Speir v. Astrue
MEMORANDUM OPINION AND ORDER: that this case is due to be reversed and remanded to the Commissioner for further proceedings consistent with this opinion; that the plf shall have 90 days after she receives notice of any amount of past due benefits awarded to seek attorney's fees under 42 USC § 406 (b), as further set out in order. Signed by Honorable Judge Terry F. Moorer on 9/30/2013. Copies 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
WILLIAM ANDREW SPEIR,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
CASE NO. 3:12-cv-328-TFM
MEMORANDUM OPINION AND ORDER
William Andrew Speir (“Plaintiff” or “Speir”) applied for supplemental security
income under Title XVI and disability insurance benefits (“DIB”) under Title II of the
Social Security Act (“the Act”), on May, 2009 alleging that he became disabled on June
15, 2008 (Tr. 88, 95). After being denied, Speir timely filed for and received a hearing
before an administrative law judge (“ALJ”) who rendered an unfavorable decision on
September 2, 2010. (Tr. 13-23). Speir subsequently petitioned for review to the Appeals
Council who rejected review of Speir’s case. (Tr. 1-5). As a result, the ALJ’s decision
became the final decision of the Commissioner of Social Security (“Commissioner”). Id.
Judicial review proceeds pursuant to 42 U.S.C. § 405(g), and 28 U.S.C. § 636(c). After
careful scrutiny of the record and briefs, for reasons herein explained, the Court
REVERSES and REMANDS the Commissioner’s decision.
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I. NATURE OF THE CASE
Speir seeks judicial review of the Commissioner’s decision denying his
application for disability insurance benefits. United States District Courts may conduct
limited review of such decisions to determine whether they comply with applicable law
and are supported by substantial evidence. 42 U.S.C. § 405. The Court may affirm,
reverse and remand with instructions, or reverse and render a judgment. Id.
II. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is a limited one. The Court’s
sole function is to determine whether the ALJ’s opinion is supported by substantial
evidence and whether the proper legal standards were applied. See Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
“The Social Security Act mandates that ‘findings of the Secretary as to any fact, if
supported by substantial evidence, shall be conclusive.’” Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (quoting 42 U.S.C. §405(g)). Thus, this Court must find the
Commissioner’s decision conclusive if it is supported by substantial evidence. Graham v.
Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). Substantial evidence is more than a scintilla
— i.e., the evidence must do more than merely create a suspicion of the existence of a
fact, and must include such relevant evidence as a reasonable person would accept as
adequate to support the conclusion. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir.
1997) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d
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842 (1971)); Foote, 67 F.3d at 1560 (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th
If the Commissioner’s decision is supported by substantial evidence, the district
court will affirm, even if the court would have reached a contrary result as finder of fact,
and even if the evidence preponderates against the Commissioner’s findings. Ellison v.
Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003); Edwards v. Sullivan, 937 F.2d 580, 584
n.3 (11th Cir. 1991) (quoting MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir.
1986)). The Court must view the evidence as a whole, taking into account evidence
favorable as well as unfavorable to the decision. Foote, 67 F.3d at 1560 (citing Chester v.
Bowen, 792 F.2d 129, 131 (11th Cir. 1986). The Court “may not decide facts anew,
reweigh the evidence, or substitute [its] judgment for that of the [Commissioner],” but
rather it “must defer to the Commissioner’s decision if it is supported by substantial
evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997) (quoting Bloodsworth,
703 F.2d at 1239).
The Court will also reverse a Commissioner’s decision on plenary review if the
decision applies incorrect law, or if the decision fails to provide the district court with
sufficient reasoning to determine that the Commissioner properly applied the law. Keeton
v. Dep’t of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citing
Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)). There is no presumption
that the Commissioner’s conclusions of law are valid. Id.; Brown v. Sullivan, 921 F.2d
1233, 1236 (11th Cir. 1991) (quoting MacGregor, 786 F.2d at 1053).
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III. STATUTORY AND REGULATORY FRAMEWORK
The Social Security Act’s general disability insurance benefits program (“DIB”)
provides income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence.1 See 42 U.S.C. §
423(a). The Social Security Act’s Supplemental Security Income (“SSI”) is a separate
and distinct program. SSI is a general public assistance measure providing an additional
resource to the aged, blind, and disabled to assure that their income does not fall below
the poverty line.2 Eligibility for SSI is based upon proof of indigence and disability. See
42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C). However, despite the fact they are separate
programs, the law and regulations governing a claim for DIB and a claim for SSI are
identical; therefore, claims for DIB and SSI are treated identically for the purpose of
determining whether a claimant is disabled. Patterson v. Bowen, 799 F.2d 1455, 1456 n.
1 (11th Cir. 1986). Applicants under DIB and SSI must provide “disability” within the
meaning of the Social Security Act which defines disability in virtually identical language
for both programs. See 42 U.S.C. §§ 423(d), 1382c(a)(3), 1382c(a)(3)(G); 20 C.F.R. §§
404.1505(a), 416.905(a). A person is entitled to disability benefits when the person is
Engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes.
See Social Security Administration, Social Security Handbook, § 136.1, available at
SSI benefits are authorized by Title XVI of the Social Security Act and are funded by general
tax revenues. See Social Security Administration, Social Security Handbook, §§ 136.2, 2100,
available at http://www.ssa.gov/OP_Home/handbook/handbook.html
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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), 1382c(a)(3)(A). 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. 42
U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner of Social Security employs a five-step, sequential evaluation
process to determine whether a claimant is entitled to benefits.
See 20 C.F.R. §§
404.1520, 416.920 (2010).
(1) Is the person presently unemployed?
(2) Is the person’s impairment(s) severe?
(3) Does the person’s impairment(s) meet or equal one of the specific impairments
set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?3
(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 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
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
The burden of proof rests on a claimant through Step 4. See Phillips v. Barnhart,
357 F.3d 1232, 1237-39 (11th Cir. 2004). Claimants establish a prima facie case of
qualifying disability once they meet the burden of proof from Step 1 through Step 4. At
This subpart is also referred to as “the Listing of Impairments” or “the Listings.”
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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. RFC is what the claimant is still
able to do despite his impairments and is based on all relevant medical and other
evidence. Id. It also 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 hear testimony from a vocational expert (VE). Id. at
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. Id. at 1240. Combinations of these factors yield a statutorily-required
finding of “Disabled” or “Not Disabled.” Id.
IV. ADMINISTRATIVE FINDINGS AND CONCLUSIONS
At the July hearing, Plaintiff did not have legal counsel.
Rather, he was
represented by Samantha Lowery, a non-attorney. (Tr. 13). At the hearing, Plaintiff
testified that he had a high school education plus three years of college and possessed a
See 20 C.F.R. pt. 404 subpt. P, app. 2; see also 20 C.F.R. § 416.969 (use of the grids in SSI
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real estate license. (Tr. 27, 33). He testifed that he last worked in real estate sales in
2008, but that he stopped because of a decline in business. (Tr. 27-28). Speir said that he
can lift up to 20 pounds, sit for 30 minutes, stand for 20 to 30 minutes, and walk on a flat
surface for 30 minutes. (Tr. 29-30). He said he had difficulty grasping because his
fingers were swollen and that he has pain in his knees, fingers, ankles and both of his
upper arms. (Tr. 30-31). Plaintiff also testified or otherwise reported that he was able to
perform household chores, care for his own personal needs, go fishing, and drive a
vehicle. (Tr. 131-137).
Michael McClanahan, a vocational expert, noted that Plaintiff’s past jobs as a retail
store manager, real estate salesperson, route sales and delivery person, and sales manager
were from light to medium exertion and semi-skilled to skilled under the Dictionary of
Occupational Titles (“DOT”) and medium to heavy exertion and semi-skilled to skilled as
described by Plaintiff. (Tr. 34). Dr. McClanahan was asked to consider an individual of
Plaintiff’s age, education, work history, and who had the residual functional capacity as
found by the ALJ. (Tr. 34). In response, the vocational expert testifed that such an
individual could perform some of his past relevant work both as listed under the DOT and
as performed. (Tr. 34).
The ALJ determined in his September 2010 decision that Plaintiff had “severe”
impairments of arthritis of the knees and hands, and non-severe impairments of a history
of substance abuse and bipolar disorder, but that he did not have an impairment or a
combination of impairments listed in or medically equal to one listed in 20 C.F.R. pt. 404,
subst. P, app.1. (Tr. 15-18; Finding Nos. 3, 4). He also found that Plaintiff’s subjective
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complaints were not credible to the extent alleged. (Tr. 19). He further found that
Plaintiff retained the residual functional capacity to perform light exertion work as
defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), reduced, on a function-by function
basis, by an ability to sit for only 30 minutes, stand for only 20 to 30 minutes and walk
for only 30 minutes on a level surface. (Tr. 18; Finding No. 5). In light of persuasive
vocational expert testimony and other evidence of record, the ALJ determined that
Plaintiff retained the capacity to perform past relevant work as a retail manager, real
estate salesperson, and a sales manager. (Tr. 19-20; Finding No. 6). Thus, the ALJ found
that Plaintiff was not disabled. (Tr. 20).
V. MEDICAL HISTORY
Medical records from East Alabama Medical Center from May, July and August of
1992 demonstrate Speir suffered from arthritis of the right knee. (Tr. 191-192). Later in
early 2003, records from East Alabama Medical Center show Speir was treated for
injuries resulting from a car accident and for leg pain. (Tr. 195-198). The radiology
report showed “some mild degenerative change of the knee joint.” (Tr. 196). In late
1998, Plaintiff presented to the East Alabama Medical Center with chest pain. (Tr. 180).
Testing determined Speir suffered from no “acute cardiopulmonary disease.” (Tr. 182).
Dr. J. Mathews of the Mercy Medical Clinic saw Speir in May and June 2010. (Tr. 323324). He opined that “the patient has rather extensive osteoarthritis” (Tr. 323) and “the
patient continues to have considerable arthritic problems.” (Tr. 324).
Other medical evidence dating from 2006 until 2010 shows that Speir was
diagnosed and treated for bipolar disorder. In late 2006, Plaintiff was seeing Dr. Ed Kern,
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a psychiatrist, for treatment of his bipolar disorder, but upon referral to East Alabama
Mental Health Center Speir reported being unable to afford his medication or to pay for
his doctor’s visits. (Tr. 245-248). Specifically, Speir reported that “I cannot pay for
Lamictal and Seroqul each over $550.00 per bottle.” (Tr. 261, 306). In March 2007,
Speir’s medical records show “[p]rogressed symptoms of onset of hypomanic episode.”
(Tr. 242). In January 2008, Speir reports that he has been unable to afford his medication
and that he had an adverse reaction to Lithium. (Tr. 231). In September 2009, Dr.
Heather Rowe with East Alabama Mental Health reported Speir’s “last manic episode
[occurred] two weeks ago.” (Tr. 171-172). Later in February 2010, Dr. Rowe reported
Speir had suffered from “very brief manic episodes of [about] one day.” (Tr. 173). In
June and October of 2010, counseling records indicated that Speir is “stable and med
compliant.” (Tr. 330, 342). However, Speir reported in October 2010 that he had “ no
income and lives in a camper on his brother’s property.” (Tr. 342).
Speir raises two issues for judicial review:
(1) Whether the ALJ failed to properly weigh all the record evidence of Plaintiff’s
(2) Whether the ALJ erred in discrediting Plaintiff’s testimony because it was
inconsistent the Residual Functional Capacity assessment.
See Doc.16 at p.6.
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Plaintiff argues that the ALJ failed to properly weigh all the record evidence of his
disability. Indeed, the ALJ has a duty to make clear the weight accorded to each item of
evidence and the reasons for the decision. Cowart v. Schweiker, 662 F. 2d 731, 735 (11th
Cir. 1981). Moreover, when the claimant is not represented by legal counsel the duty
requires that the ALJ “scrupulously and conscientiously probe into, inquire of and explore
for all relevant facts,” ensuring that both favorable and unfavorable facts are elicited. Id.
The ALJ found Speir’s bipolar condition to be “non-severe”. (Tr. 15-18). Specifically,
the ALJ noted that
Dr. Floria Roque, a State Agency licensed psychologist, noted that claimant
restarted his medications in July 2009 and his condition appeared to be
stabilized (Exhibit 5 F). The mental health records indicated that substance
abuse was no longer a problem and Dr. Roque found it was not material to
this decision. In June 2010, mental health records indicated the claimant
was compliant with treatment and coping well. He was considered stable.
The Eleventh Circuit has held that the claimant’s burden of showing severity is
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.
McDaniel v. Bowen, 800 F. 2d 1026, 1031 (11th Cir. 1986). Although counseling records
from June 2010 and October 2010 demonstrate that Speir’s bipolar condition has become
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stable over time, (Tr. 330, 342), medical records from September 2009 and February
2010 document Plaintiff’s recent manic episodes. (Tr. 171-173). Furthermore, Dr. Ivan
Lewis Slavich, consulting physician, examined Speir in July 2009, and diagnosed him
with “[b]ipolar disorder” and “[a]lcohol abuse; possible withdrawal symptoms” and
recommended “psychiatric rehabilitation [ . . .], as well as alcohol rehabilitation, since his
psychological impairments appear to be his major limiting impairment.”
Thus, the court concludes that the ALJ erred in failing to fully
consider Speir’s severe impairment of bipolar disorder.
The court also concludes that the ALJ failed to consider Speir’s inability to afford
medical treatment when determining that Speir has the residual functional capacity to
perform work. See Dawkins v. Bowen, 848 F. 2d 1211, 1213 (11th Cir. 1988) (While 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, he is excused
from noncompliance.) The records are replete with references to Speir’s inability to
afford his medication. (Tr. 245-248, 261, 306). In addition, there are a number of
references to Speir’s noncompliance with his medication for undisclosed reasons. (Tr.
211, 225). Moreover, as of October 2010, Speir reported to a medical provider that he
“has no income and lives in a camper on his brother’s property.” (Tr. 342).
In spite of these record references, the ALJ failed to explore this issue with Speir,
who was unrepresented by legal counsel, at the hearing held on July 28, 2010. In fact, no
questions were asked by anyone about Speir’s ability to pay for his medication or how he
could obtain the medication without funds. (Tr. 26-35). See Lucas v. Sullivan, 918 F. 2d
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1567, 1572-73 (11th Cir. 1990) (Where compliance with a prescribed course of treatment
is at issue, the ALJ has a duty to fully investigate possible reasons for the alleged
noncompliance.) Thus, this court concludes that the ALJ failed in his duty to properly
weigh all the evidence and to “scrupulously and conscientiously probe into, inquire of and
explore for all relevant facts” where Speir was proceeding without legal counsel. See
Cowart, 662 F.2d at 735. Accordingly, the Court concludes that this case is due to be
remanded for further consideration of the issues of whether Speir can afford medication
for his “severe” impairment of bipolar disorder.
Because the court concludes remand is proper as to the preceding issue, the court
pretermits discussion of the second issue raised by Speir.
Accordingly, the court
concludes that remand is proper for the ALJ to fully consider Speir’s severe impairment
of bipolar disorder and to determine the effect, if any, Speir’s poverty has on his ability to
remain compliant with his medication.
Accordingly, the court concludes that this case is due to be reversed and remanded
to the Commissioner for further proceedings consistent with this opinion.
ORDERED that in accordance with Bergen v. Comm’r, of Soc. Sec., 454 F. 3d 1273, 1278
fn. 2 (11th Cir. 2006), the plaintiff shall have ninety (90) days after she receives notice of
any amount of past due benefits awarded to seek attorney’s fees under 42 U.S.C. § 406
(b). See also Blitch v. Astrue, 261 Fed. Appx. 241, 242 fn. 1 (11th Cir. 2008).
A separate order shall accompany this opinion.
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DONE this 30th day of September, 2013.
/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE
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