Written by attorney Glen A Cook

Compliance with Medical Treatment in Social Security and SSI Disability Benefit Hearings

An ALJ will sometimes attack a Social Security claimant's credibility by alleging there is a failure to take medications or pursue medical treatment.Sometimes, this is simply a false allegation. Social Security decisions often contain incorrect statements. Further, the analysis does not end with determining whether their has been such a failure. SSR 96-7p requires that the ALJ must not draw any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering the evidence of record which may explain this. This may be due to a lack of medical insurance or an inability to afford co-pays for treatment. Even when the claimant shows this, ALJ's then turn to whether they have looked for low cost care, without making a determination as to whether low cost care is even available. Attorneys should be prepared to address this issue in the hearing.

Additionally, as noted in Randall v. Astrue, Case No. 4:09 CV2-HEA (E.D.Mo. Mar. 17, 2010), individuals with mental illness often refuse to take their psychiatric medication—a symptoms of the illness itself, rather than an example of willful noncompliance. As a result, an ALJ should determine if a claimant’s noncompliance is willful, or whether it is a medically determinable symptom of the mental illness. Accord, Herron v. Commissioner of Social Security, 788 F. Supp.2d 809 (N.D. Ind. 2011), “As the Seventh Circuit recently noted, ‘people with serious psychiatric problems are often incapable of taking their prescribed medications consistently.’ Martinez v. Astrue, 610 F.3d 693, 397 (7th Cir. 2011). [I]t is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation."

Further, the ALJ must also show that the treatment is “clearly" expected to restore capacity to engage in SGA. See SSR 82-59. The decisions quite often fail to address this factor as well. Copyright 2013. Glen A. Cook,

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