                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 10-2590
                                    ___________

Dennis L. Watkins, Jr.,               *
                                      *
            Appellant,                *
                                      * Appeal from the United States
      v.                              * District Court for the Eastern
                                      * District of Arkansas.
Michael J. Astrue, Commissioner,      *
Social Security Administration,       * [UNPUBLISHED]
                                      *
            Appellee.                 *
                                 ___________

                              Submitted: December 1, 2010
                                 Filed: March 31, 2011
                                  ___________

Before BYE, BOWMAN, and COLLOTON, Circuit Judges.
                          ___________

PER CURIAM.

       Dennis L. Watkins, Jr. appeals the district court’s order affirming the denial of
supplemental security income and disability insurance benefits. Watkins alleged
disability since April 2004 from spinal problems, a bipolar disorder, and problems
with concentration and interacting with the public. After an August 2006 hearing, an
administrative law judge (ALJ) found that (1) Watkins’s bipolar disorder, mild
scoliosis, and degenerative disc disease were severe impairments, but not of listing-
level severity; (2) his subjective complaints were not fully credible; and (3) his
residual functional capacity (RFC) precluded his past relevant work, but a vocational
expert’s testimony in response to a hypothetical showed that Watkins could perform
other jobs existing in substantial numbers. The Appeals Council denied review, and
the district court affirmed. Upon careful review of the record and Watkins’s
arguments for reversal, see Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009)
(standard of review), we conclude that certain aspects of the ALJ’s decision are not
supported by substantial evidence.1

       Watkins contends that the ALJ erred in finding him not credible. Contrary to
his suggestion, the ALJ was not required to discuss each of the requisite credibility
factors, so long as he recognized and considered them in making his credibility
determination. See Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010). We agree
with the ALJ that Watkins’s complaints of disabling pain from his physical problems
are unsupported by the objective medical evidence, see Mouser v. Astrue, 545 F.3d
634, 638 (8th Cir. 2008) (lack of objective medical evidence is relevant to credibility);
and are inconsistent with Watkins’s failure to seek ongoing treatment, see Halverson,
600 F.3d at 932 (subjective complaints may be discounted based on inconsistencies
in record as whole); Casey v. Astrue, 503 F.3d 687, 693 (8th Cir. 2007) (failure to
seek regular treatment is not consistent with complaints of disabling pain), and also
with some of his reported strenuous daily activities, see Goff v. Barnhart, 421 F.3d
785, 792 (8th Cir. 2005) (inconsistencies between claimant’s subjective complaints
and his activities diminish his credibility). Because the ALJ’s adverse credibility
determination concerning Watkins’s subjective physical complaints was based on
several valid reasons, we defer to this determination. See Finch v. Astrue, 547 F.3d
933, 935-36 (8th Cir. 2008).

      As to Watkins’s subjective mental complaints, the treatment records do not
support his assertion that his extensive reported plans and activities were exaggerated
and symptomatic of his bipolar disorder, and so it was proper for the ALJ to rely on

      1
        We decline to consider some of Watkins’s arguments--such as that the ALJ
was required to complete an updated psychiatric review technique form--as they are
clearly meritless or not developed.

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these activities and plans in discounting Watkins’s allegations of disabling psychiatric
symptoms. See id. However, while the ALJ correctly noted that most of the treatment
records reflected improvement of Watkins’s mental condition with medication, see
Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (where impairment can be
controlled by treatment, it cannot be considered disabling), the later treatment records
show a worsening of his mental condition, as they document paranoid thoughts and
hallucinations or delusions, and the early 2006 mental-status-examination findings
were almost entirely abnormal. Although the ALJ also correctly observed that the
record reflected Watkins’s repeated noncompliance with recommendations to return
for follow-up or to take his prescribed medications, as Watkins points out, this court
has recognized that a mentally ill claimant’s noncompliance can be, and ordinarily is,
the result of the mental impairment, and thus it is not deemed willful or unjustifiable.
See Pate-Fires, 564 F.3d at 945-47 (collecting cases; noting ALJ’s failure to make
critical distinction between claimant’s awareness of need to take medication and
question whether claimant’s noncompliance was medically determinable symptom of
mental illness). Because the ALJ relied primarily on Watkins’s noncompliance with
treatment recommendations to discredit his allegedly disabling psychiatric symptoms,
the ALJ’s related adverse credibility determination is not entitled to deference.

       Watkins also challenges the ALJ’s RFC findings. We reject his challenge to the
physical RFC findings, because the opinion of Dr. William Winston, who saw
Watkins four times, was conclusory, see Hacker v. Barnhart, 459 F.3d 934, 937 (8th
Cir. 2006) (to warrant controlling weight, treating physician’s opinion must be
supported by medically acceptable diagnostic tests and not be inconsistent with other
substantial evidence); and the ALJ’s physical RFC findings were not only more
limited than those of consulting physician Harold Chakales, but also consistent with
the treatment records and the decision to discredit--we conclude correctly--Watkins’s
related subjective complaints, see Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir.
2009) (RFC determination should be based on all relevant evidence, including medical



                                          -3-
records, observations of treating physicians and others, and claimant’s own
description of his limitations).

       The ALJ found, on the areas covered in a psychiatric review technique form
(PRTF), that the record did not show more than moderate restrictions in daily
activities; any significant deficit in social functioning, or in concentration, persistence,
or pace; or actual episodes of deterioration or decompensation in work settings. As
to mental RFC, he limited Watkins to jobs involving only routine interpersonal
contact with others, and simple, routine, and repetitive tasks. The ALJ’s PRTF
findings are more restricted than those of Social Security Administration reviewing
physicians, and the ALJ’s mental RFC findings appear consistent with the global
assessment of functioning ratings contained in the treatment records, which primarily
reflected moderate impairments as of the alleged onset date. However, an RFC
opinion is based in part on an assessment of a claimant’s credibility and, as already
noted, the ALJ’s relevant credibility determination is not entitled to deference. We
are also troubled by the absence of a mental RFC opinion in the record from
Watkins’s several treating psychiatrists, given that a social security hearing is a non-
adversarial proceeding, and thus that an ALJ has a duty to develop the record fully,
including seeking clarification from treating physicians if a crucial issue is
underdeveloped or undeveloped. See Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir.
2006); see also Garza v. Barnhart, 397 F.3d 1087, 1089-90 (8th Cir. 2005) (per
curiam) (ALJ’s duty to develop record fully and fairly exists even when claimant is
represented by counsel).

       In summary, we conclude that substantial evidence does not support the ALJ’s
adverse credibility determination on Watkins’s subjective mental complaints or the
ALJ’s mental RFC determination. The record also contains documented instances of
Watkins’s abuse of illegal drugs, and it is unclear whether his mental problems are
linked to this abuse. See Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000) (claimant
has initial burden of showing that alcoholism or drug use is not material to finding of

                                            -4-
disability). Accordingly, we reverse the judgment of the district court and remand for
further proceedings consistent with this opinion.

COLLOTON, Circuit Judge, concurring in the judgment.

       I disagree with the court’s resolution of this appeal, because the opinion
effectively applies an irrebuttable presumption that when a mentally impaired claimant
fails to comply with a treatment regimen that would alleviate the impairment, the
noncompliance is attributable to the mental impairment and thus not willful. This
presumption stems from dicta in Pate-Fires v. Astrue, 564 F.3d 935 (8th Cir. 2009),
where a panel majority, citing four district court decisions but no empirical data,
asserted that “federal courts have recognized a mentally ill person’s noncompliance
with psychiatric medications can be, and usually is, the result of the mental
impairment itself and, therefore, neither willful nor without a justifiable excuse.” Id.
at 945 (emphasis added) (internal quotation omitted).

       Whether noncompliance with prescribed treatment is justifiable is a factual
question to be determined on the record of each case. Whether it “usually is” the
result of a mental impairment is an empirical question that cannot be answered on this
record. Here, the court cites no evidence to support a finding that Dennis Watkins’s
mental impairments caused his noncompliance, relying only on a presumption drawn
from dicta in Pate-Fires. There is some indication in the record that perhaps Watkins
did not have sufficient money to purchase certain medications, A.R. 145, 147, or that
he avoided some medication because of undesirable side effects, A.R. 137, but other
evidence suggests that he was simply “too busy” caring for his family to pursue
follow-up treatment. A.R. 107, 111. This evidence may or may not establish that
there was a justification for noncompliance, but it does not support a finding that the
noncompliance was caused by mental illness.




                                          -5-
        I would remand the case to the agency on a narrower ground. Where a claimant
fails to pursue medical treatment for an impairment, Social Security Ruling 96-7p
provides that an 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 any explanations that the individual may provide, or other
information in the case record, that may explain the infrequent or irregular medical
visits or failure to seek medical treatment.” SSR 97-7p, 1996 WL 374186, at *7 (July
2, 1996). The ruling continues that the ALJ “may need to recontact the individual or
question the individual at the administrative proceeding in order to determine whether
there are good reasons the individual does not seek medical treatment or does not
pursue treatment in a consistent manner.” Id. The ALJ in this case did not question
Watkins about his noncompliance and did not address evidence suggesting that
noncompliance may have resulted from poverty or a dislike for side effects, either of
which may excuse failure to pursue treatment. Id. at *8. Because the ALJ’s opinion
lacks an adequate discussion of these issues, I concur in the judgment remanding for
further proceedings with respect to Watkins’s mental condition. See Myles v. Astrue,
582 F.3d 672, 677 (7th Cir. 2009).
                          ______________________________




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