Dickert v. Colvin (CONSENT)

Filing 15

MEMORANDUM OPINION. This case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion. A separate order will be entered. Signed by Honorable Judge Terry F. Moorer on 3/14/2014. (dmn, )

IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JON SCOTT DICKERT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CIV. ACT. NO. 2:13cv447-TFM
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(WO)
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MEMORANDUM OPINION
I. Procedural History
Plaintiff Jon Scott Dickert (“Dickert”) applied for disability insurance benefits
pursuant to Title II of the Social Security Act, 42 U.S.C. ' 401 et seq., and supplemental
security income benefits pursuant to Title XVI, 42 U.S.C. § 1381 et seq., alleging that he
is unable to work because of a disability. His application was denied at the initial
administrative level.

The plaintiff then requested and received a hearing before an

Administrative Law Judge (“ALJ”). Following the hearing, the ALJ concluded that
Dickert was not under a “disability” as defined in the Social Security Act. The ALJ,
therefore, denied the plaintiff’s claim for benefits. The Appeals Council rejected a
subsequent request for review.

Consequently, the ALJ’s decision became the final

decision of the Commissioner of Social Security (“Commissioner”).1 See Chester v.
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Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108
Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social Security matters were
transferred to the Commissioner of Social Security.

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Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Pursuant to 28 U.S.C. § 636(c), the parties
have consented to entry of final judgment by the United States Magistrate Judge. The
case is now before the court for review pursuant to 42 U.S.C. §§ 405(g) and 1631(c)(3).
Based on the court’s review of the record in this case and the parties’ briefs, the court
concludes that the Commissioner’s decision should be REVERSED and REMANDED.
II. Standard of Review
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when
the person is unable 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 . . .
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920.
(1) Is the person presently unemployed?
(2) Is the person’s impairment severe?
(3) Does the person's impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
“not disabled.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).2

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McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI). The same
sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as authority in
Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

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The standard of review of the Commissioner’s decision is a limited one. This
court must find the Commissioner’s decision conclusive if it is supported by substantial
evidence. 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997).
“Substantial evidence is more than a scintilla, but less than a preponderance. It is such
relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). A reviewing court may
not look only to those parts of the record which supports the decision of the ALJ but
instead must view the record in its entirety and take account of evidence which detracts
from the evidence relied on by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir.
1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner’s] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner’s] . . . legal
conclusions, including determination of the proper standards to be applied
in evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. The Issues
A.

Introduction

Dickert was 47 years old at the time of the hearing and is a high school graduate.
(R. 49, 52). He has prior work experience as forklift operator and laborer. (R. 53).
Dickert alleges that he became disabled on January 8, 2010 due to pulmonary problems,
broken ankle, facial fractures, depression, anxiety, splenectomy, neck pain, and memory
problems. (R. 57-58, 140, 168-69). After the hearing on October 24, 2011, the ALJ
found that Dickert suffers from anxiety disorder, cognitive disorder, dyssomnia, status
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post left ankle fracture, hypertension, and tachycardia. (R. 34, 49). The ALJ determined
that Dickert retains the residual functional capacity to perform sedentary work except that
he should never climb ropes, ladders, or scaffolding; he should avoid concentrated fumes;
he must elevate his left ankle during regularly scheduled breaks; and he requires
supportive feedback when receiving criticism from a supervisor. (R. 37). In addition, the
ALJ found that he is able to occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, crawl, and push or pull leg controls with his left leg; perform simple, routine
tasks; sit for eight hours in an eight-hour workday; stand or walk no more than one hour
during an eight-hour workday; frequently lift or carry up to ten pounds; maintain
concentration for up to two hours; have brief superficial contact with the public; work
independently; and adapt to minimal changes in a work setting. (Id.). Testimony from a
vocational expert led the ALJ to conclude that a significant number of jobs exist in the
national economy that Dickert can perform, including work as a circuit board assembler
and bonder. (R. 41). Accordingly, the ALJ concluded that Dickert is not disabled. (R.
42).
B. The Plaintiff’s Claims
Dickert presents the following issues for review:
(1)

The Commissioner’s decision should be reversed because the ALJ
failed to follow the “slight abnormality” standard in finding that
Dickert’s degenerative disc disease in his cervical spine is nonsevere.

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(2)

The Commissioner’s decision should be reversed because the ALJ’s
finding that Dickert is capable of performing sedentary work is not
supported by substantial evidence.

(3)

The Commissioner’s decision should be reversed because the ALJ
failed to properly consider Dickert’s credibility.

(Doc. No. 12, Pl’s Br. 3).
IV. Discussion
Dickert raises several issues and arguments related to this court’s ultimate inquiry
of whether the Commissioner’s disability decision is supported by the proper legal
standards and by substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11th Cir.
1987). However, the court pretermits discussion of several of the plaintiff’s specific
arguments because the court concludes that the Commissioner erred as a matter of law,
and thus, this case is due to be remanded for further proceedings. Specifically, the court
finds that the ALJ failed to consider Dickert’s spinal condition as a severe impairment,
failed to consider this impairment singularly and/or in combination with his other
impairments when determining his residual functional capacity to perform work, and
failed to consider his inability to afford treatment when discrediting his testimony based
on the lack of medical records.
First, the court concludes that the ALJ erred in determining that Dickert’s neck
and back condition is a non-severe impairment. At Step Two of the sequential analysis,
the ALJ found that “the medical evidence of record does not include evidence to support
these allegations [and] [t]herefore the claimant’s alleged neck and back pain are not
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medically determinable impairments.” (R. 34). The severity step is a threshold inquiry
which allows only “claims based on the most trivial impairment to be rejected.”
McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). Indeed, a severe impairment
is one that is more than “a slight abnormality or combination of slight abnormalities
which would have no more than a minimal effect on an individual’s ability to work.”
Bowen v. Yuckert, 482 U.S. 137, 154 n. 12 (1987) (citing with approval Social Security
Ruling 85-28 at 37a).
A physical or mental impairment is defined as “an impairment that results from
anatomical, physiological or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.”
1382c(a)(3)(c).

42 U.S.C. §

The plaintiff has the “burden of showing that his impairments are

‘severe’ within the meaning of the Act.” McDaniel, 800 F.2d at 1030-31. Once the
plaintiff establishes that he suffers from a severe impairment, the ALJ is not entitled to
ignore that evidence.
The medical records include the results of a computerized tomography (“CT
scan”) of the cervical spine without contrast administered at Piedmont Hospital on
January 8, 2010. (R. 247). The radiologist found a fusion anomaly both anteriorly and
posterior at C2-C3; cervical spondylosis with degenerative disc and facet disease;
prominent posterior spurring at C5-C6; and multilevel spinal stenosis including C3-C4,
C4-C5, and C5-C6. (R. 247). Dr. John R. McNair’s diagnostic impression was (1)
spondylosis with multilevel bulging annuli and multilevel spinal stenosis with possible
cord flattening or even mild cord compression at multiple levels and (2) developmental
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fusion anomaly at C2-C3. (R. 247). The radiologist noted that the “cord and cervical
subarachnoid spaces are not assessed on this study [and] [i]f concern for cord pathology,
MRI is recommended.”3 (Id.). The ALJ, however, ignored this objective evidence. This
court, therefore, cannot conclude that the ALJ’s determination that Dickert’s spinal
condition “is not a medically determinable impairment” is supported by substantial
evidence.
Further, this court is unable to determine whether the ALJ properly considered the
effects of Dickert’s mental and physical impairments on his ability to perform work
because the ALJ ignored evidence that Dickert suffers from a spinal condition. The ALJ
must consider every impairment alleged by the plaintiff and determine whether the
alleged impairments are sufficiently severe – either singularly or in combination – to
create a disability. See Gibson v. Heckler, 755 F.2d 781, 785 (11th Cir. 1985). In light of
the ALJ’s failure to fully and fairly consider the evidence in the record of Dickert’s spinal
condition, the court concludes the ALJ failed to meet his burden in this regard. As a
result of the failure to consider all of Dickert’s impairments in combination, doubt is
necessarily cast upon the ALJ’s conclusion that Dickert is not disabled.
In addition, the court concludes that the ALJ failed to consider Dickert’s inability
to afford medical treatment when determining Dickert has the residual functional
capacity to perform sedentary work.

The ALJ discredited Dickert’s allegations of

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The record does not include an MRI of the plaintiff’s cervical spine. On remand, the court suggests that the
Commissioner fully develop the record concerning the severity of Dickert’s spinal condition by securing a
consultative examination or additional testing by a medical specialist. It is error for the ALJ to fail to obtain
additional testing or otherwise develop the evidence, if that information is necessary to make an informed decision.
See Holladay v. Bowman, 848 F.2d 1206, 1209 (11th Cir. 1988).

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disabling symptoms based on a lack of medical treatment. While the 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. Dawkins v. Bowen, 848 F.2d 1211 (11th Cir. 1988).
The medical records are replete with references to Dickert’s inability to afford
treatment. For example, on February 17, 2010, an occupational therapist noted that
“funding may be an issue.” (R. 361). On March 13, 2010, a psychiatrist at Grady
Hospital noted that Dickert does not have health insurance but that “his mother is willing
to pay out of pocket [for alcohol rehabilitation] within reason.” (R. 346, 351-52). On
July 21, 2010, a consultative psychologist found that Dickert is no longer taking his
prescribed medications, including Vicodin for pain, Metipranolol for blood pressure, and
Seroquel to facilitate sleep, because he is unable to afford them. (R. 401). In a letter
dated June 16, 2011, Dr. Richard V. Meadows, a family practitioner, states that “it is very
apparent that [Dickert] has difficulty with supraventricular tachycardia,” that Dickert told
him that he “has been out of his medicine for some time [and has] been trying to make it
stretch,” and that he “admonished him to not ever run out of it again.” (R. 441).
In addition, Dickert testified that he did not continue sessions with a physical
therapist after his hospitalization because he does not have health insurance. (R. 59).
The record also includes a letter from the Office of United States Representative Martha
Roby to a representative at the Social Security Administration, which states that “[t]his is
a dire need case[, that] he has no health insurance and [that he] cannot go to the [doctor].”
(R. 150).
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Despite recommendations concerning the need for continued medical treatment
and notations indicating Dickert is uninsured and unable to afford treatment, the ALJ did
not properly consider whether Dickert’s financial condition prevented him from seeking
medical treatment. Thus, the court cannot conclude that the ALJ’s discrediting of Dickert
based on his failure to seek treatment is supported by substantial evidence.
V.

Conclusion

Accordingly, this case will be reversed and remanded to the Commissioner for
further proceedings consistent with this opinion.
A separate order will be entered.
Done this 14th day of March, 2014.

/s/Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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