Carter v. Colvin (CONSENT)

Filing 15

MEMORANDUM OPINION. Signed by Honorable Judge Wallace Capel, Jr on 6/22/17. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
KEBRINA CARTER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
Defendant.

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Civil Action No.: 3:16cv429-WC

MEMORANDUM OPINION
I.

INTRODUCTION
Kebrina Carter (“Plaintiff”) filed applications for a period of disability and disability

insurance benefits and for supplemental security income on March 11, 2013, and March
17, 2013, respectively. Both applications alleged disability beginning on January 25, 2013.
The applications were 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 an unfavorable decision, and the Appeals Council denied
Plaintiff’s request for review. The ALJ’s decision consequently became the final decision

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill shall be substituted for Acting
Commissioner Carolyn W. Colvin as the Defendant in this suit. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).

of the Commissioner of Social Security (“Commissioner”).2 See Chester v. Bowen, 792
F.2d 129, 131 (11th Cir. 1986). The case is now before the court for review of that decision
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. 9); Def.’s Consent to

Jurisdiction (Doc. 10). 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).3
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
2

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub. L.
No. 103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with
respect to Social Security matters were transferred to the Commissioner of Social Security.

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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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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.”
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).4
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 claimant

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McDaniel is a supplemental security income (SSI) case. The same sequence applies to disability
insurance benefits brought under Title II of the Social Security Act. Supplemental security income
cases arising under Title XVI of the Social Security Act are appropriately cited as authority in Title
II cases, and vice versa. See, e.g., 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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can perform. Id. at 1239. To do this, the ALJ can either use the Medical Vocational
Guidelines (“grids”), see 20 C.F.R. pt. 404 subpt. P, app. 2, 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).
[The court must] . . . scrutinize the record in its entirety to determine the
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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
Plaintiff was thirty-six years old on the date of the hearing before the ALJ. Tr. 39.

Plaintiff obtained her General Educational Development (“GED”) certificate, and had
completed some college coursework. Tr. 39. 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 January 25, 2013, the alleged onset date[.]” Tr. 17. At
Step Two, the ALJ found that Plaintiff suffers from the following severe impairments:
“obesity; asthma; and bronchitis.” Tr. 17. 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. 19. Next, the ALJ articulated
Plaintiff’s RFC as follows:
the claimant has the residual functional capacity to perform light work . . .
except that the claimant can sit at least two hours without interruption and a
total of at least six hours over the course of an eight-hour workday. The
claimant can stand and/or walk at least two hours without interruption and a
total of at least six hours over the course of an eight-hour work day. The
claimant can frequently use her lower extremities for pushing, pulling, and
operating foot controls. The claimant can frequently use her upper
extremities, for reaching overhead, pushing and pulling. The claimant cannot
climb ladders, ropes, poles, or scaffolds. The claimant can occasionally
climb ramps or stairs. The claimant can frequently balance and stoop. The
claimant can occasionally kneel and crouch. The claimant cannot crawl. The
claimant cannot work in humidity. The claimant can occasionally work in
wetness and extreme temperatures. The claimant can rarely, up to one hour
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each, over the course of an eight-hour workday, work in dusts, gases, odors,
and fumes. The claimant cannot work in poorly ventilated areas. The
claimant cannot work at unprotected heights. The claimant can frequently
work with operating hazardous machinery. The claimant can frequently
operate motorized vehicles. The claimant can occasionally work while
exposed to vibration.
Tr. 19. At Step Four, the ALJ concluded that Plaintiff “is capable of performing her past
relevant work as a cashier[.]” Tr. 24. However, the ALJ alternatively concluded that, even
if Plaintiff’s RFC precluded her ability to perform past relevant work, “there are other jobs
that exist in significant numbers in the national economy that the claimant also can
perform.” Tr. 24. The ALJ noted the following representative occupations: “assemblers,”
“mail clerk non-postal,” and “wire workers.” Tr. 25. Accordingly, as an alternative Step
Five finding, the ALJ determined that Plaintiff “has not been under a disability . . . from
January 25, 2013, through the date of this decision[.]” Tr. 25.
IV.

PLAINTIFF’S ARGUMENT
Plaintiff presents one issue in her “Statement of the Issues,” arguing that the ALJ’s

decision should be reversed because “the ALJ committed reversible error in failing to find
that [Plaintiff’s] medically severe impairments in combination met or medically equaled
the severity of Listing 3.03(B).” Pl.’s Br. (Doc. 12) at 3.
V.

DISCUSSION
Plaintiff argues that her impairments meet or equal in severity Listing 3.03, the

listing covering asthma. In essence, Plaintiff argues that the ALJ erred in failing to find
that her asthma meets the severity of Listing 3.03B because the record indicates that she
has endured the requisite number of attacks requiring physician interventions and, to the
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extent the ALJ determined that the Listing was not met due to Plaintiff’s noncompliance
with a prescribed treatment regimen, the ALJ failed to adequately consider whether
Plaintiff’s purported noncompliance was due to her inability to pay for prescribed
treatment. Pl.’s Br. (Doc. 12) at 7-9. In support, Plaintiff cites to medical evidence in the
record showing that her “impairments caused her to receive physician intervention at East
Alabama Medical Center [“EAMC”] on over twelve (12) occasions with two (2) of those
times resulting in multi-day in-patient admissions.” Id. at 7. In addition, Plaintiff cites to
her own hearing testimony noting her inability to afford seeing an asthma specialist, and
notations in the medical records reflecting Plaintiff’s lack of insurance and inability to
obtain certain treatments. Id. at 8.
Listing 3.03B requires asthma with
(A) 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
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administration or prolonged inhalation bronchodilator therapy – to meet or equal the listing.
Id. §§ 3.03B, 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 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. 5 SSR 82-59.

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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 claimant’s . . .
reasons 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
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The ALJ determined that Plaintiff’s severe impairment of asthma did not meet or
medically equal in severity Listing 3.03. In so finding, the ALJ noted that “[n]o treating
or examining source has indicated findings that would satisfy the severity” of Listing 3.03.
Tr. 19. Although recognizing that Plaintiff’s “most severe impairment appears to be
respiratory,” the ALJ further found that Plaintiff “has repeatedly reported her only
noncompliance. With compliance, the record simply does not suggest that any listing
would be met or equaled, this is so even with consideration of her obesity and all other
impairments collectively.” Tr. 19.
While, admittedly, the ALJ summarized some of the medical evidence in the record,
ultimately the court finds the ALJ’s Step Three analysis lacking. Although the ALJ’s
opinion mentions several instances in which Plaintiff sought treatment in conjunction with
the ALJ’s discussion of Plaintiff’s RFC, and even describes some of the treatments she
received, see Tr. 20-22, the ALJ’s opinion does not indicate whether any of these instances
qualify as an “attack” for purposes of the Listing. In particular, the ALJ does not indicate
whether he found either of the two instances in which Plaintiff was hospitalized for
multiple days for treatment of her asthma—during which she was administered “scheduled
albuterol nebulizer treatments as well as IV corticosteroids with Solu-Medrol” (Tr. 480)
and monitored and treated with “high dose steroids, inhaled bronchodilators and

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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antibiotics” (Tr. 675)—constitute “attacks” within the meaning of Listing 3.03.6 In
addition, several of the instances in which Plaintiff presented to EAMC for treatment—
namely, her visits to EAMC on July 23, 2013, March 19, 2014, April 11, 2014, May 13,
2014, and May 23, 2014—are not discussed in any substantial way in the ALJ’s opinion.
The ALJ’s failure to fully embrace the analysis required by Listing 3.03 renders his
opinion unclear as to exactly why he concluded that Plaintiff’s asthma is not of listinglevel severity. The ALJ first remarks that “[n]o treating or examining source has indicated
findings that would satisfy the severity requirements of any listed impairment.” Tr. 19.
But, as set forth above, except to the extent that any “finding” might inform as to the course
of treatment provided, Listing 3.03 does not turn on specific findings by a treating or
examining source. Rather, Listing 3.03 is concerned with whether the claimant suffered
“prolonged systematic episodes lasting one or more days and requiring intensive
treatment[.]” There undoubtedly were “findings” that Plaintiff suffers from asthma, and,
additionally, there were at least two instances in which Plaintiff was admitted to EAMC
for multiple days of treatment of her condition. If the ALJ determined that these occasions
nevertheless do not constitute “attacks” within the meaning of the Listing, or that, if they
do, none of Plaintiff’s other visits to EAMC may aggregate with them to push Plaintiff

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Even Defendant appears to concede that the first of these occurrences, on October 16, 2013,
may qualify as an “attack” under the Listing. See Def.’s Br. (Doc. 13) at 8.
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across the threshold imposed by Listing 3.03, then the ALJ failed to clearly explain his
reasoning for that conclusion.
In addition, the ALJ arguably concluded that Plaintiff’s asthma does not meet
Listing 3.03 because of her noncompliance. See Tr. 19. However, even here the ALJ’s
opinion is vague. Although acknowledging that Plaintiff’s “most severe impairment
appears to be respiratory,” the ALJ confusingly states that “the claimant has repeatedly
reported her only noncompliance.” Tr. 19. The court construes this remark as essentially
indicating the ALJ’s belief that Plaintiff repeatedly has reported her own failure to comply
with prescribed treatment, and that this failure caused the exacerbations for which Plaintiff
sought physician intervention numerous times. However, the ALJ’s own opinion does not
support such a sweeping conclusion. It appears the ALJ only mentions one instance, in
June of 2012, when Plaintiff “reported she had stopped taking her blood pressure
medication because of severe headaches. She was also out of her Advair Diskus for her
asthma.” Tr. 21. The court fails to see how Plaintiff’s failure to comply with her prescribed
blood pressure treatment can have any bearing upon a purported failure to comply with
prescribed asthma treatments or otherwise result in Plaintiff’s repeated asthma
exacerbations. Likewise, the court fails to see how Plaintiff merely being out of her Advair
Diskus in June of 2012 could somehow constitute “repeated” noncompliance.
More importantly, the record actually indicates that, most of the times Plaintiff
presented to EAMC for treatment of her asthma, she reported that she had complied with
her prescribed treatment beforehand, but with little success in attaining relief. See, e.g.,
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Tr. 337 (“She has been using her inhaler nebulizer without relief.”); Tr. 447 (“She states
she attempted to take an albuterol treatment at home with minimal relief.”); Tr. 410 (“She
has used her nebulizer treatment at home, she states 5 times over the course of the day.”);
Tr. 386 (“She has a nebulizer at home, but she continues to wheeze.”); Tr. 638 (“She takes
home albuterol and steroids inhalers.”); Tr. 1000 (“She takes some home treatments, but
still no relief.”); Tr. 977 (“She uses an albuterol nebulizer on a q.i.d. basis and then has
used a metered-dose-inhaler in-between when she gets into breathing difficulties. She
reported increased use over the past 2 days . . . .”); and Tr. 962 (“She has been having
asthma attacks since yesterday. She has been using nebulizers without relief.”). In addition
to the foregoing, at the hearing before the ALJ, Plaintiff testified her previous lack of health
insurance, as well as her lack of money, affected her ability to see a specialist for her
asthma. Tr. 51. Given this record, and given the ALJ’s failure to more fully explain any
conclusion that Plaintiff’s asthma does not meet or equal Listing 3.03 due to her purported
noncompliance, the court cannot conclude that any such conclusion by the ALJ is
supported by substantial evidence.
In sum, after careful review of the ALJ’s opinion and the record evidence in this
case, the ALJ’s basis for his conclusion that Plaintiff’s asthma is not of listing-level severity
is not clear to the court. If the ALJ determined that Plaintiff had an insufficient number of
qualifying asthma “attacks,” the ALJ’s opinion does not reflect a proper analysis of the
many physician interventions highlighted by Plaintiff to determine whether any of those
interventions, or just an insufficient number of them, constitute asthma “attacks” within
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the meaning of Listing 3.03. Likewise, if the ALJ determined that Plaintiff’s asthma does
not meet Listing 3.03 due to her noncompliance with prescribed treatment, the opinion fails
to offer substantial evidence for that conclusion, especially considering the weight of the
evidence demonstrating Plaintiff’s numerous attempts to comply with prescribed
treatment. Accordingly, the decision of the Commissioner is due to be reversed, and this
matter is due to be remanded for further proceedings. On remand, the ALJ should clarify
his analysis with respect to both whether Plaintiff endured the requisite number of
qualifying asthma attacks under Listing 3.03 and, even if she did, whether she nevertheless
fails to satisfy the Listing due to her failure to comply with prescribed treatment.
VI.

CONCLUSION
For all of the reasons given above, the undersigned Magistrate Judge concludes that

the decision of the Commissioner is REVERSED and this matter is REMANDED to the
Commissioner for further proceedings. A separate judgment will issue.
Done this 22nd day of June, 2017.

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

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