Opinion

Cooper v. Commissioner of Social Security

Court
District Court, M.D. Florida
Filed
Aug 17, 2022
Cited by
0 cases
Authority
More cited than 19.9%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

KIMBERLY COOPER,

Plaintiff,

v. Case No.: 2:20-cv-936-KCD

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

/

ORDER1

Kimberly Cooper brings this action under 42 U.S.C. §§ 405(g) and

1383(c)(3)2 to review a final decision of the Commissioner of Social Security

denying her applications for disability insurance benefits and supplemental

security income. (Doc. 1.) Under review is a decision by an Administrative Law

Judge (ALJ). (Tr. 13-31.) The procedural history, administrative record, and

law are summarized in the joint memorandum (Doc. 26), and not fully repeated

here.

1 Disclaimer: Documents hyperlinked to CM/ECF are subject to PACER fees. By using

hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties

or the services or products they provide, nor does it have any agreements with them. The

Court is also not responsible for a hyperlink’s availability and functionality, and a failed

hyperlink does not affect this Order.

2 Unless otherwise indicated, all internal quotation marks, citations, and alterations have

been omitted in this and later citations.

Cooper presents one issue: whether the ALJ failed to properly develop

the record related to her mental limitations. (Doc. 26.) The Commissioner

contends there was no error. (Doc. 26.) For the reasons below, the ALJ’s

decision is affirmed.

A court’s review of a decision by the Commissioner is limited to whether

substantial evidence supports the factual findings and whether the correct

legal standards were applied. 42 U.S.C. § 405(g); see also 42 U.S.C. § 1383(c)(3)

(incorporating § 405(g)); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir.

2002). Substantial evidence means “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Biestek v. Berryhill,

139 S. Ct. 1148, 1154 (2019). The “threshold for such evidentiary sufficiency is

not high.” Id.

A claimant has the burden of establishing disability and must produce

evidence to support the claim, Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th

Cir. 2003), while the ALJ has a duty to develop a full and fair record, Cowart

v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981). The evidence must show how

the claimant’s impairments affect her functioning during the time she says she

is disabled, and upon request, she must provide any other information the

Social Security Administration (SSA) needs to decide her claim. 20 C.F.R. §§

404.1512(a)(1), 416.912(a)(1). If a claimant fails to provide the “medical and

other evidence” the SSA needs, it will “make a decision based on information

available[.]” 20 C.F.R. §§ 404.1516, 416.916. If an ALJ fails to fulfill his duty

to fully develop the record and “the record reveals evidentiary gaps which

result in unfairness or clear prejudice,” remand is warranted. Brown v.

Shalala, 44 F.3d 931, 935 (11th Cir. 1995).

The SSA generally “will not request a consultative examination until [it]

has made every reasonable effort to obtain evidence” from the claimant’s

medical sources. 20 C.F.R. §§ 404.1512(b)(2), 416.912(b)(2). The regulations

permit the ALJ to order a consultative examination if the medical evidence is

insufficient to determine whether the claimant is disabled. 20 C.F.R. §§

404.1520b; 404.1517.

As noted, Cooper argues the ALJ failed to develop the record related to

her mental limitations. She contends the ALJ should have ordered a

consultative mental examination because there is an evidentiary gap in the

record. The Court disagrees. The ALJ fully developed the record, and

substantial evidence supports the decision.

The ALJ found Cooper suffers from severe impairments, including

anxiety and depression. But she has no impairment or combination of

impairments that meets or medically equals the severity of an impairment

listed in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix

1. (Tr. 19.) The ALJ observed that no physician or specialist found otherwise.

(Tr. 19.)

The ALJ further evaluated the severity of Cooper’s mental impairments

under the psychiatric review technique. (Tr. 19-21.) The ALJ found that,

consistent with the record, Cooper has mild and moderate limitations in the

functional areas of the analysis. (Tr. 19.) In the RFC, the ALJ accounted for

Cooper’s mild and moderate limitations in mental functioning: “She can only

understand, remember and carry out simple routine tasks. She can only adapt

to occasional workplace changes.” (Tr. 21.)

In determining the RFC, the ALJ also considered objective medical

evidence. (Tr. 26.) The evidence includes: visits with Premier Family Clinic

where she reported that medications were controlling her mood swings, normal

mental status exam, not taking medications as instructed (Tr. 22, 468-70, 473-

75); visits with Psychiatric Clinic showing generally normal mental status

examinations; began taking medications as instructed, feeling better, and

wanted to get back to work despite some ongoing anxiety related symptoms

(Tr. 22-23, 561-75, 590-623); emergency room visit at the Decatur Morgan

Hospital for possible overdose on her medications, but on discharge she showed

significant improvement and was in stable condition (Tr. 23, 514-60); and

Cooper contacted the State agency in December 2018 and reported her mental

symptoms were controlled by medication (Tr. 24, 241).

The ALJ also considered: Cooper’s testimony and activities of daily living

(Tr. 20-21); Cooper’s work history (Tr. 25); and the opinions of Robert Estock,

M.D., the State agency psychological consultant, who concluded that Cooper

could perform the RFC outlined by the ALJ (Tr. 26, 93-94.) The ALJ limited

the RFC even further to account for limitations in Cooper’s ability to adapt to

changes. (Tr. 21, 26.)

Cooper emphasizes that the ALJ stated that the record contained no

medical opinion from February 14, 2019, to the hearing date (Tr. 24), but she

testified that she was still being treated (Tr. 50-51). (Doc. 26 at 7.) Because she

was still being treated, Cooper argues the ALJ should have ordered a

consultative examination or left the record open and directed counsel to obtain

missing records before issuing his decision. (Doc. 26 at 8.)

Cooper’s argument fails. As the Commissioner contends, Cooper,

through counsel, did not request that the record be left open to obtain

additional records, instead telling the ALJ twice at the hearing that the record

was complete and that no other evidence was forthcoming. (Tr. 35, 56-57); see

20 C.F.R. §§ 404.1516, 416.916 (if a claimant fails to provide the “medical and

other evidence” the SSA needs, the SSA will “make a decision based on

information available[.]”). In fact, post-hearing, Cooper’s counsel obtained

more recent medical records—26-pages from August 2019 to September 2019

(Tr. 59-84)—but Cooper does not explain why those records show ongoing

symptoms or complaints related to her mental impairments that are more

severe or imposed additional limitation beyond those the ALJ assessed. (Doc.

26 at 8.) Those records reveal Cooper sought treatment at Lee Memorial

Hospital in August 2019, which preceded the hearing before the ALJ by a

month, but Cooper still failed to identify this evidence and provide it to the

ALJ. These 26-pages of records do not show a prejudicial gap. (See Tr. 75, 81

(noted to be moderately and borderline ill); Tr. 76 (refused psychotherapy

referral); Tr. 77 (no suicide attempt for more than a year; no current thoughts

of suicide, stating, “I want to live”); Tr. 80 (some abnormal findings on mental

status exam, but was not suicidal and her perception and thought processes

were normal); Tr. 82 (anxiety improved); Tr. 84 (normal mental status exam).)

These records do not suggest that any consultative examination would help

Cooper’s case, even had she shown an evidentiary gap. Additionally, these

records were later submitted by counsel and considered by the Appeals

Council, which found that the evidence “does not show a reasonable probability

that it would change the outcome of the decision.” (Tr. 2.)

The statement by the ALJ that Cooper had received no treatment from

February 2019 through the date of the hearing was accurate according to what

the ALJ had in front of him when he issued his decision, and at any rate, was

only one consideration that the ALJ evaluated in determining that the

evidence, as a whole, did not support additional mental limitations in the RFC.

An ALJ has “regulatory flexibility to evaluate mental impairments to

determine their severity.” Sneed v. Barnhart, 214 F. App’x 883, 886 (11th Cir.

2006) (citing 20 C.F.R. § 404.1520a and Plummer v. Apfel, 186 F.3d 422, 433

(38d Cir. 1999)). As discussed above, substantial evidence supports the RFC

assessment. (Tr. 19-26.)

Because the record was sufficient for the ALJ to make an informed

decision, the ALJ did not have to order a consultative examination. See 20

C.F.R. §§ 404.1520b; 404.1517.

The Court thus AFFIRMS the Commissioner’s decision and directs the

Clerk to enter judgment for the Commissioner and against Timothy Terrance

Williams and close the file.

ORDERED in Fort Myers, Florida this August 17, 2022.

Je Se —

lyk é. Lael

* Kale C. Dudek

United States Magistrate Judge

Copies: All Parties of Record

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