Opinion
C/A No. 2:17-cv-1831-MGL-MGB
07-31-2018
ERIC WAYNE WOODARD, Plaintiff, v. NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
The Plaintiff, Eric Wayne Woodard, pro se, brought this action to obtain judicial review of an unfavorable final administrative decision denying benefits on his May 31, 2012 application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"). This matter was referred to the United States Magistrate Judge for a Report and Recommendation pursuant to Local Rule 73.02(B)(2)(a), D.S.C., and Title 28, United States Code, Section 636(b)(1)(B). Having carefully considered the record, including the parties' briefs, the administrative record and the applicable authority, for the reasons stated herein, the undersigned recommends that the Commissioner's decision be affirmed.
Procedural History and ALJ's Findings
The Plaintiff was born on May 23, 1972, and was 35 years old on the alleged onset of disability date, May 14, 2008, and 39 years old at the start of the relevant period. (R. 172.) The Plaintiff filed SSI on May 31, 2012, due to depression and schizophrenia. (R. 170-77.) The Plaintiff's claim was initially denied and denied on reconsideration. (R. 52-78.) The Plaintiff requested a hearing, which was held on February 11, 2016. (R. 34.) The Plaintiff did not attend the hearing because he did not have a ride but was represented by counsel. (R. 36.) A vocational expert ("VE") testified at the hearing, and the Plaintiff's counsel presented some arguments. The Administrative Law Judge ("ALJ") issued a Decision denying SSI on March 31, 2016, and it is now the Commissioner's final decision for purposes of judicial review. (R. 10-21.) The Plaintiff filed an appeal to the Appeals Council, which denied review. (R. 1-6.)
See e.g. 20 C.F.R. § 416.202 (2016) (explaining that a claimant is not eligible for SSI until, among other factors, the date he files an application for SSI benefits); 20 C.F.R. § 416.501 (stating that a claimant may not be paid SSI for any period that precedes the first month he satisfies the eligibility requirements, which cannot predate the date on which an application was filed); Torres v. Chater, 125 F.3d 166, 171 n.1 (3d Cir. 1997) (noting that SSI is not payable for any period prior to the filing of an application).
The Plaintiff was represented by an attorney in his hearing before the ALJ. His attorney conceded at the hearing that there was not medical evidence to support a diagnosis of schizophrenia. (R. 38.)
In making the determination that the Plaintiff was not entitled to benefits, the Commissioner adopted the following findings of the ALJ's Decision:
(1) The claimant has not engaged in substantial gainful activity since May 17, 2012, the application date (20 CFR 416.971 et seq.).
(2) The claimant has the following severe impairments: depression and obesity. (20 CFR 416.920(c)).
(3) The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
(4) After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) in that he can lift and/or carry and push and/or pull 50 pounds occasionally and 25 pounds frequently and sit, stand, and/or walk each about 6 hours in an 8-hour workday. The claimant is limited to performing simple, routine, repetitive tasks; making simple work related decisions. He can respond appropriately to supervisors frequently and to co-workers occasionally. He cannot respond appropriately to the public. He can occasionally tolerate a few changes in a routine work setting.
(5) The claimant has no vocationally relevant past work (20 CFR 416.965).
(6) The claimant was born on May 23, 1972 and was 39 years old, which is defined as an individual closely approaching advanced age, on the date the application was filed (20 CFR 416.963).(R. 10-20.)
(7) The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
(8) Transferability of job skills is not material to the determination of disability because using the Medical Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(9) Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
(10) The claimant has not been under a disability, as defined in the Social Security Act, since May 17, 2012, the date the application was filed (20 CFR 416.920(g)).
Applicable Law
The Act provides that SSI disability benefits shall be available for aged, blind, or disabled persons who have income and resources below a specific amount. 42 U.S.C. § 1381 et. seq.; 20 C.F.R. § 416.110. "Disability" is defined in the Act 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 last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A).
To facilitate a uniform and efficient processing of disability claims, the Act has by regulation reduced the statutory definition of "disability" to a series of five sequential questions. An examiner must consider whether the claimant (1) is engaged in substantial gainful activity; (2) has a severe impairment; (3) has an impairment which equals an illness contained in the Administration's official Listing of Impairments found at 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) has an impairment which prevents past relevant work; and (5) has an impairment which prevents him from doing substantial gainful employment. See 20 C.F.R. § 416.920; see also Brown v. Comm'r, 873 F.3d 251, 254-55 (4th Cir. 2017). If an individual is found not disabled at any step, further inquiry is unnecessary. See 20 C.F.R. § 416.920; see also Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The plaintiff "bears the burden of production and proof during the first four steps of the inquiry." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995). If the plaintiff "is able to carry this burden through the fourth step, the burden shifts to the Secretary in the fifth step to show that other work is available in the national economy which the claimant could perform." Id. at 1203.
The scope of judicial review by the federal courts in disability cases is "limited to determining whether the findings of the Secretary are supported by substantial evidence and whether the correct law was applied." Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see also Richardson v. Perales, 402 U.S. 389 (1971). Consequently, the Act precludes a de novo review of the evidence and requires the court to uphold the Commissioner's decision as long as it is supported by substantial evidence. Pyles v. Bowen, 849 F.2d 846, 848 (4th Cir. 1988) (citing 42 U.S.C. § 405(g); Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986)). The phrase "substantial evidence" is defined as:
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Substantial evidence consists of more than a mere scintilla of evidence but may be less than a preponderance.Smith v. Chater, 99 F.3d 635, 637-38 (4th Cir. 1996) (internal quotation marks and citations omitted).
Thus, it is the duty of this court to give careful scrutiny to the whole record to assure that there is a sound foundation for the Commissioner's findings, and that his conclusion is rational. Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964). If there is substantial evidence to support the decision of the Commissioner, that decision must be affirmed. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
Discussion
The Plaintiff has filed two documents supporting his appeal to this court. On January 31, 2018, the Plaintiff filed a two-page letter ("January Letter"). (Dkt. No. 23.) In the January Letter, the Plaintiff stated he needs his disability approved to pay for his medications although he states that no medications work for him. The Plaintiff stated he had been diagnosed with schizophrenia, bipolar, obsessive compulsive disorder, antisocial personality disorder, and anxiety disorder. The Plaintiff listed the medications he needs. The Plaintiff stated that he does not trust anyone, does not go shopping, believes everyone is out to hurt him, and does not like being around people. The Plaintiff stated that he saw a news report that ALJs are being paid to turn down disability applicants. The Plaintiff stated that he had hallucinations and sometimes blacked out.
On April 3, 2018, the Plaintiff filed a second two-page letter ("April Letter"). (Dkt. No. 26.) The April Letter is substantively similar to the January Letter. The Plaintiff lists his diagnoses and reviews his limitations of daily living and distrust of people. In addition to the statements made in the January Letter, the Plaintiff wrote in the April Letter that his mental health issues are not curable no matter what medications he takes. The Plaintiff additionally stated that he felt he was being discriminated against and was going to take his case to the news.
The Plaintiff's medical records largely consist of his records from hospitalizations for suicidal ideations once in 2012 (R. 281-313), once in 2013 (R. 326-57.), and once in 2015 (R. 394-429.). Additionally, the Plaintiff was taken by law enforcement to a crisis center in California on August 13, 2013 with suicidal ideations but was not hospitalized. (R. 461-99.)
The undersigned has reviewed the ALJ's Decision and the record in this case. The undersigned finds that the ALJ properly followed the sequential process and the Decision was supported by substantial evidence. The ALJ found that the Plaintiff had two severe impairments: depression and obesity. (R. 12.) The ALJ considered the Plaintiff's other non-severe impairments including nightmares and flashbacks, psoriasis, hypertension, bronchitis, dental pain, left knee pain, headaches, and hand numbness. (R. 12-13.) The ALJ concluded that these impairments were sufficiently treated with medications, did not significantly impair his function, or were not established by the record. (Id.) The ALJ explicitly considered and made specific findings as to Plaintiff's Paragraph B criteria as required by 20 C.F.R. § 416.920a(c)(3). (R. 13-14.) The ALJ properly assessed the Plaintiff's residual functional capacity ("RFC") in accordance with 20 C.F.R. §§416.920 & 416.945. (R. 14-18.) The ALJ thoroughly considered the record. The ALJ specifically considered and assigned weights to the opinions of the state agency examiner, James Way, Ph.D, and the non-examining medical and psychological consultants, Leslie Burke Ph.D, and Ellen Humphries M.D. in accordance with 20 C.F.R. § 416.927. The ALJ relied on the testimony of the VE to find that substantial jobs existed in the national economy that the Plaintiff could perform, specifically a laundry worker, a dishwasher, and an industrial cleaner. (R. 19.)
The ALJ gave the following weights to the opinions of the non-examining consultants:
The undersigned gives partial weight to the opinion of Leslie Burke, Ph.D., as it is not consistent with the record as a whole (Exhibit 3 A). The undersigned gives great weight to the opinion of Ellen Humphries, M.D., as it is consistent with the record when considered in its entirety and is well supported with documented evidence (Exhibit 3 A). However, the consultants did not give adequate consideration to the claimant's obesity.(R. 18.) The ALJ gave the following weight to the opinion of the examining consultants:
The undersigned gives partial weight to the opinion of consultative examiner, James Way, Ph.D., as it is highly influenced by the claimant's subjective complaints (Exhibit 4F). His assessment is not internally consistent in that testing demonstrated the claimant had only mild cognitive impairment, yet Dr. Way indicated the claimant was unable to function adequately. He also determined that the claimant had adequate intellectual skills to perform basic self-care tasks, complete various instrumental activities of daily living, avoid common physical dangers, understand the spoken word and follow the flow of conversation, and learn simple, repetitive, unskilled occupational tasks. The undersigned largely adopts Dr. Way's latter opinion that the claimant can perform simple, routine, repetitive tasks and regarding his adaptability to change and limits on interaction.(R. 18.)
The Plaintiff's letters repeat his diagnoses and symptoms that were considered by the ALJ in his Decision. To extent the Plaintiff is seeking to have the court reweigh the evidence in the record, his request is beyond the scope of review in a social security case. The ALJ, not the court, has the responsibility to determine the weight of evidence and resolve conflicts of evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) "'In reviewing for substantial evidence, we do not undertake to reweigh conflicting evidence, make credibility determinations, or substitute our judgment for that of the [ALJ].'" Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir.1996)). "[E]ven if the court disagrees with the [ALJ]'s decision, the court must uphold it if it is supported by substantial evidence." Barton v. Berryhill, No. 0:16-cv-1983-PJG, 2017 WL 3327649, at *2 (D.S.C. Aug. 3, 2017) (citing Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972)).
The ALJ's Decision relies, in part, on the Plaintiff's noncompliance with treatments and prescribed medication, which appeared to be effective at treating the Plaintiff. (R. 13, 15-18.) The record supports the ALJ's conclusion as numerous medical records noted that the Plaintiff was non-compliant with taking his medications. (R. 199, 284, 369, 477, 419.) On November 26, 2013, and March 7, 2014, the Plaintiff reported that he had not recently received any treatment or taken any medication relating to any of his impairments. (R. 240, 245.) The Plaintiff reported during and admission to the hospital for suicidal ideations on December 2, 2015, that he had been "noncompliant with his psychotropic medications for approximately 2 years..." despite finding them to be effective. (R. 419.) There is no evidence that the Plaintiff sought any regular treatment for his mental illness, but rather sought treatment only when he would become suicidal. The Plaintiff never asserted to the ALJ that he could not afford medication or treatment. The Plaintiff did not testify at his hearing. In his written questionnaires, the Plaintiff never mentioned the lack of funds for being a reason he did not take his medications. (R. 205-237.) However, the Plaintiff did indicate that he was not on any medications. (R. 207.)
The records reflect that the Plaintiff was placed back on his medications, "which he seemed to tolerate without any particular side effects." (R. 419.)
To extent Plaintiff argues he was non-compliant with treatment because he could not afford it, there is no indication that his inability to pay was ever raised before the ALJ. An individual's medical treatment history is one of the factors that an ALJ may consider in assessing his credibility. SSR 96-7p. However, "the adjudicator must not draw any inferences about an individual's symptoms and their functional effects from a failure to seek or pursue regular medical treatment without first considering any explanations that the individual may provide, or other information that may explain infrequent or irregular medical visits or failure to seek medical treatment." SSR 96-7; see also 20 C.F.R. § 416.930. Fourth Circuit precedent directs that ALJs may not deny benefits to claimants who lack the financial resources to obtain treatment. See Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir.1986) (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); 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"). When a claimant alleges an inability to afford treatment and an ALJ considers the failure to obtain treatment as a factor that lessens the claimant's credibility, the ALJ must make specific findings regarding the claimant's ability to afford treatment. See Dozier v. Colvin, No. 1:14-cv-29-DCN, 2015 WL 4726949, at *4 (D.S.C. Aug. 10, 2015) (remanding the case because the ALJ did not include specific factual findings regarding the resources available to the plaintiff and whether "her failure to seek additional medical treatment was based upon her alleged inability to pay").
There is no indication in the record that the Plaintiff ever raised an inability to pay for treatments to the ALJ. The Plaintiff in the case at bar indicated in his disability questionnaires that he did not take any medications. (R. 207, 217.) The Plaintiff's attorney acknowledged before the ALJ that the Plaintiff did not seek regular treatment for his mental health, but provided no reason or explanation for the lack of treatment. (R. 39.) There is some evidence in the record that the Plaintiff neglected to take his medication even when he had it in his possession. The Plaintiff was admitted to the Telecare High Desert Crises Walk-In Center in Victorville, California on August 13, 2013. (R. 461.) Upon admission, it was noted that the Plaintiff had a purple bag with medications from when he had been previously discharged from a facility in Texas in June of 2013, but the Plaintiff stated he was not taking any medications. (R. 474, 477.) There is also evidence in the record of malingering. His medical records from a mental hospitalization from December of 2015 contained the following notations: "I suspect that the pt may be manufacturing reasons to stay on the unit longer to take advantage of being prescribed opioids." (R. 399.) There is evidence that the Plaintiff was skeptical of taking medications as well. (R. 284.)
The court is sympathetic to the Plaintiff. Certainly, the record reflects a history of generally untreated mental illness and an unstable living situation. However, the ALJ considered the record, which lacks any records of regular treatment and generally showed improvement when the Plaintiff took medications. The lack of any regular treatment records and the Plaintiff's lack of compliance with treatment leave the Plaintiff with thin evidence to attempt to prove disability. The undersigned concludes that the ALJ's decision is supported by substantial evidence.
The record contains medical records from Texas, California, South Carolina, and Ohio (R. 277, 321, 430, 460.)
Conclusion
Wherefore, based upon the foregoing, the court recommends that the Commissioner's decision be AFFIRMED.
IT IS SO RECOMMENDED. July 31, 2018 Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district 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.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).