Weary v. Commissioner of Social Security

Filing 17

MEMORANDUM OF DECISION: The Commissioner's final decision is reversed and remanded for an award of benefits, pursuant to sentence four of 42 U.S.C. Section 405(g). The Clerk is directed to enter judgment in favor of the Claimant and against the Commissioner. Signed by Magistrate Judge Gregory J. Kelly on 3/15/2016. (PAB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOHNNIE MAE WEARY,
Plaintiff,
v.

Case No: 6:14-cv-1742-Orl-GJK

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

MEMORANDUM OF DECISION
Johnnie Mae Weary (the “Claimant”) appeals to the District Court from a final partially
favorable decision of the Commissioner of Social Security (the “Commissioner”), which denied
her application for disability insurance benefits and Supplemental Security Income (“SSI”) from
November 9, 2007 to February 13, 2012, and granted Claimant’s application for SSI from February
13, 2012 to the present. Doc. No. 1; R. 614-642. Claimant appeals the Commissioner’s final
decision denying her applications for benefits prior to February 13, 2012. Doc. No. 16 at 1.
Claimant argues that the Administrative Law Judge (the “ALJ”) erred by failing to apply the
correct legal standards and making a credibility determination unsupported by substantial
evidence, as well as failing to comply with the remand orders of this Court and the Appeals
Council. Doc. No. 16 at 17-22.
Claimant alleges an onset of disability date as of November 9, 2007, primarily due to high
blood pressure, diabetes, neck and back pain, knee pain, left hip pain, and depression. R. 55-56,
62, 66, 148-71. On May 26, 2011, Administrative Law Judge John Marshall Meisburg, Jr. (the
“ALJ”) issued a decision finding Claimant not disabled. R. 13-28. In Weary v. Comm’r of Soc.

Sec., No. 6:11-cv-1599-Orl-31DAB, Doc. No. 1 (M.D. Fla. Sept. 30, 2011), Claimant appealed
the Commissioner’s final decision. Id. On June 11, 2012, based upon the Commissioner’s
unopposed motion, that case was remanded to the Commissioner, pursuant to sentence four of 42
U.S.C. § 405(g). Doc. Nos. 22-24 (11-cv-1599); R. 734-38. The case was remanded to the
Commissioner, in part, for the ALJ to “give further consideration of the credibility of [Claimant’s]
subjective complaints, including consideration of whether her periodic noncompliance with her
prescribed medication regimen was based on financial difficulties.” Doc. No. 22 at 1 (11-cv1599); R. 734.
On August 2, 2012, the Appeals Council remanded the matter back to the ALJ, in part, for
the following reason:
The [ALJ] found that the claimant’s subjective complaints were not
fully credible. In so finding, the [ALJ] stated that the claimant had
repeatedly been medically noncompliant in her weight loss as she
has been advised by her physicians to lose weight. The [ALJ] noted
the claimant’s testimony that she had been advised to lose weight,
but did not identify any confirming medical reports regarding such
a prescribed regimen.
The [ALJ] also stated that the claimant had been noncompliant with
medication usage regarding hypertensive and diabetic medications.
Information in the record indicates that the claimant on occasion
reported an inability to afford to purchase her medications (Exhibit
2F, page 49, and Exhibit 12F, page 23), but the claimant’s assertions
in that regard were not addressed.
****
Upon remand the [ALJ] will . . . [f]urther evaluate the claimant’s
subjective complaints and provide rationale in accordance with the
disability regulations pertaining to evaluation of symptoms. . . .
R. 741-42 (emphasis added). Thus, the case was remanded to the ALJ, in part, for the ALJ to
further evaluate Claimant’s credibility with respect to noncompliance with a prescribed weight

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loss regimen and with medications for high blood pressure and diabetes, including consideration
of Claimant’s allegations that she was unable to afford her medications. R. 741-42.
On July 31, 2013 and March 13, 2014, the ALJ held hearings, where the Claimant and
others provided testimony. R. 652-76 (March 13, 2014 hearing); 677-713 (July 31, 2013 hearing).
At both hearings, Claimant testified that she had been noncompliant with medications because,
having no income, she was unable to afford her medications. R. 656-57, 695, 707. At the March
13, 2014 hearing, Claimant testified that she is now able to afford her medications as long as she
is on patient assistance or if her children purchase her medications. R. 657. At the July 31, 2013
hearing, Dr. Alfred Jonas, a psychiatrist, was asked by the ALJ whether the record revealed any
noncompliance with medical treatment. R. 685. Dr. Jonas responded that the medical record
“from 2012 talks about noncompliance but it’s only because of finances. It’s because the claimant
could not afford the medication.” R. 686. At the March 13, 2014 hearing, Claimant testified that
she has an exercise plan and that her doctors advised that if she lost weight her diabetes might
improve. R. 659. Claimant testified that she has lost weight and then gained it back. R. 659.1
On August 21, 2014, the ALJ issued the partially favorable decision, finding Claimant
disabled from February 13, 2012, but not prior to that date. R. 618-42. At the outset of the
decision, the ALJ notes: “Pursuant to the District Court remand order, the Appeals Council has
directed the [ALJ] to . . . further evaluat[e] the claimant’s subjective complaints and provide
rationale, specifically with regard to her testimony regarding weight loss and medication usage. .
. .” R. 618.

In this appeal, as set forth above, Claimant argues that the ALJ erred by failing to

follow the Appeals Council’s remand order because the ALJ’s credibility determination, with
respect to Claimant’s compliance issues, fails to apply the correct legal standard and is not

1

A non-examining internist, Dr. Murray Gilman, testified that if Claimant lost weight, she would require less insulin,
but Claimant’s diabetic neuropathy may not improve even with weight loss. R. 660.

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supported by substantial evidence. Doc. No. 16 at 17-22. For the reasons set forth below, the
Commissioner’s final decision is REVERSED and REMANDED.
I.

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 — 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)); accord Edwards v. Sullivan, 937
F.2d 580, 584 n.3 (11th Cir. 1991).
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, 937 F.2d at 584 n.3; Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The
District Court “‘may not decide the facts anew, reweigh the evidence, or substitute [its] judgment
for that of the [Commissioner].’” See 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)).
II.

ANALYSIS.
The Appeals Council remand order required a re-examination of two (2) issues. R. 741-

42. First, the Appeals Council found that remand was required because the ALJ failed to identity
any medical reports supporting the ALJ’s determination that the Claimant had repeatedly been
noncompliant with her weight loss. R. 741. Second, remand was required because the ALJ
found that Claimant had been noncompliant with her medications, but failed to address Claimant’s

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repeated assertions of an inability to afford prescribed medications. R. 741.

The Appeals

Council’s order is soundly supported by the law.
Non-compliance with prescribed treatment regimens, such as medications, without good
cause will result in the denial of disability benefits applications. See 20 C.F.R. § 416.930. Social
Security Ruling 96-7p provides:
[T]he individual’s statements may be less credible if . . . the medical
reports or records show that the individual is not following the
treatment as prescribed and there are no good reasons for this failure.
However, the [ALJ] must not draw any inference about an
individual’s symptoms and their functional effect from a failure to
seek or pursue regular medical treatment without first considering
any explanations that the individual may provide, or other
information in the case record, that may explain [the individual’s
noncompliance].
SSR 96-7p, 1996 WL 374186, at * 7 (1996) (emphasis added). SSR 96-7p further provides that
an individual’s inability to afford medical treatment or to gain access to medical services are good
reasons for not complying with prescribed medical treatment. Id. at *8; see also Vargas v.
Comm’r of Soc. Sec., No. 6:13-cv-1683-Orl-41TBS, 2015 WL 328110, at *11 (M.D. Fla. Jan. 26,
2015) (same).
In the Eleventh Circuit, poverty or the inability to afford prescribed medications excuses a
claimant’s noncompliance. See Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (“We
agree with every other circuit that has considered the issue that poverty excuses noncompliance.”).
“Thus while a remediable or controllable medical condition is generally not disabling, when a
‘claimant cannot afford the prescribed treatment and can find no way to obtain it, the condition
that is disabling in fact continues to be disabling in law.’” Id. (citing Taylor v. Bowen, 782 F.2d
1294, 1298 (5th Cir. 1986)). In Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003), the
Eleventh Circuit reiterated that where an ALJ’s determination that the claimant is not disabled is
based primarily on or inextricably tied to a finding of non-compliance, the ALJ must consider the

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claimant’s ability to afford prescribed medical treatment. Id. Courts within this district have
routinely remanded cases where an ALJ finds the claimant’s subjective statements not credible
and denies the disability application based on the claimant’s noncompliance, but the ALJ fails to
properly consider whether the claimant’s assertions of an inability to afford prescribed medical
treatment is a good excuse for the noncompliance. See Vargas, No. 6:13-cv-1683-Orl-41TBS,
2015 WL 328110, at *11-12 (M.D. Fla. Jan. 26, 2015); Smith v. Comm’r of Soc. Sec., No. 6:13cv-52-Orl-18DAB, 2014 WL 842574, at *8 (M.D. Fla. Mar. 4, 2014) (remanding, in part, because
ALJ failed to address claimant’s allegations of poverty as reason for noncompliance with diabetes
medication regimen); Johnson v. Comm’r of Soc. Sec., No. 6:11-cv-1729-Orl-31TBS, 2013 WL
423973, at *9 (M.D. Fla. Jan. 18, 2013) (same); Whalen v. Comm’r of Soc. Sec., No. 6:10-cv-865Orl-22DAB, 2011 WL 3168626, at *6 (M.D. Fla. July 27, 2011) (same); Neal v. Comm’r of Soc.
Sec., No. 8:10-cv-1810-T-33MAP, 2011 WL 4356205, at *2-3 (M.D. Fla. Aug. 22, 2011) (same).
With respect to obesity and a claimant’s failure to follow recommendations to lose weight,
the Eleventh Circuit has held:
A physician's recommendation to lose weight does not necessarily
constitute a prescribed course of treatment, nor does a claimant's
failure to accomplish the recommended change constitute a refusal
to undertake such treatment. Johnson v. Secretary of Health and
Human Services, 794 F.2d 1106, 1113 (6th Cir. 1986). McCall's
obesity, of itself, does not justify the conclusion that she has refused
treatment nor the consequent denial of disability benefits. See
Johnson, 794 F.2d at 1113 (“it is impermissible ... to presume that
obesity can be remedied.”); Stone v. Harris, 657 F.2d 210, 212 (8th
Cir. 1981). Further findings of fact and conclusions of law are
required before the Secretary may determine that a claimant has
refused treatment. See Scott v. Heckler, 770 F.2d 482, 486 (5th Cir.
1985).
McCall v. Bowen, 846 F.2d 1317, 1319 (11th Cir. 1988) (emphasis added). Thus, the ALJ “may
not rely simply upon the fact of a claimant’s obesity and a prior medical recommendation that the
claimant lose weight in order to find that the claimant has failed to comply with prescribed

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treatment.” Ramsey v. Comm’r of Soc. Sec., No. 6:09-cv-1664-Orl-18DAB, 2010 WL 5209321,
at *4 (M.D. Fla. Nov. 22, 2010). “Rather, evidence must be presented suggesting that [the
claimant] has refused to follow a plan of prescribed treatment.” Id. at *4 (emphasis added).
The record contains numerous treatment notes indicating that Claimant was noncompliant
with prescribed hypertension and diabetic medications because Claimant was unable to afford her
prescribed medications and was unable to obtain access to free or low cost healthcare services for
her medications. See generally R. 416, 571, 1094, 1098-99, 1127, 1133, 1135, 1141, 1150, 1157,
1165, 1199-1200, 1209, 1216, 1265, 1269.2 Prior to his credibility finding, the ALJ repeatedly
points out Claimant’s noncompliance with her prescribed medications and provides citations to
the record. See R. 626 (citing R. 413, 416), 630 (citing R. 571, 1227), 631 (citing R. 592, 605),
633-35 (citing R. 1094, 1199-1201, 1209, 1216, 1221, 1269, 1280, 1284, 1255, 1261). At times,
the ALJ acknowledges the treatment records indicate that Claimant’s noncompliance with
medications was due to an inability to afford prescribed medications or because she lacked access
to healthcare services. See R. 626 (citing R. 413, 416), 630 (citing R. 571), R. 633 (citing R.
1221).3 At other times, the ALJ simply states that the treatment records indicate that Claimant
was noncompliant with prescribed medications, without acknowledging that those same treatment
records indicate that Claimant’s reason for noncompliance was her inability to afford medications

2

The citations provided above are examples of where treatment notes document a lack of compliance with prescribed
hypertension and diabetic medications, but also clearly indicate that the Claimant’s noncompliance was due to an
inability to afford medications or obtain access to healthcare services.
The ALJ also acknowledges that Dr. Jonas testified that Claimant’s noncompliance issues were “due to lack of
finances.” R. 625.
3

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or to gain access to healthcare services. See R. 633-35 (citing R. 1094, 199-1201, 1209, 1216,
1269).4
In addressing the Appeals Council’s remand order, the ALJ makes the following credibility
determination:
With regard to [the Appeals Council’s remand order], review of the
medical evidence shows that the claimant has demonstrated rather
significant issues of noncompliance throughout her treatment
history. In September 2008, she reported noncompliance with
medications [citing R. 413]. She was counseled on the importance
of medication compliance and advised to obtain assistance from
case management [citing R. 416]. In June 2009, [s]he admitted that
she had these kinds of headaches when she ran out of her blood
pressure medications [citing R. 487]. She also reported financial
problems of why she was not filling her prescriptions [citing R.
487]. She was encouraged to take her medications as prescribed
and advised of the risks associated with noncompliance and
uncontrolled hypertension [citing R. 488]. In November 2010, it
was noted the claimant had been out of antihypertensive
medications for several weeks when she was seen at the ER of
Halifax Medical Center but was completely asymptomatic [citing R.
1227]. She also reported not taking her hypertensive medication
for over one week in November 2011 [citing R. 1157].5
The evidence shows that she had generally been noncompliant with
her medication as she was noted to have been out of insulin for 6
months as of April 2012 [citing R. 1098]. 6 In June 2012, she
admitted that she had not been taking her blood pressure
medications for the past 2 months [citing R. 1209]. 7 She also

4

The records cited by the ALJ all clearly show Claimant had been noncompliant with her medications because she
could not afford her medication or her patient assistance had expired. See R. 1199-1201, 1209, 1216. In addition,
the ALJ states that in 2013, the “evidence also shows [that Claimant] continued to demonstrate issues of
noncompliance with medications. . . .” R. 634 (citing R. 1269). The treatment note cited by the ALJ states that the
Claimant “has not been on her antiseizure medication secondary to cost,” and Claimant was “[c]ounseled about
compliance.” R. 1269.
The November 21, 2011 treatment notes provides that Claimant had not taken her blood pressure medication “for
over one week due to financial constraints.” R. 1157 (emphasis added).
5

That same treatment note also provides that Claimant ran out of medication due to “no source of income.” R.
1094.
6

The ALJ’s description of the treatment note is not wholly accurate. R. 636. The treatment note states that Claimant
has “been without her blood pressure medication for the last 2 months. Still has her lisinapril but she does not have
7

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admitted that she does not check her blood sugars on a regular basis
[citing R. 1201].8
The evidence shows the claimant continued to demonstrate issues of
noncompliance in 2013 with medications and attendance for which
she had been counseled ad nauseam regarding the sequela of
possible CVA, MI or death if she did not comply with her
medication regimen [citing R. 1269, 1280, 1284]. 9 In addition,
lifestyle modification including ADA diet had been stressed [citing
R. 1269, 1280]. 10 While the [ALJ] has certainly considered her
continued issues of noncompliance, some consideration has been
given that this was due to lack of finances. Yet it is unclear as to
how her financial situation has changed to present in which she
testified that she is now able to afford and takes her medications as
prescribed.
With regard to [the other issue on remand], the [ALJ] notes that the
claimant admitted that she has gotten her weight down based upon
her doctor’s advice and was told that her diabetes would improve if
she lost weight. She stated that she weighed 197 pounds. While
the [ALJ] acknowledges that she has lost some weight, her overall
credibility is not given great weight as she remains obese.
Moreover, the evidence shows that she has continually been
noncompliant despite her physician’s recommendations.
Specifically, lifestyle modification including ADA diet had been
stressed [citing R. 1269, 1280], which she failed to comply as well
as her medication compliance.
***
Moreover, [the ALJ] notes that the claimant has repeatedly been
medically noncompliant in her weight loss as she admittedly has
been advised by her physicians to lose weight, which would also
help reduction in her other physical symptoms and would likely
a labetalol or the clonidine that she normally takes. She no longer has clearance to go see Dr. McNish at the local
clinic.” R. 1209.
8

The treatment note also states that Claimant cannot afford to fill all her medications. R. 1201.

Notably, one of the treatment notes cited by the ALJ states that Claimant is “currently trying to follow an ADA diet
and try[ing] to practice medication compliance,” but Claimant “has not been on her antiseizure medication secondary
to cost.” R. 1269.
9

The ALJ’s reference to an “ADA diet” refers to the American Diabetes Association’s recommended “medical
nutrition therapy” or healthy-eating plan for individuals with diabetes. Mayo Clinic, Diabetes diet: Create your
healthy eating plain, http://www.mayoclinic.org/diseases-conditions/diabetes/in-depth/diabetes-diet/art-20044295
(last visited March 14, 2016). The records cited by the ALJ simply state that Claimant was trying to follow an ADA
diet (R. 1269) and Claimant was “encouraged” to follow an ADA diet (R. 1280).
10

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include her back pain. The evidence also shows that she has been
medically noncompliant with her prior medication usage of
hypertensive and diabetic medications, which have contributed, to
her continuation of symptoms. Lastly, the claimant’s most recent
visit with ACT shows that she has also been noncompliant with her
medication usage of anti-depressants, which also likely affect the
increase of her symptoms. Therefore, the [ALJ] finds given
relatively overall benign physical findings and objective testing as
well as prior issues of noncompliance with medication usage and
weight loss efforts, the established residual functional capacity as
established is generally consistent with the overall evidence of
record.
R. 636-39 (emphasis added). Thus, the ALJ found Claimant’s subjective complaints not credible
largely due to Claimant’s noncompliance with prescribed medications and recommendations that
Claimant lose weight. Id. The ALJ’s findings above are cited as support for the ALJ’s ultimate
conclusion that the Claimant was not disabled prior to February 13, 2012. R. 638-39, 641.
The Court finds that this case must be reversed and remanded for several independent
reasons. First, the ALJ failed to comply with the substance of the remand order. See 20 C.F.R.
§§ 404.977(b), 416.1477(b) (ALJ shall take any action ordered by Appeals Council on remand).
In the decision, the ALJ acknowledges that he was required on remand to consider Claimant’s
inability to pay for medications and to provide further rationale with respect to Claimant’s weight
loss (R. 618) when determining Claimant’s credibility. R. 618.
The Court’s remand order directed the Commissioner to give further consideration to
“whether [Claimant’s] periodic noncompliance with her prescribed medications was based on
financial difficulties.”

R. 734.

The Appeals Council’s remand order directed the ALJ to

reevaluate the Claimant’s credibility (R. 742) and explained that the ALJ should address the
medical records as well as Claimant’s assertion that Claimant’s noncompliance with medications
was due to an inability to purchase medications. R. 741. With respect to weight loss, the Appeals
Council cautioned the ALJ that while Claimant testified that she had been advised to lose weight,

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the ALJ “did not identify any confirming medical reports regarding such a prescribed regimen.”
R. 741 (emphasis added).
With these fairly clear instructions, the ALJ made the following findings:
While the [ALJ] has certainly considered her continued issues of
noncompliance, some consideration has been given that this was due
to lack of finances. Yet it is unclear as to how her financial
situation has changed to present in which she testified that she is
now able to afford and take her medication as prescribed.
***
While the [ALJ] acknowledges that she has lost some weight, her
overall credibility is not given great weight as she remains obese.
Moreover, the evidence shows that she has continually
noncompliant despite her physician’s recommendations.
Specifically, lifestyle modification including ADA diet had been
stressed [citing R. 1269, 1280], which she failed to comply as well
as her medical compliance.
R. 636 (emphasis added). With respect to Claimant’s alleged inability to pay for medications or
obtain access to healthcare services, which is well-supported in the record (see supra pp. 7-8), the
ALJ made no explicit finding.

Instead, the ALJ implicitly rejects Claimant’s reason for

noncompliance, stating “it is unclear as to how her financial situation has changed to present in
which she testified that she is now able to afford and take her medication as prescribed.” R. 636.
The ALJ’s statement is itself unclear. On March 13, 2014, Claimant testified that she was now
able to afford her medications only so long as she was able to stay on patient assistance or if her
children paid for them. R. 657. In what is otherwise a very detailed decision, the Court is left in
the position of having to guess at how such testimony renders Claimant’s prior allegations of
poverty not credible. The record seemingly supports Claimant’s allegations of poverty as the
reason for her noncompliance with prescribed medications and, as the Appeals Council expressly
pointed out, a detailed rationale supporting the ALJ’s reasons for rejecting that allegation was

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necessary on remand. See R. 416, 571, 734, 741-42, 1094, 1098-99, 1127, 1133, 1135, 1141,
1150, 1157, 1165, 1199-1200, 1209, 1216, 1265, 1269.
With respect to Claimant’s failure to lose weight, the Appeals Council noted that the ALJ
failed to identify any such “prescribed regimen.” R. 741. That directive was consistent with the
case law regarding the proper analysis of obesity. See supra pp. 6-7. In the decision, the ALJ
states that physicians recommended that Claimant lose weight and they stressed the need for the
same. R. 636 (citing R. 1269, 1280). However, those records only show that Claimant was
trying to follow an ADA diet, “encouraged to follow an ADA diet,” and “encouraged to make
lifestyle modification and diet changes.” R. 1269, 1280; see also supra n.10. Nowhere in the
decision does the ALJ identify any evidence tending to show the Claimant failed to comply with
that recommendation or any other prescribed regimen. R. 636. Thus, the Court finds that the
ALJ failed to comply with remand order of the Appeals Council.
Second, with respect to Plaintiff’s noncompliance with prescribed medications, the ALJ’s
decision fails to comply with SSR 96-7p and established Eleventh Circuit precedent. See supra
pp. 5-6.

As set forth above, the Claimant’s poverty or the inability to afford prescribed

medications excuses the failure to comply with prescribed treatment. See SSR 96-7p, 1996 WL
374186, at *7-8 (1996); Dawkins, 848 F.2d at 1213. The ALJ’s decision fails to provide any
reasons, supported by substantial evidence, which supports rejecting the Claimant’s allegation of
poverty. Moreover, the ALJ’s improper reliance on Claimant’s noncompliance with prescribed
medications appears to be one, if not the primary, reason for the ALJ denying Claimant’s
applications prior to February 13, 2012.
Third, the ALJ’s finding that Claimant failed to comply with prescribed treatment because
she remains obese is not supported by substantial evidence and fails as a matter of law. See

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McCall, 846 F.2d at 1319; see also supra p. 12 (ALJ failed to identify any prescribed regimen
Claimant failed to comply with). In addition, the Court notes that the ALJ found the Claimant
not credible due to her obesity based upon medical records from 2013. R. 636 (citing R. 1269,
1280, 1284). However, the ALJ found Claimant disabled after February 13, 2012. R. 641.
Thus, inextricably, the ALJ is essentially stating that the Claimant is not credible and thus not
disabled before February 13, 2012 because she failed to comply with her physicians’
recommendations to lose weight in 2013 – at a time in which she was, in fact, disabled.
For the above stated reasons, the Court finds that the ALJ’s decision must be REVERSED
and REMANDED.
III.

REMEDY.
Claimant requests remand for an award of benefits because, arguing that she has suffered

an injustice. Doc. No. 16 at 33-35. Claimant asserts that she filed her applications for benefits
in September of 2008, she has received three administrative hearing, and she has yet to receive a
final decision that applied the correct legal standards despite a prior remand order from this Court
and the Appeals Council, which clearly identified the issues for the ALJ. Id. (citing Walden v.
Schweiker, 672 F.2d 835, 840 (11th Cir. 1982) (Courts may award benefits where claimant suffers
an injustice). The Commissioner does not directly respond, but instead relies solely on the
erroneous argument that the ALJ’s decision is supported by substantial evidence. Doc. No. 33 at
35.
Having carefully considered Claimant’s argument and the record in this case, the Court
agrees with Claimant. In this case, the Court’s prior remand order (R. 734) and the order of the
Appeals Council (R. 741-42) unequivocally identified for the ALJ the legal and evidentiary
problems with finding Claimant not credible based upon her failure to comply with prescribed

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medications and Claimant’s obesity. SSR 96-7p and well-established Eleventh Circuit precedent
should also have guided the ALJ’s evaluation of those issues on remand. Yet, the ALJ seemingly
ignored those guideposts and made findings contrary to the law, regulations, rules and the evidence
in the record. Those findings – Claimant has been noncompliant with medications without a good
excuse and is not credible because she remained obese – are the primary reasons for the ALJ’s
conclusion that Claimant is not disabled prior to February 13, 2012. R. 636, 639. Given the
entire record and history of this case, the Court finds that Claimant has suffered an injustice. See
Walden, 672 F.2d at 840 (“Due to the perfunctory manner of the hearing, the quality and quantity
of errors pointed out, and the lack of substantial evidence to support the ALJ’s decision, this court
is of the opinion the [claimant] has suffered an injustice.”). According, this case will be reversed
and remanded for the Commissioner to calculate an award of benefits prior to February 13, 2012.11
IV.

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), for the Commissioner to calculate an award
of benefits prior to February 13, 2012; and
2. The Clerk is directed to enter judgment for Claimant and close the case.
DONE and ORDERED in Orlando, Florida on March 15, 2016.

Claimant also argues that the ALJ erred by failing by failing to apply the correct legal standards to Claimant’s need
to use a cane to ambulate. Doc. No. 16 at 26-33. However, because this case must be reversed and remanded for an
award of benefits due to the ALJ’s above-stated errors, it is unnecessary to address that argument.
11

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Copies to:
Counsel of Record
The Court Requests that the Clerk
Mail or Deliver Copies of this order to:
The Honorable John Marshall Meisburg, Jr.
Administrative Law Judge
c/o Office of Disability Adjudication and Review
Desoto Bldg, Suite 400
8880 Freedom Xing Trl
Jacksonville, FL 32256-1224

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