Gaskins v. Commissioner of Social Security
Filing
18
OPINION AND ORDER affirming the Commissioner's final decision. Clerk to enter judgment accordingly and close the file. Signed by Magistrate Judge James R. Klindt on 9/25/2017. (BHC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
KERRY GASKINS,
Plaintiff,
vs.
Case No. 3:16-cv-900-J-JRK
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
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OPINION AND ORDER2
I. Status
Kerry Gaskins (“Plaintiff”) is appealing the Commissioner of the Social Security
Administration’s final decision denying his claims for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). Plaintiff’s alleged inability to work is a result of grand
mal seizures. Transcript of Administrative Proceedings (Doc. No. 11; “Tr.” or “administrative
transcript”), filed September 20, 2016, at 77, 85, 97, 106, 247. On September 30, 2013,
Plaintiff filed applications for DIB and SSI, alleging an onset disability date of July 1, 2013.
Tr. at 77-84 (DIB), 85-92 (SSI) Plaintiff’s applications were denied initially, see Tr. at 77-84,
93, 95, 119-21 (DIB), Tr. at 85-92, 94, 96, 122-24 (SSI), and were denied upon
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Pursuant to Rule 25(d)(1), Federal Rules of Civil Procedure, Nancy A. Berryhill should be
substituted for Carolyn W. Colvin as Defendant in this suit. No further action need be taken to continue
this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
2
The parties consented to the exercise of jurisdiction by a United States Magistrate
Judge. See Notice, Consent, and Reference of a Civil Action to a Magistrate Judge (Doc. No. 12), filed
September 20, 2016; Reference Order (Doc. No. 14), entered September 26, 2016.
reconsideration, see Tr. at 97-105, 115, 117,132-36 (DIB), Tr. at 106-14, 116, 118, 137-41
(SSI).
On October 2, 2015, an Administrative Law Judge (“ALJ”) held a hearing, during
which the ALJ heard from Plaintiff, who was represented by counsel, and a vocational expert
(“VE”). Tr. at 45-76. The ALJ issued a Decision on November 6, 2015, finding Plaintiff not
disabled through the date of the Decision. Tr. at 29-39.
The Appeals Council then received additional evidence consisting of a statement by
Plaintiff. Tr. at 6; see Tr. at 299-300 (statement). On May 14, 2016, the Appeals Council
denied Plaintiff’s request for review, Tr. at 1-4, thereby making the ALJ’s Decision the final
decision of the Commissioner. On July 13, 2016, Plaintiff commenced this action under 42
U.S.C. §§ 405(g) and 1383(c)(3) by timely filing a Complaint (Doc. No. 1), seeking judicial
review of the Commissioner’s final decision.
On appeal, Plaintiff makes the following argument: “The ALJ erred by not
appropriately evaluating the medical evidence.” Memorandum in Support of Complaint (Doc.
No. 16; “Pl.’s Mem.”), filed October 5, 2016, at 6 (emphasis and some capitalization omitted).
More specifically, Plaintiff argues the ALJ’s finding that “the seizures were currently stable
on medications and would continue to be stable with medication compliance[ ] . . . is not
supported by substantial evidence.” Id. On January 20, 2017, Defendant filed a
Memorandum in Support of the Commissioner’s Decision (Doc. No. 17; “Def.’s Mem.”)
addressing Plaintiff’s argument. After a thorough review of the entire record and
consideration of the parties’ respective memoranda, the undersigned determines that the
Commissioner’s final decision is due to be affirmed.
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II. The ALJ’s Decision
When determining whether an individual is disabled,3 an ALJ must follow the five-step
sequential inquiry set forth in the Code of Federal Regulations (“Regulations”), determining
as appropriate whether the claimant (1) is currently employed or engaging in substantial
gainful activity; (2) has a severe impairment; (3) has an impairment or combination of
impairments that meets or medically equals one listed in the Regulations; (4) can perform
past relevant work; and (5) retains the ability to perform any work in the national economy.
20 C.F.R. §§ 404.1520, 416.920; see also Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th
Cir. 2004). The claimant bears the burden of persuasion through step four and, at step five,
the burden shifts to the Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
Here, the ALJ followed the five-step sequential inquiry. See Tr. at 31-39. At step one,
the ALJ determined that “[Plaintiff] has not engaged in substantial gainful activity since July
1, 2013, the alleged onset date.” Tr. at 31 (emphasis and citations omitted). At step two, the
ALJ found that “[Plaintiff] has the following severe impairment: seizure disorder.” Tr. at 32
(emphasis and citations omitted). At step three, the ALJ ascertained that “[Plaintiff] does not
have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. at
32 (emphasis and citations omitted).
3
“Disability” is defined in the Social Security Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months[.]” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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The ALJ determined that Plaintiff has the following residual functional capacity
(“RFC”):
[Plaintiff can] perform medium work as defined in 20 CFR [§§] 404.1567(c) and
416.967(c) except [Plaintiff] can lift and/or carry up to [fifty] pounds occasionally
and no more than [twenty-five] pounds frequently; [Plaintiff] can sit, stand,
and/or walk up to [six] hours in an [eight]-hour workday, with up to [six] hours
seated; no climbing ladders, ropes or scaffolds; [Plaintiff] must avoid exposure
to heat and humidity; only moderate exposure to noise; occasional exposure
to pulmonary irritants, including fumes, odors, dusts, and gases; no exposure
to hazardous conditions (unprotected heights, hazardous machinery); no
exposure to strobe lights or computer screens.
Tr. at 32 (emphasis omitted). At step four, the ALJ relied on the testimony of the VE and
found that “[Plaintiff] is capable of performing past relevant work as a Blender, Stock Clerk,
Janitor, and Cashier.” Tr. at 37 (emphasis omitted). The ALJ then proceeded to make
alternative findings regarding the fifth and final step of the sequential inquiry. Tr. at 38-39.
At step five, after considering Plaintiff’s age (“52 years old . . . on the alleged disability onset
date”), education (“at least a high school education”), work experience, and RFC, the ALJ
again relied on the testimony of the VE and found “there are other jobs that exist in
significant numbers in the national economy that [Plaintiff] also can perform,” including
“Industrial Cleaner” and “Food Service Worker.” Tr. at 38. The ALJ concluded that “[Plaintiff]
has not been under a disability . . . from July 1, 2013, through the date of th[e D]ecision.” Tr.
at 39 (emphasis and citations omitted).
III. Standard of Review
This Court reviews the Commissioner’s final decision as to disability pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3). Although no deference is given to the ALJ’s conclusions
of law, findings of fact “are conclusive if . . . supported by ‘substantial evidence’ . . . .”
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Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001) (citing Falge v. Apfel, 150 F.3d 1320,
1322 (11th Cir. 1998)). “Substantial evidence is something ‘more than a mere scintilla, but
less than a preponderance.’” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quoting
Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)). The substantial evidence standard
is met when there is “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Falge, 150 F.3d at 1322 (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)). It is not for this Court to reweigh the evidence; rather, the entire
record is reviewed to determine whether “the decision reached is reasonable and supported
by substantial evidence.” Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)
(internal quotation and citations omitted); see also McRoberts v. Bowen, 841 F.2d 1077,
1080 (11th Cir. 1988); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). The decision
reached by the Commissioner must be affirmed if it is supported by substantial
evidence–even if the evidence preponderates against the Commissioner’s findings. Crawford
v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004) (per curiam).
IV. Discussion
The undersigned first sets out the applicable law. Then, the issue raised by Plaintiff
is discussed.
In addition to the substantial evidence standard set out in Section III above, the
following law regarding noncompliance with prescribed treatment is discussed. The
Regulations provide that noncompliance with prescribed treatment without a “good reason”
will preclude a finding of disability. 20 C.F.R. §§ 404.1530(b), 416.930(b). Good reason
exists when:
(1) The specific medical treatment is contrary to the established teaching and
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tenets of your religion.
(2) The prescribed treatment would be cataract surgery for one eye when there
is an impairment of the other eye resulting in a severe loss of vision and is not
subject to improvement through treatment.
(3) Surgery was previously performed with unsuccessful results and the same
surgery is again being recommended for the same impairment.
(4) The treatment because of its enormity (e.g. open heart surgery), unusual
nature (e.g., organ transplant), or other reason is very risky for you; or
(5) The treatment involves amputation of an extremity, or a major part of an
extremity.
Id. “A medical condition that can reasonably be remedied either by surgery, treatment, or
medication is not disabling.” Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988)
(quoting Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir.1987)) (internal quotation marks
omitted).
As noted above, Plaintiff contends the ALJ’s finding that “the seizures were currently
stable on medications and would continue to be stable with medication compliance . . . is not
supported by substantial evidence.” Pl.’s Mem. at 6. Plaintiff asserts he is compliant with his
medication, “the seizures continue[,] and the only change has been an increase in the
seizure medication dosages or the medications.” Id. at 7-8. Responding, Defendant argues
that “substantial evidence supports the ALJ’s Decision that Plaintiff was not disabled.” Def.’s
Mem. at 3 (emphasis and some capitalization omitted). According to Defendant, “[t]he
evidence . . . supports the ALJ’s conclusion that Plaintiff was non-compliant with his
medications and that his seizures were controlled by the medication.” Id.
Although Plaintiff argues at length about the ALJ’s finding that Plaintiff was
noncompliant with his medications, the ALJ did not rely solely on Plaintiff’s noncompliance
in making the disability finding. He also relied on the fact that Plaintiff is currently working and
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on record evidence indicating Plaintiff’s condition is stable.4
The ALJ summarized the medical evidence of record, see Tr. at 34-36, and found that
“the record does not suggest that [Plaintiff’s] symptoms are work preclusive,” Tr. at 36. The
ALJ observed that “[Plaintiff] testified that he was not able to work full-time because he does
not believe he would be offered a full-time position, versus any health[-]related reason.” Tr.
at 37. Thus, the ALJ concluded that “[Plaintiff] is able to work, and believably would work on
a full-time basis if offered the job.” Tr. at 37. The ALJ also found that “[s]ituations where the
seizures are not under good control are usually due to [Plaintiff’s] noncompliance with the
prescribed treatment rather than the ineffectiveness of the treatment itself.” Tr. at 36. The
ALJ concluded that “[t]he evidence documents that [Plaintiff’s] seizures are currently stable
and would continue to be stable with medication compliance.” Tr. at 37. These findings are
supported by substantial evidence.
First, the administrative transcript shows there have been instances in which Plaintiff’s
seizures were apparently caused by noncompliance with his prescribed medications. On
August 29, 2013, Plaintiff was admitted to the Emergency Department (“ED”) at Ed Fraser
Memorial Hospital (“Ed Fraser”) after suffering a seizure. See Tr. at 385-95. He reported he
had stopped taking his prescribed medications eight to ten months prior. Tr. at 390. Plaintiff
4
For the ALJ to deny disability benefits on the “sole ground” of noncompliance with
prescribed treatment, the ALJ must determine whether the claimant is able to afford the treatment. Ellison
v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003). Accordingly, “[w]here the ALJ d[oes] not rely
significantly on the claimant's noncompliance . . . the ALJ's failure to consider evidence regarding the
claimant's ability to afford her prescribed treatment does not constitute reversible error.” Bellew v. Acting
Comm'r of Soc. Sec., 605 F. App'x 917, 921 (11th Cir. 2015) (citing Ellison, 355 F.3d at 1275). Thus,
although Plaintiff does not argue the ALJ erred by failing to consider whether Plaintiff was financially able
to comply with his prescribed medications, the undersigned finds that this failure does not constitute
reversible error because Plaintiff’s noncompliance was not the sole ground upon which the ALJ found
Plaintiff not disabled.
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was advised he would be able to return to work on September 2, 2013.5 Tr. at 386. On April
15, 2014, Plaintiff was again admitted to the ED at Ed Fraser due to a seizure he suffered
at a laundromat. Tr. at 727; see 727-34 (ED report). Plaintiff stated he was taking his
medications. Tr. at 727.
On November 22, 2014, Plaintiff was admitted to the ED at St. Vincent’s Medical
Center (“St. Vincent’s”) after he was “found unconscious on the road.” Tr. at 413; see also
Tr. at 402-509, 511-83, 586-704 (ED report). The ED report indicates that although “[Plaintiff]
state[d] . . . that he [was] taking medications[,] . . . but according to the records, [Plaintiff] was
not taking any medications.” Tr. at 419; see also Tr. at 422 (note indicating, “[Plaintiff] was
medically noncompliant, [and] not taking his [medication] as prescribed for unclear reasons”).
The “principal discharge diagnosis[ was b]reakthrough seizure secondary to medication
noncompliance.” Tr. at 422 (some capitalization omitted). The report further indicates that
“[Plaintiff did] not appear to be at increased risk for hospital readmission[,] but suspected
medication noncompliance exacerbates the risk for readmission.” Tr. at 458.
In January 2015, Plaintiff was admitted to the ED at Ed Fraser after suffering two
seizures: one on January 29 and one on January 30. Tr. at 741-45 (January 29 ED report),
750-54 (January 30 ED report). The ED reports do not address whether Plaintiff was
noncompliant with his medication at the time the seizures occurred. See Tr. at 741-45
(January 29 ED report), 750-54 (January 30 ED report). On February 21, 2015, Plaintiff was
again admitted to the ED at Ed Fraser due to seizures. See Tr. at 761-72. The ED then
referred Plaintiff to St. Vincent’s for a consultation. Tr. at 763; see also Tr. at 1037-48 (St.
5
The administrative transcript contains another note releasing Plaintiff to work on August
31, 2013. See Tr. at 385.
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Vincent’s consultation report). The consultation report from St. Vincent’s states that although
“[Plaintiff] denie[d] any medication noncompliance on his account, he is not [a] reliable
historian.” Tr. at 1040.
Second, the ALJ’s finding that Plaintiff is able to work on a full-time basis, Tr. at 36,
is supported by substantial evidence. Plaintiff testified he is currently working at Winn-Dixie,
where he “stock[s] shelves.” Tr. at 50. He stated he works twenty-one hours a week and
sixteen hours a week on holidays. Tr. at 54. His counsel asked him: “[W]hat do you believe
prevents you from working a full-time job?”; and Plaintiff responded: “I don’t think any
company would take the chance on me working a full-time job . . . with my history of
seizures.” Tr. at 58-59. Counsel then asked Plaintiff: “[I]f they offered you [a] full[-]time [job,]
would you be able to perform that job, do you think?”; and Plaintiff responded the following:
Well, I don’t think they -- right now the job that I’m at right now they’re trying to
cut our pay to part time. And they have been doing that for a while now, and
they cut a lot of other people out . . . to where they only get like five to [ten]
hours a week. . . . And with my seizures with them also having them in the
store there I don’t think they [would] offer that to me at all. . . . I’ve been almost
[sic] there for two years and I can get is [sic] anywhere between [twenty-one]
hours to [sixteen] hours a week.
Tr. at 59. Plaintiff did not state whether he believes his condition would hinder his capacity
to work full time. See generally Tr. at 49-67 (Plaintiff’s testimony at hearing). Moreover, the
November 2014 ED report indicates that the day after Plaintiff was admitted to the hospital,
“[he was] eager to be discharged as he ha[d] work [that night] at 11:00 p.m.” Tr. at 458.
In making his finding of disability, the ALJ properly considered Plaintiff’s current
employment. See Ellison, 355 F.3d at 1275-76 (in discrediting opinion of examining physician
that plaintiff was “totally disabled,” court considered “the fact that [the plaintiff] worked for
several years in spite of his seizure disorder”). Thus, the ALJ did not err in finding that
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Plaintiff’s condition does not inhibit his capacity to work.
Third, substantial evidence supports the ALJ’s finding that “[Plaintiff’s] seizures are
currently stable and would continue to be stable with medication compliance.” Tr. at 37. At
the hearing, Plaintiff testified that “between 2013 to 2014” his seizures were more frequent
than they are now. Tr. at 64. Notably, the seizures that were likely caused by his
noncompliance with medication occurred during this time period. See Tr. at 385-95 (August
2013), Tr. at 402-509, 511-83, 586-704 (November 2014). According to Plaintiff, “[i]n March
[20]15[,] [the seizures] got less frequent.” Tr. at 64. He testified that “the last [seizure he] had
was in March of 2015.” Tr. at 56. The administrative transcript, however, indicates Plaintiff’s
most recent seizure occurred in February 2015 (approximately seven months prior to the
hearing). See Tr. at 1083 (June 2015 note indicating Plaintiff was hospitalized due to
seizures in February 2015 without mentioning any other hospitalizations), Tr. at 761-72,
1037-48 (February 2015 medical report). Further, the ALJ correctly observed that “UF
[Health] Family [Medicine] progress notes indicate[ ] that [Plaintiff’s] seizures are controlled
and stable on medications.” Tr. at 36 (citation omitted); see Tr. at 1090 (April 2015 note
indicating, “Grand mal [seizures are] stable currently with increase of med[ications]”). Thus,
the ALJ did not err in finding that Plaintiff’s condition is stable with medication compliance.
In sum, the ALJ’s findings regarding Plaintiff’s noncompliance with his medication, the
severity of his condition, and his ability to work are supported by substantial evidence.
V. Conclusion
After a thorough review of the entire record, the undersigned finds that the ALJ’s
Decision is supported by substantial evidence. Accordingly, it is
ORDERED:
1.
The Clerk of Court is directed to enter judgment pursuant to sentence four of
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42 U.S.C. § 405(g) and pursuant to § 1383(c)(3), AFFIRMING the Commissioner’s final
decision.
2.
The Clerk is further directed to close the file.
DONE AND ORDERED at Jacksonville, Florida on September 25, 2017.
bhc
Copies to:
Counsel of record
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