Church v. Social Security Administration, Commissioner of

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

PAUL RAMARO CHURCH, )

)

Plaintiff, )

)

v. ) No. 2:18-CV-36-HBG

)

ANDREW M. SAUL,1 )

Acting Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION

This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 73 of the Federal

Rules of Civil Procedure, and the consent of the parties [Doc. 16].

Now before the Court is Plaintiff’s Amended Motion for Judgment on the Pleadings and

Memorandum in Support [Docs. 27 & 28] and Defendant’s Amended Motion for Summary

Judgment and Memorandum in Support [Docs. 30 & 31]. Paul R. Church (“Plaintiff”) seeks

judicial review of the decision of the Administrative Law Judge (“the ALJ”), the final decision of

Defendant Nancy A. Berryhill (“the Commissioner”). For the reasons that follow, the Court will

DENY Plaintiff’s motion and GRANT the Commissioner’s motion.

I. PROCEDURAL HISTORY

On August 11, 2014, Plaintiff protectively filed an application for disability insurance

benefits and supplemental security income benefits pursuant to Title II and XVI of the Social

Security Act, 42 U.S.C. §§ 401 et seq. and 1381 et seq., claiming a period of disability that began

1 Andrew M. Saul was sworn in as the Commissioner of Social Security on June 17, 2019,

during the pendency of this case. Therefore, pursuant to Federal Rule of Civil Procedure 25(d),

Andrew M. Saul is substituted as the Defendant in this case.

on April 10, 2012. [Tr. 10, 58–59]. After his application was denied initially and upon

reconsideration, Plaintiff requested a hearing before an ALJ. [Tr. 87]. A hearing was held on

February 7, 2017. [Tr. 24–37]. On May 31, 2017, the ALJ found that Plaintiff was not disabled.

[Tr. 10–19]. The Appeals Council denied Plaintiff’s request for review on February 27, 2018 [Tr.

1–6], making the ALJ’s decision the final decision of the Commissioner.

Having exhausted his administrative remedies, Plaintiff filed a Complaint with this Court

on March 16, 2018, seeking judicial review of the Commissioner’s final decision under Section

405(g) of the Social Security Act. [Doc. 1]. Plaintiff filed his first Motion for Judgment on the

Pleadings [Doc. 17] on June 26, 2018, to which the Commissioner responded through his Motion

for Summary Judgment on September 7, 2018 [Doc. 21]. However, the parties subsequently filed

a Joint Motion to Extend Period for Responsive Briefing [Doc. 25] due to the submission of a

Supplemental Transcript [Doc. 24]. The Court granted the joint motion on September 12, 2018

[Doc. 26]. Plaintiff filed his Amended Motion for Judgment on the Pleadings [Doc. 27] on

September 28, 2018, and the Commissioner filed his Amended Motion for Summary Judgment

[Doc. 30] on October 23, 2018. This case was subsequently reassigned to the undersigned on May

3, 2019. [Doc. 32]. The parties have filed competing dispositive motions, and this matter is now

ripe for adjudication.

II. ALJ FINDINGS

The ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social

Security Act through December 31, 2017.

2. The claimant has not engaged in substantial gainful activity since

April 10, 2012, the alleged onset date (20 CFR 404.1571 et seq. and

416.971 et seq.).

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3. The claimant has the following severe impairments: degenerative

disc disease (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of

impairments that meets or medically equals the severity of one of

the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1

(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925

and 416.926).

5. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to

perform the full range of medium work as defined in 20 CFR

404.1567(c) and 416.967(c).

6. The claimant is capable of performing past relevant work as a

warehouse worker tow motor operator. This work does not require

the performance of work-related activities precluded by the

claimant’s residual functional capacity (20 CFR 404.1565 and

416.965).

7. The claimant has not been under a disability, as defined in the

Social Security Act, from April 10, 2012, through the date of this

decision (20 CFR 404.1520(f) and 416.920(f)).

[Tr. 13–19].

III. STANDARD OF REVIEW

When reviewing the Commissioner’s determination of whether an individual is disabled

pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision

was reached through application of the correct legal standards and in accordance with the

procedure mandated by the regulations and rulings promulgated by the Commissioner, and

whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,

581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,

544 (6th Cir. 2004).

Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it

is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

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Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It

is immaterial whether the record may also possess substantial evidence to support a different

conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the

case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).

The substantial evidence standard is intended to create a “‘zone of choice’ within which the

Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,

773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the

Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of

credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation omitted).

On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v.

Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).

IV. DISABILITY ELIGIBILITY

“Disability” means an individual cannot “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 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will only be

considered disabled:

if his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work but

cannot, considering his age, education, and work experience, engage

in any other kind of substantial gainful work which exists in the

national economy, regardless of whether such work exists in the

immediate area in which he lives, or whether a specific job vacancy

exists for him, or whether he would be hired if he applied for work.

§§ 423(d)(2)(A) and 1382c(a)(3)(B).

Disability is evaluated pursuant to a five-step analysis summarized as follows:

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1. If claimant is doing substantial gainful activity, he is not disabled.

2. If claimant is not doing substantial gainful activity, his

impairment must be severe before he can be found to be disabled.

3. If claimant is not doing substantial gainful activity and is

suffering from a severe impairment that has lasted or is expected to

last for a continuous period of at least twelve months, and his

impairment meets or equals a listed impairment, claimant is

presumed disabled without further inquiry.

4. If claimant’s impairment does not prevent him from doing his

past relevant work, he is not disabled.

5. Even if claimant’s impairment does prevent him from doing his

past relevant work, if other work exists in the national economy that

accommodates his residual functional capacity (“RFC”) and

vocational factors (age, education, skills, etc.), he is not disabled.

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).

A claimant’s residual functional capacity (“RFC”) is assessed between steps three and four and is

“based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §§

404.1520(a)(4) and -(e), 416.920(a)(4), -(e). An RFC is the most a claimant can do despite his

limitations. §§ 404.1545(a)(1) and 416.945(a)(1).

The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d at 529.

The burden shifts to the Commissioner at step five. Id. At the fifth step, the Commissioner must

prove that there is work available in the national economy that the claimant could perform. Her

v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137,

146 (1987)).

V. ANALYSIS

Plaintiff asserts that the ALJ’s disability decision is not supported by substantial evidence

in two regards. First, Plaintiff contends that RFC determination is not supported by substantial

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evidence, as the opinion of Robert Blaine, M.D.—the only physician who examined or treated

Plaintiff—did not support a finding that Plaintiff could perform medium work. [Doc. 28 at 4–6].

Further, Plaintiff claims that the ALJ failed to properly consider his depression, which was

diagnosed in records obtained after the disability hearing. [Id. at 6–7]. Lastly, Plaintiff claims that

the ALJ failed to ensure that he received a full and fair hearing, as Plaintiff alleges that he did not

make a knowing and intelligent waiver of his right to counsel at the hearing. [Id. at 7–8]. The

Court will address Plaintiff’s specific allegations of error in turn.

A. ALJ’s RFC Determination

Plaintiff alleges that the ALJ improperly found that he could perform a full range of

medium work, and thus, the ALJ’s finding that Plaintiff could return to his past relevant work is

not supported by substantial evidence. [Doc. 28 at 6]. Plaintiff contends that there is no substantial

evidence to support the RFC determination, as it is not consistent with any medical opinion. [Id.].

The Commissioner maintains that the ALJ properly evaluated the medical evidence in determining

Plaintiff’s RFC, and relied upon the VE’s testimony to support his conclusion that Plaintiff could

return to his past relevant work. [Doc. 31 at 12–13].

A claimant’s RFC is the most that claimant can do despite his or her impairments. 20

C.F.R. § 404.1545(a)(1). In other words, the RFC describes “the claimant’s residual abilities or

what a claimant can do, not what maladies a claimant suffers from—though the maladies will

certainly inform the ALJ’s conclusion about the claimant’s abilities.” Howard v. Comm’r of Soc.

Sec., 276 F.3d 235, 240 (6th Cir. 2002). An ALJ is responsible for determining a

claimant’s RFC after reviewing all the relevant evidence of record. Rudd v. Comm’r of Soc. Sec.,

531 F. App’x 719, 727–28 (6th Cir. 2013). “[W]hile an ALJ is free to resolve issues of credibility

as to lay testimony, or to choose between properly submitted medical opinions, the ALJ cannot

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substitute his or her own lay medical opinion for that of a treating or examining doctor.” Smiley

v. Comm’r of Soc. Sec., 940 F. Supp. 2d 592, 600 (S.D. Ohio 2013) (internal quotation marks and

brackets omitted).

Here, the ALJ found that Plaintiff had the RFC to perform a full range of medium work.

[Tr. 14]. Plaintiff contends, however, that there was no substantial evidence to make this finding,

as it was inconsistent with Dr. Blaine’s opinion. Additionally, Plaintiff claims that the RFC

determination is not supported by substantial evidence because the ALJ assigned little weight to

both Dr. Blaine’s opinion and the opinions of the nonexamining state agency consultants.

Dr. Blaine consultatively examined Plaintiff on September 30, 2014, and noted Plaintiff’s

allegations of back, shoulder, and stomach pain. [Tr. 265]. Dr. Blaine noted that Plaintiff alleged

the onset of low back pain twenty-five years ago, but has done heavy lifting. [Id.]. Additionally,

the ALJ reported that while Plaintiff was diagnosed with bulging discs in the past, he had not had

any recent imaging or treatment. [Id.]. On examination, Plaintiff’s flexion of the cervical spine

and extension was normal, while Plaintiff’s lateral rotation was 60 degrees bilaterally, and lateral

flexion was 30 degrees bilaterally. [Tr. 266]. Plaintiff exhibited negative straight leg raises

bilaterally, his deep tendon reflexes could not be elicited in the upper extremities except for 1/4

right biceps reflex, his knee jerks were 2/4 bilaterally, and ankle jerks were 0/4 bilaterally. [Tr.

267]. Lastly, Plaintiff’s station, gait, tandem walk, heel and toe walk, single-leg stand, and

squatting were all normal. [Id.].

Dr. Blaine diagnosed low back pain secondary to disc disease, right shoulder pain, and

history of a stab wound to the groin with a vascular injury. [Tr. 267]. Accordingly, Dr. Blaine

opined that Plaintiff could stand or walk for six hours in an eight-hour day with reasonable rest

breaks, that Plaintiff could lift and carry ten pounds frequently and thirty to forty pounds

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infrequently, and that Plaintiff could sit for eight hours with reasonable rest breaks. [Id.].

In the disability decision, the ALJ assigned little weight to Dr. Blaine’s opinion, while

noting that Dr. Blaine opined lifting and carrying limitations consistent with light work. [Tr. 18].

However, the ALJ found that the opinion was entitled to little weight because it was based upon a

one-time examination, and “subsequent treatment records showing benign exams do not support

limitations to light work.” [Tr. 18].

In Baker v. Berryhill, another court within this District recently summarized the relevant

case law regarding “when there is one medical opinion that is at least partially rejected by the

ALJ,” stating that:

Does the ALJ impermissibly “play doctor” when he formulates an RFC that is not

supported by the expert medical opinion? Some district courts have held that “the

ALJ ‘must generally obtain a medical expert opinion’ when formulating the RFC

unless the ‘medical evidence shows relatively little physical impairment’ such that

the ALJ can permissibly render a commonsense judgment about functional

capacity[.]” Gross v. Comm’r of Soc. Sec., 247 F. Supp. 3d 824, 828 (E.D. Mich.

2017). Some have required an RFC determination to be supported by a medical

opinion. See, e.g., Wyatt v. Comm’r of Soc. Sec., No. 12-11406, 2013 WL 4483074,

at *16 (E.D. Mich. Aug. 19, 2013) (“ALJ RFC determinations must be supported

by medical opinions.”). Those cases seem to reflect the consensus that ALJs are not

qualified to translate or interpret raw medical data, such as MRIs, or other

diagnostic tests, in reaching a RFC assessment.

No. 2:17-CV-175-MCLC, 2019 WL 1560538, at *3 (E.D. Tenn. Feb. 13, 2019). Additionally, in

Rudd v. Commissioner of Social Security, the Sixth Circuit found that an ALJ “was not required

to base her [RFC] determination on a medical opinion” where the plaintiff alleged that the RFC

was not supported by substantial evidence because no physician opined that Plaintiff could perform

the standing and walking requirements of light work. 531 F. App’x at 727–28.

“Although the RFC must be supported by evidence of record, it need not correspond to, or

even be based on any specific medical opinion.” Simon v. Comm’r of Soc. Sec., No. 2:16-CV-259,

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2017 WL 1017733, at *6 (S.D. Ohio Mar. 16, 2017) (citing Brown v. Comm’r of Soc. Sec., 602 F.

App’x 328, 331 (6th Cir. 2015)), report and recommendation adopted by, 2017 WL 3172717 (S.D.

Ohio July 25, 2017). An ALJ does not improperly assume the role of a medical expert by assessing

the medical and non-medical evidence before rendering the RFC. Poe v. Comm’r of Soc. Sec., 342

F. App’x 149, 157 (6th Cir. 2009). “The Sixth Circuit has repeatedly upheld ALJ decisions where

the ALJ rejected medical opinion testimony and determined [the] RFC based on objective medical

evidence and non-medical evidence.” Henderson v. Comm’r of Soc. Sec., No. 1:08-cv-2080, 2010

WL 750222, at *2 (N.D. Ohio Mar. 2, 2010) (internal citations omitted).

The ALJ’s finding that Plaintiff could perform the full requirements of medium work was

within his “zone of choice,” despite affording little weight to the opinion of the sole examining

physician. See Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (holding that

“[t]he substantial-evidence standard . . . presupposes that there is a zone of choice within which

the decisionmakers can go either way” and that as long as substantial evidence supports the ALJ’s

finding, the fact that the record contains evidence which could support an opposite conclusion is

irrelevant) (quotations omitted). First, as Dr. Blaine was not Plaintiff’s treating physician, his

opinion was not entitled to controlling weight, and the ALJ was not required to provide good

reasons for the weight assigned to the opinion. While the ALJ is required to consider all medical

opinions in the record, the ALJ, however, is not required to give “good reasons” for the weight

given to the opinions of non-treating examining sources or non-examining sources. Smith v.

Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007) (“[T]he SSA requires ALJs to give reasons

for only treating sources.”).

The ALJ properly found that Dr. Blaine’s opinion was not consistent with subsequent

treatment records, citing to records from East Tennessee State University College of Nursing and

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Johnson City Community Health Center which occurred after Dr. Blaine’s opinion. [Tr. 18]. The

ALJ previously summarized these medical records by stating that there was “no indication of

limited range of motion of the back or gait abnormality by treating source exams through July 13,

2016,” and such “[e]xams routinely show normal extremities and normal neurological

functioning.” [Tr. 15]; see [Tr. 298–400]. Further, the ALJ noted that these treatment records

after Dr. Blaine’s examination “reflect complaints of back pain on only a few occasions,” Plaintiff

didn’t require narcotic pain medication, his pain and symptoms were conservatively treated, and

his allegations of back and shoulder pain did not warrant “diagnostic testing and[/]or referral to an

orthopedist, neurologist, or pain specialist.” [Id.]. Therefore, the ALJ properly explained his

reasoning for assigning little weight to Dr. Blaine’s opinion, noting that its findings were

inconsistent with Plaintiff’s treatment records. See Crum v. Comm’r of Soc. Sec., 660 F. App’x

449, 457 (6th Cir. 2016) (“No doubt, the ALJ did not reproduce the list of these treatment records

a second time when she explained why Dr. Bell’s opinion was inconsistent with this record. But

it suffices that she listed them elsewhere in her opinion.”) (citing Forrest v. Comm’r of Soc. Sec.,

591 F. App’x 359, 366 (6th Cir. 2014)).

The Court also notes that while the ALJ assigned little weight to both Dr. Blaine’s opinion

and the opinions of the nonexamining state agency consultants, the ALJ’s ultimate RFC

determination was within the range of limitations assessed in the respective opinions. The

Commissioner correctly states that while Dr. Blaine opined more restrictive limitations than those

in the ALJ’s RFC determination, the nonexamining state agency consultants opined that Plaintiff

had no severe impairments. The ALJ assigned little weight to these opinions, as they had not

reviewed evidence of chronic pain syndrome and degenerative disc disease. [Tr. 18].

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Accordingly, the Court finds that the ALJ’s RFC determination is supported by substantial

evidence. The ALJ assessed that Plaintiff was limited to lifting and carrying no more than fifty

pounds occasionally and twenty-five pounds frequently. [Tr. 16]. The ALJ noted that there was

no objective evidence of treatment for shoulder injuries, and thus, there were no severe

impairments of the upper extremities. [Id.]. With respect to Plaintiff’s back pain, the ALJ

summarized the medical evidence to find that “the evidence shows [Plaintiff] has good range of

motion of his back, hips, and lower extremities.” [Tr. 15]. The ALJ was not required to adopt Dr.

Blaine’s opinion, despite it being the only medical opinion of record from a treating or examining

source. See Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 727–28 (6th Cir. 2013). Further, the

ALJ did not “translate or interpret raw medical data, such as MRIs, or other diagnostic tests, in

reaching a RFC assessment.” See, e.g., Baker v. Berryhill, No. 2:17-CV-175-MCLC, 2019 WL

1560538, at *3 (E.D. Tenn. Feb. 13, 2019). Plaintiff’s allegations of error with respect to the RFC

determination therefore do not constitute a basis for remand.

B. Plaintiff’s Waiver of Right to Counsel

Plaintiff contends that the record reflects that he did not make a knowing and intelligent

waiver of his right to counsel at the disability hearing, and was subsequently prejudiced by this

lack of counsel. [Doc. 28 at 7]. Plaintiff submits that “the superficial questioning . . . at his hearing

and the failure to inquire regarding [ ] Plaintiff’s depression all show that [he] was deprived of a

full and fair hearing.” [Id. at 8]. The Commissioner maintains that the ALJ properly questioned

whether Plaintiff wished to proceed without an attorney, and ensured that Plaintiff received a full

and fair hearing. [Doc. 31 at 20].

Here, the supplemental transcript establishes that Plaintiff’s previous attorney, D. Stephen

Duncan, informed the SSA that he had withdrawn as Plaintiff’s representative on July 21, 2016.

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[Tr. 411]. The SSA informed Plaintiff on November 4, 2016 that his previous counsel would not

represent him at the upcoming hearing, as well as stated that Plaintiff could still choose to be

represented by a lawyer or another representative, and provided information on groups that could

help him find a representative. [Tr. 405–10]. Plaintiff’s hearing was then held on February 7,

2017. [Tr. 25].

During the disability hearing, the ALJ started the hearing by noting that Plaintiff’s attorney

was not present, and questioned Plaintiff about his desire to proceed, stating in relevant part:

ALJ: Mr. Church, evidently you had an attorney and the attorney is not

here. Do you want an opportunity to get an attorney?

Plaintiff: Not really.

ALJ: Okay. An attorney - - if there - - if there’s anything out there to be

gotten sometimes they’re good to have. Because the problem with

the file that I have is there’s not any medical.2

. . .

ALJ: I - - first thing - -

Plaintiff: And - -

ALJ: - - we’ve got to do is decide, do you want to proceed with this

hearing? Or do you want an opportunity to obtain an attorney or a

representative?

Plaintiff: I just - -

ALJ: So that they can help you - -

Witness3: Getting your medical.

2 At the disability hearing, only 48 pages of medical records had been submitted, along

with the consultative examination produced by Dr. Blaine. [Tr. 218–69]. Following the hearing,

the ALJ assisted Plaintiff in adding an additional 132 pages to the medical record. [Tr. 269–400].

3 Plaintiff’s stepdaughter testified as a witness during the disability hearing. [Tr. 35]. The

ALJ noted that she was at the hearing to assist Plaintiff because he was illiterate. [Tr. 28].

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. . .

ALJ: The - - what an attorney can do for you, if there’s anything out there,

he can try to get that. If there’s nothing out there then attorneys are

attorneys, they’re not magicians. So, you can decide what you want

to do. Do you want to proceed now, or do you want to talk to an

attorney?

Plaintiff: I would just go on with it.

ALJ: Proceed? Okay. We’ll do that.

[Tr. 27–29].

“When a disability claimant is not represented by counsel at the administrative hearing, the

ALJ has a special duty to ensure that a full and fair administrative record is developed.” Duncan

v. Sec’y of Health and Human Servs., 801 F.2d 847, 856 (6th Cir. 1986) (citing Lashley v. Sec’y of

Health and Human Servs., 708 F.2d 1048, 1051 (6th Cir. 1983)). “This heightened duty arises

from the remedial nature of the Social Security Act, as well as from the recognition that the

ultimate responsibility for ensuring that every claimant receives a full and fair hearing lies with

the administrative law judge.” Brewer v. Comm’r of Soc. Sec., Case No. 5:16-cv-137, 2016 WL

7634431, at *10 (N.D. Ohio Dec. 12, 2016), report & recommendation adopted by, 2017 WL

27260 (N.D. Ohio June 3, 2017).

In order to fulfill this duty, an ALJ “must scrupulously and conscientiously probe into,

inquire of, and explore for all the relevant facts” and “be especially diligent in ensuring that

favorable as well as unfavorable facts and circumstances are elicited.” Lashley, 708 F.2d at 1052.

However, the “mere fact that a claimant was unrepresented is not grounds for reversal. Rather,

[the district court is to] examine each case on its own merits to determine whether the ALJ failed

to fully develop the record and therefore denied the claimant a full and fair hearing.” Duncan, 801

F.2d at 856 (internal citation omitted).

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First, Plaintiff has failed to demonstrate how his waiver of the right to counsel at his hearing

was not knowing or voluntary. “The Sixth Circuit made clear in Duncan that when a plaintiff is

notified of her right to counsel in writing prior to the administrative hearing, and the ALJ’s clarifies

waiver of that right before proceeding with the hearing, the ALJ has satisfied her duty in advising

a plaintiff of her right to representation.” Atwood v. Comm’r of Soc. Sec., No. 1:13-CV-00703,

2014 WL 1794580, at *4 (N.D. Ohio May 6, 2014) (citing Duncan, 801 F.2d at 856).

Plaintiff merely states that he “did not make a knowing and intelligent waiver of his right

to counsel at his hearing.” [Doc. 28 at 7]. However, Plaintiff fails to allege any facts that resulted

in his desire to proceed with the hearing being invalid. Initially, the SSA sent Plaintiff notice that

his attorney had withdrawn and provided resources regarding obtaining an attorney. During the

hearing, the ALJ informed Plaintiff that his attorney was not present and about his right to an

attorney, as well as that medical records were not submitted in his file. Subsequently, the ALJ

questioned Plaintiff twice regarding whether he wished to proceed without an attorney. Although

Plaintiff was illiterate, his stepdaughter appeared with him at the hearing and later testified

regarding his symptoms. Following the hearing, the ALJ assisted Plaintiff in obtaining his medical

records. Therefore, Plaintiff has failed to prove that his desire to proceed with the disability

hearing without his attorney was not knowing or intelligently provided. See, e.g., Ells v. Colvin,

No. 3:16-CV-00604-TBR, 2018 WL 1513674, at *4 (W.D. Ky. Mar. 27, 2018) (“Although Ells is

illiterate, he nonetheless confirmed that he did receive papers about places he could contact to

obtain legal representation. Ells, like the claimant in Duncan, stated that he wanted to proceed with

the hearing that day.”); Smith v. Comm’r of Soc. Sec., No. 1:11-CV-296, 2012 WL 7009808, at *6

(E.D. Tenn. Nov. 6, 2012) (“But a review of the transcript reveals there is nothing particularly

unusual about Plaintiff’s responses that would indicate her waiver of her right to counsel was

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involuntary or made without knowledge of her rights. Plaintiff simply responded ‘yes’ to the ALJ’s

questions, and there was no indication she did not understand the questions being asked. Plaintiff’s

father was present at the hearing for support, so she did not attend the hearing alone, and it does

not appear that she was overly nervous or otherwise unable to testify about her conditions.”), report

and recommendation adopted sub nom. Smith v. Astrue, 2013 WL 474808 (E.D. Tenn. Feb. 7,

2013).

Plaintiff also claims, however, that the ALJ failed to properly consider his depression, “a

condition which was apparently diagnosed in records obtained after [ ] Plaintiff’s hearing.” [Doc.

28 at 7]. Plaintiff submits the ALJ “did not question [ ] Plaintiff regarding his emotional state,”

despite the fact that his treating practitioner opined that Plaintiff had moderately severe depression

and considered a diagnosis of major depressive disorder. [Id.]. Although Plaintiff has failed to

allege how his waiver of the right to counsel was invalid, he has also failed to establish that he was

prejudiced by the lack of counsel at his hearing.

The Commissioner correctly states that nothing during the disability hearing would have

reasonably alerted the ALJ about Plaintiff’s depression. Plaintiff did not allege that he was

disabled in any Disability Report or submitted function report [Tr. 154, 161–67, 182–89], and

depression was not mentioned in Dr. Blaine’s opinion or the opinions of the nonexamining state

agency consultants. A review of the transcript of the disability hearing does not indicate the

presence of depression when Plaintiff was asked about his symptoms and the reasons that he was

unable to work. Additionally, Plaintiff’s stepdaughter did not mention Plaintiff’s depression when

asked about his symptoms.

Further, the medical records pertaining to Plaintiff’s mental health treatment were not

submitted prior to the disability hearing. Ultimately, Plaintiff admits that his depression “was

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apparently diagnosed in records obtained after the [ ] hearing.” [Doc. 28 at 6–7]. However, the

ALJ subsequently assisted Plaintiff in obtaining these records, and discussed the diagnosis of

depression during the disability decision. During the hearing, the ALJ noted the absence of many

medical records. [Tr. 27]. After the hearing, the ALJ assisted Plaintiff in obtaining his medical

records, and the Commissioner also filed a supplemental transcript pertaining to the withdrawal of

Plaintiff’s attorney, as well as additional information regarding his mental health treatment. [Tr.

401–15].

A review of the medical record establishes that Plaintiff’s depression was first indicated on

July 24, 2015 while Plaintiff presented for a preventive examination with the East Tennessee State

University College of Nursing. [Tr. 391–94]. In the disability decision, the ALJ considered the

four areas of mental functioning known as the “paragraph B” criteria. [Tr. 13]. The ALJ found

that Plaintiff had mild limitations in understanding, remembering, or applying information—based

in part on written function reports indicating that he was able to follow spoken instructions, drive,

and that he does not need to be accompanied when going out. [Id.]. Next, the ALJ found that

Plaintiff had mild limitations in interacting with others, as despite Plaintiff’s complaints of

moodiness due to pain, his mental status exams did not indicate any abnormality of mood. [Id.].

The ALJ also found that Plaintiff had mild limitations in the ability to concentrate, persist, or

maintain pace, as well as no limitations in adaption. [Tr. 13–14]. Therefore, the ALJ found that

Plaintiff’s medically determinable impairments of depression and alcohol abuse did not cause

more than minimal limitations in the ability to perform basic mental work activities, and thus were

non-severe impairments. [Tr. 14].

When assessing Plaintiff’s RFC, the ALJ stated that Plaintiff’s treatment records

demonstrated that he had a history of depression aggravated by alcohol use. [Tr. 17]; see [Tr. 343].

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The ALJ noted, however, that Plaintiff’s depressive symptoms were conservatively treated and

well-managed with medication since they were first prescribed on February 10, 2016. [Tr. 17];

see [Tr. 352]. Further, the ALJ reviewed that Plaintiff was not treated by a mental health

professional, and he refused counseling and continued to abuse alcohol. [Tr. 17]; see [Tr. 324,

331]. Lastly, the ALJ noted that Plaintiff’s mental examinations were routinely normal. [Tr. 17].

Therefore, the Court finds that the ALJ properly found that Plaintiff’s depression was a

medically determinable, but non-severe, impairment. As Plaintiff’s medical records regarding his

depression were not present before the ALJ, and the ALJ was not alerted to Plaintiff’s depression

during the disability hearing, he was under no obligation to question Plaintiff about his depression.

The ALJ questioned Plaintiff regarding why he stopping working [Tr. 30], about where he went

for medical treatment [Tr. 31], his prescriptions [Tr. 32], as well as asked Plaintiff’s stepdaughter

about his illnesses [Tr. 35].

In the disability decision, the ALJ reviewed the medical record regarding Plaintiff’s mental

health impairments, and proceeded to assess the limitations stemming from Plaintiff’s depression

when determining his RFC. Plaintiff does not challenge the ALJ’s finding that his depression was

not a severe impairment or the limitations assessed in the RFC determination; rather, Plaintiff

solely claims that the ALJ improperly failed to question him about his mental impairments.

Accordingly, Plaintiff has failed to establish that his waiver of the right to counsel was invalid,

and he has also failed to demonstrate that he was prejudiced by his lack of counsel at the disability

hearing. Therefore, Plaintiff’s allegations of error do not constitute a basis for remand.

VI. CONCLUSION

Based on the foregoing, Plaintiff’s Motion for Judgment on the Pleadings [Doc. 27] will

be DENIED, and the Commissioner’s Amended Motion for Summary Judgment [Doc. 30] will be

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GRANTED. The Commissioner’s original Motion for Summary Judgment [Doc. 21] will be

DENIED as moot. The decision of the Commissioner will be AFFIRMED. The Clerk of Court

will be DIRECTED to close this case.

ORDER ACCORDINGLY.

foame Aa ber

United States Magistrate Judge

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