VanWinkle v. Commissioner of Social Security
Filing
23
ORDER & OPINION Entered by Judge Joe Billy McDade on 1/9/13: FOR THE FOREGOING REASONS, Plaintiff's Motion for Summary Judgment 17 is DENIED and Defendant's Motion for Summary Affirmance 21 is GRANTED. CASE TERMINATED. (TK, ilcd)
E-FILED
Thursday, 10 January, 2013 01:10:53 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
CHANNING S. VANWINKLE,
Plaintiff,
v.
MICHAEL ASTRUE, Commissioner of
Social Security,
Defendant.
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Case No. 11-cv-1403
ORDER & OPINION
This matter is before the Court on Plaintiff’s Motion for Summary Judgment
and Defendant’s Motion for Summary Affirmance, both addressing this Court’s
review of Defendant’s final decision denying Social Security benefits to Plaintiff.
(Docs. 17 & 21). For the reasons stated below, Plaintiff’s Motion for Summary
Judgment is denied and Defendant’s Motion for Summary Affirmance is granted.
STANDARD OF REVIEW
To be entitled to disability benefits under the Social Security Act, a claimant
must prove that he is unable to “engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment.” 42 U.S.C. §
423(d)(1)(A). To determine if the claimant is unable to engage in any substantial
gainful activity, the Commissioner of Social Security engages in a factual
determination. See McNeil v. Califano, 614 F.2d 142, 143 (7th Cir. 1980). That
factual determination is made by using a five-step sequential analysis. 20 C.F.R. §§
404.1520, 416.920; see also Maggard v. Apfel, 167 F.3d 376, 378 (7th Cir. 1999).
In the first step, a threshold determination is made to decide whether the
claimant is presently involved in a substantially gainful activity. 20 C.F.R. §§
404.1520(a)(i), 416.920(a)(i). If the claimant is not under such employment, the
Commissioner of Social Security proceeds to the next step. At the second step, the
Commissioner evaluates the severity and duration of the impairment. 20 C.F.R. §§
404.1520(a)(iii), 416.920(a)(iii). If the claimant has an impairment that significantly
limits his physical or mental ability to do basic work activities, the Commissioner
will proceed to the next step. At the third step, the Commissioner compares the
claimant’s impairments to a list of impairments considered severe enough to
preclude any gainful work; and, if the elements of one of the Listings are met or
equaled, he declares the claimant eligible for benefits. 20 C.F.R. §§ 404.1520(a)(iv),
416.920(a)(iv); 20 C.F.R. Part 404, Subpart P, Appendix 1.
If the claimant does not qualify under one of the listed impairments, the
Commissioner proceeds to the fourth and fifth steps. At the fourth step, the
claimant’s residual functional capacity (“RFC”) is evaluated to determine whether
the claimant can pursue his past work. 20 C.F.R. §§ 404.1520(a)(iv), 416.920(a)(iv).
If he cannot, then, at step five, the Commissioner evaluates the claimant’s ability to
perform other work available in the economy. 20 C.F.R. §§ 404.1520(a)(v),
416.920(a)(v). If the claimant is disabled, but there is evidence of drug or alcohol
abuse, the Commissioner must consider whether the claimant would still be
considered disabled if he stopped using drugs and/or alcohol; if not, he cannot
receive benefits. 42 U.S.C. § 423(d)(2)(C); 20 C.F.R. § 404.1535.
2
The claimant has the burden to prove disability through step four of the
analysis, i.e., he must demonstrate an impairment that is of sufficient severity to
preclude his from pursuing his past work. McNeil, 614 F.2d at 145. However, once
the claimant shows an inability to perform his past work, the burden shifts to the
Commissioner, at step five, to show the claimant is able to engage in some other
type of substantial gainful employment. Id.
Once a case reaches a federal district court, the court’s review is governed by
42 U.S.C. § 405(g), which provides, in relevant part, “The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence,
shall be conclusive.” Substantial evidence is “such evidence as a reasonable mind
might accept as adequate to support a conclusion.” Maggard, 167 F.3d at 379
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In a substantial evidence
determination, the Court will review the entire administrative record, but it will
“not reweigh the evidence, resolve conflicts, decide questions of credibility, or
substitute [its] own judgment for that of the Commissioner.” Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000). The Court must ensure that the administrative law
judge (“ALJ”) “build[s] an accurate and logical bridge from the evidence to his
conclusion,” even though he need not have addressed every piece of evidence. Id. at
872.
3
BACKGROUND
I.
Procedural History
Plaintiff filed an application for disability benefits on March 6, 2009. (Tr. 125,
147).1 His claim was denied initially and upon reconsideration. (Tr. 70-79). Plaintiff
requested a hearing, which was held on August 25, 2010. (Tr. 11-41, 80-81).
Following the ALJ’s December 16, 2010 decision denying benefits, Plaintiff filed a
request for review by the Appeals Counsel, which was denied on September 29,
2011. (Tr. 65-68, 123). Plaintiff then filed the instant action on November 7, 2011
pursuant to 42 U.S.C. § 405(g). (Doc. 1).
II.
Relevant Medical History2
On November 11, 2008, Plaintiff was admitted to the hospital following an
overdose of medication with alcohol; his mother reported that he had been
depressed lately. (Tr. 219). He reported to a nurse that he had recently broken up
with his girlfriend, and had lost his job. (Doc. 352). While in the hospital, Plaintiff
stayed in his room, refusing to attend group therapy or to socialize with other
patients. (Tr. 352). A provider believed that he would benefit from inpatient care, as
well as a referral to a community support program. (Tr. 416). On November 12,
The transcript in this matter is found in the docket at docket entry 14, and is
cited in this opinion as “Tr.,” using the pagination assigned by the Social Security
Administration.
1
As noted above, the Court will review the entire administrative record, but
focuses its discussion and analysis on the issues and evidence raised by the parties.
Local Rule 8.1(D) provides that “[t]he plaintiff must cite to the record by page
number the factual evidence which supports the plaintiff’s position,” and the Court
does not scour the record for additional evidence that might support a plaintiff’s
claims. Especially where a plaintiff is, as here, represented by counsel, the failure to
cite particular pieces of evidence in the record must constitute a waiver of the
plaintiff’s reliance on that evidence.
2
4
2008, Plaintiff was still somewhat of a threat to himself; acknowledged the need to
recover, but was not ready to engage in a discussion about the necessary actions;
was unable to understand his disease and its management; and was inconsistent
with taking his medications. (Tr. 360-61).
Upon his November 14, 2008 discharge, Plaintiff reported that he would live
with his brother, and that he would seek counseling through his church. (Tr. 420).
Dr. Eric Ritterhoff, who had been treating Plaintiff during his stay, noted in his
discharge summary that, during his admission, Plaintiff had not shown “ongoing
depression, sadness, hopelessness,” and that he had denied being suicidal. (Tr. 321).
Plaintiff had been advised that he needed to remain in the hospital longer in order
to get the full effect of his medication, but he was discharged against medical
advice. (Tr. 321). Plaintiff initially complained of upset stomach caused by his
medication, but Dr. Ritterhoff had prescribed a medication to alleviate that
problem. (Tr. 321). As to his work abilities, Dr. Ritterhoff noted that Plaintiff
“talked in a categorical fashion with no insight as to not being able to work,” and
that Plaintiff had reported some problems with concentration and nervousness. (Tr.
321-22). Dr. Ritterhoff questioned Plaintiff’s prognosis, as it was uncertain whether
he would follow through with treatment. (Tr. 322).
Plaintiff participated in formulating an Individual Treatment Plan on
November 21, 2008. (Tr. 442-43). He stated that he would “continue to maintain
[his] mental health by taking [his] medication;” the clinician noted that he was
capable of self-medication. (Tr. 442-43).
5
Dr. Ritterhoff saw Plaintiff on December 5, 2008. Dr. Ritterhoff reported that
Plaintiff was dwelling on his negative feelings over having lost his girlfriend,
apartment, and job, but was exploring getting a different doctor in order to avoid
the topic of having to work on his behavior rather than merely getting new
medications, especially an antidepressant. (Tr. 495). Dr. Ritterhoff explained that
Plaintiff was not having “biologic depression,” but was merely experiencing natural
negative feelings, and so questioned the need for an antidepressant medication. (Tr.
495).
At Plaintiff’s December 19, 2008 visit with Dr. Ritterhoff, the doctor noted
that Plaintiff was beginning community support program services. (Tr. 494). Dr.
Ritterhoff found no evidence of depression, sadness, or hopelessness, but Plaintiff
showed “low productivity” and reported that he could not “make himself do
anything.” (Tr. 494). In order to show that he could control himself, Dr. Ritterhoff
advised Plaintiff to begin a behavioral program of activity, beginning with walking
every day for an hour, followed by beginning to attempt some sort of work. (Tr. 494).
Plaintiff reported having a problem with concentration in January 2009, but
rejected Dr. Ritterhoff’s offer of treatment for that issue; he had not begun the
behavioral program suggested at the previous visit. (Tr. 493). In February 2009,
Plaintiff refused Dr. Ritterhoff’s suggestion of going to a day hospital for additional
treatment, though Dr. Ritterhoff “explicitly advised” him that he needed “more
intensive therapy.” (Tr. 491). In apparent response to Plaintiff’s statements, Dr.
Ritterhoff told him that the medical staff was not concerned about his Social
Security status, as his problems will persist even if he gets Social Security; Dr.
6
Ritterhoff noted that Plaintiff was “focusing on money as a way to turn things
around with poor psychological insight about his self defeating attitude and the
need to get rid of that.” (Tr. 491-92).
On March 13, 2009, Plaintiff was focused on obtaining an antidepressant
during his visit with Dr. Ritterhoff, and dwelled on problems that were out of his
control. (Tr. 489). Plaintiff was taking his medications. (Tr. 489). Plaintiff did not
volunteer having any depressive symptoms, but, when given a list of such
symptoms, claimed to have all of them. (Tr. 490). Plaintiff saw Dr. Ritterhoff again
on March 30, 2009. He claimed to be depressed, but showed no remarkable
symptoms; Plaintiff was still overly focused on himself and his feelings, and
unwilling to consider efforts at change. (Tr. 487). Plaintiff insisted that he needed
an antidepressant in addition to his Geodon, and so Dr. Ritterhoff prescribed one
“purely to see if we can get beyond his argument that he needs an antidepressant.”
(Tr. 487). Dr. Ritterhoff scheduled another visit in three weeks, though Plaintiff
wanted to go longer between visits. (Tr. 487).
Dr. Kirk Boyenga, a state agency consultant, completed a Psychiatric Review
Technique and a Mental RFC Assessment of Plaintiff in April 2009. (Tr. 501-18). He
found that Plaintiff showed inconsistent signs of depression, and that he had
moderate restrictions in his activities of daily living, moderate difficulties in
maintaining
social
functioning,
and
moderate
difficulties
in
maintaining
concentration, persistence, or pace; Plaintiff had no extended episodes of
decompensation. (Tr. 504, 511). There was also no evidence of the “paragraph C”
7
criteria under Listings 12.02, 12.03, 12.04, or 12.06.3 (Tr. 512). Dr. Boyenga also
found that, for most of the work-related items of the Mental RFC Assessment, there
was either no evidence of any limitation or that Plaintiff was not significantly
limited. (Tr. 515-16). Plaintiff was only moderately limited in his ability to maintain
attention and concentration for extended periods, in his ability to sustain an
ordinary routine without special supervision, in his ability to complete a normal
workday and workweek and to perform and at a consistent pace, in his ability to
intact appropriately with the general public, in his ability to maintain socially
appropriate behavior and to adhere to basic standards of neatness and cleanliness,
in his ability to respond appropriately to changes in the work setting, and in his
ability to set realistic goals or make independent plans. (Tr. 515-16). He opined that
Plaintiff was capable of performing simple tasks, that he could work in a setting
with limited interpersonal contact, that he could perform routine and repetitive
tasks, and that he could follow instructions and travel independently. (Tr. 517).
On May 13, 2009, Dr. Ritterhoff reported that Plaintiff was not depressed,
was not interested in making any behavioral changes, and was concerned only with
obtaining Social Security benefits. (Tr. 522). Dr. Ritterhoff again noted that
“Paragraph C” differs somewhat in Listings 12.02-12.04 and 12.06. In
Listings 12.02-12.04, “paragraph C” requires, inter alia,
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or change
in the environment would be predicted to cause the individual to
decompensate; or 3. Current history of 1 or more years' inability to
function outside a highly supportive living arrangement, with an
indication of continued need for such an arrangement.
20 C.F.R. Part 404, Subpart P, Appendix 1, 12.04-12.06(C). The “paragraph C” of
Listing 12.06 requires a “complete inability to function independently outside the
area of one's home.”
3
8
Plaintiff’s thoughts were centered “only around the issue of obtaining Social
Security disability” in June 2009. (Tr. 521). He continued to resist suggestions such
as a day hospital. (Tr. 521). Later in June, Plaintiff still refused to consider
changing his medications, being hospitalized, or changing his behavior; Plaintiff
refused to accept the need to change. (Tr. 725). Plaintiff was taking his medications
as ordered in July 2009, but was focused only on medication as a solution. (Tr. 723).
Plaintiff was admitted to the hospital in August 2009. Dr. Ritterhoff found
that Plaintiff was “preoccupied with himself,…and not making any effort to be in
control of his life.” (Tr. 536). He noted that Plaintiff had been “hard-working,
conscientious, and very independent prior to the loss of employment.” (Tr. 536).
While hospitalized, Plaintiff did not attend group therapy, though it was part of his
prescribed treatment plan. (Tr. 646, 648, 692). At the end of his hospital stay,
Plaintiff had improved to the point where he recognized his need for medication and
took it, though he needed reminders; he had “limited knowledge” of his disease
process or its management. (Tr. 565, 561). In his discharge summary, Dr. Ritterhoff
reported that Plaintiff still resisted all change, including refusing to consider other
medications or behavioral treatments; Plaintiff would not commit to attending a
community support program. (Tr. 532). Dr. Ritterhoff prescribed Cymbalta, but
Plaintiff stated that he could not afford it and refused to consider donating plasma
as a means of obtaining the needed money; just before his admission, Plaintiff had
stated that he didn’t like needles. (Tr. 532, 722). After his discharge, Plaintiff saw
Dr. Ritterhoff again in August, and Dr. Ritterhoff reported that Plaintiff was still
9
resisting therapeutic recommendations and had not begun to attend the community
support program. (Tr. 721).
In September 2009, Dr. Ritterhoff, rather than filling out a form seeking his
opinion on Plaintiff’s ability to perform work activities, wrote a separate note
describing Plaintiff. (Tr. 738-40). He stated that Plaintiff is extremely rigid, and has
no adaptability, that he has no social motivation or social control, has poor insight
and poor awareness as a result of his severe preoccupation with his situation, would
not accept certain medication and argued about therapy recommendations, did not
have a pre-existing personality disorder or psychosis, and showed very little
activity, instead dwelling on his problems. (Tr. 740).
In October 2009, Dr. Ritterhoff found that Plaintiff was not motivated to
change or engage in any activities, though he was not depressed. (Tr. .748). Plaintiff
reported that he had been following professional baseball and football. (Tr. 748).
Plaintiff categorically stated to Dr. Ritterhoff that he could not work. (Tr. 748). Staff
at the Robert Young Center completed an annual diagnostic re-assessment of
Plaintiff in November 2009, in which it was noted that he “lack[ed] any motivation
to try to improve his symptoms, [and] has turned down suggestions from staff yet
continues to complain about his symptoms.” (Tr. 757-59). The re-assessment also
noted that Plaintiff refused to look into learning ways to cope, and failed to
recognize that medication alone would not solve his problems. (Tr. 757). Plaintiff
saw Dr. Ritterhoff in March 2010, who reported that he still refused any
suggestions for change, insisting that the only answer was obtaining social security
benefits. (Tr. 744). On June 22, 2010, Plaintiff saw Dr. Ritterhoff, who encouraged
10
him to “live in the present” and not dwell on negative thoughts. (Tr. 742). He was
taking his medications, though when offered an additional prescription to help with
stress, he refused. (Tr. 742).
III.
Hearing Testimony
A hearing was held before ALJ John Wood on August 25, 2010, at which
Plaintiff appeared, represented by counsel. (Tr. 11-41). Plaintiff testified that he
lived with his parents, but was staying for a short while with his children and their
mother. Plaintiff was driven to the hearing by his father, and he ordinarily drove
only once a month or every other month, as he did not like to drive.
Plaintiff has a high school education, and most recently worked as a security
guard, ending in March 2007 when he quit. He was not working at the time of the
hearing. When questioned by his attorney, Plaintiff stated that he had quit because
he had had a “breakdown.” His attorney also elicited testimony that the stress of
working a regular job would “stop [him] from wanting to go.”
Plaintiff testified that he didn’t feel that he could work because he had
trouble motivating himself to do daily activities. He had trouble with showering,
doing dishes, vacuuming, playing with his children, and going outside, as he didn’t
feel like doing anything. Though Plaintiff supervised his children getting ready for
school and getting on the bus, he did not have to do much to help them. After the
children were on the school bus, Plaintiff returned to bed, and then watched
television until they came home from school. After supper, Plaintiff watched
television, though sometimes he played games with the children. Plaintiff’s attorney
elicited testimony that he had trouble concentrating on television shows.
11
Plaintiff testified that he was taking the medications prescribed by Dr.
Ritterhoff “religiously.” He also testified that Dr. Ritterhoff had offered other
medications, but that he had refused them. Upon questioning by his attorney,
Plaintiff confirmed that he sometimes refused or argued about suggested
treatments with which he did not agree. He testified, however, that he always took
medications that had been prescribed. The only side effect of the medication
Plaintiff noted was that he was sometimes tired.
Plaintiff drank alcohol about twice a month, and had four or five beers at a
time. He had been drinking at that level since November 2008. Prior to November
2008, he would drink a 12-pack every day. He testified that his medication helped
him to stop drinking, though he did not use any other aids in reducing his drinking.
Vocational expert George Paprocki also testified at the hearing. He had heard
Plaintiff’s testimony and had reviewed the evidence relating to Plaintiff’s work
history. The ALJ asked the vocational expert whether a person with Plaintiff’s past
work and no exertional limitations, but who is limited to only simple and repetitive
work, with no interaction with the general public and only occasional interaction
with co-workers and supervisors, could perform any of Plaintiff’s past work. The
ALJ testified that such a person would work as a furniture assembler, which is an
unskilled position. Such a job would require the employee to work consistently
throughout the work day. The ALJ next asked the vocational expert to consider
whether that hypothetical person, but also with Plaintiff’s age and education, could
find work where the output was measured on a per-shift rather than a per-hour
basis. The vocational expert testified that cleaning jobs would be available, and
12
would require only occasional contact with co-workers; this job would require that
the worker be on-task 90 percent of the time. Only a standard number of breaks
would be available, but there would be some flexibility as to when they were taken,
and employers would tolerate no more than one and a half to one day off per month.
Plaintiff’s attorney asked the vocational expert about a person with the same
characteristics as the last hypothetical, but who was “inflexible, rigid, and nonadaptable,…in terms of dealing with any attempt to change his method of working
or do work tasks.” The ALJ noted that these terms were not within the vocational
expert’s expertise, as they were not “vocational,” but asked the vocational expert to
answer if he felt able. The vocational expert interpreted the attorney’s question as
referring to someone who was not receptive to a supervisor’s suggestions, and who
would be disrespectful of a supervisor, and testified that such a person would not be
able to keep a job.
At the end of the hearing, Plaintiff’s attorney offered to amend the alleged
onset date to November 2008, due to Plaintiff’s heavy drinking prior to that, if his
drinking would negatively affect the ALJ’s determination.
IV.
ALJ’s Decision
The ALJ issued his decision on December 16, 2010. (Tr. 47-60). The ALJ,
after reviewing this case’s procedural history and the applicable law, found that
Plaintiff met the insured status requirements through December 31, 2012 and had
not engaged in substantial gainful activity since March 7, 2007, his alleged onset
date. He then determined that Plaintiff had the severe impairments of a history of
alcohol abuse, a mood disorder, and suspected bipolar disorder.
13
The ALJ next considered Plaintiff’s condition as it exists because he has not
followed certain recommended or prescribed treatments. Without recommended
treatment, Plaintiff did not have an impairment or combination of impairments
that met or medically equaled one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. He also found that, without recommended treatment,
Plaintiff had the RFC to perform a full range of work at all exertional levels, but
limited to simple and repetitive tasks, no interaction with the general public, only
occasional interaction with co-workers and supervisors, and an ability to engage in
less than full-time competitive sustained work owing to an inability to maintain a
regular work schedule. The ALJ based this finding on Plaintiff’s testimony and the
medical evidence.4 The RFC meant that Plaintiff was unable to perform any of his
past relevant work, and, given Plaintiff’s age, education, work experience, and RFC,
the ALJ found that there were no jobs that Plaintiff could perform.
Pursuant to 20 C.F.R. § 404.1530, the ALJ found that Plaintiff had, without
justifiable cause, failed to follow prescribed treatment that would be expected to
restore his ability to work. He found that Plaintiff had been “pervasively
noncompliant with the medical regimen prescribed and/or suggested by his treating
psychiatrist Dr. Ritterhoff and other medical sources.”5 These include: a behavioral
program of activity advised in December 2008, which Plaintiff did not undertake; a
January
2009
refusal
to
discuss
treatment
options
for
difficulties
with
The ALJ’s findings on this question are quite thorough, but the Court does
not review them in detail because they are not at issue here.
4
The ALJ included this and the following portion of his analysis later in the
opinion, but the Court discusses it here for greater clarity.
5
14
concentration; February, March, and June 2009 refusals to consider a day
hospitalization program for more intensive treatment; March 2009 and June 2009
refusals to discuss medication changes; March 2009 resistance to a suggestion of
more-frequent treatment; August 2009 failure to attend group therapy, refusal to
consider alternative medications, and refusal of post-hospitalization treatment; a
later August 2009 refusal to consider behavioral modifications such as more social
engagement; and November 2009 refusal of suggestions from medical staff.
The ALJ concluded that Plaintiff’s refusal to follow these recommendations
was not excusable as a result of his lack of mental capacity or lack of insight
because of Dr. Ritterhoff’s observations in August and October 2009 that he was
able to self-medicate. The ALJ thus determined that Plaintiff simply chose not to
pursue more effective treatment. He also noted that Plaintiff “appears to have no
motivation except to collect benefits;” he suspected that this motivation might be
behind Plaintiff’s refusal to pursue treatment. The ALJ’s suspicion was based on
statements from Dr. Ritterhoff in February 2009, May 2009, June 2009, and March
2010. Finally, the ALJ noted that Plaintiff had been inconsistent on other topics,
including his drinking habits, his medications, and the reason he stopped working.
He therefore concluded that Plaintiff was not justified in refusing the treatment
suggestions of Dr. Ritterhoff and his other treatment providers.
The ALJ found that if Plaintiff were to follow the prescribed treatment, his
mental impairments, whether taken alone or together, would not meet or medically
equal the criteria of Listings 12.04 or 12.06, because neither the “paragraph B” nor
15
the “paragraph C” criteria of either Listing would be satisfied.6 The ALJ found that
Plaintiff would have a moderate restriction in his activities of daily living, moderate
difficulties in social functioning, moderate difficulties in concentration, persistence,
and pace, and no extended episodes of decompensation. In addition, the “paragraph
C” criteria were not met because Plaintiff had no propensity to decompensate
repeatedly, and did not need a highly supportive living arrangement.
The ALJ next evaluated what Plaintiff’s RFC would be if he were to follow
the prescribed treatment. He found that Plaintiff would have the RFC to perform
the full range of work at all exertional levels, but would be limited to simple and
repetitive tasks, no interaction with the general public, and only occasional
interaction with his co-workers and supervisors. This RFC finding was supported by
the evaluation of the state agency psychological consultant in April 2009. The ALJ
did not give significant weight to Plaintiff’s father’s statement, because it did not
take into account the effect of recommended treatment. The ALJ concluded that
treatment would improve Plaintiff’s condition to this extent because the medical
evidence showed that during the periods when Plaintiff was compliant with the
Both Listings 12.04 and 12.06 require that claimants meet the requirements
of either “paragraph B” or “paragraph C.” “Paragraph B,” which is identical in both
listings, requires that the impairment result “in at least two of the following: 1.
Marked restriction of activities of daily living; or 2. Marked difficulties in
maintaining social functioning; or 3. Marked difficulties in maintaining
concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each
of extended duration.” 20 C.F.R. Part 404, Subpart P, Appendix 1, 12.04(B) &
12.06(B). The “paragraph C” criteria are discussed above, in the medical history
section.
6
16
types of treatments recommended, his symptoms improved, which would lead to a
restored ability to work.7
Based on the vocational expert’s testimony in response to a hypothetical
concerning a person with Plaintiff’s with-treatment RFC, the ALJ concluded that
Plaintiff could, if he complied with prescribed treatment, perform his past relevant
work as a furniture assembler, and that he was therefore not disabled.
DISCUSSION
I.
Whether ALJ was justified in denying benefits on the basis of
Plaintiff’s failure to follow through with recommended treatment
The ALJ found that, so long as Plaintiff failed to follow the treatments
recommended by Dr. Ritterhoff he was unable to perform any of his past relevant
work, and that there were no jobs that he could perform. However, he also found
that if Plaintiff were to follow the recommended course of treatment, he would have
the RFC to perform his past relevant work and thus would not be disabled. Social
Security regulations provide that if a claimant unjustifiably fails to follow
prescribed treatment that would restore his ability to work, he cannot be considered
disabled and therefore cannot receive benefits.8 20 C.F.R. § 404.1530. Plaintiff now
challenges the ALJ’s determination that Plaintiff is not excused from refusing Dr.
Ritterhoff’s
recommendations.
He
argues
first
that
Dr.
Ritterhoff’s
recommendations were not formal “prescriptions,” and so Plaintiff’s failure to follow
The ALJ’s analysis of this point is quite detailed, but the Court need not
review it exhaustively at this time because Plaintiff does not challenge the finding
that the recommended treatments would improve his condition.
7
Plaintiff does not appear to challenge the ALJ’s conclusion that adherence to
these treatment recommendations would restore his ability to work, so the Court
will not separately address that issue.
8
17
them did not violate the regulations. In addition, Plaintiff claims that his failure to
follow these recommendations was a symptom of his mental illness, which should
excuse his failure to comply. As noted above, the ALJ found that Plaintiff had
refused behavioral changes, medication changes, day hospitalization, more-frequent
treatment, and attendance at group therapy.
A.
Whether
Dr.
Ritterhoff’s
recommendations
“prescribed treatment” under § 404.1530
constitute
The regulation at issue refers to compliance with a “prescribed treatment.” 20
C.F.R. § 404.1530(b). Because Dr. Ritterhoff did not formally write out a
prescription
for
the
treatments
in
question,
Plaintiff
claims
that
his
recommendation did not constitute a “prescribed treatment.” In support of this, he
cites to Cassiday v. Schweiker, in which the Seventh Circuit, interpreting an earlier
version of this regulation, stated that “the treatment must be ‘prescribed.’
Recommendations, suggestions, and abstract opinions are not enough.” 663 F.2d
745, 749 (7th Cir. 1981) (citing Schena v. Secretary of Health and Human Services,
635 F.2d 15, 19 (1st Cir. 1980)). The question, then, is whether Dr. Ritterhoff’s
recommendations constitute “prescribed treatment.”
It is true that the Cassiday court stated that “recommendations…are not
enough.” Id. However, as Defendant points out, Cassiday’s holding turned equally
on the fact that “[n]othing in the record tie[d] the [recommended] surgery
specifically to a restoration of [the claimant’s] ability to work.” Id. Moreover,
Cassiday did not define the term “prescribed,” and the term is not defined in the
applicable regulations. It surely cannot only refer to writing out an order on a
prescription pad. The Court therefore must attempt to define this key term.
18
The Court has reviewed numerous cases addressing this regulation, and
while they all agree that the treatment must be “prescribed,” none appear to
actually define the word or use it in a manner that permits a definition to be
implied; the parties have cited no such helpful cases, either.9 Where there is no
interpretive guidance in the regulations themselves or from other courts, the Court
must return anew to the actual words used in the regulations. The Oxford English
Dictionary lays out one meaning of the verb “prescribe” as “[t]o advise or order the
use of (a medicine, remedy, treatment, etc.), esp. by a written prescription.” OXFORD
ENGLISH
DICTIONARY,
“prescribe”
(Oxford
University
Press),
http://www.oed.com/view/Entry/150644?redirectedFrom=prescribe
available
(last
at
accessed
Jan. 7, 2013). Under this definition, a treatment that is merely “advised” would
suffice, as would one that is “ordered,” obviously including any sort of earnest
recommendation.10 Similarly, the relevant definition of the term “prescribed,” which
is the precise word used in the regulation, is that it is an adjective describing that
which is “[o]f a remedy or treatment: advised or recommended by a doctor; spec. (of
a medicine) available or authorized by a doctor's written prescription.” OXFORD
ENGLISH DICTIONARY ONLINE, “prescribed” (Oxford University Press) available at
Most cases instead focus on whether the treatment would improve the
claimant’s condition or whether the claimant was justified in refusing the
treatment. Some cases also address doctors’ recommendations to lose weight or stop
smoking, which courts have typically found to be outside the scope of § 400.1530, as
those two recommendations require massive, very difficult changes in behavior, and
are often beyond the abilities of claimants, even when they attempt to comply.
9
The Court notes that the term “order” is itself problematic, as it could imply
either “ordering” a treatment, in the sense of requesting a medication from a
pharmacy, or authoritatively commanding someone to undertake a treatment. As
doctors in most situations have no true power to command their patients to take
any action, this latter sense cannot control the analysis.
10
19
http://www.oed.com/view/Entry/150645?redirectedFrom=prescribed (last accessed
Jan. 7, 2013). Again, even that which is only “advised or recommended” counts as
being “prescribed,” unless the item in question is “a medicine,” i.e., a drug, in which
case it must be accompanied by a “written prescription.” The ordinary dictionary
definitions, then, show that a doctor’s advice or recommendation of a treatment can
be enough to make it a “prescribed treatment.”
In both Cassiday and the case it relied on, Schena v. Secretary of Health and
Human Services, the doctors in question had only once or twice suggested surgeries,
do not appear to have strongly urged them upon the claimants. Cassiday, 663 F.2d
at 749-50; Schena, 635 F.2d 15, 19 (1st Cir. 1980). Here, in contrast, Dr. Ritterhoff
tried on repeated occasions to convince Plaintiff to change his behavior, to undergo
more frequent treatment or day hospitalization, or to change his medications, and
opined several times that Plaintiff could not improve by medication alone. Instead
of noting that Plaintiff offered substantial reasons for his refusals, Dr. Ritterhoff
noted again and again that Plaintiff simply did not want to make the changes
necessary to improve his condition.
Plaintiff has attempted to characterize his failure to adhere to Dr. Ritterhoff’s
suggestions as mere objections to certain treatments, while claiming that he is
compliant with those treatments, which include only medications, “actually
prescribed.” While remaining cognizant of the need to avoid a complete relaxation of
the term “prescribed,” the Court notes that if Plaintiff flatly refuses to undergo a
recommended or suggested treatment, then it would be highly unlikely that Dr.
Ritterhoff would go ahead with further steps to formally “prescribe” such a
20
treatment, especially where the treatment is not a drug, assuming there were
further formal steps to take. In the case of group therapy, more-frequent treatment,
or day hospitalization, it would make no sense for the doctor to schedule these
things when the patient has clearly indicated that he is not interested in them; the
doctor has no power to force a patient to attend them, so it would be useless for him
to schedule something that will not occur. Likewise, simple behavioral changes such
as those continually advocated by Dr. Ritterhoff cannot be “prescribed” in any
formal way, yet according to Dr. Ritterhoff these would be among the most effective
“treatments” for Plaintiff. A claimant should not be able to defeat § 404.1530 simply
by refusing a treatment before the physician has been able to take formal steps to
implement it, or by refusing to undertake a treatment that cannot be formally
“prescribed.” In such a case, serious, repeated recommendations such as those made
by Dr. Ritterhoff constitute “prescribed treatments” within the terms and spirit of
the regulations.
Because the ordinary meaning of the term “prescribed treatment” would
seem to include Dr. Ritterhoff’s recommendations, and because Plaintiff points to no
caselaw or agency interpretations narrowing this meaning, the Court finds that Dr.
Ritterhoff’s recommendations constitute “prescribed treatment” and that the ALJ
thus did not err in relying on them to deny benefits.
B.
Whether Plaintiff’s refusal to comply with the recommended
treatments was justified
Plaintiff also argues that, even if Dr. Ritterhoff’s recommendations are
sufficient under § 404.1530, he is excused from compliance under the regulation
because his failure to comply is a symptom of his mental illness. None of the
21
examples given in § 404.1530(c) pertain to mental illness, and SSR 82-59’s “not allinclusive” list of possible excuses does not mention mental illness. However, some
courts have held that “a mentally ill person's noncompliance with psychiatric
medications can be, and usually is, the ‘result of [the] mental impairment [itself]
and, therefore, neither willful nor without a justifiable excuse.’” Pate-Fires v. Astrue,
564 F.3d 935, 945 (8th Cir. 2009) (quoting Mendez v. Chater, 943 F.Supp. 503, 508
(E.D. Pa. 1996)). In Pate-Fires, which Plaintiff cites, there was “no medical evidence,
i.e., a discussion by a doctor or other professional, which indicate[d] [the claimant’s]
noncompliance at any time was a result of something other than her mental
illness.” Id. at 946. Instead, her mental health records showed that the claimant
often did not believe that she needed any treatment at all. Id.
Here, though, Dr. Ritterhoff himself noted that Plaintiff, while recognizing
that he was not well and needed treatment, often resisted any discussion of new or
different treatments though Dr. Ritterhoff made efforts to ensure that Plaintiff
would be able to afford the treatments. Plaintiff himself argues that he was
compliant with the treatments “actually prescribed,” showing that he was capable of
and willing to comply with some of the treatments suggested to him. (Doc. 17-1 at
13-14). Therefore, contrary to Plaintiff’s suggestion, and unlike the mentally ill
claimant in Pate-Fires, it does not appear that Plaintiff was incapable of making
rational judgments about his condition or the necessity of treatment.
Dr. Ritterhoff in fact noted several times that Plaintiff’s primary goal seemed
to be to obtain Social Security benefits. In this case, therefore, there was substantial
evidence, from Plaintiff’s treating physician, that Plaintiff’s mental illness did not
22
itself cause his failure to comply with recommended treatments, and, indeed, that
his motivation for this refusal may have been to obtain benefits; it was therefore
reasonable for the ALJ to reject the notion that Plaintiff’s mental illness caused him
to refuse treatment.
Plaintiff claims that the ALJ’s suspicion of “malingering” is an example of
him trying to “have it both ways” by finding Plaintiff credible as to the effects of his
untreated mental illness while finding him non-credible as to his motivations for
refusing treatment. (Doc. 17-1 at 19-20). An ALJ is not required to accept or reject a
plaintiff’s credibility as a unit – common sense and experience says that a person
can be credible as to certain facts, and non-credible as to others, depending on their
circumstances and motivations. It was quite reasonable for the ALJ to find,
especially when backed by Dr. Ritterhoff’s observations, that Plaintiff was telling
the truth about his symptoms, but that he may have been motivated to avoid
treatment in order to obtain Social Security benefits.
Aside from his mental illness, Plaintiff offers no other reason for his refusal
to accept treatment. Plaintiff’s refusal to accept treatment thus justified the ALJ’s
decision to deny benefits under § 400.1530.
II.
Whether ALJ’s questions to the vocational expert were adequate
In determining that, with treatment, Plaintiff would not meet or equal the
requirements of a Listing, the ALJ found that he would have “moderate limitations
with concentration, persistence or pace.” (Tr. 54). The ALJ’s questions to the
vocational expert did not include any reference to “moderate limitations with
concentration, persistence, or pace,” and Plaintiff now argues that this justifies a
23
remand for further fact-finding. (Doc. 17 at 21-23). It is true that the ALJ did not
ask the vocational expert any questions related to limitations with concentration,
persistence, or pace. He also did not include such a limitation in Plaintiff’s withtreatment RFC. Neither of these exclusions constitutes error on the part of the ALJ.
In the sequential evaluation process outlined above and implemented by the
ALJ, an ALJ must determine the RFC, then determine whether there are sufficient
jobs that the claimant can perform with that RFC. As did the ALJ here, ALJs often
consult with vocational experts in performing gathering information pertinent to
the latter question. Because the determination that there are sufficient jobs is
dependent on the claimant’s RFC, the ALJ’s questions to the vocational expert
should reflect that RFC. Here, if the RFC properly excluded the claimed “moderate
limitations with concentration, persistence, or pace,” then there was no need to ask
the vocational expert about such limitations – the RFC, if properly determined,
encompasses all of the claimant’s work-related abilities and limitations, so a
hypothetical question with all of its limitations will allow a vocational expert to
accurately testify as to whether there are jobs the claimant can perform. Therefore,
though he does not identify it as such, Plaintiff’s true complaint is with the
exclusion of these claimed limitations from the with-treatment RFC, which resulted
in the exclusion of those limitations from the hypotheticals posed to the vocational
expert.11
O'Connor-Spinner v. Astrue, cited by Plaintiff, is thus obviously
distinguishable. 627 F.3d 614, 617-21 (7th Cir. 2010). There, the ALJ did include
the “limitation on concentration, persistence, and pace” in his RFC assessment, but
failed to include it in his questions to the vocational expert. Id. at 617-18. Therefore,
the vocational expert was not able to consider whether a person with the claimant’s
11
24
As explained by the ALJ, the “moderate limitations” found as part of the
ALJ’s evaluation of whether Plaintiff would meet or equal a Listing with treatment
are not determined under the same set of criteria required in formulating an RFC
or otherwise evaluating a claimant’s work abilities. (Tr. 54). Instead, the RFC
requires “a more detailed assessment by itemizing various functions.” (Tr. 54 (citing
SSR 96-8p)). These functions overlap with the “broad categories” of “paragraph B” of
the mental disorder Listings, but “must be expressed in terms of work-related
functions,” not in medical or mental-health terms. SSR 96-8p. Such work-related
functions “include the abilities to: understand, carry out, and remember
instructions; use judgment in making work-related decisions; respond appropriately
to supervision, co-workers and work situations; and deal with changes in a routine
work setting.” SSR 96-8p.
The ALJ noted that the RFC he arrived at “reflects the degree of limitation”
that was found in the “paragraph B” analysis. (Tr. 54). Reviewing the ALJ’s
discussion of Plaintiff’s abilities with regard to concentration, persistence, or pace,
the Court finds that the ALJ thoroughly explained his reasoning and supported it
with citations to substantial evidence. (Tr. 54-59). The ALJ noted under the
“paragraph B” analysis Plaintiff’s testimony that his “attention span depends on the
situation,” and that he is able to focus on television, even watching up to three
football games in one day and being able to “discuss them in detail.” (Tr. 54). In
actual limitations would be able to perform a sufficient number of jobs, and remand
was required. Id. at 620-21. Here, the ALJ did not include a “moderate limitation on
concentration, persistence, and pace” in the RFC, so the root question is whether
that exclusion was justified, not whether the ALJ should have asked the vocational
expert about such a limitation – there is no reason to ask about a claimed limitation
that does not affect one’s work abilities.
25
January 2008, Dr. Pogue noted that Plaintiff, who was then taking his medication,
appeared to have “intact” memory and concentration,” which finding was noted by
the ALJ. (Tr. 54, 455). This shows that Plaintiff’s claimed concentration problems
could be improved with treatment such that he could live up to the RFC found by
the ALJ, which included a limitation to “simple, repetitive tasks.”12 (Tr. 55).
Plaintiff cites no evidence or argument that, if he were to accede to appropriate
treatment, his “moderate limitations with concentration, persistence, or pace” would
affect any particular work-related functions not accounted for in the RFC found by
the ALJ. Finally, the ALJ’s RFC finding was supported by Dr. Boyenga’s evaluation
of Plaintiff’s work abilities, and is consistent with it; again, Plaintiff points to no
evidence that contradicts Dr. Boyenga’s conclusions, which must be treated as the
opinion of an expert. SSR 96-6p. The ALJ’s RFC finding, and his resulting questions
to the vocational expert, were thus supported by substantial evidence.
Again, O'Connor-Spinner is inapplicable, though it holds that a hypothetical
to the vocational expert regarding “simple, repetitive tasks” does not substitute for
an RFC including “moderate limitations with concentration, persistence, or pace” –
that case was about whether the vocational expert was given the proper information
to evaluate whether the limitations of a person’s RFC precluded work. 627 F.3d at
619. It did not concern the question presented here – whether an RFC limitation of
“simple, repetitive tasks” is sufficient if, under the “paragraph B” analysis, the ALJ
found “moderate limitations with concentration, persistence, or pace.”
12
26
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Summary Judgment (Doc.
17) is DENIED and Defendant’s Motion for Summary Affirmance (Doc. 21) is
GRANTED. CASE TERMINATED.
IT IS SO ORDERED.
Entered this 9th day of January, 2013.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
27
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