Gentle v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RAVEN GENTLE,

Plaintiff,

v. Case No. 8:21-cv-2900-AEP

KILOLO KIJAKAZI,

Acting Commissioner of Social Security,

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. 206-

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

initially and upon reconsideration (Tr. 117-57). Plaintiff then requested an

administrative hearing (Tr. 159-60). Per Plaintiff’s request, the ALJ held a hearing

at which Plaintiff appeared and testified (Tr. 39-52). Following the hearing, the ALJ

issued an unfavorable decision finding Plaintiff not disabled and accordingly denied

Plaintiff’s claims for benefits (Tr. 7-28). Subsequently, Plaintiff requested review

from the Appeals Council, which the Appeals Council denied (Tr. 1-6). 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 1991, claimed disability beginning on November

15, 2018 (Tr. 206). Plaintiff has at least a high school education (Tr. 42). Plaintiff

has past relevant work experience as a customer service representative and a

customer service supervisor (Tr. 20). Plaintiff alleged disability due to systemic

lupus and depression (Tr. 233).

In rendering the administrative decision, the ALJ concluded that Plaintiff

met the insured status requirements through September 30, 2023 and had not

engaged in substantial gainful activity since November 15, 2018, the alleged onset

date (Tr. 12). After conducting a hearing and reviewing the evidence of record, the

ALJ determined Plaintiff had the following severe impairments: discoid lupus

erythematosus, systematic lupus erythematosus, cutaneous lupus erythematosus,

and polyarthritis (Tr. 13). 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. 13). The ALJ then concluded that Plaintiff retained a

residual functional capacity (“RFC”) to perform sedentary work except that she

could not work around extreme cold, extreme heat, humidity, wetness, high,

exposed places, and moving, mechanical part and requires a moderate noise

intensity environment (Tr. 13). 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. 15, 18).

Given Plaintiff’s background, RFC, and the assessment of a vocational expert

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

a customer service representative or customer service supervisor (Tr. 20).

Accordingly, based on Plaintiff’s age, education, work experience, RFC, and the

assessment of the VE, the ALJ found Plaintiff not disabled (Tr. 21).

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, including a provision for payment of a child’s benefits

on the earnings record of an insured person who is entitled to benefits if the claimant

is 18 years old or older and has a disability that began before attaining age 22. See

20 C.F.R. § 404.350(a)(5); see 42 U.S.C. § 402(d)(1). 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:

(1) whether the claimant is currently engaged in substantial gainful activity; (2)

whether the claimant has a severe impairment, i.e., one that significantly limits the

ability to perform work-related functions; (3) whether the severe impairment meets

or equals the medical criteria of 20 C.F.R. Part 404 Subpart P, Appendix 1; and (4)

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 by failing to develop the record regarding

Plaintiff’s mental impairments, including the mental impact of pain and side effects

from her medications. For the following reasons, the ALJ applied the correct legal

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

Even though Social Security proceedings are inquisitorial rather than

adversarial in nature, claimants must establish their eligibility for benefits. Ingram,

496 F.3d at 1269; 20 C.F.R. §§ 404.1512(a), 416.912(a). During the administrative

process, therefore, a claimant must inform the Social Security Administration about

or submit all evidence known to the claimant relating to whether the claimant is

blind or disabled. 20 C.F.R. §§ 404.1512(a), 416.912(a). Though the claimant bears

the burden of providing medical evidence showing she is disabled, the ALJ is

charged with developing a full and fair record. Ellison v. Barnhart, 355 F.3d 1272,

1276 (11th Cir. 2003). The ALJ maintains this basic obligation to develop a full and

fair record without regard for whether the claimant is represented by counsel. Brown

v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995).

Although the ALJ has a duty to develop the record, the ALJ is not required

to order a consultative examination as long as the record contains sufficient

evidence upon which the ALJ can make an informed decision. Ingram, 496 F.3d at

1269 (citing Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001)); 20 C.F.R. §§

404.1527, 416.912, 416.919a; Ford v. Sec. of Health & Human Services, 659 F.2d 66,

69 (5th Cir. 1981) (Unit B). Rather, the regulations dictate that the ALJ may ask the

claimant to attend a consultative examination at the Commissioner’s expense, but

only after the ALJ fully considers whether any additional information needed is

readily available from the records of the claimant’s medical sources. Doughty, 245

F.3d 1280-1281; see also 20 C.F.R.§§ 404.1512(b)(2), 404.1519a(a)(1), 404.1520b,

416.912(b)(2), 416.919a(a)(1), 416.920b.2 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) (citation omitted).

The decision to recontact a medical source or to order a consultative

examination remains within the discretion of the Commissioner. See, generally, 20

C.F.R. §§ 404.1520b(c), 416.920b(c). If the evidence is consistent but the

Commissioner does not have sufficient evidence to determine whether a claimant

is disabled, or, if after weighing the evidence, the Commissioner determines that a

conclusion cannot be reached about whether the claimant is disabled, the

Commissioner will determine the best way to resolve the inconsistency or

insufficiency, including recontacting a treating physician or medical source or

asking the claimant to undergo a consultative examination. 20 C.F.R. §§

404.1520b(c)(1) & (3), 416.920b(c)(1) & (3).

When the plaintiff demonstrates that the record reveals evidentiary gaps

which result in unfairness or “clear prejudice,” remand is warranted. Id. at 935;

Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (“Remand for

2 A non-exhaustive list of situations requiring a consultative examination appears in the regulations, at 20

C.F.R. §§ 404.1519a(b) and 416.919a(b), and includes situations where (1) the additional evidence needed

was not contained in the records of claimant’s medical sources; (2) the evidence that may have been available

from the claimant’s treating or other medical sources could not be obtained for reasons beyond the claimant’s

control, such as death or non-cooperation of a medical source; (3) highly technical or specialized medical

evidence that the Commissioner needs was not available from claimant’s treating or other medical sources;

or (4) there was an indication of a change in the claimant’s condition likely to affect the claimant’s ability to

work, but the current severity of claimant’s impairment was not established. 20 C.F.R. §§ 404.1519a(b)(1)-

further factual development of the record before the ALJ is appropriate where the

record reveals evidentiary gaps which result in unfairness or clear prejudice.”)

(quotation and citation omitted); Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir.

1997) (“However, there must be a showing of prejudice before it is found that the

claimant’s right to due process has been violated to such a degree that the case must

be remanded to the [Commissioner] for further development of the record.”)

(citation omitted). 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”).

In the instant case, Plaintiff is unable to show prejudice requiring remand

because there is no evidentiary gap in the record. The state agency psychological

consultants reviewed Plaintiff’s medical records and provided assessments

regarding Plaintiff’s mental impairments and functioning (Tr. 57-58, 86-89). One of

the state agency psychological consultants, Dr. Sadovnik, found that Plaintiff had

no limitations in her ability to understand, remember, or apply information, in her

ability to adapt or manage herself, or in her ability to interact with others (Tr. 57-

58). Dr. Sadovnik found that Plaintiff had a mild limitation in her ability to

concentrate, persist, or maintain pace (Tr. 58). The other state agency psychological

consultant, Dr. Prickett, found that Plaintiff had no limitations in her ability to

understand, remember, or apply information or her ability to adapt or manage

herself (Tr. 88). Dr. Pricket found that Plaintiff had a mild limitation in her ability

to concentrate, persist, or maintain pace and interact with others (Tr. 88).

Plaintiff’s treatment notes indicate that Plaintiff was diagnosed with

depression and anxiety and prescribed medication (Tr. 621). Plaintiff also reported

that her lupus diagnosis impacted her sleep, activities of daily living, and she

experienced a reduced ability to experience pleasure and crying spells (Tr. 417). In

later examinations, Plaintiff presented with normal mood and affect (Tr. 374, 389,

397, 415, 461, 495, 518, 526, 528, 599, 607, 616, 620, 675, 708). During some

examination, Plaintiff denied symptoms of anxiety (Tr. 396, 460, 550), while during

other times, Plaintiff presented as anxious and fatigued (Tr. 449, 585). Treatment

notes regarding her major depressive disorder mentioned that she was stable on

medication (Tr. 515) and she denied side effects from her medication (Tr. 615).

Moreover, in Plaintiff’s supplemental immune system questionnaire, she alleges

that she experienced problems concentrating when she had bad migraines and

headaches (Tr. 263). Plaintiff also reported that she could prepare meals, do

laundry, and do a little shopping and house cleaning (Tr. 249). Plaintiff also

reported that she could pay attention unless she was in pain (Tr. 257).

The ALJ properly reviewed these medical records and also noted that

Plaintiff experienced some side effects from her medication shortly after starting

treatment for lupus (Tr. 15-16). After some medication adjustments, Plaintiff

reported improvement (Tr. 17).

Plaintiff attacks the ALJ’s decision by arguing that there was a year and a

half gap between the state psychological consultants’ opinions and the ALJ’s

decision. However, Plaintiff neglects to mention what new evidence would have

been available for another consultant to review. In fact, the ALJ noted that there

was no evidence of any treatment after March 2020. Plaintiff implies that this was

due to the Covid-19 pandemic but does not explain the nature of the ALJ’s alleged

evidentiary gap or how the ALJ’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.

Therefore, the evidence relied upon by the ALJ was neither inconsistent nor

insufficient. Rather, as the decision indicates and as discussed herein, the record

contained sufficient evidence for the ALJ to make an informed decision. As such,

the ALJ did not need to seek a consultative examination to correct any

inconsistencies or insufficiencies in the record.

It is worth noting that Plaintiff makes mention, in passing, that the ALJ failed

to give an adequate explanation as to why he rejected Plaintiff’s complaints of

drowsiness, forgetfulness, and concentration deficits. As noted by the

Commissioner, Plaintiff fails to elaborate on this issue or present any supporting

arguments or authority. Accordingly, to the extent Plaintiff intended to raise an

issue regarding the ALJ’s evaluation of Plaintiff’s subjective complaints, she has

abandoned the claim because she failed to develop the argument or provide any

supporting authority. See Douglas v. Comm’r, Soc. Sec. Admin., 832 F. App’x 650, 655

(11th Cir. 2020) (“A party abandons an issue by making only passing reference to it

or raising it ‘in a perfunctory manner without supporting arguments and

authority.’”) (quoting Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th

Cir. 2014)). Even so, “there is no rigid requirement that the ALJ specifically refer

to every piece of evidence in his decision” as long as the decision is not “a broad

rejection” that casts doubt on whether the ALJ considered the claimant’s “medical

condition as a whole.” Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005).

Based on the foregoing, the Court finds that the ALJ conducted a thorough

review of the evidence and reached a decision based on a detailed consideration of

the evidence, and that substantial evidence supports the ALJ’s decision.

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 Commissioner

and close the case.

DONE AND ORDERED in Tampa, Florida, on this 10th day of March,

2023.

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ANTHONY E. PORCELLI

United Sfates Magistrate Judge

cc: Counsel of Record