Gordon v. Commissioner of Social Security

Filing 20

OPINION AND ORDER reversing and remanding the decision of the Commissioner. The Clerk of the Court is directed to enter judgment consistent with this opinion and, thereafter, to close the file. Signed by Magistrate Judge Douglas N. Frazier on 2/25/2016. (CAS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
IRVIN GORDON,
Plaintiff,
v.

Case No: 8:14-cv-3106-T-DNF

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
OPINION AND ORDER
Plaintiff, Irvin Gordon, seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“SSA”) denying his claim for Supplemental Security Income
(“SSI”). The Commissioner filed the Transcript of the proceedings (hereinafter referred to as “Tr.”
followed by the appropriate page number), and the parties filed legal memoranda in support of
their positions. For the reasons set out herein, the decision of the Commissioner is REVERSED
AND REMANDED pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
I.

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

A. Social Security Act 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), 1382(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. The
impairment must be severe, making the claimant unable to do his previous work, or any other

substantial gainful activity which exists in the national economy. 42 U.S.C. §§ 423(d)(2),
1382(a)(3); 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 support to 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, 363 F.3d 1155, 1158 (11th Cir. 2004)
(citing Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997)); Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990). 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. Martin v. Sullivan, 894
F.2d 1329, 1330 (11th Cir. 2002); Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995). However,
the District Court will reverse the Commissioner’s decision on plenary review if the decision
applied incorrect law, or if the decision fails to provide sufficient reasoning to determine that the
Commissioner properly applied the law. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994).

The Court reviews de novo the conclusions of law made by the

Commissioner of Social Security in a disability benefits case. Social Security Act, § 205(g), 42
U.S.C. § 405(g).
The ALJ must follow five steps in evaluating a claim of disability. 20 C.F.R. §§ 404.1520,
416.920. At step one, the claimant must prove that he is not undertaking substantial gainful
employment.

Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001), see 20 C.F.R. §

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404.1520(a)(4)(i). If a claimant is engaging in any substantial gainful activity, he will be found
not disabled. 20 C.F.R. § 404.1520(a)(4)(i).
At step two, the claimant must prove that he is suffering from a severe impairment or
combination of impairments. Doughty, 245 F.3d at 1278, 20 C.F.R. § 1520(a)(4)(ii). If the
claimant’s impairment or combination of impairments does not significantly limit his physical or
mental ability to do basic work activities, the ALJ will find that the impairment is not severe, and
the claimant will be found not disabled. 20 C.F.R. § 1520(c).
At step three, the claimant must prove that his impairment meets or equals one of
impairments listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1; Doughty, 245 F.3d at 1278; 20 C.F.R. §
1520(a)(4)(iii). If he meets this burden, he will be considered disabled without consideration of
age, education and work experience. Doughty, 245 F.3d at 1278.
At step four, if the claimant cannot prove that his impairment meets or equals one of the
impairments listed in Appendix 1, he must prove that his impairment prevents him from
performing his past relevant work. Id. At this step, the ALJ will consider the claimant’s RFC and
compare it with the physical and mental demands of his past relevant work. 20 C.F.R. §
1520(a)(4)(iv), 20 C.F.R. § 1520(f). If the claimant can still perform his past relevant work, then
he will not be found disabled. Id.
At step five, the burden shifts to the Commissioner to prove that the claimant is capable of
performing other work available in the national economy, considering the claimant’s RFC, age,
education, and past work experience. Doughty, 245 F.3d at 1278; 20 C.F.R. § 1520(a)(4)(v). If
the claimant is capable of performing other work, he will be found not disabled. Id. In determining
whether the Commissioner has met this burden, the ALJ must develop a full and fair record
regarding the vocational opportunities available to the claimant. Allen v. Sullivan, 880 F.2d 1200,

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1201 (11th Cir. 1989). There are two ways in which the ALJ may make this determination. The
first is by applying the Medical Vocational Guidelines (“the Grids”), and the second is by the use
of a vocational expert. Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th Cir. 2004). Only after the
Commissioner meets this burden does the burden shift back to the claimant to show that he is not
capable of performing the “other work” as set forth by the Commissioner. Doughty v. Apfel, 245
F.3d 1274, 1278 n.2 (11th Cir. 2001).
C. Procedural History
Plaintiff filed an application for SSI on September 4, 2013, alleging disability beginning
March 1, 2007. (Tr. 169-75). Plaintiff’s application was denied initially on October 29, 2013, and
on reconsideration on January 13, 2014. (Tr. 106, 117). A hearing was held before Administrative
Law Judge R. Dirk Selland (the “ALJ”) on August 4, 2014. (Tr. 39-77). On August 29, 2014, the
ALJ issued his decision finding that Plaintiff was not under a disability from since September 4,
2013, the date the application was filed. (Tr. 21-34). Plaintiff appealed the ALJ’s decision and
the Appeals Council denied Plaintiff’s request for review on November 5, 2014. (Tr. 1). Plaintiff
initiated the instant action by filing a Complaint (Doc. 1) on December 12, 2014. The parties
having filed memorandum in support of their positions, this case is ripe for review.
D. Factual Background
Plaintiff was born on June 20, 1960, and was 53 years old on the date his application was
filed. (Tr. 32). Plaintiff has an eleventh grade education and no past relevant work history. (Tr.
32, 202). Plaintiff alleges he cannot work due to bipolar disorder, schizophrenia, and herniated
discs. (Tr. 201). Plaintiff was previously approved for SSI benefits, but the benefits were
terminated when he was incarcerated in 2007. (Tr. 27). Plaintiff has been incarcerated off and on
for 30+ years. (Tr. 37). Most recently, Plaintiff was charged with Battery on a Law Enforcement

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Officer, his third felony, which allegedly occurred on December 27, 2008. (Tr. 27). Plaintiff was
sentenced to five years and was released from September 3, 2013. (Tr. 28).
E. Summary of the ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since September 4, 2013, the application date. (Tr. 23). At step two,
the ALJ found that Plaintiff has the following severe impairments: degenerative disk disease of
the lumbar spine, osteoarthritis, bipolar disorder and paranoid schizophrenia. (Tr. 23). 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. (Tr. 15).
Before proceeding to step four, the ALJ determined that Plaintiff has the residual functional
capacity (“RFC”) to:
perform medium exertional work as defined in 20 CFR 416.967(c), except
work that does not require more than frequent crouching and stooping, and
is further limited to work that is simple as defined in the Dictionary of
Occupational Titles (DOT) with specific vocational preparation (SVP)
levels 1 and 2, routine and repetitive tasks in a work environment free of
fast paced production requirements, which is defined as constant activity
with work tasks performed sequentially in rapid sucession; involving only
simple-work related decisions; with few, if any, work place changes; and
no more than occasional interaction with the general public, supervisors
and co-workers.
(Tr. 25). At step four, the ALJ found that Plaintiff has no past relevant work. (Tr. 32). At step
five, the ALJ found that considering Plaintiff’s age, education, work experience, and RFC, there
are jobs that exist in the national economy that Plaintiff can perform. (Tr. 32). Relying on the
testimony of a vocational expert, the ALJ found that Plaintiff could work as a hand packer,
warehouse worker, or a laundry worker II. (Doc. 3). The ALJ concluded that Plaintiff has not
been under a disability since September 4, 2013, the date the application was filed. (Tr. 33).
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II.

Analysis
Plaintiff raises two issues on appeal: (1) whether the ALJ erred by failing to properly

consider Plaintiff’s inability to acquire medication; and (2) whether the ALJ erred by failing to
properly evaluate Plaintiff’s credibility. Although the issues are treated separately by Plaintiff in
his Memorandum of Law (Doc. 16), Plaintiff’s arguments intersect. Accordingly, the Court will
address the issues in combination.
Plaintiff argues that although the ALJ noted in his opinion that Plaintiff was not able to
afford his medications, the ALJ failed to properly consider this fact in determining that Plaintiff
was not disabled. (Doc. 16 p. 13-14). Plaintiff contends that he sought to take his prescription
medication, specifically Risperdal, but was unable to do so because he could not afford it. (Doc.
16 p. 14). In addition, Plaintiff argues that the ALJ’s credibility finding was erroneous because
the ALJ improperly considered Plaintiff’s noncompliance with his prescription medicine, his
criminal history, and his lack of work history. (Doc. 16 p. 17).
Defendant argues that the ALJ did not err in considering Plaintiff’s noncompliance with
his prescription medication because the regulations permit an ALJ to consider the effectiveness of
any mediation taken to alleviate a claimant’s pain or other symptoms. (Doc. 19 p. 8). Defendant
argues that the ALJ may consider noncompliance with treatment even if it is due to an inability to
afford treatment when it is not a significant part of the ALJ’s reasoning. (Doc. 19 p. 8). Defendant
contends that the ALJ’s credibility finding was supported by substantial evidence. (Doc. 19 p. 412).
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, a claimant’s
noncompliance is excused and the condition can be found disabling. Dawkins v. Bowen, 848 F.2d

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1211, 1213 (11th Cir. 1988). “[W]hen 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).
The record reflects that Plaintiff testified at the hearing that he was unable to afford his
prescription medicines due to lack of income. (Tr. 55, 62-63). Plaintiff further testified that while
his family helps him by occasionally giving him food stamps and gas money, they do not give him
money to buy his prescription medications. (Tr. 56). Plaintiff’s mother testified at the hearing
that she is on a fixed income and is unable to get Plaintiff his medications. (Tr. 69). In his opinion,
the ALJ acknowledged Plaintiff’s testimony, noting that “the claimant stated he was taking
Risperdal and Fluoxetine, and they helped control his symptoms while he was incarcerated. He
added that he was not eligible for the County Medicaid card since his release and he could not
afford his medications.” (Tr. 26). The ALJ also acknowledged Plaintiff’s mother’s testimony that
“she could not afford to help” Plaintiff get his medication. (Tr. 27). In addition, the ALJ noted
that progress notes from Plaintiff’s visits to Gracepoint Clinic in January 2014 revealed that
Plaintiff was not able to afford his medication. (Tr. 30).
Despite acknowledging such evidence, the ALJ never made a finding whether Plaintiff’s
noncompliance was due to his inability to afford his prescription medication. Instead, the ALJ
found that Plaintiff’s allegations were not fully credible and his testimony unpersuasive, in part,
because of his noncompliance with his medication. (Tr. 30). The Court finds that the ALJ’s failure
to do so constitutes reversible error. While a remediable or controllable medical condition is
generally not disabling, when a claimant cannot afford the prescribed treatment and can find no

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way to obtain it, a claimant’s noncompliance is excused and the condition can be found disabling.
Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988).
In this case, the evidence suggests that Plaintiff’s mental limitations are greater than those
found by the ALJ in his RFC finding when Plaintiff is not taking medication for paranoid
schizophrenia. Upon release from prison in September 2013, Plaintiff visited Gracepoint Mental
Health Clinic for treatment for his bipolar disorder and schizophrenia. Documents from his visit
to Gracepoint reveal the following: “issues with people, mood swings, easily irritated, problems
sleeping, racing thoughts . . .” (Tr. 388); an increase in paranoia since being released from prison
(Tr. 390); visual hallucinations, mood swings, social phobia, and a lot of paranoia (Tr. 393);
difficulty trusting others, hearing voices under stress (Tr. 395); unable to find joy or pleasure in
anything, paranoid ideations, exhibiting signs of depression and anxiety/PTSD and psychosis, as
evidenced by depressed mood, irritability, irritability/outburst of anger, paranoia; loud speech,
paranoid thought content, rumination (Tr. 398); insomnia, difficulty falling/staying asleep,
unspecified anxiety, worrying excessively (Tr. 400); poor frustration tolerance and irritability,
tense and continues to voice paranoid ideations, anxious mood and irritable and angry and
dysphoric, affect angry, speech loud, thought content paranoid (Tr. 485); dwells on theme that his
girlfriend cheated on him with family member with poor insight (Tr. 489); and feelings others are
against him and do not want him to succeed. (Tr. 491).
Given the evidence that Plaintiff was unable to afford medication that treats his major
mental health issues, the ALJ should have determined whether Plaintiff was disabled without
reference to his noncompliance with prescribed medical treatment. See Dawkins, 848 F.2d at 1214.
If the ALJ determined that Plaintiff was disabled, the ALJ should then have determined whether

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Plaintiff is in fact unable to afford the medicine prescribed by his physicians. Id. If Plaintiff is
unable to afford his medicine, then the ALJ should have found Plaintiff disabled. Id.
Defendant argues that remand is improper because Plaintiff’s noncompliance was not the
sole basis for the ALJ’s decision. (Doc. 19 p. 9). Citing to Ellison v. Barnhart, 355 F.3d 1272,
1275 (11th Cir. 2003), Defendant notes that “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). Thus, a finding of whether the claimant was able to afford
prescription medication is only necessary when the ALJ’s finding is “primarily if not exclusively”
based on Plaintiff’s noncompliance. Id. (citing Dawson, 848 F.2d 1212. Defendant contends that
in addition to Plaintiff’s noncompliance with medication, the ALJ properly considered Plaintiff’s
prior incarcerations and sporadic work history in determining that Plaintiff’s subjective complaints
were not entirely credible and in finding the Plaintiff not disabled.
While Plaintiff correctly cites the law, the Court finds that under the circumstances of this
case, the “other bases” the ALJ claims supports his credibility finding are insufficient as they relate
to Plaintiff’s alleged inability to secure mediation.
The Court begins with the ALJ’s treatment of Plaintiff’s prior incarcerations. The record
reflects that Plaintiff testified he has spent approximately 30 years in prison, most recently in
connection with charges relating to battery on a law enforcement officer or obstructing or opposing
an officer with and without violence. (Tr. 316). The ALJ commented that Plaintiff’s “prior
incarcerations go to the issue of credibility” without further explanation. (Tr. 30). Such violent
crimes, however, are consistent with Plaintiff’s allegations of moodiness, easy irritation, outbursts

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of anger, problems with people, lack of trust, etc., which occur when he is not on medication.
Thus, contrary to the ALJ’s finding, it appears that Plaintiff’s prior convictions actually support
the Plaintiff’s complaints.
Likewise, the ALJ’s finding that Plaintiff’s sporadic work history and lack of work
performed at the level of substantial gainful activity “raises a question as to whether the claimant’s
continuing unemployment is actually due to medical impairments further lessen the credibility of
his allegations,” is insufficient to find Plaintiff’s complaints not credible. As noted above, the
record indicates that Plaintiff previously was found disabled and received SSI benefits, indicating
that his impairments prevented him from performing substantial gainful activity for at least some
period of time. This fact, combined with Plaintiff’s on again, off again incarceration undermines
the ALJ’s finding that Plaintiff’s work history belies his complaints.
Finally, the ALJ found Plaintiff not entirely credible because “the medical evidence of
record is void of objective evidence to support a more restrictive residual functional capacity.”
(Tr. 31). Evidence in the record suggests, however, that if Plaintiff is not compliant with
medication that he would be disabled. For example, disability determination physician Sally
Rowley, Psy.D. noted that Plaintiff take medication for major mental illness that can affect his
attention and concentration for extended periods of time. (Tr. 86). Dr. Rowley found that if
Plaintiff is not complaint with medication it could lead to decompensation and interruption in the
workday or work week. (Tr. 86). While Dr. Rowley found at the time that Plaintiff was compliant
with medication at the time she gave her opinion, the record reveals that Plaintiff’s compliance
with his medicine shortly ended. Thus, the question of whether Plaintiff’s noncompliance with his
medication was due to his inability to afford it.

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Plaintiff is a violent convicted felon who suffers from paranoid schizophrenia. While his
impairments may be controlled while he is on medication, evidence in the record suggest that he
is unable to afford his medicine. In reaching a decision regarding Plaintiff’s claim for SSI the ALJ
should have determined whether Plaintiff can afford his medicine. The ALJ’s failure to do so
warrants remand.
III.

Conclusion

The decision of the Commissioner is REVERSED AND REMANDED to the ALJ for
proceedings consistent with this Opinion and Order. The Clerk of the Court is directed to enter
judgment consistent with this opinion and, thereafter, to close the file.
DONE and ORDERED in Fort Myers, Florida on February 25, 2016.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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