Disability Professionals

Recently, I wrote a brief where a key issue was the claimant’s non-compliance with his medication. Allegations of non-compliance can sink an otherwise good disability claim. The regulations state that Social Security will not find a claimant disabled if they are not following prescribed treatment without a good reason. 20 C.F.R. § 404.1530(b).

Non-compliance, however, may be excused in certain situations. Before an ALJ can rely on non-compliance in the Tenth Circuit, he must consider four elements:

• Whether the treatment at issue would restore the claimant’s ability to work;
• Whether the treatment was prescribed;
• Whether the treatment was refused; and, if so,
• Whether the refusal was without justifiable excuse.

Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987); see also 20 C.F.R. § 404.1530(c) (listing specific exceptions to the compliance requirement).

Additionally, an ALJ must develop the record as to the justification for the claimant’s non-compliance. Social Security Ruling 82-59 requires an ALJ to develop the record to resolve whether the claimant justifiably failed to comply with prescribed medication. 1982 SSR LEXIS 25, *4-5. The ruling instructs an ALJ to allow the claimant an opportunity to “fully express the specific reason(s) for not following the prescribed treatment.” Id. at *5. It also instructs an ALJ to ask whether the claimant understood the nature of his treatment and the consequences of not complying with prescription medication. Id. at *5-6. It then states that “Detailed questioning may be needed to identify and clarify the essential factors of refusal.” Id. at *5.

Thus, an ALJ has two duties when confronting non-compliance. First, he must consider whether the non-compliance is excused or justified. Frey at 517. Second, he must develop the record as to the claimant’s rationale for refusing prescribed treatment.

In a recent case, the District of Colorado reversed and remanded a decision where the ALJ failed to make the necessary inquiry into the claimant’s reasons for failure to follow prescribed treatment. See Grabczyk v. Astrue, 2010 U.S. Dist. LEXIS 109888, *25-26 (D. Colo. Sept. 30, 2010). In the case, the ALJ did not give the claimant an opportunity to discuss whether she followed or attempted to follow her doctors’ recommendations or whether she had any difficulty paying for treatment. Id. at *26. Because of the ALJ’s failure to address these issues at hearing, the court determined that the ALJ did not comply with the mandates of SSR 82-59. Id. (citing Teter v. Heckler, 775 F.2d 1104, 1107 (10th Cir. 1985)).

In an earlier case, Vaughn v. Shalala, the Tenth Circuit considered a similar issue. 1994 U.S. App. LEXIS 1691, (10th Cir. Feb. 3, 1994) (unpublished). In Vaughn, the claimant stated that Dilantin made her sick. Id. at *12. Yet the ALJ never asked the claimant why she stopped taking the medication. Id. at *13. The Tenth Circuit stated, “Such questions should have been asked.” Id. (citing SSR 82-59). The court then determined that the record was not adequately developed because the ALJ failed to engage in detailed questioning under SSR 82-59. Id. Thus, the Circuit Court found that it could not determine on appeal whether the claimant’s refusal to take Dilantin was unjustified. Id.