Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS JELENA R., [1] )
)
Plaintiff, )
) CIVIL ACTION v. )
) No. 19-1194-JWL ANDREW M. SAUL , )
Commissioner of Social Security, )
)
Defendant. )
______________________________________)
MEMORANDUM AND ORDER
Plaintiff seeks review of a decision of the Commissioner of Social Security
denying Supplemental Security Income (SSI) benefits pursuant to sections 1602 and 1614
of the Social Security Act, 42 U.S.C. §§ 1381a and 1382c (hereinafter the Act). Finding
error in the Administrative Law Judge’s (ALJ) failure to consider the factors from Frey v.
Bowen,
I. Background
Plaintiff protectively filed an application for SSI on August 7, 2017. (R. 17, 253). After exhausting administrative remedies before the Social Security Administration (SSA), Plaintiff filed this case seeking judicial review of the Commissioner’s decision pursuant to 42 U.S.C. § 405(g). Plaintiff claims the ALJ erroneously relied on her noncompliance with treatment recommendations without considering the factors required by the court’s decision in Frey. (Pl. Br. 11-14).
The court’s review is guided by the Act. Wall v. Astrue,
The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue,
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. § 416.920; Wilson v. Astrue,
The Commissioner next evaluates steps four and five of the process—determining
at step four whether, considering the RFC assessed, claimant can perform her past
relevant work; and at step five whether, when also considering the vocational factors of
age, education, and work experience, she is able to perform other work in the economy.
Wilson,
II. Discussion
Plaintiff argues the ALJ discounted her allegations of disabling symptoms based
on her finding Plaintiff’s allegations were inconsistent with her routine and conservative
treatment, inconsistent with the fact she was not fully compliant with taking her
medication, inconsistent with her improvement with case management and therapy, and
were inconsistent with her numerous activities of daily living. Plaintiff argues that in
finding her noncompliant with medication recommendations the ALJ never applied the
four-factor test from Frey and this failure to apply the correct legal standard requires
remand. (Pl. Br. 12). Plaintiff acknowledges that the ALJ addressed two of the four Frey
factors—whether the treatment was prescribed, and whether the treatment was refused—
but she ignored the other two factors—whether the treatment would restore the ability to
work, and whether the refusal was without justifiable excuse. (Pl. Br. 15). She argues
that such an error may be harmless, but it is not in this case because the remainder of the
ALJ’s evaluation of inconsistencies is unsupported. Id. at 16-17 (citing Branum v.
Barnhart,
The Commissioner points out that in order to overturn the ALJ’s factual findings the court “must find that the evidence not only supports a contrary conclusion, but compels it.” (Comm’r Br. 1). He argues that because the ALJ provided reasons supported by the evidence to find Plaintiff is not disabled, the court should affirm her decision. Id. He argues that the evidence supports the ALJ’s findings that Plaintiff improved with treatment, her mental health care was routine and conservative, she did not comply with treatment recommendations, and her activities of daily living are inconsistent with allegations of disabling symptoms. Id. at 7-11. Finally, he argues “[t]he medical opinion evidence also supports the ALJ’s assessment of Plaintiff’s subjective symptom testimony.” Id. at 11-12. He concludes, Plaintiff had a fair hearing and full administrative consideration in accordance with applicable statutes and regulations. Substantial evidence on the record as a whole supports the Commissioner’s decision. Accordingly, the Commissioner’s decision should be affirmed.
(Comm’r Br. 13).
In her Reply Brief, Plaintiff argues that the Commissioner did “not address the ALJ’s failure to apply the Frey test.” (Reply 3). She argues that the Commissioner “seems to argue that further discussion of [Plaintiff]’s noncompliance was not necessary because the ALJ did not find [Plaintiff]’s ‘symptoms would be entirely ameliorated by medication compliance.’” Id. (quoting Comm’r Br. 9). She argues that an “ALJ must apply the Frey factors when assessing credibility, not only when noncompliance is a reason for a finding of no disability.” Id. (citing Goodwin v. Barnhart, 195 F. Supp. 2d 1293, 1295 (D. Kan. 2002)).
A. The ALJ’s Findings Regarding Plaintiff’s Allegations of Symptoms As the parties agree the ALJ found Plaintiff’s allegations of disabling symptoms “are not entirely consistent” with the record evidence. (R. 22). She made four findings of inconsistency: Plaintiff’s mental health treatment “has been essentially routine and conservative in nature” (R. 22); Plaintiff has not been compliant with taking her medications; with regular therapy and case management Plaintiff’s symptoms have somewhat improved and “mental status examinations have shown an improvement in her symptoms” (R. 23); and her activities of daily living “are not limited to the extent one would expect, given the complaints of disabling symptoms and limitation that preclude her from work activities.” (R. 24).
B. Analysis
In Frey, the court stated what has become known as “the Frey test:” that, “In
reviewing the impact of a claimant’s failure to undertake treatment, ... [the court]
consider[s] four elements: (1) whether the treatment at issue would restore claimant = s
ability to work; (2) whether the treatment was prescribed; (3) whether the treatment was
refused; and, if so, (4) whether the refusal was without justifiable excuse.” Frey, 816
F.2d at 517. In Thompson v. Sullivan,
In 2000, the Tenth Circuit visited a similar issue in which the ALJ found the plaintiff
incredible, in part, because of a failure to take pain medication for allegedly severe pain.
Qualls v. Apfel,
Id.
In Goodwin v. Barnhart,
The court has no trouble reading Qualls so as to be consistent with Thompson . The claimant in Qualls argued “that the ALJ erred in relying on plaintiff = s failure to take medication for severe pain” because there was evidence that he took pain pills from friends and because the ALJ did not have the evidence necessary to consider the Frey factors.206 F.3d at 1372 . As the Tenth Circuit observed, the credibility issue in Qualls was not whether the claimant had refused to follow prescribed treatment but whether he had attempted to relieve his pain, “including whether he took pain medication.” Id. Thus, the panel in Qualls did not consider the rule from Thompson , as the ALJ had not denied benefits because the claimant had refused “to follow prescribed treatment.” Id.
In 2000, the Tenth Circuit seems to have reached the same distinction in an unpublished
case. Allen v. Apfel, No. 99-3249,
As Plaintiff points out, in his Brief the Commissioner never addressed Plaintiff’s arguments regarding the Frey test. Rather, he argued the ALJ found that Plaintiff received medication and attended therapy on a fairly regular basis “and the evidence of record showed that when she was compliant with medication and therapy her mental symptoms improved.” (Comm’r Br. 10). Thus, the Commissioner argues specifically that Plaintiff was receiving medication and attending therapy in an attempt to relieve her mental health symptoms and that her condition improved when she was compliant with recommendations and, by negative implication, that it worsened when she was noncompliant. This is precisely the situation to which the Tenth Circuit has found that Frey applies yet the Commissioner ignored Plaintiff’s argument in that regard. The Commissioner’s argument in this case—that in order to overturn the ALJ’s factual findings the court “must find that the evidence not only supports a contrary conclusion, but compels it” (Comm’r Br. 1), and therefore because the ALJ provided reasons supported by the evidence to find Plaintiff is not disabled, the court should affirm her decision—ignores that the Commissioner must apply the correct legal standard.
Regarding her noncompliance with medication, Plaintiff does not argue that the evidence supports findings contrary to those made by the ALJ. She argues that the ALJ did not make findings required by regulations and case law—whether the treatment with which Plaintiff was noncompliant would restore the ability to work, and whether her noncompliance was without justifiable excuse. The Commissioner simply did not address this argument in his Brief. While it may be arguable that Frey or the regulation upon which it relied is not applicable in the circumstances of this case, or that Frey was wrongly decided, the Commissioner does not make those arguments, and the court may not make them for him. Remand is necessary for the Commissioner to apply the correct legal standard to the issue presented in this case.
IT IS THEREFORE ORDERED that the decision below shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the Commissioner’s final decision for further proceedings consistent with this decision.
Dated May 1, 2020, at Kansas City, Kansas.
s:/ John W. Lungstrum John W. Lungstrum United States District Judge
Notes
[1] The court makes all its “Memorandum and Order[s]” available online. Therefore, in the interest of protecting the privacy interests of Social Security disability claimants, it has determined to caption such opinions using only the initial of the Plaintiff’s last name.