Weir v. Astrue

• Decision Date: 30 May 2013
• Docket Number: CIVIL ACTION NO. 2:11-CV-03998-KOB
• Parties: DOROTHY JEWELL WEIR Plaintiff v. MICHAEL ASTRUE COMMISSIONER OF SOCIAL SECURITY Defendant
• Court: U.S. District Court — Northern District of Alabama

DOROTHY JEWELL WEIR Plaintiff

v.MICHAEL ASTRUE COMMISSIONER OF SOCIAL SECURITY Defendant

CIVIL ACTION NO. 2:11-CV-03998-KOB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE and ORDERED: May 30, 2013

MEMORANDUM OPINION

I. INTRODUCTION

On March 10, 2010, the claimant, Dorothy Jewel Weir, applied for a period of disability and disability insurance benefits under Title II, and supplemental security income under Title XVI of the Social Security Act. (R. 11). The claimant alleged disability beginning on June 6, 2009, arising from gout in both feet. (R. 129). The Commissioner denied the claims initially on May 24, 2010. (R. 11). The claimant timely filed a request for a hearing before an Administrative Law Judge, and the ALJ held the hearing on June 16, 2011. (R. 25). In an opinion dated July 19, 2011, the ALJ found that the claimant was not disabled under sections 216(i) and 223(d) of the Social Security Act, and, therefore, was ineligible for both a period of disability and disability insurance benefits, as well as supplemental income. (R. 22). The Appeals Council subsequently denied the claimant's request forreview on September 23, 2011, and the ALJ's decision became the final decision of the Commissioner of the Social Security Administration. (R. 1). As the claimant has exhausted her administrative remedies, this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, this court affirms the decision of the Commissioner.

II. ISSUES PRESENTED

The court has before it the following issues for review:

(1) whether the ALJ and the Appeals Council properly considered Dr. Guy Dewees's medical opinion obtained by counsel after the hearing;

(2) whether the ALJ properly considered all of the claimant's impairments in combination with each other in determining whether the claimant was disabled;

(3) whether the ALJ properly applied the Eleventh Circuit's three-part pain standard, and thus, properly discredited the claimant's subjective testimony of pain and tingling in her feet; and

(4) whether the ALJ committed reversible error in considering the claimant's noncompliance with her treating physician's plan of care in light of the claimant's financial hardship.

III. STANDARD OF REVIEW

The standard for reviewing the Commissioner's decision is limited. This court must affirm the Commissioner's decision if the Commissioner applied the correct legal standards and if the factual conclusions are supported by substantial evidence. See 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

"No . . . presumption of validity attaches to the [Commissioner's] legal conclusions, including determination of the proper standards to be applied in evaluating claims." Walker, 826 F.2d at 999. But this court does not review the Commissioner's factual determinations de novo. The court will affirm those factual determinations that are supported by substantial evidence. "Substantial evidence" is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971).

This court must "scrutinize the record in its entirety to determine the reasonableness of the [Commissioner's] factual findings." Walker, 826 F.2d at 999. A reviewing court must look not only to those parts of the record that support the decision of the ALJ, but also must view the record in its entirety and take into account evidence that detracts from the evidence on which the ALJ relied. Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986).

IV. LEGAL STANDARD

Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the person cannot "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 last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). To make this determination, the Commissioner employs a five-step, sequential evaluation process:

(1) Is the claimant presently unemployed?

(2) Is the claimant's impairment severe?

(3) Does the claimant's impairment meet or equal one of the specific impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?

(4) Is the claimant unable to perform his or her former occupation?

(5) Is the claimant unable to perform any other work within the national economy?

An affirmative answer to any of the above questions leads either to the next question, or, on steps three and five, to a finding of disability. A negative answer to any question, other than step three, leads to a determination of "not disabled."

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986); 20 C.F.R. §§ 404.1520, 416.920.

A hearing before an ALJ is not an adversarial proceeding; thus, the ALJ has a duty to develop a full and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); Graham, 129 F.3d at 1422. This duty requires the ALJ "to scrupulously and conscientiously probe into, inquire of, and explore for all relevant facts." Welch v. Bowen, 854 F.2d 436, 440 (11th Cir. 1988). The claimantin a proceeding may submit evidence without restriction until the ALJ renders his decision. 42 U.S.C. § 402(j)(2). New and material evidence may be presented to the Appeals Council, and the Council must consider such evidence in determining whether to review the ALJ's decision. 20 C.F.R. §§ 404.967, 404.970(b); Falge v. Apfel, 150 F.3d 1320, 1322-24 (11th Cir. 1998). New evidence is material if a reasonable possibility exists that the new evidence would change the administrative result. Id. at 1323.

Where a claimant alleges multiple impairments, the Commissioner must consider the combined effect of all impairments in determining disability, not merely the individual effects of the several impairments. Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990); Walker, 826 F.2d at 1001; 20 C.F.R. § 416.923. Even where an individual impairment would not render the claimant disabled, the combination of the claimant's impairments may establish disability. Caulder v. Bowen, 791 F.2d 872, 880 (11th Cir. 1986).

When evaluating subjective complaints such as pain, the Commissioner must apply the Eleventh Circuit's three-part pain standard. The Commissioner must determine whether

(1) there is evidence of an underlying medical condition; and either

(2) objective medical evidence confirming the severity of the alleged pain arising from that condition, or

(3) that the objectively determined medical condition is of such a severity that it can reasonably be expected to cause the alleged pain.

Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995); Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991); Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir. 1986).

Further, in evaluating subjective claims including pain, the Commissioner may consider the claimant's ability to perform certain activities of daily living (ADLs), as well as the impact of such activities on the claimant's credibility. 20 C.F.R. §§ 404.1529(c)(3)(I), 416.929(c)(3)(I); see alsoMacia v. Bowen, 829 F.2d 1009, 1012 (11th Cir. 1987) (finding that ADLs may be relevant to the fourth step of the sequential process).

Finally, refusal by a claimant to follow prescribed medical treatment without good cause will preclude a finding of disability. 20 C.F.R. § 404.1530(b). However, poverty may excuse failure to follow prescribed medical treatment. Ellison, 355 F.3d at 1275. If the ALJ relies solely on a claimant's noncompliance as grounds to deny disability benefits, and the record indicates that the claimant could not afford prescribed medical treatment, the ALJ must make a determination regarding the claimant's ability to afford treatment. Id. If the ALJ does not substantially or solely base his finding of nondisability on the claimant's noncompliance, though, the ALJ does not commit reversible error by failing to consider the claimant's financial situation. Id.

V. FACTS

The claimant was fifty-three years old at the time of the administrative hearing and has completed the twelfth grade. (R. 114, 130). The claimant has past work experience as a laundry worker. (R. 40). The claimant alleged that she was disabled by gout beginning on June 6, 2009. (R. 114, 129).

Physical Limitations

On August 27, 2007, the claimant visited her primary care physician, Dr. Xuan-Dao Thi Pham, complaining of a pruritic rash on her hands (later diagnosed as edematous dermatitis on January 25, 2008, see discussion infra). (R. 297). Dr. Pham described the condition as dermatitis, and prescribed a hydrocortisone topical cream. In addition, Dr. Pham noted hypertension, hyperlipidemia, and obesity as current problems. (R. 300).

On January 14, 2008, the claimant visited Dr. Pham complaining of pain and swelling in herright ankle. The claimant told Dr. Pham that her ankle had been hurting for approximately one week, and that she had experienced similar symptoms the previous year. (R. 286). Dr. Pham diagnosed the claimant with gout and anemia, in addition to her systemic hypertension, hyperlipidemia, and obesity (all diagnosed in 2003). Dr. Pham prescribed ferrous sulfate, Indocin (for gout), Prinivil, hydrocholorothiazide, and Crestor. (R. 289).

On January 25, 2008, the claimant again visited Dr. Pham, complaining that she had been itching all over for three days, and had a rash on her right fingers. (R. 280). Dr. Pham diagnosed the claimant with atopic eczematous dermatitis, and prescribed a topical steroid and generic Benadryl to treat the itching. (R. 283).

On February 25, 2008, the claimant returned to Dr. Pham for a followup visit where she stated that she was doing well and complained of no new symptoms. (R. 273) Dr. Pham noted that the atopic eczematous dermatitis had improved and renewed the prescription for the topical steroid and the...