Wood v. Colvin (CONSENT)

Filing 15

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 3/3/2016. Copy mailed to SSA Chief Judge and SSA Office of Hearings and Appeals.(wcl, )

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

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CIVIL ACTION NO.: 2:15cv188-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Robin Wood (“Plaintiff”) filed an application for disability insurance benefits

under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401, et seq, on
November 23, 2011. His application was denied at the initial administrative level on
January 27, 2012.

Plaintiff then requested and received a hearing before an

Administrative Law Judge (“ALJ”). Following the hearing, the ALJ issued a decision
finding that Plaintiff had not been under a disability as defined in the Social Security Act,
from July 7, 2011, through the date for his decision. 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). Plaintiff appealed the ALJ’s
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.

decision to the Appeals Council and his request for review was denied on January 23,
2015. 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 the conduct of all proceedings and
entry of a final judgment by the undersigned United States Magistrate Judge. Pl.’s
Consent to Jurisdiction (Doc. 7); Def.’s Consent to Jurisdiction (Doc. 8). Based on the
court’s review of the record and the briefs of the parties, the court REVERSES the
decision of the Commissioner and REMANDS the matter for further proceedings.
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]?
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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.

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(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).3
The burden of proof rests on a claimant through Step Four. 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 One
through Step Four. At Step Five, 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 may 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

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McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits. Supplemental security income cases arising under Title XVI of the Social Security
Act are appropriately cited as authority in Title II cases. See, e.g., Ware v. Schweiker, 651 F.2d 408, 412
(5th Cir. 1981); Smith v. Comm’r of Soc. Sec., 486 F. App’x 874, 876 n.* (11th Cir. 2012) (“The
definition of disability and the test used to determine whether a person has a disability is the same for
claims seeking disability insurance benefits or supplemental security income.”).

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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
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).

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

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[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.

ADMINISTRATIVE PROCEEDINGS
At the time of the ALJ hearing, Plaintiff was forty-one years old. Tr. 48. He

completed eleventh grade and does not have a GED. Id. Following the administrative
hearing, and employing the five-step process, the ALJ found at Step One that Plaintiff
“has not engaged in substantial gainful activity since July 7, 2011, the alleged onset
date[.]” Tr. 33. At Step Two, the ALJ found that Plaintiff suffers from the following
severe impairments: “obesity, asthma, hypertension, arthralgia, chronic obstructive
pulmonary disorder (COPD), and a hernia.” Tr. 33. At Step Three, the ALJ 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[.]” Tr. 34. Next, the ALJ
articulated Plaintiff’s RFC as follows:
[T]he claimant has the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) and 416.967(a) except the claimant
cannot climb ladders, ropes, or scaffolds; cannot crawl or kneel; can
occasionally climb ladders, ropes or scaffolds; can occasionally stoop and
crouch; can frequently balance; should avoid concentrated exposure to heat,
cold, and wetness; should avoid moderate exposure to fumes, gasses, and
other pulmonary irritants; and should have no exposure to unprotected
heights or hazardous machinery.

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Tr. 34-35. Having consulted with a VE at the hearing, the ALJ concluded at Step Four
that Plaintiff is “unable to perform any past relevant work[.]” Tr. 38. Finally, at Step
Five, and based upon the testimony of the VE, the ALJ determined that “[c]onsidering the
claimant’s residual functional capacity, age, education, and work experience in
conjunction with the Medical-Vocational Guidelines,” there are jobs that exist in
significant numbers in the national economy that the claimant can perform. Tr. 39. The
ALJ identified several representative occupations, including “Table Worker,” “Machine
Tender,” and “Sorter.” Tr. 39. Accordingly, the ALJ determined that Plaintiff “has not
been under a disability . . . from July 7, 2011, through the date of this decision[.]” Tr. 39.
IV.

PLAINTIFF’S CLAIM
Plaintiff presents one argument before the court: the Commissioner committed

reversible error in failing to find that Plaintiff’s asthma meets, or equals, the criteria of
Listing 3.03(B). Pl.’s Br. (Doc. 12) at 3.
V.

DISCUSSION
Plaintiff argues that the Commissioner erred at Step Three when he determined

that Plaintiff did not have an impairment, or combination of impairments, that met or
medically equaled the severity of the asthma listing. Id. Listing 3.03 requires asthma
with:
(A)

Chronic asthmatic bronchitis5

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The ALJ determined that Plaintiff did not meet Listing 3.03(A) because Plaintiff’s FEV1 did not fall within the
specified range for chronic asthmatic bronchitis. Tr. 34. Plaintiff does not dispute this finding.

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Or
(B)

Attacks (as defined in 3.00C), in spite of prescribed treatment and requiring
physician intervention occurring at least once every 2 months or at least six
times a year. Each in-patient hospitalization for longer than 24 hours counts as
two attacks, and an evaluation period of at least 12 consecutive months must be
used to determine the frequency of attacks.

20 C.F.R. § 404, Subpt. P, App. 1. Section 3.00C defines “attacks” as “prolonged
systematic episodes lasting one or more days and requiring intensive treatment, such as
intravenous bronchodilator or antibiotic administration or prolonged inhalation
bronchodilator therapy in a hospital, emergency room or equivalent setting.” Id. § 3.00C.
Thus, a claimant must show that his attacks were frequent enough – occurring every two
months or at least six times per year within a twelve month period – and severe enough –
requiring intensive treatment including intravenous bronchodilator or antibiotic
administration or prolonged inhalation bronchodilator therapy – to meet or equal the
listing. Id. §§ 3.03(B), 3.00C. Further, this threshold must be met in spite of the
claimant’s compliance with his prescribed treatment. Dawkins v. Bowen, 848 F.2d 1211,
1213 (11th Cir. 1988) (refusal to follow prescribed medical treatment without a good
reason will preclude a finding of disability). If the claimant does not meet the listing due
to noncompliance, the Commissioner must show the claimant’s noncompliance was
unjustified. Id. at 1214 at n.* (11th Cir. 1988) (citing Preston v. Heckler, 769 F. 2d 988,
990-91 (4th

Cir. 1985)); SSR 82-59, 1982 WL 31384 (Jan. 1, 1982) (where it is

determined that a claimant fails to follow prescribed treatment, a determination must also
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be made as to whether failure to follow is justifiable). Specifically, the ALJ must
develop a record establishing by substantial evidence that “had the claimant followed the
prescribed treatment, the claimant’s ability to work would have been restored.” Id. at
1213 (citing Schnorr v. Bowen, 816 F.2d 578, 582 (11th Cir. 1987); Patterson v. Bowen,
799 F.2d 1455, 1460 (11th Cir. 1986)). The ALJ must also consider reasons for a
claimant’s noncompliance, if any, and whether those reasons excuse noncompliance.

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SSR 82-59.
In this case, it is unclear why the ALJ determined that Plaintiff did not meet
Listing 3.03(B), and thus the court cannot assess whether substantial evidence supports
the ALJ’s determination. At Step Three, the ALJ simply stated that Plaintiff lacked
documentation that he “has had asthma attacks in spite of his prescribed treatment, and
requiring physician intervention which have occurred at least once every 2 months or at
least 6 times a year.” Tr. 34. Because the ALJ essentially restated Listing 3.03(B), the
court is left to guess whether the ALJ determined that Plaintiff did not meet the listing

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Social Security Ruling 82-59 states, in part:
The claimant or beneficiary should be given an opportunity to fully express the specific reason(s) for not
following the prescribed treatment. Detailed questioning may be needed to identify and clarify the
essential factors of refusal. . . .
The record must reflect as clearly and accurately as possible the claimants . . . reason’s for failing to follow
the prescribed treatment.
Individuals should be asked to describe whether they understand the nature of the treatment and the
probable course of the medical condition (prognosis) with and without the treatment prescribed. . . . They
should be made aware that the information supplied will be used in deciding the disability claim and that,
because of the requirements of the law, continued failure to follow prescribed treatment without good
reason can result in denial or termination of benefits. . . .

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because (1) Plaintiff did not have enough qualifying attacks, or (2) Plaintiff was
noncompliant. In either case, the court cannot conduct a meaningful review of the ALJ’s
determination.
Qualifying Attacks
Plaintiff supports his argument that the ALJ erred by asserting that he had a
sufficient number of qualifying attacks to meet Listing 3.03(B). Plaintiff states that he
was hospitalized on three occasions for more than twenty-four hours within a twelve
month period with asthma, COPD, or asthma/COPD related diagnoses.7 Pl.’s Br. (Doc.
12) at 4. While it is true that Plaintiff meets these logistical requirements, it is unclear
whether these hospitalizations were severe enough – i.e., that Plaintiff required intensive
treatment – to qualify as attacks. See 20 C.F.R. § 404.1525(d) (“Your impairment(s)
cannot meet the criteria of a listing based only on a diagnosis.”)
Plaintiff’s medical records before the ALJ describe the course of treatment he
received during his hospitalizations.

These records indicate that Plaintiff received

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Plaintiff’s first hospitalization was on November 10, 2011, to Jackson Hospital. Plaintiff was discharged
November 11, 2011, with a diagnosis that included acute and chronic asthma and asthma with status astmaticus. Tr.
256, 258. While hospitalized, Plaintiff was given IV steroids and Albuterol and Atrovent by updraft. Tr. 258.
Plaintiff’s second hospitalization was on January 26, 2012, to Baptist Medical Center South. Tr. 271-308.
Plaintiff was discharged on January 27, 2012, with a diagnosis that included COPD and asthma exacerbation. Tr.
272. While hospitalized, Plaintiff was given Clairitin and Singulair, DuoNeb, and a saline wash. Plaintiff received
IV medications. Tr. 254. A blood gas was performed, with no abnormal or critical findings. Tr. 295. A chest x-ray
showed no acute or chronic cardiopulmonary disease. Tr. 262
Plaintiff’s third hospitalization was on July 27, 2012, to Baptist Medical Center South. Tr. 321-350.
Plaintiff was discharged on July 28, 2012, with a diagnosis that included COPD with acute exacerbation. Tr. 323.
While hospitalized, Plaintiff was given scheduled updrafts as well as steroids, and prescribed Spiriva and Advair.
Id. A chest x-ray showed no acute findings. Id. A blood gas test was performed and was within the normal limits.
Tr. 328.

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intravenous steroids and asthma medications by updraft therapies. Tr. 254, 272, 323.
Blood gas tests and chest x-rays were also performed. Tr. 262, 289, 335. Whether these
treatment regimens were intense enough to satisfy Listing 3.03(B) is unclear because the
ALJ’s opinion is devoid of analysis of Plaintiff’s hospitalizations. Indeed, the ALJ
merely references Plaintiff’s hospitalizations and treatments during his assessment of
Plaintiff’s residual functional capacity.

Tr. 36.

As it is unclear whether the ALJ

considered these hospitalizations in determining that Plaintiff did not meet Listing
3.03(B), the court cannot conduct a meaningful review of whether the ALJ’s decision
was supported by substantial evidence. But see Helwig v. Colvin, 3:14cv1503, 2015 WL
5749521, at *1-2 (N.D. Ohio Sept. 30, 2015) (upholding the ALJ’s determination that
claimant did not meet asthma listing because there was substantial evidence that
claimant’s treatment involved mainly aerosol treatments and non-intravenous
medications); Walunga v. Colvin, 13cv0759, 2014 WL 2931927, at *5-6 (N.D. Ill. June
23, 2014) (upholding the ALJ’s determination that claimant did not meet asthma listing
because the ALJ built the requisite “logical bridge from his evidence to his conclusion”).
Compliance
As previously noted, if it is determined that a claimant does not meet a listing due
to noncompliance, the ALJ must set forth the reasons for such a determination. Dawkins,
848 F.2d at 1213-14. The record should be developed to include: (1) whether compliance
would have restored Plaintiff’s ability to work; (2) the reasons for Plaintiff’s
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noncompliance, if any; and (3) whether these reasons excused Plaintiff’s noncompliance.
See generally Pelham v. Astrue, No. 5:11-cv-01354-KOB, 2012 WL 4479287, at *9
(N.D. Ala. Sept. 21, 2012) (holding that the ALJ erred in failing to adhere to the
procedural requirements of SR 82-59 to fully develop the record and provide sufficient
notice and opportunity to the claimant to prove justifiable cause for failing to follow
treatment). Further, “when an ALJ relies on noncompliance as the sole ground for the
denial of disability benefits, and the record contains evidence showing that the claimant is
financially unable to comply with prescribed treatment, the ALJ is required to determine
whether the claimant was able to afford the prescribed treatment.” Ellison v. Barnhart,
355 F.3d 1272, 1275 (11th Cir. 2003) (citing Dawkins, 848 F.2d at 1213) (emphasis
added).

“[W]hile a remediable or controllable medical condition is generally not

disabling, when a ‘claimant cannot afford the prescribed treatment and can find no way to
obtain it, the condition that is disabling in fact continues to be disabling in law.’”
Dawkins, 848 F.2d at 1213 (citing Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir.
1986)). Thus, a claimant’s poverty excuses his noncompliance. Brown v. Commissioner
of Social Security, 425 F. App’x 813, 817 (11th Cir. 2011).
Plaintiff argues that the ALJ erred because the ALJ failed to excuse his
noncompliance due to poverty. (Doc. 12) at 4-6. Plaintiff asserts, and his medical
records support, that during each hospital visit, Plaintiff reported not taking his
medications because he could not afford them. Tr. 258, 272, 327. Plaintiff also testified
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before the ALJ that he was homeless and living with a friend at the time of the hearing.
Tr. 47-48.

This evidence should have triggered additional inquiry from the ALJ

regarding Plaintiff’s noncompliance and poverty, including whether compliance would
have restored Plaintiff’s ability to work and Plaintiff’s reasons, if any, for
noncompliance. See Pelham, 2012 WL 4479287, at *9. Plaintiff should have been given
an opportunity to fully express his reasons for not complying with treatment and the ALJ
should have taken those reasons under advisement in determining whether Plaintiff’s
noncompliance was excusable. See SSR 82-59. Instead, the ALJ appears to assume that
Plaintiff has the means to obtain medication because he was able to do so on previous
occasions.8
While it is unclear whether the ALJ determined that Plaintiff did not meet the
asthma listing due to noncompliance, it is clear that the ALJ heavily relied upon such
evidence in his overall evaluation of Plaintiff’s disability without having queried Plaintiff
about the nature or reasons for his noncompliance. In determining Plaintiff’s residual
functional capacity, the ALJ stated that Plaintiff’s “COPD and asthma are both well
controlled with medication. . . . The only exacerbations the claimant had were in
conjunction with noncompliance.” Tr. 37 (emphasis added). And later again, the ALJ
stated “[a]s the medical evidence of record indicates the claimant only experienced

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Although the ALJ never references how Plaintiff previously obtained his medication, Plaintiff’s
medical records indicate that he was able to obtain medication at certain points in time. Tr. 36,
310, 381. Plaintiff also testified in April 2013 that he was taking asthma medication. Tr. 52.
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COPD/asthma exacerbations related to noncompliance.” Tr. 38 (emphasis added). To
the extent the ALJ relied upon Plaintiff’s noncompliance as the principal factor in
determining that Plaintiff did not meet the asthma listing, the ALJ should not have drawn
an adverse inference without first considering whether Plaintiff was able to afford the
medical care. Brown, 425 F. App’x at 817. To the extent the ALJ did so, it is reversible
error. See e.g., Dawkins, 848 F.2d at 1214 (reversed and remanded to determine whether
appellant is disabled, without reference to her failure to follow prescribed medical
treatment, and if so, whether the claimant is in fact unable to afford medication and
treatment as prescribed); Hill v. Astrue, 1:09cv01-CSC, 2010 WL 1533121, at *6 (M.D.
Ala. Apr. 15, 2010) (reversed and remanded to develop the record regarding claimant’s
financial situation as it relates to his failure to seek treatment); Baker v. Astrue, 1:11cv35CSC, 2012 WL 353738, at *5 (M.D. Ala. Feb. 2, 2012) (reversed and remanded to fully
and fairly develop the record regarding claimant’s failure to follow prescribed treatment).
Because it is unclear on what basis the ALJ determined Plaintiff did not meet the
asthma listing, the court is left lacking sufficient information to determine if the ALJ’s
decision was supported by substantial evidence.

As the court cannot conduct a

meaningful review, the matter is due to be remanded so that the ALJ can clarify his
findings and further develop the record, if needed.

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VI.

CONCLUSION
The court has carefully and independently reviewed the record and concludes that,

for the reasons given above, the decision of the Commissioner is REVERSED and this
matter is REMANDED back to the Commissioner. A separate judgment will issue.
Done this 3rd day of March, 2016.

/s/ Wallace Capel, Jr.
UNITED STATES MAGISTRATE JUDGE

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