Brown v. Colvin(CONSENT)

Filing 17

MEMORANDUM OPINION: For the reasons stated, the decision of the Commissioner is REVERSED and this case is REMANDED to the Commissioner for the ALJ to reevaluate Plaintiff's severe and non-severe impairments, including consideration of whether Pl aintiff's noncompliance with medication for hypertension was an excusable result of Plaintiff's inability to afford medication. Additionally, in consideration of all of Plaintiff's severe impairments, the ALJ should reevaluate whether Plaintiff meets paragraph C of the listing 12.05. A separate judgment will issue. Signed by Honorable Judge Wallace Capel, Jr. on 9/23/2014. (dmn, )

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

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CIVIL ACTION NO.: 2:13cv621-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff, James E. Brown, applied for supplemental security income benefits. His

application was denied at the initial administrative level. Plaintiff then requested and
received a hearing before an Administrative Law Judge (“ALJ”). Following the hearing,
the ALJ issued a decision finding Plaintiff not disabled at any time through the date of the
decision.

Plaintiff appealed that decision to the Appeals Council, which rejected

Plaintiff’s request for review.

The ALJ’s decision consequently became the final

decision of the Commissioner of Social Security (“Commissioner”).1 See Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The case is now before the court for review
under 42 U.S.C. § 405(g). Pursuant to 28 U.S.C. § 636(c), both parties have consented to

1

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103296, 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.

the conduct of all proceedings and entry of a final judgment by the undersigned United
States Magistrate Judge. Pl.’s Consent to Jurisdiction (Doc. 10); Def.’s Consent to
Jurisdiction (Doc. 9). Based on the court’s review of the record and the briefs of the
parties, the court REVERSES the decision of the Commissioner.
II.

STANDARD OF REVIEW
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to 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.
42 U.S.C. § 423(d)(1)(A).2
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2011).
(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 [the Listing of
Impairments]?
(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.”
2

A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological
abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.

2

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). A claimant establishes a prima facie case of
qualifying disability once they have carried the burden of proof from Step 1 through Step
4. At Step 5, the burden shifts to the Commissioner, who must then show there are a
significant number of jobs in the national economy the claimant can perform. Id.
To perform the fourth and fifth steps, the ALJ must determine the claimant’s
Residual Functional Capacity (RFC). Id. at 1238-39. The RFC is what the claimant is
still able to do despite the claimant’s impairments and is based on all relevant medical
and other evidence. Id. It can contain both exertional and nonexertional limitations. Id.
at 1242-43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and
work experience to determine if there are jobs available in the national economy the
claimant can perform. Id. at 1239. To do this, the ALJ can either use the Medical
Vocational Guidelines4 (grids) or call a vocational expert (VE). Id. at 1239-40.
The grids allow the ALJ to consider factors such as age, confinement to sedentary
or light work, inability to speak English, educational deficiencies, and lack of job
experience. Each factor can independently limit the number of jobs realistically available

3

McDaniel 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).

4

See 20 C.F.R. pt. 404 subpt. P, app. 2.

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to an individual. Phillips, 357 F.3d at 1240. Combinations of these factors yield a
statutorily-required finding of “Disabled” or “Not Disabled.” Id.
The court’s 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); see also Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (“Even if the evidence
preponderates against the Commissioner’s findings, [a reviewing court] must affirm if the
decision reached is supported by substantial evidence.”). A reviewing court may not look
only to those parts of the record which support 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).

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III.

ADMINISTRATIVE PROCEEDINGS
Plaintiff was forty-six years old at the time of the decision and completed high

school through a special education program.

Tr. 29.

Following the administrative

hearing and employing the five-step process, the ALJ found Plaintiff “has not engaged in
substantial gainful activity since November 2, 2009, the application date” (Step 1). Tr.
20. At Step 2, the ALJ found that Plaintiff suffers from severe impairments of “mild
mental retardation,” and “non[]severe impairments of history of asthma . . . , history of
cocaine induced cardiac events with no residual limitations, hypertension, mild
expressive language disorder, history of polysubstance abuse, and uncomplicated right
inguinal hernia with no more than mild limitations.” Id. The ALJ then found that
Plaintiff “does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments” (Step 3). Tr. 22. Next,
the ALJ found that Plaintiff has the RFC “to perform a full range of work at all exertional
levels but with the following considerations and limitations: unskilled work with no
more than two or three step processes, no work at unprotected heights, and no work with
hazardous machinery.” Tr. 24. After consulting the VE, the ALJ concluded that Plaintiff
“has no past relevant work” (Step 4). Tr. 29.

At Step 5, the ALJ found that,

“[c]onsidering the claimant’s age, education, work experience, and residual functional
capacity,” and after consulting with the VE, “there are jobs that exist in significant
numbers in the national economy that the claimant can perform.” Id. The ALJ identified
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the following occupations as examples: “grocery bagger,” “dining room attendant,” and
“laundry worker.” Id. Accordingly, the ALJ determined that Plaintiff “has not been
under a disability, as defined in the Social Security Act, since November 2, 2009.” Tr.
30.
IV.

PLAINTIFF’S CLAIMS
Plaintiff presents three issues for this court’s consideration in review of the ALJ’s

decision: (1) whether “[t]he Commissioner’s decision should be reversed because the
ALJ failed to apply the correct legal standards in evaluating [Plaintiff]’s mild mental
retardation”; (2) whether “[t]he Commissioner’s decision should be reversed because the
ALJ erred in finding that [Plaintiff] failed to suffer from a medically severe physical
impairment or combination thereof”; and (3) whether “[t]he Commissioner’s decision
should be reversed because the ALJ made internally inconsistent administrative findings
with respect to the medical opinions expressed by Dr. Adediji.” Pl.’s Br. (Doc. 12) at 3.
Because the court determines the second issue requires remand for further proceedings,
the court declines to address issues one and three at this time.
V.

DISCUSSION
Plaintiff argues that “the ALJ erred in finding that [Plaintiff] failed to suffer from a

medically severe physical impairment or combination thereof.” Pl.’s Br. (Doc. 12) at 6.
Specifically, Plaintiff argues that “the only medical doctor of record to express [a]
medical opinion[] regarding the work-place limitations imposed by [Plaintiff]’s physical
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limitations” opined that Plaintiff’s “asthma, hypertension, and uncomplicated right
inguinal hernia produce work-place limitations of function that rise above minimal
effects.” Id. at 8. In response, Defendant argues that “the ALJ reasonably considered
Plaintiff’s other alleged impairments and provided a detailed explanation for why he
deemed them not to be of a ‘severe’ nature under the Act.” Def.’s Br. (Doc. 15) at 9.
A claimant has the “burden of showing her impairment is ‘severe’ within the
meaning of the Act.” McDaniel v. Bowen, 800 F.2d 1026,1030-31 (11th Cir. 1986)
(“Unless a claimant can prove, as early as step two, that she is suffering from a severe
impairment, she will be denied disability benefits”).
Step two is a threshold inquiry. It allows only claims based on the most
trivial impairments to be rejected. The claimant’s burden at step two is
mild. An impairment is not severe only if the abnormality is so slight and
its effect so minimal that it would clearly not be expected to interfere with
the individual’s ability to work, irrespective of age, education or work
experience. Claimant need show only that her impairment is not so slight
and its effect is not so minimal.
Id.
Regarding Plaintiff’s alleged asthma, the ALJ found asthma to be a non-severe
impairment because there were no current findings to support Plaintiff’s allegation. Tr.
20. Specifically, the ALJ pointed to (1) a lack of any records showing emergency room
visits or hospitalizations for asthma; (2) multiple evaluations by physicians who found
Plaintiff’s lungs and breathing to be normal; (3) Plaintiff’s continued tobacco use; and (4)
Plaintiff’s “fail[ure] to give adequate effort on pulmonary function testing.” Id.
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The

court finds this to be sufficient to show that Plaintiff’s alleged asthma was so slight and
its effect so minimal that it would clearly not be expected to interfere with Plaintiff’s
ability to work. The ALJ’s determination that Plaintiff’s alleged asthma was a nonsevere impairment is supported by substantial evidence, and thus no error occurred.
Regarding Plaintiff’s alleged hernia, the ALJ found it to be a non-severe
impairment because of the inconsistencies in Plaintiff’s complaints and the medical
evidence and because the hernia caused Plaintiff “no more than mild limitations.” Tr. 22.
Specifically, the ALJ relied on (1) Plaintiff’s inconsistent statements regarding his ability
to lift; (2) the fact that, of all the physicians to which Plaintiff reported, Plaintiff only
informed Dr. Adediji of the alleged hernia; and (3) Dr. Adediji’s finding that Plaintiff is
capable of performing at a medium exertional level, even in consideration of Plaintiff’s
subjective complaints of the hernia. Id. The court finds this to be sufficient to show that
Plaintiff’s alleged hernia was so slight and its effect so minimal that it would clearly not
be expected to interfere with Plaintiff’s ability to work. Thus, the ALJ’s determination
that Plaintiff’s alleged hernia was a non-severe impairment is supported by substantial
evidence, and no error occurred.
However, as to Plaintiff’s hypertension, the ALJ stated that Plaintiff’s records
show a diagnosis of hypertension as far back as September 2009. Tr. 21. Additionally,
the ALJ noted that Plaintiff “is found to have hypertension for many years” and sought
treatment for that condition at times.

Id.
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The ALJ then asserts that Plaintiff’s

hypertension is not a severe impairment because “[Plaintiff] is noncompliant with
treatment, medication, and cessation of tobacco use; however, but [sic] he has not
suffered any end organ damage as a result of his hypertension.” Id.
There are two main problems with the ALJ’s finding that Plaintiff’s hypertension
is not a severe impairment. First, the ALJ’s assertion that Plaintiff did not suffer from
hypertension as a severe impairment because he “has not suffered any end organ damage
as a result of his hypertension” is incorrect as a matter of law. “A Claimant need show
only that her impairment is not so slight and its effect is not so minimal.” McDaniel, 800
F.2d at 1030. There is no requirement that a medical condition cause organ damage in
order to constitute a severe impairment. Thus, the ALJ’s reliance on a lack of organ
damage was error.
Second, while the ALJ appears to have relied heavily on Plaintiff’s noncompliance
with treatment and medication for hypertension, the ALJ never made any finding that
Plaintiff’s hypertension would have improved with the prescribed treatment and
medication. “In order to deny benefits on the ground of failure to follow prescribed
treatment, the ALJ must find that had the claimant followed the prescribed treatment, the
claimant’s ability to work would have been restored.” Dawkins v. Bowen, 848 F.2d 1211,
1213 (11th Cir. 1988). Here, the ALJ gives no indication as to whether Plaintiff’s
hypertension can be reasonably remedied through treatment and medication, and the
court will not speculate.
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Further, even if compliance with treatment and medication would have reasonably
remedied Plaintiff’s hypertension, the ALJ’s analysis cannot end there. While failure to
seek treatment is a legitimate basis to discredit the testimony of a Plaintiff, 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
ALJ was required to consider the reasons for Plaintiff’s noncompliance; however, here
the ALJ does not appear to have given any consideration to whether Plaintiff’s
noncompliance was a result of his inability to pay.
Because the ALJ’s finding concerning the lack of “end organ damage as a result of
his hypertension” is incorrect as a matter of law and in light of medical records indicating
that Plaintiff was diagnosed with, and received at least some medical treatment for, his
hypertension, the court cannot conclude that the ALJ’s determination that his
hypertension is a non-severe impairment is supported by substantial evidence.

On

remand, the ALJ should reevaluate Plaintiff’s severe and non-severe impairments,
including consideration of whether Plaintiff’s compliance with treatment would have
reasonably remedied Plaintiff’s hypertension and whether Plaintiff’s noncompliance with
medication for hypertension was an excusable result of Plaintiff’s inability to afford
medication. Additionally, in consideration of all of Plaintiff’s severe impairments, the
ALJ should reevaluate whether Plaintiff meets paragraph C of the listing 12.05.

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V.

CONCLUSION
For the reasons stated above, the decision of the Commissioner is REVERSED

and this case is REMANDED to the Commissioner for the ALJ to reevaluate Plaintiff’s
severe and non-severe impairments, including consideration of whether Plaintiff’s
noncompliance with medication for hypertension was an excusable result of Plaintiff’s
inability to afford medication. Additionally, in consideration of all of Plaintiff’s severe
impairments, the ALJ should reevaluate whether Plaintiff meets paragraph C of the
listing 12.05. A separate judgment will issue.
Done this 23rd day of September, 2014.
/s/ Wallace Capel, Jr.
WALLACE CAPEL, JR.
UNITED STATES MAGISTRATE JUDGE

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