West v. Commissioner of Social Security

Filing 36

OPINION AND ORDER affirming the decision of the Commissioner. The Clerk of Court is directed to enter judgment consistent with this opinion, terminate all deadlines, and close the case. Signed by Magistrate Judge Douglas N. Frazier on 8/1/2022. (brh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
LILLIAN ANN WEST,
Plaintiff,
v.

Case No.: 3:20-cv-1253-DNF

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff Lillian Ann West seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“SSA”) denying her claim for
a period of disability and disability insurance benefits and for supplemental security
income benefits. The Commissioner filed the Transcript of the proceedings (“Tr.”
followed by the appropriate page number), and the parties filed legal memoranda
setting forth their respective positions. As explained below, the decision of the
Commissioner is AFFIRMED under § 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).

I.

Social Security Act Eligibility, Standard of Review, Procedural
History, and the ALJ’s Decision
A.

Social Security Eligibility

The law defines disability as the inability to do 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 twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The impairment must be
severe, making the claimant unable to do her previous work, or any other substantial
gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505–404.1511, 416.905–416.911.
B.

Standard of Review

The Commissioner’s findings of fact are conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person would accept as
adequate to support a conclusion. Even if the evidence preponderated against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th
Cir. 2004). In conducting this review, this Court may not reweigh the evidence or
substitute its judgment for that of the ALJ, but must consider the evidence as a whole,
taking into account evidence favorable as well as unfavorable to the decision.

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Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation
omitted); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Martin v. Sullivan,
894 F.2d 1520, 1529 (11th Cir. 1990). Unlike findings of fact, the Commissioner’s
conclusions of law are not presumed valid and are reviewed under a de novo
standard. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th Cir.
1994); Maldonado v. Comm’r of Soc. Sec., No. 20-14331, 2021 WL 2838362, at *2
(11th Cir. July 8, 2021); Martin, 894 F.2d at 1529. “The [Commissioner’s] failure
to apply the correct law or to provide the reviewing court with sufficient reasoning
for determining that the proper legal analysis has been conducted mandates
reversal.” Keeton, 21 F.3d at 1066.
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R.
§§ 404.1520, 416.920. At the first step, the ALJ must determine whether the claimant
is

currently

engaged

in

substantial

gainful

employment.

20

C.F.R.

§ 404.1520(a)(4)(i), (b); 20 C.F.R. § 416.920(a)(4)(i), (b). At step two, the ALJ must
determine whether the impairment or combination of impairments from which the
claimant allegedly suffers is “severe.” 20 C.F.R. § 404.1520(a)(4)(ii), (c); 20 C.F.R.
§ 416.920(a)(4)(ii), (c). At step three, the ALJ must decide whether the claimant’s
severe impairments meet or medically equal a listed impairment. 20 C.F.R.
§ 404.1520(a)(4)(iii), (d); 20 C.F.R. § 416.920(a)(4)(iii), (d). If the ALJ finds the
claimant’s severe impairments do not meet or medically equal a listed impairment,

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then the ALJ must determine whether the claimant has the residual functional
capacity (“RFC”) to perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv),
(e)–(f); 20 C.F.R. § 416.920(a)(4)(iv), (e)–(f).
If the claimant cannot perform her past relevant work, the ALJ must determine
at step five whether the claimant’s RFC permits her to perform other work that exists
in the national economy. 20 C.F.R. § 404.1520(a)(4)(v), (g); 20 C.F.R.
§ 416.920(a)(4)(v), (g). At the fifth step, there are two ways in which the ALJ may
establish whether the claimant is capable of performing other work available in the
national economy. The first is by applying the Medical Vocational Guidelines, and
the second is by the use of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232,
1239-40 (11th Cir. 2004); Atha v. Comm’r, Soc. Sec. Admin., 616 F. App’x 931, 933
(11th Cir. 2015).
The claimant bears the burden of proof through step four. Atha, 616 F. App’x
at 933. If the claimant meets this burden, then the burden temporarily shifts to the
Commissioner to establish the fifth step. Id.; 20 C.F.R. § 404.1520(a)(4)(v), (g); 20
C.F.R. § 416.920(a)(4)(v), (g). If the Commissioner presents evidence of other work
that exists in significant numbers in the national economy that the claimant is able
to perform, only then does the burden shift back to the claimant to prove she is unable
to perform these jobs. Atha, 616 F. App’x at 993.

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C.

Procedural History

Plaintiff filed an application for a period of disability and disability insurance
benefits and for supplemental security income benefits on May 19, 2018, alleging
disability beginning March 8, 2018. (Tr. 125, 126, 243-250). The applications were
denied initially and on reconsideration. (Tr. 125, 126, 129, 130). Plaintiff requested
a hearing, and on February 12, 2020, a hearing was held before Administrative Law
Judge M. Hart. (Tr. 53-88). On March 13, 2020, the ALJ entered a decision finding
Plaintiff not under a disability from March 8, 2018, through the date of the decision.
(Tr. 31-47).
Plaintiff requested review of the decision, but the Appeals Council denied
Plaintiff’s request on September 8, 2020. (Tr. 1-6). Plaintiff initiated the instant
action by Complaint (Doc. 1) filed on November 3, 2020, and the case is ripe for
review. The parties consented to proceed before a United States Magistrate Judge
for all proceedings. (Doc. 20).
D.

Summary of ALJ’s Decision

In this matter, the ALJ found Plaintiff meets the insured status requirements
of the Social Security Act through March 31, 2023. (Tr. 34). At step one of the
sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since March 8, 2018. (Tr. 34). At step two, the ALJ found that
Plaintiff had the following severe impairments:

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seizure disorder; obesity; spine disorders; diabetes mellitus;
fibromyalgia; hyperlipidemia; history of migraines including
ocular migraine; attention deficit disorder (“ADD”); GERD;
vitamin D deficiency; depressive, bipolar and related
disorders; anxiety and obsessive[-]compulsive disorders;
history of schizophrenia spectrum and other psychotic
disorders; history of a substance addiction disorder (drugs).

(Tr. 34). At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of any of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). (Tr. 34).
Before proceeding to step four, the ALJ found that Plaintiff had the following
RFC:
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. §§]
404.1567(b) and 416.967(b) except she is limited to no
climbing of ladders, ropes, or scaffolds, and occasional
climbing of ramps or stairs. She is limited to occasional
balancing, stooping, kneeling, crouching, and crawling. She
must avoid all exposure to the operation of a motor vehicle and
hazards such as the use of moving machinery and unprotected
heights. She is limited to occupations that do not require
complex written or verbal communications, or frequent verbal
communication. She is limited to simple, routine, and
repetitive tasks performed in a work environment free of fastpaced production requirements involving only simple
work[-]related decisions and routine work[-]place changes.
She is limited to no interaction with the public, and only
occasional interaction with coworkers and supervisors.

(Tr. 36).

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At step four, the ALJ relied on the vocational expert’s testimony to find
Plaintiff was capable of performing her past relevant work as a housekeeper and
garment folder. (Tr. 45). The ALJ found this work did not require the performance
of work-related activities that were precluded by Plaintiff’s RFC. (Tr. 45).
Alternatively, at step five the ALJ considered Plaintiff’s age (43 years old on the
alleged disability onset date), education (limited), work experience, and RFC, and
found there were jobs that existed in significant numbers in the national economy
that Plaintiff could perform. (Tr. 45-46). Specifically, the ALJ found that Plaintiff
could perform such occupations as:
(1) inspector, DOT 723.687-014,1 light, SVP 2
(2) marker, DOT 209.587-034, light, SVP 2
(Tr. 46). The ALJ concluded that Plaintiff had not been under a disability from
March 8, 2018, through the date of the decision. (Tr. 47).
II.

Analysis
On appeal, Plaintiff raises two issues: (1) the Commissioner’s mental residual

functional capacity assessment is contrary to the opinions of two state agency
examining psychologists, two other examining psychologists, and a long-time
treating nurse practitioner; and (2) the Commissioner overstated the extent of Ms.

1

DOT refers to the Dictionary of Occupational Titles.
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West’s daily activities and further erred in rejecting Ms. West’s inability to afford
specialty care under Obamacare. (Doc. 25, p. 1).
A.

Medical Sources’ Opinions

Plaintiff argues that she is far more limited from a mental perspective than the
ALJ found. (Doc. 25, p. 13). Plaintiff claims that the ALJ erred in rejecting five
opinions from treating and examining sources that all support more mental
limitations than the ALJ included in the RFC. (Doc. 25, p. 13).
The same legal standard applies to all five of the medical sources’ opinions.
The regulations for disability cases filed after March 27, 2017 – such as this one –
changed and an ALJ no longer defers or gives any specific evidentiary weight to a
medical opinion. 20 C.F.R. § 404.1520c(a), 20 C.F.R. § 416.920c(a). Thus, an ALJ
no longer uses the term “treating source” and does not defer or give specific
evidentiary weight, including controlling weight, to any medical opinion or prior
administrative medical finding. Torres v. Comm’r of Soc. Sec., No. 6:19-cv-1662ORL-PDB, 2020 WL 5810273, at *2 (M.D. Fla. Sept. 30, 2020) (citing 20 C.F.R. §
404.1520c(a)).
Instead, an ALJ assesses the persuasiveness of a medical source’s opinions
given the following five factors, with the first two being the most important: (1)
supportability; (2) consistency; (3) relationship with the claimant, including the
length, frequency, and purpose of the examining and any treatment relationship; (4)

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specialization; and (5) other factors, such as the source’s familiarity with other
evidence concerning the claim, that tend to support or contradict the medical
opinion. 20 C.F.R. § 404.1520c(a)-(c); 20 C.F.R. § 404.920c(a)-(c). An ALJ may
but is not required to explain how he considers factors other than supportability and
consistency, unless two or more opinions are equally persuasive on the same issue.
20 C.F.R. § 404.1520c(b)(2); 20 C.F.R. § 416.920c(b)(2).
For supportability, the revised rules provide: “The more relevant the objective
medical evidence and supporting explanations presented by a medical source are to
support his or her medical opinion(s) or prior administrative medical finding(s), the
more persuasive the medical opinions or prior administrative medical finding(s) will
be.” 20 C.F.R. § 404.1520c(c)(1); 20 C.F.R. § 416.920c(c)(1). For consistency, the
revised rules provide: “The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources
and nonmedical sources in the claim, the more persuasive the medical opinion(s) or
prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2); 20
C.F.R. § 416.920c(c)(2).
The new regulations also differentiate between medical opinions and “other
medical evidence.” 20 C.F.R. § 404.1513(a)(2)-(3). “A medical opinion is a
statement from a medical source about what you can still do despite your
impairment(s) and whether you have one or more impairment-related limitations or

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restrictions” in the abilities listed in paragraphs (a)(2)(i) through (iv). 20 C.F.R.
§ 404.1513(a)(2). “Other medical evidence is evidence from a medical source that
is not objective medical evidence or a medical opinion, including judgments about
the nature and severity of your impairments, your medical history, clinical findings,
diagnosis, treatment prescribed with response, or prognosis.” 20 C.F.R.
§ 404.1513(a)(3).
Plaintiff limits her arguments to her mental impairments and, as a result, the
Court will focus on that aspect of the opinions as well. (Doc. 25, p. 13). Plaintiff
argues that the longitudinal record shows five separate medical professionals all
agree that Plaintiff was far more limited than assessed by the ALJ. (Do. 25, p. 20).
Plaintiff claims that the records show Plaintiff was afraid to leave her house, had
increased anxiety, was prescribed multiple dosages of psychotropic medications –
not just Xanax – and was referred multiple times to mental health professionals but
could not afford treatment. (Doc. 25, p. 20). And primary care provider, Tina Voisin,
DNP, continually adjusted Plaintiff’s medications throughout the relevant period.
(Doc. 25, p. 21). Plaintiff claims that at no point did Plaintiff’s condition improve to
the point of being able to engage in typical daily activities. (Doc. 25, p. 20-21).
Plaintiff also mainly saw the same provider, Nurse Voisin, since 2006 and developed
a rapport with her even though Plaintiff had paranoia and anxiety. (Doc. 25, p. 21).
But Plaintiff argues this rapport does not translate to being able to get along with

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others in a work setting. (Doc. 25, p. 21). Plaintiff claims that these five opinions
were consistent with each other and supported by the record.
1.

Tina Voisin, DNP’s Opinions

Nurse Voisin began treating Plaintiff in January 2006, many years before the
alleged onset date of March 8, 2018, and continued treating her during the relevant
period. (Tr. 517). Plaintiff saw Nurse Voisin approximately every 3 to 6 months. (Tr.
517). Nurse Voisin treated both Plaintiff’s physical and mental impairments. (Tr.
517-27). The ALJ recognized that Nurse Voisin provided a treatment regimen for
Plaintiff that included medication, supplements, and supplies for management of her
impairments, including her mental impairments such as paranoia, decreased focus,
disorganization, decreased concentration, and anxiety. (Tr. 38). The ALJ then
summarized and discussed Nurse Voisin’s three opinions, a physical residual
functional capacity assessment, a mental residual functional capacity assessment,
and an interrogatory to treating source regarding seizures. (Tr. 39-40). The ALJ
found all three opinions unpersuasive. (Tr. 39-40). Some reasons include:
• while hospital records show a Xanax withdrawal seizure around March 2018,
the records do not establish a frequency and intensity of seizures that have
been disabling for 12 continuous months consistent with the objective
findings;
• the conservative medication regimen that has included Xanax (even though
Plaintiff had a Xanax withdrawal seizure) supports an objective finding that
the frequency and severity of seizures would not be disabling;

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• the general consistency of Plaintiff’s treatment regimen both before and since
the alleged onset date, and despite the history of exacerbation with a Xanax
withdrawal seizure around the time of the alleged onset date, shows
satisfactory management of Plaintiff’s symptoms;
• clinical and diagnostic findings do not support or demonstrate the limitations
outlined by Nurse Voisin for 12 continuous months;
• Plaintiff has not required inpatient admissions for mental impairment
symptoms;
• Nurse Voisin’s interrogatory response stated that Plaintiff had petit mal
seizures confirmed by EEG, when the records indicate the seizure activity
was induced by benzodiazepine withdrawal and that the EEG and imaging
of Plaintiff’s head were negative;
• Plaintiff failed to follow-up with a neurologist;
• The December 27, 2019 updated statement did not indicate whether the
limitations applied as of March 8, 2018, it was not supported by any
diagnostic or specific objective evidence, and Plaintiff continued with a
course of conservative treatment, lacking in diagnostic and objective findings
consistent with disabling or work preclusive limitations for 12 continuous
months since the alleged onset date.
(Tr. 38-40). Here, the ALJ listed many reasons to support her decision to find Nurse

Voisin’s opinions inconsistent with her own records and unsupported by medical
and other evidence of record. These reasons constitute substantial evidence in
support of the ALJ’s determination that Nurse Voisin’s opinions are unpersuasive.
2.

Eileen Krimsky, Ph.D.’s Opinion

Dr. Krimsky saw Plaintiff one time for an hour on June 6, 2018 for an initial
evaluation. (Tr. 468-470). Dr. Krimsky could not complete the forms submitted to
her as she “did not have adequate information.” (Tr. 468). Instead, she provided a

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two-page summary of the evaluation session. (Tr. 468). The ALJ considered Dr.
Krimsky’s opinion and summarized her findings. (Tr. 42).
The ALJ found Dr. Krimsky’s opinion unpersuasive. (Tr. 42). She explained
that Dr. Krimsky admitted she had inadequate information to complete forms, saw
Plaintiff for a one-hour interview, did not have a full list of medications, provided
no objective mental status findings, but gave a diagnosis from a “‘brief psychiatric
evaluation in the hospital.’” (Tr. 42). Thus, Dr. Krimsky’s opinion was unsupported
by her own notes. The ALJ also found the opinion unpersuasive “as it is based upon
a brief evaluation unreflective of the claimant’s functioning for 12 continuous
months or more as discussed herein, and the evaluation is unsupported by referenced
objective mental status findings, or treatment findings for 12 continuous months.”
(Tr. 42). Thus, the opinion is inconsistent with the medical and other evidence of
record. The ALJ listed several reasons to support her decision to find Dr. Krimsky’s
opinion unpersuasive and substantial evidence supports the ALJ’s decision as to Dr.
Krimsky’s opinion.
3.

Donald Freeman, M.D.’s Opinion

Plaintiff underwent an independent physical examination by Dr. Freeman on
March 12, 2019. (Tr. 549-50). As part of the physical examination, Dr. Freeman
completed a mental status portion. (Tr. 551). While he found Plaintiff was anxious,
paranoid to sudden sounds, and had some difficulty with finding words at times, he

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otherwise noted generally normal findings, such as social skills adequate, maintained
eye contact, appropriate appearance, awake, alert, oriented to place, person, and
time, interactive, responsive, clear speech, and able to understand and follow
instructions with frequent verbal reminders or cues. (Tr. 551). Importantly, Dr.
Freeman noted that Plaintiff gave only sub-maximal effort throughout the exam. (Tr.
551).
The ALJ found Dr. Freeman’s assessment unpersuasive. (Tr. 42). As to the
mental impairments findings, the ALJ noted that they are outside of Dr. Freeman’s
specialty. (Tr. 41). And the ALJ noted that Plaintiff gave sub-optimal effort
throughout the examination, so Dr. Freeman could not determine Plaintiff’s full
abilities. (Tr. 42). Thus, Dr. Freeman’s opinion is not supported based on Plaintiff’s
sub-optimal effort, and her mental impairments were outside his area of
specialization. The ALJ’s reasons in finding Dr. Freeman’s opinion unpersuasive
regarding Plaintiff’s mental impairments are supported by substantial evidence.
4.

Darrin Kirkendall, Ph.D.

Plaintiff underwent a psychological consultative examination on March 13,
2019 by Dr. Kirkendall. (Tr. 562-71). The ALJ thoroughly summarized Dr.
Kirkendall’s findings and opinion. (Tr. 42-43).
The ALJ found Dr. Kirkendall’s opinion partially persuasive for these
reasons:

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• Dr. Kirkendall’s findings “are partially consistent with the medical evidence
of record showing minimal objective abnormalities and her ongoing
conservative course of treatment, including the use of Xanax.”
• While Plaintiff asserts severe paranoia and ongoing seizures, she did not seek
“any emergent treatment since her initial visit in March 2018 and has not had
ongoing follow-up with any psychiatric specialist or neurologist. Though the
claimant alleges a lack of funds to do so, she has insurance and has access to
emergent treatment, and there is no evidence of the claimant seeking low or
no cost treatment for her impairments and being denied such treatment,
which further suggests adequate management of her symptoms with her
course of treatment.”
•

While Dr. Kirkendall found Plaintiff unable to do more than simple tasks,
“the evidence does not warrant preclusion of all work, nor marked
limitations.”

• “While [Plaintiff’s] speech was noted as slurred and likely due to medication,
she was noted to have put forth good effort. He also noted that cognitive
functioning may improve if Xanax use is reduced with medication
optimization.”

(Tr. 43). In sum, the ALJ concluded that “this assessment is partially persuasive as
generally consistent with examination findings, objective mental status findings in
treatment records, and the course of treatment, which are all consistent with
moderate, and no marked or extreme limitations in functioning for 12 continuous
months or more. This is further consistent with the claimant’s history of a substance
use disorder (drugs) being established as severe but not material.” (Tr. 43).
The ALJ gave many reasons why Dr. Kirkendall’s opinion was partially
persuasive. She found this opinion only partially supported by Dr. Kirkendall’s
evaluation and partially consistent with medical and other evidence of record. Thus,

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the ALJ’s decision to find Dr. Kirkendall’s opinion only partially persuasive is
supported by substantial evidence.
5.

Jessica B. Anderton, Psy.D.

Plaintiff’s counsel referred her to Dr. Anderton for a general clinical
evaluation with mental status exam to help determine Plaintiff’s eligibility for
disability benefits. (Tr. 43-44, 588-611). Dr. Anderton evaluated Plaintiff on August
15, 2019, and completed a Mental Residual Function Capacity Assessment and a
Psychiatric Review Technique form. (Tr. 595-608, 610-11). The ALJ thoroughly
summarized Dr. Anderton’s reports.
The ALJ found Dr. Anderton’s opinion unpersuasive. (Tr. 44). She found that
treating records since the alleged onset date show generally consistent and nondisabling physical examination findings, although hospital records establish Xanax
withdrawal seizures around the time of the alleged onset date. (Tr. 44). The ALJ also
found that even with the Xanax withdrawal seizure, Plaintiff proceeded with a
conservative medication regimen that continued to include Xanax, prescribed by her
primary care physician. (Tr. 44). The ALJ noted that Plaintiff had not required
recurrent inpatient admission for her mental impairments and symptoms, and the
general consistency of her treatment regimen both before and since the alleged onset
date show satisfactory management of symptoms. (Tr. 44). Finally, the ALJ found

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that clinical and diagnostic findings do not support or demonstrate the limitations
opined for 12 continuous months. (Tr. 43).
The ALJ provided many reasons why Dr. Anderton’s opinion was
unpersuasive. She found this opinion inconsistent with other treatment records that
included a conservative medication regimen, no recurrent inpatient hospitalizations
for mental impairments, and other clinical and diagnostic findings do not support the
extreme limitations found by Dr. Anderton. (Tr. 43). Thus, substantial evidence
supports the ALJ’s decision to find Dr. Anderton’s opinion unpersuasive.
While these five opinions may have some consistency with each other, the
ALJ provided substantial evidence to find each opinion unpersuasive or partially
unpersuasive. The Court may not decide the facts anew, reweigh the evidence, or
substitute its judgment for that of the Commissioner. Mitchell v. Comm’r, Soc. Sec.
Admin., 771 F.3d 780, 782 (11th Cir. 2014). While Plaintiff cites some evidence that
may support finding any or all of these opinions persuasive, Plaintiff must do more
than point to evidence in the record that supports her allegations. Sims v. Comm’r of
Soc. Sec., 706 F. App’x 595, 604 (11th Cir. 2017). She must show the absence of
substantial evidence supporting the ALJ’s conclusion. Id. Here, when applying the
correct legal standard, the ALJ listed many reasons to support her decision in finding
each of these medical opinions either unpersuasive or partially persuasive. These
reasons constitute substantial evidence in support of the ALJ’s determination that

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these five opinions are either unpersuasive or partially persuasive as shown below.
Thus, the Court finds no error.
B.

Daily Activities and Ability to Afford Specialty Care

Plaintiff asserts that the Commissioner misstated Plaintiff’s daily activities by
incorrectly presuming that Plaintiff helped her mother rather than her mother
actually helping her. (Doc. 25, p. 22). Plaintiff also argues that the ALJ erred in
faulting Plaintiff for her inability to afford specialty referrals under her insurance
policy even though the record has no information about the nature of her policy, the
amount of the co-pay, or whether network providers were accessible under the
policy. (Doc. 25, p. 22).
Plaintiff’s activities of daily living are relevant to determining her mental
functioning, including her ability to concentrate, persist, and maintain pace.
Buckwalter v. Acting Comm’r of Soc. Sec., 5 F.4th 1315, 1325 (11th Cir. 2021).
Plaintiff claims that the ALJ incorrectly presumed that Plaintiff was helping her
mother. (Doc. 25, p. 22). The ALJ found that Plaintiff lives in an apartment with her
mother and son and was able “to help her mother with chores and shopping.” (Tr.
35, 37). The ALJ also noted that Plaintiff helped around the house, watched movies,
and helped her elderly mother. (Tr. 37). But the ALJ also acknowledged that
Plaintiff’s mother administers her medications. (Tr. 37). The ALJ considered
Plaintiff’s mother’s third-party function report, in which her mother stated Plaintiff

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cannot do much because of her physical and mental limitations, and needed help
with dressing, washing, brushing her hair, cooking, cleaning, and medications. (Tr.
44). The ALJ found Plaintiff’s mother’s opinion unpersuasive based on imaging
reports, objective mental status findings in treatment records, and the course of
conservative treatment. (Tr. 44). The ALJ did not misconstrue Plaintiff’s daily
activities, properly weighed the evidence, and found Plaintiff able to help her mother
at least with chores and shopping. Substantial evidence supports the ALJ’s
statements that Plaintiff helped her mother and, as stated above, the Court cannot
reweigh the evidence. See Mitchell, 771 F.3d at 782.
Plaintiff also argues that the ALJ inaccurately reflected Plaintiff’s ability to
pay for specialty care. (Doc. 25, p. 22). Plaintiff asserts that even though she had
insurance during the relevant time, her insurance did not cover specialty referrals to
the extent that she could afford them. (Doc. 25, p. 22).
In evaluating a plaintiff’s symptoms and their functional effect, “the ALJ may
not draw any inferences about an individual’s symptoms and their functional effects
from a failure to seek or pursue medical treatment without first considering any
explanations that might explain the failure to seek or pursue treatment.” Beegle v.
Soc. Sec. Admin., Comm’r, 482 F. App’x 483, 487 (11th Cir. 2012). An ALJ must
consider evidence showing a plaintiff cannot afford medical care before denying
benefits based on non-compliance with care. Id. (citing Ellison v. Barnhart, 355 F.3d

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1272, 1275 (11th Cir. 2003)). When an ALJ relies on noncompliance with prescribed
medical treatment as the “sole ground for the denial of disability benefits,” and the
record contains evidence that a plaintiff could not afford the prescribed medical
treatment, then the ALJ must determine whether a plaintiff could afford the
prescribed medical treatment. Ellison, 355 F.3d at 1275. If a court determines the
failure to follow prescribed medical treatment is not one of the “principal factors in
the ALJ’s decision,” then the ALJ is not required to delve into a plaintiff’s ability to
pay, and this failure is not reversible error. Brown v. Comm’r of Soc. Sec., 425 F.
App’x 813, 817 (11th Cir. 2011).
The ALJ did not deny benefits solely based on Plaintiff non-compliance with
the specialty referrals. The ALJ afforded many other reasons to deny benefits in this
case. The Court thus finds no error.
III.

Conclusion

For the reasons discussed above, the Court finds that the decision of the
Commissioner is supported by substantial evidence and the Commissioner applied
the correct legal standard. The decision of the Commissioner is AFFIRMED. The
Clerk of Court is directed to enter judgment consistent with this opinion, terminate
all deadlines, and close the case.

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DONE and ORDERED in Fort Myers, Florida on August 1, 2022.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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