Gibson v. Astrue

Filing 20

ORDER by Judge Philip A. Brimmer on 3/27/15. ORDERED: The decision of the Commissioner that plaintiff was not disabled is AFFIRMED. (kpreu)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-00597-PAB
JOHN N. GIBSON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER

This matter is before the Court on plaintiff John N. Gibson’s complaint [Docket
No. 1], filed on March 7, 2013. Plaintiff seeks review of the final decision of defendant
Carolyn W. Colvin (the “Commissioner”) denying plaintiff’s claim for supplemental
security income under Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 40133 and 1381-83c. 1 The Court has jurisdiction to review the Commissioner’s final
decision under 42 U.S.C. § 405(g).
I. BACKGROUND
On July 23, 2010, plaintiff applied for disability benefits under Title XVI of the Act,
claiming that he suffered from depression, seizures, asthma, stroke, post-traumatic
stress disorder, bipolar disorder, and sleep apnea. R. at 79. Plaintif f alleged that he
had been disabled since April 16, 2010. Id. at 12. After an initial administrative denial

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The Court has determined that it can resolve the issues presented in this matter
without the need for oral argument.

of his claim, plaintiff appeared at a hearing before an Administrative Law Judge (“ALJ”)
on December 6, 2011. Id. On December 13, 2011, the ALJ issued a decision denying
plaintiff’s claim. Id. at 23.
The ALJ found that plaintiff had the severe impairments of hypertension, obesity,
and depression. R. at 14. The ALJ found that these impairments, alone or in
combination, did not meet one of the regulations’ listed impairments, id. at 16, and ruled
that plaintiff had the residual functional capacity (“RFC”) to “perform a full range of work
at all exertional levels, but with the following non-exertional limitations: such work does
not require exposure to unprotected heights or hazardous machinery, and involves a
Specific Vocational Preparation (SVP) level of less than or equal to 3, with a GED level
not requiring more than basic reading or math skills.” Id. at 17.
The Appeals Council denied plaintiff’s request for review of this denial. R. at 1.
Consequently, the ALJ’s decision is the final decision of the Commissioner.
II. ANALYSIS
A. Standard of Review
Review of the Commissioner’s finding that a claimant is not disabled is limited to
determining whether the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as a whole. See Angel
v. Barnhart, 329 F.3d 1208, 1209 (10th Cir. 2003). T he district court may not reverse
an ALJ simply because the court may have reached a different result based on the
record; the question instead is whether there is substantial evidence showing that the
ALJ was justified in her decision. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.

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1990). “Substantial evidence is more than a mere scintilla and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007). Moreover, “[e]vidence 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). T he district
court will not “reweigh the evidence or retry the case,” but must “meticulously examine
the record as a whole, including anything that may undercut or detract from the ALJ’s
findings in order to determine if the substantiality test has been met.” Flaherty, 515
F.3d at 1070. Nevertheless, “if the ALJ failed to apply the correct legal test, there is a
ground for reversal apart from a lack of substantial evidence.” Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993).
B. The Five-Step Evaluation Process
To qualify for disability benefits, a claimant must have a medically determinable
physical or mental impairment expected to result in death or last for a continuous period
of twelve months that prevents the claimant from performing any substantial gainful
work that exists in the national economy. 42 U.S.C. § 423(d)(1)-(2). Furthermore,
[a]n individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A) (2006). The Commissioner has established a five-step
sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R.

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§ 404.1520; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988). The steps of the
evaluation are:
(1) whether the claimant is currently working; (2) whether the claimant has
a severe impairment; (3) whether the claimant’s impairment meets an
impairment listed in appendix 1 of the relevant regulation; (4) whether the
impairment precludes the claimant from doing his past relevant work; and
(5) whether the impairment precludes the claimant from doing any work.
Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20 C.F.R.
§ 404.1520(b)-(f)). A finding that the claimant is disabled or not disabled at any point in
the five-step review is conclusive and terminates the analysis. Casias v. Sec’y of
Health and Human Servs., 933 F.2d 799, 801 (10th Cir. 1991).
The claimant has the initial burden of establishing a case of disability. However,
“[i]f the claimant is not considered disabled at step three, but has satisf ied her burden of
establishing a prima facie case of disability under steps one, two, and four, the burden
shifts to the Commissioner to show the claimant has the residual functional capacity
(RFC) to perform other work in the national economy in view of her age, education, and
work experience.” See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005);
see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). W hile the claimant has the
initial burden of proving a disability, “the ALJ has a basic duty of inquiry, to inform
himself about facts relevant to his decision and to learn the claimant’s own version of
those facts.” Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
C. The ALJ’s Decision
Plaintiff argues the ALJ erred by (1) failing to consider Dr. Marten’s assessment
of plaintiff’s limitations in attention and concentration when determining plaintiff’s RFC,

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Docket No. 17 at 6-7, and (2) finding that plaintiff’s impairments were the result of noncompliance with medication without considering plaintiff’s reasons for discontinuing his
medication. Id. at 8-9.
The relevant evidence of record is as follows. In April, 2010, plaintiff was taken
to the emergency room complaining of headaches. R. at 277. The emergency room
treaters performed blood work and a CT scan, and ordered a neurological consultation.
Id. at 278. Plaintiff reported at that time that he was taking metoprolol for his
hypertension, but that he had not taken the m edication for the past two days because
he forgot. Id. at 277. At the emergency room, plaintiff was given Norvasc and
Lopressor and his “[b]lood pressures came down nicely.” Id. at 275. Plaintiff’s
consulting neurologist found that he had “no neurologic deficits,” but that the CT scan of
his brain showed a “possible 12 mm left upper convexity intracerebral hemorrhage.” Id.
at 273. The neurologist opined that plaintiff’s intracerebral hemorrhage was likely
caused by his hypertension. Id. at 274.
Plaintiff began seeing his primary care physician, Dr. Mihir Patel, on April 22,
2010. R. at 252. At that visit, plaintiff reported to Dr. Patel that he had been taking his
medications as prescribed, but that he experienced side effects of dizziness and
drowsiness as a result. Id. at 253. At a follow-up visit with Dr. Patel on July 24, 2010,
plaintiff reported that he had discontinued taking Lamictal2 because it made him feel

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Lamictal, generic name Lamotrigine, is a prescription drug that is “used alone or
with other medications to treat seizures in people who have epilepsy or Lennox-Gastaut
syndrome (a disorder that causes seizures and often causes developmental delays).
Nat’l Inst. of Health, Medline Plus Lamotrigine, available at
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a695007.html.
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bad. Id. at 250. Dr. Patel “strongly advised” plaintiff to resume taking Lamictal and
made a note to refer him to a neurologist. Id.
On July 20, 2010, plaintiff informed Dr. Patel that he had stopped taking Lamictal
due to the side effects and wanted to discuss alternatives. R. at 244. Plaintiff told Dr.
Patel that he suffered from seizures one to two times per month, but that he believed
the Lamictal was inducing his seizures rather than helping to treat them. Id. Dr. Marten
prescribed Dilantin as an alternative to Lamictal.3 Id. at 245.
On September 6, 2010, plaintiff was taken to the emergency room because his
mother was concerned he had suffered a stroke. R. at 260. According to the
emergency department report, plaintiff “seem[ed] to have a little issue with short-term
memory formation, but it is not consistent. It is not every time you talk about something
with him.” Id. at 261. Plaintiff’s emergency room treaters determined that he had not
had a stroke and recommended he be monitored on an outpatient basis. Id. at 262. As
of plaintiff’s September 6, 2010 emergency room visit, his “Dilantin level was zero, so
he [was] not taking it at all.” Id. at 261.
Plaintiff appeared in the emergency room again on September 16, 2010,
complaining that he had been suffering intermittent headaches for the previous three
days. R. at 267. A CT scan showed stable findings without any change from previous
visits. Id. at 268. Plaintiff reported that while he “is supposed to be taking Dilantin,” he
“does not like to take it so he has not taken it in sev eral days.” Id. at 267. Plaintiff was

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Dilantin, generic name Phenytoin, is a prescription medication used to control
certain types of seizures. Nat’l Inst. of Health, Medline Plus Phenytoin, available at
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682022.html.
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informed that “he needed to be compliant with his medications because uncontrolled
seizures are life-threatening, if not significantly detrimental.” Id. at 268. Plaintiff
informed emergency room doctors that he continued to drive, id. at 267, and was
informed that “he absolutely must not drive.” Id. at 268.
On October 11, 2010, Brad Marten, Psy.D., performed a psychological
evaluation of plaintiff. Dr. Marten assessed plaintiff’s mental capacity and determined
that plaintiff lacked basic math skills, based on an inability to count backwards from 100
by intervals of seven and inability to perform basic subtraction. R. at 290. Dr. Marten
also tested plaintiff’s short-term memory, finding that plaintiff was able to recall three
words–house, lion, and china–when asked to repeat them immediately after hearing
them, but was unable to do so five minutes later. Id. at 291. Plaintiff was unable to
spell “world” backwards and initially faltered when asked to spell the word “cat”
backwards, but corrected himself. Id. at 292. Dr. Marten noted that it was “very
unusual for a claimant not to be able to spell the word cat backwards easily and
immediately except in the cases of more severe neurological impairment.” Id. Dr.
Martin diagnosed plaintiff with mathematics and reading disorders, id., but noted on two
occasions in his report that it was “not certain [plaintiff] provided his best effort” in
responding to questions. Id. at 292, 293. Dr. Marten also diagnosed plaintiff with
“major depressive disorder, recurrent, mild” and post-traumatic stress disorder. Id. at
292.
With respect to plaintiff’s ability to work, Dr. Marten noted that plaintiff’s
“apparent limited basic math skills may . . . interfere with his capacity to carry out work-

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related tasks and functions requiring such skills.” R. at 293. Noting the “slow pace and
hesitant response” to the mental status inquiry, Dr. Marten also opined that plaintiff
“may experience difficulty in his capacity to carry out work related tasks and function
with expected rates of speed and efficiency.” Id. Finally, Dr. Marten opined that
plaintiff’s history of “severe recurrent clinical depression” and post-traumatic stress
disorder “may also negatively impact interpersonal functioning in the work place
settings.” Id.
In October 2010, Dr. Arthur Lewy reviewed the record, including plaintiff’s
testimony and Dr. Marten’s findings. R. at 78-82. Dr. Lewy concluded that plaintiff can
“follow simple 1 and 2 step instructions and concentrate f or up to 2 hours at a time,” can
“occasionally work with supervisors, co-workers, and interact with [the] general public,”
and “can complete predictable tasks and cope with usual hassles, stersses [sic] and
changes.” Id. at 89-90.
1. The ALJ’s RFC Determination
Plaintiff argues that the ALJ did not consider portions of Dr. Marten’s opinion,
even though the ALJ gave that opinion “great weight.” Docket No. 17 at 6. Specifically,
plaintiff argues that the ALJ’s determination that plaintiff is capable of performing work
with an SVP of three or less is inconsistent with Dr. Marten’s finding that plaintiff’s
attention and concentration are limited, id., and that the ALJ therefore ignored Dr.
Marten’s conclusions regarding plaintiff’s attention and concentration. Id. at 7.
The Court disagrees with plaintiff. The ALJ did not ignore Dr. Marten’s
conclusions concerning plaintiff’s attention and concentration. The ALJ in fact

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specifically discussed those conclusions in determining plaintiff’s RFC. R. at 20. The
ALJ noted Dr. Marten’s conclusion that plaintiff “had deficits in concentration,
persistence, and pace” and also that Dr. Marten f ound an “issue of substandard effort.”
Id. The ALJ then specifically credited Dr. Marten’s assessment of plaintiff’s ability to
concentrate in finding that plaintiff is limited to a SVP level of less than or equal to 3. Id.
While plaintiff may believe that the RFC determination is inconsistent with Dr. Marten’s
conclusions, “the ALJ, not a [doctor], is charged with determining a claimant’s RFC from
the medical record.” Howard v. Barnhart, 379 F.3d 945, 949 (10th Cir. 2004).
2. Plaintiff’s noncompliance with treatment
Plaintiff next argues that the ALJ erred by finding that plaintiff’s impairments
were the result of noncompliance with treatment without first considering plaintiff’s
reasons for not taking his prescribed medication. Docket no. 17 at 8. An ALJ “must
not draw any inferences about an individual’s symptoms and their functional effects
from a failure to seek or pursue regular medical treatment without first considering any
explanations that the individual may provide, or other information in the case record,
that may explain infrequent or irregular medical visits or failure to seek medical
treatment.” SSR 96-7p, 1996 WL 374186 at *7 (July 2, 1996). The ALJ is, however,
free to consider evidence that a claimant did not follow prescribed treatment in
assessing the claimant’s credibility.
“Before relying on . . . 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)

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whether the refusal was without justifiable excuse.” Ragland v. Shalala, 992 F.2d 1056,
1060 (10th Cir. 1993) (emphasis added). One justifiable excuse noted in the
regulations for failing to take prescription medication is that “the side effects are less
tolerable than the symptoms.” SSR 96-7p, 1996 WL 374186 at *8.
Here, the ALJ relied on plaintiff’s failure to take hypertension medications as
evidence that plaintiff’s symptoms were “the result of pervasive non-compliance issues.”
R. at 18. The Court finds that the ALJ erred in not specifically inquiring into whether
plaintiff had a justifiable excuse for not taking his hypertension medication. SSR 96-7p,
1996 WL 374186 at *7. The Court finds, however, that this error was harmless. In the
administrative context, harmless error analysis is appropriate “where, based on material
the ALJ did at least consider (just not properly), a [reviewing court can] confidently say
that no reasonable administrative factfinder, following the correct analysis, could have
resolved the factual matter in any other way.” Allen v. Barnhart, 357 F.3d 1140, 1145
(10th Cir. 2004). The ALJ did not ask plaintiff about his failure to take his prescribed
hypertension medication, but plaintiff testified at the hearing that he had taken the
medications regularly since April 2010 and that they did not help control his blood
pressure. R. at 38. Additionally, plaintiff at various points reported to his treaters that
his hypertension medication made him “sleepy,” id. at 201, caused “dizzyness” and
“drowsiness,” id. at 253, and that he stopped taking it because of the side effects. Id. at
309. The Court finds that no reasonable factfinder who had considered plaintiff’s
rationale for not taking his hypertension medication would have found it to be a
justifiable excuse, Ragland, 992 F.2d at 1060, or that the side ef fects were “less
tolerable than the symptoms.” SSR 96-7p, 1996 WL 374186 at *8. The record shows
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that plaintiff’s treaters believed that his hypertension was the cause of plaintiff’s stroke,
R. at 260, and that plaintiff was advised that if he did not get his hypertension under
control, he was likely to suffer another stroke. Id. at 319. Plaintiff’s treater noted that
plaintiff’s hypertension was likely to cause headaches, nausea, tremors, and visual
disturbances. Id. at 299. When plaintiff presented to the emergency room complaining
of a headache, blurred vision, and lightheadedness, giving him hypertension medication
caused those symptoms to quickly abate. Id. at 275. In light of the effects of plaintiff’s
hypertension, no reasonable factfinder could conclude that plaintiff’s complaints of
dizziness and drowsiness constituted a justifiable excuse for his failure to follow
prescribed treatment. This is particularly true where, as here, plaintiff reported the
same side effect as a result of his anti-seizure medication. R. at 312 (noting plaintiff’s
report that Dilantin made him “sleepy” the next day).
Plaintiff also argues that the ALJ erred in discounting plaintiff’s justification for
not taking his anti-seizure medication. Docket No. 17 at 8-9. The ALJ, however, did
not rely on plaintiff’s non-compliance with anti-seizure medication for her finding that
plaintiff was not disabled. The only discussion of plaintiff’s failure to take seizure
medication in the ALJ’s decision was with respect to the credibility of plaintiff’s
testimony that he was compliant with his anti-seizure medication. R. at 20. The ALJ is
permitted to consider non-compliance with prescribed medications when evaluating a
claimant’s credibility. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (“[t]he
ALJ . . . did not purport to deny plaintiff benefits on the ground he failed to follow
prescribed treatment. Rather, the ALJ properly considered what attempts plaintiff made
to relieve his pain – including whether he took pain medication – in an effort to evaluate
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the veracity of plaintiff’s contention that his pain was so severe as to be disabling”)
(citations omitted); see also Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996)
(upholding credibility finding because “[t]he failure to follow prescribed treatment is a
legitimate consideration in evaluating the validity of an alleged impairment”). The ALJ’s
discussion of plaintiff’s failure to take his seizure medication in this context was not
error.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that the decision of the Commissioner that plaintiff was not disabled
is AFFIRMED.

DATED March 27, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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