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Grammer v. Berryhill

United States District Court, N.D. Alabama, Southern Division

February 21, 2019

LARRY WADE GRAMMER Claimant,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Respondent.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On May 13, 2014, at the age of 19, the claimant, Larry Wade Grammer, protectively applied for child's insurance benefits and supplemental security income based on disability. (R.76, 88). In both applications, the claimant alleged disability commencing on May 9, 2007 (at the age of 12), because of migraines, epilepsy, and bipolar disorder. (R. 34). The Commissioner denied the initially on July 17, 2014. The claimant then filed a timely request for a hearing before an Administrative Law Judge, and the ALJ held a hearing on October 3, 2016. (R. 32).

         In a decision dated February 7, 2017, the ALJ found that the claimant was not disabled as defined by the Social Security Act, and, was, therefore ineligible for social security benefits. (R. 25). On October 4, 2017, the Appeals Council denied the claimant's request for review. (R. 1). Consequently, the ALJ decision became the final decision of the Commissioner of the Social Security Administration. The claimant has exhausted his administrative remedies, and this court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, this Court reverses and remands the decision of the Commissioner to the ALJ for reconsideration.

         II. ISSUES PRESENTED

         Whether the ALJ properly considered indigent circumstances as an excuse for failure to follow prescribed medical treatment.[1]

         III. STANDARD OF REVIEW

         The standard for reviewing the Commissioner's decision is limited. This court must affirm the ALJ's decision if he applied the correct legal standards and if substantial evidence supports his factual conclusions. See 42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997); Walker v. Bowen, 826 F.2d 996, 999 (11th Cir.1987).

         “No . . . presumption of validity attaches to the [ALJ's] legal conclusions, including determination of the proper standards to be applied in evaluating claims.” Walker, 826 F.2d at 999. This court does not review the ALJ'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, 402 (1971).

         The court must keep in mind that opinions such as whether a claimant is disabled, the nature and extent of a claimant's residual functional capacity, and the application of vocational factors “are not medical opinions, . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability.” 20 C.F.R. §§ 404.1527(d), 416.927(d). Whether the claimant meets a Listing and is qualified for Social Security disability benefits is a question reserved for the ALJ, and the court “may not decide facts anew, reweigh the evidence, or substitute [its] judgment for that of the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Thus, even if the court were to disagree with the ALJ about the significance of certain facts, the court has no power to reverse that finding as long as substantial evidence in the record supports it.

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

         IV. LEGAL STANDARD

         A claimant's refusal 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 v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003). When the ALJ does not significantly rely on the claimant's noncompliance, the ALJ's failure to consider evidence regarding the claimant's inability to afford his prescribed treatment does not constitute reversible error. Id.; Bellew v. Acting Comm'r of Social Sec., 605 Fed.Appx. 917, 921 (11th Cir. 2015). But when the ALJ significantly relies 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. Ellison, 355 F.3d at 1275.

         V. FACTS

         The claimant alleges an onset date of May 9, 2007 at the age of twelve years old. (R. 76, 88). The claimant stated that his seizures began as a child after he was struck in the head with a rock. (R. 447). The claimant applied for CIB and SSSI benefits at the age of nineteen, and he was twenty-two years old at the time of the ALJ's final decision in 2017 in 2017. (R. 34). The claimant has a seventh grade education and no past relevant work (R. 39-41, 17, 42). The claimant alleges disability based on epilepsy, migraine headaches, and bipolar disorder. (R. 34).

         Impairments

         On November 22, 2013, the claimant visited Dr. Jan Mathisen at the Alabama Department of Rehabilitation Services: Children's Rehabilitation Center (“the Rehabilitation Center”). Dr. Mathisen noted that the claimant was having a seizure approximately every 4-6 weeks; these seizures were “not significantly severe at this point, ” but that the claimant was not driving because of his “ongoing events”; and the claimant's family was concerned that he had been staying up late and sleeping throughout the day. At the time of this visit, the claimant was taking Zonisamide at 100mg, 4 at bedtime; Depakote 500 mg, 3 at bedtime; Lamotrigine 100 mg at bedtime; and Diastat 10mg for breakthrough seizures. Dr. Mathisen continued these medications but increased the Lamotrigine to 50mg in the morning and 100mg at night for two weeks and prescribed 100mg of Trazodone to help regulate the claimant's sleep pattern. Aside from these issues and adjustments, Dr. Mathisen recorded the claimant's general health as “quite good.” (R. 290).

         On Sunday, April 20, 2014, the claimant suffered a seizure that lasted for 3-4 minutes, but he did not visit a doctor. However, the claimant informed Dr. Mathisen about the recent seizure during the claimant's appointment on April 25, 2014. Additionally, during this appointment, Dr. Mathisen noted that the claimant continued to have breakthrough seizures, and as a result was unable to find a job. Dr. Mathisen also stated that the claimant was not compliant with his medications and that some of the seizures were because of the claimant's non-compliance; however, Dr. Mathisen also stated that the claimant had a history of chronic epilepsy and that the claimant's seizures persisted even when the claimant was compliant with his medication. Finally, Dr. Mathisen noted that the claimant was still having issues sleeping and prescribed 100mg of Trazodone. (R. 289).

         Less than a month later, on May 6, 2014, the claimant visited Dr. Diana Paulk at Garrett Counseling & Consulting (“GCC”) complaining of recent suicidal thoughts. The claimant stated that he was depressed and angry. The claimant stated that he attempted suicide on two occasions. The claimant explained that he once attempted to shoot himself, but the gun did not fire; the second time, the claimant planned to hang himself but “got tired of thinking about it.” The claimant also stated that he drank sometimes and would smoke more if he could afford the habit. Dr. Paulk discussed the impact that alcohol can have on depression and compiled a list detailing the claimant's problems, which included abandonment, anger, depression, disability, employment, impulsivity, legal problems, memory loss, mood swings, relationships, and self-esteem. Finally, the claimant told his therapist that he would like to find employment, and that he had attempted to use the Opportunity Center Program with little luck. (R. 354-356).

         Shortly after the claimant's first counseling session, he visited the Jackson Medical Center on May 15, 2014 with a chief complaint of seizures. The record indicates that the claimant was unconsciousness, confused upon waking up, and shaking all over. The claimant also suffered an injury from biting his tongue during the seizure. Jacksonville Medical Center treated with Tylenol and Depakote and discharged the claimant. (R. 294-296).

         After recovering from the previous seizure, the claimant had his second session at GCC on May 22, 2014. The claimant appeared neat and showed no signs of hostility or anger during the session. The claimant stated that he completed his homework from the last session, and that he had used some of the suggested methods to calm himself down when necessary. The counselor and claimant scheduled the claimant's next appointment for May 28, 2014. (R. 352).

         The claimant did not attend his appointment scheduled for May 28th. As a result, on June 4, 2014, Ms. Nicole Burgess, an intern from GCC spoke with the claimant's grandmother about the claimant's missed appointment. Additionally, the grandmother asked questions about the claimant's insurance payment and stated that she would make sure that the claimant attended his next appointment on June 9, 2014. (R. 349).

         On June 6, 2014, the claimant spoke with someone[2] at GCC about the cost of the sessions. That individual at GCC told the claimant about other counseling agencies that have sliding scale payment options; stated that it would continue to offer services to the claimant through its intern, Ms. Burgess; encouraged the claimant to follow up with the local mental health clinic to learn about income based services; and stated that its counselors would help the claimant transition when necessary. (R. 348).

         As planned, the claimant met with Ms. Burgess on June 9, 2014.[3] During the appointment, the claimant stated that he was sad because Father's Day was approaching and he would not be able to see his son. The claimant also stated that he did not have any anger issues over the previous week. Outside of these two disclosures, the claimant was unwilling to participate and continuously stated that he did not feel like talking. Finally, the session notes indicate that the claimant had lost his health insurance, but that GCC would continue to provide free services until the claimant got an appointment with a free local clinic. (R. 347).

         The claimant returned to GCC for another session with Ms. Burgess on June 19, 2014. Ms. Burgess noted that the claimant appeared well-groomed and neat. She also noted that the claimant appeared shy as he stared at the floor and fidgeted his hands during the session. The claimant stated that his visit with his father on Father's Day went well; that he had no anger issues since the last session; but that he did not make attempts to get to ...


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