HEATH v. COLVIN

Filing 20

ORDER ADOPTING 19 Report and Recommendations and DENYING 15 Motion to Remand. The Commissioner's decision is AFFIRMED. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 9/20/2016. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
ESTELLA HEATH,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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CIVIL ACTION NO. 5:15-CV-279 (MTT)

ORDER
United States Magistrate Judge Charles Weigle recommends affirming the
Commissioner’s decision to deny the Plaintiff’s application for benefits and denying the
Plaintiffs Motion for Reversal or Remand (Doc. 14), because substantial evidence
supports the Commissioner’s decision. (Doc. 19). The Plaintiff has not objected to the
Recommendation. The Court has reviewed the Recommendation and accepts the
findings, conclusions, and recommendations of the Magistrate Judge, but adds the
following observations.
In the parties’ briefing before the Magistrate Judge, the Plaintiff (in her brief
replying to the Commissioner’s memorandum (Doc. 16)) argues that the ALJ erred by
not taking into account the Plaintiff’s financial inability to obtain the treatment that, in the
ALJ’s determination, put her in a mental state capable of engaging in substantial gainful
activity. (Doc. 18, at 5-6). This argument was not addressed directly by the Magistrate
Judge, so the Court addresses it here.
“[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) (per curiam). 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. Id.
Bellew v. Acting Com’r of Soc. Sec., 605 F. App'x 917, 921 (11th Cir. 2015).
It is apparent that the ALJ did not significantly rely on the Plaintiff’s
noncompliance in denying her disability benefits, and, in any event, any reliance was
harmless error. As evidence of her financial inability to comply with her medical
regimen, the Plaintiff points to medical records from February and March of 2013 that
reflect her statements that she had not taken her medication because she was then
unable to afford it. However, the Plaintiff did not raise her inability to afford her
medication at the hearing before the ALJ or indicate that she would not be able to afford
the medication in the future. To the contrary, the Plaintiff testified that she did not miss
her medications, but rather took them “all the time.” (Doc. 11-2, at 70). The Plaintiff had
numerous opportunities at the hearing to explain that her medical regimen was
ineffective due to her financial inability to buy the medicine, but never did so. (See, e.g.,
Doc. 11-2, at 57, 67, 68, 69). Because the Plaintiff did not indicate future
noncompliance, the ALJ had no occasion to determine whether any such
noncompliance would be justified.
While the ALJ does make some reference to historical instances of the Plaintiff’s
noncompliance in discounting the Plaintiff’s testimony as to the intensity, persistence,
and limiting effects of her alleged symptoms, any error made in doing so was harmless.
The ALJ only assigned weight to the Plaintiff’s historical noncompliance in one
instance—a medical record from March 1, 2012 stating that the Plaintiff had not taken
her pain medications for at least five months and had not taken any over-the-counter
pain medications. (Doc. 11-10, at 150). There was no indication from that record (or

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otherwise) that this instance of noncompliance was related to the Plaintiff’s inability to
afford her medication.
More importantly, however, the most significant portion of the ALJ’s decision
encompasses discussion of other considerations. First, the ALJ found the Plaintiff’s
credibility undermined by comparing records of the Plaintiff’s and her daughter’s prior
inconsistent statements as to the Plaintiff’s symptoms and daily activities. (Doc. 11-2, at
20). Second, the ALJ was not persuaded by the Plaintiff’s testimony of her symptoms
after reviewing and extensively discussing medical reports prepared by at least five
medical professionals. (Doc. 11-2, at 20-26). And third, to the extent that the ALJ relied
on the effectiveness of the Plaintiff’s future compliance with her medical regimen, such
references are amply supported by the Plaintiff’s testimony that she took her
medications regularly and her admission (not to mention the overwhelming evidence to
this effect from her medical records) that the medical regimen at least partially mitigated
her symptoms.
Accordingly, the ALJ’s reference to the Plaintiff’s past noncompliance was not a
significant factor in reaching his decision and substantial evidence supports the ALJ’s
conclusion that the Plaintiff is capable of engaging in substantial gainful activity. Thus,
the Recommendation is ADOPTED and made the order of this Court, the Plaintiff’s
Motion for Reversal or Remand is DENIED, and the Commissioner’s decision is
AFFIRMED.

SO ORDERED, this 20th day of September, 2016.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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