Moore v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

LILLIE MAE MOORE,

Plaintiff,

v. Case No. 8:23-cv-206-AAS

KILOLO KIJAKAZI,

Acting Commissioner,

Social Security Administration,

Defendant.

______________________________________/

ORDER

Plaintiff Lillie Mae Moore requests judicial review of a decision by the

Commissioner of Social Security (Commissioner) denying her claim for

disability insurance benefits (DIB) and supplemental security income (SSI)

under the Social Security Act, 42 U.S.C. Section 405(g). After reviewing the

record, including the transcript of the hearing before the Administrative Law

Judge (ALJ), the administrative record, and the parties’ briefs, the

Commissioner’s decision is AFFIRMED.

I. PROCEDURAL HISTORY

Ms. Moore applied for DIB and SSI on June 10, 2020, alleging a disability

onset date of May 4, 2019. (Tr. 343–52, 353–57). Disability examiners denied

Ms. Moore’s application initially and on reconsideration. (Tr. 114–25, 126–37,

1

138-65). Following a hearing, the ALJ issued a decision unfavorable to Ms.

Moore on January 27, 2022. (Tr. 28–42). The Appeals Council denied Ms.

Moore’s request for review, making the ALJ’s decision the Commissioner’s final

decision. (Tr. 1–4). Ms. Moore now requests judicial review of the

Commissioner’s decision. (Doc. 1).

II. NATURE OF DISABILITY CLAIM

A. Background

Ms. Moore was fifty-four years old on her alleged disability onset date

and the date she applied for social security benefits. (Tr. 74, 343, 353, 392). Ms.

Moore completed the eleventh grade and has past work experience as a

housekeeper. (Tr. 57, 58–59, 74, 425, 447).

B. Summary of the ALJ’s Decision

The ALJ must follow five steps when evaluating a claim for disability.1

20 C.F.R. §§ 404.1520(a), 416.920(a). First, if a claimant is engaged in

substantial gainful activity,2 he is not disabled. 20 C.F.R. §§ 404.1520(b),

416.920(b). Second, if a claimant has no impairment or combination of

impairments that significantly limit his physical or mental ability to perform

1 If the ALJ determines the claimant is disabled at any step of the sequential analysis,

the analysis ends. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

2 Substantial gainful activity is paid work that requires significant physical or mental

activity. 20 C.F.R. §§ 404.1572, 416.972.

2

basic work activities, she has no severe impairment and is not disabled. 20

C.F.R. §§ 404.1520(c), 416.920(c); see McDaniel v. Bowen, 800 F.2d 1026, 1031

(11th Cir. 1986) (stating that step two acts as a filter and “allows only claims

based on the most trivial impairments to be rejected”). Third, if a claimant’s

impairments fail to meet or equal an impairment in the Listings, she is not

disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). Fourth, if a claimant’s

impairments do not prevent her from doing past relevant work, she is not

disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e). At this fourth step, the ALJ

determines the claimant’s residual functional capacity (RFC).3 Id. Fifth, if a

claimant’s impairments (considering her RFC, age, education, and past work)

do not prevent her from performing work that exists in the national economy,

she is not disabled. 20 C.F.R. §§ 404.1520(g), 416.920(g).

The ALJ determined Ms. Moore had not engaged in substantial gainful

activity since May 4, 2019, her alleged disability onset date. (Tr. 30). The ALJ

found Ms. Moore has these severe impairments: obesity, right rotator cuff

derangement, bilateral knee degenerative disease, asthma, left wrist fracture,

and neurocognitive disorder. (Tr. 31). However, the ALJ concluded Ms. Moore’s

impairments or combination of impairments fail to meet or medically equal the

3 A claimant’s RFC is the level of physical and mental work she can consistently

perform despite her limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).

3

severity of an impairment in the Listings. (Id.).

The ALJ found Ms. Moore had an RFC to perform light work4 with these

limitations:

occasionally reaching overhead with the right upper extremity;

frequent reaching in all other directions with the right upper

extremity; frequent handling with the left upper extremity, which

is dominant extremity; occasional climbing of ramps and stairs, no

climbing of ladders, ropes or scaffolds, occasional balancing,

frequent stopping, occasional kneeling, crouching, and crawling;

no exposure to unprotected heights or moving mechanical parts;

occasional concentrated exposure to dust, odors, fumes, and

pulmonary irritants; simple, routine and repetitive tasks that are

not performed at a production-rate pace, such as that found in

assembly-line work; and limited to occasional changes in a

predictable work setting.

(Tr. 35–36).

Based on these findings and the testimony of a vocational expert (VE),

the ALJ determined Ms. Moore could perform her past relevant work as a

housekeeper. (Tr. 41). As a result, the ALJ found Ms. Moore was not disabled

from May 4, 2019, through the date of the decision. (Tr. 42).

4 “Light work involves lifting no more than 20 pounds at a time with frequent lifting

or carrying of objects weighing up to 10 pounds. Even though the weight lifted may

be very little, a job is in this category when it requires a good deal of walking or

standing, or when it involves sitting most of the time with some pushing and pulling

of arm or leg controls. To be considered capable of performing a full or wide range of

light work, you must have the ability to do substantially all of these activities. If

someone can do light work, we determine that he or she can also do sedentary work,

unless there are additional limiting factors such as loss of fine dexterity or inability

to sit for long periods of time.” 20 C.F.R. §§ 404.1567(6), 416.967(6).

4

III. ANALYSIS

A. Standard of Review

Review of the ALJ’s decision is limited to determining whether the ALJ

applied the correct legal standards and whether substantial evidence supports

his findings. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988).

Substantial evidence is more than a mere scintilla but less than a

preponderance. Dale v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005)

(citation omitted). There must be sufficient evidence for a reasonable person to

accept as enough to support the conclusion. Foote v. Chater, 67 F.3d 1553, 1560

(11th Cir. 1995) (citations omitted). The Supreme Court recently explained,

“whatever the meaning of ‘substantial’ in other contexts, the threshold for such

evidentiary sufficiency is not high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154

(2019).

A reviewing court must affirm a decision supported by substantial

evidence “even if the proof preponderates against it.” Phillips v. Barnhart, 357

F.3d 1232, 1240 n.8 (11th Cir. 2004) (citations omitted). The court must not

make new factual determinations, reweigh evidence, or substitute its judgment

for the Commissioner’s decision. Phillips, 357 F.3d at 1240 (citation omitted).

Instead, the court must view the whole record, considering evidence favorable

and unfavorable to the Commissioner’s decision. Foote, 67 F.3d at 1560; see

5

also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (citation omitted)

(stating the reviewing court must scrutinize the entire record to determine the

reasonableness of the Commissioner’s factual determinations).

B. Issues on Appeal

Ms. Moore raises two issues on appeal: (1) whether substantial evidence

supports the ALJ’s evaluation of the medical opinions of Susan Johnson, M.D.

and Craig Barron, PsyD. (Doc. 19, pp. 3–20); and (2) whether substantial

evidence supports the ALJ’s RFC determination when she found Ms. Moore’s

limitations based on her left wrist fracture without support of any medical

opinion evidence (Id. at pp. 20–24).

1. Whether the ALJ properly evaluated the medical

evidence.

Ms. Moore argues the ALJ failed to properly consider the medical

opinions of Dr. Johnson and Dr. Barron. (Doc. 19, pp. 3–20). In response, the

Commissioner contends the ALJ properly considered the medical opinion

evidence in reaching his RFC assessment. (Doc. 20, pp. 6–15).

Under the revised regulations, an ALJ will not “defer or give any specific

evidentiary weight, including controlling weight, to any medical opinion(s) or

prior administrative medical finding(s), including those from [the claimant’s

own] medical sources.” 20 C.F.R. §§ 404.1520c(a); 416.920c(a). The new

6

regulatory scheme “forbids administrative law judges from ‘defer[ring] or

giv[ing] any specific evidentiary weight, including controlling weight, to any

medical opinion(s),’” Harner v. Social Security Admin., Comm’r, 38 F.4th 892,

898 (11th Cir. 2022), and an ALJ does not have to “explain why good cause

exists to disregard the treating source’s opinion.” Matos v. Comm’r of Soc. Sec.,

No. 21-11764, 2022 WL 97144, at *4 (11th Cir. Jan. 10, 2022). The ALJ must

now determine the persuasiveness of medical opinions by considering

supportability, consistency, treatment relationship, specialization, and other

factors. 20 C.F.R. §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(c)(5). The ALJ must

articulate how the supportability and consistency factors were considered for

a medical source’s opinions or prior administrative medical findings, but an

ALJ need not articulate how the remaining factors were considered unless

there are equally persuasive medical opinions or prior administrative medical

findings. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).

On October 5, 2020, Dr. Johnson evaluated Ms. Moore. (Tr. 503–06). Dr.

Johnson assessed bilateral knee pain. (Tr. 504). Dr. Johnson opined that Ms.

Moore would have difficulty with stairs and should avoid heavy lifting. (Id.).

Ms. Moore could stand/walk six hours, but she should be allowed to sit every

one to two hours. (Id.). Finally, Dr. Johnson opined that Ms. Moore could

occasionally reach overhead. (Id.).

7

The ALJ found Dr. Johnson’s opinion “generally persuasive” as the

limitations she assessed are “generally consistent with the record, including

her own mostly intact examination findings, claimant’s self-reported

symptoms, and the lack of treatment for her knee and shoulder impairment

during the relevant time period.” (Tr. 41). The ALJ found additional limitations

related to Ms. Moore’s left which fracture, which occurred after Dr. Johnson’s

evaluation. (Id.). However, the ALJ found that:

As for the need to change positions, a change every two hours is

consistent with normal breaks throughout the workday and would

not require a specific limitation. The undersigned finds that a

need to change position every hour is not consistent with the

record, including the minimal examination findings as well as the

claimant’s complete lack of treatment for her knee impairment

during the relevant time period.

(Id.).

Ms. Moore claims that the ALJ failed sufficiently articulate the

supportability factor and explain her reasoning and build a “logical bridge”

from the evidence to the conclusion that Dr. Johnson’s opinion was not

supported and was inconsistent with the minimal examination finding and Ms.

Moore’s lack of treatment for her knee impairment during the relevant time

period. (Doc. 19, pp. 6–14). Ms. Moore further claims that the ALJ

impermissibly “picked and chose” through the consultative examination. (Id.,

p. 11).

8

Ms. Moore’s logical bridge argument fails. In essence, she argues that

the ALJ’s evaluation of the persuasiveness of Dr. Johnson’s opinion was

conclusory and without explanation. However, a “logical bridge” simply means

that “an ALJ must articulate at some minimum level, her analysis of the

evidence.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). Ultimately,

this requirement does not alter the substantial evidence standard. Brumbaugh

v. Saul, 850 F. App’x 973, 977 (7th Cir. 2021). The ALJ has satisfied the

substantial evidence standard here.

The ALJ’s decision, read as a whole, supports the ALJ’s finding that Dr.

Johnson’s opinion was generally persuasive except for the need to change

positions every hour. See Rice v. Barnhart, 384 F.3d 363, 370 n.5 (7th Cir. 2004)

(“[I]t is proper to read the ALJ’s decision a whole, and ... it would be a needless

formality to have the ALJ repeat substantially similar factual analyses”

multiple times throughout decision); see also Jones v. Barnhart, 364 F.3d 501,

505 (3d Cir. 2004) (holding that the ALJ’s decision contained a sufficient

explanation for the step three finding because the ALJ is not required to “use

particular language or adhere to a particular format”).

While the ALJ did not use the word “supportability,” elsewhere in the

decision, the ALJ noted that, upon examination by Dr. Johnson, Ms. Moore had

a normal range of motion in the lumbar spine and knees bilaterally, intact

9

strength and sensation, a negative straight leg test and a normal Romberg.

(Tr. 37, 504). Ms. Moore was able to walk on heels and toes and had a normal

gait and station. (Tr. 37–38, 503). Contrary to Ms. Moore’s argument, the ALJ

acknowledged the Ms. Moore had decreased reflexes (although Dr. Johnson did

not indicate which reflexes), crepitus, and complained of pain in the knees with

palpitation. (Tr. 37, 504).

The articulation requirement is met so long as the evaluation addresses

the substance of the factors, regardless of the specific language used in the

evaluation. See Cook v. Comm’ r of Soc. Sec., No. 6:20-cv-1197-RBD-DCI, 2021

WL 1565832, at *5 (M.D. Fla. Apr. 6, 2021). As the ALJ assessed Dr. Johnson’s

medical findings, the articulation requirement has been met.

The ALJ addressed consistency too, concluding that Dr. Johnson’s

opinion that Ms. Moore would need to change positions every hour was

contradicted by Dr. Johnson’s minimal findings upon examination and Ms.

Moore’s lack of treatment during the relevant time period. (Tr. 41).

While Ms. Moore points to her subjective complaints of pain and other

symptoms as support for Dr. Johnson’s opinion (Doc. 20, pp. 11–12), the ALJ

considered Ms. Moore’s statements and found that they were not consistent

with the overall record, including her minimal treatment, the minimal

examination findings, and Ms. Moore’s activities of daily living. (Tr. 36–37).

10

Ms. Moore does not dispute that finding.

Ms. Moore points to other evidence she claims supports Dr. Johnson’s

opinion that Ms. Moore needs to change positions every hour. (Doc. 19, p. 12

(citing Tr. 457–59)). Ms. Moore essentially requests that the court reweigh the

medical evidence in her favor, something it cannot do. See Phillips v. Barnhart,

357 F.3d 1232, 1240 (11th Cir. 2004) (citations omitted). The ALJ’s conclusion

that Dr. Johnson’s medical opinion was generally persuasive except for the

need to change positions every hour is supported by substantial evidence.

Dr. Barron conducted a psychological evaluation of Ms. Moore on May

12, 2021. (Tr. 610–15). WAIS-IV testing indicated a full-scale I.Q. in the

borderline range. (Tr. 611). Overall, testing showed low average intellectual

abilities except for a mild disability range verbal comprehension score. (Id.).

WMS-IV testing showed global impairment in both verbal and nonverbal

memory. (Id.). Dr. Barron opined that Ms. Moore’s test scores suggested

neurocognitive disorder secondary to a traumatic brain injury and a cerebral

vascular accident. (Id.). Dr. Barron opined that Ms. Moore was not capable of

communicating, comprehending, and retaining simple directions at an

unskilled competitive employment. (Tr. 615). Dr. Barron further opined that

Ms. Moore was not capable of withstanding work-related stresses, attending

work regularly, rapidly performing routine repetitive activities on a sustained

11

basis, meeting production requirements, and relating to others at an unskilled,

competitive employment level. Dr. Barron also found that Ms. Moore was not

capable of managing financial benefits independently in a responsible manner.

(Id.).

The ALJ evaluated Dr. Barron’s opinion and found it not persuasive. (Tr.

41). The ALJ shared how she evaluated supportability and consistency:

This opinion is not consistent with the record as a whole, including

the claimant’s good activities of daily living, including her ability

to work a competitive part-time job during the relevant time period

and ability to assist her mother. It is also inconsistent with the

doctor’s own examination findings, which aside from low scores in

verbal comprehension and memory were fairly normal. This

includes her low average scores in processing speed, perceptual

reasoning, and working memory indices of the WAIS-IV and her

intact mental status examination.

(Id.).

Similar to her arguments relating to Dr. Johnson’s opinion, Ms. Moore

contends that the ALJ failed to properly explain how she considered the

supportability factor. (Doc. 20, pp. 15–18). She claims that the ALJ failed to

explain her reasoning and build a “logical bridge” from the evidence to the

conclusion that Dr. Barron’s opinion was not supported and was inconsistent

with Ms. Moore’s daily activities, ability to work a part-time job, and assist her

mother. (Id. at 15–19). She also claims that the ALJ impermissibly “picked and

chose” through the consultative examination. (Id. at 16). In essence, she argues

12

that the ALJ’s evaluation of the persuasiveness of Dr. Barron’s opinion was

conclusory and without explanation.

Ms. Moore’s logical bridge argument again fails. A logical bridge, as

discussed above, does not alter the substantial evidence standard, which is met

here. The regulations do not prevent an ALJ from referring to evidence

discussed elsewhere in the decision when evaluating medical opinions. See

Rice, 384 F.3d at 370 n.5. Substantial evidence supports the ALJ’s finding that

Dr. Barron’s opinion was not persuasive.

Although the ALJ only briefly addressed supportability when discussing

the reasons she found Dr. Barron’s opinion unpersuasive (Tr. 41), elsewhere in

the decision the ALJ discussed Dr. Barron’s psychological evaluation of Ms.

Moore at length. (Tr. 33, 39). Contrary to Ms. Moore’s claim, the ALJ

acknowledged Ms. Moore’s test results including a Full-Scale I.Q. (“FSIQ”) on

the Weschler Adult Intelligence Scale-IV (“WAIS-IV”) in the borderline range,

a comprehension score in the mildly disabled range, a Weschler Memory Scale-

IV (“WSM-IV”) score showing impaired memory and that she did poorly on the

math section of WAIS-IV. (Tr. 33, 39, 610-11). The ALJ also noted that Ms.

Moore’s perceptual reasoning, working memory, and processing scores where

in the low average range. (Tr. 33, 611).

The ALJ, however, noted that the mental status examination showed

13

well-articulated speech without paraphrasic error, appropriate affective

reactions, congruent mood, and logical and goal-directed thoughts with no

evidence of blocking or flighitive ideas. (Tr. 39, 612). Ms. Moore was oriented,

made good eye contact, and demonstrated good task orientation, cooperation,

motivation, and effort. (Tr. 39, 612–13). Ms. Moore was able to recall the name

of the current and previous president, interpret proverbs abstractly, and could

perform serial 7’s. (Tr. 33, 39, 613). She was able to recall seven digits forward

and four backwards. (Id.).

Likewise, the decision, read as a whole, support’s the ALJ’s rejection of

Dr. Barron’s opinion as inconsistent with Ms. Moore’s activities of daily living,

her abilities to work a part-time job and care for her mother. The ALJ noted

that Ms. Moore was able to perform regular cleaning tasks, cook, shop, go out

alone, drive a car, do laundry, manage her finances, play cards, and games,

read and watch television. (Tr. 32–33, 397–99, 417–19). She also could engage

in social activities and hobbies. (Tr. 34, 399, 419). The ALJ also noted that Ms.

Moore worked an unskilled part-time job until COVID-19 restrictions caused

her to cease working. (Tr. 33–34, 57–58, 60). She was also able to assist her

ailing mother. (Tr. 33–34, 56, 439). Ms. Moore reported that she got along with

others, including authority figures, and could follow written and spoken

instructions well. (Tr. 33, 420–21).

14

Ms. Moore again points to other evidence to support Dr. Barron’s opinion,

including her reports of subjective symptoms and related complaints. (Doc. 19

at 16). But again, Ms. Moore does not dispute the ALJ’s finding that Ms.

Moore’s subjective complaints were not consistent with the overall record,

including her minimal treatment, the minimal examination findings, and Ms.

Moore’s activities of daily living. (Tr. 36–37). While Ms. Moore argues that Dr.

Johnson’s opinion was consistent with the opinion of a state agency consultant,

Doc. 19, p. 19), the ALJ found that opinion only partially persuasive and

rejected the finding of moderate limitations in interacting with others and

adapting or managing oneself and corresponding social limitations. (Tr. 40).

Ms. Moore did not dispute that finding.

While a different factfinder may have credited Dr. Barron’s opinion,

that is not the test. The dispositive question here is whether there is “such

relevant evidence as a reasonable mind might accept as adequate” to support

the ALJ’s conclusion. Biestek, 139 S. Ct. at 1154. “The substantial evidence

threshold is not high and defers to the presiding ALJ, who heard testimony

and reviewed the medical evidence.” Rodriguez v. Berryhill, 836 F. App’x 797,

803 (11th Cir. 2020).

Here, substantial evidence supports the ALJ’s consideration of the

medical opinions of Dr. Johnson and Dr. Barron in reaching her RFC

15

assessment.

2. Whether the ALJ properly evaluated Ms. Moore’s RFC.

Ms. Moore argues the ALJ’s RFC assessment fails to account for Ms.

Moore’s left wrist limitations. (Doc. 19, pp. 20–25). Ms. Moore claims that the

ALJ failed to develop the record by not ordering a consultative examination on

Ms. Moore’s left wrist or recontacting her physician. (Id., p. 22 ). She argues

that, had the ALJ further developed the record, additional limitations might

have been posed by the ALJ to the VE which could have changed the VE’s

responses to hypothetical questions, and, in turn, could have resulted in a

lesser RFC and a finding of disabled. (Id., p. 24). In response, the

Commissioner argues that the ALJ sufficiently developed the record and did

not require a physician’s opinion to assess Ms. Moore’s RFC. (Doc. 15, pp. 15–

20).

A claimant’s RFC is the most she can still do despite her limitations and

is based on all the relevant evidence in the case record, including medical

history, medical reports, medical source statements, and descriptions of

limitations from the claimant and others. 20 C.F.R. §§ 404.1545(a), (a)(3),

416.945(a), (a)(3). An ALJ does not “play doctor” merely by determining a

claimant’s RFC based on her review of the record as a whole. Castle v. Colvin,

557 F. App’x 849, 853 (11th 2014). Indeed, the pertinent regulations obligate

16

an ALJ to render such an assessment. Id. at 853–54 (citation omitted); see also

Moore v. Soc. Sec. Admin., Comm’r, 649 F. App’x 941, 945 (11th Cir. 2016) (per

curiam).

Here, the ALJ found Ms. Moore had exertional limitations and mental

limitations. (Tr. 35-36). Regarding Ms. Moore’s left wrist impairment, the ALJ

found a frequent handling limitation was appropriate. (Tr. 38). But given Ms.

Moore’s lack of pain based on the fracture, lack of treatment, and Ms. Moore’s

activities of daily living, the ALJ did not find additional limitations. (Id.).

Contrary to Ms. Moore’s argument, the ALJ was not required to base the

RFC finding on a medical opinion. See Castle, 557 F. App’x at 854 (ruling the

district court erred in requiring that the ALJ’s finding to be “underpinned by

a medical source opinion”); Green v. Soc. Sec. Admin., 223 F. App’x 915, 923–

24 (11th Cir. 2007) (per curiam) (concluding that the ALJ did not err in

predicating the claimant’s RFC on the medical evidence before him although

this finding conflicted with the only medical opinion of record, which the ALJ

discredited); Jackson v. Colvin, Case No. 8:14-cv-1159-T-TGW, 2015 WL

12844406, at *4 (M.D. Fla. July 16, 2015) (stating that an ALJ’s RFC finding

“need not be based on a physician's opinion of the plaintiff's functioning”);

Gregory v. Astrue, Case No. 5:07-cv-19-Oc-GRJ, 2008 WL 4372840, at *8 (M.D.

Fla. Sept. 24, 2008) (“A medical opinion is...not required to validate a RFC

17

finding by the ALJ.”).

Ms. Moore is correct that an ALJ “has a basic obligation to develop a full

and fair record.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).5

Nevertheless, “the claimant bears the burden of proving that he is disabled,

and consequently, he is responsible for proving evidence in support of his

claim.” Id. Further, “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.” Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). In

evaluating the necessity for a remand, the court is guided by “whether the

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

Brown v. Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (internal quotation marks

omitted). Unless the record contains insufficient evidence to make an informed

decision, the ALJ is not required to contact a treating physician or order a

consultative exam. See 20 C.F.R. §§ 404.1520b(c), 416.920b(c).

Here the ALJ fully developed the record, and there was sufficient

evidence in the record to support the ALJ’s RFC determination related to Ms.

5 The basic duty to develop the record rises to a “special duty” where the claimant is

not represented during the administrative proceedings. Brown v. Shalala, 44 F.3d

931, 934–35 (11th Cir. 1995). Ms. Moore was represented during the administrative

proceedings. (See Tr. 48–78). Therefore, the ALJ, in this case, only had a basic duty

to develop the record.

18

Moore’s left wrist impairment. Ms. Moore’s initial application for disability was

concerned with impairments of the knee, shoulder, and back along with her

history of stroke, tendonitis, high blood pressure and swelling. (Tr. 386). In

November 2020, Ms. Moore fell and suffered a left distal radius/wrist fracture.

(Tr. 415, 560, 565, 569). Ms. Moore underwent an open reduction internal

fixation surgery in December 2020. (Tr. 556–58). On March 10, 2021, she could

make a near full fist with fingers three through five but had difficulty in flexion

with her second finger. (Tr. 635). Ms. Moore had intact grip strength,

sensation, and motor strength at the extensor pollici longus and flexor pollcis

longus. (Tr. 635-36). Upon follow-up in June 2021, Ms. Moore could not make

a full grip, but had intact sensation and grip strength and motor strength. (Tr.

617). An x-ray showed that Ms. Moore’s left distal radius fractured had healed

completely but there was nonunion of the ulnar styloid. (Id.). Ms. Moore did

not have pain in that location, however. (Id.). She was encouraged to do

exercises to increase her range of motion but was released to resume all

activities as tolerated. (Tr. 618). Ms. Moore testified that she had no sought

follow up care since June 2021. (Tr. 62).

Because the medical records contained enough information for the ALJ

to make an RFC determination, there was no requirement to order a

19

consultative exam.6 See Outlaw v. Barnhart, 197 F. App’x 825, 828 (11th Cir.

2006) (finding that the ALJ did not err in refusing to order a consultative exam

because the record contained extensive medical records about the claimant’s

physical complaints). Additionally, as Ms. Moore had not sought treatment

since June 2021 and the ALJ had the records from her last evaluation, she has

not shown prejudice as a result of the ALJ’s failure to contact her treating

physician.

In short, Ms. Moore only provides speculative evidence that contacting

her treating physician or ordering a consultative exam would provide evidence

supporting her claim. Speculative evidence is not a basis for remanding the

case. Cf. Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985) (There is no

prejudice when the assertion that the plaintiff would have benefitted from a

more extensive hearing was speculative.).

IV. CONCLUSION

Accordingly, the Commissioner’s decision is AFFIRMED. The Clerk of

Court is directed to enter judgment in favor of the Commissioner and close the

6 Neither Ms. Moore nor her attorney requested the ALJ order a consultative

examination. See Osborn v. Barnhart, 194 F. App’x 654, 668–69 (11th Cir. 2006)

(finding the argument that more medical evidence was necessary was unpersuasive

because, among other reasons, counsel did not allege that the medical records were

inadequate). Rather, Ms. Moore’s attorney advised the ALJ that “[t]he record is

complete.” (Tr. 53)

20

case.

ORDERED in Tampa, Florida on November 27, 2023.

Aranda. Arno Sasone_

AMANDA ARNOLD SANSONE

United States Magistrate Judge

21