United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
T. ERWIN UNITED STATES MAGISTRATE JUDGE.
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).
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.
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
THE ADMINISTRATIVE DECISION
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).
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.
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).
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
STANDARD OF REVIEW
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).
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).
PLAINTIFF'S FAILURE TO COMPLY WITH PRESCRIBED
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.
The Medical Evidence
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).
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).
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.
The ALJ's Reliance on Ms. Jarvis' Failure to Comply
with Prescribed Treatment
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).
in support of the RFC findings and in his denial of benefits,
the ALJ discussed Plaintiff's ...