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Jarvis v. Berryhill

United States District Court, W.D. Oklahoma

October 10, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's application for benefits under the Social Security Act. The Commissioner has answered and filed a transcript of the administrative record (hereinafter TR. ___). The parties have consented to jurisdiction over this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

         The parties have briefed their positions, and the matter is now at issue. Based on the Court's review of the record and the issues presented, the Court REVERSES AND REMANDS the Commissioner's decision.


         Initially and on reconsideration, the Social Security Administration denied Plaintiff's application for disability insurance benefits. Following an administrative hearing, an Administrative Law Judge (ALJ) issued an unfavorable decision. (TR. 19-36). The Appeals Council denied Plaintiff's request for review. (TR. 1-3). Thus, the decision of the ALJ became the final decision of the Commissioner.


         The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005); 20 C.F.R. § 404.1520. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity during the period from her alleged onset date of January 15, 2012 through her date last insured of June 30, 2013. (TR. 21). At step two, the ALJ determined Ms. Jarvis had the following severe impairments: post-traumatic stress disorder and panic disorder with agoraphobia. (TR. 22). At step three, the ALJ found that Plaintiff's impairments did not meet or medically equal any of the presumptively disabling impairments listed at 20 C.F.R. Part 404, Subpart P, Appendix 1 (TR. 22).

         At step four, the ALJ found that Plaintiff was not capable of performing her past relevant work. (TR. 34). The ALJ further concluded that Ms. Jarvis retained the residual functional capacity (RFC) to:

[P]erform a full range of work at all exertional levels but with the following nonexertional limitations: restricted to work involving simple tasks and routine supervision; no more than occasional interaction with coworkers and supervisors; and she would be precluded from any public contact.

(TR. 24).

         With this RFC, the ALJ made additional findings at step five. There, the ALJ presented several limitations to a vocational expert (VE) to determine whether there were other jobs in the national economy that Plaintiff could perform. (TR. 67-68). Given the limitations, the VE identified three jobs from the Dictionary of Occupational Titles (DOT). (TR. 68). The ALJ adopted the testimony of the VE and concluded that Ms. Jarvis was not disabled based on her ability to perform the identified jobs. (TR. 35-36).


         On appeal, Plaintiff alleges the ALJ erred: (1) in failing to properly evaluate Plaintiff's failure to comply with prescribed treatment and (2) in the evaluation of a treating physician's opinion.


         This Court reviews the Commissioner's final “decision to determin[e] whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotation omitted).

         While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (internal quotation marks omitted).


         Ms. Jarvis alleges error in the ALJ's failure to properly evaluate Plaintiff's non-compliance with medication which the ALJ found had been effective in treating Ms. Jarvis' anxiety and panic attacks. The Court agrees.

         A. The Medical Evidence

         Plaintiff began seeing Dr. John Schipul in June of 2012 for panic attacks which had been occurring for approximately one month. (TR. 367-369). At that time, Ms. Jarvis was taking Xanax to treat her anxiety. (TR. 368). On July 5, 2012, Dr. Schipul diagnosed Ms. Jarvis with Agoraphobia with Panic Disorder and switched Plaintiff's primary medication to Paxil with instructions to take Xanax only as needed. (TR. 366). In September 2012, Dr. Schipul prescribed Risperidone in an attempt to stop Plaintiff's use of Xanax. (TR. 359).

         In December 2012, Plaintiff reported doing well on Risperidone, but stopped taking the medication due to side effects involving weight gain and insomnia. (TR. 354-357). In January 2013, Plaintiff presented to Dr. Schipul for “severe panic attacks.” According to the physician's note:

patient was having side effect of weight gain with the risperidone so at that time stop the risperidone and started Topamax instead for its mood stabilization and weight loss properties. Patient says that without the risperidone she is on [sic] backwards and is now having more frequent panic attacks is not able to stand in line at stores not able to leave is [sic] her house without anxiety and starting to affect her life again.

(TR. 346). As a result of the increased panic attacks, Dr. Schipul once again prescribed Risperidone. (TR. 347).

         In April 2013, Plaintiff saw Dr. Schipul for a medication follow-up appointment. (TR. 340-342). Plaintiff reported that her anxiety was doing well on Paxil and Risperidone, but also that she had gained 10 pounds, even on the lower dose of Risperidone. (TR. 340). Accordingly, Dr. Schipul attempted to transition Ms. Jarvis to Buspar. (TR. 342). A June 2013 progress note stated that Plaintiff had quit taking Paxil due to weight gain, but due to suffering severe panic attacks, she would start taking it again. (TR. 333). In August 2013, Plaintiff agreed to go back on Risperidone, despite the side effect of weight gain. (TR. 331). Even so, a September 2013 progress note stated that once again, Plaintiff had quit taking Risperidone due to weight gain. (TR. 339). Since quitting the medication, Dr. Schipul stated that Ms. Jarvis had “gone back to severe anxiety and not able to leave her house even to take her children to school.” (TR. 339).

         B. The ALJ's Reliance on Ms. Jarvis' Failure to Comply with Prescribed Treatment

         In his summary of the evidence, the ALJ discussed Plaintiff's reports to Dr. Schipul regarding control of her panic attacks when taking Risperdal, and her lack of control and ability to function when she stopped taking the medication due to weight gain. (TR. 28-29). Three times in the decision, the ALJ referred to Ms. Jarvis' change in anxiety and panic attacks when she was taking and not taking the recommended medication. First, at step three, the ALJ found that when Plaintiff was compliant with her medication, she: (1) suffered from only moderate restrictions in the areas of daily activities; concentration, persistence, and pace; and social functioning and (2) did not qualify for Listing 12.06(C). (TR. 22-24). Second, when evaluating Plaintiff's veracity, the ALJ found the Plaintiff only partially credible, stating:

The severity of social anxiety symptoms alleged by the claimant is not entirely consistent with the medical evidence of record. The treatment notes provided by Dr. Schipul show that Risperdal and Paxil controlled the claimant's anxiety and depression symptoms relatively well. When compliant with taking those medications, the claimant told Dr. Schipul that her anxiety and panic symptoms were well managed and that she was able to go shopping and function outside of the house. The claimant showed poor compliance with these medications and ultimately stopped taking Risperdal and Paxil altogether due to her concerns about weight gain side effects, which resulted in her severe social anxiety symptoms returning.
. . .
Since the medical evidence of record shows that the claimant's anxiety symptoms were less severe than she alleged and reported, the undersigned only finds the claimant's statements to be partially credible.

(TR. 30-31) (internal citations omitted).

         Finally, in support of the RFC findings and in his denial of benefits, the ALJ discussed Plaintiff's ...

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