Weir v. Social Security Administration, Commissioner

Filing 11

MEMORANDUM OPINION Signed by Judge Karon O Bowdre on 5/30/13. (SAC )

FILED
2013 May-30 PM 03:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DOROTHY JEWELL WEIR

Plaintiff
vs.

MICHAEL ASTRUE
COMMISSIONER OF
SOCIAL SECURITY

Defendant

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CIVIL ACTION NO.
2:11-CV-03998-KOB

MEMORANDUM OPINION
I. INTRODUCTION
On March 10, 2010, the claimant, Dorothy Jewel Weir, applied for a period of disability and
disability insurance benefits under Title II, and supplemental security income under Title XVI of the
Social Security Act. (R. 11). The claimant alleged disability beginning on June 6, 2009, arising from
gout in both feet. (R. 129). The Commissioner denied the claims initially on May 24, 2010. (R. 11).
The claimant timely filed a request for a hearing before an Administrative Law Judge, and the ALJ
held the hearing on June 16, 2011. (R. 25). In an opinion dated July 19, 2011, the ALJ found that the
claimant was not disabled under sections 216(i) and 223(d) of the Social Security Act, and, therefore,
was ineligible for both a period of disability and disability insurance benefits, as well as
supplemental income. (R. 22). The Appeals Council subsequently denied the claimant’s request for
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review on September 23, 2011, and the ALJ’s decision became the final decision of the
Commissioner of the Social Security Administration. (R. 1). As the claimant has exhausted her
administrative remedies, this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
For the reasons stated below, this court affirms the decision of the Commissioner.
II. ISSUES PRESENTED
The court has before it the following issues for review:
(1)
(2)
(3)

(4)

whether the ALJ and the Appeals Council properly considered Dr. Guy Dewees’s
medical opinion obtained by counsel after the hearing;
whether the ALJ properly considered all of the claimant’s impairments in
combination with each other in determining whether the claimant was disabled;
whether the ALJ properly applied the Eleventh Circuit’s three-part pain standard, and
thus, properly discredited the claimant’s subjective testimony of pain and tingling in
her feet; and
whether the ALJ committed reversible error in considering the claimant’s
noncompliance with her treating physician’s plan of care in light of the claimant’s
financial hardship.
III. STANDARD OF REVIEW

The standard for reviewing the Commissioner’s decision is limited. This court must affirm
the Commissioner’s decision if the Commissioner applied the correct legal standards and if the
factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham v. Apfel,
129 F.3d 1420 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
“No . . . presumption of validity attaches to the [Commissioner’s] legal conclusions,
including determination of the proper standards to be applied in evaluating claims.” Walker, 826
F.2d at 999. But this court does not review the Commissioner’s factual determinations de novo. The
court will affirm those factual determinations that are supported by substantial evidence. “Substantial
evidence” is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
2

This court must “scrutinize the record in its entirety to determine the reasonableness of the
[Commissioner’s] factual findings.” Walker, 826 F.2d at 999. A reviewing court must look not only
to those parts of the record that support the decision of the ALJ, but also must view the record in its
entirety and take into account evidence that detracts from the evidence on which the ALJ relied.
Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).
IV. LEGAL STANDARD
Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person
cannot “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). To
make this determination, the Commissioner employs a five-step, sequential evaluation process:
(1)
(2)
(3)
(4)
(5)

Is the claimant presently unemployed?
Is the claimant’s impairment severe?
Does the claimant’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
Is the claimant unable to perform his or her former occupation?
Is the claimant unable to perform any other work within the national
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); 20 C.F.R. §§ 404.1520, 416.920.
A hearing before an ALJ is not an adversarial proceeding; thus, the ALJ has a duty to develop
a full and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); Graham, 129 F.3d
at 1422. This duty requires the ALJ “to scrupulously and conscientiously probe into, inquire of, and
explore for all relevant facts.” Welch v. Bowen, 854 F.2d 436, 440 (11th Cir. 1988). The claimant
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in a proceeding may submit evidence without restriction until the ALJ renders his decision. 42
U.S.C. § 402(j)(2). New and material evidence may be presented to the Appeals Council, and the
Council must consider such evidence in determining whether to review the ALJ’s decision. 20
C.F.R. §§ 404.967, 404.970(b); Falge v. Apfel, 150 F.3d 1320, 1322-24 (11th Cir. 1998). New
evidence is material if a reasonable possibility exists that the new evidence would change the
administrative result. Id. at 1323.
Where a claimant alleges multiple impairments, the Commissioner must consider the
combined effect of all impairments in determining disability, not merely the individual effects of the
several impairments. Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990); Walker, 826 F.2d at
1001; 20 C.F.R. § 416.923. Even where an individual impairment would not render the claimant
disabled, the combination of the claimant’s impairments may establish disability. Caulder v. Bowen,
791 F.2d 872, 880 (11th Cir. 1986).
When evaluating subjective complaints such as pain, the Commissioner must apply the
Eleventh Circuit’s three-part pain standard. The Commissioner must determine whether
(1)
(2)
(3)

there is evidence of an underlying medical condition; and either
objective medical evidence confirming the severity of the alleged pain arising
from that condition, or
that the objectively determined medical condition is of such a severity that it
can reasonably be expected to cause the alleged pain.

Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Holt v. Sullivan, 921 F.2d 1221, 1223 (11th
Cir. 1991); Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986).
Further, in evaluating subjective claims including pain, the Commissioner may consider the
claimant’s ability to perform certain activities of daily living (ADLs), as well as the impact of such
activities on the claimant’s credibility. 20 C.F.R. §§ 404.1529(c)(3)(I), 416.929(c)(3)(I); see also
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Macia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) (finding that ADLs may be relevant to the
fourth step of the sequential process).
Finally, refusal by a claimant to follow prescribed medical treatment without good cause will
preclude a finding of disability. 20 C.F.R. § 404.1530(b). However, poverty may excuse failure to
follow prescribed medical treatment. Ellison, 355 F.3d at 1275. If the ALJ relies solely on a
claimant’s noncompliance as grounds to deny disability benefits, and the record indicates that the
claimant could not afford prescribed medical treatment, the ALJ must make a determination
regarding the claimant’s ability to afford treatment. Id. If the ALJ does not substantially or solely
base his finding of nondisability on the claimant’s noncompliance, though, the ALJ does not commit
reversible error by failing to consider the claimant’s financial situation. Id.
V. FACTS
The claimant was fifty-three years old at the time of the administrative hearing and has
completed the twelfth grade. (R. 114, 130). The claimant has past work experience as a laundry
worker. (R. 40). The claimant alleged that she was disabled by gout beginning on June 6, 2009. (R.
114, 129).
Physical Limitations
On August 27, 2007, the claimant visited her primary care physician, Dr. Xuan-Dao Thi
Pham, complaining of a pruritic rash on her hands (later diagnosed as edematous dermatitis on
January 25, 2008, see discussion infra). (R. 297). Dr. Pham described the condition as dermatitis,
and prescribed a hydrocortisone topical cream. In addition, Dr. Pham noted hypertension,
hyperlipidemia, and obesity as current problems. (R. 300).
On January 14, 2008, the claimant visited Dr. Pham complaining of pain and swelling in her
5

right ankle. The claimant told Dr. Pham that her ankle had been hurting for approximately one week,
and that she had experienced similar symptoms the previous year. (R. 286). Dr. Pham diagnosed the
claimant with gout and anemia, in addition to her systemic hypertension, hyperlipidemia, and obesity
(all diagnosed in 2003). Dr. Pham prescribed ferrous sulfate, Indocin (for gout), Prinivil,
hydrocholorothiazide, and Crestor. (R. 289).
On January 25, 2008, the claimant again visited Dr. Pham, complaining that she had been
itching all over for three days, and had a rash on her right fingers. (R. 280). Dr. Pham diagnosed the
claimant with atopic eczematous dermatitis, and prescribed a topical steroid and generic Benadryl
to treat the itching. (R. 283).
On February 25, 2008, the claimant returned to Dr. Pham for a followup visit where she
stated that she was doing well and complained of no new symptoms. (R. 273) Dr. Pham noted that
the atopic eczematous dermatitis had improved and renewed the prescription for the topical steroid
and the generic Benadryl. (R. 276).
The claimant complained of no symptoms again until March 16, 2009, when she saw Dr.
Pham because of frequent and painful urination. (R. 235). Dr. Pham diagnosed the claimant with a
urinary tract infection and prescribed Bactrim. Dr. Pham also noted hypertension, hyperlipidemia,
and obesity as continuing problems, but made no mention of any dermatitis. (R. 238).
On June 3, 2009, the claimant visited Dr. Pham at the Baptist Health Center Emergency
Room, complaining of foot pain. The claimant reported that she had experienced intermittent pain
in her toes and feet for the previous six months, and that she had experienced constant pain for the
past fourteen days. (R. 184). Dr. Pham diagnosed the claimant with gout and told her that she had
too much uric acid in her blood. Dr. Pham prescribed Lortab and a steroid for the claimant’s pain.
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(R. 179).
On June 10, 2009, the claimant returned to Dr. Pham, who diagnosed the claimant with gout,
but noted that the claimant reported no foot pain at the visit. (R. 225).
The claimant visited Dr. Pham again on October 16, 2009 for a follow up, but complained
of no symptoms. (R. 216). Dr. Pham noted hypertension, hyperlipidemia, obesity, and gout as current
problems, but commented that the gout was not a problem at that visit. (R. 219).
At another followup visit on November 17, 2009, the claimant did not complain of any goutrelated pain, and Dr. Pham made no mention of gout as a current problem. (R. 209, 212).
The claimant visited Dr. Pham for another followup on February 24, 2010, again complaining
of no specific problems. (R. 203). Dr. Pham noted Hypertension, Hyperlipidemia, Obesity, and
Nicotine Dependence as current problems, but made no mention of gout. (R. 206).
On March 10, 2010, the claimant completed her application for disability benefits and
Supplemental Security Income with the Social Security Administration. The application contained
a functional assessment questionnaire. On the form, the claimant stated that her ADLs included
washing her face, preparing meals, cleaning the kitchen, childcare, and propping her feet up while
watching television. She stated that her condition limited the amount of time she could stand, and
the pain occasionally woke her during the night. The claimant reported that she could not wear
certain types of shoes and that she struggled to stand in the tub. Further, she claimed that her
condition inhibited her toilet use because her knees would “give out.” (R. 145-151).
The claimant wrote that she washed dishes every day and that she usually required fifteen
minutes to complete the dishwashing. The claimant also wrote that she went outside every day, and
that she could drive when required. She wrote that she shopped for food and personal hygiene

7

products approximately once a month with her daughter. The claimant then wrote that because of
her condition, she struggled in lifting, squatting, standing, walking, sitting, kneeling, climbing stairs,
and using her hands. Id.
The claimant further elaborated that she could lift only twenty-five pounds, could not squat
when her knees were swollen, could stand for only ten to fifteen minutes at a time, had to prop up
her feet when sitting, could not kneel when her knees were swollen, could not climb stairs, and had
to wear gloves when working with her hands. However, she then stated that she could walk
approximately thirty minutes before needing to take a ten minute break. She finally wrote that she
had an unspecified brace or splint (prescribed in 2007), and that she had glasses (prescribed in 2003).
She claimed that she needed to use both the brace and her glasses every day. Id.
The claimant visited Dr. Pham on March 24, 2010, this time complaining of pain associated
with gout in her left foot. The claimant stated that she experienced the pain for approximately two
weeks and requested prescription Indocin to relieve the pain in her right foot. (R. 195). Dr. Pham
noted hypertension, hyperlipidemia, obesity, nicotine dependence, and gout as current problems, and
prescribed Indocin for the claimant’s gout pain. (R. 198).
On May 19, 2010, the claimant visited Dr. Pham complaining of a gout flare up in her right
knee, right ankle, and left elbow. The claimant stated that the prescription Indocin helped her gout
pain. (R. 329).
On June 28, 2010, the claimant visited the Baptist Health Center Emergency Room1
complaining of joint pain in both hands, her left elbow, and left ankle. The emergency room advised

1

No documentation of this visit exists in the administrative record. The only reference to
the visit appears at R. 326 in a note by Dr. Pham.
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the claimant to visit a rheumatologist. (R. 326).
On August 24, 2010, the claimant visited Dr. Pham and requested a referral to a
rheumatologist. Dr. Pham listed “consultation with a rheumatologist” as “therapy” associated with
this visit, but did not mention a referral at this visit. Dr. Pham also noted the presence of tophus on
the claimant’s left elbow, and scaly, hyperpigmented, thick skin on the claimant’s fingers on both
hands. (R. 327, 328).
On October 25, 2010, the claimant returned to Dr. Pham complaining of weakness and
buckling in both knees when standing, ascending, and descending stairs. The claimant had
experienced this issue for approximately 2 months. Dr. Pham diagnosed the claimant with
hypertension, esophageal reflux (resolved without any medication), hyperlipidemia, obesity, gout,
nicotine dependence (resolved by smoking cessation in August, 2010), eczematoid dermatitis (with
a referral to a dermatologist on December 21, 2010), and localized osteoarthritis of the knee (with
a referral to a rheumatologist on December 13, 2010). (R. 324-328).
The claimant saw Dr. Pham for a follow up on December 2, 2010, where she complained of
no gout-related symptoms. Dr. Pham noted that the gout was stable, and not a problem at that visit.
Dr. Pham further recorded no musculoskeletal symptoms, no muscle aches, no arthralgia, no muscle
cramps, and no muscle spasms. (R. 471).
On December 13, 2010, the claimant visited Dr. Laura Hughes, a rheumatologist and
internist, at the Cooper Green Mercy Hospital Rheumatology Clinic. (R. 444). The claimant
complained of joint pain in both hands, her left elbow, and left ankle. The claimant reported having
gout in both feet for 3 years, resulting in swelling in her first toe, foot, and ankle. The claimant
reported knee pain and swelling, as well as elbow pain since June 2010. Additionally, the claimant

9

reported constant shoulder pain, stating that she could not lay on her shoulder and that she
experienced pain in rotation and overhead abduction. Dr. Hughes also noted that the claimant had
puffy hands with dry patches, and numbness in her feet. The claimant described her overall pain level
as a 10 out of 10. (R. 456). Dr. Hughes administered a subacromial injection to the claimant’s left
shoulder to alleviate her pain. Dr. Hughes also prescribed Colchicine and Allopurinol for the
claimant’s gout. (R. 455, 456).
On December 21, 2010, the claimant visited Dr. Ryan Nash, a dermatologist at the Cooper
Green Mercy Hospital Dermatology Clinic. The claimant complained of blisters on her hands for the
previous six months. She stated that her hands itched constantly, that she received fluticasone cream
from an outside facility, and that she used Dial soap and Vaseline. Dr. Nash diagnosed the condition
as hyperpigmented macules with collarettes of scale on the volar surfaces of her fingers and palms.
Dr. Nash classified the condition as dyshidrotic eczema and prescribed both Benadryl and the use
of special soaps and petroleum jelly on her hands. (R. 440).
On March 14, 2011, the claimant returned to the Cooper Green Rheumatology Clinic
complaining of joint pain. Dr. Archana Jain, a rheumatologist, diagnosed the claimant with
asymmetric polyarthritis (likely gout), noting no improvement in the claimant’s shoulder pain. Dr.
Jain did note that the claimant’s eczema was clearing. The claimant reported shoulder pain, painful
buckling knees, and cramps throughout her legs, but no gout flares since her previous visit to the
clinic on December 13, 2010. Dr. Jain renewed the claimant’s prescription for Colchicine and
Allopurinol for the claimant’s gout. The claimant also received injections of Depo-Medrol and
Lidocaine in her left shoulder. (R. 426, 427). The clinic then referred the claimant to outpatient
physical therapy for shoulder rehabilitation and strengthening. (R. 424).

10

The claimant sought treatment at Cooper Green with Dr. Herman Turner, a physical therapist,
on March 17, 2011. The claimant reported that her legs were becoming very tight, but that her
shoulder was moving better. Dr. Turner diagnosed the claimant with chondromalacia patellae of the
knees and subacromial impingement in her left shoulder. Dr. Turner also noted that the claimant’s
objectives for therapy were increased range of motion in the shoulder (Flexion/Abduction at 150
degrees), and increased strength in the right quadriceps (4-/5). Dr. Turner concluded that the
claimant’s treatment had increased her overall functional mobility and strength, and recommended
physical therapy one to two times per week. (R. 422).
On May 3, 2011, the claimant visited Dr. Pham. The claimant did not report any new
symptoms, but Dr. Pham noted that the claimant had taken Meloxicam for one month to treat
shoulder pain as prescribed by Dr. Hughes.2 Dr. Pham listed the shoulder pain as localized
osteoarthritis of the shoulder. (R. 465-467).
On May 25, 2011, the claimant visited the Cooper Green Emergency Room complaining of
moderate gout pain in her right foot and right first toe. The claimant reported that she ran out of her
gout medication. Dr. Abiodun Badewa diagnosed her with acute gouty arthritis. The record does not
indicate what if any treatment Dr. Badewa administered, but Dr. Badewa did note that the claimant
had run out of her gout medication. (R. 483, 484).
On July 12, 2011, after the ALJ hearing, the claimant visited Dr. Guy B. Dewees at the
Norwood Clinic. Dr. Dewees evaluated the claimant and found that she could lift only 10 pounds
occasionally or less frequently. Dr. Dewees found that the claimant could sit or stand only one hour

2

Neither rheumatologist noted Meloxicam on their respective records, but Dr. Pham
specifically remarked that Dr. Hughes prescribed the drug. The hospital medicine log lists the
prescribing physician as an “outside provider.” (R.459).
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out of an eight-hour day, and that the claimant could never perform pushing and pulling movements,
climbing and balancing, stooping, and reaching in the course of work activities. (R. 169).
Dr. Dewees then gave a clinical assessment of pain on a form the claimant’s attorneys
prepared for this examination. To the question, “to what extent is pain of significance in the
treatment of this patient,” Dr. Dewees selected “pain is present to such an extent as to be distracting
to adequate performance of daily activities or work.” (R. 170). When asked, “to what extent will
physical activity, such as prolonged sitting, walking, standing, bending, stooping, moving of
extremities, etc., increase the level of pain experienced by this patient,” Dr. Dewees selected “greatly
increased pain and to such a degree as to cause distraction from tasks or total abandonment of tasks.”
Id. Next, when asked “in your best judgment, to what extent will the side effects of the prescribed
medication impact upon this patient’s ability to perform work activity,” Dr. Dewees selected “drug
side effects can be expected to be severe and to limit effectiveness due to distraction, inattention,
drowsiness, etc.” (R. 171). Dr. Dewees finally answered “does this patient have an underlying
medical condition consistent with the pain he or she experiences” with “yes.”Id.
At the same examination, Dr. Dewees completed a “Clinical Assessment of
Fatigue/Weakness.” (R. 172). To the question, “to what extent is fatigue/weakness of significance
in the treatment of this patient,” Dr. Dewees selected “fatigue/weakness is present, but does not
prevent functioning in everyday activities or work.” Id. When asked “to what extent will physical
activity, such as walking, standing, bending, stooping, moving of extremities, etc. increase the level
of fatigue/weakness experienced by this patient,” Dr. Dewees chose “some increase, but not to such
an extent as to prevent adequate functioning in such tasks.” Id. Next, Dr. Dewees answered the
question “in your best judgment, to what extent will the side effects of the prescribed medication

12

impact upon this patient’s ability to perform work activity,” with “some side effects may be present,
but not to such a degree as to create serious problems in most instances.” (R. 173). To the question
“does this patient have an underlying medical condition consistent with the fatigue/weakness he or
she experiences,” Dr. Dewees selected “yes.” Id. The claimant’s attorneys prepared both forms, and
the forms contained multiple choice answers for Dr. Dewees to select.
The ALJ Hearing
The Commissioner denied the claimant’s applications for Disability Insurance Benefits and
Supplemental Security Income on May 24, 2010. (R. 48, 53). The claimant requested a hearing
before an ALJ, and the ALJ held the hearing on June 16, 2011. (R. 95). In addition to testimony by
the claimant, the ALJ also heard testimony from Dr. William Green, a vocational expert. (R. 93). The
ALJ began the hearing by questioning the claimant’s attorney. At the hearing, the claimant alleged
disability because of gout in both feet. After a serious episode of gout on June 6, 2009, the claimant’s
attorney testified that the Northern Health Clinic ER gave the claimant steroids to treat the gout. The
claimant’s attorney stated that the claimant found the medication beneficial, but she still experienced
tenderness in her feet, rendering her unable to complete more than about two hours of household
work per day. The claimant’s attorney testified that the claimant’s disability began on June 6, 2009.
(R. 27, 28).
The ALJ noted that the claimant’s most severe bouts of gout aligned with her running out of
gout medication. The ALJ asked the claimant if she had financial difficulties with keeping her
medication in stock, and the claimant agreed and stated that she sometimes could not afford her
medicine and had to wait until her daughter received a pay check to purchase more medicine. The
ALJ then took notice of the claimant’s near monthly visits to Dr. Pham in 2009 and 2010, remarking

13

that sometimes the records indicated no problems with gout. (R. 30, 31).
The ALJ next questioned the claimant about the problems in her knees and shoulder. The
claimant stated that she had arthritis in her knees and was seeing a physical therapist. The claimant
stated that the therapy was effective, but she still experienced intermittent pain and swelling. The
ALJ remarked that the Meloxicam prescribed for the claimant’s shoulder pain should be effective
for any joints with arthritic problems, and that the claimant was scheduled to receive another
injection in her shoulder the following month. However, he did not ask the claimant about the
effectiveness of Meloxicam in treating her shoulder pain. (R. 32-34).
The ALJ proceeded to discuss with the claimant her typical day. The claimant stated that she
generally began her day around 9:30 AM. She then testified that she would cook breakfast, lounge
around the house, and finally clean up after her breakfast around 11:00 AM. Because her feet would
begin to tingle, the claimant asserted that she needed periodic breaks while cleaning the kitchen.
Preferring not to eat a lot of food during the day, the claimant stated that she generally ate only an
orange for lunch. The claimant then testified that after lunch she watched television. (R. 34, 35).
The claimant stated that she lived with her thirty-year-old daughter and her three
grandchildren (ages 6, 4, and 6 months at the time of the hearing). (R. 36). When the grandchildren
were not in school, the claimant maintained that she cared for them during the day. The claimant
testified that she sometimes prepared dinner for her entire family, while other times the
grandchildren prepared themselves bowls of cereal. The claimant then noted that after dinner she
usually bathed and watched television until approximately 9:00 PM when she went to bed. (R. 3638).
The ALJ then asked the claimant about her activities outside the house. First, the ALJ asked

14

the claimant if she performed any shopping. The claimant stated that she sometimes accompanied
her daughter to shop for groceries and personal hygiene products. The claimant stated, however, that
she did not drive. (R. 38).
The claimant’s attorney then questioned her about other housework. The claimant admitted
to washing dishes or cleaning the kitchen during the day, but claimed that she had to take frequent
breaks because her feet would tingle when standing for extended periods. When her feet tingled, the
claimant stated that she would elevate her feet in a small chair with a pillow. The claimant also stated
that while she watched television during the day, she elevated her feet. (R. 38, 39).
Finally the ALJ asked the claimant about certain restrictions that Dr. Pham imposed on her.
The claimant stated that Dr. Pham advised her not to drink alcohol, and not to eat dry beans, liver,
and many other foods.3 The claimant testified to no times when Dr. Pham imposed physical
limitations on her. (R. 39, 40).
The ALJ then examined Dr. Green, the Vocational Expert. Dr. Green testified that the
claimant had two primary sources of income in the previous fifteen years: UniFirst Corp and
Howards Laundry. Dr. Green classified both of these jobs as laundry worker III, semi-skilled, with
an exertional level of light. Dr. Green stated that none of the skills associated with those positions
transfer to other jobs, as those skills were unique to the industry. The ALJ then asked Dr. Green if
a hypothetical individual with the same age, education, and work experience as the claimant, who
could perform light exertion and required a sit/stand option could perform the laundry worker III
position. Dr. Green responded that such an individual could not perform the laundry worker III
position. (40, 41).

3

These restrictions do not appear otherwise in the administrative record.
15

However, Dr. Green did identify two jobs that such an individual could perform. First, Dr.
Green identified the cashier position as an unskilled job with light exertion (though some are
sedentary), and the sit/stand option can easily be accommodated with a stool. Dr. Green testified that
approximately 1,700 cashier jobs exist in Alabama, with approximately 110,000 jobs nationally. Dr.
Green then identified the job of gate guard as a semi-skilled and light exertion position. Dr. Green
stated that approximately 1,200 gate guard jobs exist in Alabama and approximately 115,000 jobs
exist nationally. Dr. Green testified that these two jobs were only representative examples, and that
other jobs existed in the national economy that fit the specified profile. Dr. Green testified that
cashier and assembly worker also would qualify as unskilled, sedentary positions, and that these
positions exist in significant numbers in the national economy. (R. 41-43).
With unskilled jobs, Dr. Green testified that an employee generally could take a fifteen
minute break in the morning and afternoon, thirty minutes for lunch, and an unscheduled, five minute
break in both the morning and afternoon. Dr. Green noted that an unskilled worker in the present job
market would generally be permitted one absence per month. (R. 43, 44).
The claimant’s attorney then questioned Dr. Green about a hypothetical worker with
symptoms similar to those reported by the claimant. The attorney asked Dr. Green about the viability
of performing those jobs when the employee needed to elevate her feet three to four times a day, as
long as forty-five minutes per time. Dr. Green testified that such a requirement did not “lend itself
to successful employment.” Dr. Green then clarified that he was aware of no jobs that an individual
with such a need to recline throughout the day could perform successfully. (R. 44, 45).
The ALJ Decision
On July 19, 2011, the ALJ issued a decision finding that the claimant was not disabled under

16

Sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act, and denied her application for
a period of disability and disability insurance benefits, and supplemental security income. (R. 22).
Before announcing his findings of fact, the ALJ described in great detail the five-step sequential
evaluation process that would be the basis of his analysis. (R. 12, 13).
First, the ALJ found that the claimant met the insured status requirement of the Social
Security Act through December 31, 2009. Then, under the first step of the five-step sequential
evaluation process, the ALJ found that the claimant had engaged in no substantial gainful
employment since June 6, 2009, the alleged onset date of her disability. Next, under the second step
of the five-step sequential evaluation process, the ALJ found that the claimant had the severe
impairments of obesity, gout, osteoarthritis, hypertension, and hyperlipidemia. The ALJ noted that
the claimant had periodically complained of, and received treatment for dermatitis on her hands, but
that the claimant’s reports of rash-related symptoms were inconsistent. The ALJ remarked that
although the claimant reported no rash-related symptoms to Dr. Pham after June 2008, she listed on
her application for benefits that her hands blistered after frequent use. The ALJ found that although
such a case of dermatitis was a medically determinable impairment, her condition was not so
frequent as to significantly limit her ability to perform work-related activities, as evidenced by her
performance of ADLs. (R. 13, 14).
Similarly, the ALJ evaluated the claimant’s shoulder injury, finding that although the
claimant noted September 2010 as the onset date of her shoulder pain, she made no mention of it to
any physician until her visit to the rheumatology clinic in December 2010. The ALJ noted that at her
March 17, 2011, physical therapy evaluation, the claimant expressed difficulty in completing ADLs
involving her upper extremities. The ALJ also noted that after the session, the claimant showed

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marked improvement, and stated that her shoulder felt better. Thus, the ALJ found that the shoulder
impingement was not an impairment that, given proper rehabilitation, would present more than
minimal work-related limitations beyond twelve months of onset. The ALJ finally noted that Dr.
Pham’s diagnosis of Nicotine Dependence, though medically determinable, imposed no work-related
limitations upon the claimant, who had ceased smoking in August 2010. (R. 14, 15).
Under the third step of the five-step sequential evaluation process, the ALJ found that the
claimant did not have an impairment or combination of impairments that met or equaled one of the
listed impairments. Though the former listing for obesity was now obsolete, the ALJ mentioned his
inclusion of obesity because SSR 02-1p and Sections 1.00Q and 4.00I of the listings required
evaluation of obesity at this step, as it is a risk factor for an increased chance of muscoloskeletal or
cardiovascular impairments. Id.
First, the ALJ found that the claimant’s impairments did not meet the criteria in section 1.02
of Appendix 1 of the listings, because she retained the ability to ambulate effectively in the face of
any joint dysfunction or impairment. The ALJ noted that Dr. Pham prescribed the claimant a leg
brace in 20074, but that the claimant routinely ambulated without the use of any assistive device.
Further, the ALJ concluded that the claimant experienced an altered gait only during rare and shortlived gout episodes. Id.
Similarly, the ALJ found that the claimant’s gout-related impairments did not meet the
criteria in section 14.09 of the listings. The claimant presented no evidence that her gout affected any
other body system to at least a moderate degree of severity, no evidence of severe constitutional
symptoms associated with gout, and no evidence that the gout caused more than mild to moderate

4

The claimant’s medical records do not reflect a leg brace in 2007.
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limitation of ADLs. Finally, the ALJ found that the claimant’s impairments did not meet the criteria
in section 4.02 of the listings because no evidence existed in the record that the claimant developed
any cardiac complications, and both the claimant’s hypertension and hyperlipidemia appeared stable
with the use of medication. (R. 15, 16).
The ALJ then undertook to determine the claimant’s residual functional capacity (RFC). The
ALJ concluded that the claimant had the RFC to lift, carry, and push/pull 20 pounds occasionally,
and 10 pounds frequently; to stand and walk, combined, for six hours in an eight-hour day; to sit for
six hours in an eight-hour day; and to otherwise perform light work with a sit or stand option. In
performing this evaluation, the ALJ announced a truncated version of the Eleventh Circuit’s pain
standard. First, the ALJ considered whether the claimant exhibited a medically determinable physical
or mental impairment. Second, the ALJ considered the “intensity, persistence, and limiting effects”
of the claimant’s impairment, and the extent to which the impairments affected the claimant’s
functioning. Absent objective medical evidence, the ALJ announced that he would evaluate the
credibility of the claimant’s statements against the weight of the entire record. Id.
The ALJ found that although the claimant’s medically determinable impairments could
reasonably cause the symptoms described by the claimant, her statements were not credible to the
extent that they were inconsistent with her own functional capacity assessment and medical history.
The ALJ noted that in her questionnaire, the claimant identified swelling in her feet as the only
condition that limited her ability to work. Further, the ALJ noted that the claimant wrote that she
could lift twenty-five pounds, could stand for ten to fifteen minutes, walk for thirty minutes, had
difficulty climbing stairs, needed frequent rests to elevate her feet, and needed to wear protective
gloves. Although medical records do indicate increased uric acid levels along with joint pain,

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swelling, and warmth, the ALJ found no evidence of uric acid crystal formation in the record, and
that the claimant’s gout episodes were well controlled with medication. The ALJ then stated that at
no time during the six month period prior to the claimant’s initial ER visit for gout did the claimant
mention any such symptoms to Dr. Pham, even though she complained to the ER that she had
experienced gout symptoms for six months. The ALJ also found that Dr. Pham’s examinations
regularly revealed no musculoskeletal issues. (R. 17).
The ALJ remarked that eight months after the claimant’s ER visit, she again reported gout
in her left foot to Dr. Pham. The ALJ reasoned that his pain coincided with the claimant running out
of Indocin. The ALJ also found that at the October 25, 2010 visit, the claimant reported that her
knees were “giving out” when standing or descending stairs, but Dr. Pham found no abnormalities
or evidence of dysfunction associated with the knees. The ALJ further found that on December 2,
2010, the claimant reported no musculoskeletal issues, and Dr. Pham discontinued the Naprosyn.
However, the ALJ noted that only eleven days later at the rheumatology clinic, the claimant reported
that she had experienced right knee and left elbow swelling since June 2010, and that she had
shoulder pain since September 2010. The ALJ also articulated that while the claimant complained
of numbness in her feet and general stiffness throughout the day at the rheumatology clinic, the clinic
made no findings associated with numbness and the claimant never mentioned such symptoms to
Dr. Pham. (R. 18).
The ALJ further noted that when the claimant visited Dr. Pham again in February 2011, she
made no complaints about her symptoms, and at a rheumatology follow up on March 14, 2011,
reported no gout episodes since her December visit. The ALJ admitted, though, that the claimant did
note bilateral knee pain and cramping in her thighs. However, the ALJ found that the PT attributed

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the claimant’s knee pain to muscle weakness, and therapy improved the claimant’s strength and
range of motion. The ALJ finally remarked that when the claimant returned to the ER for a gout flare
on May 25, 2011, her knee examination was normal, and she admitted that she had run out of gout
medication. Id.
Considering the totality of the medical evidence, the ALJ concluded that the claimant’s joint
pain resulted from a combination of osteoarthritis and gout. Further, the ALJ considered the effect
of the claimant’s obesity on these conditions, and found that while the combination of her
impairments affected certain exertional requirements, such as standing, walking, lifting, carrying,
pushing, and pulling, it did not preclude her from performing all work activity. The ALJ admitted
that it would be reasonable to expect pain associated with gout when the claimant performed such
exertional activities; however, the ALJ found that the claimant’s medical records did not support the
likelihood of similar pains when activities were confined to her residual functional capacity. The
claimant listed gout on her application as the only condition limiting her ability to work, and the ALJ
reasoned that the record did not indicate that her gout episodes were so frequent or severe as to
preclude many common light exertion activities. Further, the ALJ remarked that many of the
claimant’s gout episodes coincided with the claimant not taking gout medication, and that the
claimant was noncompliant with her prescribed gout treatment. In addition, the ALJ found no
evidence that the claimant reported tingling in her feet to Dr. Pham, or evidence of Dr. Pham
advising the claimant to elevate her feet. Although Dr. Pham frequently urged the claimant to lose
weight and exercise, the ALJ found no evidence that Dr. Pham ever instructed her to limit her
physical activity. (R. 19, 20).
The ALJ gave significant weight to Dr. Pham’s records, finding that as the claimant’s long-

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time primary care physician, his recommendations about her improvement and descriptions of her
limitations were credible. Also, the ALJ found credible the ER and specialty clinicians’ reports, as
they were all consistent with Dr. Pham’s findings. Id.
After determining the claimant’s RFC, the ALJ found that the claimant was unable to
perform her past relevant work under the fourth step of the five-step sequential evaluation process.
The vocational expert testified that a hypothetical individual with the claimant’s age, education level,
vocational background, and RFC could not successfully perform the job of laundry worker. The ALJ
also found that the claimant was considered an individual closely approaching advanced age, had
at least a high school education, and could communicate in English. (R. 21).
The ALJ next noted that the transferability of the claimant’s job skills was not material to the
disability determination, as the use of the Medical-Vocational Guidelines as a framework supported
a finding that the claimant was not disabled. The ALJ also found that given the claimant’s age,
education level, work experience, and RFC, and based on Dr. Green’s testimony, a significant
number of jobs existed in the national economy that the claimant could perform. Therefore, the ALJ
found that the claimant had not been disabled under the Social Security Act, from the time of
application on June 6, 2009, through the date of the decision on July 19, 2011. Id.
After the hearing, the clamant attempted to submit Dr. Dewees’s report to the ALJ on July
22, 2011. (Pl.’s Br. 5). However, the ALJ reached his decision on July 19, 2011. (R. 22). The
claimant then included the report as an exhibit to her Appeals Council Brief. (R. 162-173). The
Appeals Council noted that it considered the report in its decision ultimately to not review the ALJ
decision. (R. 1, 4, 5). The claimant’s brief also refers to a narrative report by Dr. Dewees, allegedly
attached to the brief as an exhibit. The claimant stated that she does not know why the narrative

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report does not appear in the administrative record. Further, the narrative report was not actually
attached to the brief. (Pl.’s Br. 4, 5).
VI. DISCUSSION
1. ALJ & Appeals Council Consideration of Dr. Dewees’s Report
The claimant argues that both the ALJ and the Appeals Council improperly failed to consider
Dr. Dewees’s report. However, this court finds that the ALJ was under no obligation to consider
evidence submitted after he rendered his decision, and the Appeals Council expressly considered
Dr. Dewees’s report in making its determination of whether to review the ALJ’s decision.
In a proceeding before an ALJ, a claimant may submit evidence without restriction until the
ALJ renders his decision. 42 U.S.C. § 402(j)(2). Because a hearing before an ALJ is a not an
adversarial proceeding, the ALJ has a duty to develop a full and fair record. Ellison, 355 F.3d at
1276; Graham, 129 F.3d at 1422. This duty ensures that the ALJ’s decision “is rational and
supported by substantial evidence.” Welch, 854 F.2d at 440 (internal quotations and citations
omitted).
When a claimant discovers new evidence after the ALJ renders his decision, the claimant may
present this evidence to the Appeals Council so long as it is both new and material. 20 C.F.R. §
404.970(b); see also Falge, 150 F.3d at n. 4 (11th Cir. 1998).When a claimant presents new and
material evidence, the Appeals Council must consider such evidence only where it relates to the
period on or before the date of the ALJ decision. 20 C.F.R. § 404.970(b). While the Appeals Council
may choose not to review the ALJ’s denial of benefits, it must consider new and material evidence
in determining whether a basis exists for changing the ALJ’s decision. 20 C.F.R. §§ 404.967,
404.970(b); see also Falge, 150 F.3d at 1324. New evidence is material if a reasonable possibility

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exists that the new evidence would change the administrative result. Id. at 1323.
In the present case, the claimant alleged to have submitted Dr. Dewees’s report on July 22,
2011–three days after the date of the ALJ’s July 19, 2011, decision. (Pl.’s Br. 5). After the ALJ
rendered his decision, he was under no obligation to review more evidence from the claimant.
However, the claimant introduced the evidence after the ALJ’s decision but before the Appeals
Council’s decision; thus, the Appeals Council was required to review this evidence so long as it was
new and material.
The Appeals Council did state that it reviewed “the reasons [the claimant] disagree[d] with
the decision and the additional evidence listed on the enclosed Order of Appeals Council.” (R. 1).
Both the Appeals Council Exhibits List and the Order of Appeals Council refer to “a physical
capacities evaluation from Guy B. Dewees, MD dated 7/6/11.” (R. 4, 5). This evaluation was
attached to the end of the claimant’s brief to the Appeal’s Council and appears in the record. (R. 169173). The court notes that this new evidence differs from the ALJ’s determination of the claimant’s
RFC. However, because this new report was based on the examination of a consultative physician
and printed on a form prepared by the claimant’s attorneys, no reasonable possibility exists that this
report would have changed the ALJ’s decision.
The claimant also referred to a narrative report from Dr. Dewees that would limit the
claimant to only sedentary work and less than half an hour of sitting and standing in an eight hour
day. (Pl.’s Br. 5). This narrative report neither appears in the administrative record, nor is attached
to the claimant’s brief to this court. Further, the claimant provided no evidence as to why the
narrative report appears neither in the administrative record, nor as an exhibit to her brief. Although
the claimant’s brief makes assertions about the contents of this report, this court cannot evaluate the

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merits of such assertions without the evidence to support them. Thus, an analysis of whether the
report is new and material is irrelevant, as the report has not been provided to this court.
The court finds that the record contains no narrative report referred to by the claimant, and
that the claimant has offered no evidence explaining the absence of this narrative report from the
record. Therefore, this court finds that any narrative report by Dr. Dewees mentioned by the claimant
is not relevant to this proceeding. Regarding Dr. Dewees’s report of July 6, 2011, this court finds that
the claimant did not submit that report to the ALJ before he rendered his decision; the Appeals
Council clearly considered the report; and no reasonable possibility exists that the report would have
changed the administrative result. As such, this court finds that the ALJ and the Appeals Council
properly considered that report.
2. Combination of Impairments
Next, the claimant alleges that the ALJ failed to properly consider the combined effects of
the claimant’s impairments on her functional capacity. This court finds that the ALJ properly
considered the combination of all the claimant’s impairments in rendering his decision that the
claimant was not disabled under the Social Security Act.
In step two of the sequential evaluation process, the Commissioner must determine whether
the claimant has a severe impairment or combination of impairments that causes more than a
minimal limitation on a claimant’s ability to function. David v. Shalala, 985 F.2d 528, 532 (11th Cir.
1993). When a claimant alleges multiple impairments, the Commissioner must consider the
impairments in combination to determine whether the combined effect of the impairments renders
the claimant disabled. Jones v. Dep’t of Health and Human Services, 941 F.2d 1529, 1533 (11th Cir.
1991).

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Even if the individual impairments would not severally render the claimant disabled, the
combination of the claimants impairments may establish disability. Caulder, 791 F.2d at 880.
Statements from an ALJ that the claimant “did not have an impairment or combination of
impairments” that met the listings constitute evidence that he considered the combination of a
claimant’s impairments. Wilson, 284 F.3d at 1224; see also Jones, 941 F.2d at 1533, Wheeler v.
Heckler, 784 F.2d 1073, 1076 (11th Cir. 1986).
In this case, the ALJ concluded that the claimant did not have “an impairment or combination
of impairments that meets or medically equals one of the listed impairments.” (R. 15). Further, the
ALJ noted that while the former listing for obesity is obsolete, he considered obesity, as “the
combined effects of obesity with musculoskeletal or cardiovascular impairments can be greater than
the effects of each of the impairments considered separately.” Id. Later, the ALJ stated specifically
that he considered “the additional and cumulative effects of the claimant’s obesity . . . on her other
impairments,” and that “the evidence fails to show that the combined effect of her impairments
prevents her from performing all work activity.” (R. 19).
Because the ALJ clearly considered the combination of the claimant’s impairments, not just
the individual effects of the claimant’s several impairments, the ALJ applied the correct legal
standard for considering the claimant’s multiple impairments, and substantial evidence supports the
ALJ’s decision.
3. Eleventh Circuit Pain Standard and the Claimant’s Testimony
The claimant also alleges that the ALJ improperly applied the Eleventh Circuit three-part
pain standard and improperly discredited the claimant’s own testimony. This court finds that the ALJ
properly applied the Eleventh Circuit pain standard, and properly discredited the claimant’s own

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testimony by referring to various ADLs the claimant routinely performed.
When a claimant attempts to establish her disability through testimony of subjective
symptoms, the Eleventh Circuit three-part pain standard applies. The pain standard requires a
showing of
(1) evidence of an underlying medical condition and either
(2) objective medical evidence that confirms the severity of the alleged pain arising
from the condition or
(3) that the objectively determined medical condition is of such a severity that it can
be reasonably expected to give rise to the alleged pain.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see also Holt, 921 F.2d at 1223.
Pain alone can be disabling, and in some circumstances a claimant’s subjective testimony,
supported by medical evidence that satisfies the pain standard, can be sufficient to support a finding
of disability. Foote, 67 F.3d at 1561. The ALJ is not required to recite the pain standard verbatim,
but must make findings indicative of a correct application of the standard. See Brown v. Sullivan,
921 F.2d 1233, 1236 (11th Cir. 1991). When the ALJ decides to discredit the claimant’s testimony
of pain, he must do so explicitly, and with adequate reasons. Id. In discrediting the claimant’s
complaints of pain, the ALJ may consider the claimant’s ADLs. See Harwell v. Heckler, 735 F.2d
1292, 1293 (11th Cir. 1984). Finally, the opinions of treating physicians must be given substantial
weight by the commissioner, whereas the opinion of a consultative physician may be credited above
that of a treating physician only for good cause. Crawford v. Commissioner, 363 F.3d 1155, 1159
(11th Cir. 2004); Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997).
In his decision, the ALJ referred to a “two-step process” where the ALJ must first find
whether the claimant has a medically determinable physical or mental impairment that could
reasonably be expected to cause the claimant’s pain; then, the ALJ must determine the extent of the

27

intensity, persistence, and limiting effects on the claimant’s ability to function. Although the ALJ
did not announce the analysis as a “three-step process,” he correctly applied the Eleventh Circuit’s
test to these facts. The ALJ found that the claimant did have medically determinable impairments
that could reasonably be expected to cause the claimant’s pain.
However, the ALJ discredited the claimant’s personal testimony as against the great weight
of the medical evidence in the record. Although the claimant identified gout as her disabling
condition, the claimant’s records reflect only four episodes of gout after her alleged onset date
through March 2011. Three of the four episodes occurred within a three month period in 2010. The
fourth episode occurred nearly a year later when the claimant was not taking her gout medication as
prescribed. The ALJ, referring to the claimant’s functional assessment questionnaire, recounted that
the claimant wrote she cooked, cleaned, cared for her grandchildren, shopped, and occasionally
socialized during this time.
The ALJ then looked to the claimant’s limitations on the questionnaire, many of which only
caused problems when the claimant’s knees swelled. The ALJ found that these symptoms were
reasonable, given the frequency of the claimant’s gout flares at the time the claimant completed the
questionnaire. However, the ALJ noted that the claimant’s gout episodes were rare after June 2010,
and the claimant’s functional status should have returned to a more normal level in the absence of
frequent gout flares.
Further, although the claimant complained of tingling in her feet when standing for an
extended period at the hearing, the ALJ found no evidence in the record of such a complaint made
to Dr. Pham, or evidence of a treating physician advising the claimant to elevate her feet while
sitting. Dr. Pham even advised the claimant to maintain regular exercise without listing any physical

28

limitations. The ALJ also reasoned that because Dr. Pham never prescribed any strong pain
medications, or advised the claimant to elevate her feet, the subjective testimony of the severity of
the claimant’s impairment was inconsistent with Dr. Pham’s plan of treatment. As Dr. Pham was the
claimant’s primary care physician, the ALJ was entitled to accord substantial weight to Dr. Pham’s
findings.
In identifying specific portions of the claimant’s medical records, and referring to her own
testimony about completing various ADLs, the ALJ properly articulated explicit, adequate reasons
to discredit the claimant’s pain testimony. Also, the ALJ properly discredited the claimant’s
testimony by weighing both the medical findings of her treating physician Dr. Pham and her
performance of various ADLs against her personal testimony. Thus, the ALJ correctly applied the
Eleventh Circuit’s three-part pain standard, and substantial evidence supported his findings.
4. The Claimant’s Financial Hardship
Although the claimant did not raise her inability to afford medication as an issue before this
court, the court will evaluate whether the ALJ committed reversible error in finding that the claimant
was noncompliant with her medication in the face of the claimant’s poverty. This court finds that
because the claimant’s noncompliance was neither a substantial factor, nor the sole factor in the
ALJ’s decision to deny the claimant disability benefits, the ALJ did not commit reversible error.
Refusal by a claimant to follow prescribed medical treatment without good reason will
preclude a finding of disability. 20 C.F.R. § 404.1530(b). However, poverty may excuse failure to
follow prescribed medical treatment. Ellison, 355 F.3d at 1275. If the ALJ relies solely on a
claimant’s noncompliance as grounds to deny disability benefits, and the record indicates that the
claimant could not afford prescribed medical treatment, the ALJ must make a determination

29

regarding the claimant’s ability to afford treatment. Id. If the ALJ does not substantially or solely
base his finding of nondisability on the claimant’s noncompliance, the ALJ does not commit
reversible error by failing to consider the claimant’s financial situation. Id.
In the present case, the record indicates that the claimant routinely ran out of her gout
medication. At the hearing, the ALJ asked the claimant if she experienced difficulty in keeping her
medicine in stock, and the clamant testified that she often had to wait until her daughter could afford
to purchase more medicine. In his opinion, the ALJ found that the claimant “has been noncompliant
in taking prescribed gout medication.” Because the ALJ at the hearing inquired of the claimant
whether she could afford her medicine, and because the ALJ deemed the claimant noncompliant, the
ALJ must consider the claimant’s poverty in making his determination of disability.
However, the ALJ did not substantially base his decision on the claimant’s noncompliance.
The ALJ focused on the inconsistencies between the claimant’s subjective testimony at the hearing,
and the claimant’s medical history and interactions with her treating physicians. While the ALJ did
find that the claimant’s functional capacity would improve while taking gout medication, the basis
of his decision was the disparity between Dr. Pham’s records and treatment, and the claimant’s
testimony that she had to frequently elevate her feet to avoid pain and tingling.
Therefore, because the ALJ did not substantially or solely base his finding of nondisability
on the claimant’s noncompliance with her gout medication, he did not commit reversible error in
failing to consider the claimant’s financial hardship.
VII. CONCLUSION
For the reasons stated, this court finds that the decision of the Commissioner is supported by
substantial evidence and is to be AFFIRMED. The court simultaneously will enter a separate Order

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to that effect.
DONE and ORDERED this 30th day of May, 2013.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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