Jenkins v. Social Security Administration, Commissioner of

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

MARICO J. JENKINS, )

)

Plaintiff, )

)

v. ) No. 3:22-CV-72-JEM

)

KILOLO KIJAKAZI,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. 13]. Now before the Court are

Plaintiff’s Motion for Summary Judgment [Doc. 19] and Defendant’s Motion for Summary

Judgment [Doc. 22].2 Marico J. Jenkins (“Plaintiff”) seeks judicial review of the decision of the

Administrative Law Judge (“the ALJ”), the final decision of Defendant Kilolo Kijakazi (“the

Commissioner”). For the reasons that follow, the Court will DENY Plaintiff’s motion and

GRANT the Commissioner’s motion.

I. PROCEDURAL HISTORY

On November 27, 2015, the Commissioner found that Plaintiff was disabled as of January

22, 2013 [Tr. 61]. On March 20, 2019, the Commissioner sent Plaintiff a Notice of Disability

Cessation in which the Commissioner relayed to Plaintiff that it had been determined that he was

1 Kilolo Kijakazi became the Acting Commissioner of the Social Security Administration

(“the SSA”) on July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,

Kilolo Kijakazi is substituted for Andrew Saul as the defendant in this suit. See 42 U.S.C.

§ 405(g).

2 Plaintiff filed a response to Defendant’s Motion for Summary Judgment as well [Doc. 24].

no longer disabled as of March 2019 [Id. at 178]. Plaintiff then filed a Request for Reconsideration

of the Commissioner’s decision [Id. at 180]. Plaintiff had a hearing before a state agency disability

hearing officer on September 11, 2019 [Id. at 183]. Following the hearing, the hearing officer

upheld the initial determination that Plaintiff was no longer disabled as of March 20, 2019 [Id. at

183–207].

Plaintiff made a written request for reconsideration by an Administrative Law Judge

(“ALJ”) [Id. at 208]. On June 25, 2020, Plaintiff had a telephonic hearing before an ALJ, during

which Plaintiff appeared without counsel [Id. at 140–60]. On August 24, 2020, the ALJ upheld

the initial determination that Plaintiff was no longer disabled as of March 2019 [Id. at 58–70].

Following the ALJ’s denial, Plaintiff informed the Commissioner that he had obtained counsel [Id.

at 15–23]. The Appeals Council then denied Plaintiff’s request for review on April 22, 2021 [Id.

at 8]. On January 26, 2022, the Appeals Council set aside its earlier action in order to consider

additional information, including a “Request for Review filed by Claimant September 25, 2022,”

as well as a “Request to Vacate filed by Representative May 4, 2021” [Id. at 2, 5]. After setting

aside its earlier decision, the Appeals Council again denied Plaintiff’s request for review [Id. at 1–

4], making the ALJ’s decision the final decision of the Commissioner.

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

on February 23, 2022, seeking judicial review of the Commissioner’s final decision under Section

405(g) of the Social Security Act [Doc. 1]. The parties have filed competing dispositive motions

and supporting memoranda, and this matter is now ripe for adjudication.

II. ANALYSIS

Plaintiff raises two arguments on appeal. First, he argues he did not make an informed

choice to waive his right to counsel during his administrative hearing before the ALJ [Doc. 20 p.

2

2]. Second, he argues the ALJ failed to fulfill his duty of providing a full and fair hearing and

otherwise developing the record [Id. at 5]. Based on these alleged errors, Plaintiff requests that

this Court vacate the Commissioner’s final decision and remand this matter for further

administrative proceedings [Id. at 8].

After reviewing the parties’ arguments, the Court finds that Plaintiff made an informed

choice to waive his right to counsel during the administrative hearing. The Court further finds that

the ALJ fulfilled his duty to fully and fairly develop the record and, to the extent he did not meet

that duty, any such error did not impact the outcome of Plaintiff’s case. Accordingly, the Court

denies Plaintiff’s request to remand the Commissioner’s final decision.

A. Whether Plaintiff Made an Informed Choice to Waive his Right to Counsel

Plaintiff acknowledges that, “when a plaintiff is notified of her right to counsel in writing

prior to the administrative hearing, and the ALJ [] 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”

[Doc. 20 p. 2 (quoting Atwood v. Comm’r of Soc. Sec., No. 1:13:CV-703, 2014 WL 1794580, at

*4 (N.D. Ohio May 6, 2014))]. See also Duncan v. Sec’y of Health and Human Servs., 801 F.2d

874, 856 (6th Cir. 1986). He also concedes that, “[u]ndoubtedly, [he] was advised of the right of

representation both before and at the beginning of the hearing” [Id.].3

Plaintiff nevertheless contends the ALJ erred by not properly inquiring into or explaining

his determination that Plaintiff was capable of making an informed choice and that Plaintiff did

not make a knowing and intelligent waiver of his right to counsel during the hearing [Doc. 20 pp.

3 The record reflects that Plaintiff received both a proper pre-hearing advisement [Tr. 226],

and—as shown in detail below—an advisement from the ALJ during the beginning of the hearing

[Id. at 145–46].

3

2, 8; see also Doc. 24 p. 2 (“The ALJ should have determined that Plaintiff was not able to make

an informed choice to waive his right to representation.”)]. Specifically, Plaintiff asserts that the

ALJ did not comply with section I-2-1-80(B)(i) of the Hearings, Appeals, and Litigation Law

Manual (“HALLEX”) [Id.].4 That section provides:

An ALJ must ensure that the claimant is aware of his or her options for

representation. Specifically, an ALJ will explain the availability of both

free legal services and contingency representation, and discuss access to

organizations that assist individuals in obtaining representation. An ALJ

will answer any questions the claimant may have, including explaining the

claimant’s options regarding representation, as outlined in the

acknowledgement letter. However, the ALJ will answer any questions in a

manner that neither encourages nor discourages representation.

If the claimant decides to waive the right to representation, the ALJ must

determine whether the claimant is capable of making an informed choice to

waive the right to representation. If the ALJ is satisfied that the claimant

can make an informed decision, the ALJ must secure from the claimant a

verbal waiver on-the-record or a written waiver, which will be marked as

an exhibit. For a sample waiver of representation, see HALLEX I-2-6-98.

If the claimant requests to postpone the hearing to obtain a representative,

the ALJ must consider the totality of circumstances and decide on-the-

record whether to grant the claimant’s request for postponement.

HALLEX § I-2-1-80(B)(1).

The ALJ’s initial advisement to Plaintiff was as follows:

ALJ: Now I note that you’re not represented by an attorney, or another

qualified individual and I have to go over your rights to representation. . . .

4 HALLEX provisions provide “procedural guidance to the staff and adjudicators” of the

Social Security Administration. Bowie v. Comm’r of Soc. Sec., 539 F.3d 395, 399 (6th Cir. 2008).

“[W]hile the HALLEX procedures are binding on the Social Security Administration, they are not

binding on courts reviewing the administration’s proceedings.” Scarborough v. Astrue, No. 3:11-

CV-286, 2012 WL 6838942, at *5 (E.D. Tenn. Dec. 3, 2012) (quoting Dukes v. Comm’r of Soc.

Sec., No. 1:10-cv-436, 2011 WL 4374557, at *9 (S.D. Mich. Sept. 19, 2011)); see also Bowie, 539

F.3d at 399 (stating HALLEX provisions are “not binding on this court”); Zimmerman v. Comm’r

of Soc. Sec., No. 1:18CV1233, 2019 WL 4736267, at *9 (N.D. Ohio Sept. 27, 2019) (collecting

cases for proposition that “HALLEX is an agency procedural manual that is not binding on the

courts”).

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I want to make sure that you understand that you have a right to be

represented by an attorney or non-attorney who may help you obtain and

submit records, explain [INAUDIBLE], make requests, protect your rights

[INAUDIBLE] evidence in a light most favorable to your case. A

representative may charge you for expenses such as obtaining and copying

medical records, but may not charge or receive a fee unless I approve it.

And they don’t normally get paid unless I award benefits and then they may

only accept 25% of the back benefits, or $6,000, whichever is less. Some

legal organizations offer free legal representation if you qualify under their

rules, but it’s usually based on need. In other words, you don’t have the

money to pay for a lawyer. Of course, you may also choose to proceed

today without a representative. So, do you understand, Mr. Jenkins, your

rights to representation?

Plaintiff: Yeah.

ALJ: Okay. . . . do you wish to proceed [INAUDIBLE] representation, or

would you like to request a postponement to see if you could get a

representative or a lawyer?

Plaintiff: I don’t have no money for no lawyer.

ALJ: Does that mean that you’d like to go forward today, or would you like

to postpone in order to see if you could find a free lawyer or someone to

represent you?

Plaintiff: Go forward.

ALJ: Go forward, is that what you said?

Plaintiff: Yes.

ALJ: Okay. All right.

[Tr. 145–46].5

Plaintiff asserts his statement, “I don’t have no money for no lawyer,” evinced his

confusion since he did not understand the different options available to him in obtaining

5 Prior to the ALJ advising Plaintiff of his right to representation, Plaintiff was responsive to

the ALJ’s questions and instructions [Tr. 142–45 (providing his name, address, social security

number, and telephone, abiding by the ALJ’s instructions that his mother needed to leave the room,

and clarifying that he was not recording the proceedings)].

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representation [Doc. 20 p. 4]. But prior to this statement, Plaintiff confirmed that he understood

his rights to representation. And to the extent Plaintiff’s statement that he had “no money for no

lawyer” shows some possible confusion about the options available to him, the ALJ immediately

rephrased the question and asked if Plaintiff wanted to postpone “in order to see if you could find

a free lawyer or someone to represent you.” Plaintiff twice unequivocally responded that he

wished to move forward.

Yet, Plaintiff further argues it was this exchange, “coupled with [his] established learning

disabilities” and Plaintiff’s testimony at the hearing, that should have alerted the ALJ that Plaintiff

was incapable of making an informed choice to waive his right to representation [Id.]. Plaintiff

points to evidence in the record that he has been diagnosed with a learning disorder and borderline

intellectual functioning, that he was previously assessed an IQ score of 68, and that Dr. Derek

Hopko, a licensed clinical psychologist, concluded as part of his psychological evaluation that

Plaintiff “showed poor use of his basic vocabulary [and] . . . poor capacity for abstract thinking

and understanding” [Id. at 3]. In concluding Plaintiff falls into the borderline range of intellectual

functioning, however, Dr. Hopko also found Plaintiff’s “thought processes included seemingly

clear and logical thinking,” he “was able to follow basic instructions, both written and spoken,”

and he was “an adequate historian” [Tr. 385–87].

Plaintiff points to his testimony during the hearing, including a portion of the following

exchange between himself and the ALJ:

ALJ: All right. Can you make change for a dollar?

Plaintiff: Yeah.

ALJ: Okay. So, if somebody handed you—if you—when you go to the

store, for example, if you went to the local convenience store to buy a soda

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or something and you handed—or a coke, and you handed them money, you

could count the change and make sure they gave you the right change back?

Plaintiff: Yeah. Most of the time my momma go to the store and stuff for

me.

ALJ: All right. And is that because you just don’t want to go out or it’s

because you can’t handle the transaction of handing them the money?

Plaintiff. Yeah, it’s like I don’t going out.

[Tr. 153–54]. Plaintiff argues that this line of questioning “should have raised reasonable

suspicion as to whether [his] learning disabilities impacted his ability to knowingly and

intelligently waive [his] right to counsel” because “[he] did not understand the question” [Doc. 20

p. 4]. It is not clear, however, how Plaintiff affirmatively answering the ALJ’s question and then

providing extraneous information shows he did not understand the question, particularly when

Plaintiff was otherwise able to provide clear and concise answers regarding the same topic

immediately prior to, and after, this statement.

Plaintiff also argues “the ALJ asked the Plaintiff whether or not he has any objections to

the record 3 times before Plaintiff was able to directly answer the questions” [Doc. 20 p. 4 (citing

Tr. 147, 149)]. The Court has reviewed the cited portions of the transcript and does not find that

Plaintiff was unable to answer the ALJ’s questions about objections to the record. The first time

the ALJ asked Plaintiff about objections to the record, the ALJ explained that the Plaintiff could

have an opportunity to review exhibits to the hearing, and Plaintiff stated that the ALJ could “[g]o

ahead and proceed” [Id. at 147]. Later, the ALJ asked Plaintiff if he had any objections and

Plaintiff responded, “Is there what?” [Tr. 148–49]. The ALJ immediately followed up by asking

again whether Plaintiff had any objection to the admission of evidence and provided examples of

documents in the record, and Plaintiff stated, “No” [Id. at 149]. The Court also notes that shortly

after this exchange, Plaintiff asked the ALJ to repeat himself because “[t]he phone cut out on

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[him]” [Id. at 148–49].

Plaintiff acknowledges that “there are no particular requirements regarding the questions

the ALJ has to ask, or findings the ALJ must articulate” [Doc. 24 p. 2]. Based upon its review of

the record, the Court finds the ALJ complied with HALLEX section I-2-1-80(B)(1) and that

Plaintiff has failed to show that his desire to proceed with the hearing without an attorney was not

knowingly or intelligently provided.6 The Court therefore denies Plaintiff’s first ground for

remand.

B. Whether the ALJ Fully Developed the Record

Plaintiff argues the Commissioner’s decision should be remanded because the ALJ failed

to fulfill his heightened duty of providing a full and fair hearing and otherwise developing the

record as required when a plaintiff is proceeding without representation [Doc. 20 pp. 5–8]. The

Commissioner responds that “the ALJ’s actions during and after the hearing reflect that he was

mindful of, and appropriately executed, his special duty to develop the record in this case” [Doc.

23 p. 17], and contrary to Plaintiff’s argument, he was not prejudiced when considering “the other

6 Because the Court finds the ALJ complied with HALLEX section I-2-1-80(B)(1), the Court

need not consider whether the ALJ’s actions prejudiced Plaintiff. Although the Sixth Circuit has

not squarely addressed the issue, lower courts within the circuit have found that an ALJ’s failure

to follow a provision of HALLEX is reversible error only if such non-compliance prejudiced the

claimant. See Creech v. Comm’r of Soc. Sec., 581 F. App’x 519, 521 (6th Cir. 2014) (“[E]ven

district courts that have granted relief for failure to comply with HALLEX have required that the

plaintiff demonstrate prejudice from the failure to follow the procedures.” (citation omitted));

Juszkowski v. Berryhill, No. 18-14023, 2019 WL 7998876, at *6 (E.D. Mich. Nov. 30, 2019)

(citation omitted), aff’d sub. nom., Juszkowski v. Soc. Sec. Comm’r, No. 18-14023, 2020 WL

467851 (E.D. Mich. Jan. 29, 2020); Scarborough, 2012 WL 6838942, at *5 (citing cases that find

a HALLEX violation constitutes reversible error only when the plaintiff was prejudiced by the

ALJ’s non-compliance).

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important evidence that informed the ALJ’s decision” [Id. at 12]. For the reasons discussed below,

the Court finds the ALJ fulfilled his heightened duty and, even if he did not, any such error would

not have altered the outcome of Plaintiff’s case.

1. Applicable Law

“It is the ALJ’s duty to investigate the facts and develop the arguments both for and against

granting benefits.” Sims v. Apfel, 530 U.S. 103, 110–11 (2000). To this end, an ALJ is responsible

for “ensuring that every claimant receives full and fair hearing[.]” Lashley v. Sec’y of Health &

Hum. Servs., 708 F.2d 1048, 1051 (6th Cir. 1983). This responsibility is balanced with the fact

that “[p]romoting the claimant’s case . . . is not the ALJ’s obligation,” as they are “a neutral

factfinder, not an advocate.” Moats v. Comm’r of Soc. Sec., 42 F.4th 558, 563 (6th Cir. 2022)

(citing Apfel, 530 U.S. at 110–11). “So while the ALJ must ensure that every claimant receives ‘a

full and fair hearing,’ the ultimate burden of proving entitlement to benefits lies with the claimant.”

Id. (quoting Duncan v. Sec’y of Health & Hum. Servs., 801 F.2d 847, 856 (6th Cir. 1986) (citing

20 C.F.R. § 404.1512(a)).

In some circumstances, “an ALJ has a special, heightened duty to develop the record.”

Wilson v. Comm’r of Soc. Sec., 280 F. App’x 456, 459 (6th Cir. 2008) (citing Lashley, 708 F.2d at

1051–52). This heightened duty arises if “a claimant is (1) without counsel, (2) incapable of

presenting an effective case, and (3) unfamiliar with the hearing procedures.” Id. It is not enough

that “a claimant is unsophisticated and appears without counsel.” Moats, 42 F.4th at 564. The

claimant must also be incapable of presenting an effective case, which only occurs in “extreme”

or “acute” cases, such as when the claimant has limited education, is “inarticulate” and “easily

confused,” has “impaired [] memory,” and otherwise has limited “ability to read.” Id.

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If the ALJ does have a heightened duty, then he must “develop fully the record” and he

“must be ‘especially diligent in ensuring that favorable as well as unfavorable facts and

circumstances are elicited.’” Lashley, 708 F.2d at 1052 (quoting Gold v. Sec’y of Health, Educ. &

Welfare, 463 F.2d 405, 408 (2d Cir. 1972)). The ALJ “must scrupulously and conscientiously

probe into, inquire of, and explore for all the relevant facts” and “scrutinize the record with care.”

Id. “Failure by an ALJ to fully develop the factual record in a particular matter is often evidenced

by superficial or perfunctory questioning, as well as a failure to obtain all available medical records

and documentation.” Vaca v. Comm’r of Soc. Sec., No. 1:08-cv-653, 2010 WL 821656, at *6

(W.D. Mich. Mar. 4, 2010). But “[t]here is no bright line test for determining when the [ALJ] has

. . . failed to fully develop the record. The determination in each case must be made on a case by

case basis.” Lashley, 708 F.2d at 1052

In making this case-by-case determination, the Sixth Circuit also considers whether, even

if the ALJ failed to fully develop the record, the additional information the ALJ should have

obtained could have impacted the outcome of the ALJ’s decision. In Lashley, for example, the

Sixth Circuit remanded the ALJ’s decision for further proceedings after finding that the

information the ALJ failed to inquire about “would have greatly enhanced any determination

concerning the claimant’s ability to perform work.” Lashley, 708 F.2d at 1053. In contrast, in

Forrest v. Commissioner of Social Security, the Sixth Circuit found that “[w]hatever the merits of

the ALJ’s refusal to let [the plaintiff] discuss his [] symptoms,” remand was not required because

the court could not “see how [the plaintiff’s] testimony about those symptoms would have altered

the outcome.” 591 F. App’x 359, 363 (6th Cir. 2014). In making this determination, the court in

Forrest relied on: (1) the fact that other portions of the record contained statements by Plaintiff

about his symptoms and the ALJ relied on such records in his decision, as well as (2) the fact that,

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“in general, the ALJ found [the plaintiff’s] claims . . . not credible and inconsistent with objective

evidence.” Id. (citing 20 C.F.R. § 404.1529(a)); see also Born v. Sec’y of Health & Hum. Servs.,

923 F.2d 1168, 1172 (6th Cir. 1990) (“Even if the ALJ had questioned claimant in greater detail

concerning his ability to sit or stand, claimant’s subjective complaints of pain must be supported

by objective evidence.”); Duncan, 801 F.2d at 856 (“Duncan has not suggested, and we are unable

to determine, what possible further information could have been brought forth at the hearing which

would have enhanced a determination of disability.” (citing Lashley, 708 F.2d at 1053)).

2. Analysis

After reviewing the parties’ arguments, the records submitted by the Commissioner, and

the applicable case law, the Court finds that the ALJ had a heightened duty to provide a full and

fair hearing and otherwise fully develop the record. In addition, the Court finds that the ALJ

fulfilled his duty to fully and fairly develop the record and, to the extent he did not meet that duty,

any such error did not impact the outcome of Plaintiff’s case.

a. Heightened Duty

The Commissioner appears to acknowledge [Doc. 23 p. 17], and the Court finds, that the

ALJ had a heightened duty to provide a full and fair hearing and otherwise fully develop the record

because Plaintiff was “(1) without counsel, (2) incapable of presenting an effective case, and (3)

unfamiliar with the hearing procedures.” Wilson, 280 F. App’x at 459. Plaintiff represented

himself at the hearing [Tr. 145–46]. He was unfamiliar with both the hearing procedures and facts

of his case, as he stated during the hearing that he had been unable to access the record that the

ALJ had provided him a copy of because he did not have access to a computer [Id. at 147]. See

Moats, 42 F.4th at 564 (finding no heightened duty, in part, because the plaintiff had prepared for

the hearing by reviewing and supplementing his case file therefore indicating that he understood

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his evidentiary burden). In addition, Plaintiff was incapable of presenting an effective case to the

extent he had limited ability to read, impaired memory, and suffers from borderline intellectual

functioning [Tr. 65–66]. See Thrasher v. Comm’r of Soc. Sec., No. 1:12-cv-151, 2013 WL 486123,

at *5 (S.D. Ohio Feb. 6, 2013) (“[P]laintiff suffers from severe mental impairments, and . . . is of

borderline intellectual functioning based on his test scores. The ALJ’s duty to ensure the record

was fully and fairly developed was further heightened given these circumstances.”).

b. Development of the Record

Relying primarily on Lashley, Plaintiff argues that the ALJ failed to provide a full and fair

hearing or otherwise fully and fairly develop the administrative record as required by his

heightened duty [Doc. 20 pp. 5–8]. More specifically, Plaintiff argues the ALJ engaged in only

“superficial” questioning of Plaintiff regarding four subjects: why Plaintiff had been unable to

keep up with work tasks at his most-recent employment, Plaintiff’s ability to care for himself, the

extent of Plaintiff’s medication side effects, and why Plaintiff failed to attend treatment

appointments [Id. at 6–7]. Plaintiff argues the superficial questioning, along with the short

duration of the hearing—which lasted twenty-eight minutes and contains only seven pages of

transcript of Plaintiff’s testimony—shows that the ALJ failed to provide a full and fair hearing [Id.

at 5–7]. Plaintiff also challenges the ALJ’s failure to order updated IQ testing for Plaintiff

following the hearing [Id. at 7–8].

In response, the Commissioner argues the ALJ met his heightened duty in questioning

Plaintiff on these four subjects and was otherwise not required to obtain additional IQ testing [Doc.

23 pp. 12–17]. Along with responding to Plaintiff’s arguments, the Commissioner also argues that

the ALJ fulfilled his heightened duty because (1) “the Commissioner obtained a consultative

examination with Dr. Hopko, which provided important evidence supporting the ALJ’s decision”;

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(2) “during the hearing, the ALJ questioned Plaintiff regarding whether he had any further

treatment since 2019,” Plaintiff stated he had, and then the ALJ “obtained the relevant records and

reviewed them as part of his analysis”; and (3) Plaintiff “does not argue that any of his treatment

records remain extant” despite now being represented by counsel [Doc. 23 pp. 13–14].

While the Court will address each of Plaintiff’s arguments, in turn, the Court first notes the

steps the ALJ took during, and after, the hearing to develop the record. One of the first things the

ALJ did in questioning Plaintiff was to inquire into any additional outstanding records [Tr. 147–

48]. The ALJ then obtained those records, including Plaintiff’s treatment records from Helen Ross

McNabb from February 8, 2017, to April 29, 2020, as well as Plaintiff’s treatment records from

the Knox County Health Department for November 15, 2019, to July 1, 2020 [Id. at 61; 421–65].

In that way, Plaintiff’s case is distinguishable from those instances in which courts have remanded

an ALJ’s decision because the ALJ stated they would obtain relevant records then failed to do so.

See, e.g., Strang v. Comm’r of Soc. Sec., 611 F. App’x 271, 275 (6th Cir. 2015) (“Remand is

warranted in this matter because, by telling [the plaintiff] she would procure certain documents for

the record and then failing to follow through, the ALJ effectively deprived [the plaintiff] of a full

and fair hearing.”). Plaintiff’s case is also distinguishable from those cases in which the ALJ failed

to consider then-existing objective medical evidence that the ALJ knew, or should have known,

about. See, e.g., Sarp v. Comm’r of Soc. Sec., No. 16-10099, 2017 WL 8896206, at *7 (E.D. Mich.

Aug. 18, 2017) (remanding the plaintiff’s claim when the plaintiff referenced being examined by

a psychiatrist at the hearing but the ALJ failed to inquire about any resulting psychiatric

examination report and the report would have been “significant, if not critical”).

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Plaintiff’s prior work experience. Plaintiff argues the ALJ provided only “superficial

questioning” of Plaintiff’s prior work experience. Plaintiff testified that he was terminated from

his last job because he could not keep up with the work:

ALJ: . . . . So, tell me why it is that you can’t work on a—you know, do

work at all like an eight-hour day, 40 hours a week. What is it that’s keeping

you from having a job?

Plaintiff: It’s like it’s hard for me t —like I feel really like, I don’t know,

like irritated and just real just uncomfortable because being a lot around

people and like I get like maybe a task or something. Like my mind be

racing and it be hard for me to keep up. . . . Like the last job that I had,

that’s—they let me go because I couldn’t keep up with the work.

ALJ: Okay. All right.

[Tr. 153; see also Doc. 20 p. 6].

Plaintiff argues the ALJ failed to fulfill his duty by “not ask[ing] why the Plaintiff could

not keep up with work tasks” [Doc. 20 p. 6]. As the Commissioner points out, however, the ALJ

did elicit “a reasonable explanation for why he could not work—[Plaintiff] explained he was

irritated and uncomfortable around other people, that his mind raced, and it was hard for him to

keep up” [Doc. 23 p. 15]. That Plaintiff provided a reasonable explanation for why he was unable

to perform his prior work distinguishes this case from Lashley, where the Sixth Circuit relied

heavily on the fact that the ALJ “did not obtain an explanation why plaintiff was forced to leave

[his] job after only 3 days.” Lashley, 708 F.2d at 1053 (finding this fact to be “[m]ost

important[]”).

Moreover, additional questioning would not have altered the outcome of the ALJ’s

decision. Plaintiff’s testimony was consistent with his prior testimony to the disability hearing

officer, including his statements, “I have lost a job because I could not keep up with the pace. It

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was a factory job. I was not keeping up at Little Caesar’s [either]” [Tr. 199]. It was also consistent

with his statements to Dr. Hopko. Specifically, Dr. Hopko stated in his report,

[Plaintiff] states that his most recent job was working in a temp service

position arranging fabrics about five years ago. He reported being

employed for about two months and states, “I was let go because of missing

out with counts.” He also states that he worked at Little Caesar’s for about

four months and was fired, “because I left and went somewhere when I was

on the clock.”

[Tr. 386]. The ALJ, appears to have relied on these other statements by Plaintiff when formulating

Plaintiff’s RFC because the ALJ restricted Plaintiff from performing “fast-paced assembly line or

strictly-monitored daily production quota” jobs—tasks that would otherwise be consistent with his

former factory job and “missing out with counts” [Tr. 65]. That there were additional statements

in the record from Plaintiff regarding why he was unable to keep his prior employment and the

ALJ considered these statements in making his determination indicates that additional testimony

from Plaintiff during the hearing on why he was unable to keep up with his past work would not

have altered the ALJ’s decision.

Plaintiff’s ability to care for himself. Plaintiff argues “[t]he ALJ did not probe into [his]

simplistic answers to determine what type of issues Plaintiff has taking care of himself and how

often these issues present themselves” [Doc. 20 p. 7]. In support of his argument, Plaintiff relies

on the following testimony from the hearing:

ALJ: All right. Do you have any trouble taking care of yourself other than,

you know, being reminded to take your meds, pick up your clothes? I mean

do you have any issues where you won’t bathe without someone reminding

you?

Plaintiff: Yeah.

[Tr. 154].

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But this exchange was not the only portion of Plaintiff’s testimony regarding his ability to

care for himself. Prior to this point of Plaintiff’s testimony, the ALJ asked Plaintiff if his mother

reminded him to take his medications, and he responded, “Yeah” [Tr. 152]. In addition,

immediately before the portion of the testimony cited by Plaintiff in support of his argument, the

following dialogue occurred:

ALJ: . . . . So, what’s your—what do you do on a daily basis? What’s your

typical day look like?

Plaintiff: Yeah, it’s get up, watching stuff on just like TV, and them things,

and just like just eat. It really would be—would be really just be chilling in

my room and watching stuff.

ALJ: And do you help your mom around the house at all?

Plaintiff: She like—not really help. She’s doing like a lot, and I’ll wash

my clothes. We be remodeling. I can pick up stuff—

ALJ: Okay.

Plaintiff: —if we have some company. I try to help.

[Tr. 154].7

The ALJ cited all of this testimony in his decision [Tr. 65]. Thus, while the ALJ may not

have probed further into Plaintiff’s answer regarding whether he was able to bathe himself without

a reminder, the ALJ did inquire into Plaintiff’s ability to care for himself on a daily basis in other

areas.

But even if the ALJ had probed further into “what type of issues Plaintiff has taking care

of himself and how often these issues present themselves,” as Plaintiff argues the ALJ was required

to do, it would not have altered the outcome of the ALJ’s decision. For one, the record contains

7 Immediately after asking Plaintiff if he has any issues bathing himself without a reminder,

the ALJ also asked “is there anything else that you think I should know before we start talking to

[the vocational expert]” [Tr. 155].

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other statements by Plaintiff regarding his activities of daily life that the ALJ considered in his

decision. Specifically, Dr. Hopko stated as follows in the “Activities of Daily Living and Current

Functioning” section of his report:

[Plaintiff] states that he can prepare simple meals (i.e., sandwich, cereal,

microwave dinners). He states that he can cook chicken in the oven. He

states that he can wash dishes, vacuum, and sweep. He states that his mother

does his laundry and that he has the skills to be able to do laundry. He states

that he can cut grass with a push mower. He states that he has never had a

driver’s license. He states that he failed the written learner’s permit

examination six times. He reports that his mother drove him to the

interview. He states that for hobbies he likes to “play video games . . . listen

to music . . . go to the park . . . spend time with my daughter . . . watch

anime and stuff.” He states that his main social support is his mother.

[Tr. 387]. The ALJ cited extensively to Dr. Hopko’s report in his decision, including as it relates

to Plaintiff’s ability to perform daily tasks [Tr. 67].

Furthermore, the ALJ found that “the claimant’s statements concerning the intensity,

persistence and limiting effects of these symptoms are not entirely consistent with the objective

medical and other evidence for the reasons explained in this decision” and, as such, “these

statements have been found to affect the claimant’s ability to work only to the extent they can

reasonably be accepted as consistent with the objective medical and other evidence” [Tr. 66].

Here, the objective medical and other evidence in the record—evidence the ALJ cited in his

decision—contradicts any finding that Plaintiff’s symptoms caused greater limitations in his day-

to-day activities. Specifically, the ALJ cited to Plaintiff’s January 2020 treatment notes stating he

was “appropriately dressed” [Tr. 67]. The ALJ also cited to Plaintiff’s mother’s statements in the

record regarding his ability to care for himself to find:

As to activities of daily living, the claimant has described daily activities,

which are not consistent with the complaints of disabling symptoms and

limitations. He testified that he could help around the house and do his own

laundry. His mother reported that he plays games and listens to music. He

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helps care for his daughter. His mother said he has no problem with personal

care but needs reminders for grooming and medications. He is able to

prepare simple meals but he does not like to do chores. He goes outside and

walks or rides in a car. His mother also noted that he rides a “ripstick” for

transportation. She indicated he could not pass a driver’s test but he shops

by mail and computer and in stores with help. She said he could pay bills

and count change with assistance.

[Id. at 67]. Thus, even if the ALJ had probed further into Plaintiff’s ability to care for himself, and

even if Plaintiff testified to greater limitations than those included in the ALJ’s RFC determination,

Plaintiff has failed to show how the outcome of his case would have been different since the

remainder of the record—including both his own prior statements and the other evidence in the

record—contradicts any greater limitations.

Plaintiff’s side effects from his medications. Plaintiff also challenges the ALJ’s

questioning of the side effects from his medication [Doc. 20 p. 7]. Plaintiff and the ALJ had an

exchange regarding any side effects of Plaintiff’s medication:

ALJ: Okay. And what kind of medicines are you taking now?

Plaintiff: They in my room. I don’t know the name of them exactly.

ALJ: Okay. Are you having any serious side effects from them?

Plaintiff: [Inaudible]. It like be ups and down.

ALJ: Okay.

Plaintiff: And sometimes be feeling good and then it be feeling bad.

[Tr. 152].

Plaintiff argues the ALJ only “superficially inquired into [his] side effects from

medications, which is problematic because “the ALJ stated that Plaintiff has no established

medical side effects [that] would interfere with the jobs identified by the vocational expert” [Doc.

20 p. 7].

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But any additional questioning would not have altered the outcome. As explained above,

the ALJ found that he would accept the claimant’s statements regarding the intensity, persistence,

and limiting effects of his systems only to the extent they were consistent with the objective

medical and other evidence [Tr. 66]. And as the Commissioner points out, “the ALJ cited McNabb

Center records from 2020[,] which reasonably support the conclusion that Plaintiff did not

experience side effects from his medications” [Doc. 23 p. 15]. Any additional testimony Plaintiff

may have offered regarding the side effects of his medications had the ALJ inquired further,

therefore, would not have altered the ALJ’s decision. It would have contradicted the medical

evidence the ALJ relied on his decision, including the June 24, 2016, February 13, 2020, and April

29, 2020 reports from the Knox County Adult Clinic that noted that Plaintiff had denied any side

effects [Tr. 67 (citing id. at 357, 424, 427)].

Plaintiff’s failure to continue treatment. Plaintiff argues that the ALJ failed to ask why

Plaintiff had stopped attending treatment in 2016 despite citing in his decision that Plaintiff was

not involved in mental health treatment from June 2016 to January 2020 and was discharged in

February 2017 for failure to keep appointments [Doc. 20 p. 7]. Plaintiff argues his “lack of

treatment and failure to attend appointments [could have] resulted from an inability to afford

treatment, a lack of transportation, or from the symptoms caused by his mental impairments” [Id.].

The Court finds that Plaintiff has failed to establish how the outcome of his case would

have been different had the ALJ inquired into the reason Plaintiff ceased treatment in 2016. For

one, Plaintiff only speculates about what he might have said had the ALJ inquired into why he

ceased treatment. See Brown v. Comm’r of Soc. Sec., No. 12-CV-15108, 2013 WL 5785783, at

*8 (E.D. Mich. Oct. 28, 2013) (“To establish prejudice, the claimant must point to specific facts

that the ALJ did not consider and show that those facts would have been relevant to the ALJ’s

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determination. Mere conjecture is insufficient.” (internal quotations and citations omitted)). And,

even if Plaintiff had represented to the Court that he would have told the ALJ he was unable to

continue treatment in 2016 because of the severity of his impairments—or the other reasons he

offers on appeal—once again, the ALJ would have relied on such testimony only to the extent it

aligned with the other evidence in the record [Tr. 66].

The other evidence in the record would have contradicted any testimony that Plaintiff

continued to need treatment in 2016 despite failing to attend. As the ALJ stated in his decision in

reference to Dr. Hopko’s opinion, which the ALJ relied upon heavily and found persuasive,“[t]he

claimant was not taking medication when evaluated in March 2019. Still, on consultative

evaluation [Dr. Hopko], did not find significant overt symptoms of ADHD and mood was noted

to be only mildly depressed” [Tr. 66]. Thus, even assuming Plaintiff testified that he ceased

treatment because the symptoms of his impartments were too severe, this testimony would have

contradicted Dr. Hopko’s finding that Plaintiff had no significant overt symptoms of ADHD and

mood and only mild depression despite not being on any medication.

Failure to order additional testing. Plaintiff argues the ALJ failed to sufficiently develop

the record by failing to order a psychological examination with testing because such an

examination “would have been beneficial to supplement the gap in [Plaintiff’s] treatment” and

“provide[d] a better overview of Plaintiff’s limitations,” especially since the ALJ’s decision

describes a discrepancy between Plaintiff’s Full Scale IQ scores at age ten and thirteen [Doc. 20

pp. 7–8]. In response, the Commissioner argues that “the Commissioner already sought Dr.

Hopko’s [consultative examination] opinion, which [found] that Plaintiff had borderline

intellectual functioning, not intellectual disorder” [Doc. 23 p. 16 (citing Tr. 66, 387)]. The

Commissioner also cites to the Program Operations Manual System, which explains that,

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“continuing disability reviews like Plaintiff’s ‘usually do not require new IQ tests’ because older

tests, ‘especially a test from age 16 or older, will remain relevant and can be used in the [continuing

disability review] process.’” [Id. at 16–17 (citing POMS DI 28101.150)].8

The Court finds that the ALJ fulfilled his heightened duty to fully develop the

administrative record, despite not ordering a subsequent psychological evaluation with testing. As

the Commissioner notes, Plaintiff was either sixteen or seventeen in 2013 when he received his

second IQ test with a resulting score of 68 [Doc. 23 p. 16 (citing Tr. 66, 161)]. According to

POMS DI 28010150, “IQ scores generally tend to stabilize by age 16” and “[c]ontinuing disability

reviews (CDR) for adults usually do not require new IQ tests.” Often, an IQ test used in the

comparison point decision (CPD), especially a test from age 16 or older, will remain relevant and

can be used in the CDR process.” Thus, according to the Commissioner’s manual, an ALJ would

not typically need to request additional IQ testing for a case like this one.

As discussed previously, this is not a case in which the ALJ failed to obtain already-existing

medical evidence. Rather, Plaintiff argues the ALJ should have ordered additional testing.

Plaintiff fails to cite any authority, however, that would require an ALJ—even with the heightened

duty to develop the record—to order new testing when the Commissioner’s own guidelines would

not otherwise require such testing. Absent such authority, the Court finds the ALJ did not fail to

fulfill his heightened duty.9

8 Plaintiff does not rebut the Commissioner’s argument in his reply brief [Doc. 24].

9 Even if the ALJ had ordered additional testing, there is no indication plaintiff would have

received a lower IQ score and, even if he did receive a lower score, such a finding would arguably

contradict Dr. Hopko’s opinion—an opinion the ALJ found persuasive—that Plaintiff fell in the

borderline range of intellectual functioning.

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The duration of the hearing. Plaintiff compares his case to the plaintiff in Lashley to the

extent the Sixth Circuit noted in that case that “the hearing was . . . a mere 25 minutes, and was

fully transcribed in 11 pages” whereas, “[h]ere, Plaintiff's hearing lasted 28 minutes, [] was

transcribed in 19 pages” and, “[o]f the 19 pages, 7 pages fully transcribed Plaintiffs testimony”

[Doc. 20 pp. 5-6]. As Plaintiff also notes, however, the Lashley court directed that whether the

ALJ satisfied their heightened duty must be determined on a case-by-case basis [/d. at 5 (citing

Lashley, 708 F.2d at 1052)]. Thus, the length of the hearing is not dispositive. See Forrest, 591

App’x at 363 (finding a fifteen-minute hearing sufficed especially considering the plaintiff's

“negligible work experience”); Born, 923 F.2d at 1172 (holding that brevity of a hearing alone

does not render it insufficient where failure to extensively examine the claimant does not result in

unfair or unsupported conclusions). For the reasons already explained, the Court finds that despite

the length of the hearing, the ALJ fulfilled his duty to fully develop the record, and to the extent

he did not, any additional development would not have altered the outcome.

For all these reasons, Plaintiff?s second basis for remand is denied.

CONCLUSION

Based on the foregoing, the Court will DENY Plaintiff’s Motion for Summary Judgment

[Doc. 19], and GRANT the Commissioner’s Motion for Summary Judgment [Doc. 22]. The Court

AFFIRMS the decision of the Commissioner and DIRECTS the Clerk of Court to close the case.

ORDER ACCORDINGLY.

VE Peat

76 E. McCook

United States Magistrate Judge

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