Jemison v. Colvin

Filing 13

MEMORANDUM OPINION. Signed by Honorable Judge Terry F. Moorer on 2/10/15. (djy, )

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

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CIVIL ACTION NO. 2:14cv645-TFM
(WO)

MEMORANDUM OPINION
I. PROCEDURAL HISTORY
The plaintiff, Misty Ann Jemison (“Jemison”), applied for disability benefits pursuant
to Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and for supplemental security

income benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq.,
on July 30, 2009, alleging that she is unable to work because of a disability. Jemison’s
application was denied at the initial administrative level. Jemison then requested and
received a hearing before an Administrative Law Judge (“ALJ”). Following the hearing on

December 6, 2010, the ALJ determined that Jemison is not disabled. Jemison submitted a
request for review to the Appeals Council. Upon considering Jemison’s request, the Appeals
Council vacated the ALJ’s decision and remanded the case with directions that the ALJ
should conduct further proceedings and issue a new decision. A supplemental hearing was
conducted on June 19, 2012. Following this proceeding, the ALJ denied the claim. The
Appeals Council rejected a subsequent 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 parties have consented to the
undersigned United States Magistrate Judge rendering a final judgment in this lawsuit. The
court has jurisdiction over this lawsuit under 42 U.S.C. §§ 405(g) and 1383(c)(3).2 Based
on the court’s review of the record in this case and the briefs of the parties, the court
concludes that the decision of the Commissioner is due to 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,3 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?
1

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.
2

Title 42 U.S.C. §§ 405(g) and 1383(c)(3) allow a plaintiff to appeal a final decision of the
Commissioner to the district court in the district in which the plaintiff resides.
3

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

2

(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).4
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 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).

4

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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III. INTRODUCTION
A. The Commissioner’s Decision
Jemison was 38 years old at the supplemental hearing before the ALJ and has
completed the twelfth grade. R. 55. She alleges that she became disabled on June 15, 2009,
due to degenerative disc disease, sciatic nerve problems, COPD, bronchitis, bipolar disorder,
depression, generalized anxiety disorder, obsessive compulsive disorder, and agoraphobia.
R. 52. After the supplemental hearing, the ALJ found that Jemison suffers from severe
impairments of degenerative disc disease; degenerative joint disease; bipolar disorder;
personality disorder; agoraphobia; chronic depression; and chronic obstructive pulmonary
disease. R. 24. He also found that she suffers from substance abuse as a non-severe
impairment, specifically noting that the objective medical evidence indicates the condition
is in remission. R. 25.
The ALJ found that Jemison is unable to perform her past relevant work, but that she
retains the residual functional capacity (“RFC”) to perform light work with the following

exceptions:
. . . [T]he claimant is precluded from climbing ladders, ropes, and
scaffolds. The claimant can occasionally climb ramps and stairs. The
claimant can occasionally balance, kneel, crouch, crawl, and stoop. The
claimant must avoid concentrated exposure to humidity and wetness. The
claimant can have no exposure to dangerous machinery or unprotected
heights. The claimant cannot operate a motor vehicle. The claimant cannot
work around large open bodies of water. During a regular scheduled workday
or equivalent thereof, the claimant can understand and remember short and
simple instructions. The claimant can do simple, routine, repetitive tasks, but
she is unable to do so with detailed or complex tasks. The claimant can have
occasional and casual contact with the general public and occasional contact
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with co-workers. The claimant can perform work in a well-spaced work
environment. The claimant can deal with changes in the work place, if
introduced occasionally and gradually. The claimant will miss one to two
days of work per month due to psychological symptoms. The claimant must
be reminded of tasks two times per shift.
R. 27. Testimony from a vocational expert led the ALJ to conclude that a significant number
of jobs exists in the national economy that Jemison could perform, including work as a
marker, laundry classifier, and folder. R. 38. Accordingly, the ALJ concluded that Jemison
is not disabled. R. 38-39.
B. The Plaintiff’s Claims
Jemison presents the following issues for review:
(1)

The Commissioner’s decision should be reversed, because the
ALJ failed to properly consider the side effects of Jemison’s
prescribed medications upon her ability to work.

(2)

The Commissioner’s decision should be reversed, because the
ALJ’s evaluation of the medical opinions of record with respect
to Jemison’s mental impairments lacks the support of substantial
evidence.

(R. 8).
IV. DISCUSSION
Jemison asserts that the ALJ improperly discounted the opinion of her treating
physician, Dr. Pantaleone. In addition, she contends that the ALJ erred in assigning
significant weight to the opinion of Dr. W.G. Brantley, a consultative psychologist, without
resolving inconsistencies between his opinion and the conflicting opinions of Dr. Larry H.
Dennis, Dr. Daniel Clark, and Dr. Arnold Mendingall.

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The law is well-settled; the opinion of a claimant’s treating physician must be
accorded substantial weight unless good cause exists for not doing so. Jones v. Bowen, 810
F.2d 1001, 1005 (11th Cir. 1986); Broughton v. Heckler, 776 F.2d 960, 961 (11th Cir. 1985).
The Commissioner also demonstrates a similar preference for the opinion of treating
physicians.
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations,
such as consultive examinations or brief hospitalizations.
Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (citing 20 CFR § 404.1527 (d)(2)).
The ALJ’s failure to give considerable weight to the treating physician’s opinion is reversible
error. Broughton, 776 F.2d at 961-2; Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir. 1982).
However, there are limited circumstances when the ALJ can disregard the treating
physician’s opinion. The requisite “good cause” for discounting a treating physician’s
opinion may exist where the opinion is not supported by the evidence, or where the evidence
supports a contrary finding. See Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987).
Good cause may also exist where a doctor’s opinions are merely conclusory; inconsistent
with the doctor’s medical records; or unsupported by objective medical evidence. See Jones
v. Dep’t. of Health & Human Servs., 941 F.2d 1529, 1532-33 (11th Cir. 1991); Edwards v.
Sullivan, 937 F.2d 580, 584-85 (11th Cir. 1991); Johns v. Bowen, 821 F.2d 551, 555 (11th
Cir. 1987). The weight afforded to a physician’s conclusory statements depends upon the

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extent to which they are supported by clinical or laboratory findings and are consistent with
other evidence of the claimant’s impairment. Wheeler v. Heckler, 784 F.2d 1073, 1075 (11th
Cir. 1986). The ALJ “may reject the opinion of any physician when the evidence supports
a contrary conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1240 (11th Cir. 1983). The
ALJ must articulate the weight given to a treating physician’s opinion and must articulate any
reasons for discounting the opinion. Schnorr, 816 F.2d at 581.
After reviewing the medical records, the ALJ discounted Dr. Pantaleone’s opinion that
the side effects of Jemison’s medication would adversely affect her ability to work because
his opinion “is not consistent with his findings or the objective medical evidence; and

therefore assigned little weight.” R. 35. The medical records indicate that Jemison has
received extensive treatment from Dr. Nicholas C. Pantaleone, a doctor of internal medicine,
on a routine basis from 1998 through 2014. R. 520-25, 806-837, 900-903, 1095-1100, 114551. During the relevant time period, Dr. Pantaleone repeatedly diagnosed Jemison as
suffering from a disc bulge at C5/6, bipolar depression, obsessive compulsive disorder,
generalized anxiety disorder, COPD, and agoraphobia. Id. He also routinely prescribed
Lortab, Soma, Xanax, Percocet, Adderall, Pristiq, and other medications to treat her
symptoms. R. 424-479, 900-903, 1095-1100, 1118-20, 1145-51.
Jemison also received treatment at Grandview Behavioral Health Center in 2008 and
2009. A mental health specialist diagnosed Jemison with bipolar disorder II. R. 794-95, 80102. On June 9, 2009, the psychiatrist noted that Jemison’s increased anxiety was possibly due
to her dosage of Adderall. R. 797. On August 6, 2009, the psychiatrist noted that Jemison
7

was unable to stop crying and “just wants to sleep” and that she had stopped taking Adderall.
R. 798. The psychiatrist admitted Jemison into the hospital. Id.
After spending two days at Meadhaven Hospital, Jemison returned to Grandview
Behavioral Center for a follow-up appointment on August 25, 2009. R. 799. The psychiatrist
found that Jemison had poor concentration, severe anxiety, and a fair energy level. Id.
On October 23, 2009, Dr. Brantley, a psychologist, conducted a consultative mental
health evaluation, in which he found that Jemison was under the influence of medication.
R. 840-41. He noted that Jemison was “lethargic” and “sedated.” R. 840. Dr. Brantley also
found that Jemison’s “thought processing showed sedation” and cautioned that “[s]omatic
concerns and need for redundant pain medications would need MD confirmation.” R. 841.
He also found that if Jemison were “not sedated she would have presented normal” and that
her “judgment and insight are optimized if not abusing substances and medications” and
“degree of impairment is not severe or marked.” Id. Dr. Brantley concluded that Jemison
is “cognitively stable and lethargic due to drug use,” that “[a]t work she would have no
difficulty with coworkers, supervisors and the public, if not abusing meds,” and that
“[c]ooperation showed inconsistencies . . . that bordered on Malingering.” R. 841. His
diagnostic impression was (1) Bipolar II; (2) Polysubstance Abuse and Dependence of
prescription and non-prescription drugs; (3) separate Anxiolytic Dependence longstanding;
and (4) Personality Disorder NOS with Cluster B features. R. 841.
On November 6, 2009, Dr. Alan Babb, an internist, conducted a consultative
evaluation, specifically noting that Jemison “has a very flat depressed . . . [and] listless kind
8

of affect . . . and has the appearance of someone who wants to just kind of roll over and go
to sleep.” R. 846. Dr. Babb’s diagnostic impression was (1) chronic back pain of unknown
etiology; (2) chronic depression; (3) COPD with active tobacco use; (4) history of bipolar
disorder, followed by local psychiatry; and (5) S/P recent cholecsystectomy, no sequela. Id.
He concluded:
The patient’s main issue is chronic back pain. Recent x-rays have
shown no abnormality. She has a significant amount of clinical depression and
has been hospitalized in the past for episodes of depression, although she
specifically did not mention suicidal ideation. She is on a lot of sedating
medications including Lortab, Soma, Ativan, Pristiq, Darvocet and Tegretol
in some combination. Again, she appears to be sedated somewhat here today.
Clearly no one is going to hire her taking all of that medication, and I am not
sure she should be on all that medication. She is being followed by local pain
management. At this point, there is really no specific documentation for all of
these chronic powerful pain medications. X-rays have shown nothing
pathologic. She clearly appears to be depressed and effort and motivation
appear to be very limited.
R. 846.
On January 4, 2010, a social worker at Montgomery Area Mental Health Authority
formulated the following treatment goals for Jemison: (1) receive “the right meds to reduce
depression so she can function”; and (2) reduce her fears of going outside her house and
being around other people. R.1040. A psychiatrist approved the treatment plan. R. 1041.
During a deposition on September 16, 2010, Dr. Pantaleone testified about the course
of treatment for Jemison and his reasons for prescribing her certain medications. R. 880-897.
He also summarized his findings regarding Jemison’s ability to work as follows:
It’s doubtful [she is able to engage in substantial, gainful employement]
because she has multiple problems including – the things that really preclude
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it is, number one, the neck pain. Which we have documentation of the C5-6
herniation. So, you know, at times it will get better, and at times it will get
worse. It’s probably worsened over the years. And the CAT scan is from
2001. So if I get a chance to repeat that, I may even show a worsening of the
herniation of the disk.
She has intermittent low back pain. Same spot. It’s on the left side, into
the left hip and leg leg. Again, that’s consistent with a pinched nerve or a
lumbar radiculitis possibly from the disk there, but I don’t have a CAT scan
to confirm that. But the symptoms match that diagnosis. The headaches can
be exacerbated by that disk in her neck, but there’s also a migraine component
to it.
So – and the anxiety and depression and questionably bipolar is another
problem where . . . she’s going to have mood swings, both depression and
anxiety. And that’s consistent with bipolar disease, though she’s not really on
an atypical psychotic right now which is a medicine they use to treat bipolar
and schizophrenia, but she is on an antidepressant. She’s been on a number of
antidepressants. She’s been on a SSRI’s, Paxil; she’s been on SNRI’s, the
Paroxetine. And, you know, doctor – the psychiatrist, Dr. Aboloti (phonetic)
or something had seen her also in the past. . . .
So, you know, she has a lot of problems, but – it’s going to be tough.
I think one of the biggest obstacles is going to be the bipolar disease, the
anxiety and depression. Again, she’s not on really potent antipsychotic
medications yet, but she is on antidepressants. She does take Xanax. I’m
hoping that will be enough to keep her under control.
R. 893-95.
He also testified regarding the effects of medication on Jemison’s ability to perform
work as follows:
Well, she’s on pain medication. She takes Lortab; she takes Darvocet
for the pain medicine. I’m sure she takes Advil or Aleve over the counter. I
don’t really prescribe that stuff for her. She takes Xanax for her nerve[s] when
she gets too hyper, and she’s on Pristiq when she’s down. So supposedly
that’s supposed to help. It’s helping – it helps depression, and the Xanax
calms her down when that happens.

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That makes it harder to work. Because if you’re taking a lot of
medicine, you can become somnolent and sleepy, and then you can’t
concentrate, things like that.
I tried her on a stimulant at one time. I had tried her on some Adderal.
And it exacerbated her anxiety, so I had to wean her off of that. You know, it
was a stimulant to try to get her to concentrate better, and . . . I was toying with
the diagnosis of Attention Deficit Hyperactivity Disorder . . . but she couldn’t
tolerate the stimulant.
R. 896.
On November 17, 2010, Jemison went to Montgomery Area Mental Health Authority
complaining of difficulty sleeping and that her medications were not working. R. 1038. The
nurse noted that her appearance and affect were inappropriate and referred Jemison to the
CRNP. Id. The certified nurse practitioner noted that Jemison’s mood was euthymic and
recommended that Jemison continue taking Effexor and increased her prescription for
Tegretol. R. 1037.
Jemison returned to Montgomery Area Mental Health Authority on February 10,
2011. A nurse noted that Jemison’s affect was inappropriate and flat, her mood was “down,”
her thoughts were suicidal, and her sleep was poor. R. 1036. She reported that Prestiq was
not effective but denied any side effects. Id. The nurse referred her to a certified nurse
practitioner. Id. During an evaluation by the CRNP, Jemison complained of “mood swings
real bad.” R. 1035. The CRNP assessed that Jemison was alert and well oriented but that
her mood was depressed. Id. She prescribed Geodon for the treatment of her symptoms. Id.
On March 4, 2011, a mental health therapist and evaluator at Montgomery Area
Health Authority conducted an intake diagnostic assessment, noting that Jemison reported
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that the following psychiatric symptoms were interfering with her goals: depressed
mood/sadness; diminished interest/pleasure; insomnia; agitation; fatigue/loss of energy;
feelings of worthlessness; inappropriate guilty; decreased concentration/ability to think;
recurrent thoughts of death; depressive symptoms in past; elevated/expansive mood; inflated
self-esteem; decreased need for sleep; pressured speech; flight of ideas/racing thoughts; highrisk behaviors; manic symptoms in past; palpitations; increased heart rate; sweating;
trembling/shaking; shortness of breath; feeling of choking; chest pain; chills/hot flushes;
obsessions/compulsions; and agoraphobia. R. 1048. They also formulated two goals for
Jemison: (1) decrease depression and manic episodes, and (2) manage anxiety. R. 1107-08.
To reach these goals, mental health personnel listed the following objectives: (1) “take meds
as prescribed”; (2) “change . . . talk . . . from negative to positive”; and (3) increase physical
and social activity. Id.
On March 10, 2011, the CRNP completed a service report, noting Jemison complained
that Goedone did not work and “made [her] feel out of it so [she] stopped taking it.” R. 1044.
The CRNP increased Jemison’s prescription for Effexor, decreased her prescription for
Tegretol, discontinued her prescription for Geodone, and prescribed Trazadone. Id.
On March 15, 2011, Dr. Daniel C. Clark, a licensed psychologist, conducted a
confidential disability evaluation.

R. 1050.

The psychologist found that Jemison’s

intellectual abilities fall within the low average range and that her judgment and decisionmaking abilities are impaired due to impulsivity. R. 1054. In addition, Dr. Clark found that
Jemison is “moderately impaired in her ability to understand and remember instructions, and
12

she is severely impaired in her ability to carry out instructions and in her ability to respond
appropriately to supervision, coworkers, and work pressures in a work setting” and that she
“would require assistance handling any awarded funds due to impulsivity.” R. 1054-55. He
also noted that his findings are considered to be a valid indication of Jemison’s current level
of functioning because she appeared to be open and honest throughout the evaluation. R.
1054.
On March 18, 2011, Dr. Mindingall, a non-examining psychologist, completed a
psychiatric review technique form in which he indicated Jemison would be moderately
limited with respect to her activities of daily living, social functioning, and concentration,
persistence, or pace. R. 1067. Dr. Mindingall also assessed that Jemison has the following
mental residual functional capacity:
A. [Jemison] is able to understand, remember, and carry out simple
instructions but will likely have greater difficulty with more detailed and
complex instructions.
B. [Jemison] can carry[]out simple tasks but not detailed or complex
ones due to symptoms of anxiety and depression. [Jemison] should be able to
concentrate and attend to simple tasks for 2 hours and will need all customary
rests and breaks. [Jemison] would be expected to miss 1-2 days of work per
month due to exacerbation of her psychiatric symptoms.
C. [Jemison’s] interaction with the public, coworkers and supervisors
should be casual and not intense or prolonged. Feedback should be supportive
and non-threatening.
D. Changes in work setting or routine should be presented gradually
and infrequently to give time for adjustment. [Jemison] would need help with
goal setting and planning.
R. 1073.
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On March 24, 2011, Dr. Babb, a doctor of internal medicine, conducted a consultative
evaluation. His diagnostic impression was: (1) history of bipolar disorder, no documentation
provided; (2) chronic depression; (3) history of agoraphobia; (4) low back pain of unknown
etiology, no evaluation to date; (4) COPD with active tobacco abuse; and (6) acute upper
respiratory infection. R. 1078. Dr. Babb found:
The patient is on an extensive list of medications including
antidepressants and stimulants. What is alarming is the fact that she is getting
these medications from two different medical sources. She is on
antidepressants which including chronic Lortab and Xanax use. Then on top
of that, she is taking stimulants of Adderall. There does not seem to be a
consistency in treatment objectives with this cornucopia of drugs. . . .
The patient’s main issue appears to be psychiatric and she is being
followed by a local Mental Health Facility. What I am alarmed about is that
the fact that she is getting psychiatric meds and pain medications, including
powerful narcotics from an outside source. She needs one person writing all
of her medications. I certainly don’t see the point of her being on all of these
antidepressants and all these chronic narcotics without any documented need
for this.
She really needs to be considered for medical cleansing [with] all of her
medications and then slowly started back to figure out what will get her feeling
better. I certainly don’t see the point of her being on Lortab and Xanax with
all of these other drugs. This is certainly of great concern.
R. 1078-79.
On August 2, 2011, Dr. Pantaleone completed a Clinical Assessment of Pain form in
which he indicated that “drug side effects can be expected to be significant and to limit
effectiveness due to distraction, inattention, drowsiness, etc.” R. 1091. He also noted that
Jemison’s medication, which includes Lortab, Xanax, Soma, Adderall, Percocet, and Prestiq,
would adversely affect her ability to work. R. 1093. In addition, he indicated that Jemison
14

would likely be absent from work as a result of her impairments and/or treatment more than
four days per month. R. 1092.
Jemison returned to Montgomery Area Mental Health Authority on September 14,
2011, complaining that she was not sleeping well and that she was “seeing shadows [and]
hearing voices.” R. 1112. A certified nurse practitioner at Montgomery Area Mental Health
Authority completed a service report, listing a diagnosis of bipolar disorder and noncompliance. She also listed generalized anxiety disorder, obsessive compulsive disorder,
agoraphobia with a notation of “no [signs] here.” R. 1111. The nurse practitioner noted that
Jemison was currently taking medication prescribed by Dr. Pantaleone, including Abilify,
Pristiq, Tegretol, Xanax, and Lortab. R. 1111. She found that Jemison was “alert, over
medicated, well oriented, [with a] mood subdued.” Id. The nurse practitioner prescribed
Doxepin and Tegretol. Id.
On February 2, 2012, the certified nurse practitioner listed diagnoses of bipolar
disorder, generalized anxiety disorder, obsessive compulsive disorder, agoraphobia, and noncompliance. R. 1101. Jemison reported that she had moved to Florence, Alabama, and that
her physician prescribed Cymbalta but the mental health center prescribed Abilify. Id. The
nurse practitioner noted that Jemison was alert and well oriented, mood was euthymic, and
her speech was appropriate. Id. She advised Jemison to discontinue Carbamazepine and
Doxepin and prescribed Abilify and Cymbalta. Id.
On May 15, 2012, Jemison presented to Baptist Health Hospital with complaints of
a sharp pain in her lower back radiating down her left leg. R. 1122. The emergency room
15

physician diagnosed sciatica and prescribed Percocet and Prednisone. R. 1123, 1125, 1127.
First, the court cannot determine whether the ALJ’s determination is supported by
substantial evidence because he failed to reconcile the conflicting reports of the treating and
consultative physicians when discounting Dr. Pantaleone’s opinion that the side effects of
medication would not adversely affect Jemison’s ability to work. When there is a conflict,
inconsistency, or ambiguity in the record, the ALJ has an obligation to resolve the conflict,
giving specific reasons supported by the evidence as to why he accepted or rejected an
opinion regarding the plaintiff’s capacity for work. See generally Wolfe v. Chater, 861 F.3d
1072, 1079 (11th Cir. 1996); Johnson v. Barnhart, 138 Fed. Appx. 266, 271 (11th Cir. 2005).
The ALJ is not free to simply ignore medical evidence, nor may he pick and choose between
the records selecting those portions which support his ultimate conclusion without
articulating specific, well supported reasons for crediting some evidence while discrediting
other evidence. Marbury v. Sullivan, 957 F.2d 837, 840-41 (11th Cir. 1992). The court
recognizes that Dr. Brantley cautioned that the need for redundant pain medication “would
need MD confirmation” and that Dr. Babb expressed concern about the need for medication.
R. 841-846. However, Jemison subsequently received a doctor’s confirmation regarding the
need for her prescribed medications. For example, in January 2010, a psychiatrist approved
a treatment plan for Jemison, which included a plan to receive “the right meds to reduce
depression so she can function.” R. 1041. Additionally, in September 2010, Dr. Pantaleone
testified about his reasons for the course of treatment for Jemison and his reasons for
prescribing her certain medications. R. 893-95. She also continued to receive treatment from
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both Dr. Pantaleone and Montgomery Area Mental Health on a routine basis.
The record indicates that Jemison has received conflicting advice about the need for
her prescribed medications. For example, on March 4, 2011, mental health personnel
encouraged Jemison to take her medication as prescribed in order to decrease her depression
and manic episodes and manage anxiety. R. 1048. Three weeks later, however, Dr. Babb
conducted a consultative evaluation and noted his alarm that Jemison was receiving strong
psychiatric and pain medications. Dr. Babb recommended that Jemison “be considered for
medical cleansing [with] all of her medications and then slowly started back to figure out
what will get her feeling better.” R. 1078-79. Nothing in the record indicates that Jemison
was provided the recommended cleansing or that a pain specialist or other medical specialist
resolved these inconsistencies during the 2012 hearing before the ALJ or by conducting an
evaluation to determine whether Jemison’s medications are necessary for her specific
impairments. More importantly, despite medical records indicating that Jemison may suffer
from polysubstance and/or anxiolytic abuse, the ALJ did not fully resolve whether this
assessed condition is a contributing factor material to his disability determination. See
Doughty v. Apfel, 245 F.3d 1274, 1276 (11th Cir. 2001).
The ALJ discounted Dr. Pantaleone’s opinion regarding the severity of Jemison’s
impairments because “his findings are not consistent with his opinion.” R. 35. As support
for his determination, the ALJ found that Dr. Pantaleone noted that Jemison needed a CT or
MRI to confirm any lumbar or disc disease, but that an x-ray of Jemison’s spine was
negative. Id. The problem with the ALJ’s finding is that Dr. Pantaleone testified that he has
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been unable to order additional CAT scans, MRI’s, or other radiological testing. It is
obvious, however, that Jemison has not received additional testing to confirm the source of
her back, neck, and leg pain because she is unable to afford treatment. R. 693-94, 714, 919,
1121, 1145.
The court concludes that the ALJ erred in failing to fully develop the record regarding
the extent of Jemison’s impairments. Notwithstanding evidence in the record indicating that
Jemison repeatedly complained of back pain during the relevant time period, the ALJ took
no steps to explore the severity of Jemison’s condition by securing additional testing by a
medical specialist. The record does not include records of a recommended MRI or CT scan.
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. Bowen, 848
F.2d 1206, 1209 (11th Cir. 1988); Freel v. Astrue, 2012 WL 628463, *6 (M.D. Fla. 2012)
(“The ALJ is not required to order a consultative examination or additional testing unless the
record shows that such an examination is necessary for the ALJ to render a decision.”).
Because the ALJ’s reasons for discounting the treating physician’s opinions is based on the
lack of objective medical evidence and it is documented that the reason for the lack of certain
medical records is Jemison’s inability to afford treatment, the court cannot conclude that the
lack of evidence is a sufficient reason on its own for discounting the physicians’ opinion.
Consequently, on remand, the ALJ shall consider whether ordering a CT scan or MRI would
assist him in determining Jemison’s disability status.
Finally, the court concludes that the Commissioner failed to consider Jemison’s
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inability to afford medical treatment when determining that Cook has the residual functional
capacity to return to her perform light work. The ALJ discredited Jemison’s allegations of
disabling symptoms based on non-compliance with prescribed medications. The record,
however, indicates that Jemison’s non-compliance with recommended treatment was due to
her inability to afford prescribed medications and other treatment. 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. Dawkins v. Bowen, 848 F.2d 1211 (11th Cir. 1988). As previously
discussed, the medical records are replete with references to Jemison’s inability to afford
treatment. R. 693-94, 714, 919, 1121, 1145. In addition, Jemison testified that the reason
she did not take her medications as directed is because of finances. R. 63. Despite notations
indicating Jemison is uninsured and is unable to afford treatment, the Commissioner failed
to consider whether Jemison’s financial condition prevented her from seeking medical
treatment. Thus, this court cannot conclude that the Commissioner’s discrediting of Jemison
based on her non-compliance is supported by substantial evidence.
“Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ’s
duty to investigate the facts and develop the arguments both for and against granting
benefits.” Sims v. Apfel, 530 U.S. 103, 110-111 (2000).
The SSA is perhaps the best example of an agency that is not based to a
significant extent on the judicial model of decisionmaking. It has replaced
normal adversary procedure with an investigatory model, where it is the duty
of the ALJ to investigate the facts and develop the arguments both for and
against granting benefits; review by the Appeals Council is similarly broad.
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Id. The regulations also make the nature of the SSA proceedings quite clear.
They expressly provide that the SSA “conducts the administrative review
process in an informal, nonadversary manner.” 20 C.F.R. § 404.900(b).
Crawford & Co. v. Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000).
For these reasons, the court concludes that the Commissioner erred as a matter of law,
and that the case should be remanded for further proceedings.
VI. 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 10th day of February, 2015.

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

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