Howard v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

TAMMY HOWARD, )

)

Plaintiff, )

)

vs. ) Case No. 2:22-cv-00433-HNJ

)

SOCIAL SECURITYADMINISTRATION, )

COMMISSIONER, )

)

Defendant. )

MEMORANDUM OPINION

Plaintiff Tammy Howard seeks judicial review pursuant to 42 U.S.C. § 405(g) of

an adverse, final decision of the Commissioner of the Social Security Administration

(“Commissioner”), regarding her claim for a period of disability and disability insurance

benefits. The undersigned carefully considered the record, and for the reasons

expressed herein, AFFIRMS the Commissioner’s decision.1

LAW AND STANDARD OF REVIEW

To qualify for benefits, the claimant must be disabled as defined by the Social

Security Act and the Regulations promulgated thereunder. The Regulations define

“disabled” as the “inability to do any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result

1 In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the

parties have voluntarily consented to have a United States Magistrate Judge conduct any and all

proceedings, including the entry of final judgment. (Doc. 17).

in death or which has lasted or can be expected to last for a continuous period of not

less than 12 months.” 20 C.F.R. § 404.1505(a). To establish an entitlement to disability

benefits, a claimant must provide evidence of a “physical or mental impairment” which

“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).

In determining whether a claimant suffers a disability, the Commissioner,

through an Administrative Law Judge (ALJ), works through a five-step sequential

evaluation process. See 20 C.F.R. § 404.1520(a)(4). The burden rests upon the claimant

at the first four steps of this five-step process; the Commissioner sustains the burden

at step five, if the evaluation proceeds that far. Washington v. Comm’r of Soc. Sec., 906 F.3d

1353, 1359 (11th Cir. 2018).

In the first step, the claimant cannot be currently engaged in substantial gainful

activity. 20 C.F.R. § 404.1520(b). Second, the claimant must prove the impairment is

“severe” in that it “significantly limits [the] physical or mental ability to do basic work

activities . . . .” Id. at § 404.1520(c).

At step three, the evaluator must conclude the claimant is disabled if the

impairments meet or medically equal one of the impairments listed at 20 C.F.R. Part

404, Subpart P, App. 1, §§ 1.00-114.02. Id. at § 404.1520(d). If a claimant’s impairment

meets the applicable criteria at this step, that claimant’s impairment would prevent any

person from performing substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii),

404.1525. That is, a claimant who satisfies steps one and two qualifies automatically for

disability benefits if the claimant suffers a listed impairment. See Williams v. Astrue, 416

F. App’x 861, 862 (11th Cir. 2011) (“If, at the third step, [the claimant] proves that [an]

impairment or combination of impairments meets or equals a listed impairment, [the

claimant] is automatically found disabled regardless of age, education, or work

experience.” (citing 20 C.F.R. §§ 404.1520, 416.920; Crayton v. Callahan, 120 F.3d 1217,

1219 (11th Cir. 1997)).

If the claimant’s impairment or combination of impairments does not meet or

medically equal a listed impairment, the evaluation proceeds to the fourth step, where

the claimant demonstrates an incapacity to meet the physical and mental demands of

past relevant work. 20 C.F.R. § 404.1520(e). At this step, the evaluator must determine

whether the claimant has the residual functional capacity (“RFC”) to perform the

requirements of past relevant work. See id. § 404.1520(a)(4)(iv). If the claimant’s

impairment or combination of impairments does not prevent performance of past

relevant work, the evaluator will determine the claimant is not disabled. See id.

If the claimant succeeds at the preceding step, the fifth step shifts the burden to

the Commissioner to provide evidence, considering the claimant’s RFC, age, education

and past work experience, that the claimant is capable of performing other work. Id.

§ 404.1512(b)(3), 404.1520(g). If the claimant can perform other work, the evaluator

will not find the claimant disabled. See id. § 404.1520(a)(4)(v); see also id. § 404.1520(g).

If the claimant cannot perform other work, the evaluator will find the claimant disabled.

20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g).

The court must determine whether substantial evidence supports the

Commissioner’s decision and whether the Commissioner applied the proper legal

standards. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). The court

reviews the ALJ’s “‘decision with deference to the factual findings and close scrutiny of

the legal conclusions.’” Parks ex rel. D.P. v. Comm’r, Social Sec. Admin., 783 F.3d 847, 850

(11th Cir. 2015) (quoting Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991)).

Indeed, “an ALJ’s factual findings . . . ‘shall be conclusive’ if supported by ‘substantial

evidence.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019) (citing 42 U.S.C. § 405(g)).

Although the court must “scrutinize the record as a whole . . . to determine if the

decision reached is reasonable . . . and supported by substantial evidence,” the court

“may not decide the facts anew, reweigh the evidence, or substitute [its] judgment” for

that of the ALJ. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (citations

omitted). “[W]hatever the meaning of ‘substantial’ in other contexts, the threshold for

such evidentiary sufficiency is not high. Substantial evidence . . . . is ‘more than a mere

scintilla,’ . . . [and] means – and means only – such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Biestek, 139 S. Ct. at 1154

(citations omitted). Therefore, substantial evidence exists even if the evidence

preponderates against the Commissioner’s decision. Moore v. Barnhart, 405 F.3d 1208,

1211 (11th Cir. 2005).

FACTUAL AND PROCEDURAL HISTORY

Howard protectively filed an application for a period of disability and disability

insurance benefits on June 3, 2018, alleging disability as of December 15, 2017. (Tr.

163-66). On September 21, 2018, the Commissioner denied her claims. (Tr. 86-90).

On October 1, 2018, Howard filed a request for a hearing. (Tr. 92-93). On October

21, 2019, the ALJ held a hearing. (Tr. 38-64, 554-80). On December 31, 2019, the ALJ

issued an opinion denying Howard’s claims. (Tr. 8-25, 524-41). On February 13, 2020,

Howard filed a request for review of the ALJ’s opinion before the Appeals Council.

(Tr. 148-150). On May 5, 2020, the Appeals Council denied Howard’s request for

review. (Tr. 542-546).

Subsequently, Howard filed a complaint in this court, which remanded the case

on March 23, 2021, for further administrative proceedings pursuant to sentence four of

42. U.S.C. § 405(g). (Tr. 547-48). The Appeals Council then vacated the final decision

of the Commissioner and remanded the case to the ALJ to address several issues. (Tr.

549-553). On November 2, 2021, the ALJ held a second hearing. (Tr. 490-523). On

May 24, 2022, the ALJ issued a second opinion denying Howard’s claims. (Tr. 463-

489).

Applying the five-step sequential process, the ALJ found at step one that Howard

did not engage in substantial gainful activity after December 15, 2017, her alleged

disability onset date. (Tr. 469). At step two, the ALJ found Howard manifested the

severe impairments of obesity, generalized anxiety disorder, major depressive disorder,

irritable bowel syndrome, and fibromyalgia. (Tr. 470). At step three, the ALJ found

that Howard’s impairments, or combination of impairments, did not meet or medically

equal any impairment for presumptive disability listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1. (Id.).

Next, the ALJ found that Howard exhibited the residual functional capacity

(“RFC”) to perform light work, with the following additional limitations:

[S]he can frequently handle, finger, and feel with the bilateral upper

extremities; occasionally climb ramps and stairs; never climb ladders,

ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl;

have occasional exposure to temperature extremes, dust, odors, fumes,

and pulmonary irritants; and have no exposure to unprotected heights,

hazardous machinery, or commercial driving. She can understand and

remember simple instructions; maintain attention and concentration to

carry out simple instructions in at least two hour intervals over an 8 hour

work day; have occasional contact with coworkers and the general public;

and adapt to infrequent, gradual changes in the work environment.

(Tr. 473).

At step four, the ALJ determined Howard did not retain the ability to perform

her past relevant work as a retail department manager and store clerk. (Tr. 480). At

step five, the ALJ determined, considering Howard’s age, education, work experience,

and RFC, a significant number of other jobs exist in the national economy that she can

perform. (Tr. 481). Accordingly, the ALJ determined Howard has not suffered a

disability, as defined by the Social Security Act, since December 15, 2017. (Tr. 482).

Howard had until June 28, 2022, to file exceptions to the ALJ’s decision or

request an extension of time to do so with the Appeals Council. (Doc. 8-1 at 3). The

Appeals Council does not possess any exceptions or requests from Howard. (Id.).

Therefore, the ALJ’s decision did not become final until July 24, 2022, the 61st day after

May 24, 2022. (Id.).2

On April 6, 2022, Howard prematurely filed her complaint with the court seeking

review of the ALJ’s decision. (Doc. 1). Because the Appeals Council did not assume

jurisdiction over Howard’s case prior to the expiration of the 60-day period following

the ALJ’s decision, Plaintiff received a “final decision” as of July 24, 2022. Thus, the

court deems Howard’s case ripe for review.

ANALYSIS

In this appeal, Howard argues the ALJ’s residual functional capacity finding lacks

substantial evidentiary support and the ALJ erred in considering her failure to seek

treatment. For the reasons discussed below, the undersigned concludes Howard’s

contentions do not warrant reversal.

2 “Any time within 60 days after the date of the hearing decision, the Appeals Council may decide to

assume jurisdiction of your case even though no written exceptions have been filed.

…

If no exceptions are filed and the Appeals Council does not assume jurisdiction of your case, the

decision of the administrative law judge or administrative appeals judge becomes the final decision of

the Commissioner after remand.”

20 C.F.R. § 416.1484(c) & (d).

I. Substantial Evidence Supports the ALJ’s Determination

Howard contends substantial evidence does not support the ALJ’s

determination. As previously discussed, at step four of the sequential analysis the ALJ

formulates a claimant’s RFC by assessing his or her “ability to meet the physical, mental,

sensory, and other requirements of work.” 20 C.F.R. § 416.945(a)(4). The claimant’s

RFC represents “the most [he or she] can still do despite [their] limitations.” Id. at §

416.945(a)(1). Assessing a claimant’s RFC lies within the exclusive province of the ALJ.

See id. at § 416.927(d)(2) (“[T]he final responsibility for deciding [a claimant’s RFC] is

reserved to the Commissioner.”); id. at § 416.946(c) (“[T]he administrative law

judge . . . is responsible for assessing [a claimant’s] residual functional capacity.”); Oates

v. Berryhill, No. 17-0130-MU, 2018 WL 1579475, at *8 (S.D. Ala. Mar. 30, 2018) (“The

responsibility for making the residual functional capacity determination rests with the

ALJ.”); Del Rio v. Berryhill, No. 3:16-CV-00489-RFC, 2017 WL 2656273, at *8 (W.D.

Tex. June 20, 2017) (“The ALJ has the sole responsibility of determining Plaintiff’s

RFC . . . .”).

Howard argues the ALJ improperly found she possessed the residual functional

capacity to perform a limited range of light work.

Light work involves lifting no more than 20 pounds at a time with

frequent lifting or carrying of objects weighing up to 10 pounds. Even

though the weight lifted may be very little, a job is in this category when

it requires a good deal of walking or standing, or when it involves sitting

most of the time with some pushing and pulling of arm or leg controls.

To be considered capable of performing a full or wide range of light work,

you must have the ability to do substantially all of these activities. If

someone can do light work, we determine that he or she can also do

sedentary work, unless there are additional limiting factors such as loss of

fine dexterity or inability to sit for long periods of time.

20 C.F.R. at § 416.967(b).

Furthermore, Howard claims “all her problems are related to fibromyalgia.”

(Doc. 19 at 21). “[F]ibromyalgia . . . is ‘characterized primarily by widespread pain in

the joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3

months.’” Laurey v. Comm’r of Soc. Sec., 632 F. App’x 978, 987-88 (11th Cir. 2015) (citing

SSR 12-2p, 77 Fed.Reg. 43640, 43641 (July 25, 2012)). “The symptoms of fibromyalgia

‘can wax and wane so that a person may have bad days and good days.’” Bailey v. Soc.

Sec. Admin., Comm’r, 791 F. App’x 136, 142 (11th Cir. 2019) (citing SSR 12-2p, 77 Fed.

Reg. 43644 (July 25, 2012)). “For this reason, ‘longitudinal records reflecting ongoing

medical evaluation and treatment from acceptable medical sources are especially helpful

in establishing both the existence and severity of [fibromyalgia].’” Id. at 142-43

(alteration in original) (citing SSR 12-2p, 77 Fed. Reg. 43642 (July 25, 2012)).

However, it remains settled in the Eleventh Circuit that “a lack of objective

evidence” constitutes the “hallmark” of fibromyalgia. Moore, 405 F.3d at 1211 (11th Cir.

2005); accord Horowitz v. Comm’r of Soc. Sec., 688 F. App’x. 855, 863 (11th Cir. 2017) (per

curiam); Brown-Gaudet-Evans v. Comm’r of Soc. Sec., 673 F. App’x. 902, 906 (11th Cir. 2016)

(per curiam); Hernandez v. Comm’r of Soc. Sec., 523 F. App’x. 655, 657 (11th Cir. 2013) (per

curiam); Somogy v. Comm’r of Soc. Sec., 366 F. App’x. 56, 63 (11th Cir. 2010) (per curiam).

Fibromyalgia “often lacks medical or laboratory signs, and is generally diagnosed mostly

on a[n] individual’s described symptoms.” Moore, 405 F.3d at 1211.3 Thus, “a claimant’s

subjective complaints of pain are often the only means of determining the severity of a

patient’s condition and the functional limitations caused

thereby[,] . . . ‘render[ing] . . . over-emphasis upon objective findings inappropriate.’”

Somogy, 366 F. App’x at 64 (fourth alteration in original) (quoting Rogers v. Comm’r of Soc.

Sec., 486 F.3d 234, 248 (11th Cir. 2007)).

Therefore, “[t]he pain standard also guides the ALJ’s evaluation when a claimed

disability is fibromyalgia.” Bailey, 791 F. App’x at 142; see also Laurey, F. App’x at 987

(“The ALJ uses these same standards to evaluate a claimant’s fibromyalgia.”).

A three-part “pain standard” applies when a claimant attempts to establish

disability through her own testimony of pain or other subjective

symptoms. Wilson[ v. Barnhart], 284 F.3d [1219,] 1225[ (11th Cir. 2002)].

The pain standard requires evidence of an underlying medical condition

and either objective medical evidence that confirms the severity of the

alleged pain arising from that condition or a showing that the objectively

3 As recognized in Stewart v. Apfel, No. 99-6132, 2000 U.S. App. LEXIS 33214 (11th Cir. Dec. 20,

2000):

The American College of Rheumatology has described fibromyalgia as:

‘[A] syndrome [that] is a common form of generalized muscular pain

and fatigue. The name “fibromyalgia” means pain in the muscles and

the fibrous connective tissues (the ligaments and tendons). . . .

Fibromyalgia is especially confusing and often misunderstood because

almost all its symptoms are also common in other conditions. In

addition, it does not have a known cause . . . .Unfortunately, because

certain syndromes lack physical and laboratory findings (signs), but

depend mostly on a person’s report of complaints and feelings

(symptoms), these syndromes are often viewed as not being real or

important.’

Stewart, 2000 U.S. App. LEXIS 33214, at *7-8 (quoting Arthritis Foundation & American College of

Rheumatology, Arthritis Information: Fibromyalgia (1992)).

determined medical condition is of such severity that it can be reasonably

expected to give rise to the alleged pain. Id.

Porto v. Acting Comm’r of Soc. Sec. Admin., 851 F. App’x 142, 148 (11th Cir. 2021). A

claimant’s testimony coupled with evidence that meets this standard suffice “to support

a finding of disability.” Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (citation

omitted).

Social Security Ruling (“SSR”) 16-3p mandates the ALJ “will consider any

personal observations of the individual in terms of how consistent those observations

are with the individual’s statements about his or her symptoms as well as with all of the

evidence in the file.” SSR 16-3p, 2016 WL 1119029, *7 (Mar. 16, 2016). An ALJ

rendering findings regarding a claimant’s subjective symptoms may consider a variety

of factors, including: the claimant’s daily activities; symptom location, duration,

frequency, and intensity; precipitating and aggravating factors; type, dosage,

effectiveness, and side effects of medication taken to alleviate the symptoms; and other

factors concerning functional limitations and restrictions due to symptoms. See 20

C.F.R. §§ 416.929(c)(3), (4); see also Bailey, 791 F. App’x at 143 (“‘If objective medical

evidence does not substantiate the person’s statements about the intensity, persistence,

and functionally limiting effects’ of the fibromyalgia symptoms, the ALJ will ‘consider

all of the evidence in the case record, including the person’s daily activities, medications

or other treatments the person uses, or has used, to alleviate symptoms; the nature and

frequency of the person’s attempts to obtain medical treatment for symptoms; and

statements by other people about the person’s symptoms.’” (citing SSR 12-2p, 77 Fed.

Reg. 43643 (July 25, 2012))).

SSR 16-3p further explains that the ALJ’s decision “must contain specific reasons

for the weight given to the individual’s symptoms, be consistent with and supported by

the evidence, and be clearly articulated so the individual and any subsequent review can

assess how the adjudicator evaluated the individual’s symptoms.” 2016 WL 1119029 at

*9; see also Wilson, 284 F.3d at 1225 (If an ALJ discredits a claimant’s subjective

testimony, the ALJ “must articulate explicit and adequate reasons for doing so.”).

During her October 21, 2019, hearing, Howard stated she could drive locally but

not on interstates because she becomes nervous, confused, and scared. (Tr. 46, 48).

She claimed she forgets her location while driving. (Tr. 48). Accordingly, Howard only

drives when she must. (Tr. 54). She averred she cannot work due to her anxiety. (Tr.

47). Howard also explained she aches all over her body, has no energy, and sometimes

has trouble arising from her bed. (Tr. 48). She asserted she cannot think straight and

tends to forget things. (Id.). Howard declared she suffers from vertigo as well. (Tr.

49).

Howard discussed leaving her job due to her anxiety and stomach. (Id.). She

described battling diarrhea, repeatedly using the restroom, and suffering bowel

incontinence. (Tr. 50). Howard testified the bowel incontinence occurs two to three

times a week, and she suffers constipation up to four weeks at a time. (Id.). She attested

she does not enjoy going to a store and being around people because she suffers from

claustrophobia. (Tr. 51).

Howard’s typical day consists of taking a hot bath to help with her hands, feet,

and legs as they hurt in the morning. (Tr. 51). She then cleans up after her dogs, cooks

breakfast, and “piddle[s] around” the house and yard. (Tr. 52). Howard also stated she

and her son work on fences to keep their dogs separated from their horses. (Id.). She

then fixes lunch and takes a nap in the afternoon. (Id.). Howard explained she

experiences asthma attacks when she gets hot. (Id.). She forgets she commenced

cooking a meal unless she stays in the kitchen. (Tr. 53). Howard sometimes forgets to

take her medication as well. (Id.).

During her November 2, 2021, hearing, Howard testified she believes she cannot

work due to her fibromyalgia. (Tr. 498). She also suffers from an unhealthy gut, anxiety,

asthma, claustrophobia, and depression. (Id.). Howard explained her fibromyalgia

causes her to suffer “brain fog” and become forgetful. (Tr. 499). The brain fog also

causes lack of concentration. (Id.). She stated she suffers from stiffness and soreness

in her entire body as well. (Tr. 499-500). Furthermore, Howard experiences a tingly

sensation in her hands and arms. (Tr. 500). She expressed the fibromyalgia constantly

affects her arms, hands, and feet. (Tr. 501). Howard claims she cannot engage in

repetitive motions because she will suffer pain the following day. (Tr 519). Howard

received a prescription for Cymbalta to treat her fibromyalgia which really helped her.

(Tr. 509). She no longer takes Cymbalta due to lack of insurance. (Id.).

Howard averred she needs two hands to pick up a gallon of milk because she

does not have the strength to pick up items with one hand. (Tr. 500). She can no

longer pick up a bag of dog or horse food. (Id.). Howard expounded she cannot lift

50 pounds but could lift her 35-pound granddaughter. (Id.). She admitted she suffers

pain the following day after lifting her granddaughter. (Tr. 501). Howard also develops

foot pain after standing for more than 30 minutes. (Id.). She received a

recommendation to wear a walking boot to treat her foot pain, but the boot then causes

her back pain. (Id.).

Howard claimed her unhealthy gut does not allow her to digest food properly,

which causes her body not to function properly. (Id.). She averred she never knows

when she will have to use the restroom. (Tr. 503). Howard explains she frequently

suffers from diarrhea and bowel incontinence. (Tr. 519). Howard regularly received

Zantac for her digestive issues, but she no longer takes it due to a lack of insurance.

(Tr. 512).

Howard further explained her asthma does not allow her to breathe when

conditions are hot or she is around strong, cleaning chemicals. (Tr. 502). Howard uses

her inhaler about four times a week. (Tr. 503).

Howard’s anxiety does not allow her to be around people. (Id.). Due to her

anxiety, she angers quickly and cannot control her temper. (Tr. 521). She used to take

Venlafaxine and Hydroxyzine for her anxiety and depression, but she no longer does

because she lacks insurance. (Tr. 504).

Howard explained a typical day for her involves taking a bath to get “loosened

up” because she wakes up stiff. (Tr. 505). She also watches television, stays in her

room, and feeds her dogs. (Id.). Howard expressed that she keeps her room clean,

launders her clothes, sweeps, washes dishes, and sometimes cooks. (Tr. 506).

Howard’s Function Report states she cannot concentrate or be around people.

(Tr. 225). She suffers from anxiety and panic attacks. (Id.). During an average day,

Howard takes her medication, eats, watches television, ventures outside and sits with

her dogs, “picks up sticks” to try and clean up, cleans the kitchen, and cooks. (Tr. 226).

In addition, she cares for her dogs, cats, horses, and guinea pig with the help of her son.

(Id.). Howard expressed she cannot be around people, go places, or drive. (Id.). Her

quality of sleep suffers because her mind races, and she frequently has to use the

restroom at night. (Id.).

Howard has no issue with her personal care. (Id.). She also does not need

reminders to take care of her personal needs and grooming. (Tr. 227). Howard,

however, does use alarms as reminders to take her medication. (Id.). She prepares

“simple” meals daily, and cleans her kitchen while doing so as not to forget about her

cooking. (Id.). Most days Howard attempts to perform household chores with the help

of her son. (Id.). The time it takes to complete her chores varies. (Id.).

Howard does not drive because of her anxiety and shops seldomly at night to

avoid large groups of people. (Tr. 228). She cannot pay bills because she forgets about

them, and thus, her son helps her. (Id.). Howard also cannot handle a savings account,

a checkbook, money orders, or money. (Id.). She can count change, however. (Id.).

Howard likes taking care of her animals when she feels up to it. (Tr. 229). She

hardly goes anywhere or sees anyone because of her ailments. (Tr. 229-230). Howard’s

ailments also affect her memory, concentration, understanding, and ability to follow

instructions. (Tr. 230). She can only pay attention for a very short period of time, and

she does not finish what she starts. (Id.). Howard does not follow written or spoken

instructions well. (Id.). She gets along “ok” with authority figures. (Tr. 231). Howard

also stated she does not handle stress or change well. (Id.).

Howard’s friend, Whitney Reeves, submitted a Third Party Function Report

which largely reiterates the information in Howard’s Function Report. (Tr. 214-220).

Reeves’s Function Report states that it takes Howard 30 minutes to prepare her food,

but she experiences trouble cooking. (Tr. 216). She reported that Howard cleans and

does a little yardwork for about one to two hours daily. (Id.). Reeves claims Howard’s

ailments affect her talking, hearing, memory, ability to complete tasks, concentration,

understanding, ability to follow instructions, and relationships with others. (Tr. 219).

She discussed Howard could walk half a mile and needs 10 to 15 minutes of rest before

she can resume walking. (Id.). Finally, Reeves explained that Howard does not get

along with authority figures or people at all. (Tr. 220).

The ALJ, citing to and relying upon the record evidence, applied the pain

standard to find that Howard’s

medically determinable impairments could reasonably be expected to

cause the alleged symptoms; however, [her] statements concerning the

intensity, persistence and limiting effects of these symptoms are not

entirely consistent with the medical evidence and other evidence in the

record . . . .

(Tr. 474). Substantial evidence supports the ALJ’s finding.

On April 11, 2017, Alabama Digestive Diseases saw Howard for bilateral

abdominal pain and diarrhea. (Tr. 381). Howard’s physical examination yielded normal

results other than exhibiting epigastric tenderness and lower left quadrant abdominal

pain. (Tr. 383). Furthermore, Howard’s stool study portrayed unremarkable results as

well. (Tr. 385-86, 412-15).

On August 8, 2017, Robert Mitchell, M.D., diagnosed Howard with asthma,

lipoma, restless leg syndrome, and myoclonus. (Tr. 297). Howard’s physical

examination displayed normal results except in her musculoskeletal system, breast, and

pelvic. (Id.). On August 25, 2017, Dr. Mitchell diagnosed Howard with a neoplasm in

her right thigh. (Tr. 296). Yet, Howard’s physical examination appeared normal. (Id.).

On September 20, 2017, Dr. Mitchell diagnosed Howard with anxiety, depression, and

hyperhidrosis. (Tr. 295). During that visit, Howard produced an unremarkable physical

examination. (Id.). On December 18, 2017, Dr. Mitchell diagnosed Howard with

anxiety, depression, and insomnia. (Tr. 294). Howard’s physical examination yielded

normal results at that time. (Id.).

On January 30, 2018, Grayson & Associates conducted an initial evaluation of

Howard. (Tr. 399). During a mental status examination, Howard appeared tearful,

depressed, and anxious. (Tr. 400). She also presented a flattened affect. (Id.).

Otherwise, Howard exhibited an unremarkable mental status examination. (Id.).

On March 22, 2018, St. Vincent’s Blount Emergency Department treated

Howard for chest pain and anxiety. (Tr. 335, 728, 735). Aside from having mild distress

and being anxious and tearful, Howard’s physical examination generated unremarkable

results. (Tr. 339-40, 736). On March 24, 2018, St. Vincent’s Blount Emergency

Department treated Howard for a brain concussion. (Tr. 308, 729). Howard produced

normal results on her physical examination. (Tr. 312).

On April 12, 2018, Grayson & Associates conducted a follow-up visit with

Howard. (Tr. 394). Howard endorsed depression, low energy, anxiety, panic attacks,

and decreased sleep. (Id.). She denied having low interests, manic symptoms, irritability,

OCD symptoms, focus problems, suicidal thoughts, homicidal thoughts, hallucinations,

delusions, or decreased appetite. (Id.). Howard yielded a largely normal mental status

exam, except she appeared tearful, depressed, and anxious. (Tr. 395). She also displayed

a blunted affect, and poor insight and judgment. (Id.).

On June 7, 2018, Grayson & Associates conducted a follow-up visit with

Howard. (Tr. 390, 407, 456). Howard reported depression, low energy, anxiety, panic

attacks, and decreased sleep and appetite. (Id.). She denied experiencing low interests,

manic symptoms, irritability, OCD symptoms, focus problems, suicidal thoughts,

homicidal thoughts, hallucinations, and delusions. (Id.). Howard demonstrated a largely

normal mental status exam, except she appeared tearful, depressed, and anxious. (Tr.

391, 408, 457).

On July 2, 2018, Alabama Digestive Diseases saw Howard for irritable bowel

syndrome with diarrhea. (Tr. 377). Alabama Digestive Diseases noted that Howard’s

stool studies tested negative, and her colonoscopy completed in August 2016 portrayed

normal findings, which included negative random biopsies for microscopic colitis. (Tr.

379). Howard also generated unremarkable findings as to her physical examination.

(Tr. 379-80).

On August 8, 2018, Grayson & Associates conducted a follow-up visit with

Howard. (Tr. 403, 452). Howard reported improvements in her depression. (Id.). She

also endorsed anxiety and denied low energy, low interests, manic symptoms, irritability,

panic attacks, OCD symptoms, focus problems, suicidal thoughts, homicidal thoughts,

hallucinations, delusions, and decreased sleep or appetite. (Id.). In addition, Howard

yielded a normal mental status exam, except she appeared depressed and anxious. (Tr.

404, 453).

On August 23, 2018, St. Vincent’s Blount Emergency Department treated

Howard for right knee pain. (Tr. 712). Although Howard exhibited swelling on the

lateral portion of her right knee, her knee maintained stability with full extension and

flexion without difficulty, and it sustained no bruising. (Tr. 713). The rest of Howard’s

physical examination appeared unremarkable. (Id.).

On October 23, 2019, OrthoAlabama Spine & Sports diagnosed Howard with

fibromyalgia, median neuropathy, and right pedal discomfort. (Tr. 28, 696). An MRI

of Howard’s right foot portrayed mild degenerative changes, small MTP joint effusions

and small hindfoot effusions, and mild tenosynovitis of the posterior tibialis. (Tr. 34,

702). Howard experienced moderate discomfort with palpation over the right dorsal

midfoot area and tenderness with multifocal soft tissue palpation in the anterior aspect

of the shoulders, subacromial regions, superior trapezii, trochanteric bursal areas, and

anserine bursal regions. (Tr. 28, 696). Otherwise, Howard’s physical examination

yielded unremarkable findings. (Id.).

On October 29, 2019, OrthoAlabama saw Howard for right foot pain. (Tr. 30,

698). A physical examination of Howard’s foot resulted in normal results. (Tr. 31, 699).

On November 8, 2019, OrthoAlabama reaffirmed fibromyalgia as a principal source of

Howard’s pain. (Tr. 32, 700). Howard experienced tenderness to multifocal soft tissue

palpation in the anterior/subacromial areas of the shoulders, superior trapezii, and of

the trochanteric bursal areas. (Id.). The rest of Howard’s physical examination yielded

unremarkable results. (Id.).

In summary, the forgoing review of the record evidence demonstrates substantial

evidence supports the ALJ’s findings.

II. The ALJ Did Not Rely Solely on Howard’s Lack of Treatment for

the Determination

Howard contends the ALJ did not properly consider her poverty in finding that

she did not seek regular treatment for her impairments after 2018. An ALJ cannot

discredit a claimant’s testimony as to the intensity or persistence of his or her pain solely

based on the failure to obtain medical treatment he or she cannot afford:

“[R]efusal to follow prescribed medical treatment without a good reason

will preclude a finding of disability,” and “poverty excuses

noncompliance.” Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir.1988).

Additionally, when an ALJ relies on noncompliance as the sole ground for

the denial of disability benefits, and the record contains evidence showing

that the claimant is financially unable to comply with prescribed treatment,

the ALJ is required to determine whether the claimant was able to afford

the prescribed treatment. See id. at 1214.

Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (emphasis added).

In the circumstances at bar, the ALJ remarked

there is no evidence of follow up visits or emergency department visits for

exacerbation of symptoms of irritable bowel syndrome, fibromyalgia,

anxiety, or depression since 2018. The claimant stated that she is unable

to obtain treatment, including medications, due to lack of insurance. While

financial constraints may make medical intervention and compliance more

difficult, a lack of health insurance does not equate to a finding of

disability. Moreover, the evidence reveals the claimant did not exhaust all

efforts to seek treatment, with no visits to free or subsidized clinics

evidenced, and personal denial of emergency room visits or

hospitalizations.

(Tr. 493).

Even if the ALJ’s allusions to Howard’s failure to seek free or subsidized

treatment infers an adverse assessment of her pain symptoms, the ALJ did not rely

solely on such noncompliance as a ground for denial of benefits. Ellison, 355 F.3d at

1275 (“This case is distinguishable from Dawkins because, unlike in Dawkins, the ALJ’s

determination that Ellison was not disabled was not significantly based on a finding of

noncompliance.”). As recounted, the ALJ largely relied upon the balance of the record

for her determination.

To the extent Howard argues the ALJ did not develop a full and fair record, an

ALJ only sustains an obligation to develop the record for at least 12 months preceding

the month in which a claimant files their application. E//son, 355 F.3d at 1276 (citing

20 C.F.R. § 416.912(b)(1)). “[Howard] makes no claim that the AL] failed to do this;

rather, [her] focus is on the period after [her] filing.” Id The AL] maintained no

obligation to develop the medical record after June 3, 2018. Id Furthermore, the ALJ

stated her intent to further develop the record multiple times during the November 2,

2021, hearing. (T'r. 494-96, 506-513, 522). ‘Thus, Howard does not enjoy entitlement

to relief on a contention the ALJ failed to adequately develop the record.

CONCLUSION

For the foregoing reasons, the court AFFIRMS the Commissioner’s decision.

The court will enter a separate final judgment.

DONE this 29" day of August, 2023.

UNITED STATES MAGISTRATE JUDGE

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