Wilson v. Commissioner of Social Security

Filing 58

MEMORANDUM OF DECISION re Complaint 1 . The final decision of the Commissioner is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g); and The Clerk is directed to enter judgment for Claimant and close the case. Signed by Magistrate Judge Daniel C. Irick on 3/9/2018. (RN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ROBERTA WILSON,
Plaintiff,
v.

Case No: 6:06-cv-519-Orl-DCI

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
MEMORANDUM OF DECISION

Roberta Wilson (Claimant) appeals the Commissioner of Social Security’s final decision
denying her application for disability benefits.

Docs. 1; 47.

Claimant argues that the

Administrative Law Judge (ALJ) erred by: 1) according the opinion of Dr. David Owen “lesser
weight” and the opinion of Dr. Donald Goldman “greatest weight”; and 2) finding her testimony
concerning her pain and limitations not entirely credible. Doc. 47 at 23. In addition, Claimant
asserts that she was prejudiced by an invalid waiver of counsel. Id. Finally, Claimant asserts that
this case should be reversed for an award of benefits due to its 16-year journey through the
administrative and judicial process. Id. For the reasons that follow, the Commissioner’s final
decision is REVERSED and REMANDED for further proceedings.
I.

Procedural History.
This case began over 16 years ago when, on December 6, 2001, Claimant protectively filed

for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). Doc.
47 at 1. Claimant alleged a disability onset date of September 11, 2001; on that date Claimant was
a passenger in a car involved in an accident, which was the genesis of her back injuries that are at

issue in this proceeding. Claimant’s application had a long journey through the administrative and
judicial process, and ultimately Claimant was deemed disabled from September 24, 2001 through
June 12, 2003, and again beginning on January 1, 2007 (assumed to be continuing, and through at
least the date of the last administrative decision, December 5, 2014). R. 15; 26. Thus, the issue
now before the Court concerns Claimant’s alleged disability during a finite period (June 13, 2003
to December 31, 2006), book-ended by periods of disability. Id.
The specifics of the procedural history of this matter are set forth in detail in the parties’
joint procedural history and factual basis, to which no party objected. Doc. 47; see also Doc. 28
at 2-3 (the Court’s Scheduling Order, requiring the parties to create a joint procedural history and
factual basis and allowing them to note any unresolved objections therein). In sum, Claimant’s
initial December 2001 filing was based upon lower back pain, leg pain, and numbness associated
with her car accident. Doc. 47 at 1. That application was denied, and Claimant requested a hearing.
Id.
At her first hearing, on June 12, 2003, Claimant was represented by counsel and testified.
Id. On January 21, 2004, the ALJ issued a partially favorable decision, finding Claimant’s
testimony credible in that she was disabled due to severe pain from September 24, 2001 to June
12, 2003 (the date of the hearing), but finding Claimant’s testimony not credible for any further
period of disability, because Claimant had regained functional capacity for light work. Id. at 1-2.
Subsequent requests for review were denied, as were additional applications for benefits, and
Claimant filed this judicial action. Id. at 2; Doc. 1. In 2007, the Court granted the Commissioner’s
motion for remand, due to missing exhibits. Doc. 17. The Appeals Council then entered an order
vacating only the unfavorable portion of the decision and remanding to the ALJ for further
proceedings. Doc. 47 at 2.

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On January 14, 2008, the ALJ held a second hearing, during which Claimant proceeded
pro se and testified. Id. On March 6, 2008, the ALJ found that Claimant was not disabled from
June 13, 2003 through the date of that decision. Id. Claimant filed a request to review that
decision, and the Appeals Council initially issued a proposed order to vacate the ALJ’s decision,
ultimately processing a remand for further proceedings and a new decision for the period beginning
June 13, 2003, as to Claimant’s various applications. Id. at 2-3.
Accordingly, on May 2, 2011, Claimant appeared pro se and testified at a third hearing.
Id. On May 20, 2011, the ALJ issued a partially favorable decision, dismissing the SSDI
application and finding that Claimant was disabled for purposes of SSI as of June 1, 2010. Id.
Claimant requested review, and the Appeals Council again remanded the matter for further
proceedings, affirming the decision that Claimant was disabled beginning on June 1, 2010, but
vacating the ALJ’s decision that Claimant was not disabled from June 13, 2003 through May 31,
2010. Id.
Thus, on November 13, 2014, Claimant appeared at her fourth hearing. Id. There, the ALJ
received the testimony of Claimant, proceeding pro se, as well as that of Dr. Goldman, Dr. Owens,
and a vocational expert. Id. at 3-4. On December 5, 2014, the ALJ issued a partially favorable
decision, finding that Claimant was not disabled during the three-and-a-half year period from June
13, 2003 to December 31, 2006, and that Claimant became disabled on January 1, 2007. Id. at 4.
Claimant requested review, which was denied. Id. Thus, this became the final decision of the
Commissioner. In November 2016, the Commissioner requested that the Court vacate the remand
order and docket the case, and the Court did so following the issuance of a un-objected-to Report
recommending the re-opening of this case. Docs. 22; 26; 27. On March 8, 2018, the Court held a

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hearing on this matter and took argument from the Commissioner and Claimant, represented by
counsel. The matter, being fully briefed (Doc. 47), it is ripe for adjudication.
II.

The ALJ’s Decision.
In the ALJ’s December 5, 2014 decision, the ALJ found that Claimant had the following

severe impairments: degenerative disc disease of the lumbar spine status post motor vehicle
accident in 2001, chronic obstructive pulmonary disorder (COPD), and osteoarthritis. R. 18. The
ALJ found that, prior to January 1, 2007, Claimant had a residual functional capacity (RFC) to
perform less than a full range of light work as defined by 20 C.F.R. §§ 404.1567(b); 416.967(b).1
R. 26. Specifically, the ALJ found that Claimant could perform light work but “was limited to
frequent use of her hands, and occasional bending.” Id. The ALJ, relying on the VE’s testimony,
found that Claimant was capable of performing her past relevant work prior to January 1, 2007.
R. 24-25. Therefore, the ALJ found that Claimant was not disabled prior to January 1, 2007. Id.2
However, the ALJ found “that beginning on January 1, 2007, the claimant's allegations regarding

1

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. 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.” 20 C.F.R. §§ 404.1567(b); 416.967(b).
2

It is unclear why the ALJ repeatedly referenced Claimant not being disabled prior to January 1,
2007 – with no reference to the fact that the Commissioner deemed Claimant disabled from
September 24, 2001 to June 13, 2003. In fact, the ALJ went so far as to state that “I do not believe
the exams support going back to 2001” when discussing whether Claimant was disabled due to her
severe impairments, even though it is uncontroverted that Claimant was disabled from September
24, 2001 to June 13, 2003. R. 25. As was discussed at the hearing, the Court is concerned that the
ALJ seemed to ignore the prior disability determination at times, for example relying on evidence
from the initial period of disability weighing against Claimant’s assertions of pain and limitations,
but not discussing the evidence that necessarily existed to support that initial period of disability.

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her symptoms and limitations are generally credible.” R. 24. Thus, the ALJ found that Claimant
was disabled beginning on January 1, 2007. R. 24-25. At issue is the finite period from June 13,
2003 to January 1, 2007; the period for which the Commissioner has denied Claimant’s
applications for disability.
III.

Standard of Review.
“In Social Security appeals, [the court] must determine whether the Commissioner’s

decision is ‘supported by substantial evidence and based on proper legal standards.’” Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citations omitted).

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 – i.e., the evidence must do more than merely
create a suspicion of the existence of a fact, and must include such relevant evidence as a
reasonable person would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d
1553, 1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982) and
Richardson v. Perales, 402 U.S. 389, 401 (1971)). Where the Commissioner’s decision is
supported by substantial evidence, the district court will affirm, even if the reviewer would have
reached a contrary result as finder of fact, and even if the reviewer finds that the evidence
preponderates against the Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3
(11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The Court must view
the evidence as a whole, taking into account evidence favorable as well as unfavorable to the
decision. Foote, 67 F.3d at 1560. The district court “‘may not decide the facts anew, reweigh the
evidence, or substitute [its] judgment for that of the [Commissioner].’” Phillips v. Barnhart, 357
F.3d 1232, 1240 n.8 (11th Cir. 2004) (quoting Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983)).

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IV.

Analysis.
A. The ALJ’s Credibility Determination
Claimant argues that the ALJ failed to provide sufficient, valid reasons justifying the

credibility finding. Doc. 47 at 37. In particular, the ALJ found Claimant’s allegations of pain and
limitations credible as to the period after January 1, 2007, but not prior to that date.3 Claimant
asserts that the ALJ’s rationale failed to establish why Claimant was not credible during this
interim period (June 13, 2003 to December 31, 2006), when Claimant’s conditions had not
changed. Id. Claimant contends that the nature of her treatment and the existence of gaps in
treatment was due to a lack of funds to obtain medical care, and that it was improper for the ALJ
to discredit Claimant’s testimony due to a move from Florida to Virginia and back during that
interim period because her family moved due to her husband’s loss of his job in Florida and the
prospect of his employment in Virginia. Id. at 38-39.
The Commissioner argues that the ALJ properly considered Claimant’s subjective
complaints of disabling symptoms, together with the other evidence, in assessing Claimant’s RFC
during the interim period in question. Id. at 39. According to the Commissioner: (1) the medical
evidence of record fails to support Claimant’s allegations of disabling conditions; (2) Claimant’s
“routine and conservative” treatment during the interim period undermines Claimant’s allegations;
(3) the ALJ did not “unduly rely” on the gap in treatment during the interim period; (4) the ALJ
did not “unduly rely” on Claimant’s activities, including her move. Id. at 40-42. Thus, the
Commissioner asserts that the ALJ’s credibility decision was supported by substantial evidence.
The Commissioner’s argument is without merit.

3

Again, the Commissioner did find Claimant’s allegations credible from September 24, 2001 to
June 12, 2003, but that prior period of disability was not further discussed by the ALJ, although it
constituted a portion of the full record before the ALJ.

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A claimant may establish “disability through his own testimony of pain or other subjective
symptoms.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). A claimant seeking to
establish disability through his or her own testimony must show:
(1) evidence of an underlying medical condition; and (2) either (a) objective
medical evidence confirming the severity of the alleged pain; or (b) that the
objectively determined medical condition can reasonably be expected to give rise
to the claimed pain.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002) (per curiam). If the ALJ determines
that the claimant has a medically determinable impairment that could reasonably produce the
claimant’s alleged pain or other symptoms, the ALJ must then evaluate the extent to which the
intensity and persistence of those symptoms limit the claimant’s ability to work. 20 C.F.R. §
404.1529(c)(1). In doing so, the ALJ considers a variety of evidence, including, but not limited
to, the claimant’s history, the medical signs and laboratory findings, the claimant’s statements,
medical source opinions, and other evidence of how the pain affects the claimant’s daily activities
and ability to work. Id. at § 404.1529(c)(1)-(3). “If the ALJ decides not to credit a claimant’s
testimony as to her pain, he must articulate explicit and adequate reasons for doing so.” Foote, 67
F.3d at 1561-62. The Court will not disturb a clearly articulated credibility finding that is
supported by substantial evidence. See Foote, 67 F.3d at 1562.
Claimant appeared and testified at four hearings in this case. It is undisputed by the parties,
and was confirmed at the hearing in this matter, that the ALJ was required to consider the record
as a whole in making her determination. Claimant’s testimony at each of her four hearings is part
of the record in this case, and should have been considered by the ALJ. Claimant’s testimony at
each of those hearings was summarized by the parties in the un-objected-to Statement of Facts:
Hearing #1: [Claimant] appeared with the assistance of counsel at the June 12,
2003 hearing before ALJ Danziger. (Tr. 308-28). She testified that she did not
undergo surgery for her back because “they couldn’t guarantee that it . . . it would

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help me.” (Tr. 315). Instead, she underwent other treatments, including injections,
which did not help. (Tr. 316). She was prescribed Darvocet for pain, which she
continued to take twice a day to alleviate pain. (Tr. 317). She had not yet taken
Darvocet that day and was in pain at a level of 7/10. (Tr. 317-18). During the hour
drive to the hearing, she had to keep changing her position. (Tr. 318). She is able
to drive to the grocery store and do cooking, housecleaning, and grocery shopping.
(Tr. 319). However, when doing housework, “I have a lot of pain, where I have to
stop doing my housework and either sit down or go . . . lay down for an hour or
two.” Id. She explained, “I try to do a little bit of housework” but her husband does
the laundry. (Tr. 321).
[Claimant] testified that walking increased her pain. (Tr. 320). Her pain extended
into her right leg. Id. There is no point during the day when she is not in pain. (Tr.
321). She is able to lift ten pounds, and sit for up to one hour. (Tr. 322). Bending
causes pain. (Tr. 323). Her only hobby is grooming her miniature dachshund, and
she is able to operate a vacuum. (Tr. 323-24). She did not have health insurance.
(Tr. 323).4
Hearing #2: [Claimant] appeared pro se and testified at the January 14, 2008
hearing before ALJ Thomson . . . Regarding her treatment, [Claimant] explained
that she saw nurse practitioner Sullivan at the community health center instead of
Dr. Laws because she could not afford the doctor. (Tr. 890). Regarding her
medications, such as Flexeril, [Claimant] stated that it “helped some,” but later she
testified that it did “not really” help with the muscle spasms, although Tylenol helps
with pain. (Tr. 891, 899).
[Claimant] explained that there was a gap in her medical records and treatment
between September 2005 and February 2007 because she did not have any money
at that time, her husband “only had a part-time job,” “I was going around to clinics
to try to get in” and “I was calling all the clinics.” (Tr. 894-95). However, she had
difficulty finding a provider based on the county she lived in, and was in the process
4

In an August 24, 2007 letter to the hearing office, [Claimant] stated that she is unable to obtain
counsel “because of the Judge assigned to my case” and “because there is not enough medical
updates to win my case.” (Tr. 67). She explained that, “They want a lot of test done (another MRI,
xrays and scans). I have no medical insurance and cannot afford these tests . . . . I can have these
test done at the clinic but I cannot afford it. Everyone wants their money up front. The only income
we have is my husband’s social security . . . [$]920.00 per month.” Id. In a September 28, 2007
written statement to ALJ Thompson, Ms. Wilson stated:
The reason I haven’t been back to Dr. Abiera (Parkway Medical) is because I could not
afford to keep going to him because my medical insurance ran out and he couldn’t do
anything more for me except give me pain medication at $50 a visit. The next step would
be surgery or more injections which didn’t help at all.
(Tr. 337).

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of attempting to qualify for reduced cost health services through the hospital. (Tr.
901-02). She was also unable to obtain medications during this time, but was using
Aleve and Tylenol for her pain. (Tr. 895-96). She also did not have the funds for
MRI imaging. (Tr. 901).
[Claimant] testified that standing half an hour makes her back pain worse, and then
she has to switch positions. (Tr. 900). Using the vacuum cleaner and bending to do
laundry also hurt her back. Id. She does “light housekeeping” such as “dusting and
dishes” during the day, reads, and will “try to walk a little bit, [] to keep exercising”
three times a day; however, she gets out of breath when walking less than half a
mile. (Tr. 906). She is able to lift and carry, on a routine basis, “[m]aybe about 10
pounds” and can sit in one position for 30 minutes before having to alternate
positions. (Tr. 909). She will alternate positions, alternate between hot and cold
packs, and lie down to relieve pain from sitting. (Tr. 909-10). Her son lives next
door, and once a month she will visit family who lives 20 miles away, but they
“[j]ust sit there and talk.” (Tr. 907-08). She will drive up to five miles to the store,
but her husband does most of the driving. (Tr. 908).
Hearing #3: [Claimant] appeared pro se at the May 2, 2011 hearing, again before
ALJ Thompson. (Tr. 793-823). . . . [Claimant] testified that she had been unable to
work due to back and leg pain since the 2001 car accident. (Tr. 803). She explained
that although she discussed surgery with Dr. Tweed, “he said there was no
guarantee that if I had the surgery, I would be any better. It could have made it
worse, so we went with the treatments” including injections, which did not help at
all. (Tr. 804-06). [Claimant] explained that she saw Dr. Dalley in Virginia because
it was the only clinic “I could get in.” (Tr. 813). She was prescribed Tylenol with
Codeine, which she continued to take, but the medication made her sleepy. (Tr.
813-14). She stopped seeing Dr. Dalley when she was able to obtain medical
insurance. (Tr. 814).
[Claimant] agreed that her back was being “helped somewhat” by Tylenol with
Codeine, but noted she started having “arthritis really bad in my hands” starting
“[a] couple of months ago.” (Tr. 818) . . . .5
5

In her July 29, 2012 written statement to the Appeals Council, [Claimant] stated:
[The ALJ] said that I went without treatment for a couple of years. That is true I had no
money and no medical coverage to see a dr. [sic] I had to rely on over the counter
medication to easy my pain . . . . We moved to [Virginia] because we lost our home and
car because we couldn’t afford to make the payments[.] We moved back here and lived
with my son. My husband got a part time job and I finally got into a clinic so I could afford
my medication. Most of the time the Dr. gave me the advair and inhalers so I didn’t have
to pay for them. I only had to pay for the Tylenol with [codeine] which he put me on and I
still take.

(Tr. 56-57).

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Hearing #4: [Claimant] appeared pro se and testified at the November 13, 2014
hearing, before ALJ McGarry . . . . [Claimant] testified that her back pain made it
difficulty [sic.] for her to bend, lift anything or walk, and she has to take pain pills
so she can do her chores. (Tr. 929). Prior to testifying, Dr. Goldman asked
[Claimant] if “those specific injections you had to your neck, were they helpful at
all?” (Tr. 931). [Claimant] explained that she did not have a neck injury, she had a
back injury, that the injections were to her low back, and they did not help even
though she continued to undergo them. (Tr. 931-32). After Dr. Goldman’s second
reference to her neck injury, [Claimant] again reminded him “I didn’t say I hurt my
neck” and that she only hurt her back. (Tr. 932-33).
Doc. 47 at 15-23.
The ALJ found Claimant’s impairments could reasonably be expected to cause her alleged
symptoms, but concluded that her statements concerning the intensity, persistence, and limiting
effects of her symptoms were “not entirely credible prior to January 1, 2007, for the reasons
explained in this decision.” R. 19. Thereafter, the ALJ proceeded to discuss the medical and
opinion evidence, but did not articulate any specific reasons supporting his credibility
determination, and failed to tie any of those medical records to any of Claimant’s testimony
concerning her disabling pain and functional limitations. R. 19-23.
The ALJ’s credibility determination is boilerplate language commonly found in Social
Security decisions. See Howell v. Astrue, Case No. 8:10-cv-2175-T-26TGW, 2011 WL 4002557,
at *3 (M.D. Fla. Aug. 16, 2011) (noting that boilerplate credibility determinations are common)
report and recommendation adopted, 2011 WL 3878365 (M.D. Fla. Sept. 2, 2011).

This

boilerplate credibility determination is, in many cases, followed by specific reasons undermining
the claimant’s testimony. Id. In this case, however, the ALJ failed to clearly articulate any specific
reasons supporting his credibility determination. See R. 19-23. Thus, it is unclear what the ALJ
relied on in reaching his credibility determination. The ALJ’s failure to articulate specific reasons
in support of his credibility determination frustrates the Court’s ability to conduct a meaningful

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review of the ALJ’s decision. See McKinney v. Astrue, Case No. 8:08-cv-2318-T-TGW, 2010 WL
149826, at *3 (M.D. Fla. Jan. 15, 2010) (citations omitted). This failure is significant because
Claimant’s description of her limitations, if credited, would contradict the ALJ’s RFC
determination. Thus, the Court finds that the ALJ’s decision is not supported by substantial
evidence.
As noted above, the Commissioner argued that the ALJ sufficiently explained that
Claimant was not entirely credible because the medical evidence as a whole did not support
Claimant’s allegations of disabling limitations. Doc. 47 at 40-41. However, the ALJ did not
articulate specific reasons supporting his boilerplate credibility determination, but instead
generally referred to his discussion of the medical and opinion evidence. R. 19-23. Thus, the
Commissioner’s argument essentially amounts to post hoc rationalization, because she attempts to
offer reasons supporting the ALJ’s boilerplate credibility determination that the ALJ did not
specifically articulate in his decision. The Court will not affirm the ALJ’s credibility determination
based on such post hoc rationalization. See Dempsey v. Comm’r of Soc. Sec., 454 F. App’x 729,
733 (11th Cir. 2011) (A court will not affirm based on a post hoc rationale that “might have
supported the ALJ’s conclusion.”) (quoting Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir.
1984)). Accordingly, the Court finds this case must be reversed so the ALJ may clearly articulate
the reasons supporting his credibility determination.6 See Howell, 2011 WL 4002557, at *5
(reversing due to ALJ’s failure to provide a meaningful explanation for his credibility
determination).

6

This issue is dispositive and therefore there is no need to address Claimant’s remaining
arguments. See Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir. 1983) (on remand the ALJ must
reassess the entire record); McClurkin v. Soc. Sec. Admin., 625 F. App’x 960, 963 n.3 (11th Cir.
2015) (per curiam) (no need to analyze other issues when case must be reversed due to other
dispositive errors).

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Further, although Claimant testified to her pain and limitations at each of the four hearings,
it is undisputed that the ALJ only discussed in his decision Claimant’s testimony from the fourth
hearing. This is critical because, as set forth in the agreed-upon facts quoted in the foregoing
paragraphs, Claimant testified to extensive pain and limitations in her first three hearings, each of
which was temporally more proximal to the interim time period at issue than the fourth hearing.
In fact, Claimant’s testimony at the second hearing was on January 14, 2008, just two weeks after
the end of the interim time period at issue. There, Claimant testified, in part,
that standing half an hour makes her back pain worse, and then she has to switch
positions. (Tr. 900). . . . she gets out of breath when walking less than half a mile.
(Tr. 906). She is able to lift and carry, on a routine basis, “[m]aybe about 10
pounds” and can sit in one position for 30 minutes before having to alternate
positions. (Tr. 909). She will alternate positions, alternate between hot and cold
packs, and lie down to relieve pain from sitting. (Tr. 909-10).
Doc. 47 at 17. That testimony is inconsistent with the ALJ’s RFC for the interim period, which
allowed for light work. And as with Claimant’s testimony from the first and third hearings, the
foregoing claims of pain and limitations were not discussed by the ALJ in any manner whatsoever.
Accordingly, the Court finds this case must also be reversed so the ALJ may consider Claimant’s
testimony at the first, second, and third hearings contained within the record of this case.
That said, at the conclusion of the ALJ’s section of her decision discussing the RFC, the
ALJ made the following comments regarding the “totality of the evidence”:
Overall, the totality of the evidence from 2003 until 2007 show that the claimant
was not disabled and had the ability to work. The claimant received conservative
medical treatment for her herniated discs, and in 2005 was taking over the counter
medication for pain. Although the claimant testified that surgery was not an option,
treatment providers such as Dr. Malik indicated that surgery could be an option but
the claimant would not consider surgery. The claimant has only taken Tylenol with
Codeine for the last six years according to her testimony. In addition, the claimant
was able to move from Florida to Virginia in 2005, and then back to Florida in
2007. The ability to travel and move long distances supports the position that she
is not disabled.

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R. 23. Those comments by the ALJ summarize the two bases upon which the ALJ concluded that
Claimant was not disabled during the interim period: the nature of Claimant’s treatment (i.e.,
conservative medical treatment and an allegedly rejected surgical option) and the move from
Florida to Virginia and back. Although the rejection of the surgery was couched as a rebuttal to
Claimant’s testimony on that point, the aforementioned paragraph discussed none of Claimant’s
testimony as it relates to her disabling pain or functional limitations.
Even if the Court were to consider both of the foregoing rationales as the ALJ’s stated
bases for discrediting Claimant’s testimony, the Court finds that the ALJ’s decision is still
unsupported by substantial evidence. First, as to the move from Florida to Virginia and back, the
record evidence is that the move related directly to Claimant’s husband’s loss of his job in Florida,
move to Virginia to obtain employment, and subsequent loss of that employment in Virginia.
There is no record evidence that Claimant took any part in the physical aspects of that move, other
than travelling on one occasion from Florida to Virginia, and then travelling from Virginia to
Florida two years later. Such travel can be accomplished even by one who is paraplegic, so,
without record evidence, the Court cannot simply assume that the move required physical action
by the Claimant that somehow belied a disability. To say that such a move is evidence of a lack
of disability is completely baseless, and the Commissioner cites no support for that proposition,
other than support for the general proposition that the ALJ can consider a claimant’s daily
activities. Doc. 47 at 42. Indeed, perhaps the Commissioner recognized this when attempting to
argue that the ALJ did not “unduly rely on” Claimant’s activities, including that move. Id. Further,
while the Commissioner attempts to include “cleaning and housework” in those activities not
“unduly” relied upon, the ALJ did not mention “cleaning and housework” in his calculus, and the
Court will not accept the Commissioner’s post hoc rationalization of the ALJ’s decision. Id.

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As to the ALJ’s discussion of the alleged conservative nature of the medical treatment and
alleged rejection of a surgical option, the problem with the Commissioner’s rationale is that it
ignores a significant portion of the record evidence as it relates to the interim period. At the heart
of this conservative treatment argument is really a lack of medical treatment during the interim
period: from about August 2005 through February 2007 there are no records of medical treatment.
Yet the record evidence concerning that gap in treatment is that it was due to Claimant’s lack of
funds and medical insurance, and it tracks almost exactly the period of time that Claimant moved
to Virginia with her husband as he sought a new job. Thus, the issue, as articulated by Claimant
and supported by her consistent testimony and letters to the Appeals Council, is that she obtained
conservative treatment, took over-the-counter medications, did not see medical practitioners, and
declined surgery, in large part, because she could not afford it. But the ALJ failed entirely to
address the issue of Claimant’s financial ability to obtain treatment. And again, perhaps the
Commissioner recognized this flaw in the ALJ’s reasoning by asserting that the ALJ did not
“unduly rely” on the nature of Claimant’s treatment in discrediting her testimony. Doc. 47 at 41.
As asserted by Claimant, the ALJ must first consider “any explanations that the individual
may provide, or other information in the case record, that may explain infrequent or irregular medical
visits or the failure to seek medical treatment.” Doc. 47 at 38 (citing See SSR 96-7p, 1996 WL 374186
(S.S.A. 1996)). Indeed, “when an ALJ relies on noncompliance as the sole ground for the denial

of disability benefits, and the record contains evidence showing that the claimant is financially
unable to comply with prescribed treatment, the ALJ is required to determine whether the claimant
was able to afford the prescribed treatment.” Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir.
2003) (citing Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (“refusal to follow
prescribed medical treatment without a good reason will preclude a finding of disability,” and
“poverty excuses noncompliance.”)); see Bellew v. Acting Comm’r of Soc. Sec., 605 F. App’x 917,

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921 (11th Cir. 2015) (“Where the ALJ did not rely significantly on the claimant’s noncompliance,
however, the ALJ’s failure to consider evidence regarding the claimant’s ability to afford her
prescribed treatment does not constitute reversible error.”) (citing Ellison, 355 F.3d at 1275).
Here, there was consistent record evidence that Claimant was unable to afford treatment
during the interim period at issue, including Claimant’s testimony at the first, second, and third
hearings, as well as her two letters to the Appeals Council. Further, both Dr. Goldman and Dr.
Owens, who testified at the fourth hearing, commented on the lack of medical records during the
interim period, the poor nature of some of the existing medical records, and the overall lack of
proper evaluation of Claimant. The conservative nature of Claimant’s treatment – including her
alleged non-compliance with a surgical recommendation – was the primary reason even arguably
articulated by the ALJ to support the credibility decision in this case. Indeed, setting aside the
boilerplate language concerning the medical evidence of record and Claimant’s interstate move
with her husband so he could find work, it was the sole basis for the ALJ’s credibility decision.
That credibility determination, supported as it was by an evaluation of the nature of Claimant’s
treatment, is inextricably intertwined with Claimant’s financial ability to obtain treatment. Thus,
the Court finds that it was error for the ALJ to fail to determine, or even consider, the record
evidence that the conservative nature of Claimant’s treatment – and her alleged non-compliance
with a surgical recommendation – during the interim period was due to Claimant’s inability to
afford other treatment.
In making this finding, the Court is guided by the particular and unique facts of this case,
which has languished for more than a decade-and-a-half in the administrative process. Further, as
noted by Claimant, and as discussed at the hearing, there is no real indication in the ALJ’s decision
as to why Claimant was not deemed disabled during the interim period, and the chosen dates for

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disability, and lack thereof, seem to be wholly arbitrary and divorced from any meaningful medical
evidence. Claimant’s disability stems from a car accident that occurred in September 2001. The
Commissioner deemed Claimant disabled from September 2001 to June 13, 2003.

The

Commissioner also deemed Claimant disabled beginning on January 1, 2007. In relation to both
those time periods, the Commissioner deemed Claimant’s testimony to be credible in relation to
her pain and limitations. However, during the three-and-a-half-year interim period from June 13,
2003 to December 31, 2006, the Commissioner deemed Claimant to not be disabled, and found
her testimony to not be credible.

The basis for that decision boils down to the ALJ’s

characterization of Claimant’s treatment – its conservative nature and Claimant’s alleged noncompliance with a surgical recommendation. But the ALJ failed to address Claimant’s testimony
and statements that she could not afford medical treatment during this interim time period. Thus,
the Court finds that the ALJ’s credibility determination is not supported by substantial evidence.
The Court finds that the foregoing issues are dispositive of this appeal, and, thus, there is
no need to address Claimant’s remaining assignments of error. See Diorio v. Heckler, 721 F.2d
726, 729 (11th Cir. 1983) (on remand the ALJ must reassess the entire record); McClurkin v. Soc.
Sec. Admin., 625 F. App’x 960, 963 n.3 (11th Cir. 2015) (per curiam) (no need to analyze other
issues when case must be reversed due to other dispositive errors). That said, the Court finds that
the errors identified above were compounded by Claimant’s lack of counsel or a representative
assisting her.
Accordingly, on remand, the ALJ is directed to allow Claimant an opportunity to have a
representative assist her, and to obtain a clear waiver on the record if Claimant does not have such

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a representative.7 The ALJ is also directed to consider all of the hearing transcripts and medical
opinions contained within the record, including those supporting a disability finding prior to June
13, 2003. Further, the ALJ is directed to consider Claimant’s ability to afford treatment during the
interim period at issue. Finally, in the event the ALJ concludes that Claimant was not disabled
during the interim period in question, then the ALJ must identify the evidence that supports his or
her finding that Claimant’s condition improved after June 12, 2003.
V.

Remedy
Claimant requests that this case be remanded for an award of benefits. Doc. 47 at 53-55.

The Court may remand a social security disability case for an award of benefits where the
Commissioner has already considered the essential evidence and it establishes disability beyond a
doubt, Davis v. Shalala, 985 F.2d 528, 534 (11th Cir. 1993), or where the claimant has suffered an
injustice, see Walden, 672 F.2d at 840. It is not clear under which of these bases Claimant seeks
a remand for an award of benefits. Doc. 47 at 53-55. Although Claimant is right to be frustrated
with the length of these administrative and judicial proceedings, and there is no doubt that this case
has wound its way through the administrative system for over fifteen years, the Court is not
persuaded that remand for benefits is the appropriate remedy. Here, Claimant has obtained
multiple, partially-favorable decisions, is appealing a partially favorable decision, and the
Commissioner has already determined that Claimant became disabled for two periods. This appeal
is limited to a finite three-and-a-half year period. There is no indication that the Commissioner
has simply litigated this case without regard to Claimant’s claims – to date, the remands in this
case have come from the actions of the Commissioner, both at the Appeals Council level and by

7

The Court is not finding error in relation to the waiver of counsel issue raised by Claimant, but,
given the history of this case, the ALJ should obtain a clear waiver on the record if Claimant
appears at a hearing on remand without a representative assisting her.

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seeking a voluntary remand from this Court.

Thus, at least up to this point, given the

Commissioner’s attempts to address errors along the way and given the partially favorable
decisions on voluntary remand, the Court cannot say that the actions of the Commissioner have
resulted in an injustice to Claimant. Further in light of the evidence in the record, the Court finds
that the essential evidence does not establish disability beyond a doubt. Therefore, this case should
be reversed and remanded for further proceedings so the ALJ may address the issues discussed in
this decision.
VI.

Conclusion.
For the reasons stated above, it is ORDERED that:
1. The final decision of the Commissioner is REVERSED and REMANDED pursuant
to sentence four of 42 U.S.C. § 405(g); and
2. The Clerk is directed to enter judgment for Claimant and close the case.
DONE AND ORDERED in Orlando, Florida on March 9, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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