Ellison v. Barnhart

[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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