MARK A. PIZZO, District Judge.
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff seeks review of the Commissioner's decision denying her claims for a period of disability, Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI").
Plaintiff, who was fifty years old at the time of her administrative hearing on January 29, 2009, has past work experience as a housekeeper. She quit highschool in the eleventh grade and never received her GED. Plaintiff filed for a period of disability, DIB, and SSI on July 26, 2006, alleging a disability onset date of January 1, 2006, as to period of disability and DIB and March 1, 2005, as to SSI, due to rheumatoid arthritis ("RA"), congestive heart failure ("CHF"), mediastinal lymphadenopathy, and degenerative diskspace at C5-C6 and C6-C7.
The ALJ found Plaintiff suffered from the following severe impairments: RA, degenerative changes of the cervical spine, CHF, and mediastinal lymphadenopathy (R. 27). While the ALJ did find that the Plaintiff meets the insured status requirements of the Social Security Act ("SSA") through December 31, 2012, the ALJ found Plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed requirements in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R.26-27). Furthermore, upon consideration of the entire record, the ALJ determined that Plaintiff has a RFC to perform the full range of light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b).
To be entitled to disability insurance benefits a claimant must be unable to engage in any substantial gainful activity by reason of a 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. § 423(d)(1)(A). A "physical or mental impairment" is an impairment that results from anatomical, physiological, or psychological abnormalities, which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3).
The Social Security Administration, in order to regularize the adjudicative process, promulgated the detailed regulations that are currently in effect. These regulations establish a "sequential evaluation process" to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential review, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this process, the ALJ must determine, in sequence, the following: whether the claimant is currently engaged in substantial gainful activity; whether the claimant has a severe impairment, i.e., one that significantly limits the ability to perform work-related functions; whether the severe impairment meets or equals the medical criteria of Appendix 1, 20 C.F.R. Subpart P; and whether the claimant can perform his or her past relevant work. If the claimant cannot perform the tasks required of his or her prior work, step five of the evaluation requires the ALJ to decide if the claimant can do other work in the national economy in view of his or her age, education, and work experience. A claimant is entitled to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. §§ 404.1520(f), 416.920(f).
In reviewing the ALJ's findings, this Court must ask if substantial evidence supports those findings. Richardson v. Perales, 402 U.S. 389, 390 (1971). The ALJ's factual findings are conclusive if "substantial evidence" consisting of "relevant evidence as a reasonable person would accept as adequate to support a conclusion" exists. 42 U.S.C. § 405(g); Keeton v. Dep't of Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994). The court may not reweigh the evidence or substitute its own judgment for that of the ALJ even if it finds that the evidence preponderates against the ALJ's decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). Further, the Commissioner's failure to apply the correct law, or to give the reviewing court sufficient reasoning for determining that he has conducted the proper legal analysis, mandates reversal. Keeton, 21 F.3d at 1066; Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987) (remanding for clarification).
Plaintiff contends that the ALJ erred by failing to consider the reasons why she failed to follow her physician's prescribed treatment. She claims she could not afford her medications for RA. Defendant counters that her allegations of financial difficulty do not excuse noncompliance. I disagree.
The regulations do state that a claimant's refusal to follow or noncompliance with a course of treatment, without good cause, precludes a finding of disability. Good cause for a claimant's noncompliance may exist in the following situations: the prescribed treatment contravenes religious beliefs, treatment is too risky, treatment involves surgery where prior surgery proved unsuccessful, treatment involves amputation of an extremity, or treatment involves cataract surgery to an eye where the other eye's vision is severely impaired. 20 C.F.R. § 416.930(b). Additionally, the Eleventh Circuit has recognized an additional exception where the plaintiff cannot afford treatment or can find no way of obtaining it. Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (citing Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986)). If one's disability can be cured by treatment or compliance, yet such treatment is not financially available, the condition is disabling in fact and continues to be disabling in law. See Dawkins at 1213.
A distinguishing fact between Dawkins and the instant case is that the claimant in Dawkins testified at the administrative hearing that the reason for failing to take her medication was because she could not afford it. The Plaintiff here testified at the administrative hearing that she did not have insurance during certain periods of time; however, the ALJ failed to further question Plaintiff as to her financial situation or to elicit any potential good cause reason for her noncompliance. The ALJ's support for denial of Plaintiff's claim is set forth below.
In reaching a decision that Plaintiff is not disabled, the ALJ found Plaintiff to be "not entirely credible" in light of the treating physicians' reports, findings made upon examination, and the degree of treatment required (R. 32). The ALJ notes that no examining or treating physician assessed claimant with limitations to walk only fifty to sixty feet or to sit longer than five minutes, as Plaintiff advances as true. Id. In addition to no treating or examining physician assessing Plaintiff with these limitations, the ALJ notes that no physician assessed these limitations as resulting in Plaintiff being disabled for twelve months as statutorily required for a finding of disability.
In support of his finding of noncompliance, the ALJ cites a May 2, 2005, visit with rheumatologist Dr. Torres. During this visit, Plaintiff reported that she had run out of Prednisone a week prior to the visit and that she also did not have any Humira.
The ALJ also refers to a March 17, 2006, visit when Plaintiff was treated at the Bayfront Medical Center Emergency Room for shortness of breath and left the emergency room against medical advisement(R. 32). However, in a August 20, 2005, preliminary report following an August 19, 2005, admittance to Bayfront Medical Center, Dr. Cherukuri notes that Plaintiff has been off Humira for three months because Plaintiff ran out of Medicaid (R. 220). In notes dated July 7, 2005, by the St. Petersburg Arthritis Center, it is indicated that Plaintiff's insurance with Amerigroup was terminated on May 31, 2005 (R. 567). Subsequent notations indicate that she did not keep appointments for October 26, 2005, November 1, 2005, February 17, 2006, and June 22, 2006 (R. 367). As these notations establish, the record is replete with evidence that Plaintiff was without medical insurance for periods of time. Several of her physicians made notations that she was not on RA medication because it was not covered by her insurance. In addition, the March 17, 2006, hospitalization was for shortness of breath, not RA. The ALJ had an obligation to inquire as to why the Plaintiff failed to comply with medical treatment as the record would suggest the reason is she was without medical coverage. While the ALF affirmed at the hearing that the Plaintiff did not have insurance coverage, he did not question her further as to why.
Lastly, the ALJ notes that earning records for 2006 and 2007 reflect the Plaintiff worked and she testified that she worked during 2008. However, she also testified that she could only clean for a few minutes without a break (R. 38), could only work a total of five to six hours because it was all that she could handle (R.39-40), was in and out of work due to RA flare-ups (R.40), and she was dropping things due to a lack of grip in her hands (R. 42-43). Furthermore, the ALJ found that the Plaintiff had not engaged in substantial gainful activity since March 1, 2005 (R.26).
While the ALJ sets forth multiple grounds for his decision in theory, in actuality, the ALJ's opinion relied primarily on Plaintiff's noncompliance, a finding that is not supported by substantial evidence. The colloquy between the ALJ and the Plaintiff at the administrative hearing was as follows:
(R. 45). The ALJ did not ask any additional questions pertaining to why Plaintiff did not have insurance or if she failed to comply with prescribed medical treatment because she could not afford treatment. Plaintiff's record indicates sporadic compliance and the ALJ should have more fully inquired into the cause of Plaintiff's noncompliance.
It is well-established that the ALJ has a basic duty to develop a full and fair record. "Because a hearing before an ALJ is not an adversary proceeding, the ALJ has a basic obligation to develop a full and fair record." Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir.1981). Furthermore, Social Security Ruling ("SSR") 82-59 provides that if a claimant fails to follow prescribed medical treatment and such treatment is expected to restore the ability to engage in substantial gainful activity, before a disability determination is made the claimant must be given notice of the issue and an opportunity to show justifiable cause for not following the treatment. SSR 96-7 precludes an ALJ's credibility assessment to be based on a failure to follow a treatment plan where the claimant has a good reason for the failure or infrequency of treatment. Poverty is such a reason. Under SSR 96-7p, an ALJ should consider whether a claimant has access to free treatment. According to the applicable law and regulations, it is clear that Plaintiff was prejudiced by the ALJ's failure to more fully develop the record as to why she failed to comply with medical treatment, as noncompliance due to poverty is a recognized exception, and it is this exception that Plaintiff raises on appeal. See also, Zeigler v. Barnhart, 310 F.Supp.2d 1221, 1225-26 (M.D. Fla. 2004) (reversing ALJ's credibility finding based on noncompliance because finding was on "shaky ground.").
After considering all the evidence, I conclude that the ALJ's ruling is not based upon substantial evidence. The record is not sufficiently developed to support a finding that noncompliance, without further inquiry, warrants dismissal of Plaintiff's claim.
For the reasons stated, it is hereby
IT IS SO REPORTED.
