Jiminez v. Astrue

Filing 18

ORDER that this case is REVERSED AND REMANDED to the Commissioner for further fact finding as directed in this Order pursuant to sentence four in 42 U.S.C. § 405(g), by Judge Wiley Y. Daniel on 3/27/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-02760-WYD
KENNETH L. JIMINEZ,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security1,
Defendant.

ORDER

THIS MATTER is before the Court on review of the Commissioner’s decision that
denied Plaintiff’s application for Supplemental Security Income [“SSI”] benefits. For the
reasons stated below, this case is reversed and remanded to the Commissioner for
further fact finding.
I.

BACKGROUND
Plaintiff, born in 1984, filed for SSI benefits on September 23, 2008, when he

was 24 years old. (Administrative Record [“AR”] 11, 103-05.) He alleged that he was
disabled due to seizures, which he had since childhood, and shoulder and back pain.
(Id. 142.)2 After Plaintiff’s application was denied initially (id. 52-54), he requested a
hearing before an administrative law judge [“ALJ”]. A hearing was held in August 2010

1

Carolyn W. Colvin is substituted for Michael J. Astrue as the Defendant pursuant to Fed. R. Civ.

P. 25(d).
2

Only Plaintiff’s seizure disorder is at issue in this appeal.

(id. 23-49), and the ALJ issued a decision on February 23, 2011, finding that Plaintiff
was not disabled at step five of the sequential evaluation. (Id. 11-18.)
More specifically, at step one the ALJ determined that Plaintiff had not engaged
in substantial gainful activity since his application date. (AR 13.) At step two, the ALJ
found that Plaintiff had severe impairments of “history of back pain, unknown etiology,
history of dislocations, right shoulder and seizure disorder.” (Id.) At step three, the ALJ
determined that Plaintiff did not have an impairment or combination of impairments did
met or medically equaled one of the listed impairments. (Id.)
The ALJ then assessed Plaintiff’s residual functional capacity [“RFC”]. (AR 1317.) She found that Plaintiff could physically perform light work with the following
limitations:
could lift or carry ten pounds frequently and 20 pounds occasionally; could
stand or walk, with normal breaks, for a total of six hours in an eight hour
workday; could sit, with normal breaks, for a total of six hours in an eight hour
workday; could perform pushing and pulling motions with his upper and lower
extremities within the aforementioned weight restrictions; should avoid
unprotected heights or moving machinery; could frequently perform the
postural activities of climbing, balancing, stooping, crouching, kneeling or
crawling; should not climb ladders, ropes or scaffolds and could frequently
perform overhead reaching and handling with his dominant right upper
extremity.
(Id. 13-14.) The ALJ also noted that Plaintiff is a younger individual within the meaning
of the Social Security Act with a limited education. (Id. 17.)
At step four, the ALJ found that Plaintiff has no past relevant work. (AR 17.) At
step five, relying on vocational expert testimony, the ALJ found that Plaintiff could
perform other work existing in significant numbers in the national economy. (Id. 17-18.)

-2-

Thus, the ALJ found that Plaintiff was not disabled since September 23, 2008, the date
the application was filed. (Id. 18.)
The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision
(AR 1-6), making the ALJ’s June 2010 decision the Commissioner’s final decision for
purposes of judicial review. See 20 C.F.R. § 422.210(a). Plaintiff timely requested
judicial review, and this appeal followed.
Plaintiff argues that the ALJ did not properly evaluate the treating physicians’
opinions, did not properly evaluate at step three whether Plaintiff meets a listing for
epilepsy/seizures, and improperly rejected the testimony of lay witness Pamela Barela.
He also argues that the court should award benefits rather than remanding for another
hearing as he asserts that he meets the requirements of Listing 11.02 found at 20
C.F.R. Pt. 404, Subpt. B, App. 1.
II.

ANALYSIS
A.

Standard of Review

A Court’s review of the determination that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standard and whether
the decision is supported by substantial evidence. Hamilton v. Sec. of Health and
Human Servs., 961 F.2d 1495, 1497-98 (10th Cir. 1992). Substantial evidence is
evidence a reasonable mind would accept as adequate to support a conclusion. Brown
v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). “It requires more than a scintilla of
evidence but less than a preponderance of the evidence.” Gossett v. Bowen, 862 F.2d
802, 804 (10th Cir. 1988).
-3-

“Evidence is not substantial if it is overwhelmed by other evidence in the record
or constitutes mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.
1992). Further, “if the ALJ failed to apply the correct legal test, there is a ground for
reversal apart from substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487
(10th Cir. 1993).
The ALJ’s decision must be evaluated “based solely on the reasons given stated
in the decision.” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). A posthoc rationale is improper because it usurps the agency’s function of weighing and
balancing the evidence in the first instance. Carpenter v. Astrue, 537 F.3d 1264, 1267
(10th Cir. 2008). Thus, I will not consider post-hoc arguments of the Commissioner.
B.

The Merits of Plaintiff’s Arguments
1.

Whether the ALJ Erred At Step Three and in Assessing the
Testimony of Lay Witness Pamela Barela

“‘At step three, the ALJ determines whether the claimant's impairment is
equivalent to one of a number of listed impairments that the [Commissioner]
acknowledges as so severe as to preclude substantial gainful activity.’” Drapeau v.
Massanari, 255 F.3d 1211, 1212 (10th Cir. 2001) (quotations omitted). An ALJ is
required “to discuss the evidence and explain why he found that [a claimant] was not
disabled at step three.” Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). As
noted in Clifton:
In the absence of ALJ findings supported by specific weighing of the
evidence, we cannot assess whether relevant evidence adequately supports
the ALJ's conclusion that appellant's impairments did not meet or equal any
Listed Impairment, and whether he applied the correct legal standards to
-4-

arrive at that conclusion. The record must demonstrate that the ALJ
considered all of the evidence. . . .
Id.
Plaintiff contends that the ALJ erred in regard to her assessment of Listing 11.02.
That Listing, entitled “Epilepsy – convulsive epilepsy (grand mal or psychomotor)”,
requires a “detailed description of a typical seizure pattern, including all associated
phenomena; occurring more frequently than once a month in spite of at least three
months of treatment” with “[d]aytime episodes (loss of consciousness and convulsive
seizures)” or “[n]octurnal episodes manifesting residuals which interfere significantly
with activity during the day.” 20 C.F.R. Pt. 404, Subpt. B, App. 1, § 11.02. Relevant to
this Listing, “[a]t least one detailed description of a typical seizure is required”, because
“[i]n epilepsy, regardless of etiology, degree of impairment will be determined according
to type, frequency, duration, and sequelae of seizures.” Id., § 11.00A. The description
of the seizure “includes the presence or absence of aura, tongue bites, sphincter
control, injuries associated with the attack, and postictal phenomena.” Id. “The
reporting physician should indicate the extent to which description of seizures reflects
his own observations and the source of ancillary information.” Id.3
The ALJ in this case found that while Plaintiff had a severe seizure disorder, he
did not meet Listing 11.02 because “he did not have a detailed documented history of
daytime episodes or nocturnal episodes with residual effects that occurred more

3

The impairment must persist despite the fact that the individual is following prescribed
antiepileptic treatment. Id.

-5-

frequently than once a month in spite of prescribed treatment.” (AR 13.)4 I find that the
ALJ erred for several reasons. First, there is no requirement in the listing that there be
a detailed documented history of the seizures; instead, the listing only requires “a
detailed description of the typical seizure pattern, including all associated phenomena.”
20 C.F.R. Pt. 404, Subpt. B, App. 1, § 11.02. Second, the ALJ did not discuss the
evidence that supported her finding and did not properly consider, even at a later step of
the evaluation, all the evidence relevant to the Listing.
In that regard, Dr. Hein stated that Plaintiff’s seizures are uncontrolled and that
he has about 2-3 grand mal seizures per week. (AR 282.) Similarly, Dr. Bukowski
stated that Plaintiff suffers from several grand mal seizures per month. (Id. 283.) This
certainly satisfies the listing requirement that the seizures occur more frequently than
once a month. Moreover, Dr. Hein notes that she has been taking care of Plaintiff for
some time (id. 282), and there is a period of almost five months of treatment between
Dr. Hein’s May 8, 2009 report and Dr. Bukowski’s October 1, 2009 report. This alone
demonstrates over three months of treatment, which is also supported by the record of
treatment in this case by Dr. Bukowski, Dr. Hein, and neurologist Dr. Smith.
Further, both Drs. Hein and Bukowski provided a description of the seizures.
Dr. Hein states that Plaintiff is unable to work, drive, or be a fully stable husband or

4

While the Commissioner argues that the ALJ’s findings at other steps make clear that she found
Plaintiff did not meet Listing 11.02 because he did not prove that he continued to have listing-level
seizures despite adherence to prescribed antiepileptic treatment, I disagree. While the ALJ did refer to
failure to adhere to treatment at step four, this does not appear to be a basis for her decision at step three.
Instead, the basis for her decision at step three appears to be that there was not a detailed description of
the seizures. Accordingly, I find that this is an improper post-hoc argument. In any event, I find error with
the ALJ’s findings regarding failure to adhere to treatment as discussed in Section II.B.2, infra.

-6-

father because of his seizure disorder, and that every time Plaintiff suffers a grand mal
seizure, “it takes an average of 12-24 hours to recover, fully.” (AR 282.) She noted that
this period is the “‘post-ictal’ phase”, “where the patient requires increased sleep and
assistance due to weakness” and where confusion often “intrudes on daily functioning.
(Id.) Dr. Hein’s findings are corroborated by Dr. Bukowski, who states that the postseizure phase lasts an average of 24 hours for Plaintiff “leaving him basically
incapacitated.” (Id. 283; see also 286—Nursing Intake Note.)5 The ALJ failed to
properly consider this evidence in regard to the listings.
It is true that neither doctor indicated the extent to which their description of the
seizures reflected their own observations and the source of ancillary information.
Rather than attempting to ascertain this information from the doctors or the other
evidence, the ALJ improperly rejected the doctors’ opinions on the basis that they “were
apparently based on claimant’s self-reports regarding the frequency of his seizures
rather than objective data.” (AR 16.) However, an ALJ may not reject the opinions of a
physician “based merely on h[er] own speculative conclusion that the[ir] report[s] w[ere]
based only on claimant’s subjective complaints.” Langley v. Barnhart, 373 F.3d 1116,
1121 (10th Cir. 2004). “The ALJ [must have] a legal or evidentiary basis for h[er] finding
that [a treating physician’s] opinions were based merely on Plaintiff’s subjective
complaints of pain. Id. Here, the ALJ did not state any legal or evidentiary basis for her

5

I discuss the weight the ALJ gave to the opinions of Drs. Hein and Bukowski in the next section.

-7-

finding.6 Moreover, treating physicians uniformly rely on subjective statements of their
patients in assessing treatment, and there is nothing in the record that indicates the
treating physicians found Plaintiff’s complaints to be anything other than credible. To
the extent the record was unclear as to the issue, the ALJ should have contacted the
physicians about this rather than engaging in speculation. See McGoffin v. Barnhart,
288 F.3d 1248, 1252 (10th Cir. 2002) (citing 20 C.F.R. § 404.1512(e)(1) (2001)).7
The ALJ also ignored the fact that Plaintiff’s girlfriend, Paula Barela, who lived
with him, noted her observations of the seizures and provided what appears to be a
detailed description of a typical seizure pattern and the associated phenomena. (AR
37-41.) Further, Nurse Howard also described the seizures based on information she
learned from Plaintiff and his girlfriend. (Id. 313.) The ALJ did not discuss this evidence

6

While the Commissioner suggests that the ALJ found Plaintiff’s subjective complaints not to be
credible, that is not entirely accurate. The ALJ obviously found Plaintiff’s complaints of seizures to be
credible to some extent as she found that he had a severe seizure disorder. However, she neglected to
address the key credibility determination—whether Plaintiff’s complaints to the doctors about the
frequency and severity of the seizures during the relevant time period were credible. Instead, the ALJ
merely found that Plaintiff’s statements of the “intensity, persistence, and limiting effects of these
symptoms were not credible to the extent they were inconsistent with [the ALJ’s] residual functional
capacity assessment.” (AR 14.) This is a boilerplate finding. It does not specify which parts of Plaintiff’s
statements are credible and which are not. Moreover, the ALJ relied on evidence prior to Plaintiff’s
application date in finding that the medical records did not support Plaintiff’s allegations regarding the
frequency and severity of his seizures, and did not cite any evidence during the applicable time period to
support this decision.
7

I also question the assumption by the ALJ that there is an objective test to determine the
frequency of a person’s seizures. As Plaintiff notes, objective evidence is evidence that can be discovered
and substantiated by external testing, while subjective evidence is statements by a plaintiff or other
witnesses that can be evaluated only on the basis of credibility. Thompson, 987 F.2d at 1488-89. “The
treating physician’s opinion is given particular weight because of his ‘unique perspective to the
medical evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief hospitalizations.’” Doyal v. Barnhart,
331 F.3d 758, 762 (10th Cir.2003). No disease is per se excluded from coverage because it cannot be
conclusively diagnosed in a laboratory setting. Sisco v. U.S. Dep’t of Health and Human Servs., 10 F.3d
739, 744 (10th Cir.1993). Instead, a claimant’s disability may “be diagnosed through the use of a
technique, either clinical or laboratory, that has been accepted by the medical community.” Id.

-8-

either in connection with her step three finding. While she discussed Ms. Barela’s
testimony at a later step, she does not explain how it bears on the listing
for seizures. I find this was error, and that the evidence must properly be considered to
determine if it meets the criteria of the listing.
The evidence of Ms. Barela appears particularly important on this issue as she
describes the seizures and their impact on Plaintiff. The listing specifically states that
“[t]estimony of persons other than the claimant is essential for description of type and
frequency of seizures if professional observation is not available.” 20 C.F.R. Pt. 404,
Subpt. B, App. 1, § 11.00A. The ALJ did not recognize this, instead giving “little, if any,
weight” to Ms. Barela’s testimony. (AR 17.)
Related to the above, I find that the ALJ erred in regard to her credibility
assessment of Ms. Barela. First, the ALJ stated that the accuracy of Ms. Barela’s
testimony “was questionable” because she “has not been medically trained to make
exacting observations as to dates, frequencies, types and degrees of medical signs and
symptoms.” (AR 17.) This appears to be clear error in light of the listing’s statement
that testimony of lay witnesses is particularly helpful and should be considered in
deciding whether the listing is met. Indeed, lack of training is never a reason for
rejecting the testimony of an eye witness as to his or her personal observations.
The listing’s reference to lay witnesses also suggests that the ALJ could not
discount Ms. Barela’s testimony simply because of her personal relationship with the
claimant. (See AR 17.) Indeed, other than medical professionals, people who have a
personal relationship with the claimant would be the only ones who could provide
-9-

testimony about the seizures and their effect on the Plaintiff, particularly given the fact
that Plaintiff is unable to describe his own seizures due to loss of consciousness and
memory. (Id. 35.) Moreover, the regulations themselves make clear that evidence from
lay witnesses “is relevant to show the severity of the individual’s impairment(s) and how
it affects the individual’s ability to function.” 20 C.F.R. §416.913(d).
To the extent the Commissioner contends that Ms. Barela’s close personal
relationship with Plaintiff might influence her testimony (Resp. Br. at 19), the key word is
“might”. The ALJ rejected Ms. Barela’s testimony because it might have been
influenced by the relationship. However, there is no finding that her testimony was so
influenced, or that Ms. Barela herself was not credible. This type of categorical
discounting of testimony is contrary to the regulations which acknowledge that friends
and relatives can provide relevant testimony. 20 C.F.R. §416.913(d)(4); see also Listing
11.00(A). The law does not presume that a relationship invalidates testimony.
Indeed, the listing makes clear that such testimony may be essential to the
determination of whether the listing is met.
Finally, I find that the ALJ erred in her assertion that Ms. Barela’s statement was
not consistent with the preponderance of evidence of the medical doctors. (AR 17.)
The opinions of Drs. Hein and Bukowski, as well as the nurse practitioners, support
Ms. Barela’s observations, and the ALJ did not identify any evidence to the contrary.
Based upon the foregoing, I find that the ALJ erred at step three. I also find that the ALJ
erred in assessing Ms. Barela’s testimony and her credibility.

-10-

2.

Whether the ALJ Erred in Weighing the Medical Opinions of
Drs. Hein and Bukowski

Plaintiff argues that the ALJ did not have proper reasons for discounting the
weight of the opinions of Drs. Hein and Bukowski, and failed to account for their
opinions despite giving them some weight. He asserts that these doctors are treating
physicians, and that the ALJ erred in not treating them as such.
The ALJ stated that she considered the letters prepared by Drs. Hein and
Bukowski which, according to the ALJ, “stated that Plaintiff’s epilepsy was uncontrolled
despite medication compliance.” (AR 16.) The ALJ gave “little, and certainly not
controlling weight” to these letters, finding that they were “inconsistent with treatment
notes that repeatedly indicated that claimant was non-compliant with his medications,
did not have his medical levels checked as requested and did not fill his prescription for
Topomax despite his neurologist’s successful efforts in finding a pharmacy that would
accept his insurance.” (Id.)
I find that the ALJ erred in her weighing of these medical opinions. First, since
she referenced the term “controlling weight” in regard to her weighing of Drs. Bukowski
and Hein’s opinions, it appears that she agreed they were treating physicians.8 When
weighing a treating physician’s opinion, the ALJ is required to “complete a sequential
two-step inquiry, each step of which is analytically distinct” with regard to their medical
opinions. Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). “The initial
determination the ALJ must make with respect to a treating physician’s medical opinion

8

The Commissioner’s argument that neither physician saw Plaintiff enough to be a treating
physician is an improper post hoc argument.

-11-

is whether it is conclusive, i.e., is to be accorded ‘controlling weight,’ on the matter to
which it relates.” Id. “Such an opinion must be given controlling weight if it is
well-supported by medically acceptable clinical or laboratory diagnostic techniques and
is not inconsistent with other substantial evidence in the record.” Id. “If the opinion is
deficient in either of these respects, it is not to be given controlling weight.” Id. But that
does not end the inquiry. Id.
“Even if a treating opinion is not given controlling weight, it is still entitled to
deference; at the second step in the analysis, the ALJ must make clear how much
weight the opinion is being given (including whether it is being rejected outright) and
give good reasons, tied to the factors specified in the cited regulations for this particular
purpose, for the weight assigned.” Krauser, 638 F.3d at 1330. “If this is not done, a
remand is required.” Id. As further explained:
Adjudicators must remember that a finding that a treating source medical
opinion is not well-supported by medically acceptable clinical and laboratory
diagnostic techniques or is inconsistent with the other substantial evidence
in the case record means only that the opinion is not entitled to “ controlling
weight,” not that the opinion should be rejected. Treating source medical
opinions are still entitled to deference and must be weighed using all of the
factors provided in [§§ ] 404.1527 and 416.927. In many cases, a treating
source's medical opinion will be entitled to the greatest weight and should be
adopted, even if it does not meet the test for controlling weight.
Id. (citing SSR 96–2p, 1996 WL 374188, at *4 (emphasis added)). “Thus, a deficiency
as to the conditions for controlling weight raises the question of how much weight to
give the opinion, it does not resolve the latter, distinct inquiry.” Id. at 1330-31.
In the case at hand, the ALJ did not follow the proper sequential evaluation in
determining what weight to give Drs. Hein and Bukowski’s opinions. While she stated
-12-

that she was not giving controlling weight to the opinions, she did not consider whether
their medical opinions regarding the frequency and impact of Plaintiff‘s seizures were
well-supported by medically acceptable clinical or laboratory diagnostic techniques and
were not inconsistent with other substantial evidence in the record. Indeed, there are
many treatment notes relevant to the doctors’ opinions which were not considered in the
ALJ’s decision and which may be relevant to whether their opinions were well supported
by medically acceptable clinical or laboratory diagnostic techniques. Moreover, the
opinions of the two doctors corroborate each other, and the treatment notes of nurse
practitioners Carla J. Howard and Erin Beatty support the doctors’ findings. (AR 313325.)
Even if not entitled to controlling weight, it does not appear that the ALJ gave the
doctors’ opinions deference as required and weighed the relevant factors as to the
weight to be given their reports. At best, it appears that the ALJ may have given a little
bit of weight to the opinions of Drs. Hein and Bukowski. However, I am unable to
determine from the record which portions of their opinions she may have given weight to
and which portions of the opinions she rejected. Thus, I cannot meaningfully review the
ALJ's decision on this issue.
The ALJ’s error is heightened because I cannot determine how she determined
Plaintiff’s RFC in connection with his seizure disorder. She did not make a finding as to
the type of seizures Plaintiff has, the frequency of the seizures, and/or the recovery time
needed after the seizures, which is relevant both to a step three finding as discussed
previously and the RFC determination. While the ALJ stated that she incorporated
-13-

restrictions in the RFC assessment “relative to his seizure disorder”, she does not
explain what those restrictions are or what evidence she relied on imposing those
restrictions. This is error because the ALJ’s RFC did not “include a narrative discussion
describing how the evidence supports each conclusion. . . .” SSR 96-8p, 1996 WL
374184, at *7; see also Moon v. Barnhart, No. 04-7130, 2005 WL 3446576, at *2-3
(10th Cir. Dec. 16, 2005) (unpublished) (remanding the case where “the ALJ never
specified what he believed the credible medical evidence to be, either for the purpose of
rejecting the doctors’ RFC assessments or for the purpose of supporting his own
finding” and where the court was thus unable to determine what evidence the ALJ relied
on in connection with the RFC). This failure is particularly troubling as the ALJ did not
give any other medical opinion greater weight than that of Drs. Hein and Bukowski.
I also find error with the ALJ’s reasons for not giving weight to the doctors’
opinions. I previously found that the ALJ erred in rejecting Drs. Hein and Bukowski’s
findings as to Plaintiff’s seizures because they were based on Plaintiff’s subjective
complaints. The ALJ also relied on noncompliance with treatment as a basis to reject or
give “little” weight to their findings. (AR 16.) However, even if Plaintiff was
noncompliant, this does not necessarily allow the ALJ to simply discount their other
medical findings regarding Plaintiff’s seizures. A doctor’s statements about Plaintiff’s
condition or impairments “are specific medical findings”. Washington v. Shalala, 37
F.3d 1437, 1439 (10th Cir. 1994). The ALJ errs in rejecting those opinions in the
absence of conflicting evidence. Id. (finding error with the ALJ’s decision to reject the
opinions of treating physicians because the doctors did not provide any examples or
-14-

incidents that supported their findings and there were no “results or diagnostic tests of
medical findings which led them to their conclusion” since the finding that Plaintiff’s
condition deteriorates under stress is a specific medical finding).
Moreover, I find that the ALJ erred in relying on noncompliance with treatment as
a basis to discount the doctors’ findings because she did not consider all the evidence
on the issue or make the proper findings required by law. The ALJ noted on that issue
that the letters of Drs. Hein and Bukowski were “inconsistent with treatment notes that
repeatedly indicated that claimant was non-compliant with his medications, did not have
his medication levels checked as requested and did not fill his prescription for Topamax
despite his neurologist’s successful efforts in finding a pharmacy that would fill his
insurance. (AR 16.) The treatment notes do not indicate, however, repeatedly indicate
that Plaintiff was non-compliant with his medication levels. The only evidence the ALJ
cited in connection with medication is one entry dated September 26, 2008, which
indicated that Plaintiff had not consistently been taking his medication. (Id. 16, 212.)
This is before Plaintiff’s onset date and during a period where he had not had seizures
for six months. (Id. 212.) The ALJ did not cite any evidence afer that date and during
the applicable time period that shows Plaintiff was not taking his medication.9
The ALJ also faults Plaintiff for not filling a prescription for Topamax. However, it
is undisputed that he could not afford that medication. While she concludes that Plaintiff
failed to obtain this medication “despite his neurologist’s successful efforts in finding a

9

Indeed, the blood tests discussed below support a finding that Plaintiff was taking his
medication.

-15-

pharmacy that would fill his insurance”, i.e., CICP (AR 16), CICP is not a health
insurance program. It merely provides discounted health care services to low income
people. http://www.colorado.gov/cs/Satellite/HCPF/HCPF/1214299805914. Thus, the
ALJ incorrectly believed that Plaintiff had insurance coverage that would provide free
medications. Moreover, there is no evidence in the record that Plaintiff could pay even
a discounted fee for Topamax. Indeed, the evidence showed that Plaintiff was relying
on food stamps to pay his bills and get his medication, and the ALJ did not question
Plaintiff as to whether he could afford to pay for the Topamax. (AR 28.) Nurse Howard
appeared to realize this as she later offered information for financial assistance for
Oxcarbazepine. (Id. 315.)
The ALJ also failed to consider whether Topamax or the other medications
discussed in the treatment notes would be more effective than the medication he was
taking. An ALJ must “apply a particular analysis anytime he relies on a failure to pursue
treatment as a basis to find that claimant is not disabled. Fuller v. Astrue, 766 F. Supp.
2d 1149, 1166 (D. Kan. 2011) (citing Ragland v. Shalala, 992 F.2d 1056, 1060 (10th Cir.
1993)). “Before relying on such a failure to pursue treatment, ‘the ALJ should consider
(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.’” Id. at 1167; Thompson v. Sullivan,
987 F.2d 1482, 1490 (10th Cir. 1993). The ALJ did not follow this analysis in this

-16-

case.10 Thus, there was no consideration or finding that Topamax would have restored
Plaintiff’s ability to work, i.e., by resolving or significantly reducing the seizures.
In any event, it is clear that Plaintiff’s doctors thought he was compliant despite
his failure to get Topamax or one of the other medications. Indeed, both Drs. Hein and
Bukowski stressed how motivated Plaintiff was, including with obtaining financial
assistance. Dr. Hein states in her May 2009 letter that Plaintiff was “undergoing the
application process for medicaid in order to obtain financial assistance, to be able to
afford anti-epileptic medications”, that he was “a very motivated young man who is
desperately trying to alleviate his seizures,” that Plaintiff “wants to go back to work and
return to highly functioning, but this is impossible at this time”, and that the opportunity
to live a normal live and return to work were only possible if he was granted financial
assistance. (AR 282.) Similarly, Dr. Bukowski notes that Plaintiff “is compliant and
motivated in regards to his treatment but is not able to afford most of the medications
that help him most”, that Plaintiff “wants to work. . . but cannot due to his uncontrolled
epilepsy”, and asks that his Medicaid application be expedited. (Id. 283.) Similar
findings are reflected in other parts of the record. (Id. 286-87, 293, 295.) The ALJ
improperly rejected these findings without discussion.
Finally on the issue of noncompliance, the ALJ and the Commissioner rely
heavily on the fact that Plaintiff did not get his medication levels checked despite his
medical providers’ instructions to do so. It is true that there was a time period after his

10

While the Commissioner argues that the ALJ was not required to conduct this analysis, I
disagree. The ALJ’s decision regarding failure to pursue treatment was central to her finding to reject the
opinions of Drs. Hein and Bukowski and to find that Plaintiff was not disabled by his seizures.

-17-

application date when Plaintiff did not get his medication levels checked as ordered, as
reflected in the treatment notes.11 Nurse Beatty requested a Tegretol level check on
December 9, 2009. (AR 325.) A Tegretol level check was re-ordered on January 11,
2010 and February 9, 2010, after Plaintiff failed to obtain this check. (Id. 319, 321.)
However, Nurse Howard confirmed that Plaintiff’s Tegretol level was “drawn in June and
was 10.7.” (Id.) Therefore, Plaintiff did not fail to get his medication levels checked, as
the ALJ suggested, but rather merely delayed getting the level checked during a limited
time period. There is no evidence and no finding by the ALJ that this delay was
detrimental in any way, or that having the medication levels checked sooner would have
reduced the frequency or severity of Plaintiff’s seizures. Indeed, when the levels were
checked, Plaintiff was within therapeutic levels, showing he was taking the medication
as prescribed.12 Moreover, the Tegretol level was therapeutic on January 16, 2009 (id.
276), and on October 1, 2009 (id. 271, see also 275, 300, 310.)13 The blood test results
ultimately supported the treating physicians’ statements that Plaintiff was compliant with
prescribed medication. The ALJ erred in not considering this evidence.
Ultimately, the opinions of Dr. Hein and Dr. Bukowski that Plaintiff was compliant
with prescribed treatment should have been given deference and weighed to determine
11

The blood test results relied on by the Commissioner to demonstrate noncompliance that
occurred well before Plaintiff’s application date (see Resp. Br. at 13) are not relevant to whether Plaintiff
was compliant during the applicable time period. Indeed, there is evidence that Plaintiff’s seizures were
relatively controlled until shortly before the application date. (AR 212.)
12

The Commissioner acknowledges that “[d]etermination of blood levels of . . . antiepileptic drugs
may serve to indicate whether the prescribed medication is being taken.” Listing 11.00(A).
13

The Commissioner argues that the blood test in March 2009 shows “barely therapeutic” levels
of Tegretol. (Resp. Br. at 13). I reject this argument. While the level was “very low normal” (AR 310), it
was within the therapeutic range. This does not evidence noncompliance.

-18-

if they were entitled to controlling weight. These physicians had the first hand
opportunity to assess the instances of noncompliance, not in a vacuum, but rather in
light of the course of treatment that ultimately unfolded. The ALJ is not entitled to
second-guess treating physicians, particularly based on a selective application of the
evidence. See Carpenter v. Astrue, 537 F.3d 1264, 1265 (10th Cir. 2008); Winfrey v.
Chater, 92 F.3d 1017, 1021-22 (10th Cir. 1996). Nor should the ALJ impose a zerotolerance policy in regards to compliance; the relevant issue is whether the
noncompliance would have impacted Plaintiff’s ability to work. Here, no evidence has
been cited for the ALJ for that proposition.
III.

CONCLUSION
Based upon the foregoing, I find that the ALJ erred at step three of the analysis,

in evaluating and weighing the opinions of the treating physicians, and in relying on
noncompliance as a basis to find that Plaintiff was not disabled. While Plaintiff requests
reversal and an immediate award of benefits, I find that this case must be remanded for
further fact finding as discussed in this Order. See Sorenson v. Bowen, 888 F.2d 706,
713 (10th Cir. 1989) (outright reversal and remand for immediate award of benefits is
appropriate only when additional fact finding would serve no useful purpose.). It is
therefore
ORDERED that this case is REVERSED AND REMANDED to the Commissioner
for further fact finding as directed in this Order pursuant to sentence four in 42 U.S.C.
§ 405(g).

-19-

Dated: March 27, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

-20-