Garrett v. Social Security Administration, Commissioner

Filing 14

MEMORANDUM OPINION as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 8/20/2018. (AHI)

FILED
2018 Aug-20 AM 10:12
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
ARNOLD GARRETT,
Claimant,
vs.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.

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Case No. 1:17-CV-1981-CLS

MEMORANDUM OPINION
Claimant, Arnold Garrett, commenced this action on November 26, 2017,
pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of
the Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”),
and thereby denying his claim for a period of disability and disability insurance
benefits.
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253
(11th Cir. 1983).

Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that the ALJ improperly evaluated his credibility and complaints of
subjective symptoms, and improperly considered the medical opinions in the record.
Upon review of the record, the court concludes that these contentions lack merit, and
the Commissioner’s ruling is due to be affirmed.
To demonstrate that pain or another subjective symptom renders him disabled,
a claimant must “produce ‘evidence of an underlying medical condition and (1)
objective medical evidence that confirms the severity of the alleged pain arising from
that condition or (2) that the objectively determined medical condition is of such
severity that it can be reasonably expected to give rise to the alleged pain.’” Edwards
v. Sullivan, 937 F.2d 580, 584 (11th Cir. 1991) (quoting Landry v. Heckler, 782 F.2d
1551, 1553 (11th Cir. 1986)). If an ALJ discredits subjective testimony of pain, “he
must articulate explicit and adequate reasons.” Hale v. Bowen, 831 F.2d 1007, 1011
(11th Cir. 1987) (citing Jones v. Bowen, 810 F.2d 1001, 1004 (11th Cir. 1986);
MacGregor v. Bowen, 786 F.2d 1050, 1054 (11th Cir. 1986)).
The ALJ in the present case properly applied these legal principles. He found
that claimant’s medically determinable impairments could reasonably be expected to
cause some symptoms and limitations, but that claimant’s statements concerning the

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intensity, persistence, and limiting effects of her symptoms were “not entirely
consistent with the medical evidence and other evidence in the record.”1 This
conclusion was in accordance with applicable law. See Marbury v. Sullivan, 957 F.2d
837, 839 (11th Cir. 1992) (“After considering a claimant’s complaints of pain, the
ALJ may reject them as not creditable, and that determination will be reviewed for
substantial evidence.”) (citing Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984))
(emphasis supplied).
The ALJ also adequately articulated reasons to support his findings. He
pointed out that there were inconsistencies between claimant’s testimony and the
objective evidence. For example, even though claimant stated that he had worked for
only one month after July 2009, the record reflected that he received $1,066 in wages
during the second quarter of 2014, and additional earnings in other years.
Additionally, the ALJ observed that, even though claimant brought a non-prescribed
cane to the administrative hearing, and testified that he had severe gout flare-ups two
to three times a month, the medical record only reflected treatment for one gout flareup. The ALJ also considered the opinions of consultative examiner Dr. Anand Iyer,
M.D., and state agency physician Dr. Robert Heilpern, M.D, as well as treating
physician records and the effects of claimant’s obesity.2
1

Tr. 26.

2

See Tr. 26-27.
3

Claimant challenges some of those findings as either unsupported by the record
or inconsistent with applicable law. First, he asserts that the ALJ failed to account
for his inability to afford treatment. Claimant testified during the administrative
hearing that, although his pain level during a flare-up escalates to a level warranting
emergency room treatment, he has only been to the emergency room one or two times
because does not have any money to pay the charges he would incur. Instead, he has
been receiving treatment at the Quality of Life Clinic, where treatment presumably
is available at either no cost or a reduced cost.3 The ALJ did not discuss claimant’s
testimony regarding his inability to afford treatment, instead only pointing out the
inconsistency between claimant’s testimony and the number of times he received
emergency treatment.
It is well settled that “poverty excuses [a claimant’s] noncompliance” with
medical treatment. Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988)
(alteration supplied). Thus, “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, the condition that is disabling in fact continues to be
disabling in law.’” Id. (quoting Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir.
1986)) (emphasis supplied). The Eleventh Circuit has also held that “when an ALJ
relies on noncompliance as the sole ground for the denial of disability benefits, and
3

Tr. 44-46.
4

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 1214) (emphasis supplied).
Here, the ALJ did not rely upon claimant’s non-compliance with medical
treatment as the sole ground for his finding of non-disability. Instead, he found that
claimant’s failure to seek additional treatment was one relevant factor in determining
whether claimant’s subjective complaints were consistent with the other evidence in
the record. As discussed more fully below, the ALJ’s other considerations were
supported by the record. Moreover, claimant’s testimony indicates that, even though
he was unable to afford emergency room treatment, he was able to obtain treatment
at the Quality of Life Clinic. Thus, the ALJ’s consideration of claimant’s failure to
seek additional treatment was not reversible error. For example, the Eleventh Circuit
observed in the case of Beegle v. Social Security Administration, Commissioner, 482
F. App’x 483 (11th Cir. 2012), that :
the ALJ must consider evidence showing that the claimant is unable to
afford medical care before denying disability insurance benefits based
upon the claimant’s non-compliance with such care. . . . Nonetheless,
reversible error does not appear where the ALJ primarily based her
decision on factors other than non-compliance, and where the claimant’s
non-compliance was not a significant basis for the ALJ’s denial of
disability insurance benefits.

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Id. at 487 (citing Ellison, 355 F.3d at 1275-76) (alterations supplied).
Claimant also asserts that his treatment records do not support the ALJ’s
finding. It is true that claimant has long reported to his treating physicians that he
experiences pain and swelling in his big toe and knee as a result of gout, and that the
pain worsens with standing and walking.4 But the mere existence of a medical
condition, even one that claimant reports causes severe pain, does not establish
disability.

Instead, the relevant consideration is the effect of that condition,

considered in combination with any of her other impairments, on claimant’s ability
to perform substantial gainful work activities. See 20 C.F.R. § 404.1505(a) (defining
a disability as “the inability to do 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”). See also Bowen v. Yuckert, 482 U.S. 137, 146 (1987)
(“The [Social Security] Act ‘defines “disability” in terms of the effect a physical or
mental impairment has on a person’s ability to function in the workplace.’”) (quoting
Heckler v. Campbell, 461 U.S. 458, 459-60 (1983)) (alteration supplied). The record
as a whole does not support a finding of disabling functional limitations.
Claimant also asserts that Dr. Iyer’s consultative examination supports a
finding of disability, and that the ALJ should have afforded it more significant
4

Tr. 250-55, 317-19.
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weight. Social Security regulations provide that, in considering what weight to give
any medical opinion, the Commissioner should evaluate: the extent of the examining
or treating relationship between the doctor and patient; whether the doctor’s opinion
can be supported by medical signs and laboratory findings; whether the opinion is
consistent with the record as a whole; the doctor’s specialization; and other factors.
See 20 C.F.R. § 404.1527(c). See also Wheeler v. Heckler, 784 F.2d 1073, 1075
(11th Cir. 1986) (“The weight afforded a physician’s conclusory statements depends
upon the extent to which they are supported by clinical or laboratory findings and are
consistent with other evidence as to claimant’s impairments.”).
Dr. Iyer examined claimant on February 20, 2015. Claimant reported hip pain,
a dislocated left wrist, and gout in his feet, ankles, and knees. The gout reportedly
flared up two to three times monthly, causing bilateral feet swelling with difficulty
standing, walking, climbing, bending, and lifting. Claimant brought a cane to the
examination to assist him with stability and ambulation. Claimant experienced
difficulty getting on and off the examination table, and he complained of pain in
multiple joints during that portion of the examination. He displayed full strength,
except for 4/5 right hand grip strength and 2/5 left hand grip strength. He had no
muscle atrophy, a negative straight leg raise test, and abnormal gait that necessitated
the use of a cane for stability. He could not squat or walk on his heels or toes. He

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had full range of motion in his neck, shoulders, back, and elbows, but reduced range
of motion in his left wrist, both hips, both knees, and both ankles. An x-ray of his left
hip was normal. Dr. Iyer assessed claimant with the following conditions: (1) history
of bilateral hip pain, possibly secondary to bursitis, not confirmed by records; (2)
history of bilateral hand pain, likely secondary to gout, confirmed by records; (3)
history of bilateral feet pain, likely secondary to gout; (4) history of bilateral ankle
pain, likely secondary to gout, not confirmed by records; (5) history of bilateral knee
pain, likely secondary to gout or osteoarthritis, not confirmed by records; (6) history
of hyperlipidemia; (7) history of uncontrolled hypertension, not on medication; (8)
history of left wrist pain, likely secondary to gout, not confirmed by records; and (9)
history of prior left wrist fracture, status post repair, confirmed by records. He
concluded that claimant would have “some impairment of functions involving:
sitting, standing, walking, climbing steps, bending, lifting, twisting, carrying,
reaching overhead, writing, typing, opening jars, tying shoes, dressing, and handling.
The patient does not have significant limitation of functions involving: hearing and
speaking. The cane is necessary for stability and ambulation.”5
The ALJ afforded “good, but lesser, weight to the findings of Dr. Iyer, as he
offered only vague and undefined limitations, and appeared to rely significantly upon

5

Tr. 313.
8

the claimant’s allegations, as opposed to any medical records.”6 The court agrees that
Dr. Iyer’s assessment of “some impairment of functions” in various areas is not very
helpful in the determination of disability. It is clear that claimant experiences some
impairments, but the relevant question is whether he experiences disabling
impairments, and Dr. Iyer’s assessment simply does not shed much light on that
determination.
Finally, claimant asserts that the ALJ improperly considered the assessment of
Dr. Robert Heilpern, the state agency physician. Dr. Heilpern did not treat or
examine claimant. Instead, he completed a Residual Functional Capacity Assessment
after reviewing claimant’s medical records. Dr. Heilpern indicated that claimant
could occasionally lift and/or carry 50 pounds, and frequently lift and/or carry 25
pounds. He could stand and/or walk 6 hours, and also sit 6 hours, during an 8-hour
work day. He could perform unlimited pushing and pulling movements; frequently
climb ramps and stairs; never climb ladders, ropes, or scaffolds; and frequently stoop,
kneel, crouch, and crawl. He could perform unlimited overhead reaching and feeling,
but his ability to perform gross and fine manipulation would be limited in the left
hand. He would have no visual or communicative limitations. He could have
unlimited exposure to wetness, noise, fumes, odors, dusts, gases, and poor ventilation,
but he would need to avoid concentrated exposure to extreme cold and heat, humidity,
6

Tr. 27.
9

and vibration, and he would need to avoid all exposure to hazards such as machinery
and heights. The limitations Dr. Heilpern assessed were the result of gout.7 Dr.
Heilpern also stated:
Clmt has MDI for Gout, however, he is noncompliant with meds.
If clmt were compliant with meds and/or sought treatment for his
condition, he would likely have improvement of his symptoms. Imaging
does not show any joint damage due to the Gout. During an
exacerbation, clmt is likely to have limitations on his handling and
fingering. It is reasonable to assume that clmt would have some
limitations during an exacerbation of gout, but it would likely not be to
the severity shown in CE dated 2/10/15 [Dr. Iyer’s examination report]
with medication treatment and compliance.
Tr. 81 (alteration supplied).
The ALJ afforded Dr. Heilpern’s assessment significant weight, because it was
“the only comprehensive assessment of the claimant’s physical capabilities,” and
because it was “generally consistent with, and supported by, the treating source
medical records and he has a greater expertise in the regulatory requirements.”8
Claimant asserts that it was wrong for the ALJ to give significant weight to Dr.
Heilpern’s opinion because Dr. Heilpern did not examine claimant. Contrary to
claimant’s suggestion, Social Security regulations provide that the opinions of state
agency physicians are entitled to substantial consideration. See 20 C.F.R. §§
404.1527(e) & 404.1513a(b)(1) (stating that, while the ALJ is not bound by the
7

Tr. 79-81.

8

Tr. 27.
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findings of a State Agency physician, the ALJ should consider such a reviewing
physician to be both “highly qualified” and an “expert” in Social Security disability
evaluation). See also Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981)
(“The Secretary was justified in accepting the opinion of Dr. Gordon, a qualified
reviewing physician, that was supported by the evidence, and in rejecting the
conclusory statement of Dr. Harris, a treating physician, that was contrary to the
evidence.”); Surber v. Commissioner of Social Security Administration, No. 3:11-cv1235-J-MCR, 2013 WL 806325, *5 (M.D. Fla. March 5, 2013) (slip copy) (“State
agency medical consultants are non-examining sources who are highly qualified
physicians and experts in Social Security disability evaluation, and their opinions may
be entitled to great weight if supported by evidence in the record.”). Moreover, the
ALJ did not rely solely upon Dr. Heilpern’s assessment; he also considered claimant’s
testimony, the medical records, claimant’s work history, and Dr. Iyer’s consultative
report. The ALJ’s decision to give substantial weight to Dr. Heilpern’s assessment
was supported by substantial evidence of record.
In summary, the court concludes the ALJ’s decision was based upon substantial
evidence and in accordance with applicable legal standards. Accordingly, the
decision of the Commissioner is due to be affirmed.
An appropriate Final Judgment will be entered contemporaneously herewith.

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DONE this 20th day of August, 2018.

______________________________
United States District Judge

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