United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. Lungstrum, United States District Judge
seeks review of a decision of the Acting Commissioner of
Social Security (hereinafter Commissioner) denying Disability
Insurance benefits (DIB) 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 the Administrative Law Judge
(ALJ) failed to apply the test from Frey v. Bowen,
816, F.2d 508, 517 (10th Cir. 1987) when considering the
credibility of Plaintiff's allegations of symptoms, the
court ORDERS that the 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 with this decision.
applied for DIB and SSI benefits, alleging disability
beginning June 15, 2008. (R. 16, 246, 250). Plaintiff
exhausted proceedings before the Commissioner, and now seeks
judicial review of the final decision denying benefits. He
argues that the ALJ erred in weighing the medical opinions of
his treating psychiatrist and the non-examining state agency
psychologists, and that he erred in failing to apply 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 ALJ's factual findings are
supported by substantial evidence in the record and whether
he applied the correct legal standard. 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 relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also, Wall, 561 F.3d at 1052;
Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir.
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); see also, Bowling v. Shalala, 36
F.3d 431, 434 (5th Cir. 1994) (The court “may not
reweigh the evidence in the record, nor try the issues de
novo, nor substitute [the Court's] judgment for the
[Commissioner's], even if the evidence preponderates
against the [Commissioner's] decision.”) (quoting
Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988)). 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.
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.
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).
court finds that remand is necessary because the ALJ failed
to apply the Frey test when considering the
credibility of Plaintiff's allegations of symptoms
resulting from his impairments. Because failure to apply the
correct legal standard requires remand, the court need not
consider whether the record evidence supports the ALJ's
evaluation of the medical opinions. Plaintiff may make
arguments in this regard on remand.
Application of the Frey Test in the ALJ's
claims the ALJ did not correctly apply the Frey test
when evaluating his credibility. (Pl. Br. 17). He argues that
his “non-compliance with prescription medication was
largely the result of a lack of finances and his mental
impairments.” Id. 18. Plaintiff argues that
his failure to take his medication was therefore justifiable,
and in any case the ALJ misconstrued the burden of proof and
the ALJ's duty to develop the record. Id. at
19-20 (citing Andrews v. Colvin, 13-1409-JWL, 2015
WL 225764, at *4 (D. Kan. Jan. 16, 2015)). He argues that the
ALJ also failed to consider whether his non-compliance was
attributable to his mental impairments, and that an agency
employee suggested “his marginal compliance seems to be
reasonably caused by his depressive” symptoms.
Id. at 20 (citing Pate-Fires v. Astrue, 564
F.3d 935, 946 (8th Cir. 2009); and quoting R. 522). Finally,
Plaintiff argues that the ALJ failed to consider whether the
treatment would restore his ability to work. (Pl. Br. 21).
Commissioner argues that the ALJ properly considered
Plaintiff's non-compliance and gave other good reasons to
discount Plaintiff's allegations of symptoms. She points
out that credibility determinations are the province of the
finder of fact and the court will not upset such
determinations that are supported by substantial evidence.
(Comm'r Br. 7) (citing Diaz v. Sec'y of Health
& Human Servs., 898 F.2d 774, 777 (10th Cir. 1990)).
The Commissioner argues that the Frey test applies
only in situations where a claimant is found disabled but
denied benefits because he has not complied with prescribed
treatment or medications, that “the ALJ did consider
and discuss the reasons Plaintiff gave for failing to take
his medication, ” and the ALJ provided numerous other
reasons which in themselves justify discounting the
credibility of Plaintiff's allegations. (Comm'r Br.
8) (citing Soc. Sec. Ruling (hereinafter SSR) 82-59 and SSR
96-7p). She argues that in the context of assessing
credibility, an ALJ need not “consider whether
treatment would restore an individual's ability to work,
” and consequently the four-part test from SSR 82-59 is
not applicable in this case. Id. Moreover, she
argues that contrary to Plaintiff's suggestion, the ALJ
considered and discussed the reasons Plaintiff provided for
his non-compliance. Id. 8-9.
The “Frey Test”
Frey v. Bowen, 816, F.2d 508 (10th Cir. 1987), the
court stated what has become known as “the
Frey test:” “In reviewing the impact of
a claimant's failure to undertake treatment, . . . [the
court] consider[s] four elements: (1) whether the treatment
at issue would restore 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.” Id. at 517.
In Frey, the ALJ found Plaintiff's allegations
of symptoms incredible, among other things, because of a
“lack of pain medication.” Id. at 515.
The court found the ALJ's reliance on the failure to take