Hunt v. Colvin
MEMORANDUM OPINION AND ORDER entered. After considering 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. Signed by Magistrate Judge Bert W. Milling, Jr on 8/29/2016. (clr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Social Security Commissioner,
CIVIL ACTION 16-0021-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
denying a claim for Supplemental Security Income (hereinafter
SSI) (Docs. 1, 15).
The parties filed written consent and this
action has been referred to the undersigned Magistrate Judge to
conduct all proceedings and order judgment in accordance with 28
U.S.C. § 636(c), Fed.R.Civ.P. 73, and S.D.Ala. Gen.L.R. 73(b)
(see Doc. 21).
Oral argument was waived (Doc. 20).
considering 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
Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).
evidence 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 administrative hearing, Hunt was thirtysix years old, had completed a high school education (Tr. 80),
and had previous work experience as a detention officer, an
account clerk, and an inventory clerk (Tr. 75).
alleges disability due to a thyroid condition, a heart murmur,
obesity, fatigue, shortness of breath, chronic pain, and
paresthesias (Doc. 14 Fact Sheet).
Hunt applied for SSI on February 14, 2012, asserting
disability as of August 15, 2010 (Tr. 107, 190-95).
Administrative Law Judge (hereinafter ALJ) denied benefits,
determining that Hunt was capable of performing her past
relevant work as an inventory clerk and a custody officer (Tr.
Plaintiff requested review of the hearing decision
(Tr. 95-97), but the Appeals Council denied it (Tr. 1-6).
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
Specifically, Hunt alleges
(1) The ALJ’s finding regarding her residual functional
capacity (hereinafter RFC) is not supported by the evidence; (2)
the ALJ did not consider her poverty in reaching her decision;
and (3) the Appeals Council did not properly consider newlysubmitted evidence (Doc. 15).
Defendant has responded to—and
denies—these claims (Doc. 16).
The Court will now summarize the evidence of record.
On September 10, 2007, records from Hale County Hospital
Clinic (hereinafter HCHC) show that Hunt was treated for a
urinary tract infection; she had been experiencing back pain for
several days (Tr. 277).
On April 24, 2010, Plaintiff went to HCHC for shortness of
breath and pain in the right side of her neck because of a
goiter (Tr. 279-87).
Lortab1 was prescribed and Hunt was
encouraged to meet with an endocrinologist the next week.
On April 10, 2012, Dr. Ronnie T. Chu examined Plaintiff for
shortness of breath, occurring nightly; Hunt reported no pain
(Tr. 271-73; see, generally, Tr. 263-71).
The Doctor performed
a full examination, including a comprehensive range of motion
analysis (hereinafter ROM), before diagnosing her to have a
goiter, and sharing his impression:
A goiter is a condition, not a
disability. Her thyroid function is normal.
Patient stated she actually has gained
weight, not lost weight. She also stated
she has trouble swallowing. She has worked
three different jobs since being diagnosed
with the goiter. She does not meet the
qualifications for disability.
Error! Main Document Only.Lortab is a semisynthetic narcotic
analgesic used for “the relief of moderate to moderately severe pain.”
Physician's Desk Reference 2926-27 (52nd ed. 1998).
On October 27, 2013, Hunt went to Hale County Hospital,
stating that her goiter was worse, causing her to have rightsided neck pain, difficulty breathing, and numbness in her right
arm; she stated that she had not had surgery on the goiter
because of money (Tr. 296-310).
four on a ten-point scale.
Plaintiff rated her pain as
A chest CT scan demonstrated a
single large nodule in the thyroid gland, causing flattening and
mild narrowing of the trachea (Tr. 303-04).
Hunt was given a
Decadron2 injection; at discharge, she was encouraged to call and
make an “urgent appointment” with Dr. Bilton who “would work
something out with” her (Tr. 301, 310).
On November 4, 2013, Plaintiff went to the HCHC for right
arm pain; she reported being on no medications (Tr. 290-93).
The exam record was to be forwarded to a thyroid surgeon at Good
Samaritan Clinic;3 Lortab was prescribed.
On April 4, 2014, Hunt returned to HCHC for pain and
paresthesias into both arms; she reported taking no medications
On examination, a huge thyroid was noted, though
Plaintiff easily had full ROM of her neck; she exhibited a
Error! Main Document Only.Decadron is a corticosteroid used for,
among other things, the treatment of rheumatic disorders. Physician's
Desk Reference 1635-38 (52nd ed. 1998).
The Good Samaritan Clinic provides free primary health care,
medication, and health information, among other things to those who do
not have health insurance. See http://gscclinic.org/
creaking noise in breathing, both inspiratory and expiratory,
because of the goiter pressing on her trachea.
Hunt was sent to
Good Samaritan Clinic for various tests and to see a surgeon.
This concludes the Court’s summary of the evidence.
Hunt first claims that the ALJ’s RFC finding is not
supported by the record.
More specifically, she asserts the ALJ
did not consider the combination of all of her impairments,
listing fatigue, pain, and paresthesias (Doc. 15, pp. 3-4).
“The RFC assessment is a function-by-function assessment
based upon all of the relevant evidence of an individual’s
ability to do work-related activities.”
96-8p, Titles II and XVI:
Social Security Ruling
Assessing Residual Functional
Capacity in Initial Claims, 1996 WL 374184, *3.
responsible for determining a claimant’s RFC.
20 C.F.R. §
That decision cannot be based on “sit and
(11th Cir. 1984).
The ALJ is
Wilson v. Heckler, 734 F.2d 513, 518
However, security regulations state that
Plaintiff is responsible for providing evidence from which the
ALJ can make an RFC determination.
20 C.F.R. § 404.1545(a)(3).
The ALJ found that Hunt had two severe impairments, her
goiter and obesity (Tr. 109).
The ALJ also found that Plaintiff
had the RFC “to perform light work as defined in 20 C.F.R.
416.967(b)4 except the claimant would need a temperature
“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds.
controlled environment without concentrated exposure to fumes,
odors, etc.” (Tr. 110).
The ALJ then summarized the medical
evidence and found that Hunt’s statements regarding her
impairments and their symptoms were not credible (Tr. 111).
One facet of Plaintiff’s argument is that the ALJ did not
properly consider the combination of her impairments.
true that "the Secretary shall consider the combined effect of
all of the individual's impairments without regard to whether
any such impairment, if considered separately, would be of such
42 U.S.C. § 1382c(a)(3)(G).
The Eleventh Circuit
Court of Appeals noted this instruction and found that "[i]t is
the duty of the [ALJ] to make specific and well-articulated
findings as to the effect of the combination of impairments and
to decide whether the combined impairments cause the claimant to
Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir.
1984); see also Reeves v. Heckler, 734 F.2d 519 (11th Cir.
1984); Wiggins v. Schweiker, 679 F.2d 1387 (11th Cir. 1982).
The ALJ lists Hunt’s impairments and concludes that she
“does not have an impairment or combination of impairments that
Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work,
we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.”
meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1” (Tr.
This language has been upheld by the Eleventh Circuit
Court of Appeals as sufficient consideration of the effects of
the combinations of a claimant's impairments.
Department of Health and Human Services, 941 F.2d 1529, 1533
(11th Cir. 1991) (the claimant does not have “an impairment or
combination of impairments listed in, or medically equal to one
listed in Appendix 1, Subpart P, Regulations No. 4").
Hunt also asserts the ALJ did not consider her fatigue,
pain, and paresthesias.
She specifically argues that the ALJ
did not evaluate her pain under the appropriate Eleventh Circuit
measures of review.
The standard by which pain complaints are to be evaluated
requires "(1) evidence of an underlying medical condition and
either (2) objective medical evidence that confirms the severity
of the alleged pain arising from that 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
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991)
(citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.
The Eleventh Circuit Court of Appeals also held that
the determination of whether objective medical impairments could
reasonably be expected to produce the pain was a factual
question to be made by the Secretary and, therefore, "subject
only to limited review in the courts to ensure that the finding
is supported by substantial evidence."
Hand v. Heckler, 761
F.2d 1545, 1549 (11th Cir.), vacated for rehearing en banc, 774
F.2d 428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275
(11th Cir. 1986).
The Social Security regulations specifically
statements about your pain or other symptoms
will not alone establish that you are
disabled; there must be medical signs and
laboratory findings which show that you have
a medical impairment(s) which could
reasonably be expected to produce the pain
or other symptoms alleged and which, when
considered with all of the other evidence
(including statements about the intensity
and persistence of your pain or other
symptoms which may reasonably be accepted as
consistent with the medical signs and
laboratory findings), would lead to a
conclusion that you are disabled.
20 C.F.R. 404.1529(a).
The ALJ found that Hunt’s statements of her impairments, and
the symptoms thereof, were not credible.
The ALJ found that the
objective medical evidence did not support her complaints, that
her hearing testimony about her medication use was inconsistent
with what she told her treating sources, and that her hearing
testimony regarding her activities widely diverged from a form
completed when she first applied for disability (Tr. 111-12).
The ALJ pointed out that Hunt sought treatment infrequently (Tr.
111) and that, in an emergency room visit on October 27, 2013,
she rated her pain as only four; the examination revealed normal
The ALJ found that Plaintiff’s “allegations of low
energy, difficulty breathing, and persistent arm pain [were] not
supported by the objective evidence of record” (Tr. 111).
The Court finds the ALJ’s RFC determination supported by
substantial evidence; the ALJ properly considered her pain and
combination of impairments in determining that Hunt could return
to her past work.
Plaintiff’s claim otherwise is without merit.5
Hunt next claims the ALJ did not consider her poverty in
reaching her determination (Doc. 15, pp. 2-3).
regulations state that refusing to follow prescribed medical
treatment will preclude disability if done so without a good
20 C.F.R. § 416.930(b).
However, the Eleventh Circuit
Court of Appeals has held that poverty excuses noncompliance
with medical treatment.
Dawkins v. Bowen, 848 F.2d 1211, 1213
(11th Cir. 1988).
The ALJ discussed Plaintiff’s lack of treatment, noting
that she had not taken opportunities to receive treatment that
would accommodate her lacks of funds (Tr. 111).
specifically pointed out that Hunt had not contacted a surgeon,
Dr. Bilton, who would work something out with her regarding her
Hunt also asserted the ALJ committed error in not including her
symptoms in a hypothetical question to the Vocational Expert. As it
is based on a claim the Court found meritless, this claim, too, must
goiter; instead, Plaintiff returned to the clinic (Tr. 111; cf.
In another instance, Hunt was referred to Good
Samaritan Clinic for treatment, but she testified that she did
not go because she could not get a ride (Tr. 111; cf. Tr. 80,
The Court cannot find that the ALJ was remiss in
considering Plaintiff’s poverty in light of Plaintiff’s failure
to follow-through with less expensive or free options that might
have provided necessary treatment.
As noted by our sister
Court, “a claim of financial inability to obtain prescribed
treatment is only a justifiable cause for failure to follow the
prescribed treatment when free community resources are
Bulger v. Colvin, 2014 WL 4495220, *10 (M.D. Ala.
September 12, 2014).
This claim is without merit.
Hunt’s final claim is that the Appeals Council did not
properly consider evidence newly-submitted to it.
evidence was considered by the Appeals Council, Plaintiff only
references that found at Transcript pages 43-47, and 57 (Doc. 15,
pp. 6-7); the Court will limit its review to those pages.
The Appeals Council considers additional evidence submitted
by a claimant if it is new, material, and chronologically
20 C.F.R. § 404.970(b).
The Appeals Council must
then decide if the new evidence renders the ALJ’s “action,
findings, or conclusion  contrary to the weight of the
evidence currently of record.”
The Eleventh Circuit Court
of Appeals held that “when a claimant properly presents new
evidence to the Appeals Council, a reviewing court must consider
whether that new evidence renders the denial of benefits
Ingram v. Commissioner of Social Security
Administration, 496 F.3d 1253, 1262 (11th Cir. 2007).
presented evidence was as follows.
On January 7, 2015, Plaintiff underwent a CT of the soft
tissues in the neck, after experiencing right-sided neck
swelling and difficulty with breathing and swallowing; the exam
showed a “[m]assive enlargement of the right thyroid lobe
producing significant appearing compression and displacement of
the trachea and esophagus” (Tr. 57).
On July 23, 2015, Hunt
underwent a right thyroid lobectomy, plus isthmusectomy,
removing the massive enlargement (Tr. 42-47).
the procedure well with no complications (Tr. 44).
In its decision, the Appeals Council found no reason to
review the ALJ’s decision (Tr. 1).
The Council considered the
new evidence, but determined it post-dated the ALJ’s decision
and would not affect it (Tr. 2).
The Court notes that the Appeals Council is not required
“to give a detailed rationale for why each piece of new evidence
submitted to it does not change the ALJ’s decision.”
v. Commissioner of Social Security Administration, 771 F.3d 780,
784 (11th Cir. 2014).
However, the Council is required “to apply
the correct legal standards in performing its duties.”
The Court finds no error in the Appeals Council’s decision
to not remand this action as the evidence post-dated the ALJ’s
determination of April 28, 2014.
The last examination of
record, predating the ALJ’s determination by three weeks, showed
Plaintiff had full ROM in her neck, though there was creaking in
her breathing; the examining physician noted no pain (Tr. 31213).
Though Hunt referred for further treatment at a free
clinic, she did not seek it out.
The evidence of record at that
time did not establish disability, as found by the ALJ.
the newly-submitted evidence demonstrated treatment of the
impairment, it does not establish disability.
otherwise is without merit.
Hunt raises three claims in this action; all three are
Upon considering 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 Secretary's decision be
AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir.
1980), and that this action be DISMISSED.
Judgment will be
entered by separate Order.
DONE this 29th day of August, 2016.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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