PERSON v. COLVIN

Filing 30

ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF APPEAL: Plaintiff's brief in support of appeal [Filing No. 18] is denied and the Commissioner's decision affirmed (see Order for details). Signed by Magistrate Judge Tim A. Baker on 6/29/2015.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
THOMAS F. PERSON, JR.,
Plaintiff,
vs.
CAROLYN W. COLVIN Commissioner of the
Social Security Administration,
Defendant.

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No. 1:14-cv-01053-TAB-RLY

ORDER ON PLAINTIFF’S BRIEF IN SUPPORT OF APPEAL
I. Introduction
Plaintiff Thomas F. Person, Jr. appeals the Commissioner’s denial of his claim for
supplemental security income. Person argues on appeal that: (1) the ALJ erred in finding
Person’s combined impairments do not render him totally disabled; (2) the ALJ improperly
failed to summon a medical advisor; and (3) the ALJ erroneously found Person was capable of
performing work in the national economy. For the reasons set forth below, Person’s brief in
support of appeal [Filing No. 18] is denied.
II. Discussion
A.

Standard of review

The Court must uphold the ALJ’s decision if substantial evidence supports her findings.
Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009). The Seventh Circuit defines substantial
evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Blakes v. Barnhart, 331 F.3d 565, 568 (7th Cir. 2003). The ALJ need not address
every piece of evidence or testimony presented, but must provide a “logical bridge” between the

evidence and her conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). If evidence
contradicts the ALJ’s conclusions, she must confront that evidence and explain why it was
rejected. Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014).
B.

Medical noncompliance

Person first argues that substantial evidence does not support the ALJ’s conclusion that
Person was not disabled. [Filing No. 18, at ECF p. 10.] According to Person, the ALJ ignored
evidence that his combined impairments of coronary artery disease with severe congestive heart
failure, hypertension, shortness of breath, and significant activity intolerance rendered him
totally disabled. [Filing No. 18, at ECF p. 10.] Specifically, Person asserts that the ALJ
erroneously denied his claim on the basis that he was medically noncompliant without
accounting for his inability to afford his medications. [Filing No. 29, at ECF p. 3.] Person
concedes that the ALJ acknowledged he did not take his medications because he could not obtain
the necessary funds for his co-pay, but argues that the ALJ’s failure to consider Person’s
financial resources directly violated Social Security Ruling 82-59.
Social Security Ruling 82–59 excuses medication noncompliance for an “individual
[who] is unable to afford prescribed treatment which he or she is willing to accept, but for which
free community resources are unavailable.” 1982 WL 31384 (1982). The ruling further provides
that the claimant must explore all possible resources (e.g., clinics, charitable and public
assistance agencies, etc.) and document his contact with the resources. Id. “An absence of
evidence that a claimant sought low-cost or free care may warrant discrediting his excuse that he
could not afford treatment.” Mack v. Colvin, No. 2:14-CV-00008-JMS-MJD, 2014 WL
4965569, *4 (S.D. Ind. Oct. 3, 2014) (citing Buchholtz v. Barnhart, 98 F. App'x 540, 546 (7th
Cir. 2004)).

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While the ALJ did not explicitly refer to Social Security Ruling 82-59, she discussed
Person’s financial constraint in her opinion. [Filing No. 12-2, at ECF p. 22.] The ALJ did not
deny Person’s application for supplemental security “because he was too poor to obtain needed
medical treatment,” as Person alleges. [Filing No. 18, at ECF p. 10.] On the contrary, the ALJ
acknowledged that Person’s medical noncompliance was due to a lack of funds. The ALJ noted
that “there is some evidence of non-compliance with prescribed medications, but testimony
established that financial issues prevented the claimant from obtaining his medication.” [Filing
No. 12-2, at ECF p. 22.] Indeed, Person’s medical record contained two instances where Person
met with social workers to obtain financial assistance for his medication: once in January 2012,
and again in May 2012. [Filing No. 12-8, at ECF p. 13, 17.] Person asserts that he and the
hospital social worker explored all possible community resources, but that he was still unable to
afford his medications. [Filing No. 29, at ECF p. 3.] The ALJ mentioned that Person met with a
social worker from Wishard Hospital to discuss financial assistance to purchase his medications.
[Filing No. 12-2, at ECF p. 22; Filing No. 12-8, at ECF p. 13.] The ALJ also noted that Person’s
hospital admission for heart failure exacerbation was the result of Person’s medication
noncompliance, which was caused by his financial limitations. [Filing No. 12-2, at ECF p. 22;
Filing No. 12-8, at ECF p. 17.]
The ALJ’s discussion of Person’s medical noncompliance was not the basis for her
disability determination. Instead, the ALJ discussed Person’s medical noncompliance in the
context of her credibility determination, which is permissible. See Craft v. Astrue, 539 F.3d 668,
679 (7th Cir. 2008) (“In assessing credibility, infrequent treatment or failure to follow a
treatment plan can support an adverse credibility finding where the claimant does not have a
good reason for the failure.”). The ALJ’s discussion of Person’s medical noncompliance was

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one of many factors taken into consideration in making a credibility assessment. The ALJ
considered medical treatment notes, which suggested “a higher level of functioning than [Person]
alleged.” [Filing No. 12-2, at ECF p. 21.] Specifically, the ALJ cited Dr. Ronald Mastouri’s
February 2012 finding that Person was able to walk 6 to 8 blocks without limitations. Person
also denied any pain in his chest, arms, or jaw. At that time, Person did not report any shortness
of breath on exertion. [Filing No. 12-2, at ECF p. 21; Filing No. 12-7, at ECF p. 114.] The ALJ
also cited Person’s testimony that he was able to use a vacuum, did his own laundry, washed
dishes, cooked simple meals, rode in a car, and walked up and down stairs. [Filing No. 12-2, at
ECF p. 22-23; Filing No. 12-2, at ECF p. 43, 47.] Thus, the context in which the ALJ discussed
Person’s medical noncompliance was not erroneous.
Notably, the ALJ did not hold Person’s medication noncompliance against him in her
RFC assessment. The ALJ acknowledged that Person’s medication noncompliance exacerbated
some of his symptoms, such as shortness of breath, some fluid build-up in his lungs, fatigue, and
low energy levels. The ALJ made accommodations for these symptoms in her RFC assessment.
She limited Person to sedentary work with occasional climbing of ramps and stairs, but never
ladders, ropes or scaffolds; pushing/pulling with the bilateral upper extremities; avoiding
concentrated exposure to extreme heat or cold and to environmental irritants. [Filing No. 12-2,
at ECF p. 22.] Thus, the ALJ did not err in her discussion of Person’s medical noncompliance.
Remand is not warranted on this issue.
C.

Failure to summon a medical advisor

Person next challenges the ALJ’s failure to summon a medical advisor to determine the
medical equivalency of his combined impairments. Whether to summon a medical advisor is left
to the judgment of the ALJ, if she believes she lacks sufficient information and it is necessary to

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obtain expert opinions to adequately develop the record. Clifford v. Apfel, 227 F.3d 863, 873
(7th Cir. 2000). Person asserts that the ALJ used her layperson opinion instead of a medical
expert in determining whether Person’s impairments met or equaled a listing. [Filing No. 18, at
ECF p. 13.] Specifically, Person argues that the ALJ could not reasonably rely on the opinions
of the reviewing physicians because their reports were filed before Dr. Mastouri’s evaluation on
June 8, 2012, and therefore, they did not review the entire record. [Filing No. 18, at ECF p. 13.]
Person contends that if the reviewing physicians had reviewed all of the evidence they would
have determined that he was totally disabled. Id.
However, Dr. Mastouri’s June 8, 2012, evaluation does not present any information that
is significantly different from the rest of the medical record. Dr. Mastouri found:
At the time of his last clinic visit, Mr. Person was in subacute congestive heart
failure exacerbation due to medical noncompliance . . . Clinically, he is doing
much better. He has not had any lower extremity edema. His weight is less as
[sic] 11 pounds lower than his last clinic visit. He denied chest pain, arm pain, or
jaw pain. He is trying to be more active.
[Filing No. 12-8, at ECF p. 20.] Such findings are consistent with those of Dr. J. Valentine
Corcoran, the reviewing physician. On March 21, 2012, Dr. Corcoran determined that Person
could occasionally lift or carry 20 pounds, frequently lift or carry 10 pounds, stand or walk about
six hours in an eight-hour day, sit with normal breaks for about six hours in an eight-hour day,
and push and pull without limitations. [Filing No. 12-7, at ECF p. 126.] Although Dr. Mastouri,
Person’s treating physician, did not make any explicit determinations regarding Person’s ability
to lift, sit, stand, push, or pull, he did find that Person’s condition was improved, that Person was
not experiencing pain, and that he was trying to be more active. [Filing No. 12-8, at ECF p. 20.]
These findings are consistent with Dr. Corcoran’s assessment of Person’s abilities. On May 7,

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2012, Dr. Jonathon Sands, another reviewing physician, affirmed Dr. Corcoran’s assessment.
[Filing No. 12-8, at ECF p. 11.]
Moreover, the ALJ adequately developed the record and did not rely entirely on Dr.
Corcoran’s March 21, 2012, report in finding that Person’s impairments did not meet or equal a
listing. The ALJ discussed Person’s hospitalization for heart failure exacerbation, which
occurred after Dr. Corcoran’s review of Person’s medical history. Person was admitted to the
hospital on April 23, 2012, and was discharged two days later. The ALJ and Dr. Mastouri both
noted that Person was hospitalized for failing to take his medication due to his financial
circumstances. [Filing No. 12-8, at ECF p. 4; Filing No. 12-2, at ECF p. 22.] The ALJ also
reviewed Dr. Mastouri’s consultative notes dated May 16, 2012, which described the
improvements that Person had made since his bypass operation and subsequent hospitalization.
Dr. Mastouri found that Person’s “preoperative echocardiogram showed a severely reduced left
ventricular systolic function. A repeat echocardiogram at the time of his last clinic visit showed
an ejection fraction of 46%, which was significant [sic] improved.” [Filing No. 12-8, at ECF p.
17; Filing No. 12-2, at ECF p. 22.] This is consistent with Person’s improvement described in
Dr. Mastouri’s June 8, 2012, report. The ALJ adequately developed the record without
summoning a medical advisor. Remand is not warranted on this issue.
D.

Jobs in the national economy

Person’s final issue on appeal relates to the ALJ’s step-five determination that Person
was not disabled because he could perform work in the national economy. Person contends that
the ALJ’s RFC assessment did not accurately describe his impairments. Person asserts that if the
ALJ had properly considered his impairments they would preclude performance of all substantial
gainful activity. [Filing No. 18, at ECF p.16.] Person’s argument focuses on the fact that “there

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was no medical evidence in the record which was contrary to the claimant’s reported quite
significant limitations in standing and walking.” [Filing No. 18, at ECF p. 16.] This argument is
unavailing.
The ALJ found that Person has the RFC to perform sedentary work with additional
restrictions. [Filing No. 12-2, at ECF p. 21.] In making this assessment, the ALJ relied on an
evaluation by Dr. Robert Bond, who found on November 1, 2011, that Person was able to “walk
for several blocks at best” without chest pain. [Filing No. 12-7, at ECF p. 243.] The RFC
assessment was further supported by Dr. Mastouri’s report from February 24, 2012. The ALJ
noted Dr. Mastouri’s finding that Person was doing remarkably well since being discharged.
Person lost a significant amount of weight and he was able to walk several blocks with no
limitations. Furthermore, Person was not experiencing any pain in his arms, chest, or jaw.
[Filing No. 12-7, at ECF p. 114.]
The RFC assessment not only accurately reflected the medical evidence, it incorporated
more limitations than recommended by the reviewing physicians. [Filing No. 12-2, at ECF p.
22.] For example, Dr. Corcoran opined that Person could stand or walk up to six hours in an
eight-hour day. [Filing No. 12-7, at ECF p. 126.] However, the ALJ limited Person to standing
or walking up to two hours in an eight-hour day. [Filing No. 12-2, at ECF p. 20.] The ALJ
reasoned that because Person was limited by his heart condition, obesity, and low ejection
fraction percentage, sedentary work would be more appropriate than light work. In making this
decision, the ALJ also relied on Person’s testimony from the hearing that on bad days his activity
levels were limited and he did not get out of his recliner, except to get water and to take his
medications. [Filing No. 12-2, at ECF p. 22, 44.] Thus, the ALJ supported her RFC with
substantial evidence.

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To determine what jobs were available in the national economy, the ALJ asked a
vocational expert questions based on her RFC assessment. The vocational expert testified that an
individual with similar capabilities to that of Person would be able to work as a sorting machine
operator, polishing machine operator, or a rotor assembler. [Filing No. 12-2, at ECF p. 24, 66.]
This testimony went unchallenged at the hearing and the ALJ appropriately relied on it in
concluding that Person was capable of performing work in the national economy. The ALJ’s
step-five finding is not erroneous. Thus, the Court finds remand on this issue is inappropriate.
III. Conclusion
For these reasons, Plaintiff’s brief in support of appeal [Filing No. 18] is denied and the
Commissioner’s decision affirmed.
Date: 6/29/2015
______________________________________
Tim A. Baker
U.S. Magistrate Judge
Southern District of Indiana

Distribution:
Patrick Harold Mulvany
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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