Slater v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARVIN A.S.,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
___________________________________/
Case No. 1:25-cv-604
Hon. Hala Y. Jarbou
OPINION
This case is an appeal of a determination by the Social Security Administration (SSA) that
Plaintiff is not entitled to disability insurance benefits or supplemental security income. Before
the Court is the magistrate judge’s Report and Recommendation (R&R) that the decision of the
Commissioner of Social Security be affirmed. (R&R, ECF No. 20.) Plaintiff has filed objections
(ECF No. 21). The Court finds that the Administrative Law Judge (ALJ) failed to properly address
whether the side effects caused by Plaintiff’s seizure medication would limit his ability to work.
Accordingly, the Court will sustain Plaintiff’s objections in part, reject the R&R, reverse the ALJ’s
decision, and remand the case to the Commissioner.
I. LEGAL STANDARD
Under Rule 72 of the Federal Rules of Civil Procedure,
the district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject,
or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.
Fed. R. Civ. P. 72(b)(3).
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II. ANALYSIS
The underlying facts of the case are detailed in the R&R and need not be repeated here.
Plaintiff objects to affirmance of the ALJ’s decision on three grounds: the ALJ improperly
discounted evidence of Plaintiff’s breakthrough seizures; the ALJ incorrectly found that Plaintiff
did not meet the listing for epilepsy; and the ALJ did not properly address the side effects of
Plaintiff’s seizure medication.1 The Court disagrees with Plaintiff as to the first two grounds but
agrees as to the third.
A. Breakthrough Seizures
Plaintiff contends that the ALJ did not properly consider the opinion of his treating
physician and nurse practitioner regarding his breakthrough seizures—that is, seizures occurring
while on a medication that has prevented seizures for a significant time span. The ALJ stated the
following:
The opinions of physician, Charles Asbury, D.O., are not persuasive. On
September 7, 2023, Dr. Asbury stated that the claimant was not medically cleared
to return to work due to continued breakthrough grand mal seizures (Ex. 7F).
Dr. Asbury’s opinions are not persuasive because they address an issue reserved to
the Commissioner of the Social Security Administration.
The opinions of family nurse practitioner, Jeremy Kaley, are not persuasive. On
September 14, 2023, Mr. Kaley opined that the claimant was unable to perform all
work duties due to frequency of breakthrough seizures even though the claimant
adhered to medication regimen (Ex. 8F). The claimant was unable to perform all
light and sedentary work (Id.). Mr. Kaley stated that the claimant became
incapacitated during breakthrough seizures (Id.). Extreme temperatures, noise, and
odors could lower seizure threshold allowing for increase in seizure frequency (Id.).
Overall, Mr. Kaley expressly stated that the claimant was unable to perform all light
and sedentary work at that time due to the severity of his seizure disorder (Id.).
Mr. Kaley’s opinions are inconsistent with and unsupported by the medical
evidence of record. For example, although the claimant’s representative asserted
that the claimant adhered to prescribed medical treatment concerning epilepsy (Ex.
30E/2), the medical evidence of record illustrated some non-compliance with
1 For clarity of analysis, the Court organizes these objections in a different manner than Plaintiff’s brief.
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prescribed epilepsy treatment (Ex. 10F/1). The claimant told the emergency
department medical staff on July 2, 2023, that he skipped taking Keppra in the
morning (Id.). On August 22, 2023, the claimant reportedly experienced three
recent seizures for which he sought emergency department care and reported that
at least one or two of those incidents were not related to missing doses of
medication (Ex. 6F/6). The claimant’s reported emergency department visits were
not specified at that time (Id.). The claimant appeared to be in no acute distress
during several medical appointments (Ex. 1F/9, 13, 2F/7, 3F/34, 49, 10F/3, and 8).
Moreover, Mr. Kaley’s opinions are less persuasive because those opinions
addressed an issue reserved to the Commissioner of the Social Security
Administration. Mr. Kaley’s opinions are not supported by the opinions articulated
by the state agency medical consultants (Ex. 2A/4-7 and 6A/5-7). Therefore, Mr.
Kaley’s opinions are not persuasive.
(ALJ Op., ECF No. 6-2, PageID.72.) The magistrate judge concluded that the ALJ did not need
to address the consistency and supportability of Asbury’s opinion because it was an opinion on an
issue reserved for the Commissioner, and that the ALJ sufficiently addressed the consistency and
supportability of Kaley’s opinions.
Plaintiff objects that even if the ALJ was not required to accept expert opinions regarding
issues reserved for the Commissioner—such as whether Plaintiff’s seizures prevented him from
working—he still should have accepted Asbury and Kaley’s underlying conclusion that Plaintiff
experiences breakthrough seizures. For instance, on August 22, 2023, Asbury wrote that Plaintiff
“has had multiple breakthrough seizures since his last visit” and that “[a]t least one or two of these
were not related to missed doses of medications.” (Medical Records, ECF No. 6-12, PageID.582.)
The ALJ did not determine whether this finding was consistent with or supported by medical
evidence.
However, Plaintiff’s objection misses the mark because the ALJ appears to have accepted
that Plaintiff experiences breakthrough seizures. The ALJ noted that “[o]n August 22, 2023, the
claimant reportedly experienced three recent seizures for which he sought emergency department
care and reported that at least one or two of those incidents were not related to missing doses of
medication.” (ALJ Op., PageID.72.) And the ALJ incorporated the possibility of breakthrough
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seizures into his determination of the Plaintiff’s residual functional capacity. For example, the
ALJ noted that “given the claimant’s epilepsy . . . Dr. Hahn[, a state agency medical consultant,]
appropriately limited the [Plaintiff] to a light exertion level with no commercial driving and no
exposure to unprotected heights.” (Id.) The ALJ ultimately concluded that Plaintiff “can never
climb ladders, ropes, or scaffolds . . . . can perform no work around hazards, such as unprotected
heights or unguarded moving machinery,” and “cannot drive commercially.” (Id., PageID.68.)
Because the ALJ did not discount Asbury’s findings that Plaintiff sometimes experiences
breakthrough seizures, his analysis of Asbury’s opinion on this point does not violate the
regulatory requirements.
Plaintiff also argues that the ALJ erred by not raising the issue of seizures when he
questioned the vocational expert about what jobs Plaintiff could perform. But the ALJ did not
need to specifically mention seizures because the limitations imposed by those seizures were
already contained within the residual functional capacity, which the vocational expert’s testimony
was based on. Of course, seizures might impose additional limitations not contained within the
residual functional capacity—for example, an employer might not tolerate an employee regularly
missing work due to seizures. Cf. Johnson v. Comm’r of Soc. Sec., No. 1:25-cv-404, 2026 WL
1020498, at *1 (W.D. Mich. Apr. 15, 2026) (recognizing that migraine disorder may limit ability
to work based on vocational expert’s testimony “that more than two unexcused absences in a
month would likely result in the termination of an employee”). Here, the vocational expert testified
that “two or more [absences] a month” would preclude working. (ALJ Hr’g, ECF No. 6-2,
PageID.112.) Because Plaintiff’s seizures are less frequent—the evidence suggests that Plaintiff
experiences a seizure every few months at most (see Seizure Log, ECF No. 6-7, PageID.416)—
there is no reason to think his occasional absences from work would pose a significant obstacle to
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employment. Cf., e.g., Stephanie R. v. Comm’r of Soc. Sec., No. 3:23-cv-313, 2024 WL 1615154,
at *4 (S.D. Ohio Apr. 15, 2024) (“[T]he vocational expert testified that employers typically tolerate
up to . . . one unexcused absence a month.”). Thus, there was no need for the ALJ to include
absenteeism in Plaintiff’s residual functional capacity or in his questions to the vocational expert.
Plaintiff’s objections on this point are overruled.
B. Listed Impairment
Plaintiff also objects to the ALJ’s finding that he did not meet the listed requirements for
epilepsy. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.02. A claimant has epilepsy if they
experience “[g]eneralized tonic-clonic seizures, occurring at least once a month for at least 3
consecutive months despite adherence to prescribed treatment.” Id. (cleaned up). Petitioner
experienced seizures on May 11, June 15, and July 2, 2023. (Seizure Log, PageID.416.) However,
the ALJ did not count these under § 11.02 because Asbury’s notes indicated that Plaintiff was not
taking his medication when at least one of these seizures took place. (ALJ Op., PageID.72.) The
regulations state that the ALJ should “not count seizures that occur during a period when [the
claimant is] not adhering to prescribed treatment without good reason.” 20 C.F.R. Pt. 404, Subpt.
P, App. 1 § 11.00(H)(4)(d). Plaintiff suggests that the side effects of dizziness and sleepiness
caused by the medication (discussed at more length below) constitute a good reason for not taking
it. But there is no evidence that these side effects were so severe as to justify failing to take his
medication; indeed, the fact that he continued to take the medication despite those side effects (see
ALJ Hr’g, PageID.98) suggests the opposite.
Plaintiff also argues that financial hardship sometimes prevented him from buying his
medication. A “good reason” includes an inability “to afford prescribed treatment that [the
claimant is] willing to accept, but for which no free community resources are available.” 20 C.F.R.
Pt. 404, Subpt. P, App. 1 § 11.00(H)(4)(d). However, Plaintiff does not claim to have raised this
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issue with the ALJ, nor does he point to any evidence about financial hardship in the record before
the ALJ.2 Instead, Plaintiff contends that when the ALJ decided to exclude certain seizures due to
his failure to comply with the prescribed medication regimen, it was the ALJ’s responsibility to
inquire into whether Plaintiff had a good reason for that failure to comply. As discussed below,
the Court finds that argument unavailing.
The regulations do not specify exactly how the ALJ should proceed when evaluating
seizures that occurred during lapses in medication. But as a general matter, “[t]he plaintiff has the
burden to show that her impairment meets or medically equals a listed impairment.” Michelle B.
v. Comm’r of Soc. Sec., No. 1:25-cv-13482, 2026 WL 988495, at *10 (E.D. Mich. Apr. 13, 2026)
(citing Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 413 (6th Cir. 2011)). To meet the
requirements for epilepsy, Plaintiff must establish that he experienced three consecutive monthly
seizures “despite adherence to prescribed treatment.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.02.
Failure to adhere to treatment is thus not something that the SSA uses to rebut the Plaintiff’s
evidence of seizures; rather, Plaintiff must affirmatively establish that the seizures occurred while
he adhered to his treatment. And it follows that if Plaintiff attempts to rely on an exception to this
rule by counting a seizure that occurred when he failed to adhere to his treatment but had a good
reason to do so, he must affirmatively establish that such a good reason existed, or at the very least
raise the issue before the ALJ.
2 Plaintiff does point to evidence that arose after the ALJ’s decision—namely, that he could not pay for his medication
in August and September of 2024 due to lack of insurance. (Pl.’s Objs., ECF No. 21, PageID.694.) But the events of
2024 do not shed much light on why Plaintiff did not take his medication in 2023. Moreover, “the district court cannot
consider new evidence submitted after the ALJ’s decision.” Howard v. Astrue, No. CIV.A. 6:11-327, 2012 WL
4758162, at *3 (E.D. Ky. Oct. 5, 2012) (citing Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001)). It is true that
“[t]he district court can . . . remand the case for further administrative proceedings in light of the evidence, if a claimant
shows that the evidence is new and material, and that there was good cause for not presenting it in the prior
proceeding.” Foster, 279 F.3d at 357 (citing 42 U.S.C. § 405(g)). But Plaintiff does not argue that he had good cause
to not present this evidence to the ALJ. Although obviously Plaintiff could not have presented evidence of post-
proceeding events at the proceeding itself, he certainly could have presented evidence of financial hardship. Thus,
there is no basis for remand.
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In short, the statutory language suggests that Plaintiff had an obligation to identify his
reasons for failing to take his medication during the administrative proceeding. Nothing in the
broader regulatory context refutes that suggestion. As to the substantive standard used to
determine what qualifies as a “good reason,” § 11.00(4)(d) notes that the SSA “will follow
guidelines found in [their] policy, such as §§ 404.1530(c) and 416.930(c) of this chapter.” 20
C.F.R. Pt. 404, Subpt. P, App. 1 § 11.00(4)(d). Section 404.1530 provides that if a claimant has
been prescribed a treatment by their doctor, and the claimant “do[es] not follow the prescribed
treatment without a good reason, [the SSA] will not find [the claimant] disabled.” 20 C.F.R.
§ 404.1530(b). Although § 11.00(4)(d) only references § 416.930(c)—that is, the subsection
listing “[a]cceptable reasons for failure to follow prescribed treatment,” which is not at issue
here—it is perhaps reasonable to look to § 416.930 more broadly to determine how the agency
generally treats issues involving failure to follow treatment.
It is far from clear that an ALJ applying § 416.930 has an obligation to ask a claimant why
they did not adhere to their prescribed treatment. In a 1982 ruling, the SSA stated that when a
determination is made that a claimant failed to follow their prescribed treatment, “[t]he
claimant . . . should be given an opportunity to fully express the specific reason(s) for not
following the prescribed treatment.” SSR 82-59, 1975–1982 Soc. Sec. Rep. Serv. 793, 1982 WL
31384 (Jan. 1, 1982). But that ruling has since been superseded by SSR 18-3p, 83 Fed. Reg. 49616,
2018 WL 4945641 (Oct. 29, 2018), which is more ambiguous. SSR 18-3p states that once the ALJ
determines that a claimant failed to follow their prescribed treatment, the ALJ will “assess whether
the individual has good cause for not following the prescribed treatment.” Id. at 49618. The
claimant “has the burden to provide evidence showing that he or she has good cause for failing to
follow prescribed treatment.” Id. “If evidence [the ALJ] already ha[s] in a claim is insufficient to
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make the required assessment(s) in the failure to follow prescribed treatment determination, [the
ALJ] may develop the evidence,” which “could include contacting the . . . individual to ask why
he or she did not follow the prescribed treatment.” Id. at 49619 (emphasis added). This ruling
does not support the view that the ALJ has a duty to ask the claimant why they did not follow their
prescribed treatment; the ALJ may do so if they have insufficient evidence, but the claimant has
the ultimate burden to establish a good reason. Thus, SSR 18-3p is consistent with the view that
the ALJ may find that no good reason existed where the claimant fails to affirmatively state a
reason and the evidence does not support one.
Moreover, even if SSR 18-3p requires the ALJ to affirmatively ask a claimant about their
reasons for missing their medication under § 416.930, it is not clear that that requirement applies
in this context. As another court noted, “the interplay between the relevant Listing (11.02) and
SSR 18-3p (Failure to Follow Prescribed Treatment) is ‘legally unclear.’” Kellilea F. v. Kijakazi,
No. CV 21-00410, 2022 WL 2128625, at *6 (D.R.I. June 14, 2022). Section 416.930 and SSR 18-
3p apply when the claimant has been determined to be disabled and the ALJ must decide if they
are nonetheless ineligible for benefits due to a failure to follow prescribed treatment. Where the
ALJ must affirmatively find that the claimant failed to follow their prescribed treatment without
good reason, there is a stronger case for requiring the ALJ to ask the claimant why they did not
follow their treatment before finding that § 416.930 applies. The situation is different when
§ 11.02 is at issue because, as noted above, the epilepsy listing requires the claimant to identify
seizures that occurred while they complied with their prescribed treatment. In that context, it
makes sense that if the claimant seeks to rely on seizures that occurred when they failed to take
their medication, they must provide a good reason for that failure.
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In sum, the ALJ had no obligation to address possible good reasons for Plaintiff’s failure
to adhere to his prescribed treatment where the Plaintiff did not assert any reasons and none were
apparent from the record. Plaintiff’s objection on this point is overruled.
C. Side Effects
Plaintiff argues that the ALJ failed to incorporate the side effects caused by his seizure
medication when determining what jobs Plaintiff could perform. Dr. Asbury found that after
Plaintiff’s epilepsy medication was increased in response to breakthrough seizures, Plaintiff
experienced “intolerable side effects including sedation and dizziness.” (Medical Records,
PageID.585.) Plaintiff also testified at the ALJ hearing that his medication made him feel
“[d]rowsy and dizzy,” that it caused him to nap during the day, and that he would sometimes “doze
off without even trying to.” (ALJ Hr’g, PageID.98.) The ALJ does not appear to have considered
this issue in making his determination as to Plaintiff’s residual functional capacity. The ALJ did
ask the vocational expert whether an employer would tolerate an employee taking “two random
30-minute breaks” each day—perhaps to account for Plaintiff needing naps to address the
drowsiness—and the expert testified that such a limitation “would be work preclusive.” (Id.,
PageID.112.) But the ALJ did not include any break-related limitation in Plaintiff’s residual
functional capacity or address the vocational expert’s conclusion on this matter. Perhaps reasons
exist to discount these reported side effects, but such reasons are not clear from the record or the
ALJ’s opinion. “[T]his Court cannot uphold an ALJ’s decision, even if there ‘is enough evidence
in the record to support the decision, where the reasons given by the trier of fact do not build an
accurate and logical bridge between the evidence and the result.’” Fleischer v. Astrue, 774 F.
Supp. 2d 875, 877 (N.D. Ohio 2011) (cleaned up) (quoting Sarchet v. Chater, 78 F.3d 305, 307
(7th Cir. 1996)). Because no such bridge exists, the Court will sustain Plaintiff’s objection on this
point and remand the case for the Commissioner to address this issue.
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III. CONCLUSION
The ALJ erred in failing to consider whether the side effects of Plaintiff’s seizure
medication impact his residual functional capacity. Accordingly, the Court will reverse the
decision of the ALJ and remand the case to the Commissioner.
An order and judgment shall issue in accordance with this Opinion.
Dated: May 26, 2026 /s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE
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