Ford v. Commissioner of Social Security

Filing 29

ORDER RULING ON REPORT AND RECOMMENDATION the Court respectfully declines to adopt the Magistrate Judges Report (ECF No. 24) and instead remands this action to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further evaluation. Signed by Honorable Bruce Howe Hendricks on 03/08/2019. (cpeg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Ebone Ford,

)
)
Plaintiff,
)
)
v.
)
)
Nancy A. Berryhill, Acting
)
Commissioner of Social Security,
)
)
Defendant.
)
________________________________)

Civil Action No. 2:17-2394-BHH
ORDER

This is an action brought pursuant to 42 U.S.C. § 405(g) seeking judicial review of
the Acting Commissioner of Social Security’s (“Commissioner”) final decision, which denied
Plaintiff Ebone Ford’s (“Plaintiff”) claim for supplemental security income (“SSI”). The
record includes the report and recommendation (“Report”) of United States Magistrate
Judge Mary Gordon Baker, which was made in accordance with 28 U.S.C. § 636 (b)(1)(B)
and Local Civil Rule 73.02(B)(2)(a) (D.S.C.).
In her Report, the Magistrate Judge recommends that the Court affirm the
Commissioner’s final decision denying benefits. Plaintiff filed objections to the Report, and
the Commissioner filed a reply to those objections. See 28 U.S.C. § 636(b)(1) (providing
that a party may object, in writing, to a Magistrate Judge’s Report within 14 days after being
served a copy). For the reasons stated below, the Court declines to adopt the Magistrate
Judge’s Report and instead remands this matter for further proceedings.
BACKGROUND
Plaintiff was 26 years old on her alleged disability onset date of January 7, 2013.
Her application was denied initially and upon reconsideration, and she requested a hearing

before an administrative law judge (“ALJ”). A hearing was held on Amy 5, 2016, at which
Plaintiff, who was represented by counsel, appeared and testified. The ALJ issued a
decision on June 23, 2016, denying Plaintiff’s claim. The Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the Commissioner’s final decision for
purposes of judicial review.

Plaintiff filed this action seeking judicial review of the

Commissioner’s final decision on September 6, 2017.
STANDARDS OF REVIEW
I.

The Magistrate Judge’s Report
The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility for making a final
determination remains with this Court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The Court conducts a de novo review to those portions of the Report to which a
specific objection is made, and this Court may accept, reject, or modify, in whole or in part,
the recommendations contained in the Report. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §
636(b)(1). Any written objection must specifically identify the portion of the Report to which
the objection is made and the basis for the objection. Id. If a party fails to file any specific
objections, this Court “need not conduct a de novo review, but instead must only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.” See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005) (internal quotation omitted).
II.

Judicial Review of a Final Decision
The federal judiciary plays a limited role in the administrative scheme as established

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by the Social Security Act. Section 205(g) of the Act provides that “[t]he findings of the
Commissioner of Social Security, as to any fact, if supported by substantial evidence, shall
be conclusive . . . .” 42 U.S.C. § 405(g). “Consequently, judicial review . . . of a final
decision regarding disability benefits is limited to determining whether the findings are
supported by substantial evidence and whether the correct law was applied.” Walls v.
Barnhart, 296 F.3d 287, 290 (4th Cir. 2002). “Substantial evidence” is defined as:
evidence which a reasoning mind would accept as sufficient to support a
particular conclusion. It consists of more than a mere scintilla of evidence
but may be somewhat less than a preponderance. If there is evidence to
justify a refusal to direct a verdict were the case before a jury, then there is
“substantial evidence.”
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebreeze, 368
F.2d 640, 642 (4th Cir. 1966)). In assessing whether substantial evidence exists, the
reviewing court should not “undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute [its] judgment for that of” the agency. Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (alteration in original).
DISCUSSION
I.

The Commissioner’s Final Decision
The Commissioner is charged with determining the existence of a disability. The

Social Security Act, 42 U.S.C. §§ 301-1399, defines “disability” as the “inability to engage
in 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 result in death or which has lasted or can expected to last for a continuous
period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A). This determination

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involves the following five-step inquiry:
[The first step is] whether the claimant engaged in substantial gainful
employment. 20 C.F.R. § 404.1520(b). If not, the analysis continues to
determine whether, based upon the medical evidence, the claimant has a
severe impairment. 20 C.F.R. § 404.1520(c) If the claimed impairment is
sufficiently severe, the third step considers whether the claimant has an
impairment that equals or exceeds in severity one or more of the impairments
listed in Appendix I of the regulations. 20 C.F.R. § 404.1520(d); 20 C.F.R.
Part 404, subpart P, App. I. If so, the claimant is disabled. If not, the next
inquiry considers if the impairment prevents the claimant from returning to
past work. 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545(a) If the answer
is in the affirmative, the final consideration looks to whether the impairment
precludes that claimant from performing other work.
Mastro, 270 F.3d at 177 (citing 20 C.F.R. § 416.920).
If the claimant fails to establish any of the first four steps, review does not proceed
to the next step. Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir. 1993). The burden of
production and proof remains with the claimant through the fourth step. However, if the
claimant successfully reaches step five, then the burden shifts to the Commissioner to
provide evidence of a significant number of jobs in the national economy that the claimant
could perform, taking into account the claimant’s medical condition, functional limitations,
education, age, and work experience. Walls, 296 F.3d at 290.
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since her application date of October 31, 2013. Next, the ALJ determined that
Plaintiff has the following severe impairments: diabetes, degenerative joint disease of the
left knee, and obesity. However, the ALJ found that Plaintiff did not have an impairment
or combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. With regard to residual
functional capacity (“RFC”), the ALJ found that Plaintiff could perform the full range of
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sedentary work as defined in 20 C.F.R. § 416.967(a) with the additional limitation of no
climbing of ladders, ropes, and scaffolds and only occasional climbing of ramps and stairs.
The ALJ found that Plaintiff was not able to perform past relevant work, but that considering
her age, education, work experience, and RFC, there are jobs that exist in significant
numbers in the national economy that she could perform. Therefore, the ALJ found that
Plaintiff was not disabled from the date her application was filed.
II.

The Court’s Review1
In this action seeking judicial review, Plaintiff alleges that the ALJ’s RFC assessment

was not based on substantial evidence. Specifically, Plaintiff complains that the ALJ did
not categorize Plaintiff’s lower extremity edema as a severe or non-severe impairment and
overlooked objective medical evidence in concluding that Plaintiff’s testimony was “just not
consistent with the evidence of record.” (ECF No. 10-2 at 16.) In addition, Plaintiff
complains that the ALJ improperly discredited her testimony based on her failure to take
medications and follow physicians’ recommendations without properly considering Plaintiff’s
inability to afford treatment. Plaintiff also complains that the ALJ erred in discounting the
opinion of FNP Gail Smith.
In her Report, the Magistrate Judge outlined the evidence and examined Plaintiff’s
claims but ultimately found them to be without merit. In so finding, the Magistrate Judge
noted that the ALJ considered Plaintiff’s lower extremity edema throughout his decision and

1

Numerous Social Security regulations and Social Security Rulings have changed effective
March 27, 2017. However, these changes specifically state that they apply to claims filed on or
after March 27, 2017. See, e.g., 20 C.F.R. §§ 404.1513, 404.1527. Because the instant claim was
filed before March 27, 2017, all references are to the prior versions of the regulations in effect when
Plaintiff filed his application for benefits, unless otherwise specified.

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determined that, to the extent Plaintiff alleges the ALJ erred in failing to address Plaintiff’s
lower extremity edema at step two, any error was harmless based on the ALJ’s
acknowledgment of the impairment in explaining his RFC determination. With regard to
Plaintiff’s inability to afford treatment, the Magistrate Judge first noted that the ALJ
acknowledged Plaintiff’s financial limitations in his decision. The Magistrate Judge then
determined that the ALJ’s failure to specifically discuss Plaintiff’s inability to afford treatment
was harmless because the ALJ did not discount Plaintiff’s credibility solely on this factor.
Finally, the Magistrate Judge determined that the ALJ discussed in detail the evidence that
supported Plaintiff’s RFC and found no error in the ALJ’s treatment of the opinion of FNP
Gail Smith.
In her objections to the Magistrate Judge’s Report, Plaintiff first claims that “[c]entral
to [her] claim is her financial inability to obtain even minimally adequate medical treatment.”
(ECF No. 26 at 1.) She asserts: “While the Magistrate Judge states ‘that the ALJ expressly
acknowledged Plaintiff’s financial limitations in his decision,’ mere acknowledgment does
not approach the required consideration of this factor in a disability claim.” (Id. at 1.) After
review, and for the following reasons, the Court agrees with Plaintiff.
The Fourth Circuit has held that “[a] claimant may not be penalized for failing to seek
treatment she cannot afford.”2 Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986)
2

Pursuant to Social Security Ruling 16-3p:

if the frequency or extent of the treatment sought by an individual is not comparable with the
degree of the individual's subjective complaints, or if the individual fails to follow prescribed
treatment that might improve symptoms, we may find the alleged intensity and persistence
of an individual's symptoms are inconsistent with the overall evidence of record. We will not
find an individual's symptoms inconsistent with the evidence in the record on this basis
without considering possible reasons he or she may not comply with treatment or seek
treatment consistent with the degree of his or her complaints.

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(holding that the ALJ erred in determining that the plaintiff's impairment was not severe
based on her failure to seek treatment where the record reflected that she could not afford
treatment); see also Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir.1984) (“It flies in the
face of the patent purposes of the Social Security Act to deny benefits to someone because
he is too poor to obtain medical treatment that may help him”). “As a result, an ALJ should
not discount a claimant's subjective complaints on the basis of her failure to seek medical
treatment when she has asserted–and the record does not contradict–that she could not
afford such treatment.” Dozier v. Colvin, 2015 WL 4726949, *3 (D.S.C. Aug. 10, 2015)
(citing Lovejoy, 790 F.2d at 1117). In Lovejoy, the Fourth Circuit also explained:
We recognize that the Secretary did not deny benefits on the basis of
noncompliance with prescribed treatment; however, it is as erroneous to
consider the claimant's failure to seek treatment as a factor in the
determination that her impairment is not severe as it would be to reach the
ultimate conclusion that the claimant is not disabled because she failed to
follow prescribed treatment when that failure is justified by lack of funds.
790 F.2d at 1117.
Here, the Magistrate Judge is correct that the ALJ acknowledged Plaintiff’s financial
limitations by citing her testimony that she did not have insurance and visits a volunteer
clinic as well as her testimony that she could not go to a specialist because she has no
money or insurance. (See ECF No. 10-2 at 16.) However, in deciding to give little weight
to the claimant’s testimony, the ALJ also specifically stated:
There are instances in the record where the claimant reported that she was
out of her medications and not following her diet as recommended. The
claimant’s failure to take her medications as prescribed and follow
recommendations offered by her physicians suggests that her symptoms
may have not been as serious as has been alleged.

S.S.R. 16-3p.

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(ECF No. 10-2 at 16-17.) At the hearing, Plaintiff testified that she failed to take her
medication when the clinic ran out of it because she could not afford to go to the drug store
and buy it, and that instead she had to wait for the clinic to get more of it. (ECF No. 10-2
at 36.) Thus, the Court finds that in discrediting the severity of Plaintiff’s symptoms based
on her failure to take medication, the ALJ effectively penalized Plaintiff without considering
her inability to afford medication. In addition, although the ALJ did not discredit Plaintiff’s
testimony solely based on her failure to take medication, the Court does not agree with the
Magistrate Judge that the ALJ’s failure to assess Plaintiff’s financial limitations was
harmless.3 This is because the ALJ’s other reason for discrediting Plaintiff’s testimony–his
finding that her testimony was not consistent with clinical findings–also relates to Plaintiff’s
inability to afford treatment insofar as she specifically testified that her financial limitations
prevent her from getting treatment.4 Importantly, nowhere in his decision does the ALJ
make any factual findings regarding Plaintiff’s inability to obtain treatment or the resources
available to her. (See, e.g., ECF No. 10-2 at 33-34.) While it is Plaintiff’s burden to prove

3

The Court recognizes that other courts in this district have found that an ALJ’s failure to
discuss a plaintiff’s inability to afford treatment was harmless error, but in those cases the plaintiff
either did not raise inability to pay before the ALJ, Burton v. Colvin, 2016 WL 7209142, *3 (D.S.C.
Dec. 3, 2016); Caines v. Colvin, 2015 WL 5178170 (D.S.C. Sept. 3, 2015), or the plaintiff’s failure
to seek additional treatment was only one factor considered where the ALJ clearly would have
reached the same result regardless. Morton v. Colvin, 2016 WL 11201443, *18 (D.S.C. Dec. 7,
2016); King v. Colvin, 2014 WL 906795, *2 (D.S.C. March 7, 2014); Bazar v. Colvin, 2015 WL
1268012 (D.S.C. March 19, 2015). The Court finds the instant case distinguishable from these
cases because Plaintiff’s financial limitations are relevant to both of the reasons the ALJ gave for
discrediting Plaintiff’s testimony.
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The Court also notes that the ALJ’s finding that Plaintiff’s testimony was not consistent with
clinical findings is also suspect because–as Plaintiff points out in her objections–the records from
approximately half of Plaintiff’s medical visits document leg swelling or leg and foot pain, but the
ALJ’s decision does not clearly explain the weight given to these medical records or give specific
reasons for disregarding them.

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disability, it is up to the ALJ to provide “specific factual findings regarding the resources
available to [Plaintiff] and whether her failure to seek additional treatment was based upon
her alleged inability to pay.” Dozier, 2015 WL 4726949, *4. Because the ALJ did not do
this, the Court finds that remand is warranted. See also Thomas v. Colvin, 2016 WL
5109199, *10 (D.S.C. Aug. 24, 2016) (“Courts in this district have consistently found
remand necessary where the ALJ considered the claimant’s failure to seek treatment in the
disability determination despite evidence in the record of the claimant’s inability to afford
treatment.”) (citing cases); Fleming v. Astrue, C/A No. 5:11–304–DCN–KDW, 2012 WL
3686622 (D.S.C. Jul.10, 2012), adopted by 2012 WL 3679628 (D.S.C. Aug. 24, 2012)
(finding the ALJ's credibility assessment flawed and remanding the case where the ALJ
considered the plaintiff's failure to seek treatment as a factor in the disability determination,
and the record reflected that the plaintiff did not have the financial resources to obtain
treatment).
On remand, the ALJ should make factual findings regarding Plaintiff’s financial
situation and its impact on her ability to obtain medical treatment and take her medications
as prescribed.

Because the ALJ's failure to adequately address Plaintiff’s financial

limitations is a sufficient basis for remand, the Court will not address Plaintiff’s remaining
objections. However, when reviewing the case on remand, and in determining Plaintiff’s
RFC and evaluating Plaintiff’s subjective symptoms, the ALJ should specifically consider
her other arguments.
CONCLUSION
Based on the foregoing, the Court respectfully declines to adopt the Magistrate
Judge’s Report (ECF No. 24) and instead remands this action to the Commissioner
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pursuant to sentence four of 42 U.S.C. § 405(g) for further evaluation.
IT IS SO ORDERED.
/s/Bruce H. Hendricks
The Honorable Bruce H. Hendricks
United States District Judge
March 8, 2019
Charleston, South Carolina

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