UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CHANEL PYATT,

Plaintiff, v. No. 17-cv-2809 (EGS) KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant.

MEMORANDUM OPINION AND ORDER

I. Introduction

Plaintiff Chanel Pyatt (“Ms. Pyatt”) seeks reversal of the

final decision by Defendant Kilolo Kijakazi 1 in her official

capacity as Commissioner of Social Security (the “Commissioner”

or “Defendant”) denying her claim for supplemental security

income payments. 2 Compl., ECF No. 1 at 8. Specifically, Ms. Pyatt

is seeking a remand order that is for an award of benefits, or,

in the alternative, for a rehearing. Id. Pending before the

Court are Ms. Pyatt’s Motion for Judgement of Reversal (“Pl.’s

Mot.”), see ECF No. 13; and the Commissioner’s Motion for

1 Kilolo Kijakazi became the Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi has been substituted for former Acting Commissioner Nancy A. Berryhill as the Defendant in this action. 2 When citing electronic filings throughout this Opinion, the

Court cites to the ECF page number, not the page number of the filed document. Judgment of Affirmance (“Def.’s Mot.”), see ECF No. 14. Upon

careful consideration of the motions, oppositions, and Ms.

Pyatt’s reply and notice of supplemental authority, the

administrative record, and the relevant case law, the Court

GRANTS Ms. Pyatt’s motion to reverse the Commissioner’s final

decision, see ECF No. 13; and DENIES the Commissioner’s motion

to affirm her final decision, see ECF No. 14. The Court DENIES

Ms. Pyatt’s request for an award of benefits and REMANDS to the

Commissioner for reconsideration.

II. Background

Ms. Pyatt is a resident of the District of Columbia. See

Compl., ECF No. 1 ¶ 1. She has been diagnosed with various

mental-health disorders, including bipolar one disorder, cocaine

dependence, alcohol dependence, bipolar disorder with psychotic

features, and depressive disorder. Administrative Record

(“A.R.”), ECF No. 11-2 at 15. On March 7, 2012, Ms. Pyatt filed

an application for supplemental security income (“SSI”) payments

under Title XVI of the Social Security Act. A.R., ECF No. 11-2 at

12. This application was denied, and Ms. Pyatt now seeks reversal

of the decision. See Compl., ECF No. 1 at 8. Before discussing

the factual background in this case, the Court will set forth

2 the relevant legal framework.

A. Legal Framework

1. Defining Disability and Qualifying for Benefits

To qualify for Social Security under Title XVI of the

Social Security Act, Ms. Pyatt must first establish that she is

“disabled.” See

(a)(1)(E). Disability is the

“inability to engage in any substantial gainful activity by

reason of any medically determinable or mental impairment . . .

which has lasted or can be expected to last for a continuous

period of not less than 12 months.”

§ 423(d)(1)(A); see id.

§ 1382c(a)(3)(A). Ms. Pyatt is disabled “only if [her] physical

or mental impairment or impairments are of such severity that

[she] is not only unable to do [her] previous work but cannot,

considering [her] age, education, and work experience, engage in

any other kind of substantial gainful work which exists in the

national economy.” Id. §§ 423(d)(2)(A), 1382c(a)(3)(B).

2. Sequential Evaluation Process

The Administrative Law Judge (“ALJ”) must conduct a five-

step sequential evaluation to assess a claimant’s alleged

disability. See

, 416.920 (2012). The

claimant bears the burden of proof at the first four steps, and

the burden shifts to the Commissioner at step five. See Butler

v. Barnhart,

(D.C. Cir. 2004).

First, the ALJ must find that the claimant is not presently

3 engaged in “substantial gainful” work.

(b),

416.920(b). Second, they must find that the claimant has a

“severe impairment” that “significantly limits” her ability to

do basic work activities.

§§ 404.1520(c), 416.920(c). Third,

if the ALJ finds that the claimant suffers from an impairment

that meets one of those listed in

, Subpart P,

Appendix 1, she is deemed disabled, and the inquiry ends.

§§

404.1520(d), 416.920(d). If the claimant’s impairment does not

meet one of those listed in the Appendix, the ALJ determines her

Residual Functional Capacity (“RFC”) based upon all the evidence

of record. Id. §§ 404.1520(e), 416.920€. Once a determination of

the claimant’s RFC has been made, the ALJ moves to step four to

determine whether her RFC allows her to do work that she used to

do, which is called “past relevant work.” Id. §§ 404.1520(f),

416.920(f). If the claimant’s RFC does not allow her to do past

relevant work, the ALJ moves on to step five, where they

determine whether the claimant’s RFC allows her to adjust to any

other work, given her age, education, and work experience. Id.

§§ 404.1520(g), 416.920(g). If the ALJ finds that the claimant

can either perform past relevant work (at step four) or that she

can adjust to any other work (at step five), they will find that

the claimant is not disabled. Id.

4 3. Drug Addiction or Alcoholism as a “Contributing Factor Material” to the Individual’s Disability

An individual with a disability is ineligible for SSI

benefits if drug addiction or alcoholism (DAA) 3 is a

“contributing factor material” to the individual’s disability.

(d)(2)(C). DAA is “material” “if the claimant

would not meet the definition of disability if they were not

using drugs or alcohol.” SSR 13-2p, 78 Fed. Reg. at 11,941. The

ALJ must evaluate the extent to which the claimant’s mental and

physical limitations would remain absent substance use; if the

remaining limitations would not be disabling, the substance use

disorder is a contributing factor material to the determination

of disability such that the claimant is not considered disabled.

20 C.F.R § 416.935.

B. Factual Background

Ms. Pyatt has been diagnosed with various mental-health

disorders, including bipolar one disorder, cocaine dependence,

alcohol dependence, bipolar disorder with psychotic features, and

depressive disorder. A.R., ECF No. 11-2 at 15. She has suffered

sexual abuse, rape, and domestic violence, including as a child.

Pl.’s Mot., ECF No. 13 at 5–6. She has struggled to find an

3 SSA indicates that “drug addiction” and “alcoholism” are medically outdated terms, but it uses the words because they appear in the statute. SSR 13-2p,

(Feb. 20, 2013).

5 appropriate psychiatric care regime and has used drugs and

alcohol for more than three decades, with periods of sobriety.

at 7–8. Ms. Pyatt has been hospitalized at least fifteen

times.

. Her efforts to work, including through

attempting her GED, pursuing vocational rehabilitation, and

holding temporary positions, have been largely unsuccessful.

at 10–11.

Dr. Joel Cohen is a psychiatrist who treated Ms. Pyatt,

first at Psychiatric Center Chartered in 2003 or 2004 and then at

Community Connections from 2010 through 2014.

. Dr.

Cohen’s notes from his treatment of Ms. Pyatt (which Ms. Pyatt

relies on as Dr. Cohen’s medical opinion) expand on Ms. Pyatt’s

difficulties. See, e.g., A.R., ECF No. 11-12 at 136 (Dr. Cohen

recorded on June 9, 2010 that Ms. Pyatt came to him “with acute

depressive symptoms and self destructive thoughts”);

(on February 29, 2012, Dr. Cohen noted that “[s]he has been

experiencing abuse and has had difficulty dealing with the

trauma, turn (sic) to alcohol and on February 22nd had a FD-12

at CPEP overnight”);

(in his treatment notes on August

31, 2012, Dr. Cohen recorded: “She is struggling with no income,

though has been trying to do some part-time work, which has been

difficult given her many symptoms.” He added: “She is reporting

that she is clean and sober, does take her medication

appropriately, but is presenting with increased depressive

6 symptoms including a good deal of irritability, low frustration

tolerance, difficulties with concentration and focus and

intensified trama [sic] symptoms.”). Ms. Pyatt’s medications

have changed several times, which she alleges makes it hard for

her to keep track of her medications. A.R., ECF No. 11-2 at 51,

56. Some medications have made her feel worse, and have had side

effects such as making her break out in hives, giving her

nightmares, and making her confused, sleepy and moody.

. Ms. Pyatt also takes medicine for gout, heart

palpitations, and high blood pressure.

.

As to the link between substance abuse and Ms. Pyatt’s

mental disorders, the record establishes the following: Following

her sexual abuse, Ms. Pyatt began experiencing depressive

symptoms at the age of thirteen before she ever started abusing

drugs and alcohol.

. She had an eighteen-month period

of abstinence during the 1990s in which she continued to

experience bipolar and anxiety symptoms. A.R., ECF No. 11-2 at

57-59. She also had a psychiatric hospitalization in March 2012

after she had been sober for over one month.

. Her

symptoms improved when she was off drugs and alcohol and taking

her medication, as periods in February 2012 and May 2013

demonstrate.

, 26–27; see also

. Her symptoms

worsened when she used substances and did not take her

medication.

, 27–28. Sometimes Ms. Pyatt drinks because

7 she is feeling bad, and the alcohol makes her feel better.

.

C. Procedural History

On March 7, 2012, Ms. Pyatt filed an application for SSI

payments under Title XVI of the Social Security Act. A.R., ECF

No. 11-2 at 12. Ms. Pyatt alleges disability beginning July 1,

2007.

On her disability report, Ms. Pyatt alleged that

bipolar disorder and depression limited her ability to work. See

Compl., ECF No. 1 ¶ 31. Her application was denied both

initially and upon reconsideration. A.R., ECF No. 11-2 at 9. An

ALJ then denied the claim in a decision dated October 2, 2014.

Following a remand from the Appeals Council, which asked for

an analysis of whether drug addiction and alcoholism are

contributing factors material to the determination of

disability, an ALJ, F.H. Ayer (“ALJ Ayer”) again reviewed the

case.

On September 8, 2016, ALJ Ayer held a hearing at which

Ms. Pyatt, Ms. Candace Loeffler, and a Vocational Expert (“VE”),

Mr. Mark Heckman, testified.

ALJ Ayer issued a decision

denying benefits on January 11, 2017.

.

Although ALJ Ayer found that Ms. Pyatt had a disability, he

determined that drug addiction and alcoholism were a “material

factor contributing” to the finding of disability.

.

Specifically, ALJ Ayer determined that in the absence of drugs

and alcohol, Ms. Pyatt could “perform work that does not require 8 performing more than simple 1-4 step, routine, repetitive tasks

in a work environment with only occasional contact with

coworkers and supervisors and no general public contact.”

. ALJ Ayer did not assign any weight to Dr. Cohen’s statements

in either opinion. See Pl.’s Mot., ECF No. 13 at 13. The Appeals

Council denied review on October 13, 2017, rendering ALJ Ayer’s

decision the final decision of the Commissioner.

.

On June 18, 2018, Ms. Pyatt filed a Motion for Judgment of

Reversal. See ECF No. 13. Ms. Pyatt’s action raises two issues:

(1) whether ALJ Ayer properly evaluated the medical opinion

evidence; and (2) whether ALJ Ayer properly determined that Ms.

Ayer would not be disabled if she stopped her substance abuse. On

August 2, 2018, Defendant filed a Motion for Judgment of

Affirmance, see ECF No. 14; and a Memorandum in Opposition

(“Def.’s Opp’n), ECF No. 15. Ms. Pyatt replied on August 24,

2018, Ms. Pyatt. See Pl.’s Reply, ECF No. 16. The motions are

fully briefed and ready for adjudication.

III. Standard of Review

Judicial review in this Court is statutorily limited to

whether the Commissioner, acting through the ALJ, correctly

applied the relevant law, and whether there is substantial

evidence to support the Commissioner’s final decision that Ms.

Pyatt was not disabled. See

(g); Butler,

. “Substantial evidence” is “such relevant evidence as

9 a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales,

(1971). It

“requires more than a scintilla, but can be satisfied by

something less than a preponderance of the evidence.” Butler,

(quoting Florida Mun. Power Agency v. F.E.R.C.,

(D.C. Cir. 2003) (internal quotation omitted).

A court’s review of administrative decisions for substantial

evidence requires “careful scrutiny of the entire record.” Brown

v. Bowen,

(D.C. Cir. 1986). But a court “may

not reweigh the evidence presented to it . . . [or] replace the

[Commissioner’s] judgment concerning the weight and validity of

the evidence with its own. Davis v. Heckler,

(D.D.C. 1983).

IV. Discussion

Ms. Pyatt argues that legal errors tainted ALJ Ayer’s

conclusion that DAA was material to her disability. First, Ms.

Pyatt argues that ALJ Ayer did not properly consider the view of

Dr. Cohen, her treating physician, under

(c).

Pl.’s Mot., ECF No. 13, at 14. Second, Ms. Pyatt argues that ALJ

Ayer did not properly disentangle her drug and alcohol use and

her disabling limitations concerning periods of sobriety and

hospitalization.

at 18 (citing SSR 13-2p,

). The Court considers each of these arguments in turn.

10 A. ALJ Ayer Did Not Properly Consider Dr. Cohen’s Opinion

Ms. Pyatt argues ALJ Ayer erred in not considering what she

presents as Dr. Cohen’s opinion that she would have a disability

even if she stopped her drug and alcohol use. Pl.’s Mot., ECF

No. 13 at 18. She contends that ALJ Ayer should have given Dr.

Cohen’s opinion controlling weight, or at least should have

stated his reasons for giving less or no weight to the opinion.

The Commissioner makes two principal counterarguments.

First, the Commissioner argues that Ms. Pyatt does not cite to a

medical opinion. Def.’s Opp’n, ECF No. 15 at 7. Second, the

Commissioner argues that this Court should not remand even if

Ms. Pyatt cites to a medical opinion, because Dr. Cohen’s

medical opinion only addressed whether Ms. Pyatt would have

symptoms, not whether Ms. Pyatt would have a disability, and

because substantial evidence of materiality outweighed Dr.

Cohen’s medical opinion to the contrary.

. At most, the

Commissioner contends, “Ms. Pyatt cites to treatment notes that,

according to Ms. Pyatt, indicate that some of her symptoms

persisted during periods of abstinence.”

The Commissioner

does not contest that Dr. Cohen was Ms. Pyatt’s “longstanding”

treating physician. Pl.’s Mot., ECF No. 13, at 16. Ms. Pyatt

replies that the Commissioner’s argument that Dr. Cohen’s

statements do not qualify as medical opinions focuses overly on

their classification as treatment notes rather than the relevant 11 definition. Pl.’s Reply, ECF No. 16 at 8. The Court agrees with

Ms. Pyatt and concludes that she properly cites to a medical

opinion that ALJ Ayer should have considered.

Ms. Pyatt’s argument rests on Dr. Cohen’s “assessment in

2012 that – even when Ms. Pyatt was sober and complying with her

treatment regimen – her symptoms persisted.” Pl.’s Mot., ECF No.

13 at 17. Dr. Cohen’s full statement in the Record is as

follows: “She is reporting that she is clean and sober, does

take her medication appropriately, but is presenting with

increased depressive symptoms including a good deal of

irritability, low frustration tolerance, difficulties with

concentration and focus and intensified trama (sic) symptoms.”

A.R., ECF No. 11-12 at 24. Ms. Pyatt further asserts that Dr.

Cohen “found that Ms. Pyatt’s trauma symptoms were causing her

to abuse substances, not the other way around.” Pl.’s Mot., ECF

No. 13 at 17. Dr. Cohen’s statement in the Record provides: “She

has been experiencing abuse and has had difficulty dealing with

the trauma, turn (sic) to alcohol and on February 22nd had a FD-

12 at CPEP overnight.” A.R., ECF No. 11-12 at 54. Further,

“[s]he does use her substances as medication.”

. 4

Lastly, Ms. Pyatt asserts that Dr. Cohen “observed that Ms.

4 Ms. Pyatt also cites to A.R., ECF No. 11-16 at 61, but this page does not contain a statement of Dr. Cohen’s and does not assert that Ms. Pyatt’s trauma symptoms caused her to abuse substances. 12 Pyatt did not have the capacity to better manage her trauma

symptoms.” Pl.’s Mot., ECF No. 13 at 17. Dr. Cohen’s statement

in the Record is as follows: “She obviously does have poor

coping skills.” A.R., ECF No. 16 at 67. Ms. Pyatt adds that Dr.

Cohen’s medical opinion is “well-supported and not contradicted

by substantial evidence.” Pl.’s Mot., ECF No. 13 at 17.

Federal regulations instruct the Social Security

Administration (“SSA”) to “evaluate every medical opinion” in

considering a claim for SSI benefits.

(c). 5

Medical opinions are statements that reflect “judgments about

the nature and severity of [the claimant’s] impairment(s),

including [the claimant’s] symptoms, diagnosis and prognosis.”

§ 416.927(a)(1).

Facially, the Commissioner’s argument has intuitive appeal:

Dr. Cohen’s statements are presented in his treatment notes,

rather than an explicit diagnosis directly conveyed to the

patient. However, the Commissioner provides no case law that

suggests treatment notes cannot be considered as medical

judgments, nor does the Commissioner engage substantively with

the contents of the notes, and whether they amount to “judgments

about the nature and severity of [Ms. Pyatt’s] impairment(s),

5 This regulation only covers claims, like this one, filed before March 27, 2017. A superseding regulation governs claims filed after that date.

(c). 13 including [Ms. Pyatt’s] symptoms, diagnosis and prognosis.”

§ 416.927(a)(1). The Court concludes that they do. First, Dr.

Cohen’s statements address Ms. Pyatt’s “increased depressive”

symptoms, including “a good deal of irritability, low

frustration tolerance, difficulties with concentration and focus

and intensified trama (sic) symptoms.” A.R., ECF No. 11-12 at

24. Second, Dr. Cohen’s statements that Ms. Pyatt “turn[ed]” to

alcohol in dealing with her trauma resemble a diagnosis, even if

not explicitly conveyed to Ms. Pyatt in the moment. Id. at 136.

Third, Dr. Cohen’s statement that Ms. Pyatt has limited coping

skills resembles a prognosis. See A.R., ECF No. 11-15 at 67. Dr.

Cohen’s statements plainly appear to fit the definition of a

“medical opinion” as stated in the relevant regulation, which

defines medical opinion “functionally.”

(c).

As Ms. Pyatt notes, “there is no ‘treatment note’ exception to

the definition of ‘medical opinion.’” Pl.’s Reply, ECF No. 16 at

9. In fact, persuasive authority cuts the opposite way. In

Furister, the court rejected an argument that the ALJ did not

have to consider a medical opinion that occurred in a treatment

note. Furister v. Comm’r of Soc. Sec., No. 16-10454,

, at *29 (E.D. Mich. Feb. 8, 2017).

The Commissioner argues that “[t]o the extent that Dr.

Cohen’s notes could be construed as an opinion supporting

disability, ALJ Ayer cited to substantial evidence undermining

14 the opinion.” Def.’s Mot., ECF No. 2 at 11. However, viewed

differently, Dr. Cohen’s notes could themselves undermine ALJ

Ayer’s opinion. Moreover, this argument mistakes the relevant

standard, which requires that ALJs must “evaluate every medical

opinion” in considering a claim for SSI benefits.

(c) (emphasis added). While the evidence cited by ALJ

Ayer may in comparison undercut the contents of the treatment

notes, there is no evidence to suggest that Dr. Cohen’s opinion

was considered at all. It is also irrelevant whether ALJ Ayer

“agreed that Plaintiff would still experience symptoms if she

stopped abusing substances.” Def.’s Mot., ECF No. 2 at 11.

First, Ms. Pyatt’s argument is that Dr. Cohen’s notes state she

would have a disability, not just experience symptoms, if she

stopped abusing substances. Second, the relevant legal standard

requires that ALJ Ayer have considered every medical opinion,

particularly that of a treating physician like Dr. Cohen, whose

medical opinion “[g]enerally” receives “more weight” and may

even receive “controlling weight.”

§ 416.927(c)(2). If, even

without considering Dr. Cohen’s opinion, ALJ Ayer agreed that

Ms. Pyatt would experience symptoms without abusing substances,

it is possible that Dr. Cohen’s opinion could persuade ALJ Ayer

that Ms. Pyatt would continue to have a disability if she

stopped abusing substances.

15 The Court concludes that Dr. Cohen’s treatment notes are

“medical opinions” that must be considered, and remands to the

Commissioner to reconsider Ms. Pyatt’s disability anew. On

remand, ALJ Ayer should explain what weight he attaches to Dr.

Cohen’s conclusions, or if he attaches none, his reasons

therefor. See Simms v. Sullivan,

(D.C. Cir.

1989).

B. ALJ Ayer Erred in Not Considering Periods of Abstinence

Ms. Pyatt argues that ALJ Ayer “violated the SSA’s rules

regarding how to analyze the impact of the substance use

disorder on her mental health impairments,” by “speculat[ing]

that the cessation of such use would allow Ms. Pyatt to work,

contrary to an abundance of evidence in the Record . . ..” Pl.’s

Mot., ECF No. 13 at 18. Ms. Pyatt points to four specific

instances. First, she asserts that ALJ Ayer “incorrectly framed

the question as whether drug abuse or alcoholism contributed to

Ms. Pyatt’s limitations and speculated as to whether substance

use fostered noncompliance with Ms. Pyatt’s medication regimen.”

Id. at 19. Next, she argues that ALJ Ayer did not properly

analyze her periods of sobriety. Id. at 21. Third, she contends

that “the ALJ further erred by failing to properly consider the

sheer volume of [her] [] hospitalizations.” Id. at 22. Finally,

she reiterates that ALJ Ayer failed to consider Dr. Cohen’s

opinion. The Court considers each of these arguments in turn, 16 except for the last one as to Dr. Cohen, which has already been

discussed supra.

First, Ms. Pyatt argues that ALJ Ayer violated SSR 13-2 by

finding that her drug addiction “contributed to” her disability,

instead of asking whether substance abuse “was the only barrier

between her current disability and her ability to work.” Pl.’s

Mot., ECF No 13 at 18-19. The Commissioner responds that this

argument is semantical, and that ALJ Ayer properly followed the

sequential evaluation necessary to find that if Ms. Pyatt

stopped her substance abuse, her impairments would not meet the

requirements for presumptive disability. Def.’s Mot., ECF No. 14

at 14. The Court agrees with the Commissioner.

SSR 13-2p requires evidence that a claimant, already found

to have a disability, would not have a disability in the absence

of DAA. “To support a finding that DAA is material, we must have

evidence in the case record that establishes that a claimant

with a co-occurring mental disorder(s) would not be disabled in

the absence of DAA.” SSR 13-2p, 78 Fed. Reg. at 11,943.

Conversely: “We will find that DAA is not material to the

determination of disability and allow the claim if the record is

fully developed and the evidence does not establish that the

claimant’s co-occurring mental disorder(s) would improve to the

point of non-disability in the absence of DAA.” Id. at 11,944.

17 The problem with Ms. Pyatt’s argument is that she cherry-

picks a few sentences from ALJ Ayer’s detailed analysis, see

A.R., ECF No. 11-2 at 19-21; but overlooks his reasoned

conclusion that “[i]f the claimant stopped the substance abuse,

the remaining limitations would not meet or medically equal the

criteria of listings,” id. at 19. As the Commissioner points

out, ALJ Ayer “provided numerous well-supported reasons for his

conclusion that if Ms. Pyatt stopped abusing drugs and alcohol,

she would not be disabled.” Def.’s Opp’n, ECF No. 15, at 11. For

instance, ALJ Ayer finds that “once Ms. Pyatt ceased her

substance abuse and began taking medications, her symptoms were

no longer disabling.” Id. ALJ Ayer highlights evidence from

February 2012 and May 2013 showing that Ms. Pyatt’s condition

improved when not using drugs or alcohol and when taking her

medications. See A.R., ECF No. 11-2 at 26-27. In contrast, her

disability manifested when she was using drugs or alcohol and

not taking her medications. See id. at 25-26. Ms. Pyatt does not

show that SSR 13-2p prohibited ALJ Ayer from considering

evidence of improvement after hospitalization and medication,

even if the regulation cautions against it.

This evidence, along with other evidence in the decision,

is substantial because it offers “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion” that Ms. Pyatt would not have a disability if she

18 stopped using drugs or alcohol.

. Substantial

evidence “entails a degree of deference to the Commissioner’s

decision,” and the Court “may not reweigh the evidence and

‘replace the [Commissioner]’s judgment regarding the weight and

validity of the evidence with its own.’” Jackson v. Barnhart,

(D.D.C. 2002) (citing Davis v.

Heckler,

(D.D.C. 1983)).

Ms. Pyatt’s argument from case law that substantial

evidence does not support ALJ Ayer’s conclusion relies heavily

on Murray v. Colvin, No: 1:16-CV-00181,

(W.D.N.Y. April 6, 2017). In Murray, an ALJ determined that the

claimant had a disability, but denied him benefits because DAA

was a contributing factor material to the disability.

, at *1–2. The court determined that SSR 13-2p “is quite

restrictive and requires that the record conclusively establish

that, in the absence of DAA, plaintiff’s condition would improve

to the point of nondisability.”

. The court then

conducted a “careful review of the record” and found “no

evidence” supporting the ALJ’s conclusion.

.

Additionally, a treating physician whose medical opinion

received “significant” weight stated on the record that the

claimant’s limitations in the absence of DAA were “unknown.”

. Here, ALJ Ayer considered evidence from a multitude

of sources, including function reports from nonmedical sources,

19 medical opinions (but incorrectly omitting Dr. Cohen’s), medical

and personal history, hospitalization records and hearing

testimony, before concluding that Ms. Pyatt would not have a

disability absent substance abuse. See A.R., ECF No. 11-2 at 22-

33. Consequently, Murray does not demonstrate that ALJ Ayer’s

decision in this case lacked substantial evidence.

Ms. Pyatt also argues that ALJ Ayer “failed to acknowledge

(as required by SSR 13-2p) that she has had periods of

abstinence during which she exhibited psychiatric symptoms.”

Pl.’s Mot., ECF No. 13 at 21. Ms. Pyatt points to an eighteen-

month period of sobriety in the 1990s in which she experienced

bipolar and anxiety symptoms.

The Commissioner responds that

“the question is not whether Ms. Pyatt experienced symptoms, but

whether she had disabling limitations.” Def.’s Opp’n, ECF No.

15, at 12. The Court agrees with Ms. Pyatt that ALJ Ayer

improperly failed to consider her behavior during periods of

abstinence.

SSR 13-2p indicates how SSA evaluates periods of

abstinence, hospitalization, and treatment. However, SSA is

“unable to provide exact guidance on the length and number of

periods of abstinence to demonstrate whether DAA is material in

every case.” SSR 13-2p, 78 Fed. Reg. at 11,945. A “single,

continuous period of abstinence” may be enough to enable ALJs to

make a judgement about materiality. Id. “If, however, a claimant

20 is abstinent and remains disabled throughout a continuous period

of at least 12 months, DAA is not material even if the

claimant’s impairment(s) is gradually improving.” Id. at n.26.

The record shows that Ms. Pyatt continued to experience

psychiatric symptoms even during periods of abstinence,

including an 18-month long period of abstinence. A.R., ECF No.

11-2 at 58-59; ECF No. 11-9 at 77. Admittedly, this period was

decades prior in the late 1990s, and it is possible Ms. Pyatt’s

symptoms did not rise to the level of a disability, but ALJ Ayer

did not consider that period at all. The Commissioner argues

that “the question is not whether Plaintiff experienced

symptoms, but whether she had disabling limitations,” Def.’s

Mot., ECF No. 14 at 14; but the Court cannot fathom how it is

possible to properly determine the latter (Plaintiff’s

limitations without substance abuse) without even considering

the former (Plaintiff’s symptoms in the absence of substance

abuse). The Commissioner is incorrect that the “burden is on

Plaintiff to demonstrate limitations beyond those found by the

ALJ.” Id. Rather, Ms. Pyatt “has the burden of proving

disability throughout the sequential evaluation process.” SSR 13-

2p, 78 Fed. Reg. at 11,941. At this stage, post an ALJ’s

decision, “the party seeking reversal normally must explain why

the erroneous ruling caused harm,” Nelson, 131 F.3d at 1236;

which Ms. Pyatt adequately does here by arguing that in

21 erroneously overlooking evidence as to abstinent periods, ALJ

Ayer deprived her of benefits.

Ms. Pyatt further argues that ALJ Ayer’s analysis

“conflicts with the SSA’s instructions that ALJs be cautious

when evaluating evidence demonstrating that the claimant’s co-

occurring mental disorder(s) improved when he or she received

treatment in a highly structured setting.” Pl.’s Mot., ECF No.

13 at 21. However, as Defendant observes, “SSR 13-2p does not

prohibit an ALJ from considering improvement post-

hospitalization.” Def.’s Opp’n, ECF No. 15, at 12. SSR 13-2p

states that SSA “may find that a claimant’s co-occurring mental

disorder(s) is still disabling even if increased support or a

highly structured setting reduce the overt symptoms and signs of

the disorder.” SSR 13-2p, 78 Fed. Reg. at 11,939 (emphasis

added). However, SSR 13-2p did not require ALJ Ayer to find that

the mental disorder was still disabling. While ALJ Ayer could

have been more cautious in his analysis to avoid focusing on the

“brief moments” where Ms. Pyatt’s symptoms “may [have]

appear[ed] to improve because of the structure and support

provided in a highly structured treatment setting,” id. at

11,945; the Court cannot “replace the [Commissioner’s] judgment

concerning the weight and validity of the evidence with its

own." Heckler,

.

22 Ms. Pyatt also argues that ALJ Ayer “erred by failing to

properly consider the sheer volume of Ms. Pyatt

hospitalizations.” Pl.’s Mot., ECF No. 13, at 22. SSR 13-2p

indicates that “a record of multiple hospitalizations, emergency

department visits, or other treatment for the co-occurring

mental disorder—with or without treatment for DAA—is an

indication that DAA may not be material even if the claimant is

discharged in improved condition after each intervention.” SSR

13-2p, 78 Fed. Reg. at 11,939. However, as above, SSR 13-2p does

not mandate that a record of multiple hospitalizations is an

indication that DAA is not material.

The Court concludes that Ms. Pyatt fails to show that ALJ

Ayer went beyond his authority in evaluating Ms. Pyatt’s

hospitalizations or treatment, except in ignoring periods of

abstinence.

C. Remand Rather Than an Award of Benefits is the Appropriate Remedy

In her request for relief, Ms. Pyatt asks this Court to

award her benefits rather than to remand for further

proceedings. Pl.’s Mot., ECF No. 13 at 23. In support, Ms. Pyatt

maintains that the record in her case has been thoroughly

developed and a “hearing would merely “function to delay the

[inevitable] award of benefits.” Id. The Court disagrees.

23 Courts award benefits when the ALJ could not reasonably

decide against the claimant on remand. See Ademakinwa v. Astrue,

(D.D.C. 2010); Lockard v. Apfel,

, 33–34 (D.D.C. 2001). In Ademakinwa, the defendant

conceded that substantial evidence did not support the ALJ’s

decision, nor did the defendant “controvert” the plaintiff’s

evidence.

. The court awarded benefits

because the defendant “suggested no basis” for it to prevail on

remand.

In Lockard, the ALJ “irrationally” disregarded a

treating physician’s diagnosis.

. The

district court awarded benefits because it would have been

“virtually impossible” for the ALJ to find against the plaintiff

if the ALJ properly accepted the treating physician’s testimony.

.

On the other hand, courts identifying errors in an ALJ’s

assessment of a treating physician’s medical opinion have

remanded for the ALJ to consider the opinion. See Simms, 877

F.2d at 1052–53. In Simms, the claimant argued that the ALJ had

not considered a treating physician’s opinion that the claimant

experienced pain.

. This opinion “could have

affected” the ALJ’s decision to discount the claimant’s own

testimony concerning his pain.

. The United States

Court of Appeals for the District of Columbia Circuit (“D.C.

Circuit”) instructed the ALJ to explain the weight he attaches

24 to the treating physician’s opinion or his reasons for not

attaching any weight.

In Jackson, the ALJ did not cite to

the records of a treating physician.

. The

oversight was “troubling” because the treating physician’s

records indicated that the plaintiff had an impairment listed as

“presumptively disabling.”

The court did not award benefits

or even instruct the ALJ to grant controlling weight to this

physician on remand.

Instead, the court instructed the ALJ

to “reweigh the evidence” and, if not giving controlling weight

to the medical opinion, to “explain the reasons for this

decision.”

In this case, ALJ Ayer could reasonably find against Ms.

Pyatt on remand. The Commissioner has not conceded that ALJ

Ayer’s decision lacked substantial evidence in support, and in

fact contests the evidence in Ms. Pyatt’s favor, unlike in

Ademakinwa,

. Lockard provides more

support for Ms. Pyatt because that case involved an ALJ’s

disregard for a treating physician’s testimony. See 175 F. Supp.

2d at 33–34. However, the court considered it “virtually

impossible” for the ALJ to find against the plaintiff after

considering the treating physician’s testimony.

Here,

however, Ms. Pyatt has not shown that Dr. Cohen’s opinion would

make it “virtually impossible” for ALJ Ayer to rule against her.

Instead, this case is most similar to Simms, in which the

25 treating physician’s opinion “could have affected” ALJ Ayer’s

decision.

. Even in Jackson, in which the ALJ’s

oversight of a treating physician’s opinion was “troubling,” the

court did not award benefits but instructed the ALJ to reweigh

the evidence. See

. Because ALJ Ayer on

remand could properly consider Dr. Cohen’s medical opinion and

decide whether to give it controlling weight, the Court deems it

appropriate to remand rather than to award benefits. Cf.

Heckler,

(the court may not replace the

[Commissioner’s] judgment concerning the weight and validity of

the evidence with its own).

The supplemental authority that Ms. Pyatt submitted to this

Court on April 6, 2021 does not change the Court’s conclusion.

See Pl.’s Notice Suppl. Authority, ECF No. 17, at 1–2 (citing

Dowling v. Comm’r of Soc. Sec. Admin.,

(4th

Cir. 2021)). In Dowling, the plaintiff sought Social Security

Disability Insurance, not Supplemental Security Income.

Nevertheless, the underlying regulations concerning a treating

physician’s medical opinion are identical. 6 Compare

(SSDI) with

(SSI). In Dowling, the

United States Court of Appeals for the Fourth Circuit (“Fourth

6 As with the regulations governing this case, superseding regulations govern claims filed on or after March 27, 2017.

.1520c. 26 Circuit”) agreed with the ALJ that the treating physician’s

medical opinion did not merit controlling weight.

. However, the court faulted the ALJ for not considering each

of the factors for assigning weight to a medical opinion. Id.;

see also

(c). The court remanded because

greater weight for the opinion reasonably could have altered the

ALJ’s conclusion.

. Without the ALJ’s adequate

explanation for the weight he assigned to the treating

physician’s medical opinion, the district court could not review

the SSA’s determination.

A similar rationale as to Dr.

Cohen’s opinion, and the periods of abstinence, applies here.

For these reasons, the Court concludes that the case should be

remanded to the Commissioner.

27 V. Conclusion and Order

For the reasons set forth above, it is hereby

ORDERED that Ms. Pyatt’s Motion for Judgment of Reversal,

see ECF No. 13, is GRANTED; and it is further

ORDERED that the Commissioner’s Motion for Judgment of

Affirmance, see ECF No. 14, is DENIED. This case is HEREBY

REMANDED to the Commissioner for a decision consistent with this

Memorandum Opinion and Order.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge July 6, 2022

28