James v. Colvin

Filing 23

MEMORANDUM OPINION AND ORDER entered.. Upon consideration of the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be AFFIRMED and that this action be DISMISSED, as further set out in order. Signed by Magistrate Judge Bert W. Milling, Jr on 11/12/2013. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
FEBA MARIE JAMES,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commission of Social Security,
Defendant.

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CIVIL ACTION 13-0087-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 1383(c)(3), Plaintiff
seeks judicial review of an adverse social security ruling which
denied a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 13).

The parties filed written consent and this

action has been referred to the undersigned Magistrate Judge to
conduct all proceedings and order the entry of judgment in
accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc.
22).

Oral argument was waived in this action (Doc. 21).

Upon

consideration of the administrative record and the memoranda of
the parties, it is ORDERED that the decision of the Commissioner
be AFFIRMED and that this action be DISMISSED.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and
Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th

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Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires “that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance.”

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D.
Md. 1982).
At the time of the most recent administrative hearing,
Plaintiff was forty-five years old, had completed a ninth-grade
education (Tr. 50), and had no previous work experience (see Tr.
37).

In claiming benefits, Plaintiff alleges disability due to

cardiomegaly, hypertension, obesity with mechanical back pain,
history of gastroesophageal reflux disease, history of pulmonary
embolism, recurrent major depressive disorder, and panic attacks
without agoraphobia (Doc. 13 Fact Sheet).
The Plaintiff filed an application for SSI on May 2, 2007
(Tr. 250-65).

Benefits were denied following a hearing by an

Administrative Law Judge (ALJ) who determined that although
James had no past relevant work, there were light work jobs that
she could perform (Tr. 21-38).

Plaintiff requested review of

the hearing decision (Tr. 15) by the Appeals Council, but it was
denied (Tr. 1-5).
Plaintiff claims that the opinion of the ALJ is not

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supported by substantial evidence.
that:

Specifically, James alleges

(1) The ALJ’s findings regarding James’s residual

functional capacity (hereinafter RFC) is not supported by the
evidence; and (2) the ALJ failed to properly evaluate her noncompliance with prescribed mental health treatment (Doc. 13).
Defendant has responded to—and denies—these claims (Doc. 17).
Plaintiff’s first claim is that the ALJ’s findings
regarding her RFC are not supported by substantial evidence.
The Court notes that the ALJ is responsible for determining a
claimant’s RFC.

20 C.F.R. § 416.946(c) (2013).

The Court also

notes that the social security regulations state that Plaintiff
is responsible for providing evidence from which the ALJ can
make an RFC determination.

20 C.F.R. § 416.945(a)(3).

Following his review of all of the medical evidence, the
ALJ made the following findings:
After careful consideration of the
entire record, the undersigned finds that
the claimant has the residual functional
capacity to perform light work as defined in
20 C.F.R. 416.967(b) except the claimant can
stand and/or walk 2 hours in an 8-hour
workday. She must periodically alternate
sitting and standing to relieve pain or
discomfort. She can frequently push and
pull with her legs. She can occasionally
climb ramps/stairs, balance, stoop, kneel,
crouch and crawl; but never climb ladders,
ropes or scaffolds. She must avoid even
moderate exposure to extreme cold, extreme
heat, wetness, humidity, vibration, fumes,
odors, dust, gases and poor ventilation and

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avoid all exposure to hazardous machinery
and unprotected heights. Mentally, she has
a mild limitation in her ability to use
judgment in simple one or two step workrelated decisions; mild to moderate
limitation in her ability to understand,
remember and carry out simple one and two
step instructions; moderate limitation in
her ability to respond appropriately to
customers or other members of the general
public, to respond appropriately to
supervision, to respond appropriately to coworkers, to respond to customary work
pressures, and to maintain attention,
concentration or pace for periods of at
least two hours; and marked limitation in
her ability to use judgment in detailed or
complex work-related decisions and to
understand, remember and carry out detailed
or complex instructions.
(Tr. 25-26).
James raises two objections in bringing her claim that the
ALJ’s RFC is unsupported by the evidence.

One concern is that

no physician of record provided any RFC analysis (Doc. 13, pp.
6-8).

The Court again notes, however, that James is responsible

for providing evidence from which the ALJ can make an RFC
determination.

Furthermore, Plaintiff has the burden of proving

that she is disabled.

See 20 C.F.R. § 416.912(a) and (c); see

also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987).

James,

however, has pointed to no evidence demonstrating that she is
unable to perform within the RFC framework determined by the
ALJ.

As the record exceeds one thousand pages, the Court finds

it unlikely that a decision could not be reached from the

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available evidence.

Plaintiff has provided this Court with no

reason to find otherwise.
James’s second complaint, in raising this claim, arises
from a concern that the ALJ gave significant weight to the
opinions of Dr. James Anderson, a medical expert (hereinafter
ME), who testified at the first evidentiary hearing even though
almost two hundred pages of medical evidence were added to the
record following his testimony (Doc. 13, pp. 4-5).
In his decision, the ALJ summarized the medical evidence of
record (Tr. 28-35); the Court notes James has asserted no
deficiencies in that review (see Doc. 13, pp. 4-8).

Following

that summary, the ALJ noted that he gave substantial evidentiary
weight to the opinions expressed by ME Anderson who testified at
the first hearing, finding it “generally consistent with the
overall evidence of record” (Tr. 35).

Dr. Anderson testified

that James’s impairments were as follows:
This 43-year-old lady is obese, 261
pounds with hypertension, asymptomatic. She
has a history of pulmonary embolus in May of
’07, treated successfully without any
recurrence. She is in the permanent
anticoagulation state due to a history of
pulmonary emboli. She has chronic pelvic
pain due to gynecological problems with
vaginal bleeding, treated with parenteral
iron because she was intolerant to oral
iron. And she has chronic chest pain
probably musculoskeletal, treated
symptomatically, as well as leg and back

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pain, probably musculoskeletal in nature,
treated symptomatically.
(Tr. 110-11).

The ME went on to testify that Plaintiff’s

medications were medically necessary, that her physical
impairments did not meet or equal any of the Listings, and that
the combination of her impairments would limit her to light work
activity with a sit/stand option (Tr. 111-12).

Upon questioning

by James’s attorney, Dr. Anderson stated that general medical
thought would lay the blame for Plaintiff’s leg and back pain on
her obesity, but development of medical information regarding
her pain would be helpful (Tr. 112-13).
Plaintiff poses no objections to Dr. Anderson’s specific
conclusions (see Doc. 13, pp. 4-8).

Rather, James’s complaint

is that there are nearly two hundred pages of medical evidence
that was entered into the record after his testimony that he did
not consider

(Doc. 13, pp. 4-5).

However, the Court notes that

Plaintiff points to no medical evidence, either new or old, that
contradicts—or is in conflict with—Dr. Anderson’s testimony.
The Court notes that even though the ME did not get the
opportunity to review some of the evidence before reaching his
conclusions, the ALJ considered the additional evidence in
reaching his determination.

Plaintiff has objected to this RFC

finding because it is more restrictive than the limitations
found by Dr. Anderson (Doc. 13, p. 5) (“Anderson’s testimony at

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the first hearing did not even address many of the limitations
that were assessed by the ALJ”).

The Court suggests that this

is an indication of the ALJ’s thorough examination of the
medical evidence, giving James the benefit of the doubt as to
some of her impairments.
Ultimately, though, the Court notes that James points to no
medical evidence that questions the ALJ’s RFC findings.

As the

ALJ is responsible for determining a claimant’s RFC and James
has failed to direct this Court to any evidence that disagrees
with his RFC conclusion, the Court finds substantial evidence to
support that finding.

Plaintiff’s claim otherwise is without

merit.
James’s second claim is that the ALJ failed to properly
evaluate her non-compliance with prescribed mental health
treatment.

Plaintiff asserts that she was not able to afford

her medications at times and had not had any health insurance
for years (Doc. 13, p. 10; cf. Tr. 51, 57).
In his decision, the ALJ found that although James’s
impairments could be expected to cause symptoms, her “statements
concerning the intensity persistence and limiting effects of
these symptoms are not credible” (Tr. 27-28).

As support for

this conclusion, the ALJ noted the following inconsistencies in
the record:

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(1) The claimant has attempted to portray
herself as being more intellectually
deficient than in reality. She testified
that she only completed the 9th grade in
school. However, in her Disability Report,
she reported having completed the 11th grade
(Exhibit B-2E). (2) The claimant blatantly
malingered during a consultative
psychological evaluation. On July 9, 2009,
Dr. Blanton, Ph.D., administered the
Wechsler Adult Intelligence Scale-IV to
determine claimant’s level of cognitive
functioning. He found her test scores
invalid, noting that she appeared to
deliberately do poorly and put no effort
into her work. For example, when asked the
shape of a ball, she replied “It’s a
square.” When asked to name the President
of the United States, she replied “Ronald
Reagan.” When asked the number of legs on a
dog, she replied “12” (Exhibit B-27F). (3)
The claimant testified that, since 2008, she
has not cleaned, cooked, swept, mopped, made
beds, washed clothes, washed dishes, taken
out the garbage, worked out in the yard or
shopped for groceries. The undersigned
finds her testimony less than honest given
that the medical record does not support
disabling impairments and in light of her
malingering during a consultative
examination. (4) The claimant testified
that she has not driven a car since 1999,
but admits to having a driver’s license.
(5) The claimant has denied being selfemployed in the year 2007, but an income
query shows self-employment earnings of
$10,759.00 for that year (Exhibit B-11D).
There is no evidence that suggests the
claimant has attempted to correct her tax
record with the IRS.
(Tr. 35).

The ALJ also made specific findings regarding James’s

noncompliance with her prescribed medical treatment.
findings are as follows:

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Those

[The Cahaba Center for Mental Health]
progress notes indicate that the claimant
has been chronically noncompliant with
taking her medications and, as a result she
has had a recurrence of symptoms (See
Exhibit B-12F, pages 3 and 4; Exhibit B-20F,
page 2; Exhibit B-28F, pages 2 and 3; and
Exhibit B-32F, page 4). However, when she
takes her medications, her symptoms improve.
On February 26, 2008, her psychiatrist noted
that she had been noncompliant with
medications in the past, but that day she
reported being compliant with medications
since her last appointment and was doing
well on her medications with no current
depressive symptoms, no psychosis, sleep and
appetite within normal limits (WNL), no
suicidal or homicidal ideation, euthymic
mood, and appropriate affect (See Exhibit B12F, page 3). On August 19, 2008, her
psychiatrist noted that her symptoms had
improved with medication compliance (Exhibit
B-20F, page 3).
(Tr. 33).
The Court notes that Social Security regulations state that
“[i]n order to get benefits, you must follow treatment
prescribed by your physician if this treatment can restore your
ability to work.”

20 C.F.R. 1530(a) (2013).

The regulation

goes on to state that “[i]f you do not follow the prescribed
treatment without a good reason, we will not find you disabled
or, if you are already receiving benefits, we will stop paying
you benefits.”

20 C.F.R. § 404.1530(b) (2008); see also Dawkins

v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988).
The Court has reviewed the pages cited by the ALJ as

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evidence of James’s non-compliance (Tr. 598-99, 769, 878-79,
985) and notes that although the doctors talked to her about not
following their orders, she offered no explanation for her
failure.

Plaintiff has cited no evidence in the medical record,

save for her testimony at the hearing before the ALJ, that she
has informed her physicians of her poverty.

James has correctly

cited law holding that a claimant’s failure to follow a
prescribed treatment regimen will not prevent that claimant’s
receipt of benefits if the reason for non-compliance is poverty.
See Dawkins, 848 F.2d at 1213.

However, Plaintiff’s failure to

explain to her doctors that she is not following their orders
because she cannot afford to do so leads this Court to believe
that her claim now is less than credible.

This belief is

bolstered by the ALJ’s finding of non-credibility, a finding
unchallenged by Plaintiff except in this particular aspect.

The

Court finds substantial support for the ALJ’s conclusion that
James was not a reliable witness in presenting herself to the
ALJ and further finds that her claim of poverty for noncompliance is not reliable either.
Plaintiff has raised two claims in brining this action.
Both are without merit.

Upon consideration of the entire

record, the Court finds "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
Perales, 402 U.S. at 401.

Therefore, it is ORDERED that the

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Secretary's decision be AFFIRMED, see Fortenberry v. Harris, 612
F.2d 947, 950 (5th Cir. 1980), and that this action be
DISMISSED.

DONE this 12th day of November, 2013.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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