Derossett v. Kijakazi

Filing 26

MEMORANDUM OPINION AND ORDER: It is ORDERED as follows; Derossett's motion for summary judgment (Doc. No. 17 ) is GRANTED. The Commissioner's motion for summary judgment (Doc. No. 20 ) is DENIED. The decision of the Commissioner is REVERSED and REMANDED for further proceedings not inconsistent with this opinion. Signed by Magistrate Judge Jerusha T. Adams on 3/26/2024. (c/s) (LAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
GINA DEROSSETT,
Plaintiff,
v.
MARTIN J. O’MALLEY, 1
Commissioner of Social Security,
Defendant.

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CASE NO. 3:22-cv-611-JTA
(WO)

MEMORANDUM OPINION AND ORDER
Pursuant to 42 U.S.C. § 405(g), the claimant, Gina Derossett (“Derosett”) brings
this action to review a final decision by the Commissioner of Social Security
(“Commissioner”). (Doc. No. 1.) 2 The Commissioner denied Derossett’s claim for a period
of disability, Disability Insurance Benefits (“DIB”) and Supplemental Security Income
(“SSI”). (R. 12-28.) 3 The Court construes Derossett’s brief in support of her Complaint
(Doc. No. 17) as a motion for summary judgment and the Commissioner’s brief in
opposition to the Complaint as a motion for summary judgment (Doc. No. 20). The parties

1

Martin J. O’Malley was appointed Commissioner for the Social Security Administration on
December 20, 2023 and is automatically substituted as the defendant. See Fed. R. Civ. P. 25(d).
2
3

Document numbers as they appear on the docket sheet are designated as “Doc. No.”

Citations to the administrative record are consistent with the transcript of administrative
proceedings filed in this case. (See Doc. No. 16.)

have consented to the exercise of dispositive jurisdiction by a magistrate judge pursuant to
28 U.S.C. § 636(c).
After careful scrutiny of the record and the motions submitted by the parties, the
Court finds that Derossett’s motion for summary judgment is due to be GRANTED, the
Commissioner’s motion for summary judgment is due to be DENIED, the decision of the
Commissioner is due to be REVERSED, and this matter is due to be REMANDED for
further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
I.

PROCEDURAL HISTORY AND FACTS

Derossett is an adult female with a two-year college degree in cosmetology who
previously worked as a hairstylist. (R. 31, 33, 35). She is a person of advanced age. 4 20
C.F.R. §§ 404.1563(e), 416.963(e).
Derossett filed an application for a period of disability and DIB under Title II of the
Social Security Act and filed a Title XVI application for SSI. (R. 162-70.) She alleged a
disability onset of August 27, 2020, due to migraines, a pinched nerve in her upper back,
arthritis in both hands and both knees, and left hand and lower back problems. 5 (R. 40, 42,

4

According to the hearing transcript, Derossett testified at the hearing that she was born in 1953,
in which case she would have been 68 years old at the time of the administrative hearing and 67
years old on the alleged date of onset of disability. (R. 18, 31, 54, 162.) However, the transcript
testimony appears to be in error. In her application for benefits, she stated that she was born in
1963, in which case she would have been 58 years old at the time of the administrative hearing
and 57 years old on the alleged date of onset of disability. (R. 18, 33, 54, 162, 164.) Medical
records indicated a birthdate in 1953. (See, e.g., R. 321.) The parties make no age-based argument
regarding Derossett’s eligibility for DIB or SSI benefits.
5

At the administrative hearing, Derossett also alleged that she suffered from attention deficit
hyperactivity disorder, insomnia, plantar fasciitis, scoliosis, and hemorrhoids. (R. 42, 44-45, 4950.)
2

188.) The claim was originally allowed, but the Office of Quality Review (“OQR”)
returned the claim, “indicating that more information regarding [Derossett’s] physical
function was required to support” a residual functional capacity of light work. (R. 406.) In
addition, OQR noted that there was no indication why past work was marked as “not
relevant.” (Id.) Therefore, the Commissioner sought further medical records and
clarification from Derossett. (Id.) Subsequently, at the level of initial review and
reconsideration, the Commissioner found that the claim was not supported. (R. 87, 92, 100,
105.) Derossett requested an administrative hearing. (R. 108-115.)
Following the administrative hearing, the Administrative Law Judge (“ALJ”)
returned an unfavorable decision on January 20, 2022. (R. 12-23.) Derossett sought review
by the Appeals Council, and it denied her request. (R. 1-3.) Thus, the hearing decision
became the final decision of the Commissioner. 6
On October 13, 2022, Derossett filed this civil action for judicial review of the
Commissioner’s final decision. (Doc. No. 1.) The parties have briefed their respective
positions. (Docs. No. 17, 20, 21.) This matter is ripe for review.
II.

STANDARD OF REVIEW

Judicial review of disability claims is limited to whether the Commissioner’s
decision is supported by substantial evidence and whether the correct legal standards were
applied. 42 U.S.C. § 405(g); Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). “The

6

“When, as in this case, the ALJ denies benefits and the [Appeals Council] denies review, [the
court] review[s] the ALJ’s decision as the Commissioner’s final decision.” Doughty v. Apfel, 245
F.3d 1274, 1278 (11th Cir. 2001) (citation omitted).
3

Commissioner’s factual findings are conclusive” when “supported by substantial
evidence.” Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). “Substantial evidence”
is more than a mere scintilla and is “such relevant evidence as a reasonable person would
accept as adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d
1155, 1158 (11th Cir. 2004) (quoting Lewis v. Callahan, 125 F.3d 1346, 1349 (11th Cir.
1997)). Even if the Commissioner’s decision is not supported by a preponderance of the
evidence, the findings must be affirmed if they are supported by substantial evidence. Id.
at 1158-59; see also Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The court
may not find new facts, reweigh evidence, or substitute its own judgment for that of the
Commissioner. Bailey v. Soc. Sec. Admin., Comm’r, 791 F. App’x 136, 139 (11th Cir.
2019); Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004); Dyer, 395 F.3d at
1210. However, the Commissioner’s conclusions of law are not entitled to the same
deference as findings of fact and are reviewed de novo. Ingram v. Comm’r of Soc. Sec.
Admin., 496 F.3d 1253, 1260 (11th Cir. 2007).
Sentence four of 42 U.S.C. § 405(g) authorizes the district court to “enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for
a rehearing.” 42 U.S.C. § 405(g). The district court may remand a case to the Commissioner
for a rehearing if the court finds “either ... the decision is not supported by substantial
evidence, or ... the Commissioner or the ALJ incorrectly applied the law relevant to the
disability claim.” Jackson v. Chater, 99 F.3d 1086, 1092 (11th Cir. 1996).

4

III.

STANDARD FOR DETERMINING DISABILITY

An individual who files an application for Social Security DIB and SSI must prove
that she is disabled. 7 See 20 C.F.R. § 404.1505; 20 C.F.R. § 416.920. The Act defines
“disability” as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
death, or which has lasted or can be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a).
Disability under the Act is determined under a five-step sequential evaluation
process. See 20 C.F.R. § 404.1520. The evaluation is made at the hearing conducted by an
ALJ. See Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018). First,
the ALJ must determine whether the claimant is currently engaged in substantial gainful
activity. 20 C.F.R. § 404.1520(b). “Substantial gainful activity” is work activity that
involves significant physical or mental activities. 20 C.F.R. § 404.1572(a). If the ALJ finds
that the claimant is engaged in substantial gainful activity, the claimant cannot claim
disability. 20 C.F.R. § 404.1520(b). Second, the ALJ must determine whether the claimant
has a medically determinable impairment or a combination of impairments that
significantly limit the claimant’s ability to perform basic work activities. 20 C.F.R. §
404.1520(c). Absent such impairment, the claimant may not claim disability. Id. Third, the
ALJ must determine whether the claimant meets or medically equals the criteria of an

7

Although DIB and SSI are separate programs, the standards for determining disability are
identical. See Patterson v. Bowen, 799 F.2d 1455, 1456 n.1 (11th Cir. 1986); Miles v. Soc. Sec.
Admin., Comm’r, 469 F. App’x 743, 744 (11th Cir. 2012).
5

impairment listed in 20 C.F.R. 404, Subpart P, Appendix 1. If such criteria are met, then
the claimant is declared disabled. 20 C.F.R. § 404.1520(d).
If the claimant has failed to establish that she is disabled at the third step, the ALJ
may still find disability under the next two steps of the analysis. At the fourth step, the ALJ
must determine the claimant’s residual functional capacity (“RFC”), which refers to the
claimant’s ability to work despite her impairments. 20 C.F.R. § 404.1520(e). The ALJ must
determine whether the claimant has the RFC to perform past relevant work. 20 C.F.R. §
404.1520(f). If it is determined that the claimant can perform past relevant work, then the
claimant is not disabled. 20 C.F.R. § 404.1560(b)(3). If the ALJ finds that the claimant is
unable to perform past relevant work, then the analysis proceeds to the fifth and final step.
20 C.F.R. § 404.1520(g)(1). In this final analytical step, the ALJ must decide whether the
claimant is able to perform any other relevant work corresponding with her RFC, age,
education, and work experience. 20 C.F.R. § 404.1560(c). Here, the burden of proof shifts
from the claimant to the ALJ in proving the existence of a significant number of jobs in the
national economy that the claimant can perform given her RFC, age, education, and work
experience. 20 C.F.R. §§ 404.1520(g), 404.1560(c).
IV.

ADMINISTRATIVE DECISION

Within the structure of the sequential evaluation process, the ALJ in this case found
that Derossett met the insured status requirements of the Social Security Act through
December 31, 2025, but had not engaged in substantial gainful activity since the alleged
onset date of August 27, 2020. (R. 18.) The ALJ determined that Derossett suffers from
the following severe impairments that significantly limit her ability to perform basic work
6

activities: cervical degenerative disk disease, cervical radiculopathy, polyosteoarthritis,
and vitamin D deficiency. (R. 18.) The ALJ determined that Derossett suffers from the
following non-severe impairments: hyperlipidemia and nicotine dependence. (Id.)
The ALJ concluded that Derossett does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 19.) The ALJ explained:
The objective record fails to contain the objective findings and clinical signs
set forth in any of the listing sections pertaining to the claimant’s severe
impairments. The undersigned specifically considered the musculoskeletal
listings 1.15, 1.16, 1.18 but these listings were not met because some of the
constitutional symptoms are not established by the file and there is no
documented requirement to use an assistive device. In an abundance of
caution[, the] listing 14.09 for inflammatory arthritis was also considered.
Again, some of the constitutional symptoms are not established by the file
and the evidence does not support marked limitations in activities of daily
living, maintaining social functioning, or in completing tasks in a timely
manner.
(R. 19.)
After consideration of the entire record, the ALJ determined Derossett retains the
RFC
to occasionally lift and/or carry fifty pounds; frequently lift and/or carry
twenty-five pounds; stand/walk for six hours in an eight-hour workday; sit
for six hours in an eight-hour workday with customary breaks; perform no
work at unprotected heights; perform no operation of handheld vibrating
equipment (involving significant vibration, such as a power tool or a
jackhammer). 20 CFR 404.1567(c) and 416.967(c)[ 8.]

8

20 C.F.R. §§ 404.1567(c) and 416.967(c) define “medium work” as work that “involves lifting
no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25
pounds. If someone can do medium work, we determine that he or she can also do sedentary and
light work.”
7

(R. 19.)
In assigning this RFC, the ALJ found Derossett’s impairments could reasonably be
expected to cause some of the alleged symptoms, but her “statements concerning the
intensity, persistence and limiting effects of these symptoms [were] not entirely consistent
with the medical evidence and other evidence in the record for the reasons explained in
[the ALJ’s] decision.” (Id.) In support of this finding, the ALJ summarized the available
medical records. (R. 19-22.) The ALJ also considered Derossett’s testimony at the hearing.
(R. 22.)
Based upon the testimony of a vocational expert (“VE”), the ALJ determined that
Derossett is able to perform her past relevant work as a cosmetologist as that work is
generally performed. (R. 22-23.) The VE also testified that Derossett’s past relevant work
as a cosmetologist could be performed by someone of Derossett’s age, education, work
experience, and RFC, and who had the following additional limitations: “occasionally
lifting and/or carrying twenty pounds and frequently lifting and/or carrying ten pounds, she
could not perform overhead work, and she could only frequently push/pull with the
bilateral upper extremities.” (R. 23, 51-52.)
The ALJ concluded that Derossett had not been under a disability from the alleged
disability onset date through the date of the ALJ’s decision. (R. 23.)
I.

DISCUSSION

Derossett presents three issues for review. (Doc. No. 17 at 1.) First, she argues that
the ALJ failed to develop a full and fair record and evaluate all prior administrative
findings. (Id. at 6-9.) Second, she argues that new and material evidence requires remand
8

under sentence six of 42 U.S.C. § 405(g). (Id. at 9-13.) Third, she argues that the ALJ failed
to provide sufficient reasons for rejecting Derossett’s subjective testimony as to the
limiting effects of her impairments and other symptoms. (R. 13-16.) For reasons of
efficiency, the Court will review these issues out of order.
A.

Consideration of Derossett’s Testimony Regarding Inability to Afford Medical Care
On appeal, Derossett argues that the ALJ erred by failing to provide sufficient

reasons for rejecting her subjective testimony regarding the limiting effects of her
impairments and by failing to consider her testimony that she was unable to afford her
prescribed medications or obtain more extensive medical treatment.
1.

Derossett’s Testimony and Medical Records

At the administrative hearing, Derossett testified that, in August 2020, she was sent
to physical therapy to recover full use of her left arm after being injured in a minor car
accident. (R. 37-38.) The medical record indicates that, on August 5, 2020, Derossett saw
her primary care provider, whom she had not seen since 2019. (R. 334.) Derossett
complained of stabbing left elbow and wrist pain for which she had taken Aleve and
Tylenol with no relief from the symptoms. (R. 334.) The primary care provider gave
Derossett Decadron, Depo-Medroll, and Toradol at the office visit and referred her to
orthopedics for further evaluation and treatment. (R. 336.) The primary care provider also
“discussed the importance of monitoring intake of nonsteroidal anti-inflammatory
medication.” (Id.)
On September 18, 2020, Derossett was seen by Dr. Orvis Chitwood, III, M.D. (R.
409-10.) She complained of “pain from the left shoulder blade radiating down the left arm
9

to the hand and to the left side of her neck.” (Id.) “She also ha[d] some numbness in the
left little and ring fingers.” (R. 409.) In addition, she also stated that it felt “like an ice pick
[was] being stuck in her left elbow.” (Id.) Her symptoms had been “going on for 2 months.”
(Id.) The pain came and went, could “be up to an 8 or 10/10,” and was “worse when she
d[id] her job as a hairdresser.” (Id. at 410.) Dr. Chitwood reviewed a cervical spine x-ray
and determined that it showed “C6-7 degenerative disc disease with a loss of the normal
cervical lordosis.” (R. 411.) He diagnosed cervical radiculopathy, “put her on a Medrol
Dosepak and some muscle relaxants,” and “sen[t] her to [physical] therapy.” (Id.) If
Derossett’s symptoms did not improve with this plan, Dr. Chitwood noted, “the next step
would be to get an MRI of her neck.” (Id.)
Derossett went to physical therapy, where she had her initial examination on
September 22, 2020. (R. 362-67.) To address painful and decreased cervical range of
motion and abnormal posture and awareness, a six-week plan involving physical therapy
2-3 times per week was created. (R. 365-66.) She was noted to have good rehab potential.
(R. 365.) Throughout her ensuing physical therapy visits, it was repeatedly noted that she
was “progressing” and “improving,” had good rehab potential, and would “benefit from
continued skilled PT interventions to achieve functional mobility goals.” (R. 369, 372, 374,
376-77, 379, 381, 383, 385, 387.) However, she last went to physical therapy on October
21, 2020, short of the recommended six-week course. (R. 386.) Notes from her last physical
therapy session indicated that Derossett would “benefit from continued skilled PT
interventions to achieve functional mobility goals” and indicated that further physical
therapy sessions were anticipated. (R. 387.)
10

On November 23, 2020, William Blacklund, M.D., completed a medical review of
the record for the Commissioner and stated:
A review of the [medical evidence of record] does show a [claimant] with a
somewhat acute LUE radicular pain back in 8/2020, She has started PT with
some medication to help alleviate her symptoms. Such treatment does take
time to help and, if not, surgery would then be indicated. Her notes are mainly
from PT without any follow[-]up [medical evidence] from Dr. Chitwood.
[Derossett] was making slow progress in PT so a follow[-]up note from her
[treating specialist] should have been obtained as to her current physical
status and any treatment plans that might have been planned. Such [medical
evidence] would be needed before one could make any projected [residual
functional capacity] for this [claimant]. Given the subacute onset date, it
would be quite likely that her symptoms would resolve and allow [a lifting
capacity] of 25 [pounds] with unlimited reaching within 12 months.
(R. 388.)
On August 8, 2021, at another annual wellness checkup, Dorossett’s primary care
provider indicated that she would “[c]ontinue Celebrex” for her dorsalgia and polyarthritis,
and further noted that she was “stable on Celebrex.” (R. 395.)
At the December 1, 2021 hearing before the ALJ, Derossett testified that she was
unable to finish the prescribed course of physical therapy. Derossett testified that she “quit
going” to physical therapy because she “kept getting these hospital bills [she] could not
afford” and she “could not afford the insurance.” (R. 38-39.) She said that she “had already
been ... in the situation where the hospital was trying to garnish [her] wages” and she “had
to go get ... legal aid to stop the garnishment,” so she “definitely didn’t want to go through
that again.” (R. 39; see also R. 49 (reiterating that she could not go to physical therapy
because she could not pay the bills for the physical therapy).)

11

When the ALJ inquired as to Derossett’s medical insurance, Derossett responded
that she had “Obama plan or some minimal insurance” that only paid for a “yearly checkup, and stuff like that.” 9 (R. 39-40.) She indicated that, due to her finances, 10 “when the
pain is really bad, that’s the only time I go to the doctor.” (R. 42.) When asked how she
had been supporting herself, Derossett testified that her boyfriend paid her utilities and that
her older brother would “pitch in” if she had “any kind of problems.” (R. 34.)
Derossett also testified that, when she went to her doctor for treatment for her
arthritis, a nurse practitioner prescribed her Celebrex, but she “couldn’t afford it.” (R. 39.)
She testified that, in lieu of Celebrex, she had “just been eating Motrin and Tylenol,” and
also rook Aleve. (R. 39-40.) When the ALJ asked Derossett if she had informed her doctor
that she could not afford the prescribed medication so that the provider could consider an
alternative, Derossett replied that she “told [her primary care provider] that [she] couldn’t
afford it” and she “did let [her primary care provider] know.” (R. 39.)
When the ALJ asked Derossett why she could not work, her chief complaint was,
since “one of her shoulders locked up” and she was sent to physical therapy, her arthritis
“has been compromised worse” so that she did not have the strength and stamina to “stand
up and be any more with [her] arms up all the time” as she had been doing in her job as a
9

The medical record indicates that Derossett did obtain annual exams from her primary care
provider. (R. 394-396.)

10

Derossett testified that she was given a leave of absence from her job as a hairdresser to complete
physical therapy. (R. 37, 42-43.) Her employer told her that, to be allowed to return to work, she
“would have to bring that paperwork back from physical therapy.” (R. 43.) Later, in the course of
applying for food stamps, Derossett found out that her employment had been terminated. (R. 4243.) Derossett testified that, for the first time since attaining a cosmetology license in 1983, she
did not renew that license in 2021 because she could not afford it. (R. 34.)
12

cosmetologist. (R. 36.) She testified that her arthritis affected her hands so that she could
not open lids on pop bottles and could not hold more than three pounds. (R. 44.) She stated
that she was “in pain all the time” and felt like she needed to go back to the doctor because
of stabbing pain in the area of both thumbs that felt like “someone’s sticking an ice pick in
both of [her] hands.” (Id.) She stated that, because of her arthritis, she did not “have any
strength in [her] hands, and [her] dexterity is not what it used to be.” (Id.) The pain was so
bad that it interfered with her sleep on some nights. (Id.) She testified that, in her daily
activities, she did “light housework,” by which she meant that she used a lightweight
handheld vacuum “that can go around the kitchen real quick,” 11 but that she did not “lift
anything.” 12 (R. 45-46.) She also stated that pain from her cervical spine prevented her
from moving her head from side to side and that, because of this, her arthritis, and difficulty
sitting for long periods, she did not drive. (R. 45, 47.)
2.

Analysis

When a claimant attempts to establish a disability based on testimony of their
symptoms, the claimant must show “(1) evidence of an underlying medical condition; and
(2) either (a) objective medical evidence confirming the severity of the alleged pain; or (b)

11

Derossett testified that the handheld vacuum was a “cheapy vacuum” that weighed “about five
pounds maybe, three pounds. Probably doesn’t weigh that much.” (R. 45.) She could no longer use
her large Kirby vacuum cleaner because she “c[ouldn’t] even pick [it] up any more.” (R. 45-46.)
12

In his brief, the Commissioner points out that, on an October 21, 2020 form Derossett submitted,
she self-reported more extensive activities of daily living, such as weed eating and mowing. (R.
221-22.) She stated that she needed help or encouragement doing those things “now ... because
[she] will hurt and be tired after most of them.” (R. 221.) However, the ALJ did not rely on the
self-reported symptoms on that form, nor did the ALJ comment on any discrepancy, if any,
between Derossett’s answer on the form and her testimony at the hearing.
13

that the objectively determined medical condition can reasonably be expected to give rise
to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002). “A
claimant’s testimony coupled with evidence that meets this standard ‘is itself sufficient to
support a finding of disability.’” Milton v. Kijakazi, No. 2:21-CV-428-SMD, 2022 WL
17128524, at *4 (M.D. Ala. Nov. 22, 2022) (quoting Holt v. Sullivan, 921 F.2d 1221, 1223
(11th Cir. 1991) (citation omitted)).
When, as here, the ALJ finds that medical signs and laboratory findings demonstrate
a medically determinable impairment or set of impairments that could reasonably be
expected to produce the claimant’s symptoms (R.19), then the ALJ must evaluate the
intensity and persistence of the claimant’s symptoms to determine how those symptoms
limit the claimant’s capacity for work. 20 C.F.R. § 404.1529(c); 20 C.F.R. § 416.929(c).
“In evaluating the claimant’s subjective symptoms, the ALJ may consider a variety of
factors, including ... objective medical evidence, treatment history, response to medication
and other treatments, sources of pain relief, and the claimant’s daily activities.” Milton,
2022 WL 17128524, at *4 (citing 20 C.F.R. § 404.1529(c)(1)-(4)). “If the ALJ discredits
subjective testimony, [s]he must articulate explicit and adequate reasons for doing so.”
Wilson, 284 F.3d at 1225. “Where a claimant’s treatment history is inconsistent with her
subjective complaints or she fails to follow prescribed treatment that might alleviate her
symptoms, the ALJ may find that her subjective testimony is inconsistent with the overall
evidence in the record.” Douglas v. Comm’r, Soc. Sec. Admin., 832 F. App’x 650, 657
(11th Cir. 2020) (citing Social Security Regulation (“SSR”) 16-3p, 82 Fed. Reg. 49462-03,
49466 (Oct. 25, 2017)).
14

“Nonetheless, the ALJ may not draw any inferences about an individual’s symptoms
and their functional effects from a failure to seek or pursue medical treatment without first
considering any explanations that might explain the failure to seek or pursue treatment.”
Beegle v. Soc. Sec. Admin., Comm’r, 482 F. App’x 483, 487 (11th Cir. 2012); see also SSR
16-3P (S.S.A. Oct. 25, 2017), 2017 WL 5180304, at *10 (providing that the Commissioner
(1) “will consider and address reasons for not pursuing treatment that are pertinent to an
individual’s case;” (2) “will review the case record to determine whether there are
explanations for inconsistencies in the individual’s statements about symptoms and their
effects, and whether the evidence of record supports any of the individual’s statements at
the time he or she made them;” and (3) “will explain how [the Commissioner] considered
the individual’s reasons in [the Commissioner’s] evaluation of the individual’s
symptoms”). “‘While failure to seek treatment is a legitimate basis to discredit the
testimony of a claimant, it is the law in this circuit that poverty excuses non-compliance
with prescribed medical treatment or the failure to seek treatment.’” McElroy v. Kijakazi,
No. 1:20-CV-1040-KFP, 2022 WL 3221222, at *5 (M.D. Ala. Aug. 9, 2022) (quoting Sims
v. Astrue, No. 3:09CV366-CSC, 2010 WL 2952686, at *5 (M.D. Ala. July 26, 2010)); see
also Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (“We agree with every
circuit that has considered the issue that poverty excuses noncompliance.”).
Therefore, an ALJ must consider whether the claimant can afford medical care
before denying an application primarily because the claimant failed to obtain or comply
with that medical care. Brown v. Comm’r of Soc. Sec., 425 F. App’x 813, 817 (11th Cir.
2011). “Nevertheless, if the claimant’s failure to follow medical treatment is not one of the
15

principal factors in the ALJ’s decision, then the ALJ’s failure to consider the claimant’s
ability to pay will not constitute reversible error.” Id. (citing Ellison v. Barnhart, 355 F.3d
1272, 1275 (11th Cir. 2003)). In other words, where the ALJ’s decision is not “primarily
... based on factors other than the claimant’s failure to obtain medical treatment,” then the
“ALJ’s failure to consider [the] claimant’s ability to pay [is] not reversible error.” Id.
(citing Ellison, 355 F.3d at 1275); see also Bellew v. Acting Com’r of Soc. Sec., 605 F.
App’x 917, 921 (11th Cir. 2015) (“Where the ALJ did not rely significantly on the
claimant’s noncompliance, ... the ALJ’s failure to consider evidence regarding the
claimant’s ability to afford her prescribed treatment does not constitute reversible error.”
(citing Ellison, 355 F.3d at 1275)).
It is undisputed that Derossett testified that she was unable to afford physical
therapy, her prescribed medication, and other medical care. It also cannot reasonably be
disputed that the ALJ relied on Derossett’s lack of medical treatment in discrediting her
subjective testimony as to the limiting effects of her symptoms and medical conditions.
(See, e.g., R. 21 (referring to “the claimant’s lack of regular treatment for musculoskeletal
complaints over the course of the period for review” in discounting Derossett’s subjective
testimony about the limiting effects of her symptoms and conditions)). Finally, although
the ALJ inquired into Derossett’s ability to afford medical care at the hearing, 13 it cannot
reasonably be disputed that, in relying on the lack of treatment to discount Derossett’s
subjective testimony about the limiting effects of her symptoms and conditions, the ALJ

13

In addition, in a December 21, 2021 letter to the ALJ, Derossett argued that, “because she was
no longer working,” she “had trouble ... obtaining medical treatment on a regular basis.” (R. 312.)
16

failed to mention, must less discuss, Derossett’s statements regarding her inability to afford
medical care. Therefore, the ALJ committed reversible error if the ALJ relied heavily on
the failure to obtain care.
Derossett’s testimony, if credited, demonstrates that her failure to seek more
extensive medical treatment was due to her inability to afford it. Neither could she afford
to undergo the full course of the recommended physical therapy that was predicted to
alleviate her symptoms. Yet, the majority of the factors on which the ALJ relied in
discounting Derossett’s subjective testimony about the limiting effects of her impairments
and symptoms were either directly related to or inextricably intertwined with Derossett’s
failure to obtain care. In determining that Derossett’s impairments were “not of a disabling
degree,” the ALJ expressly stated that she “c[ould] not ignore [Derossett’s] lack of regular
treatment for musculoskeletal complaints over the course of the period for review.” (R.
21.) The ALJ also noted that “there is no evidence of the claimant’s recurrent presentations
to the emergency room for exacerbations of her pain or other related symptoms.” (R. 22.)
The ALJ made no findings, however, as to the effect, if any, of Derossett’s alleged inability
to pay on her failure to obtain more regular treatment and make more emergency room
visits.
In addition to statements expressly relying on Derossett’s lack of consistent
treatment, the ALJ also heavily relied on the lack of objective medical findings in the record
that supported Derossett’s subjective testimony. The lack of supportive medical findings
in the record, in turn, is inextricably intertwined with the lack of ongoing treatment by
providers who could make those objective findings. Therefore, the lack of supportive
17

objective medical findings in the record is intertwined with Derossett’s testimony that she
could not afford (and did not obtain) medical care during the relevant time period because
she was unemployed and had minimal insurance.
Not coincidentally, the gap in the medical record extends for most of the relevant
time period, beginning in October 2020 when Derossett ceased going to physical therapy
(not long after the onset of symptoms and shortly after she stopped working as a
hairdresser), and continuing until Derossett’s August 2021 annual visit to her primary care
provider (which she testified was covered by insurance). Within this context, lack of ability
to afford care, if believed, could reasonably account for, or heavily contribute to, the
following reasons on which the ALJ relied in discounting Derossett’s subjective testimony:
“the record fails to suggest that [Derossett] experienced ongoing, substantial
musculoskeletal symptoms or abnormal findings that would be consistent with an
individual experiencing disabling functional limitations;” “diagnostic imaging of record
was not indicative of impairments that would produce disabling functional limitations;” 14
“the claimant has not been observed to have ongoing neurologic deficits in the upper or
14

The only diagnostic imaging the ALJ referenced was an x-ray of Derossett’s cervical spine that
Dr. Chitwood reviewed when he referred her to physical therapy. (R. 411.) As the ALJ
acknowledged, that x-ray “reflected [Derossett]’s degenerative disc disease at the C6-7 level with
a loss of the normal cervical lordosis.” (R. 20-22.) To the extent that any other diagnostic imaging
failed to confirm disabling functional limitations, the lack of additional confirmation is due to the
nonexistence of other diagnostic imaging, which, in turn, is consistent with Derossett’s alleged
financial inability to pursue more extensive treatment. The obvious connection between lack of
treatment and lack of more diagnostic imaging is further cemented by the fact that, in referring
Derossett to the course of physical therapy Derossett ultimately abandoned for financial reasons,
Dr. Chitwood indicated that, if Derossett did not improve, “the next step would be to get an MRI
of her neck.” (Id.) Again, Derossett’s testimony, if credited, would demonstrate that she could not
afford that “next step.”
18

lower extremities, such as reflex and sensory abnormalities, motor incoordination, or
significant decrease in muscle strength;” “surgical intervention has not been
recommended;” 15 “no muscle atrophy, persistent limitation of range of motion, or
significant spasm has been documented in the record;” 16 “there is no evidence that
15

The ALJ “emphasize[d] that surgical intervention” was never recommended. (R. 22.) Multiple
record sources indicate that Derossett was projected to improve with physical therapy. (See, e.g.,
R. 369, 372, 374, 376-77, 379, 381, 383, 385, 387; see also R. 388.) Dr. Blacklund noted in his
November 23, 2020 records-based medical evaluation that Derossett’s treatment with physical
therapy and some medication “does take time to help, and, if not, surgery would then be indicated.”
(R. 388.) However, Derossett testified that she could not afford to complete the recommended
course of physical therapy. (R. 38-40.) “It is true that ‘poverty excuses noncompliance’ with a
prescribed course of treatment, since to ‘a poor person, a medicine that he cannot afford to buy
does not exist[.]” Johnson v. Kijakazi, No. CV 2:20-00604-N, 2022 WL 4686922, at *11 (S.D.
Ala. Sept. 30, 2022) (quoting Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (quotation
omitted)). In any event, Derossett’s testimony, if credited, would demonstrate that she could not
afford to consult with a specialist about the advisability of surgery, or to pay for surgery.
16

Yet, at the initial physical therapy examination on September 22, 2020, the physical therapist
expressly noted the presence of “bilateral posterior deltoid” “muscle atrophy.” (R. 363, see also
R. 57, 64.) As the ALJ noted, Derossett
presented for an initial physical therapy evaluation with Dale Medical Center and
received assessments of cervical region radiculopathy, abnormal posture, and
weakness. Notations specifically referenced the claimant’s two- month history of
neck and arm pain with radiating symptoms into the distal left arm. On
examination, the claimant was found to have decreased range of motion; cervical
muscle strength at 3/5 or 3+/5; shoulder flexion at 4/5; shoulder external rotation
of 3+/5 and 3/5; and wrist extension of 4+/5. The claimant was also observed to
have positive neural tissue tension of the median nerve, positive cervical quadrant
testing on the left, and positive Spurling’s Maneuver testing on the left.
(R. 21.) Physical therapy notes over the course of her treatment documented problems with
“painful and decreased cervical [range of motion],” “abnormal cervical and thoracic posture,”
“poor postural control and awareness,” and “muscle imbalances causing weakness during
functional activities such as reaching, transfers, and gait.” (R. 362-65, 369, 372, 374, 376, 379,
381, 383, 385, 387.) These problems were improving (and were projected to continue to improve)
with physical therapy. (R. 372, 374, 376-77, 379, 381, 383, 385, 387.)
However, at Derossett’s most recent medical visit, her annual wellness check in August 2021, she
was observed to have intact bilateral muscle tone and strength, no joint swelling or deformity, and
a steady, unassisted gait. (R. 394.) Her polyosteoarthritis was noted to be stable on Celebrex. (Id.)
19

[Derossett] has experienced totally debilitating functional limitations as a result of any
musculoskeletal impairment;” “no treating or consultative 17 physician has persuasively
opined that [Derossett] possessed disabling functional limitations as a result of any
condition or from any resulting symptoms;” “there is no objective[18] documentation that
the claimant’s performance of daily activities has been substantially impaired due to her
diagnosed conditions;” and “the record fails to document persistent, reliable manifestations
of a disabling loss of functional capacity by the claimant resulting from her reported
symptomology.” (R. 21-22 (emphasis added).).

But see Smith v. Comm’r of Soc. Sec., No. 23-10157, 2024 WL 963725, at *4 (11th Cir. Mar. 6,
2024) (noting that “[w]hether a condition is ‘stable’ ... says little on its own about whether the
condition is disabling”). For her dorsalgia and polyosteoarthritis, the plan was to continue
treatment with Celebrex. (R. 395.) However, at the hearing before the ALJ, Derossett testified that
she could not afford Celebrex and that she had told her primary care doctor about her inability to
afford prescription medication. (R. 39-40.) Thus, to the extent the ALJ may have implied that she
relied on the findings from August 2021 regarding inconsistent objective findings as to muscle
tone and gait, the August 2021 findings nevertheless introduce a separate issue regarding which
the ALJ was required to discuss Derossett’s alleged inability to afford care.
17

It is undisputed that Derossett missed a consultative examination scheduled by the ALJ for
reasons unrelated to poverty. (R. 16.) The ALJ did not rely on Derossett’s failure to obtain a
consultative exam in discounting her subjective testimony about the limiting effects of her
impairments or in addressing the lack of medical evidence. Rather, the ALJ found that Derossett’s
full wellness examination performed in August 2021 was “an adequate substitute for the
consultative evaluation.” (R. 16.) In any event, the Commissioner does not argue that Derossett’s
failure to attend the consultative examination excuses the ALJ’s failure to address the impact of
Derossett’s alleged poverty on her claim.
18

This finding by the ALJ quite clearly addresses the lack of objective findings supporting
Derossett’s subjective statements as to her daily activities, not a finding that Derossett’s own
subjective statements regarding her daily activities are inconsistent with each other. Yet, the
Commissioner argues in its brief that Derossett’s own subjective description of her daily activities
in the October 21, 2020 form she submitted demonstrated that she was not as functionally limited
as she alleged. (Doc. No. 20 at 10.) This argument misses the mark. The ALJ did not rely on
Derossett’s own allegedly inconsistent subjective, self-reported daily activities to discredit either
Derossett’s subjective testimony about the limiting effects of her medical conditions or her
testimony that her failure to seek medical care was due to an inability to afford it.
20

These reasons all turn largely or entirely on lack of objective medical findings to
support Derossett’s subjective testimony, or on Derossett’s failure to obtain consistent
medical care. Yet, Derossett’s testimony, if believed, would establish that her inability to
afford consistent treatment played a significant role in the paucity of objective findings in
the medical record. Thus, the ALJ heavily relied on factors that are inextricably intertwined
with Derossett’s failure to obtain treatment and her testimony that she could not afford to
seek ongoing medical care. See Alisa M. v. Comm’r, Soc. Sec. Admin., No. 1:21-CV-559CCB, 2022 WL 16752091, at *6 (N.D. Ga. Sept. 30, 2022) (finding that, where “the ALJ
discredited Plaintiff’s testimony regarding the severity of her pain based on her lack of pain
medication ... , a lack of treatment from February of 2019 to March of 2020, and her daily
activities,” “Plaintiff’s gaps in treatment and lack of medication form at least a significant
basis for the denial of benefits such that the ALJ should have both determined whether
Plaintiff could afford the recommended surgeries and considered the reasons Plaintiff did
not take medication”); Wiedmeier v. Berryhill, No. 1:17-CV-256-AT, 2018 WL 6839259,
at *2 (N.D. Ga. Feb. 22, 2018) (determining that “the ALJ did rely ‘primarily’ on a lack of
treatment or other factors directly related to [the claimant’s] inability to afford treatment in
deciding to deny benefits” where “the inability to afford treatment played a significant role
in the ‘thinness’ of the record” such that three of four reasons the ALJ gave for the
credibility determination “potentially derive from Plaintiff’s inability to afford treatment;”
those four reasons were “lack of objective medical evidence;” (2) “no record of ongoing
complaints due to any impairment;” (3) “an unremarkable physical exam;” and (4) “the

21

claimant’s use of over-the-counter pain medication which, along with exercise, relieve her
pain” (internal quotation marks omitted)).
Further, as the ALJ noted, according to the most recent medical record available,
which was from Derossett’s August 2021 annual wellness visit, Derossett’s primary care
provider found her “polyarthritis/dorsalgia/polyosteoarthritis to be stable on Celebrex as
needed.” 19 (R. 21.) Nevertheless, at the hearing, Derossett testified that she could not afford
to take Celebrex, so she instead heavily relied on over-the-counter medications without
gaining sufficient relief. (R. 39-40.) In disregarding Derossett’s subjective testimony, the
ALJ noted: “there is no indication that [Derossett’s] impairments would be resistant to
either alleviation or control with the proper and regular use of the appropriate prescription
medications, if taken as prescribed.” (R. 22.) However, “‘[t]o a poor person, a medicine
that [s]he cannot afford to buy does not exist.’” McElroy, 2022 WL 3221222, at *5 (M.D.
Ala. Aug. 9, 2022) (quoting Dawkins, 848 F.2d at 1213 (quoting in turn Lovelace v. Bowen,
813 F.2d 55, 59 (5th Cir. 1987))). “Therefore, ‘when a “claimant cannot afford the
prescribed treatment and can find no way to obtain it, the condition that is disabling in fact
19

“Whether a condition is ‘stable’ ... says little on its own about whether the condition is
disabling,” as a condition may be “stable” at any functional level, even a low one. Smith v. Comm’r
of Soc. Sec., No. 23-10157, 2024 WL 963725, at *4 (11th Cir. Mar. 6, 2024). Moreover, to the
extent that there is any apparent conflict between the primary care provider’s finding that Derossett
was “stable on Celebrex” and Derossett’s testimony that she could not afford Celebrex, the ALJ
did not address any such conflict or even ask questions about it at the hearing. It is not the province
of this Court to reweigh the evidence and make credibility determinations, particularly where the
ALJ failed to address that evidence in the first place. See Bellew v. Acting Com’r of Soc. Sec., 605
F. App’x 917, 920 (11th Cir. 2015); see also Smith, 2024 WL 963725, at *3 (“The ALJ also must
state with some measure of clarity the grounds for her decision, and we will not affirm ‘simply
because some rationale might have supported the ALJ’s conclusions.’” (quoting Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011)).
22

continues to be disabling in law.”’” Id. (quoting Dawkins, 848 F.2d at 1213 (quoting in
turn Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986))).
As the Commissioner seems to allude to in his brief, before discussing her analysis
of whether the record supported Derossett’s subjective testimony about the limiting effects
of her impairments, the ALJ summarized the medical evidence of record. (R. 20-21.) In
discounting Derossett’s testimony, the ALJ remarked that she “acknowledge[d] the blend
of normal and abnormal examination findings when treatment was obtained.” (R. 21.)
However, under the circumstances, a summary of the sparse medical record, standing
alone, and an acknowledgement that even the sparse record contained mixed findings, is
not sufficient to overcome the ALJ’s failure to address Derossett’s inability to pay. On the
whole, the ALJ appears to have relied more on the lack of treatment and the lack of
objective medical findings in the record than on anything else, which, in turn, required the
ALJ to consider Derossett’s alleged inability to pay. See Alisa M. 2022 WL 16752091, at
*6 (finding that, although the ALJ summarized the objective medical evidence, which
contained both normal and abnormal results, the ALJ did not “explain which portions of it
support his disability determination. And while that is not generally necessary, in
comparing the objective bases for his decision with his emphasis on Plaintiff’s lack of
treatment, the lack of treatment seems to be an equal, if not greater, basis than anything
else he relied upon.”).
In sum, in discounting Derossett’s testimony as to the limiting effects of her
symptoms and conditions, the ALJ relied primarily on Derossett’s failure to obtain medical
care and on factors that are inextricably intertwined with that failure to obtain care.
23

Therefore, as a matter of law, the ALJ failed to correctly apply the law by failing to address
Derossett’s testimony regarding her inability to afford medical care and prescription
medications. Nunn v. Kijakazi, No. 2:20-CV-13, 2021 WL 3503957, at *3 (S.D. Ga. July
19, 2021), report and recommendation adopted, No. 2:20-CV-13, 2021 WL 3502255 (S.D.
Ga. Aug. 9, 2021) (“If the Commissioner fails either to apply correct legal standards or to
provide the reviewing court with the means to determine whether correct legal standards
were in fact applied, the court must reverse the decision.” (citing Wiggins v. Schweiker,
679 F.2d 1387, 1389 (11th Cir. 1982), overruling by statute on other grounds recognized
by Lane v. Astrue, No. 8:11-CV-345-T-27, 2012 WL 292637, at *4 (M.D. Fla. Jan. 12,
2012)); see also SSR 16-3P, 2017 WL 5180304, at *10 (providing the Commissioner (1)
“will consider and address reasons for not pursuing treatment that are pertinent to an
individual’s case” and (3) “will explain how [the Commissioner] considered the
individual’s reasons” in evaluating “the individual’s symptoms”).
Accordingly, the Commissioner’s decision is due to be reversed and this case is due
to be remanded for the Commissioner to consider whether (and, if so, how) 20 Derossett’s
testimony that she cannot afford medical care affected her non-compliance and whether

20

The Court does not here weigh the evidence regarding the relationship, if any, between
Derossett’s alleged inability to afford medical care and her failure to obtain that care, the paucity
of the record, or Derossett’s subjective statements regarding the limiting effects of her
impairments. The Court emphasizes that it does not require the ALJ to accept Derossett’s
allegation regarding her inability to afford medical treatment, but she is required to consider it in
accordance with evidence and applicable law. (R. 394.) The Court “express[es] no opinion on
whether [Derossett] can ultimately establish that she is disabled within the meaning of the Social
Security Act.” Arce v. Comm’r of Soc. Sec., No. 23-11315, 2024 WL 36061, at *2 (11th Cir. Jan.
3, 2024).
24

her RFC requires further adjustments in light of that determination. See Nunn, 2021 WL
3503957, at *5 (S.D. Ga. July 19, 2021), report and recommendation adopted, No. 2:20CV-13, 2021 WL 3502255 (S.D. Ga. Aug. 9, 2021) (recommending remand where “the
ALJ did not acknowledge, let alone discuss, what effect Plaintiff’s inability to pay for
treatment had on her non-compliance with medical treatment”); see also Jackson, 99 F.3d
at 1092 (11th Cir. 1996) (noting that a case may be remanded to the Commissioner for a
rehearing under sentence four of 42 U.S.C. § 405(g) if the court finds “the Commissioner
or the ALJ incorrectly applied the law relevant to the disability claim”).
B.

Remaining Arguments
Derossett also argues that the case should be remanded because, for various reasons,

in discounting Derossett’s subjective testimony, the ALJ improperly “played doctor” by
making findings that should have been made by a medical provider. (Doc. No. 17 at 15.)
Additionally, Derossett argues that the Commissioner failed to develop the record by not
including in the record initial-level medical record reviews from November 2020 that were
completed by Drs. Alton James and Donald Hinton, along with two initial level disability
findings. (Docs. No. 17-1 through 17-4.) Alternatively, Derossett argues that the case
should be remanded pursuant to sentence six of 42 U.S.C. § 405(g) because the exhibits
from the initial-level review that had been omitted from the record constitute new and
material evidence that was omitted from the record for good cause. See Ingram v. Comm’r
of Soc. Sec. Admin., 496 F.3d 1253, 1267 (11th Cir. 2007) (“A remand to the Commissioner
is proper under sentence six when new material evidence that was not incorporated into the
administrative record for good cause comes to the attention of the district court.”).
25

Because remand is necessary, the Court does not reach Derossett’s arguments with
respect to these issues.
VI.

CONCLUSION

After review of the administrative record, and considering all the arguments, the
Court finds that Commissioner’s decision to deny Derossett disability is not in accordance
with applicable law. Therefore, it is ORDERED as follows:
1.

Derossett’s motion for summary judgment (Doc. No. 17) is GRANTED.

2.

The Commissioner’s motion for summary judgment (Doc. No. 20) is
DENIED.

3.

The decision of the Commissioner is REVERSED and REMANDED for
further proceedings not inconsistent with this opinion.

A separate judgment will issue.
DONE this 26th day of March, 2024.

___________________________________
JERUSHA T. ADAMS
UNITED STATES MAGISTRATE JUDGE

26