Clark v. Astrue

Filing 26

MEMORANDUM AND ORDER Defendants Motion for Summary Judgment [Doc. # 21] is DENIED. It is furtherORDERED that Plaintiffs Motion for Summary Judgment [Doc. # 20] is GRANTED. This case is REMANDED to the Commissioner for further proceedings in accordance with this opinion.(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PRESTON CLARK,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CIVIL ACTION NO. 4:12-0350

MEMORANDUM AND ORDER
In this case seeking judicial review of denial of Supplemental Security Income
benefits, Plaintiff Preston Clark has filed a Motion for Summary Judgment [Doc. # 20]
(“Plaintiff’s Motion”).

Defendant Michael J. Astrue, Commissioner of Social

Security, also has filed a Motion for Summary Judgment [Doc. # 21] (“Defendant’s
Motion”) and a Memorandum in Support [Doc. # 22] (“Defendant’s Memorandum”),
to which Plaintiff has responded. See Docs. # 23, # 24. The motions now are ripe for
decision. Having considered the parties’ briefing, the applicable legal authorities, and
all matters of record, the Court concludes that Defendant’s Motion should be denied,
that Plaintiff’s Motion should be granted, and that this case should be remanded to
the Commissioner for further proceedings.

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I.

BACKGROUND
A.

Procedural Background

Clark filed an application for Supplemental Security Income (“SSI”) benefits
with the Social Security Administration (“SSA”) on November 30, 2008, alleging
disability beginning June 2, 2008.

The claim was denied initially and on

reconsideration. On May 1, 2009, Clark filed a new application for SSI benefits,
which was combined with the previous application.

Clark then requested an

administrative hearing before an Administrative Law Judge (“ALJ”) to review the
denial of benefits.
On May 19, 2010, ALJ Tom C. Strafuss held a hearing in Houston, Texas, but
continued the hearing for addition of a psychological expert.1 On August 3, 2010,
ALJ Strafuss held a second hearing.2 Clark was represented by current counsel and
testified at the hearing. Daniel Hamill, Ph.D., a medical expert, and Cheryl Swisher,
a vocational expert, both appeared and testified. In a decision dated August 31, 2010,
the ALJ denied Clark’s application for benefits.3 On December 12, 2011, the Appeals
Council denied Clark’s request for re view, rendering the ALJ’s decision final.4

1

R. 60-79.

2

R. 36-59.

3

R. 10-28.

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Clark filed this case on February 1, 2012, seeking judicial review of the
Commissioner’s denial of his claim for benefits.
B.

Factual Background

Clark alleges disability beginning June 2, 2008, when he was 19 years old. The
record in this case extends back to 2001 and show multiple childhood diagnoses
including bipolar disorder, Attention Deficit Hyperactivity Disorder (“ADHD”),
Oppositional Defiant Disorder (“ODD”), and depression.

The records further

demonstrate persistent, repeated behavioral problems at school and home. His mother
called police on several occasions due to his angry and violent behavior. Due to
behavior problems at school, including threats of violence against a teacher, he was
sent to Crockett State School, a juvenile detention facility. From there, because of an
altercation with a guard, he was transferred to an adult detention facility. He was
released by the Texas Department of Criminal Justice in June 2008.5
On February 10, 2009, shortly after Clark applied for benefits, he was
scheduled for a psychiatric assessment with Kenneth Arfa, M.D. Clark did not keep
the appointment.6 Subsequent records show multiple, unsuccessful attempts to contact

4

R. 1-5.

5

R. 43.

6

R. 339.

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him.7
On August 28, 2009, Clark appeared for a consultative examination with Ross
E. Keiser, Ph.D.8 Clark stated that he had been living in his mother’s house and
previously was in shelter for three months, but was evicted for “acting crazy.” He
further stated that he could not hold a job, and previously had worked in fast food for
three months until he “got into it with the management.”9 He reported that he had
been diagnosed with bipolar disorder at age 13 and had four or five mood swings
daily, which interfered with his ability to work. He had been treated on an inpatient
basis multiple times in the past, but currently was not receiving any treatment. He was
not currently taking any medications but stated he “does better on medication.”10 Dr.
Keiser’s summary states, “The claimant does not give symptoms of bipolar disorder”
and “[n]either does he appear to have a psychotic, anxiety, or mood disorder.”11
However, his DSM-IV Diagnostic Impression lists under Axis II “Mixed Personality
Disorder with histrionic, narcissistic, and antisocial features,” and gives his prognosis

7

R. 352.

8

R. 354-60.

9

R. 356.

10

R. 356.

11

R. 359.

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as “poor” due to untreated antisocial personality disorder.12
A Psychiatric Review Technique completed on September 11, 2009, reviewed
the consultative examination and noted a personality disorder and allegations of
bipolar disorder. The narrative states that despite the current lack of medications and
behavioral treatment, Clark “appear[ed] to be able, if he put[] forth an average effort,
to procure and maintain employment.”13
On October 13, 2009, Clark was treated at the Settegast Clinic. He was referred
to psychiatry for a consult because he was off medications and treatment for his
bipolar disorder. He reported mood swings, anger outbursts, crying and depression.14
On January 26, 2010, Clark did not show for his appointment with a clinic
psychiatrist.15 He was instructed to reschedule the appointment.16
On April 23, 2010, Clark presented to the MHMR Crisis Unit for treatment of
bipolar disorder.17 He reported that he had been off of his medications for four years
before seeking help from “MCOT,” and now was feeling better after having been back

12

R. 359.

13

R. 373.

14

R. 494-95.

15

R. 505.

16

R. 503.

17

R. 627-59.

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on his medications for four weeks.18 He stated he had a history that included mood
swings, agitation, spending sprees, and racing thoughts, and that before seeking help
recently he “was having a lot of anger problems ‘punching holes in the walls’, mood
swings, easily irritated, racing thoughts, poor concentration, and decreased sleep and
appetite.”19 Since beginning medication, he denied these symptoms, although he had
poor appetite as a side effect of the medication. He stated that he understood the need
to stay on his medications, and that he planned to return to his previous psychiatrist
if his Medicaid was reinstated.20 He was continued on his medications and told to
return to the clinic in five weeks.21
Several weeks later, on May 19, 2010, Clark had an administrative hearing
before ALJ Strafuss.22

After hearing Clark’s testimony about his medical and

criminal history, the ALJ asked if Clark currently was on medications, and Clark
answered that he was.23 Clark testified that the medications were helping with

18

R. 633.

19

R. 633.

20

R. 633.

21

R. 638.

22

R. 60-79.

23

R. 76.

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controlling his mood and outbursts, but made him tired and sleepy.24 The ALJ then
stated that he was going to bring in a psychological expert, and would reschedule the
hearing.25
Nine days later, on May 28, 2010, Clark missed his appointment at the MHMR
Crisis Unit.26 He did not respond to the clinic’s “no-show” letter mailed on June 1,
2010, and his file with the MHMR Crisis Unit was closed on June 15, 2010. 27
On August 3, 2010, Clark had his second hearing with ALJ Strafuss. He
testified that he was taking medications as prescribed.28 The medical expert, Dr.
Hamill, testified that Clark had responded to medications for bipolar disorder,
although he was “not out of the woods yet.”29

24

R. 77.

25

R. 78.

26

R. 629.

27

R. 628-29.

28

R. 41.

29

R. 46.

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On August 31, 2010, the ALJ denied Clark’s application for benefits, finding
that he was not under a disability since the date of his application.
II.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing of the existence of an element essential to the
party’s case, and on which that party will bear the burden at trial.30 “The court shall
grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”31 “An
issue is material if its resolution could affect the outcome of the action. A dispute as
to a material fact is genuine if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.”32
III.

STANDARD OF REVIEW
Judicial review of the Commissioner’s denial of disability benefits is limited to

30

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers
Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002).

31

FED. R. CIV. P. 56(a). See Celotex Corp., 477 U.S. at 322–23; Weaver v. CCA Indus.,
Inc., 529 F.3d 335, 339 (5th Cir. 2008).

32

DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations and
quotation marks omitted).

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two inquiries: first, whether the final decision is supported by substantial evidence on
the record as a whole and, second, whether the Commissioner applied the proper legal
standards to evaluate the evidence.33 “Substantial evidence” is relevant evidence that
a reasonable mind might accept as adequate to support a conclusion.34 It is more than
a mere scintilla and less than a preponderance.35
When applying the substantial evidence standard on review, the court
scrutinizes the record to determine whether such evidence is present.36 In determining
whether substantial evidence of disability exists, the court weighs four factors: (1)
objective medical evidence; (2) diagnoses and opinions; (3) the claimant’s subjective
evidence of pain and disability; and (4) the claimant’s age, education, and work
history.37 If the Commissioner’s findings are supported by substantial evidence, they
are conclusive and must be affirmed.38 Alternatively, a finding of no substantial

33

See Audler v. Astrue, 501 F.3d 446, 447 (5th Cir. 2007); Perez v. Barnhart, 415 F.3d
457, 461 (5th Cir. 2005); Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002).

34

Audler, 501 F.3d at 447 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

35

Id.; Perez, 415 F.3d at 461; Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).

36

Perez, 415 F.3d at 461; Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001); Greenspan
v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).

37

Perez, 415 F.3d at 462 (citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991)).

38

Id. at 461 (citing Richardson, 402 U.S. at 390); Watson v. Barnhart, 288 F.3d 212,
215 (5th Cir. 2002).

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evidence is appropriate if no credible evidentiary choices or medical findings support
the decision.39 The court may not, however, reweigh the evidence, try the issues de
novo, or substitute its judgment for that of the Commissioner.40 In short, conflicts in
the evidence are for the Commissioner, not the courts, to resolve.41
IV.

ANALYSIS
A.

Statutory Basis for Benefits

Clark applied for Supplemental Security Income (SSI) benefits. SSI benefits
are authorized by Title XVI of the Social Security Act, and provide an additional
resource to the aged, blind and disabled to assure that their income does not fall below
the poverty line.42 Eligibility for SSI is based on proof of disability43 and indigence.44
A claimant applying to the SSI program cannot receive payment for any period of
disability predating the month in which he applies for benefits, no matter how long he

39

Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).

40

Audler, 501 F.3d at 447; Masterson, 309 F.3d at 272.

41

Perez, 415 F.3d at 461; Masterson, 309 F.3d at 272.

42

20 C.F.R. § 416.110.

43

42 U.S.C. § 1382c(a)(3) (definition of disability).

44

42 U.S.C. §§ 1382(a) (financial requirements).

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has actually been disabled.45 Thus, the month following an application fixes the
earliest date from which SSI benefits can be paid. Eligibility for SSI, unlike eligibility
for Social Security disability benefits, is not dependent on insured status.
“Disability” is defined by the Act as the inability to “engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve months.”46 The law
and regulations governing the determination of disability for SSI are the same as those
governing determinations for Social Security disability benefits.47
B.

Determination of Disability

When determining whether a claimant is disabled, an ALJ must engage in a
five-step sequential inquiry, as follows: (1) whether the claimant is currently engaged
in substantial gainful activity; (2) whether the claimant has a severe impairment; (3)
whether the claimant’s impairment meets or equals a listed impairment in Appendix
1 of the regulations; (4) whether the claimant is capable of performing past relevant

45

Brown v. Apfel, 192 F.3d 492, 495 n.1 (5th Cir. 1999); 20 C.F.R. § 416.335.

46

42 U.S.C. § 1382c(3)(A).

47

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).

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work; and (5) whether the claimant is capable of performing any other work.48 The
claimant has the burden to prove disability under the first four steps.49 If the claimant
successfully carries this burden, the burden shifts to the Commissioner at Step Five
to show that the claimant is capable of performing other substantial gainful
employment that is available in the national economy.50 Once the Commissioner
makes this showing, the burden shifts back to the claimant to rebut the finding.51 A
finding that a claimant is disabled or is not disabled at any point in the five-step
review is conclusive and terminates the analysis.52
In this case, the ALJ determined at Step One that Clark had not engaged in
substantial gainful activity since November 30, 2008, his application date. At Step
Two, he found that Clark had four severe impairments: obesity; bipolar disorder,
mixed; personality disorder, not otherwise specified; and volitional poly-substance
abuse, in early full remission. He rejected Clark’s claim that a heart murmur and

48

Perez, 415 F.3d at 461; Newton, 209 F.3d at 453. The Commissioner’s analysis at
Steps Four and Five is based on the assessment of the claimant’s residual functional
capacity (“RFC”), or the work a claimant still can do despite his or her physical and
mental limitations. Perez, 415 F.3d at 461-62. The Commissioner assesses the RFC
before proceeding from Step Three to Step Four. Id.

49

Perez, 415 F.3d at 461; Myers, 238 F.3d at 619.

50

Perez, 415 F.3d at 461; Masterson, 309 F.3d at 272; Greenspan, 38 F.3d at 236.

51

Perez, 415 F.3d at 461; Newton, 209 F.3d at 453.

52

Perez, 415 F.3d at 461 (citing 20 C.F.R. § 404.1520(a)).

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elevated blood pressure were additional severe impairments. At Step Three, he found
that Clark’s impairments, considered singly or in combination, did not meet or
medically equal an impairment listed in the Social Security regulations.
Before proceeding to Step Four, the ALJ found that Clark had the residual
functional capacity (“RFC”) to perform “a full range of work at all exertional levels.”
However, he found the following nonexertional limitations:
[Clark] can do only simple, repetitive, 1 to 3 step tasks; he may not work
at a forced or assembly line pace; he should have only occasional
interaction with co-workers and only incidental interaction with the
general public. [Clark] is able to deal with standardized situations with
occasional variables; he is able to attend and concentrate for extended
periods and respond appropriately to changes in routine work settings;
and he is able to stay on task and maintain a 40-hour work week.53
At Step Four, the ALJ determined that Clark had no past relevant work. At Step Five,
he determined that, considering Clark’s age, education, work experience, and RFC,
he was capable of performing jobs that exist in significant numbers in the national
economy, including housekeeper, yard worker, and office cleaner. He therefore
concluded that Clark was not disabled.
C.

Plaintiff’s Argument for Reversal

Clark argues that the ALJ erred when he failed to consider whether Clark had
a good reason for his noncompliance with prescribed treatments, in violation of Social

53

R. 17-18 (footnote omitted).

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Security Ruling 82-59 and federal regulations.54 Social Security Ruling 82-59 is a
policy statement regarding a claimant’s failure to follow prescribed treatment. The
statement provides:
An individual who would otherwise be found to be under a disability, but
who fails without justifiable cause to follow treatment prescribed by a
treating source which the [SSA] determines can be expected to restore
the individual’s ability to work, cannot by virtue of such ‘failure’ be
found to be under a disability.55
SSA 82-59 further provides that the SSA “must” make “appropriate development” of
the record to resolve whether a claimant who fails to comply with treatments is
“justifiably” failing to do so.56 If the failure is justifiable, such failure cannot preclude
a finding of disability.57 Moreover, before finding that the failure was not justifiable,
the SSA must inform the claimant of the potential finding and must provide the

54

See 20 C.F.R. § 416.930(b) (“If you do not follow the prescribed treatment without
a good reason, we will not find you disabled”).

55

SSR 82-59, 1982 WL 31384, at *1 (1982) (emphasis added). Accord Johnson v.
Bowen, 864 F.2d 340, 348 (5th Cir. 1988) (“If an impairment reasonably can be
remedied or controlled by medication or therapy, it cannot serve as a basis for a
finding of disability”).

56

SSR 82-59, at *2.

57

Id. at *3. See Lindsey v. Astrue, 2011 WL 817173, * 9 n. 4 (N.D. Tex. March 9,
2011) (Stickney, M.J.) (“Before making a finding of noncompliance, the ALJ must
provide the claimant with (i) notice of the effect of noncompliance on his application
for benefits, (ii) occasion to explain any seeming noncompliance, and (iii) opportunity
to undergo the prescribed treatment. If the ALJ fails to provide the claimant with an
opportunity to address the issue, he loses the ability to assert it as a reason for denying
disability benefits”) (citing SSR 82-59).

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claimant with the opportunity to show that the failure was justifiable.58
In this case, the ALJ’s assessment of Clark’s RFC—and therefore, his
conclusion that Clark was not disabled—clearly was dependent upon Clark’s
compliance with medical treatment. He assessed Clark’s RFC as “a full range of work
at all exertional levels,” with the following nonexertional limitations:
[Clark] can do only simple, repetitive, 1 to 3 step tasks; he may not work
at a forced or assembly line pace; he should have only occasional
interaction with co-workers and only incidental interaction with the
general public. [Clark] is able to deal with standardized situations with
occasional variables; he is able to attend and concentrate for extended
periods and respond appropriately to changes in routine work settings;
and he is able to stay on task and maintain a 40-hour work week.59
Elsewhere in the opinion, the ALJ identified these identical capacities as dependent
on compliance: “with medication compliance the claimant would be able to deal with
standardized situations with occasional variables; attend and concentrate for extended
periods; respond appropriately to changes in routine work settings; and [] stay on task

58

SSR 82-59, at *5 (“Based on the evidence in file, SSA may decide that it appears that
the claimant or beneficiary does not have a good reason for failing to follow treatment
as prescribed by a treating source and that the treatment is expected to restore ability
to engage in any SGA (or gainful activity, as appropriate). However, before a
determination is made, the individual, or in the case of incapable individuals the
person acting on their behalf, will be informed of this fact and of its effect on
eligibility for benefits. The individual will be afforded an opportunity to undergo the
prescribed treatment or to show justifiable cause for failing to do so. It is very
important that the individual fully understand the effects of failure to follow
prescribed treatment. . . . “) (emphasis added).

59

R. 17-18 (footnote omitted).

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and maintain a 40-hour work week.”60
Several federal appellate courts have recognized that a mental impairment can
be the cause of noncompliance with treatment. In Pate-Fire v. Astrue, the Eighth
Circuit held, “Although none of the listed circumstances [in SSR 82-59] pertain to
mental illness, federal courts have recognized 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.”61
Similarly, in Kangail v. Barnhart, Judge Posner, writing for the Seventh Circuit,
vacated an ALJ’s denial of benefits to a woman who suffered from bipolar disorder,
which denial was based on the assumption that “she could work when she took her
medicine.”62 The Court vacated the ALJ’s decision because, among other reasons, the
ALJ had failed to consider the possibility that “mental illness in general and bipolar
disorder in particular . . . may prevent the sufferer from taking her prescribed
medicines or otherwise submitting to treatment.”63
In this case, although the ALJ noted repeatedly that Clark had frequently been
60

R. 22 (emphasis added).

61

Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009) (alterations and internal
quotation marks omitted) (citing, inter alia, Mendez v. Chater, 943 F. Supp. 503, 508
(E.D. Pa. 1996), Brasheras v. Apfel, 73 F. Supp. 2d 648, 650-52 (W.D. La. 1999)).

62

Kangail v. Barnhart, 454 F.3d 627, 630 (7th Cir. 2006).

63

Id.

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noncompliant with treatment in the past and had failed to attend medical
appointments, he attributed this failure solely to Clark’s volition. The ALJ stated:
When [Clark] takes his medications as prescribed, he experiences fewer
problems with rules. However, the prescribed medications make him
feel sluggish, tired, and out of control.64
He further stated:
[Clark] apparently does well when taking his psychotropic medications
as prescribed, but he has voluntarily chosen not to consistently follow
through with treatment. Failure to follow treatment without a good
reason is relevant to the disability evaluation process. See 20 C.F.R.
§ 416.930. Such failure indicates a lack of motivation to help himself or
to legitimately enter the workforce.65
Later in the opinion, when summing up the medical and psychological evidence, the
ALJ stated:
The claimant apparently does well when on medication, but he has
chosen not to follow through consistently with treatment, which indicates
a lack of motivation to help himself or to enter the workforce.66
He then held that, based on Clark’s RFC, he was not disabled.
The ALJ did not evaluate the impact of Clark’s mental impairments on his
compliance with prescribed treatment. He did not analyze the question of whether
Clark’s past noncompliance, which was within Clark’s eligibility period, was justified.

64

R. 18.

65

R. 19.

66

R. 22.

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Rather, he found (without citation to the record) that Clark’s past noncompliance was
volitional. Moreover, this finding was made without proper inquiry or adherence to
the procedural safeguards of SSR 82-59.67 Although Clark’s attorney did not raise the
issue at hearing, or question Clark or any witnesses about Clark’s reasons for
noncompliance, SSR 82-59 places the duty of inquiry on the SSA if noncompliance
is to be a basis for denial.68 Because SSR 82-59 was not followed, this case must be
remanded to the Commissioner for further proceedings.
Additionally, because the ALJ assumed compliance with medication when
making his determination, he did not squarely decide whether Clark is disabled when
not taking his medication. The procedures mandated by SSR 82-59 apply only to
claimants who would otherwise be disabled within the meaning of the Act.69 This

67

Cf. Pates-Fire, 564 F.3d at 946-67 (“the ALJ's determination [that] Pate–Fires's
medical noncompliance is attributable solely to free will is tantamount to the ALJ
‘playing doctor,’ a practice forbidden by law”).

68

SSR 82-59 (“SSA may decide that it appears that the claimant or beneficiary does not
have a good reason for failing to follow treatment as prescribed . . . However, before
a determination is made, the individual . . . will be informed of this fact and of its
effect on eligibility for benefits. The individual will be afforded an opportunity . . .
to show justifiable cause for failing to do so.”). See Robinson v. Barnhart, 366 F.3d
1078, 1083-84 (10th Cir. 2004) (case remanded because ALJ failed to give claimant
or her physician the opportunity to explain the specific reasons for her failure to take
medications, so as to determine whether justifiable cause existed for her failure to do
so) (citing 20 C.F.R. §§ 404.1530, 416.930, SSR 82-59).

69

SSR 82-59, at *1 (“Individuals with a disabling impairment which is amenable to
treatment that could be expected to restore their ability to work must follow the
(continued...)

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issue also should be addressed on remand.
Finally, the fact that the ALJ’s determinations regarding noncompliance were
couched in terms of the RFC determination does not mean that the requirements of
SSR 82-59 are inapplicable.70 It is true, as Defendant argues, that SSR 82-59 need not
be followed when the ALJ considers the claimant’s non-compliance only in
connection with the claimant’s credibility and with the severity of the claimant’s
subjective symptoms.71 However, in Clark’s case, the ALJ did not consider his
noncompliance merely in assessing the credibility of his subjective complaints.
Rather, the ALJ made findings that Clark’s past noncompliance was based on free

69

(...continued)
prescribed treatment to be found under a disability, unless there is a justifiable cause
for the failure to follow such treatment.”) (emphasis original). See Mack v.
Commissioner of Social Security, 420 F. App’x 881, 882-83 (11th Cir. 2011); Holley,
253 F.3d at 1092.

70

See Fall v. Astrue, 2012 WL 6026438, *10 (S.D. Tex. Dec. 4, 2012) (Stacy, M.J.)
(“Where it can be ascertained from the ALJ’s decision that it is the claimant’s noncompliance that forms the basis of . . . either the ALJ’s RFC determination or the
ultimate disability determination, whether the ALJ states so or not, SSR 82-59 must
be followed.”); Lindsey, 2011 WL 817173, at *8 (an “ALJ cannot circumvent the
requirements of SSR 82-59 . . . by couching her analysis of substance abuse and
noncompliance in terms of an RFC determination.”).

71

Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001) (SSR 82-59 does not apply
because the “ALJ used the evidence of [claimant’s] noncompliance solely to weigh
the credibility of [claimant’s] subjective claims of pain”); Fall, 2012 WL 6026438,
at *10. See Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990) (ALJ properly
considered claimant’s failure to take medication for pain as grounds for finding his
complaints lacked credibility; there was no record evidence, other than claimant’s
testimony, that he would be disabled with or without medical treatment).

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choice, and crafted an RFC that was dependent upon compliance with treatment.
The ALJ did not adhere to SSR 82-59, which required him to consider whether
Clark had justifiable cause for his past failure to undergo prescribed treatment.
Therefore, he did not apply the proper legal standards to evaluate the evidence in this
case, and the case will be remanded.72 On remand, the ALJ should develop the record
regarding whether Clark’s noncompliance with his treatment regimen was caused by
his mental illness or by rational choice, and otherwise comply with SSR 82-59.
V.

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Defendant’s Motion for Summary Judgment [Doc. # 21] is

DENIED. It is further
ORDERED that Plaintiff’s Motion for Summary Judgment [Doc. # 20] is
GRANTED. This case is REMANDED to the Commissioner for further proceedings
in accordance with this opinion.
SIGNED at Houston, Texas, this 8th day of January, 2013.

72

See Audler, 501 F.3d at 447.

P:\ORDERS\11-2012\350msj.wpd

130108.1313

20