McCarty v. Astrue

Filing 20

MEMORANDUM OPINION AND OPINION entered that the decision of the Commissioner of Social Security denying the plaintiff benefits be REVERSED AND REMANDED pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings not inconsistent with this decision. Signed by Magistrate Judge William E. Cassady on 3/28/2013. (eec)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ELIZA McCARTY,

:

Plaintiff,

:

v.

:

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1

:

Defendant.

CA 2:12-00259-C

:
MEMORANDUM OPINION AND ORDER

The plaintiff brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3),
seeking judicial review of a final decision of the Commissioner of Social Security
denying her applications for supplemental security income (“SSI”) and disability
insurance benefits (“DIB”).

The parties have consented to the exercise of jurisdiction

by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court.
(See Doc. 19 (“In accordance with provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the
parties in this case consent to have a United States Magistrate Judge conduct any and all
proceedings in this case, including . . . order the entry of a final judgment, and conduct
all post-judgment proceedings.”).)

Upon consideration of the administrative record

(“R.”) (Doc. 13), the plaintiff’s brief (Doc. 15), the Commissioner’s brief (Doc. 16), and
the arguments presented at the February 15, 2013 Hearing, it is determined that the
Commissioner’s decision denying the plaintiff benefits should be REVERSED AND
REMANDED for further proceedings not inconsistent with this decision.2

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Rule 25(d), Federal Rules of Civil Procedure, Colvin is
substituted for Michael J. Astrue as the proper defendant in this case.
2

Any appeal taken from this memorandum opinion and order and judgment shall
be made to the Eleventh Circuit Court of Appeals. (See Doc. 19 (“An appeal from a judgment
entered by a Magistrate Judge shall be taken directly to the United States Court of Appeals for

Procedural Background
On September 4, 2008, the plaintiff filed applications for SSI and DIB (R. 114-118),
alleging disability beginning June 11, 2008 (see R. 114).
denied on November 20, 2008.

(See R. 64-69.)

Her application was initially

A hearing was then conducted before

an Administrative Law Judge on April 29, 2010 (see R. 25-62).

On August 9, 2010, the

ALJ issued a decision finding that the claimant was not disabled (R. 8-24), and the
plaintiff sought review from the Appeals Council.

The Appeals Council issued its

decision declining to review the ALJ’s determination on February 17, 2012 (see R.
1-6)—making the ALJ’s determination the Commissioner’s final decision for purposes
of judicial review, see 20 C.F.R. § 404.981—and a complaint was filed in this Court on
April 13, 2012 (see Doc. 1).
Standard of Review and Claims on Appeal
In all Social Security cases, the plaintiff bears the burden of proving that he or
she is unable to perform his or her previous work.
(11th Cir. 1986).

Jones v. Bowen, 810 F.2d 1001, 1005

In evaluating whether the plaintiff has met this burden, the examiner

must consider the following four factors: (1) objective medical facts and clinical
findings; (2) diagnoses of examining physicians; (3) evidence of pain; and (4) the
plaintiff’s age, education, and work history.

Id.

Once the plaintiff meets this burden,

it becomes the Commissioner’s burden to prove that the plaintiff is capable—given his
or her age, education, and work history—of engaging in another kind of substantial
gainful employment that exists in the national economy.
834, 836 (11th Cir. 1985).

Sryock v. Heckler, 764 F.2d

Although at the fourth step “the [plaintiff] bears the burden

this judicial circuit in the same manner as an appeal from any other judgment of this district
court.”).)

2

of demonstrating the inability to return to [his or] her past relevant work, the
Commissioner of Social Security has an obligation to develop a full and fair record.”
Shnorr v. Bowen, 816 F.2d 578, 581 (11th Cir. 1987) (citations omitted).
The task for this Court is to determine whether the ALJ’s decision to deny
plaintiff benefits is supported by substantial evidence.

Substantial evidence is defined

as more than a scintilla, and means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
(1971).

Richardson v. Perales, 402 U.S. 389, 401

“In determining whether substantial evidence exists, [a court] must view the

record as a whole, taking into account evidence favorable as well as unfavorable to the
[Commissioner’s] decision.”

Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

Courts are precluded, however, from “deciding the facts anew or re-weighing the
evidence.”

Davison v. Astrue, 370 Fed. App’x 995, 996 (11th Cir. Apr. 1, 2010) (per

curiam) (citing Dyer v. Bernhart, 395 F.3d 1206, 1210 (11th Cir. 2005)).

And, “[e]ven if

the evidence preponderates against the Commissioner’s findings, [a court] must affirm
if the decision reached is supported by substantial evidence.”

Id. (citing Crawford v.

Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004)).
On appeal to this Court, the plaintiff asserts two separate claims:
1.

The ALJ erred in finding the plaintiff was capable of performing medium
work, contrary to the evidence of record and the plaintiff’s testimony; and

2.

The ALJ erred in failing to consider side effects of medications.

(Doc. 13 at 1.)
Discussion
Central to the plaintiff’s first claim on appeal is the ALJ’s finding that the
plaintiff’s uncontrolled diabetes is caused by her own noncompliance.
3

(See Doc. 15 at

3-4; see also R. 16-17 (according to the ALJ, “[t]here is no doubt, based on the objective
medical evidence, that the claimant has a problem controlling her diabetes; however,
the biggest problem faced by the claimant is that she is consistently noncompliant with
her medication, diet, and exercise. . . . Within the record, there is no evidence to support
that the claimant’s diabetes would remain uncontrolled or limit her ability to work if
she were complaint with treatment.”) (emphasis added).)

According to the

Commissioner, however, any allegation that the ALJ failed to properly analyze the
plaintiff’s noncompliance is without merit because, she contends, “the ALJ properly
considered [the plaintiff’s] non-compliance for the purposes of the credibility
assessment and in determining the weight given to Dr. Chu’s opinion, but was not
required to conduct further inquiry[,]” such as one pursuant to Social Security Ruling
(“SSR”) 82-59.3 (Doc. 16 at 11-12 (asserting that “an 82-59 analysis” was not required

3

SSR 82-59, 1982 WL 31384, at *1 (1982), requires that an ALJ

first decide whether a claimant would “otherwise be found to be under a
disability . . . .” Id. Then, the ALJ must determine if the treatment prescribed
by a treating source would restore the individual’s ability to work. Id. Finally,
the ALJ must analyze whether the failure to follow that prescribed treatment is
justified. Id.
Additionally, SSR 82– 59 describes the criteria necessary for a finding of failure to
follow prescribed treatment. Id. An individual’s inability to afford prescribed
treatment that he is willing to accept is a justifiable cause for failure to follow
prescribed treatment. Id. at *3–4. However, “[a]ll possible resources (e.g.,
clinics, charitable and public assistance agencies, etc.) must be explored.
Contacts with such resources and the claimant’s financial circumstances must be
documented.”
Id. at *4.
[And] “[t]he burden of producing evidence
concerning unjustified non-compliance is on the [Commissioner].” Dawkins[ v.
Bowen,] 848 F.2d [1211, 1214 n.8 (11th Cir. 1988)]. If the ALJ concludes that an
individual does not have a good reason for failing to follow prescribed
treatment, the ALJ must inform the individual of this fact before a determination
is made. 1982 WL 31384, at *4. The individual must also be afforded “an
opportunity to undergo the prescribed treatment, or to show justifiable cause for
failing to do so.” Id.

4

because “[t]he ALJ did not find that Plaintiff’s impairment precluded engaging in
SGA”).)
As to the Commissioner’s second point—SSR 82-59 does not apply because the
ALJ did not first find the plaintiff disabled—“SSR 82–59 normally applies to a
claimant’s eligibility for benefits after a finding of disability has been made.”

Grubb v.

Pelham v. Astrue, Civil Action No. 5:11–CV–01354–KOB, 2012 WL 4479287, at *2 (N.D. Ala. Sept.
21, 2012) (in which the Court reversed and remanded after determining that “the ALJ’s
reasoning for his finding that the claimant is not disabled is ambiguous”—“this court cannot
determine whether the ALJ considered the claimant disabled, but noncompliant with
medication (and, thus, not disabled); disabled, but dependent on medication (and, thus,
actually disabled); or simply not disabled[,]” id. at *8 (emphasis in original)).
As the capsule summary of SSR 82-59 in Pelham demonstrates, SSR 82-59 provides
procedural safeguards to claimants in the event an ALJ seeks to invoke their noncompliance as
a basis for denying benefits; these safeguards are concomitant with the ALJ’s duty to develop a
full and fair record. See, e.g., Funderburk v. Astrue, Civil Action No. 2:10cv852–CSC, 2012 WL
904682, at *8 (M.D. Ala. Mar. 15, 2012) (“[A]s the basis for improperly overlooking Funderburk’s
inability to afford medical care, the ALJ stated that there are community and church services
available to indigent people who are in need of medical care. However, the ALJ did not
develop the record as to whether such resources existed and were available to Funderburk. . . .
Because the record simply was not developed with regard to the availability of free or low-cost
medical treatment, the ALJ’s conjecture that there are community and church services available
is not supported by the record.”) (internal quotation marks omitted) (citing, inter alia, SSR 82-59;
Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981) (“[B]ecause a hearing before an ALJ is not
an adversary proceeding, the ALJ has a basic obligation to develop a full and fair record.”)).
In Pelham, after the court determined that the ALJ’s reasoning was ambiguous, it also
noted that the ALJ “neglected to follow several procedural requirements mandated by SSR 82–
59.”
The ALJ indicated in his opinion that if the claimant was compliant with his
medications, he should be able to maintain work. However, during the hearing
the claimant testified that he could not afford his medications. SSR 82–59
requires an ALJ to appropriately develop the record to resolve whether the
claimant is justified in failing to follow the prescribed treatment.
Id. at *8; see also id. at *9 (noting that reversal was required both by the ALJ’s failure “to clearly
indicate whether the claimant was not disabled, or was disabled and required medication” and
the ALJ’s failure “to adhere to the procedural requirements of SSR 82–59 to fully develop the
record and provide sufficient notice and opportunity to the claimant to prove justifiable cause
for failing to follow treatment”) (emphasis in original).

5

Apfel, No. 98 CIV. 9032(RPP), 2003 WL 23009266, at *5 (S.D.N.Y. Dec. 22, 2003)
(emphasis added).
Essentially, disability is found at step four, then non-compliance is used to
deny at step five. As other courts have noted, however, “the regulatory
scheme promulgated by the [Commissioner] does not expressly dictate
how the noncompliance inquiry under 20 C.F.R. § 404.1530 [or § 404.930]
meshes with the [five-step] sequential analysis of disability under 20
C.F.R. § 404.1520 [or § 416.920].”
Id. (emphasis added) (in Grubb, “the ALJ did not make it explicitly clear whether she
determined claimant was able to work at step four or at step five[, and a]fter several
readings of the ALJ’s opinion, the court conclude[d] that the ALJ [there, like the ALJ
here,] considered the issue of noncompliance as part of her process of finding plaintiff
was not disabled and not in determining that plaintiff’s claims of disability were not
credible[,]” id. at *6 (original emphasis omitted; emphasis added)) (quoting Preston v.
Heckler, 769 F.2d 988, 990 (4th Cir. 1985)) (footnote omitted).
The court in Grubb began by noting other—“analogous”—cases in which courts
reviewed decisions where “an ALJ did not expressly deny claimant benefits on the
grounds that she failed to follow prescribed treatment,” and “the reviewing courts [ ]
inferred from the ALJ’s reasoning that the ALJ based a finding of disability on the lack
of compliance.”

Id. at *6 (citing, inter alia, Ibarra v. Commissioner of Soc. Sec. Admin., 92

F. Supp. 2d 1084, 1087-88 (D. Or. 2000) (“The ALJ did not expressly purport to deny
claimant benefits on the ground that she failed to follow prescribed treatment, but his
comments . . . and his ultimate finding that claimant is not disabled rest, in significant
part, on his expressed perception that her failure to follow a prescribed treatment
caused her condition to be worse than it might otherwise be.

Consequently, SSR 82–

59, which sets forth the Commissioner’s required criteria for a finding of failure to
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follow prescribed treatment when evaluating disability, appears to govern this case.”)
(citations omitted); Sharp v. Bowen, 705 F. Supp. 1111, 1123-25 (W.D. Pa. 1989) (“[T]he
ALJ, when analyzing the medical evidence in his opinion, repeatedly emphasized the
plaintiff’s noncompliance with his medical regimen. . . . Although the ALJ did not make
an express finding that the plaintiff should be denied benefits because of his
noncompliance with prescribed medical treatment, it is clear that the ALJ’s decision to
deny benefits was colored by his express finding that the plaintiff repeatedly refused
prescribed medical treatment.”)).
The Grubb Court then, most importantly, extensively relied on Dawkins v. Bowen,
848 F.2d 1211 (11th Cir. 1988).

See 2003 WL 23009266, at *6-7.

In Dawkins, where, “[i]n

denying appellant SSI disability benefits, the ALJ relied primarily if not exclusively on
evidence in the record and testimony at the hearing concerning appellant’s
noncompliance with prescribed medical treatment[,]” id. at 1212 (emphasis added), the
Eleventh Circuit, after holding that “poverty excuses noncompliance[,]” id. at 1213,
observed that, in the administrative decision,
the ALJ explicitly noted appellant’s noncompliance, but did not consider
her poverty as a good excuse. The problem with this case is that it is
unclear from the ALJ’s opinion whether or not he based his determination
that appellant was not entitled to benefits on appellant’s failure to follow
prescribed medical treatment. Although the ALJ found that appellant’s
testimony was “inconsistent with the findings of her attending
physicians,” the only inconsistency identified by the ALJ involved
noncompliance with prescribed treatment.
Id. at 1213-14; see also id. at 1214 (quoting the ALJ’s decision, in which he stated, “In the
instant case, the medical evidence supports a conclusion that the claimant’s diabetes
mellitus and high blood pressure are amenable to adequate control . . . as prescribed by

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her treating physician. . . . [Her] noncompliance is clearly demonstrated in the progress
notes of her treating physician, as discussed in the evaluation of the medical records.”).
The Eleventh Circuit thus found that “the ALJ’s conclusion that the appellant
retain[ed] the residual capacity to return to work [was] inextricably tied to the finding
of noncompliance,” id., and ultimately reversed the district court’s affirmance of the
Commissioner and, in remanding the case, instructed that the ALJ determine
whether appellant is disabled, without reference to her failure to follow
prescribed medical treatment. If the ALJ determines that appellant is
disabled, the ALJ must then determine whether or not appellant is in fact
unable to afford the medicine and other treatment her doctors have
prescribed. If the ALJ finds that appellant is disabled and cannot afford
the prescribed treatment, then she is excused from not complying and she
is entitled to benefits.
Id. (footnotes omitted).
The Eleventh Circuit distinguished Dawkins in Ellison v. Barnhardt, 355 F.3d 1272
(11th Cir. 2003), finding the ALJ’s determination there, “unlike in Dawkins, . . . was not
significantly based on a finding of noncompliance,” id. at 1275 (emphasis added)—
Although the ALJ, in discrediting Ellison’s allegations of disability, noted
that the medical record “supports non-compliance on [Ellison’s] part,” a
review of the ALJ’s decision reveals that his finding on this issue was
based primarily on the facts that (1) Ellison worked for several years in
spite of his impairments, and (2) Ellison’s use of alcohol aggravated his
seizure condition.
Id. (emphasis added); compare id., with Beegle v. Social Sec. Admin., Comm’r, 482 Fed.
App’x 483, 487 (11th Cir. July 23, 2012) (per curiam) (“While the ALJ must consider
evidence showing that the claimant is unable to afford medical care before denying
disability insurance benefits based upon the claimant’s non-compliance with such
care[,] . . . reversible error does not appear where the ALJ primarily based her decision
on factors other than non-compliance, and where the claimant’s non-compliance was
8

not a significant basis for the ALJ’s denial of disability insurance benefits.”) (citing
Ellison, 355 F.3d at 1275-76) and Brown v. Commissioner of Soc. Sec., 425 Fed. App’x 813,
817 (11th Cir. Apr. 27, 2011) (per curiam) (“[I]f the claimant’s failure to follow medical
treatment is not one of the principal factors in the ALJ's decision, then the ALJ's failure
to consider the claimant’s ability to pay will not constitute reversible error.”) (citing
Ellison, 355 F.3d at 1275) (emphases added); see also Jones v. Astrue, No. 4:11–CV–03473–
LSC, 2012 WL 5379142, at *6-7 (N.D. Ala. Oct. 29, 2012).4
Here, the ALJ’s decision fails to discuss either the plaintiff’s ability to afford
medication or whether any such “poverty excuses [her] noncompliance.”
F.2d at 1213.

Dawkins, 848

And while the ALJ did not explicitly follow SSR 82-59 to first find the

plaintiff disabled and then use the plaintiff’s noncompliance to deny her benefits, here,
the plaintiff’s noncompliance was not only “one of the principal factors” in—it was the
“significant basis” for—the ALJ’s decision to find that she retained the residual capacity
4

There, the court rejected the plaintiff’s argument, based on Dawkins, that she
“could not afford treatment for her mental condition[,]” because the record demonstrate[d] that
[she] consistently sought treatment for her physical complaints” and reflected that she “was
treated with medication for her mental impairments, and that no doctor ever recommended that
[she] seek more aggressive modes of treatment or therapy, which demonstrates that medication
controlled her symptoms.” Id. at *6. The court, relying on Ellison and Brown, also noted that,
“[e]ven if there was outstanding evidence of [her] failure to follow medical treatment” and,
thus, “a need for an explanation of such,
the Eleventh Circuit has held that if the claimant’s failure to follow medical
treatment is not one of the principal factors in the ALJ’s decision, then the ALJ’s
failure to consider the claimant’s ability to pay will not constitute reversible
error. Here, the ALJ cited several factors for discrediting Plaintiff's complaints,
including the weakness of the existing medical evidence, her ability to care for
twin infants, her sporadic work history, and the fact that no treating or
examining source opined that Plaintiff had any limitations greater than the ALJ
found or that she was disabled, while one physician . . . even released her to
work without any restrictions . . . . As such, the ALJ’s omission of a discussion of
Plaintiff’s ability to afford mental health treatment was at most harmless error,
and substantial evidence supported the ALJ’s decision.
Id. (internal citations and quotation marks omitted and emphasis added).

9

to perform less than the full range of medium work.5

Contra Ellison, 355 F.3d at 1275;

Brown, 425 Fed. App’x at 817; Beegle, 482 Fed. App’x at 487.6

Accordingly, it was error

for the ALJ to rely so extensively on the plaintiff’s noncompliance without first
affording her the safeguards of SSR 82-59.

Cf. Baker v. Astrue, Civil Action No.

1:11cv35–CSC, 2012 WL 353738, at *4 (M.D. Ala. Feb. 2, 2012) (“It is clear from the
record that, at no time, did the Commissioner or ALJ explain to the plaintiff the effect of
her failure to follow prescribed treatment or give the plaintiff the opportunity to show
justifiable cause for her failure to follow treatment.

The ALJ did not inquire into the

availability of free or subsidized sources of treatment.

She did not ask about the

5

In his discussion of the medical evidence, the ALJ’s findings include the
following: (1) “[T]hroughout the record, noncompliance was noted including being out of
medication and not seeking refills and leaving from appointments before prescriptions could be
given” (R. 15); (2) “The most recent visit continued to reflect noncompliance with medication,
and it is noted that her physical examination was normal in all areas” (id.); (3) “[I]t was
continuously noted that [the plaintiff] had not taken her insulin” (id.); (4) “[B]ut again,
noncompliance was noted and she was admitted for therapeutic intervention” (id.); (5) “It was
also noted that she refused to take her insulin” (id.); (6) “On one occasion, the claimant was
admitted for diabetic ketoacidosis, but longtime noncompliance was once more noted” (id.); (7)
“In addition, the record reflects two other visits for uncontrolled diabetes and diabetic
ketoacidosis, however the notes indicated noncompliance with medications” (id.); (8) “Dr.
Kidd’s impression was diabetes, poor control. He noted that he believed the claimant could
work if her blood sugar were under control and he did not find anything on her physical
examination” (R. 16); (9) “There is no doubt, based on the objective medical evidence, that the
claimant has a problem controlling her diabetes; however, the biggest problem faced by the
claimant is that she is consistently noncompliant with her medication, diet, and exercise” (R.
16-17); and (10) “Within the record, there is no evidence to support that the claimant’s diabetes
would remain uncontrolled or limit her ability to work if she were complaint with treatment”
(R. 17) (emphases added).
6

Further, as courts in other Circuits have held, SSR 82-59 should be followed
where, for example, (1) an ALJ’s findings “rest, in significant part, on the [ALJ’s] expressed
perception that [a plaintiff’s] failure to follow prescribed treatment caused her condition to be
worse than it might be otherwise be[,]” Ibarra, 92 F. Supp. 2d at 1087-88; compare id., with R. 17
(“[w]ithin the record, there is no evidence to support that the claimant’s diabetes would remain
uncontrolled or limit her ability to work if she were complaint with treatment”), or (2) an “ALJ
repeatedly emphasize[s] the plaintiff’s noncompliance with his medical regimen” and “it is
clear that the ALJ’s decision to deny benefits was colored by his express finding that the
plaintiff repeatedly refused prescribed medical treatment[,] Sharp, 705 F. Supp. at 1123-25;
compare id., with R. 15-17.

10

plaintiff's efforts to secure such treatment and she did not delve into Baker’s financial
condition.

The ALJ simply assumes that these resources are available.

Moreover, she

also assumes that these resources could provide the medical treatment required by the
plaintiff.

While failure to seek treatment is a legitimate basis to discredit the testimony

of a claimant, it is the law in this circuit that poverty excuses noncompliance with
prescribed medical treatment or the failure to seek treatment.”) (citing Dawkins); accord
Qualls v. Astrue, Civil Action No. 1:10cv651–CSC, 2012 WL 135589, at *8-9 (M.D. Ala.
Jan. 17, 2012).
Next, the record reflects the plaintiff was without insurance coverage for a period
of time; this should have prompted the ALJ to inquire into her ability to afford
medication.

See Dawkins, 848 F.2d at 1214 n.8 (citation omitted) (“The burden of

producing evidence concerning unjustified noncompliance is on the [Commissioner].”).
It appears likely that she may not have had insurance from as soon as June 11, 2008,
when she became unemployed (see R. 13), until early 2010, when, according to her
testimony, she began receiving Medicaid (see R. 39). In Anderson v. Astrue, No. 8:11–
cv–234–T–24MAP, 2012 WL 570951, (M.D. Fla. Feb. 3, 2012), report & recommendation
adopted, 2012 WL 570055 (M.D. Fla. Feb 22, 2012), for example, the record was “replete
with evidence that Plaintiff was without medical insurance for period of time[,]” id. at
*3, but the colloquy between the ALJ and the plaintiff regarding insurance coverage was
brief, see id. at *4.7

And the court held that although “the ALJ set[] forth multiple

7

There, “[t]he colloquy between the ALJ and the Plaintiff at the administrative
hearing was as follows:
Q:

You don't have health insurance, right?

A:

No, I do not.

11

grounds for his decision [to deny benefits] in theory, in actuality, the ALJ’s opinion
relied primarily on Plaintiff’s noncompliance, a finding that [was] not supported by
substantial evidence.”

Id.; see also id. (“The ALJ did not ask any additional questions

pertaining to why Plaintiff did not have insurance or if she failed to comply with
prescribed medical treatment because she could not afford treatment.

Plaintiff’s

record indicates sporadic compliance and the ALJ should have more fully inquired into
the cause of Plaintiff’s noncompliance.”) (citing Cowart, 662 F.2d at 735); accord Gazard v.
Commisoner of Soc. Sec., No. 6:07–cv–1535–Orl–18DAB, 2009 WL 51315, at *7 (M.D. Fla.
Jan. 7, 2009).
Finally, the Court must address one of the reasons the ALJ provided for giving
less than controlling weight to the opinion of the plaintiff’s treating physician, Dr. Chu.
In his decision, the ALJ first observes that “Dr. Chu is an examining physician with a
significant treatment history, and his opinion is fairly consistent with the record as a
Q:

That's why you've just been going to Johnny Ruth (phonetic)?

A:

Ruth, yes.

Q:

An[d] you go to Bayfront and they—

A:

Yes.

Q:

—help you—

A:

Yes.

Q:

—when you're having serious problems.

A:

Yeah.”

Id. at *4; compare id., with R. 39 (“Q: How do you pay for your visit to Dr. Chu? A:
Medicaid. Q: Medicaid? A: Yes, sir. Q: How long have you been on Medicaid? A: I
just got back on I think the beginning of this year. Q: Has it been a little better since you have
some coverage? A: My migraines? No, sir. Q: What about your diabetes? A: They
still ain’t under control. Q: Do you feel like you are getting the adequate care and treatment
from Dr. Chu? A: Not really, I try changing my doctor, but Medicaid won’t let me.”).

12

whole.”

(R. 17.)

The ALJ then states, “However, it is noted that Dr. Chu’s opinion

reflects the claimant’s noncompliance, and, therefore, his opinion is not given greater
weight.”

(Id.)

Dr. Chu’s opinion contains a handwritten annotation that “Pt has

uncontrolled Diabe[tes] to a certain extent by noncompl[iance]” (R. 578), but, contrary
to the ALJ’s opinion, there is absolutely no indication in the record how Dr. Chu
factored the plaintiff’s noncompliance into his opinion regarding the plaintiff’s ability to
function in the workplace with her combination of impairments.

Because the Court

does not understand the ALJ’s reasoning for discounting the opinion of a treating
source based on an unexplained and amorphous annotation, the Court cannot say that
the ALJ’s decision as to the weight to give Dr. Chu’s opinion is supported by substantial
evidence.
A medical source’s failure to consider a plaintiff’s noncompliance, where that
source is aware of that noncompliance, however, may serve as a basis to discount that
source’s opinion.

In Patterson v. Astrue, No. 08–22065–CIV, 2011 WL 837744, at *4 (S.D.

Fla. Feb. 10, 2011), report & recommendation adopted, 2011 WL 836731 (S.D. Fla. Mar. 3,
2011), for example, the court affirmed an ALJ’s decision to discredit a physician’s
opinion because the physician “failed to take [the plaintiff’s] noncompliance into
consideration when making her assessments.”

Id. at *4.

There, the ALJ provided,

“despite being aware that the claimant was non-complaint, [the physician] failed to take
into consideration these circumstances and instead based her comments mostly on the
claimant’s self reports, without any further testing.”

Id.

In contrast, here, Dr. Chu

expressly noted that noncompliance was “to a certain extent” a factor, but the Court,
unlike the ALJ, will not speculate as to how Dr. Chu took the plaintiff’s noncompliance
into consideration when making his assessments.
13

Conclusion
Accordingly, it is ORDERED that the decision of the Commissioner of Social
Security denying the plaintiff benefits be REVERSED AND REMANDED pursuant to
sentence four of 42 U.S.C. § 405(g), see Melkonyan v. Sullivan, 501 U.S. 89 (1991), for
further proceedings not inconsistent with this decision.

The remand pursuant to

sentence four of § 405(g) makes the plaintiff a prevailing party for purposes of the Equal
Access to Justice Act, 28 U.S.C. § 2412, see Shalala v. Schaefer, 509 U.S. 292 (1993), and
terminates this Court’s jurisdiction over this matter.
DONE and ORDERED this the 28th day of March, 2013.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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