Estes v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

RYAN DALE ESTES,

Plaintiff,

v. Case No. 2:20-cv-225-JLB-NPM

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

/

ORDER

Plaintiff Ryan Estes appeals the Commissioner of Social Security’s

(“Commissioner”) final decision denying his claim for disability insurance benefits.

(Doc. 1.) The Magistrate Judge issued a Report and Recommendation,

recommending that the Court affirm the Commissioner’s decision. (Doc. 29.) Upon

review of the record, the Report and Recommendation, and Mr. Estes’s timely

objections (Doc. 31), the Court affirms the Commissioner’s decision.

STANDARD OF REVIEW

A district judge may accept, reject, or modify a magistrate judge’s report and

recommendation. 28 U.S.C. § 636(b)(1). When a party makes a timely and specific

objection to a report and recommendation, the district judge “shall make a de novo

determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” Id. Legal conclusions are reviewed

de novo even without an objection. See Cooper-Houston v. Southern Ry. Co., 37

F.3d 603, 604 (11th Cir. 1994).

In this Social Security appeal, the Court must determine whether the

administrative law judge’s (“ALJ”) decision is “supported by substantial evidence

and based on proper legal standards.” Winschel v. Comm’r of Soc. Sec., 631 F.3d

1176, 1178 (11th Cir. 2011) (citation omitted). “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. The Court may not decide the facts anew,

reweigh evidence, or substitute its judgment for the ALJ’s. Id. Even where the

Court finds that the evidence more likely supports a different conclusion, the ALJ’s

decision must be affirmed if it is supported by substantial evidence.

See Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990).

DISCUSSION

Mr. Estes raises two objections to the Magistrate Judge’s Report and

Recommendation. He first contends that the ALJ failed to ensure that he

knowingly waived his right to representation at the hearing before the ALJ and

that he was prejudiced by the lack of representation. Mr. Estes next contends that

the ALJ failed to adequately consider and develop the record concerning his

physical impairments, specifically a left knee injury and urinary incontinence.

However, as the Magistrate Judge correctly determined, the record demonstrates

that Mr. Estes knowingly waived his right to representation, he did not suffer any

prejudice by his lack of representation, the record was sufficiently developed, and

the ALJ’s determination as to Mr. Estes’s physical impairments was supported by

substantial evidence. Both objections are therefore overruled.

Objection 1: The ALJ improperly failed to ensure that Mr. Estes knowingly

waived his right to representation at the ALJ hearing.

In support of his first objection, Mr. Estes asserts that the Magistrate Judge

improperly concluded that Mr. Estes’s representation during the Appeals Council

proceeding and this appeal indicates that he was aware of his right to

representation at the ALJ hearing. (Doc. 31 at 1–2.) Mr. Estes further contends

that, despite the ALJ being aware of his mental conditions, the ALJ did not inform

Mr. Estes that free representation and fee-based options were available. (Id. at 2–

4). However, Mr. Estes’s first objection is unpersuasive. As the Magistrate Judge

correctly determined, and even without consideration of Mr. Estes’s subsequent

representation, the ALJ properly ensured that Mr. Estes knowingly waived his

right to representation. Even if not, Mr. Estes has not shown that he was

prejudiced by the lack of representation.1

Following the initial denial and denial upon reconsideration of his application

for disability insurance benefits, Mr. Estes requested a hearing before an ALJ.

(Doc. 17-2 at 108; Doc. 17-4 at 2–25; Doc. 17-5 at 14–15.) He appeared at the

hearing without representation and signed a “Waiver of Representation” form. (Doc.

1 “[A] Social Security claimant has a statutory right, which may be waived, to

be represented by counsel at a hearing before an ALJ.” Reynolds v. Soc. Sec.

Admin., 679 F. App’x 826, 827 (11th Cir. 2017) (quotation omitted). “The

Commissioner has a duty to notify a claimant in writing about ‘the options for

obtaining’ a lawyer, including ‘the availability to qualifying claimants of legal

service organizations which provide legal services free of charge.’” Id. (quoting 42

U.S.C. § 406(c)). “If a claimant is not informed adequately of her right–either in a

prehearing notice or at the hearing–a claimant cannot knowingly and intelligently

waive her statutory right to counsel.” Id. at 827–28 (internal quotation marks,

citation, and brackets omitted) (emphasis added).

17-3 at 115–17; Doc. 17-5 at 59.) The following exchange occurred at the beginning

of the hearing:

ALJ: . . . Did you read your right to representation the guard

handed you those rights? How are you feeling, do you want a one-

time continuance to try to get representation[?] That means that

we come back again in either 30 to 60 days, or longer if you want

to take longer to try to get a representative.

Mr. Estes: No, ma’am, I can’t afford anything and then when – if

I ever do get the disability, I need to pay bills with it and I

can’t afford one dollar.

ALJ: Okay, now there is legal aid that will sometimes –

Mr. Estes: I’m okay. I’ll just have faith in the system.

ALJ: Okay. Okay, so you want to go forward today without –

Mr. Estes: Yes, ma’am.

ALJ: – representation? All right, so Ms. Cindy is going to give

you some paperwork and a pen. So, Ms. Cindy, we’re going to sign

the 827, which is the authorization form and then the waiver of

representation.

Vocational Expert: Yes. He signed the release forms already.

(Doc. 17-3 at 116–17.) The ALJ thus explained that the hearing could be continued

to allow Mr. Estes to obtain representation and ensured that he wanted to proceed

without representation. In direct response to Mr. Estes’s concerns about the cost of

representation, the ALJ mentioned the possibility of legal aid, but Mr. Estes

maintained that he wanted to proceed without representation. By signing the

waiver of representation form, Mr. Estes further acknowledged:

I have been advised both in writing and orally, and understand

that I have a right to be represented in this hearing by an

Attorney or other capable and qualified person of my choice.

I have considered this matter, and have decided of my own free

choice to voluntarily waive my right to such representation, and

wish to proceed without a representative. I do not waive my right

to legal representation in other hearings or appeals. . . .

(Doc. 17-5 at 59).

Similarly, Mr. Estes was sent several written notices at various stages of the

administrative proceeding advising him of his right to be represented. (Doc. 17-5 at

3, 9, 17, 37.) Prior to the hearing, he received a document titled “Your Right to

Representation,” which provided information about representation and contact

information for an organization that could assist him in obtaining representation

and organizations that provide free legal services. (Doc. 17-5 at 20–25, 42–43; Doc.

17-3 at 118.) And in his request for a hearing he acknowledged that he

“understand[s] [he has] a right to be represented and that if [he] need[s]

representation, the Social Security Office or hearing office can give [him] a list of

legal referral and service organizations to assist [him] in locating a representative.”

(Doc. 17-5 at 14–15.)

Mr. Estes does not identify any stage in the proceedings at which he was

confused as to his right to representation or his waiver of that right.2 And he cites

2 Mr. Estes’s suggestion that, due simply to his mental impairments, he

lacked the capacity to understand his right to representation or was unable to

“adequately represent himself” is unpersuasive. (Doc. 31 at 5); cf. Moore v.

Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005) (“[T]he mere existence of these

impairments does not reveal the extent to which they limit [the claimant’s] ability

to work or undermine the ALJ’s determination in that regard.”). Indeed, during

the hearing Mr. Estes was coherent, answered the ALJ’s questions, and followed

instructions to submit additional documentation. This supports a finding that he

knowingly waived his right to representation. See, e.g., Hedges v. Comm’r of Soc.

no authority in support of the proposition that the ALJ’s purported failure to fully

inform him of the availability of free representation or fee-based arrangements

renders his waiver invalid. In summary, the record demonstrates that he

knowingly waived his right to representation at the hearing. See Coven v. Comm’r

of Soc. Sec., 384 F. App’x 949, 950–51 (11th Cir. 2010) (finding waiver valid where

claimant received three notices advising her of the right, was reminded by the ALJ

that she could obtain representation, and executed a written waiver during the

hearing).

Even if Mr. Estes’s waiver was somehow deficient, the ALJ nevertheless

fulfilled her duty to develop a full and fair record. See Brown v. Shalala, 44 F.3d

931, 934 (11th Cir. 1995) (imposing a “special” duty to develop full and fair record

where right to representation has not been waived).3 For example, the ALJ left the

record open to allow the inclusion of any missing medical records, statements, a

power of attorney, and letters in support of the application. (Doc. 17-3 at 119–20,

Sec., No. 2:19-cv-833-FtM-MAP, 2021 WL 1186836, at *11 n.8 (M.D. Fla. Mar. 30,

2021). And Mr. Estes cites no authority in support of the proposition that the ALJ

was required to state on the record a determination that Mr. Estes was “capable of

making an informed choice to waive the right to representation.” (Doc. 31 at 2.)

3 As the Eleventh Circuit instructs, “[t]his special duty requires, essentially, a

record which shows that the claimant was not prejudiced by lack of counsel, but not

that the presence of counsel would necessarily have resulted in any specific benefits

in the handling of the case before the ALJ.” Coven, 384 F. App’x at 951 (internal

quotation marks and citation omitted); see also Kelley v. Heckler, 761 F.2d 1538,

1540 n.2 (11th Cir. 1985) (requiring “a more specific showing of prejudice”).

Notably, despite the ALJ’s duty to develop a full and fair record, it is the claimant

who bears the burden to establish that he is disabled and, “consequently, he is

responsible for producing evidence in support of his claim.” Ellison v. Barnhart, 355

F.3d 1272, 1276 (11th Cir. 2003) (citations omitted).

125, 133, 142–44, 153–54; Doc. 17-2 at 89–91; Doc. 17-16 at 74–79; Doc. 17-7 at 18–

27; Doc. 17-8 at 2–12.) Mr. Estes does not identify any relevant medical evidence

missing from the record. And the ALJ inquired into, among other things, how Mr.

Estes’s symptoms affected him. (Doc. 17-3 at 128–31, 134–42); see Graham v. Apfel,

129 F.3d 1420, 1423 (11th Cir. 1997) (finding no prejudice based in part on ALJ’s

questioning of claimant).

Moreover, although Mr. Estes asserts that he was prejudiced because no

consultative examination was performed to determine whether his knee impairment

affected his ability to work and there was no “development of [his] urinary

problems,” (Doc. 31 at 6), the ALJ was not required to order a consultative

examination because “the record contain[ed] sufficient evidence for [the ALJ] to

make an informed decision.” Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253,

1269 (11th Cir. 2007) (citation omitted). Indeed, the record included hundreds of

pages of treatment records from Veterans Affairs and hospitalization records. In

any event, a “claimant cannot show prejudice by speculating that [he] would have

benefited from a more comprehensive hearing.” McCabe v. Comm’r of Soc. Sec., 661

F. App’x 596, 599 (11th Cir. 2016) (citation omitted).4

4 Mr. Estes does not specify how he was prejudiced by his failure to ask

questions of the vocational expert or his lack of understanding as to his date last

insured or his ability to modify his alleged onset date. (Doc. 31 at 3–5.) For

example, he does not propose any questions that should have been asked of the

vocational expert, and although he asserts that “[a] qualified representative would

have been aware of the significance of the [date last insured] and could have

advised [Mr. Estes] not to rely on developments after that date,” he does not explain

how such reliance adversely affected him. (Id. at 4.) And unlike in Brown, 44 F.3d

931, here, the ALJ did not fail to obtain current medical records, and there are no

In short, even if Mr. Estes’s waiver of his right to representation was

defective, he has not shown that the ALJ failed to fully develop the record or that

he otherwise suffered prejudice. Accordingly, Mr. Estes’s first objection is

overruled.

Objection 2: The ALJ failed to adequately consider and develop the record

concerning Mr. Estes’s physical impairments.

In support of his second objection, Mr. Estes raises contentions relating to

purported limitations caused by a left knee injury and his urinary incontinence.

(Doc. 31 at 7–10.) Mr. Estes’s second objection is also unpersuasive.

Mr. Estes first contends that the Magistrate Judge improperly discounted as

“not relevant to the period in question” treatment notes from 2006 or 2007 following

an injury to his left knee that preceded the 2014 alleged onset date. (Id. at 7.) Mr.

Estes reasons that the records were relevant because although the injury occurred

in 2006 or 2007, the resulting medical condition could still require treatment and

affect his ability to work between the alleged onset date and the date last insured.

(Id.) He also argues that, given these medical records, the ALJ should have ordered

a consultative examination. (Id.)

However, as Mr. Estes acknowledges, a prior examination was performed,

during which he stated that his left knee was unstable, swells, and dislocates in

certain positions. (Id.; Doc. 17-11 at 21.) That record, which was presented to the

ALJ, further noted that, despite a 2008 ACL tear in Mr. Estes’s left knee, the

gaps in medical records. Rather, as noted, the ALJ left the record open to obtain

additional documentation.

diagnosed conditions did not “impact his . . . ability to perform any type of

occupational task (such as standing, walking, lifting, sitting, etc.).” (Doc. 17-11 at

29.)

As noted, the ALJ did not err in failing to order a consultative examination,

and the record was sufficiently developed to allow the ALJ to make an informed

decision. (See Doc. 17-10 at 52; Doc. 17-11 at 21, 29–30.) Furthermore, substantial

evidence supported the ALJ’s decision not to include the left knee impairment in the

residual functional capacity (“RFC”) and hypotheticals posed to the vocational

expert.5 Put simply, the record did not contain medical evidence reflecting

functional impairments caused by Mr. Estes’s left knee impairment, and the ALJ

need not include unsupported findings or impairments without functional

limitations in either the RFC or hypotheticals. See Crawford v. Comm’r of Soc. Sec.,

363 F.3d 1155, 1161 (11th Cir. 2004); see also Ingram, 496 F.3d at 1270.

Mr. Estes next contends that the ALJ “failed to consider [his] urinary

incontinence, which would necessitate many breaks during the workday,” erred in

finding urinary continence medically determinable but non-severe, and erred in

failing to include related limitations in the RFC and hypotheticals. (Doc. 31 at 9.)

5 An individual’s RFC is his ability to do physical and mental work activities

on a sustained basis despite limitations caused by impairments. See Delker v.

Comm’r of Soc. Sec., 658 F. Supp. 2d 1340, 1364 (M.D. Fla. 2009). In formulating

the RFC, the ALJ must consider all impairments that may cause functional

limitations. Id.; 20 C.F.R. §§ 416.945(a)(1), (3); 20 C.F.R. §§ 404.1545(a), 416.945(a)

(requiring consideration of “all the relevant evidence in [a] case record”).

As an initial matter, because the ALJ characterized other impairments as

severe, any error in deeming Mr. Estes’s urinary incontinence non-severe was

harmless. See Ball v. Comm’r of Soc. Sec. Admin., 714 F. App’x 991, 993 (11th Cir.

2018). Additionally, contrary to Mr. Estes’s assertions, the ALJ did consider his

urinary continence. As the ALJ explained, there were “no significant objective

medical findings or identification of limitations in the record.” (Doc. 17-2 at 110–11;

Doc. 17-9 at 4, 15, 25, 33, 42, 48, 52.) Mr. Estes was provided and wears adult

undergarments for the impairment. (Doc. 17-11 at 173.) Moreover, although

performed after the date last insured, a May 20, 2019 cystoscopy was normal, and

Mr. Estes had not seen a urologist, and, even more, declined a referral to a urologist

and medication to treat the impairment.6 (Doc. 17-2 at 111; Doc. 17-10 at 55; Doc.

17-16 at 98.)

In summary, the record was sufficient to allow the ALJ to make an informed

decision and contained substantial evidence to support the decision not to include

Mr. Estes’s continence in the RFC and hypotheticals.7 Accordingly, the Court

6 At the time of the hearing before the ALJ, Mr. Estes had not undergone a

cystoscopy, and he testified that he had a forthcoming appointment with a urologist.

(Doc. 17-3 at 129–30.)

7 Mr. Estes’s reliance on Powell v. Astrue, 250 F. App’x 960 (11th Cir. 2007),

is unavailing. (Doc. 31 at 9.) There, the ALJ improperly rejected the claimant’s

“nuanced account of the limitations” caused by her persistent bowel incontinence.

Powell, 250 F. App’x at 964. Further, the claimant had “presented at least two

doctors’ reports associating her incontinence with the severe physical impairments

the ALJ found her to have.” Id. In contrast, the ALJ here did not discredit Mr.

Estes’s account of his impairments. Rather, his account—and the medical evidence

of record—did not indicate any functional limitations caused by his incontinence.

cannot conclude that the ALJ failed to apply the correct law or that her finding was

not based on substantial evidence. The second objection is therefore also overruled.

CONCLUSION

After an independent review of the record, including a de novo review of the

portions of the Magistrate Judge’s Report and Recommendation specifically objected

to and the conclusions of law, itis ORDERED:

1. My. Estes’s objections to the Magistrate Judge’s Report and

Recommendation (Doc. 31) are OMPERRULLED.

2. The Report and Recommendation (Doc. 29) is ADOPTED and made

part of this Order.

3. The decision of the Commissioner denying disability insurance benefits

is AFFIRMED.

4. The Clerk is DIRECTED to terminate any pending deadlines and

motions and close the file.

ORDERED in Fort Myers, Florida, on September 1, 2021.

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE

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