[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-11754 October 1, 2003
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 02-00223-CV-2-GMF-5
NATHAN L. ELLISON,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
Defendant-Appellee.
__________________________
Appeal from the United States District Court for the
Middle District of Georgia
_________________________
(October 1, 2003)
Before DUBINA, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Nathan L. Ellison appeals the district court’s order affirming the Social
Security Commissioner’s denial of his application for supplemental social security
income, 42 U.S.C. §§ 405(g), 1383(c). Ellison raises two issues on appeal. First,
he argues that substantial evidence does not support the Administrative Law
Judge’s (“ALJ”) finding that Ellison’s seizures resulted from noncompliance with
medical treatment. Next, Ellison contends that the ALJ erroneously failed to fully
develop the record as it pertained to Ellison’s seizure disorder. For the reasons set
forth more fully below, we affirm the district court’s order affirming the
Commissioner’s decision.
Ellison, a 44-year-old male with a tenth grade education, applied for
supplemental social security income on December 14, 1998, alleging an onset date
of May 15, 1985, due to “Highblood Seizures, weakness in legs, feet, back
problems.” His application was denied initially and on reconsideration. Ellison
then requested and received a hearing before an ALJ.
During the hearing, Ellison testified that he had run out of medicine and had
gone without taking his medication for, at most, one day at a time, and he was able
to purchase more medicine after borrowing money from his girlfriend. Ellison
further stated that, after having seizures, he had gone to the emergency room at
Oconee Regional Medical Center several times in 1999 and 2000. The ALJ then
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asked Ellison’s representative whether he had requested current medical records
from Oconee, and the representative answered “No.” The ALJ noted that “it
sounds like we’re missing a lot more from 2000 and 1999,” and he directed
Ellison’s representative to obtain current medical records and lab reports from
Oconee. Two months after the hearing, the ALJ sent Ellison’s representative a
letter advising that the ALJ had not yet received the medical records at issue and
that he would begin working on his decision if he did not hear from the
representative within ten days of the date of the letter. Ellison failed to respond to
either of the ALJ’s requests.
The ALJ eventually made findings in a decision that included the relevant
medical evidence and witness testimony. The ALJ discredited Ellison’s
allegations of disability as inconsistent with the objective medical evidence,
noting that Ellison had worked for several years as an automobile detailer despite
his impairments, that Ellison’s alcohol use aggravated his seizure condition, and
that the medical evidence indicated Ellison’s noncompliance with treatment.
Additionally, the ALJ discredited as inconsistent with the medical evidence the
opinion of examining physician Dr. James Baugh, who had opined that Ellison
was totally disabled due to his “uncontrolled Epileptic Seizures severe
hypertension and other problems.”
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The ALJ found that Ellison suffered from seizures and hypertension and
that he consequently lacked the residual functional capacity (“RFC”) to perform
any of his past relevant work. The ALJ further found, however, that Ellison
retained the RFC to perform heavy work with some restrictions, including work
that does not involve heights or heavy, dangerous, or moving machinery. Relying
on the medical evidence, and testimony from a vocational expert (“VE”) and
Ellison, the ALJ found that Ellison was not disabled as defined by the Social
Security Act because he was able to perform other work that existed in significant
numbers in the national economy.
The Appeals Council denied review of the ALJ’s decision. On judicial
review, the magistrate judge issued a report recommending that the
Commissioner’s decision denying benefits be affirmed. Thereafter, the district
court entered an order affirming the Commissioner’s decision.
Ellison argues on appeal that substantial evidence does not support the
ALJ’s finding that his seizures resulted from noncompliance with medical
treatment. Ellison maintains that the medical evidence refutes the ALJ’s finding
on this issue, and the ALJ erroneously failed to consider the effect of Ellison’s
financial condition on his ability to obtain treatment for his seizures. Additionally,
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Ellison contends that the ALJ erred by discrediting the opinion of examining
physician Dr. Baugh.
“We review the Commissioner’s decision to determine if it is supported by
substantial evidence and based on proper legal standards.” Lewis v. Callahan, 125
F.3d 1436, 1439 (11th Cir. 1997). “Substantial evidence is more than a scintilla
and is such relevant evidence as a reasonable person would accept as adequate to
support a conclusion.” Id. “Even if the evidence preponderates against the
Commissioner’s findings, we must affirm if the decision reached is supported by
substantial evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).
We have held that “refusal 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. The claimant in Dawkins testified at the administrative
hearing that she was unable to take her prescribed medication because she could
not always afford to refill her prescription. Id. at 1213. In denying benefits, the
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ALJ relied “primarily if not exclusively” on evidence pertaining to the claimant’s
noncompliance with prescribed medical treatment. Id. at 1212. On appeal, we
reversed and remanded the case, concluding that, because the ALJ’s finding that
claimant was not disabled was “inextricably tied to the finding of noncompliance,”
the ALJ had erred by failing to consider the claimant’s ability to afford the
prescribed medical treatment. Id. at 1214.
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. Although the ALJ, in discrediting Ellison’s allegations
of disability, noted that the medical record “supports non-compliance on
[Ellison’s] part,” a review of the ALJ’s decision reveals that his finding on this
issue was based primarily on the facts that (1) Ellison worked for several years in
spite of his impairments, and (2) Ellison’s use of alcohol aggravated his seizure
condition. Moreover, as the ALJ expressly stated, he based his finding of “not
disabled” on testimony of a VE and Ellison’s RFC, age, educational background,
and work experience. Accordingly, Ellison’s reliance on Dawkins is misplaced,
and the ALJ’s failure to consider Ellison’s ability to afford his seizure medication
does not constitute reversible error. See id. at 1212-14.
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Additionally, the ALJ’s consideration of Ellison’s noncompliance as a
factor in discrediting Ellison’s allegations of disability is adequately supported by
Dr. G. F. Garcia’s opinion that “[Ellison’s] frequent seizures can be explained
because [of] his subtherapeutic level of anticonvulsants, most likely due to his
non-compliance.” Finally, the fact that Ellison worked for several years in spite of
his seizure disorder, and the medical opinions of Drs. Arthur Schiff, Charles
Bailey, David Williams, and Janet Rice, which indicate that Ellison’s seizure
disorder did not prevent him from meeting the demands of unskilled work,
constitute substantial evidence to support the ALJ’s decision to discredit Dr.
Baugh’s opinion that Ellison was totally disabled. See Oldham v. Schweiker, 660
F.2d 1078, 1084 (5th Cir. 1981) (holding that “the ALJ is free to reject the opinion
of any physician when the evidence supports a contrary conclusion”).
Next, Ellison argues that the ALJ erroneously failed to fully develop the
record as it pertains to his seizure disorder. Ellison concedes that “it is appropriate
to initially rely upon his representative, attorney or not, to obtain updated
information,” but nonetheless maintains that the ALJ was required to obtain
medical evidence regarding the two-year period following Ellison’s filing of his
application for benefits. Additionally, Ellison contends that a remand is necessary
because the district court, in affirming the Commissioner’s denial of his
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application for benefits, mistakenly assumed that Ellison’s representative was an
attorney.
It is well-established that the ALJ has a basic duty to develop a full and fair
record. 20 C.F.R. § 416.912(d) (stating that “[b]efore we make a determination
that you are not disabled, we will develop your complete medical history for at
least the 12 months preceding the month in which you file your application”);
Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995). Nevertheless, the claimant
bears the burden of proving that he is disabled, and, consequently, he is
responsible for producing evidence in support of his claim. See 20 C.F.R.
§ 416.912(a) (stating that “[claimant] must furnish medical and other evidence that
we can use to reach conclusions about your medical impairment(s)”); 20 C.F.R.
§ 416.912(c) (stating “[y]our responsibility. You must provide medical evidence
showing that you have an impairment(s) and how severe it is during the time you
say you are disabled”).
Ellison filed his application for supplemental social security income on
December 14, 1998, and, thus, the ALJ was required to develop Ellison’s medical
history for the 12 months prior to December 1998. See 20 C.F.R. § 416.912(d).
Ellison makes no claim that the ALJ failed to do this; rather, his focus is on the
period after his filing. The ALJ, however, was in no way bound to develop the
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medical record for 1999 and 2000, as Ellison contends. Moreover, the record
reveals that the ALJ did attempt to develop the medical record by requesting on
two occasions that Ellison furnish him with the 1999 and 2000 medical records,
but Ellison failed to do so. Thus, Ellison is not entitled to relief on his contention
that the ALJ failed to adequately develop the medical record. See 20 C.F.R.
§ 416.916 (stating that “[w]hen you fail to cooperate with us in obtaining
evidence, we will have to make a decision based on the information available in
your case”).
Finally, Ellison is not entitled to relief on his claim that the district court
mistakenly assumed that Ellison’s representative was an attorney. This claim
arguably is a non-issue in light of Ellison’s failure to follow through on the ALJ’s
explicit instruction to obtain current medical and lab reports from a specific
hospital. Ellison, moreover, fails to explain how the district court’s alleged
mistaken assumption mandates a reversal of the ALJ’s decision. Furthermore, to
the extent that Ellison maintains that his representative’s status as a non-attorney
imposed upon the ALJ a heightened duty to fully develop the record, Ellison is not
entitled to relief because he does not challenge the qualifications of his
representative. See Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)
(stating that “the ALJ’s ‘basic obligation to develop a full and fair record rises to a
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special duty when an unrepresented claimant unfamiliar with hearing procedures
appears before him’”); 20 C.F.R. § 416.1505 (providing that a claimant may be
represented by an attorney or a qualified non-attorney).
Accordingly, we conclude that Ellison’s noncompliance with prescribed
medical treatment, which the ALJ used as a factor in discrediting his allegations of
disability, is supported by substantial evidence. We further conclude that Ellison
has failed to demonstrate that the ALJ erroneously failed to develop a full and fair
record. We, therefore, affirm.
AFFIRMED.
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