Pruitt v. Social Security Administration, Commissioner
MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 3/20/2013. (AVC)
2013 Mar-20 PM 04:48
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
PAULA DENISE PRUITT,
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
Case No.: 3:11-CV-03082-RDP
MEMORANDUM OF DECISION
Plaintiff Paula Denise Pruitt brings this action pursuant to Sections 205(g) and 1631(c) of
the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g), 1383(c), seeking review of the decision of
the Commissioner of Social Security ("Commissioner") denying her applications for a period of
disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI").
I. Proceedings Below
Plaintiff filed her applications for a period of disability, DIB, and SSI on June 3, 2007,
alleging a disability onset date of September 30, 2006, which she later amended to July 31, 2007.1
(R. 148-57, 167). Plaintiff alleged that she could not work because of the following illnesses or
conditions: asthma, emphysema, chronic bronchitis, eczema, and mental problems. (R. 173).
Plaintiff claimed that these illnesses and conditions limited her ability to work because they impaired
her breathing and caused her to itch. (R. 173). Plaintiff's date last insured was December 31, 2008.
This was the eighth application for disability under the Act filed by Plaintiff. (R. 82, 115). Plaintiff's seventh
application for disability had been filed on March 2, 2005 and denied on September 29, 2006. (R. 45, 82, 112-23). The
appeals council affirmed that decision on April 21, 2008 (R. 82), and Plaintiff filed her present claim for disability on
June 3, 2008. (R. 148-57). Plaintiff also filed for disability in 2004, 2001, 1995, 1993, 1992, and 1974; all of these
previous applications were deni all of these previous applications were denied. (R. 45, 82, 115).
(R. 19). Plaintiff's applications were denied initially and also upon reconsideration. (R. 1-4, 14-33).
Plaintiff then requested and received a hearing before an Administrative Law Judge ("ALJ"), which
was held on March 4, 2010 in Florence, Alabama. (R. 80, 140).
In his decision, dated April 28, 2010, the ALJ determined that Plaintiff was not disabled
under sections 216(i) and 223(d) of the Act through the date of the decision. (R. 17, 18). After the
Appeals Council denied Plaintiff's request for review of the ALJ's decision (R. 1-3), that decision
became the final decision of the Commissioner and, therefore, a proper subject of this court's
At the time of the hearing, Plaintiff was 41-years old and had not worked since July 31, 2007.
(R. 19, 27, 165-66). She had an eleventh grade education and no vocational training. (R. 87-88).
Plaintiff stated she could lift a gallon of milk with either hand, sit for an hour at a time, and stand
for approximately twenty minutes at a time. (R. 96). She claimed that she would be out of breath
by the time she climbed halfway up the stairs to her second-story apartment, and she estimated that
she could walk one-half block at the most. (R. 96-97). Concerning her breathing problems, Plaintiff
said that in an average week she would have three or four good days, and the rest would be bad days.
(R. 102). Plaintiff estimated that she used her albuterol nebulizer (i.e., breathing machine) three
times on a good day, but that on a bad day she used it constantly to no avail. (R. 101). She said that
on a good day she was capable of cleaning her apartment, but that on a bad day she was not. (R.
108). Plaintiff testified that she had quit her most recent job because of problems related to her
asthma, and she had not attempted to work since then. (R. 89). She also claimed that she had been
forced to leave her previous jobs because of problems related to her skin and her breathing (R. 9798), although in her 2006 hearing before the ALJ for her previous disability claim, Plaintiff testified
that she had quit her last job because of a personality conflict with her boss. (R. 54). In the 2006
hearing, Plaintiff also admitted she had stopped taking the Prednisone that she had been prescribed
for her asthma because it caused her to gain weight. (R. 68). In both hearings, the ALJ noted that
Plaintiff had continued smoking despite its effect on her condition and the repeated counseling she
had received from her medical providers about smoking cessation. (R. 67, 105-06).
Plaintiff's records reveal that she received non-emergency care twelve times at Southern
Rural Health Consortium from 2005 through 2008 for problems related to her asthma, COPD,
eczema, swelling in her arms, and for abdominal pain. (R. 277-89). Only two of those visits
occurred after her alleged onset date of July 31, 2007. (R. 277-78).
Plaintiff also visited the emergency room ("ER") several times between 2005 and 2008. (R.
238-456). On March 1, 2005, Plaintiff was admitted to the ER at Russellville Hospital after she
complained of difficulty breathing. (R. 238-42). Her initial examination revealed that she was "in
no severe respiratory distress," although her X-rays revealed evidence of pneumonia on the left side
with a left pleural effusion. (R. 238). Plaintiff told the doctor that she took her albuterol inhaler
about three times a week and that she used Advair 250/50 intermittently. (R. 240). Plaintiff was
given antibiotics and discharged on March 3, 2005. (R. 238, 241). On that date, Plaintiff's
examination revealed only minimal expiratory wheezing. (R. 241).
Plaintiff received routine examinations at Russellville Hospital on March 28, June 2, and
August 12, 2005. On each occasion, the examining physician found that Plaintiff's heart and lungs
were normal. (R. 252-54).
On October 22, 2005, Plaintiff was seen at Russellville Hospital for hand pain resulting from
an alleged assault, and the examining physician found a dislocation of the middle phalanx in
relationship to the proximal phalanx of her second digit. (R. 251).
On December 22, 2006, Plaintiff was admitted to the ER at Helen Keller Hospital because
of a periapical abscess in her teeth. (R. 271). Plaintiff was discharged the same day. (R. 271).
On December 30, 2006, Plaintiff was admitted to the ER at Shoals Hospital because of
alleged difficulty breathing, abdominal pain, and sharp chest pain. (R. 257-60). Plaintiff had
previously been prescribed albuterol sulfate (inhaler) and Prednisone for her asthma. Hospital staff
noted that Plaintiff: was noncompliant with triage; yelled during her assessment; refused to allow
her pulse to be taken; removed the oxygen saturation monitor; and initially refused to allow her
blood to be drawn. (R. 266-67). In triage, the nurse noted multiple pill bottles in Plaintiff's purse,
in addition to her prescribed medications. (R. 266). When Plaintiff was asked about those additional
pill bottles, she denied taking them. (Id.). Plaintiff was discharged on December 31, 2006. (R.
262). At that time, her condition had improved with treatment, and she was prescribed Prednisone,
albuterol sulfate, Bactrim DS (antibiotic), and Hycotuss (expectorant). (Id.).
On January 3, 2007, Plaintiff was admitted to the ER at Helen Keller Hospital because of
difficulty breathing and chest pain. (R. 273). The examining physician found Plaintiff's lungs were
adequately inflated and free of acute infiltrate, and manifested no acute abnormality. (R. 275).
Plaintiff was discharged the same day. (R. 273).
At 7:19 p.m. on February 26, 2007, Plaintiff was admitted to the ER at Shoals Hospital with
complaints of an asthma attack. (R. 411, 420). Plaintiff received bronchodilator treatment, which
afforded complete relief, and counseled about smoking cigarettes. (R. 414). Plaintiff was prescribed
albuterol sulfate (inhaler), medrol, Proventil, and erythromycin (antibiotic), and discharged. (R.
At 7:08 a.m. on February 28, 2007, Plaintiff was admitted to the ER at Shoals Hospital with
complaints of shortness of breath. (R. 401). A nurse noted in Plaintiff's records that Plaintiff was
uncooperative and hostile towards her. (R. 402, 404, 405). Plaintiff refused tests, X-rays, and an
IV. (R. 400, 405-06). It was also noted that a bronchodilator treatment was given with complete
relief of Plaintiff's symptoms and that Plaintiff was counseled about smoking cigarettes. (R. 400).
Plaintiff was discharged shortly thereafter. (R. 401).
At 2:53 p.m. on March 29, 2007, Plaintiff was admitted to the ER at Shoals Hospital with
complaints of shortness of breath. (R. 392). Plaintiff's file reveals that she was uncooperative and
that she would not allow the doctor to evaluate her. (R. 390). After refusing treatment, Plaintiff told
a nurse that she was going to call an ambulance to take her to another hospital. (R. 396). Plaintiff
was discharged at 3:09 p.m. (R. 392).
Plaintiff was seen at the Southern Rural Health Consortium on January 29, 2008, with
complaints about her asthma, although it was noted that she was in no acute distress and that she had
not been taking her inhalers. (R. 278). On February 22, 2008, Plaintiff had a follow-up visit at the
Southern Rural Health Consortium, and it was noted that she had improved since her previous visit.
On March 14, 2008, Plaintiff was admitted to the ER at Shoals Hospital because of alleged
difficulty breathing. (R. 296, 301, 304). At that time, Plaintiff had been taking albuterol sulfate
(inhaler), Proventil (inhaler), and Prednisone. (R. 304). Plaintiff was unwilling to answer the nurse's
questions, and refused to allow the arterial blood gas ("ABG") test to be administered. (R. 307). In
addition to her current medications, Plaintiff was given Solu-medrol. (R. 296). The treating
physician found that Plaintiff's lungs were clear with no evidence of wheezing, rhonci, or rales, and
her chest x-ray was negative. (Id.). The doctor also exhorted her to quit smoking and discussed
methodologies for doing so. (Id.). Plaintiff was discharged the next day. (R. 296).
At 2:40 p.m. on April 21, 2008, Plaintiff was admitted to the ER at Shoals Hospital with
complaints of difficulty breathing. It was noted that Plaintiff left without being seen thirty-five
minutes later because she was did not want to wait. (R. 384, 387).
On May 2, 2008, Plaintiff was admitted to the ER at Russellville Hospital with complaints
of difficulty breathing and non-specific chest pain. (R. 314, 316). Radiographs of Plaintiff's chest
were taken on the date of admission, and the examining physician found apparently normal
pulmonary vasculature and no identifiable acute cardiopulmonary process. (R. 325). The examining
physician also noted that Plaintiff's lung fields were clear and well aerated, and that no pleural
effusion or pneumothorax was seen. (R. 326). Plaintiff was given Solu-Medrol, Avelox (antibiotic),
Endal HD (cough syrup with hydrocodone), Prednisone, and Nebulizer treatments with Combivent,
Proventil, and Albuterol. (R. 314). After making steady improvement with treatment, Plaintiff was
discharged on May 5. (Id.).
At 11:05 p.m. on May 17, 2008, Plaintiff was admitted to the ER at Shoals Hospital with
complaints of difficulty breathing. (R. 366, 368, 370). Hospital staff again described Plaintiff as
uncooperative (R. 367, 371, 374), and it was noted that she would not answer the doctor's questions
or hold her hand in place for an IV to be started. (R. 374). Her chest exam on admission revealed
that her lungs were free of infiltrate, mass, or edema. (R. 377). Plaintiff was discharged at 2:20 a.m.
on May 18 after being given albuterol and Solu-Medrol and showing much improvement. (R. 368).
At 11:22 p.m. on May 21, 2008, Plaintiff was admitted to Shoals Hospital with complaints
of difficulty breathing. (R. 328, 332). Her chest x-ray was normal and revealed clear lungs, and the
examining physician found that Plaintiff had only minimal wheezes on forced expiration. (R. 330,
335). Plaintiff was continued on her active medications and given Solu-Medrol and steroids, to
which she responded quickly. (R. 328, 330, 332). Plaintiff was discharged at 8:19 a.m. on May 22
At 12:47 a.m. on May 26, 2008, Plaintiff was admitted to the ER at Shoals Hospital with
complaints of difficulty breathing. (R. 347). The doctors and nurses reported that Plaintiff was
uncooperative and very rude on this occasion. (R. 349-50). She refused to provide information
about her current medications (R. 353, 356); she turned her back on the doctor, ignoring his
questions when he attempted to evaluate her (R. 349); and she refused to allow her blood to be
drawn. (Id.). Ultimately, the examining physician concluded that Plaintiff was in no acute distress
and that she should be discharged. (Id.).
In a consultative exam on September 9, 2008, Dr. Clarke Woodfin, Jr. found that Plaintiff
had eczema on her face, neck, flexor surfaces of her elbows, and lower abdominal wall. (R. 463).
Plaintiff's chief complaint on that occasion was difficulty breathing, and she listed her current
medications as Combivent inhaler, Symbicort inhaler, Albuterol inhaler, Proventyl inhaler, Advair
Discus 250/50, and Prednisone 20mg, 1 qd. (R. 463). However, Plaintiff told Dr. Woodfin that she
had not taken any of her medications that morning, although it was 11:00 a.m. at that time. (R. 463).
Plaintiff also said that she could walk with the asthma for about ten minutes in advance of attacks,
but could not walk up a hill, and could not lift or carry more than twenty pounds. (R. 462). Plaintiff
told Dr. Woodfin that her attacks occur daily and clear up in about ten minutes with her medications,
but that they may last all day without medications. (Id.). Dr. Woodfin noted that Plaintiff: sat down
and arose from sitting at normal speeds and in a normal fashion; was able to move about the room
without apparent physical limitation; got onto the examining table without difficulty; indicated she
was not in any pain; was able to go to a full squat and rise; stood well on either leg alone; and had
full range of movement in all joints. (R. 463). Dr. Woodfin examined Plaintiff's lungs and found
them to be "clear to P&A [percussion and auscultation] except for mild scattered inspiratory and
expiratory wheezing in all fields." (R. 463). Dr. Woodfin also indicated that Plaintiff had no
shortness of breath ("SOB") or dyspnea on exertion ("DOE") associated with the tasks of the
examination. (R. 463).
On September 22, 2008, Plaintiff received a consultative psychiatric exam and a physical
Plaintiff's psychiatric exam did not reveal any medically
determinable impairments. (R. 471-84). In Plaintiff's RFC exam, the examiner noted the presence
of eczema, but found Plaintiff to be only partially credible with respect to her COPD because her
Pulmonary Function Tests were above the listing level, and Plaintiff had no wheezing or shortness
of breath associated with the tasks of the examination. (R. 491). The examiner determined that
Plaintiff could lift fifty pounds occasionally, carry twenty-five pounds frequently, stand for about six
hours with normal breaks in an eight-hour workday, and sit for approximately six hours with normal
breaks in an eight-hour workday. (R. 487). With regard to environmental limitations, the examiner
noted that Plaintiff should avoid concentrated exposure to extreme temperatures, humidity,
unprotected heights, hazardous machinery, and respiratory irritants such as fumes and dust. (R. 490).
Plaintiff was examined at Russellville Hospital on May 11, 2009 and May 29, 2009. On both
occasions Plaintiff's lungs were noted as clear. (R. 510-11).
At 10:05 p.m. on August 3, 2009, Plaintiff was admitted to the ER at Shoals Hospital with
complaints of shortness of breath. (R. 522). It was noted that she was short of breath even at rest
and that her breathing was labored. (R. 524). She was given albuterol and Combivent for her
breathing and discharged at 11:22 p.m. that same day. (R. 522).
On August 9, 2009, Plaintiff was admitted to the ER at Russellville Hospital with complaints
of right facial swelling consistent with cellulitis. (R. 505). She was given antibiotics, and after
showing marked improvement, she was discharged on August 11. (R. 505). Also, it was noted that
her lungs were clear with no wheezing. (R. 506).
On August 14, 2009, Plaintiff was admitted to the ER at Russellville Hospital with
complaints of shortness of breath. (R. 501-04). On that date the doctor noted Plaintiff's lungs were
well expanded, that she had no large pleural effusions, and her blood gases were "quite good;"
however, Plaintiff was found to have significant bronchospasm, both inspiratory and expiratory, as
well as diarrhea. (R. 500-01). Plaintiff was given Solu-medrol, albuterol, Atrovent, Pulmicort,
Prednisone, and Cholestyramine. The doctor counseled Plaintiff about the problems of smoking and
bronchospastic disease, and was discharged on August 18. (R. 501-02).
On October 30, 2009, Plaintiff had a follow-up visit at Russellville Hospital. Plaintiff's lungs
were found clear. (R. 498).
II. ALJ Decision
Determination of disability under the Act requires a five step analysis. See 20 C.F.R. §
404.1520(a). If at any step a determination of disability can be made, the analysis stops; however,
if a determination cannot be made, then the analysis proceeds to the next step. See 20 C.F.R. §
404.1520(a)(4). First, the ALJ must determine whether the claimant is engaged in any substantial
gainful activity, i.e., activity done for pay or profit which involves significant mental or physical
activity. See 20 C.F.R. § 404.1520(b). Second, if the claimant is not engaged in any such activity,
the ALJ must determine whether the claimant has a medically determinable impairment or a
combination of medical impairments that is "severe," i.e., an impairment which significantly limits
the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). Third,
the ALJ must determine whether the claimant's impairment or combination of impairments meets
or medically equals the criteria of an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1
("the Listing"). See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If such criteria are met, the
claimant is declared disabled. If the claimant does not fulfill the requirements necessary to be
declared disabled under the third step, the ALJ may still find disability under the next two steps of
Before proceeding to steps four and five, the ALJ must first determine the claimant's residual
functional capacity ("RFC"), which refers to the claimant's ability to work despite her impairments.
20 C.F.R. § 404.1520(e). The ALJ determines the claimant's RFC based on all the relevant medical
and other evidence in her case record, as explained in 20 C.F.R. § 404.1545.
In the fourth step, the ALJ determines whether the claimant has the RFC to perform past
relevant work. 20 C.F.R. § 404.1520(f). If the claimant is determined to be capable of performing
past relevant work, she is deemed not to be disabled. If the ALJ finds the claimant unable to perform
past relevant work, then the analysis proceeds to the fifth and final step, in which the ALJ must
determine whether the claimant is able to perform any other work. 20 C.F.R. § 404.1520(g). Here,
the burden of proof shifts from the claimant to the ALJ to prove the existence, in significant
numbers, of jobs in the national economy that the claimant can do given her RFC, age, education,
and work experience. Id.
In order to determine whether there are jobs which someone with the claimant's impairments
could perform, the ALJ may (1) apply the Medical Vocational Guidelines (the "grids"), found in 20
C.F.R. § 404, Subpart P, Appendix 2, and (2) pose hypothetical questions to a vocational expert
("VE"). Watson v. Astrue, 376 Fed. Appx. 953 (11th Cir. 2011) (quoting Phillips v. Barnhart, 357
F.3d 1232, 1239-40 (11th Cir. 2004)).
After determining that Plaintiff's date last insured was December 31, 2008 (R. 19), the ALJ
found that Plaintiff: (1) had not engaged in any substantial gainful activity since her (amended)
alleged onset date of July 31, 2007 (R. 19); (2) had the severe impairments of COPD, asthma, and
eczema (R. 19); but (3) these impairments did not meet or medically equal one of the listed
impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (R. 24). The ALJ specifically noted that
Plaintiff's impairments were not attended by any of the findings specified in Section 3.01 and Section
8.01 of the Listing. (Id.).
The ALJ then determined that Plaintiff had the RFC to perform light work. (R. 24). The ALJ
found that Plaintiff was capable of frequently lifting eight to ten pounds with either hand,
occasionally lifting twenty pounds with either hand, sitting for at least one hour, standing for twenty
minutes, and walking one-half block. (R. 24). The ALJ also determined that Plaintiff could perform
work in a climate-controlled environment with a sit/stand option, normal breaks, and lunch, and
should not be exposed to extreme temperatures or respiratory irritants such as dust or smoke. (Id.).
The ALJ held that although Plaintiff's medically determinable impairments could reasonably be
expected to cause her alleged symptoms, her statements about the intensity, persistence, and limiting
effects of those symptoms were not credible. (R. 25).
After finding that Plaintiff was unable to return to her past relevant work, the ALJ concluded
that there were a significant number of jobs in the national economy that Plaintiff could perform,
given her age, education, work experience, and RFC. (R. 27, 28). The ALJ also noted that he did
not find Plaintiff's testimony credible for total disability, because even though her symptoms had
resolved with treatment, she had made no effort to return to work. (R. 29). Based upon these
findings, the ALJ held that Plaintiff was not disabled. (R. 29).
III. Plaintiff's Argument for Remand or Reversal
Plaintiff has not filed a brief in this case. Although the Eleventh Circuit has not addressed
the effect a claimant's failure to file a brief has on the district court, "the majority of districts,
including the Northern District of Alabama have reviewed the record to determine whether the ALJ
properly applied legal standards and supported his factual conclusions with substantial evidence,
despite the claimant not filing a brief." Weems v. Astrue, 2012 WL 2357743, 8 (N.D. Ala. 2012);
c.f. Mitchell v. Apfel, 1999 U.S. Dist. LEXIS 17549 (N.D. Ala.1999).
In her argument to the appeals council, Plaintiff alleged (1) that there was not substantial
evidence to support the ALJ's determination that her asthma did not meet or medically equal the
criteria of the Listing (R. 6-8), (2) that the ALJ misapplied the standard for evaluating her subjective
pain testimony (R. 8-11), (3) that the ALJ failed to develop a full and fair record (R. 11-12), and (4)
that there was not substantial evidence to support the ALJ's determination of her RFC. (R. 12).
IV. Standard of Review
Judicial review of disability claims under the Act is limited to whether the Commissioner's
decision is supported by substantial evidence or whether the correct legal standards were applied.
42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). "Substantial
evidence is less than a preponderance, but rather such relevant evidence as a reasonable person
would accept as adequate to support a conclusion." Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005); see also Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). While less than a preponderance, substantial
evidence is also "more than a scintilla, i.e., evidence that must do more than create a suspicion of the
existence of the fact to be established." Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir.1995). The
Commissioner's factual findings are conclusive when supported by substantial evidence. Doughty
v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). If supported by substantial evidence, the
Commissioner's factual findings must be affirmed, even if the record preponderates against the
Commissioner's findings. Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004);
see also Martin, 894 F.2d at 1529. Legal standards are reviewed de novo. Moore, 405 F.3d at 1211.
The court finds that the ALJ's decision is supported by substantial evidence and that the ALJ
correctly applied the law in reaching his decision. Regarding Plaintiff's arguments to the Appeals
Council, the court finds that (1) substantial evidence supports the ALJ's finding that Plaintiff's
asthma did not meet or medically equal the criteria of the Listing, (2) the ALJ did not misapply the
Eleventh Circuit's standard for evaluating pain, (3) the ALJ developed a full and fair record, and (4)
substantial evidence supports the ALJ's determination of Plaintiff's RFC.
There Is Substantial Evidence to Support the ALJ's Finding that Plaintiff's
Asthma Did Not Meet or Medically Equal the Criteria of the Listing.
In her brief to the Appeals Council, Plaintiff argues that there is not substantial evidence in
the record to support the ALJ's finding that her asthma did not meet or medically equal the criteria
of Listing 3.03(B). (R. 7). The criteria for asthma in the Listing include "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." 20 C.F.R. § 404, Subpart P, Appendix 1, Listing 303(B).
The Listings define "attacks of asthma" as "prolonged symptomatic episodes lasting one or more
days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic
administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or
equivalent setting." 20 C.F.R. § 404, Subpart P, Appendix 1, Listing 300(C). After careful review,
the court finds that there is in fact substantial evidence to support the ALJ's finding that many of
Plaintiff's hospital visits were not the result of an "attack of asthma," as defined by the Listings.
Plaintiff alleged a disability onset date of July 31, 2007. Her date last insured was December
31, 2008. The ALJ's decision was dated April 28, 2010. For her period of disability and DIB claim,
Plaintiff would have to show that her asthma met the criteria of the Listing between July 31, 2007,
and December 31, 2008. C.f. Jones v. Comm'r of Soc. Sec., 181 F. App'x 767, 773 (11th Cir. 2006).
For her SSI claim, she would have to show that her asthma met the criteria of the Listing between
July 31, 2007, and April 28, 2010. Id.
After her alleged onset date, Plaintiff went to the ER on six occasions in 2008: March 14,
April 21, May 2, May 17, May 21, and May 26. (R. 296-390, 533-50). On at least one of these
occasions, Plaintiff was hospitalized for longer than twenty-four hours, so that incident counts as two
attacks for purposes of the Listings. (R. 314). See 20 C.F.R. § 404, Subpart P, Appendix 1, Listing
303(B). However, there is considerable doubt whether her other ER visits were the result of an
"attack of asthma" as defined by the Listings, or whether these alleged attacks occurred in spite of
Many of Plaintiff's alleged attacks apparently did not require intensive treatment, as Plaintiff
frequently interfered with the doctors' and nurses' attempts to treat her, or she simply refused
treatment altogether. (R. 307, 349, 353, 356, 374, 384-87). For example, upon Plaintiff's admission
to the ER on May 26, 2008, Plaintiff refused to answer the doctor's questions and turned her back
on him when he attempted to speak to her. (R. 349). The doctor determined that Plaintiff was in "no
acute distress," that she was in good, stable condition, and that she should be discharged. (Id.). On
April 21, 2008, Plaintiff grew tired of waiting after only thirty-five minutes, and left the hospital
without being treated (R. 384, 387). Such action is inconsistent with a claim that Plaintiff was
suffering from an asthma attack serious enough to meet the criteria of the Listings.
After May 2008, Plaintiff's next ER visit on record was August 3, 2009. (R. 522). On
August 14, 2009, Plaintiff again visited the ER, and on this occasion the doctor noted that she was
uncooperative and had not been taking her medication at home. (R. 501-04). Plaintiff also had three
routine examinations in 2009, and on each of these occasions the examining physician noted that
Plaintiff's lungs were clear. (R. 498, 510-11). When Plaintiff was hospitalized for cellulitis on
August 9, 2009, it was also noted that her lungs were clear with no wheezing. (R. 506).
During Plaintiff's consultative examination on September 9, 2008, Dr. Woodfin found that
Plaintiff had no shortness of breath or dyspnea on exertion with the tasks of the examination and that
her lungs were "clear to P&A [percussion and auscultation] except for mild scattered inspiratory and
expiratory wheezing." (R. 463). Furthermore, Plaintiff admitted to Dr. Woodfin that she had not
taken her medications that morning, although it was already 11:00 a.m., yet she did not show any
signs of asthma despite not taking her medication. (R. 463).
In reaching his decision, the ALJ considered Plaintiff's medical records, and noted her history
of being an uncooperative and noncompliant patient, failure to follow the advice of her treating
physicians and take her prescribed medications consistently, and the discrepancies between her
complaints and the objective medical evidence. (R. 20-24). As the Eleventh Circuit noted in Ellison
v. Barnhart, 355 F.3d 1272 (11th Cir. 2003), "refusal to follow prescribed medical treatment without
a good reason will preclude a finding of disability;" however, "poverty excuses non-compliance."
Id. at 1275. Although there is some evidence in this case that Plaintiff's financial situation may have
occasionally prevented her from obtaining medication, Plaintiff's impoverished state is no
justification for her habitually defiant and uncooperative behavior towards her treating physicians
and nurses, and Plaintiff's poverty does not excuse her failure to take those medications to which she
did have access.
Plaintiff's medical records reveal considerable doubt that the criteria of Listing 3.03(B) are
met in this case, and the court finds that there is substantial evidence to support the ALJ's finding
on this issue.
The ALJ Did Not Misapply the Eleventh Circuit's Standard for Evaluating
In her argument to the appeals council, Plaintiff alleges that the ALJ misapplied the Eleventh
Circuit's standard for evaluating pain because (1) the ALJ only cited to Social Security Ruling 96-7P,
but failed to explain how it was applied, and (2) the ALJ failed to articulate adequate reasons for
discrediting Plaintiff's pain testimony. (R. 8, 10). However, for the pain standard to be an issue,
Plaintiff must first have alleged that she is in pain, and she has not done so. In her hearing before
the ALJ, Plaintiff did not mention that she was experiencing any pain associated with her
impairments. (R. 80-111). Also, in her 2006 hearing before the ALJ for her previous disability
claim, Plaintiff made no mention of pain. (R. 45-79). Nor did Plaintiff allege pain in any of the
forms she submitted to the Social Security Administration. Thus, there appears to be no issue with
the ALJ "ignoring" Plaintiff's pain testimony, as there was no pain testimony for the ALJ to ignore.
The ALJ Developed a Full and Fair Record.
In her brief to the appeals council, Plaintiff claimed that the ALJ did not develop a full and
fair record because he failed to resolve the conflict between the VE's testimony and the Dictionary
of Occupational Titles ("DOT"). (R. 11-12). However, this contention is without merit. Plaintiff
has not shown that there is a conflict between the VE's testimony and the DOT; but even if there is,
the Eleventh Circuit has held that "when the VE's testimony conflicts with the DOT, the VE's
testimony 'trumps' the DOT." Jones v. Apfel, 190 F.3d 1224, 1229 (11th Cir. 1999). The court finds
nothing to suggest that the ALJ failed to develop a full and fair record.
There Is Substantial Evidence to Support the ALJ's Determination of Plaintiff's
In her brief to the appeals council, Plaintiff argued that the ALJ's determination of her RFC
was conclusory and unsupported by the evidence. (R. 12). This assertion is belied by the contents
of the ALJ's decision, in which he spent three pages discussing his analysis of the evidence regarding
Plaintiff's RFC. (R. 24-27). To be sure, it is Plaintiff's argument (rather than the ALJ's decision) that
is conclusory and unsupported by the evidence. In determining that Plaintiff could perform light
work, the ALJ considered Plaintiff's entire medical record, as well as her consultative examinations
with Dr. Woodfin and the state agency disability consultant. The ALJ accurately noted Plaintiff's
limitations and capabilities in the hypothetical questions that he posed to the VE, and the VE
identified jobs that Plaintiff could perform in the light work category. (R. 109-10). There is more
than substantial evidence to support the ALJ's finding that Plaintiff retained the RFC to perform light
The court concludes that the ALJ's determination that Plaintiff is not disabled is supported
by substantial evidence and that proper legal standards were applied in reaching this determination.
The Commissioner's final decision is, therefore, due to be affirmed and a separate order in
accordance with this memorandum of decision will be entered.
DONE and ORDERED this
day of March, 2013.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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