 

Benefits (“DIB”) under Title II of the Social Security Act, 42 

U.S.C. section 401 et seq., and Supplemental Security Income 
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(“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. 

section 1381, et. seq. Potysman alleged that his disability began 

on April 10, 2010. The Social Security Administration (“SSA”) 

denied his initial applications and also denied his claims upon 

reconsideration. 

Potysman requested a hearing, and on October 31, 2012, 

Potysman appeared with his attorney at an administration hearing 

before Administrative Law Judge (“ALJ”) David R. Bruce. Testimony 

was provided by Potysman and vocational expert Richard T. Fisher. 

On November 29, 2012, the ALJ issued a decision denying Potysman’s 

claim, finding him not disabled because he could perform his past 

relevant work as a security guard and house officer, despite the 

additional limitations which erode his light occupational base. 

(Tr. 20.) 

Potysman requested that the Appeals Council review the ALJ’s 

decision, but that request was denied. Accordingly, the ALJ’s 

decision became the Commissioner’s final decision. See 20 C.F.R. 

§ 422.210(a). Potysman has initiated the instant action for 

judicial review of the Commissioner’s final decision pursuant to 

42 U.S.C. section 405(g). 
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DISCUSSION 

Facts 

 Potysman was born in November 1956 and was 53 years old on 

the alleged disability onset date of April 10, 2010. (Tr. 32.) 

He completed the eighth grade and did not acquire his GED. (Tr. 

34.) His past relevant work includes employment as a security 

guard, stock clerk, house officer/detective, commercial cleaner 

and corrugator operator helper. (Tr. 62-63.) Potysman alleges 

the following impairments: hepatitis C, degenerative disc disease 

of the lumbar spine, depression, anxiety, attention 

deficit/hyperactivity disorder (“ADHD”), and obesity. (DE #21 at 

2.) The medical evidence is largely undisputed and has been set 

forth in detail in both the ALJ’s decision and Potysman’s opening 

brief. There is no reason to repeat it in detail here, although 

pertinent details are discussed below as needed. 

Review of Commissioner’s Decision 

This Court has authority to review the Commissioner’s 

decision to deny social security benefits. 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.” 

Id. Substantial evidence is defined as “such relevant evidence as 

a reasonable mind might accept as adequate to support a 

conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 
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1420, 28 L. Ed. 2d 842 (1971) (citation omitted). In determining 

whether substantial evidence exists, the Court shall examine the 

record in its entirety, but shall not substitute its own opinion 

for the ALJ’s by reconsidering the facts or reweighing the 

evidence. See Jens v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003). 

While a decision denying benefits need not address every piece of 

evidence, the ALJ must provide a “logical bridge” between the 

evidence and his conclusion that the claimant is not disabled. 

Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009). 

As a threshold matter, for a claimant to be eligible for DIB 

or SSI benefits under the Social Security Act, the claimant must 

establish that he is disabled. 42 U.S.C. §§ 423(d)(1)(A) and 

1382(a)(1). To qualify as being disabled, the claimant must be 

unable “to engage in any substantial gainful activity by reason of 

any medically determinable physical or mental impairment which can 

be expected to result in death or which has lasted or can be 

expected to last for a continuous period of not less than 12 

months.” 42 U.S.C. § 423(d)(1)(A). To determine whether a 

claimant has satisfied this statutory definition, the ALJ performs 

a five-step evaluation: 

Step 1: Is the claimant performing substantially 

gainful activity? If yes, the claim is 

disallowed; if no, the inquiry proceeds to 

Step 2. 

Step 2: Is the claimant’s impairment or combination of 

impairments “severe” and expected to last at 
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least twelve months? If not, the claim is 

disallowed; if yes, the inquiry proceeds to 

Step 3. 

Step 3: Does the claimant have an impairment or 

combination of impairments that meets or 

equals the severity of an impairment in the 

SSA’s Listing of Impairments, as described in 

20 C.F.R. § 404, Subpt. P, App. 1? If yes, 

then claimant is automatically disabled; if 

not, then the inquiry proceeds to Step 4. 

Step 4: Is the claimant able to perform his past 

relevant work? If yes, the claim is denied; 

if no, the inquiry proceeds to Step 5, where 

the burden of proof shifts to the 

Commissioner. 

Step 5: Is the claimant able to perform any other work 

within his residual functional capacity in the 

national economy? If yes, the claim is 

denied; if no, the claimant is disabled. 

See 20 C.F.R. §§ 404.1520(a)(4)(i)–(v) and 416.920 (a)(4)(i)-(v); 

see also Herron v. Shalala, 19 F.3d 329, 333 n.8 (7th Cir. 1994). 

In this case, the ALJ found that Potysman had not engaged in 

substantial gainful activity since April 10, 2010, his alleged 

onset date. (Tr. 13.) The ALJ found that Potysman suffered from 

the following severe impairments: hepatitis C, obesity, and 

degenerative disc disease of the lumbar spine. (Id.) The ALJ 

further found that Potysman did not have an impairment or 

combination of impairments that meets or medically equals the 

severity of one of the listed impairments in 20 C.F.R. Part 404, 

Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 

404.1526, 416.920(d), 416.925 and 416.926). (Tr. 15.) 
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The ALJ made the following Residual Functional Capacity 

(“RFC”) determination: 

[T]he claimant has the [RFC] to perform the full range 

of light work as defined in 20 CFR 404.1567(b) and 

416.967(b). The claimant could lift/carry and push/pull 

up to 10 pounds frequently and 20 pounds occasionally. 

He could sit a total of about six hours in an eight-hour 

workday and stand/walk a total of about six hours in an 

eight-hour workday. 

(Tr. 15-16.) Based upon Potysman’s RFC, the ALJ found that 

Potysman is able to perform his past relevant work as a security 

guard and house officer as they are generally and normally 

performed in the national economy, despite the additional 

limitations which erode his light occupational base. (Tr. 20.) 

Potysman believes that the ALJ committed three errors 

requiring reversal. Potysman argues that the ALJ’s failure to 

consider Potysman’s mental limitations was reversible error 

because it would have significantly changed his RFC and made him 

disabled. Potysman also asserts that the ALJ’s reasons for not 

giving controlling weight to the opinions of his treating 

physicians are not supported by substantial evidence. Finally, 

Potysman maintains that the ALJ’s credibility determination is not 

supported by substantial evidence. 

ALJ’s Consideration of Mental Impairments 

The ALJ concluded that Potysman’s “medically determinable 

impairment of depression/anxiety” was nonsevere because it did not 
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cause more than minimal limitation in his ability to perform basic 

mental work activities. (Tr. 14.) According to Potysman, the ALJ 

erred by failing to consider his mental impairments of a high 

degree of distractibility and at least moderate impairment in 

activities of daily living, focus and concentration. Potysman 

argues that the ALJ improperly denied his claim based on his 

failure to seek mental health treatment without considering his 

reasons for not seeking treatment. 

The record indicates that Potysman complained of depression 

with anxiety in March 2010, for which he was prescribed medication. 

(Tr. 314.) In May 2011, Potysman reported to his family physician 

that his moods had improved after starting on Fluxotine daily. 

(Tr. 578.) In June 2010, Alan H. Wax, Ph.D., conducted a mental 

status examination of Potysman. In that examination, Potysman 

reported that he had been diagnosed with depression, was “fine” 

with all aspects of self-care, performed needed functions on a 

daily basis, did not have any friends, enjoyed being with his 

daughter and “that’s about it.” (Tr. 355.) He failed several 

trials of the Digit Memory Test. (Tr. 354.) Dr. Wax found that 

Potysman alleged some symptomology of depression, and that his 

cognitive functioning was in the Low-Average range, with 

corresponding memory, attention, communication and focusing. (Tr. 

355.) Dr. Wax diagnosed him with dysthymic disorder, and assigned 

him a Global Assessment of Functioning (“GAF”) score of 55. (Tr. 
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356.) The ALJ gave this GAF score little weight. (Tr. 14.) In 

May 2011, the State agency psychological consultant opined that 

there was insufficient evidence to make a determination on 

Potysman’s disability claim. (Tr. 557.) The ALJ gave this opinion 

no weight. (Tr. 14.) 

On July 18, 2011, Douglas D. Streich, Ph.D., conducted a 

mental status examination of Potysman at the request of the 

Disability Determination Bureau. At the time of the exam, Potysman 

reported that his mood was “a little better” in response to using 

antidepressant medication, and that he had been prescribed Ritalin 

as a child. (Tr. 587; see Tr. 585, 588.) He indicated that he 

slept between nineteen to twenty hours per day due to a combination 

of depression and lethargy related to chronic pain symptoms, and 

that recently he spent eight weeks in his mother’s house without 

ever leaving the property. (Tr. 587, 589.) Dr. Streich noted 

affective, behavioral, and cognitive components of depression, 

multiple symptoms of anxiety, difficulty retrieving information, 

and a high level of extraneous motor activity such as rapid 

physical movements, a rapid voice tempo and some impulsivity. (Tr. 

587-88.) Dr. Streich diagnosed Potysman with: major depressive 

disorder, recurrent, moderate; dysthymic disorder; anxiety 

disorder NOS; and ADHD. (Tr. 589.) Dr. Streich assigned him a 

GAF score of 56. (Id.) He noted that Potysman continued to 

manifest high degrees of distractibility, impulsivity, and 
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hyperactivity. (Tr. 590.) He opined that Potysman’s “ADHD and 

depressive/anxiety symptoms reduce his overall coping efforts, but 

would probably not exclude him from working some kind of job.” 

(Id.) Dr. Streich did not opine as to what kind of job Potysman 

would be able to perform, though he noted that Potysman’s spelling 

and math skills were extremely weak, and testing would need to be 

completed to determine whether he has learning disabilities. (Id.) 

The ALJ gave Dr. Streich’s opinion great weight because of 

Potysman’s “lack of mental health treatment with a specialist, 

medications that appear to control his symptoms and the fact that 

[Potysman’s] primary complaints are physical in nature.” (Tr. 

14.) 

On July 21, 2011, the State agency psychological consultant 

at the reconsideration level opined that Potysman had: ADHD; major 

depressive disorder, recurrent, moderate; dysthymic D/O; and 

anxiety D/O. (Tr. 592, 594, 596.) Regarding functional 

limitations, the consultant categorized Potysman as having a 

moderate degree of limitation in activities of daily living, a 

mild degree of limitation in maintaining social functioning, a 

moderate degree of limitation in maintaining concentration, 

persistence or pace, and no episodes of decompensation. (Tr. 601.) 

He opined that Potysman was not significantly limited in the areas 

of social interaction and adaptation, and was moderately limited 

in some aspects of understanding and memory and sustained 
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concentration and persistence. (Tr. 605-06.) The ALJ noted that 

the consultant opined that Potysman retained the ability to perform 

simple, repetitive tasks on a sustained basis without 

extraordinary accommodations. (Tr. 15.) The ALJ gave this opinion 

little weight based on “the lack of mental health treatment, the 

extent of [Potysman’s] activities of daily living, his ability to 

interact with others and the fact [that] his medications reportedly 

help his symptoms.” (Tr. 15.) 

At the SSA hearing in October 2012, the ALJ asked Potysman 

whether he was seeing anyone for counseling or had been 

hospitalized for depression, to which Potysman responded no. (Tr. 

45-46.) When the ALJ asked Potysman whether he was taking 

medications for depression, Potysman testified that his family 

doctor prescribed Paxil for him. (Tr. 46.) The ALJ did not ask 

Potysman why he had not sought mental health treatment with a 

specialist. When the ALJ later asked Potysman if he had “tried 

any nontraditional treatment for anything,” Potysman testified 

that he did not have any insurance, and had “no money” to pay for 

it. (Tr. 55.) 

The ALJ concluded that Potysman’s “medically determinable 

impairment of depression/anxiety does not cause more than minimal 

limitation in [his] ability to perform basic mental work activities 

and is therefore nonsevere.” (Tr. 14.) He based this 

determination on the fact that Potysman took medication for 
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depression, “but receives no regular counseling, nor was he ever 

psychiatrically hospitalized.” (Id.) 

On appeal, Potysman argues that the ALJ erred by failing to 

consider the reasons for his lack of mental health treatment. 

Under Social Security Ruling 16-3p (“SSR 16-3p”), an ALJ may not 

use the failure to pursue treatment as a reason for discounting an 

individual’s claims regarding symptom intensity, persistence, and 

limiting effects “without considering possible reasons he or she 

may not . . . seek treatment consistent with the degree of his or 

her complaints.” SSR 16-3p, 2016 WL 1119029, at *8; see also Craft 

v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008) (“[T]he ALJ ‘must not 

draw any inferences’ about a claimant’s condition” from the failure 

to undergo treatment “unless the ALJ has explored the claimant’s 

explanations as to the lack of medical care.”) (quoting SSR 96–

7p)).1 When evaluating symptom severity, the ALJ “will consider 

and address reasons for not pursuing treatment that are pertinent 

to an individual’s case.” SSR 16-3p, 2016 WL 1119029, at *9. SSR 

16-3p provides that the ALJ “may need to contact the individual 

regarding the lack of treatment or, at an administrative 

 

1 SSR 16-3p went into effect on March 16, 2016, superseding SSR 96-7p. SSR 16-

3p, 2016 WL 1119029, at *1. “Though SSR 16-3p post-dates the ALJ hearing in 

this case, the application of a new policy to matters on appeal is appropriate 

where, as here, the new ruling is a clarification of, rather than a change to, 

existing law.” Jones v. Colvin, No. 15 C 11310, 2016 WL 4798956, at *4 (N.D. 

Ill. Sept. 14, 2016) (citing Pope v. Shalala, 998 F.2d 473, 482-483 (7th Cir. 

1993) (overruled on other grounds by Johnson v. Apfel, 189 F.3d 561 (7th Cir. 

1999), McNeal v. Colvin, No. 14 C 3722, 2016 WL 1594992 at *8, n.3 (N.D. Ill. 

Apr. 21, 2016), and Qualls v. Colvin, No. 14 CV 2526, 2016 WL 1392320 at *6 

(N.D. Ill. Apr. 8, 2016)). 
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proceeding, ask why he or she has not complied with or sought 

treatment in a manner consistent with his or her complaints.” Id. 

at *8. 

Courts have found that an ALJ “is not free to base his symptom 

evaluation on Plaintiff’s lack of medical care while omitting any 

discussion of evidence about Plaintiff’s reasons for not seeking 

treatment.” Jones v. Colvin, No. 15 C 11310, 2016 WL 4798956, at 

*5 (N.D. Ill. Sept. 14, 2016) (citing Beardsley v. Colvin, 758 

F.3d 834, 840 (7th Cir. 2014) (where ALJ discredited a claimant’s 

testimony based on a lack of treatment but overlooked evidence 

that she “was uninsured and uncertain how surgery could be paid 

for,” the “failure to explore this evidence was a legal error”)); 

see Roddy v Astrue, 705 F.3d 631, 638 (7th Cir. 2013) (“an ALJ 

must not draw any inferences about an individual’s symptoms and 

their functional effects from a failure to seek or pursue regular 

medical treatment without first considering any explanations that 

the individual may provide”) (citing SSR 96-7p). “If the ALJ 

disbelieves Plaintiff’s proffered explanations or finds those 

reasons insufficient to explain his sparse treatment history, he 

is required to explain why. The ALJ’s failure to explain how he 

considered Plaintiff’s explanations for his gaps in treatment is 

an error requiring remand.” Jones, 2016 WL 4798956 at *5. 

On appeal, Potysman indicates that he did not seek mental 

health treatment due to financial difficulties and poor insight 
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into his mental condition. (DE #21 at 18.) Inability to pay is 

expressly listed in the regulations as a proper explanation for 

failure to seek treatment. SSR 16-3p provides that an ALJ may 

consider that “[a]n individual may not be able to afford treatment 

and may not have access to free or low-cost medical services.” 

SSR 16-3p, 2016 WL 1119029, at *9. An ALJ may also consider that 

“[d]ue to a mental impairment . . . an individual may not be aware 

that he or she has a disorder that requires treatment.” Id. 

In the decision, the ALJ repeatedly relied on Potysman’s lack 

of mental health treatment as a basis for finding his mental 

impairments to be nonsevere. (See Tr. 14 (noting Potysman 

“receives no regular counseling”); id. (noting Potysman’s “lack of 

mental health treatment with a specialist”); Tr. 15 (giving State 

agency specialist’s opinion little weight “[d]ue to the lack of 

mental health treatment,” among other factors).) Potysman’s 

hearing testimony suggests that financial difficulties, i.e., lack 

of insurance and “no money,” may have played a part in his failure 

to seek treatment. However, the ALJ failed to ask Potysman why he 

did not seek mental health treatment, and did not attempt to 

consider any reasons for the lack of mental health treatment in 

the decision. It is impossible for this Court to know if 

considering this reason would have caused the ALJ to reach a 

different decision, and if so, whether that would have ultimately 

affected his decision in this case. Because the ALJ is required 
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to inquire about a claimant’s reasons for not seeking treatment, 

his failure to do so is an error requiring remand. See Jones, 

2016 WL 4798956 at *5; McVey v. Colvin, No. 115CV00034TABSEB, 2015 

WL 8328712, at *6 (S.D. Ind. Dec. 8, 2015) (finding error requiring 

remand where the ALJ “did not discuss [claimant’s] inability to 

afford care when discrediting his allegations of infrequent 

care”). 

Potysman’s Remaining Arguments 

Having found remand necessary due to the ALJ’s error in 

failing to address Potysman’s reasons for his lack of mental health 

treatment, the Court finds no compelling reason to address 

Potysman’s remaining arguments in detail. The Court makes no 

findings regarding the merits of Potysman’s claims. On remand, 

the ALJ should consider all of the evidence in the record, and, if 

necessary, give the parties the opportunity to expand the record 

so that the ALJ may build a logical bridge between the evidence 

and his conclusions. 
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CONCLUSION 

 For the reasons set forth above, the decision of the 

Commissioner is REVERSED and this case is REMANDED to the Social 

Security Administration for further proceedings consistent with 

this opinion pursuant to sentence four of 42 U.S.C. section 405(g). 

DATED: November 2, 2016 /s/ RUDY LOZANO, Judge 

 United States District Court