Buckner v. Social Security Administration, Commissioner of

Filing 21

MEMORANDUM AND ORDER- It is ordered that the Commissioners decision shall be REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith. Signed by District Judge John W. Lungstrum on 1/3/2014. (ses)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

VINCENT J. M. BUCKNER,

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Plaintiff,
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v.
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CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
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Defendant.
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________________________________________ )

CIVIL ACTION
No. 12-4074-JWL

MEMORANDUM AND ORDER

Plaintiff seeks review of a decision of the Commissioner of Social Security
(hereinafter Commissioner) denying Social Security Disability (SSD) benefits and
Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and
1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and
1382c(a)(3)(A) (hereinafter the Act). Finding error in the Commissioner’s application of
the legal standard for evaluating credibility, the court ORDERS that the decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42

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On February 14, 2013, Carolyn W. Colvin became Acting Commissioner of
Social Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil
Procedure, Ms. Colvin is substituted for Commissioner Michael J. Astrue as the
defendant. In accordance with the last sentence of 42 U.S.C. § 405(g), no further action
is necessary.

U.S.C. § 405(g) REMANDING the case for further proceedings consistent with this
opinion.
I.

Background
Plaintiff applied for SSD and SSI, alleging disability beginning October 14, 2009.

(R. 21, 149-60). In due course, Plaintiff exhausted proceedings before the Commissioner,
and now seeks judicial review of a final decision denying benefits. He alleges errors in
evaluating the medical opinions of record, in evaluating the severity of his mental
impairments at steps two and three of the Commissioner’s five-step sequential evaluation
process, and in evaluating the credibility of his allegations of symptoms resulting from his
impairments.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he
findings of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). The court must determine whether the factual findings
are supported by substantial evidence in the record and whether the correct legal standard
was applied. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v.
Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a
scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind
might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).

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The court may “neither reweigh the evidence nor substitute [its] judgment for that
of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting
Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord,
Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the
determination whether substantial evidence supports the Commissioner’s decision is not
simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by
other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v.
Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a
claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136,
1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)).
“If a determination can be made at any of the steps that a claimant is or is not disabled,
evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting
Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether
claimant has engaged in substantial gainful activity since the alleged onset, whether he
has a severe impairment(s), and whether the severity of his impairment(s) meets or equals
the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt.
P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner
assesses claimant’s residual functional capacity (RFC). 20 C.F.R. § 404.1520(e). This
assessment is used at both step four and step five of the sequential evaluation process. Id.

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The Commissioner next evaluates steps four and five of the sequential process-determining at step four whether, in light of the RFC assessed, claimant can perform his
past relevant work; and at step five whether, when also considering the vocational factors
of age, education, and work experience, claimant is able to perform other work in the
economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one
through four the burden is on Plaintiff to prove a disability that prevents performance of
past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord,
Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2.
At step five, the burden shifts to the Commissioner to show that there are jobs in the
economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084,
1088 (10th Cir. 1999).
The court finds that remand is necessary because the administrative law judge
(ALJ) erroneously applied the legal standard for evaluating the credibility of Plaintiff’s
allegations of symptoms. Plaintiff may make further arguments regarding the medical
opinions and the severity of his mental impairments in the proceedings on remand.
II.

Credibility
Plaintiff’s credibility argument asserts that one factor relied upon by the ALJ to

discount Plaintiff’s credibility actually “makes Plaintiff’s claim of disability more
believable” (Pl. Br. 38), and that “[a] claimant can still be credible, even if [he] engages
in some daily activities.” (Pl. Br. 39). These assertions seek merely to have the court
reweigh the evidence and substitute its judgment regarding credibility for that of the ALJ,
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a proposition for which the court is without authority. Bowman, 511 F.3d at 1272;
accord, Hackett, 395 F.3d at 1172. Nevertheless, Plaintiff also argues that the ALJ did
not “properly consider the third party statements of Plaintiff’s mother” (Pl. Br. 39), and
erred by relying upon Plaintiff’s failure to consistently take his medication without first
considering the four factors of the Frey test. (Pl. Br. 40-41) (citing Frey v. Bowen, 816
F.2d 508, 517 (10th Cir. 1987)). In response, the Commissioner argues that “[a]lthough
the ALJ did not discuss [Plaintiff’s mother’s] report, the ALJ implicitly discounted it for
the same reasons that the ALJ found Plaintiff’s subjective complaints not entirely
credible.” (Comm’r Br. 16) (citing Brescia v. Astrue, 287 Fed. App’x 626 (10th Cir.
2008)). The Commissioner also argues that the four-factor Frey test is “only applicable
when an ALJ denies benefits solely on the ground that a claimant has failed to follow
prescribed treatment,” and is not applicable in a case such as this, where an ALJ discusses
non-compliance with recommended treatment only when considering credibility.
(Comm’r Br. 15) (citing Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). The
court finds that remand is necessary because of error both in failing to consider the thirdparty report of Plaintiff’s mother, and in failing to apply the four-factor Frey test in the
circumstances of this case.
A.

Application of the Frey Test

Where a claimant has failed or refused to pursue treatment or to take medication,
the Tenth Circuit provides a four factor test to determine whether that failure or refusal is
justified. That test considers: “(1) whether the treatment at issue would restore
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claimant’s ability to work; (2) whether the treatment was prescribed; (3) whether the
treatment was refused; and, if so, (4) whether the refusal was without justifiable excuse.”
Frey, 816 F.2d at 517. It is this test which Plaintiff argues the Commissioner erroneously
failed to apply. The Commissioner, citing Qualls, argues that the Frey test applies only
where the Commissioner is attempting to deny benefits “solely on the grounds that a
claimant failed to follow prescribed treatment,” and does not apply in a case such as this
where the Commissioner is relying on a failure to follow prescribed treatment only to
determine whether the claimant’s allegations of disabling symptoms are credible.
(Comm’r Br. 15). As Plaintiff points out in his reply brief, the Commissioner’s argument
is foreclosed by Tenth Circuit law. Judge Crow of this court explained in 2002 that the
Frey test is applicable both where an ALJ is denying benefits, and where an ALJ is
evaluating the credibility of the claimant’s allegations. Goodwin v. Barnhart, 195 F.
Supp. 2d 1293, 1295 (D. Kan. 2002) (citing Thompson v. Sullivan, 987 F.2d 1482, 1490
(10th Cir. 1993); Ragland v. Shalala, 992 F.2d 1056, 1059-60 (10th Cir. 1993)).
The case cited by the Commissioner does not require a different conclusion. The
facts in Qualls reveal that Mr. Qualls “took pills his friends gave him,” although he did
not know what he was taking, and did not indicate the frequency with which this
occurred, and he argued that the Frey test should have been applied in his circumstances.
Qualls, 206 F.3d at 1372. The Qualls court found the Frey test inapposite “because Frey
concerned the circumstances under which an ALJ may deny benefits because a claimant
has refused to follow prescribed treatment.” Id. The court explained its finding:
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The ALJ here 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 the veracity of plaintiff’s
contention that his pain was so severe as to be disabling.
Id. While the Qualls court found the Frey test was not required in that case because the
claimant had not refused or failed to follow recommended treatment, the court did not
state, as the Commissioner suggests, that the Frey test is never applicable where an ALJ
discusses non-compliance with recommended treatment in the context of a credibility
determination. Rather, in Qualls, the court found that non-compliance with prescribed or
recommended treatment was not at issue, and therefore the Frey test was not required.
206 F.3d at 1372. The court also found no error in the ALJ’s determination to discount
the plaintiff’s credibility because he failed to take medication for severe pain. Id. The
court found that despite plaintiff’s testimony that “he took pills his friends gave him,” the
ALJ was correct to find that Mr. Qualls made no attempts to relieve his pain by seeking
medical treatment or by taking pain medication. Id.
The significance of Qualls is that it is appropriate not to apply the Frey test in a
situation where there has been no recommended or prescribed treatment. And, the agency
in such a case may rely upon a claimant’s failure to seek treatment or medication for
relief of his allegedly disabling symptoms as a factor showing that his allegations are not
credible. However, in a case where there has been recommended or prescribed treatment,
before an ALJ may rely on a claimant’s refusal or failure to comply with that treatment,
the Frey test must be applied.
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As Judge Crow explained,
The court has no trouble reading Qualls so as to be consistent with
Thompson. The claimant in Qualls argued “that the ALJ erred in relying on
plaintiff’s failure to take medication for severe pain” because there was
evidence that he took pain pills from friends and because the ALJ did not
have the evidence necessary to consider the Frey factors. 206 F.3d at 1372.
As the Tenth Circuit observed, the credibility issue in Qualls was not
whether the claimant had refused to follow prescribed treatment but
whether he had attempted to relieve his pain, “including whether he took
pain medication.” Id. Thus, the panel in Qualls did not consider the rule
from Thompson [(the Frey test)], as the ALJ had not denied benefits
because the claimant had refused “to follow prescribed treatment.” Id.
Goodwin v. Barnhart, 195 F. Supp. 2d 1293, 1296 (D. Kan. 2002).
As the Commissioner acknowledges, “Plaintiff’s noncompliance with treatment
influenced the ALJ’s credibility finding.” (Comm’r Br. 15). In fact, the ALJ found that
“the claimant consistently demonstrated decreased symptoms and overall improvements
when he was compliant with his prescribed treatment regimen.” (R. 31). It is clear the
ALJ relied upon Plaintiff’s failure or refusal to follow prescribed or recommended
treatment in finding that his allegations of disabling symptoms are not credible. The law
requires that before an ALJ may do so, he must apply the four-factor Frey test. Here he
did not do so, and remand is necessary for the Commissioner to apply the Frey test if he is
to rely upon Plaintiff failure or refusal to follow prescribed or recommended treatment.
B.

Consideration of Ms. Buckner’s Report

The Tenth Circuit has had the opportunity to consider the Commissioner’s duty to
consider third-party opinion evidence. Blea, 466 F.3d at 914-15; Adams v. Chater, 93
F.3d 712, 715 (10th Cir. 1996). In Adams, the court “decline[d] claimant’s invitation to
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adopt a rule requiring an ALJ to make specific written findings of each witness’s
credibility, particularly where the written decision reflects that the ALJ considered the
testimony.” 93 F.3d at 715. The Adams court found “that the ALJ considered the
testimony of claimant’s wife in making his decision because the ALJ specifically referred
to it in his written opinion,” and the court found no error in the ALJ’s failure to make
specific, written findings regarding that testimony. Id. Thirteen years later, the Tenth
Circuit confirmed the rule that an ALJ is not required to make specific written findings
regarding third-party testimony so long as the written decision reflects that the ALJ
considered that testimony. Blea, 466 F.3d at 915.
In Blea, the plaintiff argued that remand was necessary because the ALJ failed to
discuss or consider the lay testimony of the plaintiff’s wife. Blea, 466 F.3d at 914. The
Commissioner’s decision in Blea did not mention any particulars of Mrs. Blea’s
testimony, and never even mentioned that she had testified regarding the nature and
severity of her husband’s impairments. Id. at 914. The Commissioner asserted that there
was no reversible error because the ALJ is not required to make written findings about
each witness’s credibility. Id. The court noted that the Commissioner had stated only
part of the rule in this circuit and corrected the Commissioner, “[i]n actuality, the ALJ is
not required to make specific written findings of credibility only if ‘the written decision
reflects that the ALJ considered the testimony.’” Id. at 915 (quoting Adams, 93 F.3d at
715). The Blea court noted that the ALJ had not mentioned Mrs. Blea’s testimony or
referred to the substance of her testimony anywhere in the written decision, and
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concluded that “it is not at all clear that the ALJ considered Mrs. Blea’s testimony in
making his decision.” Id. (internal quotation marks, brackets, and citation omitted).
Therefore, the case was remanded for the Commissioner to consider Mrs. Blea’s
testimony properly. Id.
This case more closely reflects the facts presented in Blea than in Adams. As in
Blea, the decision in this case did not mention any particulars of Plaintiff’s mother’s
report, and does not even recognize that Plaintiff’s mother provided a function report.
There is simply no particular indication in the decision that the ALJ considered, or was
even aware of, Ms. Buckner’s report. This is error. The Commissioner acknowledges
that the ALJ did not mention this report, but argues that it was “implicitly discounted” for
the same reasons that Plaintiff’s allegations were found not credible. (Comm’r Br. 16)
(citing Brescia v. Astrue, 287 Fed. App’x 626 (10th Cir. 2008)). The Commissioner’s
argument has a certain appeal, and if this were the only error in the ALJ’s credibility
determination, the court would likely find that Ms. Buckner’s report was largely
cumulative of Plaintiff’s allegations and that any error in failing to specifically discuss it
was harmless. However, the ALJ also failed to apply the Frey test in this case.
Because a credibility assessment requires consideration of all the factors “in
combination,” [] when several of the factors relied upon by the ALJ are
found to be unsupported or contradicted by the record, [a court is]
precluded from weighing the remaining factors to determine whether they,
in themselves, are sufficient to support the credibility determination.
Bakalarski v. Apfel, No. 97-1107, 1997 WL 748653, *3 (10th Cir. Dec. 3, 1997)
(emphasis in original)(quoting Huston, 838 F.2d at 1132 n.7 (citation omitted)). Since the
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Commissioner erred both in failing to apply the Frey test to Plaintiff’s noncompliance
with treatment and in considering Ms. Buckner’s report, remand is necessary for the
Commissioner to evaluate the credibility of Plaintiff’s allegations after a proper
consideration of all of the relevant factors in combination.
IT IS THEREFORE ORDERED that the Commissioner’s decision shall be
REVERSED and that judgment shall be entered pursuant to the fourth sentence of 42
U.S.C. § 405(g) REMANDING the case for further proceedings consistent herewith.
Dated this 3rd day of January 2014, at Kansas City, Kansas.

s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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