SHON T. ERWIN, Magistrate Judge.
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's application for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR. ____). The parties have consented to jurisdiction over this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
The parties have briefed their positions, and the matter is now at issue. Based on the Court's review of the record and the issues presented, the Court
Initially and on reconsideration, the Social Security Administration denied Plaintiff's application for disability insurance benefits. Following an administrative hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 19-36). The Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the Commissioner.
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. § 404.1520. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity during the period from her alleged onset date of January 15, 2012 through her date last insured of June 30, 2013. (TR. 21). At step two, the ALJ determined Ms. Jarvis had the following severe impairments: post-traumatic stress disorder and panic disorder with agoraphobia. (TR. 22). At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 22).
At step four, the ALJ found that Plaintiff was not capable of performing her past relevant work. (TR. 34). The ALJ further concluded that Ms. Jarvis retained the residual functional capacity (RFC) to:
(TR. 24).
With this RFC, the ALJ made additional findings at step five. There, the ALJ presented several limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 67-68). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles (DOT). (TR. 68). The ALJ adopted the testimony of the VE and concluded that Ms. Jarvis was not disabled based on her ability to perform the identified jobs. (TR. 35-36).
On appeal, Plaintiff alleges the ALJ erred: (1) in failing to properly evaluate Plaintiff's failure to comply with prescribed treatment and (2) in the evaluation of a treating physician's opinion.
This Court reviews the Commissioner's final "decision to determin[e] whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quotation omitted).
While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).
Ms. Jarvis alleges error in the ALJ's failure to properly evaluate Plaintiff's noncompliance with medication which the ALJ found had been effective in treating Ms. Jarvis' anxiety and panic attacks. The Court agrees.
Plaintiff began seeing Dr. John Schipul in June of 2012 for panic attacks which had been occurring for approximately one month. (TR. 367-369). At that time, Ms. Jarvis was taking Xanax to treat her anxiety. (TR. 368). On July 5, 2012, Dr. Schipul diagnosed Ms. Jarvis with Agoraphobia with Panic Disorder and switched Plaintiff's primary medication to Paxil with instructions to take Xanax only as needed. (TR. 366). In September 2012, Dr. Schipul prescribed Risperidone in an attempt to stop Plaintiff's use of Xanax. (TR. 359).
In December 2012, Plaintiff reported doing well on Risperidone, but stopped taking the medication due to side effects involving weight gain and insomnia. (TR. 354-357). In January 2013, Plaintiff presented to Dr. Schipul for "severe panic attacks." According to the physician's note:
(TR. 346). As a result of the increased panic attacks, Dr. Schipul once again prescribed Risperidone. (TR. 347).
In April 2013, Plaintiff saw Dr. Schipul for a medication follow-up appointment. (TR. 340-342). Plaintiff reported that her anxiety was doing well on Paxil and Risperidone, but also that she had gained 10 pounds, even on the lower dose of Risperidone. (TR. 340). Accordingly, Dr. Schipul attempted to transition Ms. Jarvis to Buspar. (TR. 342). A June 2013 progress note stated that Plaintiff had quit taking Paxil due to weight gain, but due to suffering severe panic attacks, she would start taking it again. (TR. 333). In August 2013, Plaintiff agreed to go back on Risperidone, despite the side effect of weight gain. (TR. 331). Even so, a September 2013 progress note stated that once again, Plaintiff had quit taking Risperidone due to weight gain. (TR. 339). Since quitting the medication, Dr. Schipul stated that Ms. Jarvis had "gone back to severe anxiety and not able to leave her house even to take her children to school." (TR. 339).
In his summary of the evidence, the ALJ discussed Plaintiff's reports to Dr. Schipul regarding control of her panic attacks when taking Risperdal, and her lack of control and ability to function when she stopped taking the medication due to weight gain. (TR. 28-29). Three times in the decision, the ALJ referred to Ms. Jarvis' change in anxiety and panic attacks when she was taking and not taking the recommended medication. First, at step three, the ALJ found that when Plaintiff was compliant with her medication, she: (1) suffered from only moderate restrictions in the areas of daily activities; concentration, persistence, and pace; and social functioning and (2) did not qualify for Listing 12.06(C). (TR. 22-24). Second, when evaluating Plaintiff's veracity, the ALJ found the Plaintiff only partially credible, stating:
(TR. 30-31) (internal citations omitted).
Finally, in support of the RFC findings and in his denial of benefits, the ALJ discussed Plaintiff's non-compliance wither medication:
(TR. 33-34).
In support of her argument that an ALJ must consider four factors before denying benefits based on a failure to comply with medical treatment, Plaintiff relies on Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987) and Thompson v. Sullivan, 987 F.2d 1483, 1490 (10th Cir. 1993). In Frey, the Court stated:
Frey v. Bowen, 816 F.2d 508, 517 (10th Cir.1987) (internal quotations and citations omitted). In Thompson, the Court extended the requirement in Frey requirement to credibility findings. See Thompson, 987 F.2d at 1490 (stating that the four Frey factors must be considered "before the ALJ may rely on the claimant's failure to pursue treatment or take medication as support for his determination of noncredibility[.]").
But in Qualls v. Apfel, 206 F.3d 1368 (10th Cir. 2000), the Tenth Circuit Court of Appeals rejected a claimant's argument regarding the necessity of the ALJ to consider the four factors when determining credibility:
Qualls, 206 F.3d at 1372-73 (10th Cir. 2000) (internal citations omitted).
Ms. Jarvis contends that the four-factor test in Frey applies because the ALJ relied on Plaintiff's non-compliance with medication in denying benefits. (ECF No. 17:13-15). Defendant takes the opposite position, contending that the ALJ considered Plaintiff's noncompliance solely to evaluate her credibility, under which circumstances Frey would not apply. (ECF No. 18:8-12). The Court agrees with Plaintiff.
To the extent the ALJ used Plaintiff's noncompliance with prescribed treatments to evaluate her credibility, Qualls is controlling and the ALJ need not apply the four-factor test in Frey. However, in addition to relying on Plaintiff's lack of compliance with recommended treatment in discounting her credibility, the ALJ also relied on the same to deny benefits. See TR. 34 ("when compliant with recommended medical treatment, the claimant was capable of performing work involving no more than occasional interaction with coworkers and supervisors and involving no public contact."). Accordingly, the ALJ should have analyzed whether, under Frey, Plaintiff's failure to comply with the recommended treatment was somehow justified.
For example, the first factor in Frey asks whether the treatment would have restored the claimant's ability to work. Frey, 816 F.2d at 517. The ALJ apparently believes that it would, but evidence in the record suggests otherwise. On June 28, 2013, Plaintiff agreed to go back on Risperidone, despite the weight gain side effect. (TR. 333). And on August 2, 2013, during a consultative examination with Dr. Jennifer Potter, Ms. Jarvis reported that she was prescribed Xanax, Risperidone, and Paxil. (TR. 285). Plaintiff also reported that she had a panic attack every time she left her house and found it impossible to drive anywhere. (TR. 284-285). Accordingly, Dr. Potter reported that Plaintiff suffered from Panic Disorder with Agoraphobia, with "problems with the social environment [and] limited social involvement." (TR. 286-287). The timing of Dr. Schipul's recommendation for Plaintiff to begin taking the Risperdal and Dr. Potter's examination, suggests that Plaintiff was taking the medication and still unable to function. But the Court will not speculate in this regard, instead only noting that the ALJ should have explored this possibility.
In sum, because the ALJ relied on Plaintiff's failure to comply with recommended treatment which the ALJ believed would allow Ms. Jarvis to work, he should have analyzed Ms. Jarvis' non-compliance under the four factors in Frey. The failure to do constitutes legal error.
Ms. Jarvis alleges error in the ALJ's evaluation of the opinion from Plaintiff's treating physician, Dr. Patrick Ellis. (ECF No. 17:15-22). Ms. Jarvis is correct.
An ALJ must follow a particular analysis in evaluating a treating physician's opinion. First, the ALJ has to determine, then explain, whether the opinion is entitled to controlling weight. Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004). An opinion is entitled to controlling weight if it is "well supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with the other substantial evidence in the record." Allman v. Colvin, 813 F.3d 1326, 1331 (10th Cir. 2016) (citation and internal quotation marks omitted). "But if the ALJ decides that the treating physician's opinion is not entitled to controlling weight, the ALJ must then consider whether the opinion should be rejected altogether or assigned some lesser weight." Id. (internal quotation marks omitted).
In doing so, the ALJ must: (1) assess the opinion under a series of factors
Additionally, the ALJ may not selectively review any medical opinion and must provide a proper explanation to support his rationale in support of his findings. See Chapo v. Astrue, 682 F.3d 1285, 1292 (10th Cir. 2012) ("We have repeatedly held that [a]n ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability."); Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (the ALJ must "discuss[ ] the evidence supporting [the] decision" and must also "discuss the uncontroverted evidence he chooses not to rely upon, as well as significantly probative evidence [the ALJ] rejects."); Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (noting that the ALJ's reasons stated in evaluating medical opinions must allow for meaningful appellate review).
On September 3, 2014, treating psychiatrist Dr. Ellis completed a "Mental Impairment Questionnaire" for Ms. Jarvis. (TR. 428-434). There, Dr. Ellis diagnosed Ms. Jarvis with Panic Disorder with Agoraphobia, Post-Traumatic Stress Disorder, and Major Depressive Disorder. (TR. 428). Dr. Ellis opined that Plaintiff's symptoms included:
(TR. 428-29). In support, of these findings, Dr. Ellis stated:
(TR. 429). Dr. Ellis stated that Plaintiff had been suffering this level of impairment over two years, that her prognosis was "poor" and that she is unable to work due to her panic disorder. (TR. 430). Dr. Ellis also described Ms. Jarvis' capabilities and limitations in specific areas of work. (TR. 431-432). The descriptions of limitations were segregated into three categories: (1) mental abilities and aptitudes needed to do unskilled work, (2) mental abilities and aptitudes needed to do semiskilled and skilled work, and (3) mental abilities and aptitudes needed to do particular types of jobs. (TR. 431-432). In the category of unskilled work, Dr. Ellis opined that Plaintiff had "poor or no[ ]" ability and aptitude to:
(TR. 431-432). In the category of semiskilled and skilled work, Dr. Ellis opined that Plaintiff had "poor or no[ ]" ability and aptitude to:
(TR. 432). Finally, in the category of abilities and aptitudes to do certain types of jobs, Dr. Ellis opined that Plaintiff had "poor or no[ ]" ability and aptitude to:
(TR. 432). Finally, Dr. Ellis stated that Plaintiff suffered "extreme" difficulties in maintaining social functioning, "frequent" deficiencies of concentration, persistence, or pace, and "continual" episodes of deterioration or decompensation in work or a work-like settings. (TR. 433).
The ALJ summarized Dr. Ellis' opinions and accorded them "partial weight." (TR, 32-33). In doing so, the ALJ stated:
(TR. 32-33) (internal citations omitted). In part, Plaintiff alleges that the ALJ's explanation was deficient because he failed to explain his rejection of a portion of Dr. Ellis' opinions. The Court agrees.
The ALJ appeared to completely credit Dr. Ellis' findings with regard to specific work-related limitations in the categories of semi-skilled and unskilled work as consistent with findings from Therapist Byte and Dr. Potter. See TR. 32 ("The medical evidence of record, including Dr. Potter's mental status examination findings, supports Dr. Ellis's conclusion that the claimant was unable to perform the activities necessary for semiskilled and unskilled work. This portion of Dr. Ellis' opinion appears to be consistent with the opinions provided by Dr. Potter and Therapist Byte, which the undersigned accords great weight for the reasons discussed above."). Three problems exist with this rationale.
First, in the category of unskilled work, Dr. Ellis opined that Ms. Jarvis had no ability to:
(TR. 431-432). The ALJ stated that he credited this portion of Dr. Ellis' opinion as supported by the findings from Dr. Potter and Therapist Byte. (TR. 32). But such conclusion is not consistent with the RFC which states that Ms. Jarvis can perform work involving simple tasks and routine supervision with occasional interaction with coworkers and supervisors. (TR. 24). Plaintiff does suggest the possibility of a typographical error in that the ALJ meant to credit Dr. Ellis' opinions with regard to "semi-skilled and skilled" work instead of "semiskilled and unskilled" work. (ECF No. 17:19). But even crediting that possibility, three problems still exist. First, the ALJ still failed to explain his rejection of two work-related limitations which directly conflicted with the RFC—Plaintiff's inability to accept instructions and respond appropriately to criticism from supervisors and get along with co-workers or peers without unduly distracting when or exhibiting behavioral extremes. The failure to explain the rejection constitutes legal error. See Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) ("If the ALJ rejects an opinion completely, he must give "specific, legitimate reasons.").
Second, the ALJ's finding regarding Plaintiff's ability to carry out short and simple instructions was based on a conclusion that Plaintiff could do so if compliant with her medication. (TR. 32). But as explained, because this finding was central to the RFC and directly related to the denial of benefits, the ALJ had to evaluate the lack of compliance under the standard articulated in Frey. See supra. Because the ALJ failed to do so, this rationale cannot stand.
Third, the ALJ failed to explain his obvious rejection of the remainder of Dr. Ellis' opinions regarding Plaintiff's inability to perform many of the skills necessary for unskilled work. This type of selective review of a medical opinion is prohibited in this Circuit. See Chapo v. Astrue, 682 F.3d 1285, 1292 (10th Cir. 2012) ("We have repeatedly held that [a]n ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability.").
For these three reasons, the Court concludes that the ALJ committed legal error in his evaluation of Dr. Ellis' opinion and reversal is warranted.
The Court has reviewed the medical evidence of record, the transcript of the administrative hearing, the decision of the ALJ, and the pleadings and briefs of the parties. The ALJ failed to evaluate Ms. Jarvis' noncompliance with medication under the fourfactor test enunciated in Frey v. Bowen. The ALJ also erred in his evaluation of the opinion of Plaintiff's treating psychiatrist, Dr. Ellis by failing to explain his rejection of certain opinions and ignoring, without explanation, others.
As a result, the Court
