Roberts v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

VICTORIA LYNN ROBERTS,

Plaintiff,

v. Case No. 8:21-cv-508-AEP

KILOLO KIJAKAZI,

Acting Commissioner of Social Security,1

Defendant.

/

ORDER

Plaintiff seeks judicial review of the denial of her claim for a period of

disability, disability insurance benefits (“DIB”), and Supplemental Security Income

(“SSI”). As the Administrative Law Judge’s (“ALJ”) decision was based on

substantial evidence and employed proper legal standards, the Commissioner’s

decision is affirmed.

I.

A. Procedural Background

Plaintiff filed an application for a period of disability, DIB, and SSI (Tr. 483–

97). The Social Security Administration (“SSA”) denied Plaintiff’s claims both

initially and upon reconsideration (Tr. 218–91, 325–41). Plaintiff then requested an

1 Dr. Kilolo Kijakazi is now the Acting Commissioner of Social Security. Pursuant to

Rule 25(d) of the Federal Rules of Civil Procedure, Acting Commissioner Kilolo Kijakazi

should be substituted for Commissioner Andrew M. Saul as the defendant in this matter.

No further action needs to be taken to continue this matter by reason of the last sentence

administrative hearing (Tr. 342–43). Per Plaintiff’s request, the ALJ held a hearing

at which Plaintiff appeared and testified (Tr. 171–89). Following the hearing, the

ALJ issued an unfavorable decision finding Plaintiff not disabled and accordingly

denied Plaintiff’s claims for benefits (Tr. 292–312). Plaintiff then requested review

of the ALJ’s decision by the Appeals Council (Tr. 393). After consideration, the

Appeals Council remanded the case back to the ALJ (Tr. 313–15). In doing so, the

Appeals Council indicated that the ALJ would proceed with the following:

Obtain supplemental evidence from a vocational expert to determine

whether the claimant has acquired any skills from past work

performed prior to July 31, 2013 that are transferable to other

occupations under the guidelines in Social Security Ruling 82-41. The

hypothetical questions should reflect the specific capacity/limitations

established by the records as a whole. The Administrative Law Judge

will ask the vocational expert to identify examples of such appropriate

jobs and to state the incidence of such jobs in the national economy

(20 CFR 404.1566 and 416.966). Further, before relying on the

vocational expert evidence[,] the Administrative Law Judge will

identify and resolve any conflicts between the occupational evidence

provided by the vocational expert and information in the Dictionary

of Occupational Titles (DOT) and its companion publication, the

Selected Characteristics of Occupations (Social Security Ruling 00-

4p).

(Tr. 315).

Upon remand from the Appeals Council, the ALJ held two hearings at which

Plaintiff appeared (Tr. 132–58, 164–70).2 After the hearing, the ALJ again issued an

unfavorable decision finding Plaintiff not disabled and denying Plaintiff’s claim for

2 At the initial hearing, Plaintiff appeared with her mother but without a legal

representative, so the ALJ discussed Plaintiff’s right to representation with Plaintiff and

her mother and indicated that the second hearing would occur within 90 days of the initial

hearing even if she did not obtain representation (Tr. 164-70). At the second hearing,

benefits (Tr. 73–95). Subsequently, Plaintiff requested review from the Appeals

Council, which the Appeals Council denied (Tr. 1–7, 468–71). Plaintiff then timely

filed a complaint with this Court (Doc. 1). The case is now ripe for review under 42

U.S.C. §§ 405(g), 1383(c)(3).

B. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1961, claimed disability beginning July 31, 2013,

which she later amended to October 25, 2017 (Tr. 483, 490, 684–93). Plaintiff

obtained at least a high school education (Tr. 546). Plaintiff’s past relevant work

experience included work as an office manager, a teller, a fast food worker, and a

retail cashier (Tr. 152, 547). Plaintiff alleged disability due to depression, anxiety

disorder, rheumatoid arthritis, chronic bronchitis, asthma, spondylitis from T-11 to

S-1, herniated disc at T-11 to T-12, torn right shoulder rotator cuff, migraines, and

limited mobility in the right wrist due to a work injury (Tr. 545).

In rendering the administrative decision, the ALJ concluded that Plaintiff

met the insured status requirements through December 31, 2020 and had not

engaged in substantial gainful activity since October 25, 2017, the amended alleged

onset date (Tr. 79). After conducting a hearing and reviewing the evidence of record,

the ALJ determined Plaintiff had the following severe impairments: osteoarthritis

and degenerative disc disease of the lumbar spine (Tr. 79). Notwithstanding the

noted impairments, the ALJ determined Plaintiff did not have an impairment or

combination of impairments that met or medically equaled one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 80). The ALJ then

concluded that Plaintiff retained a residual functional capacity (“RFC”) to perform

light work, except that she could lift and/or carry 20 pounds occasionally; lift

and/or carry 10 pounds frequently; stand and/or walk six hours in an eight-hour

workday; sit six hours in an eight-hour workday; frequently balance; only

occasionally stoop, kneel, crouch, crawl, and climb ladders, ropes, scaffolds, ramps,

and stairs; only frequently handle with both hands; and must avoid concentrated

exposure to extreme cold and vibrations, dust, gases, poor ventilation, and odors

(Tr. 81). In formulating Plaintiff’s RFC, the ALJ considered Plaintiff’s subjective

complaints and determined that, although the evidence established the presence of

underlying impairments that reasonably could be expected to produce the

symptoms alleged, Plaintiff’s statements as to the intensity, persistence, and limiting

effects of her symptoms were not entirely consistent with the medical evidence and

other evidence (Tr. 82).

Considering Plaintiff’s noted impairments and the assessment of a vocational

expert (“VE”), the ALJ determined Plaintiff could perform her past relevant work

as an office manager and a retail cashier (Tr. 85). Beyond that, the VE testified that,

given Plaintiff’s background and the RFC, Plaintiff could perform other jobs

existing in significant numbers in the national economy, such as a recreational

facility attendant and a grocery clerk (Tr. 86, 153–57). Accordingly, based on

Plaintiff’s age, education, work experience, RFC, and the testimony of the VE, the

ALJ found Plaintiff not disabled (Tr. 86–87).

II.

To be entitled to benefits, a claimant must be disabled, meaning he or she

must be unable to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for a continuous period

of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A

“physical or mental impairment” is an impairment that 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),

1382c(a)(3)(D).

To regularize the adjudicative process, the SSA promulgated the detailed

regulations currently in effect. These regulations establish a “sequential evaluation

process” to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520,

416.920. If an individual is found disabled at any point in the sequential review,

further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this

process, the ALJ must determine, in sequence, the following: whether the claimant

is currently engaged in substantial gainful activity; whether the claimant has a severe

impairment, i.e., one that significantly limits the ability to perform work-related

functions; whether the severe impairment meets or equals the medical criteria of 20

C.F.R. Part 404 Subpart P, Appendix 1; and whether the claimant can perform his

or her past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the claimant

cannot perform the tasks required of his or her prior work, step five of the evaluation

requires the ALJ to decide if the claimant can do other work in the national

economy in view of his or her age, education, and work experience. 20 C.F.R. §§

404.1520(a)(4)(v), 416.920(a)(4)(v). A claimant is entitled to benefits only if unable

to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140–42 (1987); 20 C.F.R. §§

404.1520(g)(1), 416.920(g)(1).

A determination by the Commissioner that a claimant is not disabled must

be upheld if it is supported by substantial evidence and comports with applicable

legal standards. See 42 U.S.C. §§ 405(g), 1383(c)(3). “Substantial evidence is more

than a scintilla and is such relevant evidence as a reasonable person would accept

as adequate to support a conclusion.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,

1178 (11th Cir. 2011) (citation and internal quotation marks omitted). While the

court reviews the Commissioner’s decision with deference to the factual findings,

no such deference is given to the legal conclusions. Ingram v. Comm’r of Soc. Sec., 496

F.3d 1253, 1260 (11th Cir. 2007) (citations omitted).

In reviewing the Commissioner’s decision, the court may not reweigh the

evidence or substitute its own judgment for that of the ALJ, even if it finds that the

evidence preponderates against the ALJ’s decision. Winschel, 631 F.3d at 1178

(citations omitted); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). The

Commissioner’s failure to apply the correct law, or to give the reviewing court

sufficient reasoning for determining that he or she has conducted the proper legal

analysis, mandates reversal. Ingram, 496 F.3d at 1260 (citation omitted). The scope

of review is thus limited to determining whether the findings of the Commissioner

are supported by substantial evidence and whether the correct legal standards were

applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002)

(per curiam) (citations omitted).

III.

Plaintiff argues that the ALJ erred in issuing his decision by failing to

properly develop the record as to Plaintiff’s mental impairments specifically through

the failure to order a psychological examination (Doc. 18 at 10). Plaintiff points to

two 2016 opinions from psychologists who determined that the claimant had no

severe mental impairments (Tr. 245–46, 263–64). Plaintiff asserts that the ALJ

should not have relied on the opinions from 2016, approximately four years before

the ALJ issued its decision, but rather the ALJ should have obtained an updated

psychological consultative examination (Doc. 18 at 6). For the foregoing reasons,

Plaintiff’s argument is without merit and the judgment of the ALJ is affirmed.

“[T]he ALJ has a basic duty to develop a full and fair record.” Ellison v.

Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); see 20 C.F.R. §§ 404.1512(b)(1)(ii),

416.912(b)(1)(ii) (stating that if the claimant alleges his disability began less than 12

months before filing his application, the ALJ will develop the claimant’s complete

medical history from the month the claimant alleges his disability began to the

month in which the application was filed). However, “the claimant bears the burden

of proving he is disabled,” and has a duty to provide evidence supporting his claim.

Ellison, 355 F.3d at 1276; 20 C.F.R. §§ 404.1512(a), 416.912(a)(1) (“This duty is

ongoing and requires you to disclose any additional related evidence about which

you become aware.”). When the claimant is not represented at the hearing before

the ALJ, which is not the case here,3 the ALJ’s “obligation to develop a full and fair

record rises to a special duty . . . to scrupulously and conscientiously probe into,

inquire of, and explore for all the relevant facts and to be especially diligent in

ensuring that favorable as well as unfavorable facts and circumstances are

elicited.” Graham v. Apfel, 129 F.3d 1420, 1422–23 (11th Cir. 1997) (internal

citations omitted).

The ALJ’s duty to develop the record may require ordering a consultative

examination. The ALJ is required to order a consultative examination “only when

necessary information is not in the record and cannot be obtained from the

claimant’s treating medical sources.” Doughty v. Apfel, 245 F.3d 1274, 1281 (11th

Cir. 2001); see 20 C.F.R. § 404.1519a(b) (stating that the ALJ may order a

consultative examination when the evidence in the record is insufficient to allow

the ALJ to make a determination). Thus, if there is sufficient information in the

record for the ALJ to make an informed decision, the ALJ is not required to order

a consultative examination. Ingram, 496 F.3d 1269. “It is reversible error for an ALJ

not to order a consultative examination when such an evaluation is necessary for

the ALJ to make an informed decision.” Reeves v. Heckler, 734 F.2d 519, 522 n.1

(11th Cir. 1984).

3 The Commissioner argues that the heightened duty was not triggered because Plaintiff

was represented by counsel (Doc. 18 at 11). Plaintiff was initially not represented by

counsel but obtained counsel prior to the administrative hearing (Tr. 132). At any rate,

Plaintiff does not argue for the heightened duty, but rather bases her argument on the

ALJ’s basic duty to develop the record (see Doc. 18 at 7–10). Accordingly, no heightened

In order to qualify for reversal, a plaintiff must demonstrate prejudice. Brown

v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (citing Kelly v. Heckler, 761 F.2d 1538,

1540 n.2 (11th Cir. 1985)). Prejudice may be shown where the record contains

evidentiary gaps resulting in “unfairness or clear prejudice.” Smith v. Schweiker, 677

F.2d 826 (11th Cir. 1982) (internal quotation and citation omitted); see Brown, 44

F.3d at 936 n.9 (finding that there may be unfair prejudice to a claimant where there

is an evidentiary gap in the record involving recent medical treatment). However,

the mere lack of a consultative examination is inadequate to meet a plaintiff’s

burden to demonstrate prejudice. See Henderson v. Comm’r of Soc. Sec., 353 F. App’x

303, 305 (11th Cir. 2009) (holding claimant failed to show prejudice for failure to

develop the record as claimant did “not explain how the absence of [the discussed

evidence] precluded the ALJ from making an informed disability determination.

Nor does [claimant] explain how such an assessment would have affected the ALJ’s

overall disability determination”); Slocumb v. Comm’r of Soc. Sec., No. 5:16-cv-617-

Oc-10PRL, 2017 WL 2889804, at *4 (M.D. Fla. May 15, 2017) (“[I]t is Plaintiff’s

duty to show how the ALJ’s failure to obtain a psychological examination

prejudiced her, the mere lack of a consultative examination is inadequate to meet

Plaintiff’s burden when the record contains sufficient evidence to determine

whether she is disabled.”). Rather, a plaintiff must show the ALJ’s decision would

have been impacted by a consultative examination. Robinson v. Astrue, 365 F. App’x

993, 999 (11th Cir. 2010) (finding claimant could not show she suffered prejudice

“because there is no evidence ALJ’s decision would have changed in light of any

additional information”).

Here, Plaintiff is unable to show prejudice requiring remand because there is

no evidentiary gap in the record. Plaintiff first reported suffering from depression

on September 5, 2014 and the record indicates she was recommended a counselor

for her stress and depression in June of 2015 (Tr. 817, 1018). From June 11, 2015

through June 9, 2016, Dr. Imran Kayani, Plaintiff’s primary care physician,

routinely noted that the Plaintiff had benign mental status evaluation findings with

rare complaints of crying spells (Tr. 859, 874, 880, 886, 901, 906). Dr. Kayani

referred Plaintiff to a psychiatrist, Dr. Maulik Trivedi, who Plaintiff first visited July

12, 2016 and saw again on August 1, August 12, and October 17 of 2016 (Tr. 917–

55). Dr. Trivedi diagnosed Plaintiff with major depressive disorder, generalized

anxiety disorder, social phobia, PTSD, and cognitive impairment but ruled out

ADD (Tr. 946–47). Around this time, Dr. Eric Weiner and Dr. Jennifer Meyer

issued separate examination reports, both of which concluded Plaintiff’s mental

impairments were non-severe (Tr. 245–46, 263–64). Plaintiff’s treatment for her

mental impairments paused after October 17, 2016 while her treatment for physical

impairments continued (Tr. 1024–45, 1107–40). Plaintiff’s mental health treatment

resumed two years later when she began seeing LMHC Dawn Rowe for her

depression and anxiety on November 21, 2019 and returned December 18, 2019

and January 15, 2020 (Tr. 1265–82). The ALJ issued his decision on remand on

May 27, 2020 (Tr. 87).

Plaintiff attacks the ALJ’s decision by arguing that in the interim period

between the issuance of the consultants’ reports and the ALJ’s decision, it would

have been “impossible for these two consultants to predict or consider, much less

weigh” the fact that Plaintiff was prescribed medication for her mental impairments

and was also seen by psychiatrist Dr. Trivedi and LMHC Rowe (Doc. 18 at 7–8).

Thus, according to Plaintiff, an updated psychological consultative examination

should have been ordered. However, Plaintiff neglects that it is the ALJ, not doctors,

that determine whether a claimant is disabled. Robinson, 365 F. App’x at 999. While

it may be true that the consultants could not have considered this new information,

the ALJ’s record included Plaintiff’s prescription medication and visit records from

Dr. Trivedi and LMHC Rowe (Tr. 917–55, 1265–82). Plaintiff does not explain the

nature of the ALJ’s alleged evidentiary gap, nor does Plaintiff set out how the ALJ’s

decision—not the consultant’s decision—would have potentially changed with the

addition of a consultative examination. The mere lack of a consultative examination

is inadequate to meet Plaintiff’s burden to demonstrate prejudice. See Henderson,

353 F. App’x at 305. Thus, Plaintiff fails to show that there was an evidentiary gap

such that the ALJ’s decision was prejudiced.

Plaintiff is also unable to show prejudice requiring remand because there was

substantial evidence to support the ALJ’s determination without the updated

consultative examination. While the ALJ found the opinions by Dr. Weiner and

Dr. Meyer persuasive and gave them “great weight,” the ALJ did not rely on their

opinions exclusively (Tr. 84). The ALJ relied on other evidence in the record. For

example, the ALJ noted the record showed largely “unremarkable” mental status

examinations (Tr. 84). This is supported by the record. Plaintiff’s primary care

physician routinely noted that the Plaintiff had benign mental status evaluation

findings from June 11, 2015 through June 9, 2016. (Tr. 859, 874, 880, 886, 901,

906). Plaintiff visited her psychiatrist July 12, August 1, August 12, and October 17

of 2016 and despite diagnosing Plaintiff with major depressive disorder, generalized

anxiety disorder, social phobia, and PTSD, Dr. Trivedi consistently noted that

Plaintiff had benign mental status exam findings and that Plaintiff “lacks evidence

for signs and symptoms associated with a DSM diagnosis of Learning

Disorder/PDD, Bipolar Disorder, Panic disorder, OCD, PTSD, Substance abuse,

Eating Disorder, Dementia, and Psychosis.” (Tr. 919–21, 932–34, 948–50). At

various appointments with LMHC Rowe, the counselor described Plaintiff as

appearing “anxious” and “uncomfortable” but otherwise behaving normally and

lacking suicidal ideations (Tr. 1268, 1274, 1277). Plaintiff again received normal

mental status reports on September 18, 2017 (Tr. 1118), December 20, 2019 (Tr.

1271), December 23, 2019 (Tr. 1256), January 24, 2020 (Tr. 1264), and February

18, 2020 (Tr. 1320).

The ALJ also noted Plaintiff’s lack of mental health treatment and that her

treatment history is primarily for physical impairments (Tr. 84). This is also

supported by the record. For example, Plaintiff’s treatment for her mental

impairments paused after October 17, 2016 while her treatment for physical

impairments continued (Tr. 1024–43, 1107–40). Plaintiff’s mental health treatment

resumed two years later when she began seeing LMHC Rowe for her depression

and anxiety on November 21, 2019 and returned December 18, 2019 and January

15, 2020 (Tr. 1265–82).4 In terms of medication for her mental health challenges,

Plaintiff was prescribed escitalopram (Lexapro) by her primary care physician in

2015 (Tr. 898). Dr. Trivedi switched her to citalopram (Celexa) and duloxetine

(Cymbalta) and later to a combination of aripiprazole (Abilify) and diazepam

(Valium) (Tr. 924, 954). However, it is unclear whether Plaintiff actually took the

prescribed medication because in November 2019, Plaintiff told her counselor that

she did not stay on the medication due to tiredness but was willing to try again (Tr.

1277). She tried escitalopram for three days but complained of stomach pains and

stopped (Tr. 1271, 1274). At the hearing, Plaintiff testified that she was currently

taking the medication and had been for six to eight months (Tr. 145).

Plaintiff argues that reliance on a lack of treatment for mental health

challenges is unfair due to lack of resources and the nature of mental health itself,

citing Sparks v. Barnhart, 434 F. Supp. 2d 1128 (N.D. Ala. 2006). In Sparks, the

district court noted that “[c]ourts have long recognized the inherent unfairness of

placing emphasis on a claimant’s failure to seek psychiatric treatment.” Id. at 1135.

Sparks addressed a claimant who had limited insight and whose mental illness

caused her to make poor judgments such as stopping medication. Id. at 1136. The

4 Plaintiff returned to Rowe on June 16, 2020 (Tr. 72), July 16, 2020 (Tr. 68), August 13,

2020 (Tr. 63), and September 8, 2020 (Tr. 55). However, as those appointments occurred

after the hearing and the ALJ’s decision, that evidence would not have been before the

ALJ. Discussion of those appointments proceeds below in relation to the Appeal

facts in Sparks which rendered lack of treatment an inappropriate point of

analysis are not present here. In this case, Plaintiff has never mentioned, implied,

or argued that her mental impairments or lack of resources negatively impacted her

ability to seek treatment until this appeal. Without such an indication in the record,

courts have found no unfairness. See, e.g., Barnes v. Comm’r of Soc. Sec., No.

218CV312FTM38PDB, 2019 WL 5110697 (M.D. Fla. Aug. 2, 2019), report and

recommendation adopted, No. 2:18CV312FTM38PDB, 2019 WL 3956190 (M.D.

Fla. Aug. 22, 2019); Benbow v. Astrue, No. 5:12CV17/EMT, 2013 WL 771798, at *8

(N.D. Fla. Feb. 28, 2013) (unpublished) (“[T]he record wholly fails to support

Plaintiff’s suggestion that her ‘mental illness itself . . . affected her failure to seek

treatment.’”).

Finally, the ALJ also noted that Plaintiff reports being mentally independent

in most daily activities (Tr. 84). At various times in the record, Plaintiff described

preferring to stay in her house and avoiding social interactions because they trigger

her anxiety (Tr. 586, 604, 1275, 1317). Plaintiff also testified to issues with

concentration, general sadness, and difficulties with personal and workplace

interactions (Tr. 143–46). She said some days she does not feel like doing anything

at all, even simple tasks (Tr. 145). However, Plaintiff also reported the ability to

perform home and personal maintenance, prepare meals, pay bills, go to doctor’s

appointments, take medications, shop, and drive (Tr. 600–5). Plaintiff has also

mentioned enjoying going to church on Sundays and spending time caring for

children such as serving as a nanny for various families and watching the children

in the nursery after mass (Tr. 1268, 1274, 1277).

Plaintiff attacks this analysis by quoting Lewis v. Callahan, for the notion that

“participation in everyday activities of short duration, such as housework or

fishing” does not disqualify a claimant from disability. 125 F.3d 1436, 1441 (11th

Cir. 1997). In Lewis, the Eleventh Circuit held that the ALJ improperly applied daily

activity evidence to discount the opinion of a treating physician. Id. The Eleventh

Circuit has since clarified that Lewis should not be read to bar ALJs from considering

a claimant’s daily activities entirely; rather, the case stands for the notion that “a

claimant’s admission that she participates in daily activities for short durations does

not necessarily disqualify the claimant from disability.” Majkut v. Comm’r of Soc. Sec.,

394 F. App’x 660, 665 (11th Cir. 2010); 20 C.F.R. §§ 404.1529(c)(3)(i),

416.929(c)(3)(i) (listing the claimant’s daily activities as one of the factors to

consider in evaluating the claimant’s symptoms). Given that the daily activity

testimony is not the ALJ’s sole source of evidence, the ALJ does not run afoul of

Eleventh Circuit case law by relying in part on daily activity evidence.

Plaintiff also attacks this analysis by arguing that the ALJ mischaracterizes

Plaintiff’s testimony by ignoring her level of discomfort or difficulty in performing

her daily activities (Doc. 18 at 8 (citing Williams v. Astrue, No. CV406-19, 2008 WL

591288 (S.D. Ga. Mar. 3, 2008)). Plaintiff describes “having a hard time being

friendly” with customers at former jobs and trouble focusing (Tr. 145). She also

testifies that she sometimes has days where she does not feel like doing anything,

even making sandwiches or using the microwave (Tr. 145). The ALJ does not

mischaracterize the nature of Plaintiff’s daily activities as the district court found in

Williams. 2008 WL 591288 at *5. The ALJ relied upon Plaintiff’s ability to perform

personal and household maintenance, prepare meals, pay bills, manage funds, go

to doctor’s appointments, take medicine, shop, drive provide information about her

health or work history, follow instructions, comply with treatment, and get along

with others (Tr. 79–80). Plaintiff’s allegations of difficulties do not render the ALJ’s

reliance on the daily activity evidence faulty. Instead, the ALJ weighed the

evidence. It is the ALJ’s duty to weigh the evidence and it is not for this court to

reweigh on appeal. See Winschel, 631 F.3d at 1178.

Thus, to summarize, Plaintiff failed to demonstrate prejudice from the ALJ’s

failure to order an updated psychological consultative examination. Plaintiff was

unable to show either a prejudicial evidentiary gap or a lack of substantial evidence

in the absence of the updated examination. Plaintiff raises a handful of additional

arguments worth addressing, none of which warrant remand.

First, Plaintiff argues the ALJ has a statutory duty under 42 U.S.C. § 421(h)

to make every reasonable effort to obtain the opinion of a qualified psychiatrist or

psychologist “in any case where there is evidence which indicates the existence of a

mental impairment.” (Doc. 18 at 7 (citing 42 U.S.C. § 421(h))). As Plaintiff notes,

the Eleventh Circuit implied that this duty applied to ALJ decisions in 1988 case

McCall v. Bowen, 846 F.2d 1317, 1320 (11th Cir. 1988). However, the Eleventh

Circuit has since walked back that interpretation, referencing the Third Circuit’s

interpretation of the statute, which excludes hearings before ALJs from that

requirement. See Sneed v. Barnhart, 214 F. App’x 883, 886 (11th Cir. 2006) (citing

Plummer v. Apfel, 186 F.3d 422, 433 (3d Cir.1999)). Both circuits have emphasized

the flexibility this provides ALJs in making their severity determinations. Id. (“[A]n

ALJ has regulatory flexibility to evaluate mental impairments to determine their

severity.”); Plummer, 186 F.3d at 433 (“[T]he Commissioner’s regulations provide

an ALJ with greater flexibility than other hearing officers.”). Accordingly, Plaintiff’s

interpretation of 42 U.S.C. § 421(h) no longer prevails in the Eleventh Circuit.

Second, Plaintiff points to “new, non-cumulative, and clearly relevant

evidence presented to the Appeals Council regarding … the ongoing nature of

severe mental health problems.” (Doc. 18 at 8). It is not immediately clear what

Plaintiff means to prove by bringing up this evidence. To the extent Plaintiff intends

to argue the Appeals Council failed to consider the new evidence, that argument is

without merit. When a claimant appeals an ALJ’s decision to the Appeals Council,

“[t]he Appeals Council must consider new, material, and chronologically relevant

evidence and must review the case if the administrative law judge’s action, findings,

or conclusion is contrary to the weight of the evidence currently of record.” Ingram,

496 F.3d at 1261 (internal quotation and citation omitted). A remand is warranted

when a claimant submits new evidence to the Appeals Council, and the Appeals

Council did not adequately consider the new evidence in denying the claimant’s

request for review. Timmons v. Comm’r of Soc. Sec., 522 F. App’x 897, 902 (11th Cir.

2013) (citing Ingram, 496 F.3d at 1268). Accordingly, “the claimant must show that,

in light of the new evidence submitted to the Appeals Council, the ALJ’s decision

to deny benefits is not supported by substantial evidence in the record as a whole.

Id. (citing Ingram, 496 F.3d at 1266–67). The Eleventh Circuit consistently rejects

the notion that the Appeals Council must articulate a detailed explanation when

denying a request for review or considering newly submitted evidence. See Parks ex

rel. D.P. v. Comm’r, Soc. Sec. Admin., 783 F.3d 847, 852–53 (11th Cir. 2015)

(concluding the Appeals Council is not required to make specific findings of fact

when it denies review, regardless of whether the new evidence is deemed cumulative

or not chronologically relevant); Mitchell v. Comm’r of Soc. Sec., 771 F.3d 780, 784–

85 (11th Cir. 2014) (concluding that, where the Appeals Council accepted the new

evidence and stated that it denied review because the additional evidence failed to

establish error in the ALJ’s decision, the Appeals Council adequately reviewed the

new evidence and did not have to provide a detailed rationale for denying review).

Where the evidence submitted by the claimant is “new, material, and

chronologically relevant,” the Appeals Council must consider it. Ingram, 496 F.3d

at 1261 (internal quotation omitted); see 20 C.F.R. §§ 404.970(b), 416.1470(b).

“Evidence is ‘material’ when it is ‘relevant and probative so that there is a

reasonable possibility that it would change the administrative result.’” Stone v. Soc.

Sec. Admin., 658 F. App’x 551, 553 (11th Cir. 2016) (quoting Milano v. Bowen, 809

F.2d 763, 766 (11th Cir. 1987)). Further, evidence is considered chronologically

relevant when it relates to the period on or before the date of the ALJ’s decision.

Horowitz v. Comm’r of Soc. Sec., 688 F. App’x 855, 864 (11th Cir. 2017) (citing

Washington v. Soc. Sec. Admin., Com’r, 806 F.3d 1317, 1322 (11th Cir. 2015).

Plaintiff points to “new, non-cumulative, and clearly relevant evidence

presented to the Appeals Council regarding . . . the ongoing nature of severe mental

health problems.” (Doc. 18 at 8). The evidence Plaintiff cites consists of four

additional appointments with LMHC Rowe on June 16, 2020 (Tr. 68–72), July 16,

2020 (Tr. 64–68), August 13, 2020 (Tr. 59–63), and September 8, 2020 (Tr. 55–59).

The Appeals Council considered and addressed the evidence Plaintiff cites and

rejects it because the “additional evidence does not relate to the period at issue.

Therefore, it does not affect the decision about whether you were disabled beginning

on or before June 1, 2020.” (Tr. 2). Although the treatment records are substantively

relevant to Plaintiff’s claim, they do not contain probative information that has the

reasonable possibility of changing the administrative result. At these appointments,

Plaintiff reported symptoms of her mental health challenges consistent with

previous appointments and received normal mental status examinations. Plaintiff

was not prescribed any new medication but stayed on escitalopram, which the ALJ

was aware of already. Therefore, the Appeals Council applied the appropriate legal

standards and did not need to provide any further substantive rationale for its

decision. Remand is not warranted on that basis.

The ALJ properly developed a full and fair record in evaluating Plaintiff’s

mental health impairments. For the foregoing reasons, the ALJ applied the correct

legal standards, and the ALJ’s decision is supported by substantial evidence. Thus,

reversal is not warranted.

IV.

Accordingly, after consideration, it is hereby

ORDERED:

1. The decision of the Commissioner is AFFIRMED.

2. The Clerk is directed to enter final judgment in favor of the defendant and

close the case.

DONE AND ORDERED in Tampa, Florida, on this 26th day of September,

2022.

4, i> 7

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ANTHONY E. PORCELLI

United Sfates Magistrate Judge

cc: Counsel of Record