Davis v. O'Malley (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

ROBERT LEE DAVIS, )

)

Plaintiff, )

)

v. ) Case No. 2:23-cv-751-CWB

)

MARTIN J. O’MALLEY, )

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. Introduction and Administrative Proceedings

Robert Lee Davis (“Plaintiff”) filed an application for Disability Insurance Benefits

under Title II of the Social Security Act and an application for Supplemental Security Income

under Title XVI of the Social Security Act on December 14, 2020—alleging disability onset as of

December 14, 2020 due to hypertension, asthma, chronic obstructive pulmonary disease, and

sleep apnea. (Tr. 17, 74, 81).1 The claim was denied at the initial level on February 14, 2022

and again after reconsideration on July 12, 2022. (Tr. 17, 80, 87-89, 95-96, 102-05). Plaintiff then

requested de novo review by an administrative law judge (“ALJ”). (Tr. 17, 130-34). The ALJ

subsequently heard the case on March 8, 2023 (Tr. 17, 34-73), at which time testimony was given

by Plaintiff (Tr. 39-66, 70) and by a vocational expert (Tr. 63-70). The ALJ took the matter

under advisement and issued a written decision on May 25, 2023 that found Plaintiff not disabled.

(Tr. 17-29).

1 References to pages in the transcript are denoted by the abbreviation “Tr.”

The ALJ’s written decision contained the following enumerated findings:

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

through December 31, 2025.

2. The claimant has not engaged in substantial gainful activity since December 14,

2020, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: hypertension, asthma,

chronic obstructive pulmonary disease (COPD), sleep apnea, and obesity

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

4. The claimant does not have an impairment or combination 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, I find that the claimant has the

residual functional capacity to perform light work as defined in 20 CFR

404.1567(b) and 416.967(b) except he can occasionally push and pull with

the bilateral upper and lower extremities. He can occasionally crouch. He can

never climb ladders, ropes, and scaffolds. He can frequently engage in

reaching, handling, fingering, and feeling. He should avoid concentrated

exposure to extreme heat and humidity. He should avoid concentrated exposure

to pulmonary irritants such as fumes, odors, dust, and gas. He should avoid

all exposure to hazardous conditions such as unprotected heights, dangerous

machinery, and uneven surfaces. He would be restricted to jobs with no more

than simple, short instructions and simple work-related decisions with few

workplace changes.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565

and 416.965).

7. The claimant was born on April 1, 1975, and was 45 years old, which is defined

as a younger individual age 18-49, on the alleged disability onset date (20 CFR

404.1563 and 416.963).

8. The claimant has a limited education (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a finding

that the claimant is “not disabled,” whether or not the claimant has transferable

job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the

national economy that the claimant can perform (20 CFR 404.1569, 404.1569a,

416.969, and 416.969a).

11. The claimant has not been under a disability, as defined in the Social Security

Act, from December 14, 2020, through the date of this decision (20 CFR

404.1520(g) and 416.920(g)).

(Tr. 20, 21, 22, 27, 28, 29). On October 25, 2023, the Appeals Council denied Plaintiff’s request

for review (Tr. 1-5), thereby rendering the ALJ’s decision the final decision of the Commissioner.

See, e.g., Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986).

Plaintiff now asks the court to reverse the final decision and remand the case for a new

hearing and further consideration. (Doc. 11 at p. 10). As contemplated by 28 U.S.C. § 636(c) and

Rule 73 of the Federal Rules of Civil Procedure, the parties have consented to the exercise of full

jurisdiction by a United States Magistrate Judge (Docs. 6 & 7), and the court finds the case ripe

for review pursuant to 42 U.S.C. §§ 405(g) & 1383(c)(3) in that the court construes Plaintiff’s

supporting brief (Doc. 11) as a motion for summary judgment and the Commissioner’s opposition

brief (Doc. 12) as a competing motion for summary judgment. Upon consideration of the parties’

submissions, the relevant law, and the record as a whole, the court concludes that Plaintiff’s motion

for summary judgment is due to be denied, that the Commissioner’s motion for summary judgment

is due to be granted, and that the final decision is due to be affirmed.

II. Standard of Review and Regulatory Framework

The court’s review of the Commissioner’s decision is a limited one. Assuming the proper

legal standards were applied by the ALJ, the court is required to treat the ALJ’s findings of fact as

conclusive so long as they are supported by substantial evidence. 42 U.S.C. § 405(g); Graham v.

Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial evidence is more than a scintilla,” but

less than a preponderance, “and is such relevant evidence as a reasonable person would accept

as adequate to support a conclusion.” Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158

(11th Cir. 2004) (“Even if the evidence preponderates against the Commissioner’s findings,

[a reviewing court] must affirm if the decision reached is supported by substantial evidence.”)

(citations omitted). The court thus may reverse the ALJ’s decision only if it is convinced that the

decision was not supported by substantial evidence or that the proper legal standards were not

applied. See Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). Reversal is not warranted

simply because the court itself would have reached a contrary result. See Edwards v. Sullivan,

937 F.2d 580, 584 n.3 (11th Cir. 1991). Despite the deferential nature of its review, however,

the court must look beyond those parts of the record that support the decision, must view the record

in its entirety, and must take account of evidence that detracts from the evidence relied on in the

decision. See Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir. 1986); see also Walker v. Bowen,

826 F.2d 996, 999 (11th Cir. 1987).

To qualify for disability benefits and establish entitlement for a period of disability, a

person must be unable to:

engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or which

has lasted or can be expected to last for a continuous period of not less than

12 months.

42 U.S.C. § 423(d)(1)(A).2 To make such a determination, the ALJ employs a five-step sequential

evaluation process:

(1) Is the person presently unemployed?

(2) Is the person’s impairment severe?

2 A “physical or mental impairment” is one resulting from anatomical, physiological, or

psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory

diagnostic techniques. 42 U.S.C. § 423(d)(3).

(3) Does the person’s impairment meet or equal one of the specific impairments set

forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1 [the Listing of Impairments]?

(4) Is the person unable to perform his or her former occupation?

(5) Is the person unable to perform any other work within the economy?

An affirmative answer to any of the above questions leads either to the next

question, or, on steps three and five, to a finding of disability. A negative answer

to any question, other than step three, leads to a determination of “not disabled.”

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). See also 20 C.F.R. §§ 404.1520 &

416.920.3

The burden of proof rests on the claimant through step four. See Phillips v. Barnhart, 357

F.3d 1232, 1237-39 (11th Cir. 2004); Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003).

A claimant establishes a prima facie case of a qualifying disability once he or she has carried the

burden of proof from step one through step four. Id. At step five, the burden shifts to the

Commissioner, who must then show that there are a significant number of jobs in the national

economy that the claimant can perform. Id.

In order to assess the fourth and fifth steps, the ALJ must determine the claimant’s

Residual Functional Capacity (“RFC”). Phillips, 357 F.3d at 1238-39. The RFC is what the

claimant is still able to do despite the claimant’s impairments and is based on all relevant medical

and other evidence. Id. It may contain both exertional and nonexertional limitations. Id. at 1242-

43. At the fifth step, the ALJ considers the claimant’s RFC, age, education, and work experience

3 McDaniel was an SSI case brought under Title XVI. Nonetheless, because the same sequence

applies to claims for disability insurance benefits brought under Title II, cases arising under

Title XVI are appropriately cited as authority in Title II cases, and vice versa. See, e.g., Ware v.

Schweiker, 651 F.2d 408, 412 (5th Cir. 1981); Smith v. Comm’r of Soc. Sec., 486 F. App’x 874,

876 n.* (11th Cir. 2012) (“The definition of disability and the test used to determine whether a

person has a disability is the same for claims seeking disability insurance benefits or supplemental

security income.”).

to determine if there are jobs available in the national economy that the claimant can perform. Id.

at 1239. To do so, the ALJ can use either the Medical Vocational Guidelines (“grids”), see

20 C.F.R. pt. 404 subpt. P, app. 2, or call a vocational expert (“VE”). Id. at 1239-40. The grids

allow the ALJ to consider factors such as age, confinement to sedentary or light work, inability to

speak English, educational deficiencies, and lack of job experience. Each factor can independently

limit the number of jobs realistically available to an individual, and combinations of these factors

yield a statutorily-required finding of “Disabled” or “Not Disabled.” Id. at 1240.

III. Issues on Appeal

Plaintiff raises one issue on appeal: whether the ALJ erred in failing to order a consultative

examination, including pulmonary function testing. (Doc. 11 at p. 2).

IV. Discussion

Plaintiff asserts that the ALJ erred in failing to order a consultative medical examination

when the medical record pertaining to his respiratory impairments was inadequate to properly

determine the nature and extent of his physical limitations—exertional and non-exertional—and

their impact on his RFC. (Doc. 11 at p. 9). Plaintiff more specifically asserts that the medical

evidence did not include pulmonary function testing (“PFT”) and that the ALJ therefore

did not have sufficient evidence to determine whether his respiratory impairments met or

medically equaled the respiratory listings at 3.02 or 3.03 or to evaluate adequately his

respiratory impairments. (Id.).

An RFC determination is an assessment of what a claimant is still able to do despite the

claimant’s impairments and is based on all relevant medical and other evidence. Phillips, 357 F.3d

at 1238-39; Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997); 20 C.F.R. §§ 404.1545(a),

416.945(a) (“Your residual functional capacity is the most you can still do despite your

limitations.”). “[T]he task of determining a claimant’s [RFC] and ability to work rests with the

[ALJ], not a doctor.” Moore v. Soc. Sec. Admin., Comm’r, 649 F. App’x 941, 945 (11th Cir. 2016);

Hollingsworth v. Comm’r of Soc. Sec., 846 F. App’x 749, 753 (11th Cir. 2021) (“A claimant’s

RFC is a matter reserved for the ALJ’s determination, and while a physician’s opinion on the

matter is considered, it is not dispositive.”); Bouie v. Astrue, 226 F. App’x 892, 894 (11th Cir.

2007) (“An ALJ may reject the opinion of any physician when the record supports a contrary

conclusion. The resolution of conflicting evidence is the function of the ALJ, not the Court.”)

(citation omitted); Frank v. Comm’r of Soc. Sec., No. 2:20-CV-962, 2022 WL 598036 at *8

(M.D. Fla. Feb. 10, 2022), report and recommendation adopted, No. 2:20-CV-962, 2022 WL

596833 (M.D. Fla. Feb. 25, 2022) (“[T]here is no requirement that an ALJ base the RFC finding

on a medical source’s opinion.”); Tolbert v. Kijakazi, No. 3:21-CV-33, 2022 WL 4591646 at *2

(M.D. Ala. Sept. 29, 2022) (“An ALJ may ‘distill a claimant’s RFC from an amalgamation of the

record as a whole, without requiring a specific medical opinion to articulate a specific functional

limitation.’”) (citation omitted). “It is ‘solely the province of the [Commissioner]’ to resolve

conflicts in the evidence and assess the credibility of witnesses.” Lacina v. Comm’r, Soc. Sec.

Admin., 606 F. App’x 520, 525 (11th Cir. 2015) (citation omitted).

“To find that an ALJ’s RFC determination is supported by substantial evidence, it must be

shown that the ALJ has ‘provide[d] a sufficient rationale to link’ substantial record evidence ‘to

the legal conclusions reached.’” Eaton v. Colvin, 180 F. Supp. 3d 1037, 1055 (S.D. Ala. 2016)

(citations omitted). Although an RFC determination must be supported by substantial evidence,

the ALJ “is not required to specifically address every aspect of an opinion or every piece of

evidence in the record” for the determination to be affirmed. Coley v. Comm’r of Soc. Sec.,

771 F. App’x 913, 917 (11th Cir. 2019); Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)

(“[T]here is no rigid requirement that the ALJ specifically refer to every piece of evidence in his

decision, so long as the ALJ’s decision ... is not a broad rejection which is ‘not enough to enable

[the district court ... ] to conclude that [the ALJ] considered [the claimant’s] medical condition as

a whole.’”) (citation omitted). Moreover, “to find that the ALJ’s RFC assessment is supported by

substantial evidence, it is not necessary for the ALJ’s assessment to be supported by the assessment

of an examining or treating physician.” Smoke v. Kijakazi, No. CV 21-0206, 2022 WL 721532 at

*4 (S.D. Ala. Mar. 9, 2022).

“Social Security proceedings are inquisitorial rather than adversarial,” and “[i]t 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). “Because a hearing before an ALJ is not an adversary

proceeding, the ALJ has a basic obligation to develop a full and fair record.” Graham, 129 F.3d

at 1422.4 “This obligation requires the ALJ to develop the claimant’s complete medical history

for at least the 12 months preceding the month in which the application was filed, assist the

Claimant in obtaining evidence from his or her treating sources, and order a consultative

examination when such an examination is necessary to make an informed decision.” Rivera Perez

v. Comm’r of Soc. Sec., No. 6:20-CV-79, 2021 WL 289052 at *2 (M.D. Fla. Jan. 28, 2021);

20 C.F.R. §§ 404.1512(b)(1)-(2), 416.912(b)(1)-(2).

The ALJ’s obligation to develop the record “exists even if the claimant is represented by

counsel or has waived the right to representation.” Cowart v. Schweiker, 662 F.2d 731, 735

4 “The basic duty to develop the record rises to a ‘special duty’ where the claimant has not waived

his or her right to representation and is not represented during the administrative proceedings.”

Rivera Perez v. Comm’r of Soc. Sec., No. 6:20-CV-79, 2021 WL 289052 at *2 n.3 (M.D. Fla.

Jan. 28, 2021) (citing Brown v. Shalala, 44 F.3d 931, 934-35 (11th Cir. 1995)) (emphasis added).

Because Plaintiff was represented by counsel at the hearing (Tr. 34-74), the ALJ had only a basic

duty to develop the record.

(11th Cir. 1981) (citations omitted). However, “[t]here must be a showing that the ALJ’s failure

to develop the record led to evidentiary gaps in the record, which resulted in unfairness or clear

prejudice, before the court will remand a case for further development of the record.” Rodriguez-

Torres v. Saul, No. 8:18-CV-1982, 2019 WL 4267955 at *4 (M.D. Fla. Sept. 10, 2019), aff’d sub

nom. Torres v. Comm’r of Soc. Sec., 819 F. App’x 886 (11th Cir. 2020). “At a minimum, clear

prejudice ‘requires a showing that the ALJ did not have all of the relevant evidence before him in

the record ... or that the ALJ did not consider all of the evidence in the record in reaching his

decision.’” Rivera Perez, 2021 WL 289052 at *3 (quoting Kelly v. Heckler, 761 F.2d 1538, 1540

(11th Cir. 1985)); Thomas-Joseph v. Comm’r of Soc. Sec., No. 21-11020, 2022 WL 1769134 at *2

(11th Cir. June 1, 2022).

With respect to the matter now at issue, the “[o]rdering [of] a consultative examination is

a discretionary matter for the ALJ and would be sought ‘to try to resolve an inconsistency in the

evidence or when the evidence as a whole is insufficient to support a determination or decision’

on the claim.” Banks for Hunter v. Comm’r, Soc. Sec. Admin., 686 F. App’x 706, 713

(11th Cir. 2017) (citation omitted); 20 C.F.R §§ 404.1519a(b), 416.919a(b) (“We may purchase a

consultative examination to try to resolve an inconsistency in the evidence, or when the evidence

as a whole is insufficient to allow us to make a determination or decision on your claim.”).

An ALJ thus “is not required to order a consultative examination as long as the record contains

sufficient evidence upon which the ALJ can make an informed decision.” Ingram v. Comm’r of

Soc. Sec., 496 F.3d 1253, 1269 (11th Cir. 2007); Castle v. Colvin, 557 F. App’x 849, 853

(11th Cir. 2014) (“The ALJ ‘has a duty to develop the record where appropriate but is not required

to order a consultative examination as long as the record contains sufficient evidence for the [ALJ]

to make an informed decision.’”) (citation omitted).

Here, the evidence before the ALJ was sufficient to assess Plaintiff’s RFC. In addition to

Plaintiff’s testimony (Tr. 23), the ALJ considered Plaintiff’s hospital treatment records that

showed the following:

[O]n November 30, 2020, the claimant presented to the emergency room (ER) and

was admitted due to constant shortness of breath, aggravated by movement (1F).

He tried using his albuterol inhaler but had minimal relief. He also had some

wheezing and fatigue. His blood pressure on presentation was 223/118 and he had

no signs of end organ damage. He had a chest x-ray showing no acute abnormality.

He was discharged on December 5, 2020, with diagnoses of a COPD exacerbation,

uncontrolled HTN, possible NSTEMI, and hyperlipidemia. He was also placed on

a BiPAP at night.

On August 8, 2021, the claimant presented to the ER with complaints of a cough

(2F/47). The claimant had a chest x-ray that showed no acute pulmonary

disease (2F/35). His respiratory exam was within normal limits, and he had no

neurological deficits (2F/36). His active problems were noted to be asthma, HTN,

and obstructive sleep apnea (2F/38). His blood pressure measured 181/94 (p. 49).

He was assessed with a COPD exacerbation (2F/50).

On September 19, 2021, the claimant presented to the ER with complaints of back

pain for a week. He was recently diagnosed with HTN, and his blood pressure was

224/100 in triage. He has been without his HTN medication because he was unable

to get and [sic] appointment with his primary care provider (2F/23). On exam, he

had moderate tenderness of the back. He had no musculoskeletal abnormalities with

a normal range of motion. There were no focal neurological deficits observed,

normal sensory observed, normal motor observed, and normal coordination

observed. He was also noted to be cooperative, with an appropriate mood, affect,

and judgement (2F/26). The claimant had chest-x-rays showing no active disease

(2F/9). The claimant tested positive for amphetamines, cannabis, cocaine, and

opiates (2F/22). He was diagnosed with HTN crisis and back pain.

On January 13, 2022, the claimant presented to the ER after falling yesterday over

a curb and reported low back pain. He stated he has chronic COPD and asthma and

is having a cough (3F/17). On exam, the claimant’s blood pressure measured

227/114 and he had been out of his medications (3F/19). His lungs were clear to

auscultation with no deficits noted (3F/20). He had no neurological deficits. He

had a normal range of the back and was ambulating well. He had an appropriate

mood and affect (3F/20). Lumbar spine x-rays showed no fracture or malalignment

of the lumbar spine, and his chest x-ray showed no acute cardiopulmonary

disease (3F/20). The claimant was diagnosed with acute low back pain,

musculoskeletal pain, chronic GERD, and uncontrolled HTN secondary to

medication non-compliance (3F/21).

On April 27, 2022, the claimant presented to the ER with complaints of chest pain.

Based on his historical features and/or lab analysis and/or EKG, in addition to his

reassuring physical exam, the physician found no evidence at the time for a

malignant etiology for his chest pain (4F/23). He was assessed with asthma,

cough, and uncontrolled HTN secondary to medication noncompliance (4F/26).

On July 10, 2022, the claimant was admitted to the hospital with complaints of

chest pain, and he was discharged on July 15, 2022. He also reported having

shortness of breath (6F/14). He was noted to be morbidly obese with a history of

non-compliance to medical treatment, hypertensive crisis, polysubstance abuse,

COPD, and hyperlipidemia. He was found to have a blood pressure in the 220’s

over the 110’s. He was put on multiple medications for his blood pressure. The last

medication tried was Imdur and it seemed to work relatively well. He continued to

ask for pain medications. At this point he was ready for discharge. There was also

an echocardiogram showing an EF greater than 70% with hypertrophic

cardiomyopathy (6F/52). On an earlier exam, his lungs were clear to auscultation,

respirations were non labored, and breath sounds were equal. He was alert and

oriented to person, place, time, and situation. He had no focal neurological deficits

noted and he had normal coordination. He was cooperative, and he had an

appropriate mood and affect with normal judgement (6F/16). His chest x-ray

showed clear lungs and a normal heart size (6F/18). His troponin was negative

(6F/23). His EKG noted no sign of ST-T wave changes (6F/32). His physical exam

adduced essentially negative findings. He was also cooperative with an

appropriate mood and affect. He was diagnosed with HTN and atypical chest pain

(6F/21).

On August 1, 2022, the claimant presented to the ER with complaints of back pain

with urination for a week. He reported no radiating pain. The degree at onset was

minimal and the degree at present is minimal (6F/6). His frequency of drug use was

noted as weekly and he was abusing marijuana (6F/8). On exam, he was alert. His

lungs were clear to auscultation, respirations were non-labored, and breath

sounds were equal. He had no tenderness of the back (6F/8). He had normal ranges

of motion and normal strength (6F/9). He had no neurological deficits. He was

cooperative with an appropriate mood and affect (6F/9). He had a lumbar spine

x-ray that was negative (6F/13). He was assessed with acute back pain,

polysubstance use/abuse, and HTN (6F/11).

On August 12, 2022, the claimant reported to the office for a hospital follow up

visit after being seen in the emergency room with complaints of back pain (5F).

The claimant stated he had an x-ray that was negative. He continues to have back

pain on and off. On exam, he had tenderness with deep palpation to the right flank.

He was assessed with flank pain. He was given information with education

regarding exercises to help alleviate musculoskeletal pain. Also, there were no

complaints noted of medication side effects. On September 9, 2022, the claimant

presented with a history of painful urination, left flank pain. His CT of the

abdomen/pelvis showed no urinary calculus or suspicious urinary lesion (6F/4).

(Tr. 23-25) (emphasis added).

After the March 8, 2023 hearing, the ALJ sent Plaintiff to an internal medicine consultative

examination. (Tr. 17, 25-26, 931-40). The ALJ stated that on April 16, 2023, Dr. Oluyinka Adediji

conducted the consultative examination and that Plaintiff presented with complaints of shortness

of breath, asthma, COPD, hypertension, and sleep apnea. (Tr. 25, 932). The examination showed

that respirations were normal with no intercostal refractions or use of accessory muscles apparent,

that breath sounds were normal to auscultation with some explanatory wheezing, and that there

were no rales, rhonchi, stridor, or rubs. (Tr. 933). The ALJ noted that Dr. Adediji assessed

Plaintiff “with dyspnea on exertion: asthma/COPD, HTN, obstructive sleep apnea, and low back

pain-discogenic” and “physically expected [him] to tolerate a sedentary workload.” (Tr. 26, 934).

In addition, the ALJ considered the prior administrative findings, which concluded that Plaintiff

had an RFC consistent with a medium exertional level. (Tr. 26-27, 77-79, 84-86, 95).

The record reflects that the ALJ had sufficient evidence to assess Plaintiff’s RFC, i.e.,

the medical treatment records, the prior administrative findings, and the consultative examination

and opinion of Dr. Adediji. Plaintiff has failed to show that the record contains any evidentiary

gaps that resulted in unfairness or clear prejudice requiring an additional consultative examination

and opinion. As stated above, the ALJ—and not a doctor—has the duty to determine a claimant’s

RFC. Moore, 649 F. App’x at 945. Thus, an ALJ “is not required to base[] [the] RFC on a

doctor’s opinion.” McCarver v. Comm’r of Soc. Sec., No. 4:20-CV-1053, 2022 WL 860190

at *6 (N.D. Ala. Mar. 22, 2022) (citing Castle, 557 F. App’x at 853-54); Vilches v. Kijakazi,

No. 3:21-CV-15, 2022 WL 11455775 at *2 (M.D. Ala. Oct. 19, 2022) (“Indeed, ‘an ALJ’s RFC

assessment need not match or mirror the findings or opinions of any particular medical source ...

because the reasonability of assessing the RFC rests with the ALJ.’”) (citation and internal

quotation marks omitted).

The record here supports the RFC determination, and an additional medical opinion

was not necessary. See Sarria v. Comm’r of Soc. Sec., 579 F. App’x 722, 724 (11th Cir. 2014)

(“The administrative law judge was not required to order an additional medical examination to

develop a full and fair record. ... Sarria fails to identify any gaps in the evidence. Sarria was

represented during the administrative process and was responsible for producing evidence related

to her disability. ... Sarria’s medical records, the reports of her treating psychiatrists and therapists,

the assessments of agency physicians, and Sarria’s self-assessments provided sufficient evidence

for the administrative law judge to determine whether Sarria’s depression was disabling. ...

Sarria’s disagreement with the interpretation of that evidence does not warrant a remand of her

case.”) (citations omitted). Moreover, “[m]ere speculation that an additional examination might

have changed the results is not sufficient to show prejudice.” Boisvert v. Comm’r of Soc. Sec.,

No. 2:21-CV-35, 2022 WL 4093065 at *6 (M.D. Fla. Sept. 7, 2022); see Schrimpsher v. Kijikazi,

No. 4:21-CV-472, 2022 WL 16924102 at *3 (N.D. Ala. Nov. 14, 2022) (“[Plaintiff] hasn’t pointed

to any evidentiary gaps in the record, and he was represented during the administrative process, so

he had a duty to produce evidence related to his disability. Plus, [Plaintiff] can only speculate that

a consultative exam ... would provide evidence that supported his claim of disability. Speculation

isn’t a basis for an ALJ to order a consultative exam.”) (internal citation omitted); Kever v.

O’Malley, No. 2:23-CV-626, 2024 WL 2239738 at *3 (M.D. Ala. May 17, 2024) (“It is [the

plaintiff’s] burden to show that she is disabled, and her mere speculation that a consultative

examination would have shown that she is more limited than her RFC is not sufficient to remand

her disability application to the Commissioner.”); Davis v. Soc. Sec. Admin., Comm’r, No. 4:20-

CV-000346, 2021 WL 3887467 at *6 (N.D. Ala. Aug. 31, 2021) (“Hope or speculation is not a

basis for ordering a consultative examination.”). Plaintiff therefore has failed to show he was

prejudiced by the absence of an additional consultative examination. See Slocumb v. Comm’r of

Soc. Sec., No. 5:16-CV-617, 2017 WL 2889804 at *4 (M.D. Fla. May 15, 2017) (“[T]he only

purported prejudice that Plaintiff points to in her brief is the lack of a consultative psychological

examination ... but it is Plaintiff’s duty to show how the ALJ’s failure to obtain a psychological

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

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

disabled.”) (emphasis in original); Gentle v. Kijakazi, No. 8:21-CV-2900, 2023 WL 2446609 at *4

(M.D. Fla. Mar. 10, 2023) (“[T]he mere lack of a consultative examination is inadequate to meet

a plaintiff's burden to demonstrate prejudice. ... Rather, a plaintiff must show the ALJ’s decision

would have been impacted by a consultative examination.”) (citing Henderson v. Comm’r of Soc.

Sec., 353 F. App’x 303, 305 (11th Cir. 2009) and Robinson v. Astrue, 365 F. App’x 993, 999

(11th Cir. 2010)).

For these same reasons, Plaintiff’s perfunctory argument that the ALJ was required to

obtain pulmonary function testing to determine whether his impairments met or medically equaled

Listings 3.02 or 3.03 (Doc. 11 at p. 9) also fails. First, Plaintiff provides no discussion as to how

the ALJ’s conclusion that he did not meet the requirements for any listing would have changed

had the ALJ ordered a PFT. Accordingly, Plaintiff has essentially waived the argument. Felipa

v. Comm’r of Soc. Sec., No. 6:18-CV-1519, 2019 WL 6465023 at *3 (M.D. Fla. Dec. 2, 2019)

(citing Jacobus v. Comm’r of Soc. Sec., 664 F. App’x 774, 777 n.2 (11th Cir. 2016) (stating that

plaintiff’s perfunctory argument was arguably abandoned).

Second, even if Plaintiff did challenge the ALJ’s finding that his impairments did not

meet or medically equal Listings 3.02 or 3.03, Plaintiff failed to show that the ALJ was required

to obtain further evidence related to the criteria of either Listing. Ellison, 355 F.3d at 1276

(“[T]he claimant bears the burden of proving that he is disabled, and, consequently, he is

responsible for producing evidence in support of his claim.”). “To ‘meet’ a Listing, a claimant

must have a diagnosis included in the Listings and must provide medical reports documenting that

the conditions meet the specific criteria of the Listings and the duration requirement. To ‘equal’ a

Listing, the medical findings must be ‘at least equal in severity and duration to the listed findings.’”

Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (internal citation omitted); see

20 C.F.R. §§ 404.1525(a)-(d), 416.925(a)-(d); 20 C.F.R. §§ 404.1526(a), 416.926(a).

“For a claimant to show that his impairment matches a listing, it must meet all of the

specified medical criteria. An impairment that manifests only some of those criteria, no matter

how severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in

original). “For a claimant to qualify for benefits by showing that his unlisted impairment, or

combination of impairments, is ‘equivalent’ to a listed impairment, he must present medical

findings equal in severity to all the criteria for the one most similar listed impairment.” Id. at 531

(emphasis in original). “A claimant cannot qualify for benefits under the ‘equivalence’ step by

showing that the overall functional impact of his unlisted impairment or combination of

impairments is as severe as that of a listed impairment.” Id. The duration requirement means

that the impairment “must have lasted or must be expected to last for a continuous period of at

least 12 months.” 20 C.F.R. §§ 404.1509, 416.909.

In finding that Plaintiff did not meet Listing 3.02 or 3.03, the ALJ stated the following:

No treating or examining physician or psychologist has concluded the claimant has

an impairment of combination of impairments that meets or equals the requirements

of any medical listing. Additionally, I have considered the claimant’s impairments

under the appropriate listings and found they do not meet or equal the requirements

of any medical listing.

The claimant’s COPD fails to meet or medically equal Section 3.02 of the Listing

of Impairments because the record evidence does not establish the existence of

COPD with an FEV1 or FVC less than or equal to the values specified for the

claimant’s age, gender, and height without shoes. The record further fails to

establish that the claimant had a chronic impairment of gas exchange demonstrated

by any of the enumerated respiratory measurements or any exacerbations or

complications requiring three hospitalizations within a 12-month period and at least

30 days apart.

The claimant’s asthma fails to meet or medically equal Section 3.03 of the Listing

of Impairments because the record evidence does not establish the existence of

chronic asthma with an FEV1 less than or equal to the values specified for

the claimant’s age, gender, and height without shoes measured within the same

12-month period as the hospitalizations. The record further fails to establish that

the claimant experiences asthma exacerbations or complications requiring three

hospitalizations within a 12-month period and at least 30 days apart lasting at least

48 hours.

(Tr. 21).5

There is simply no discussion by Plaintiff as to how the ALJ’s conclusion that he did not

meet the requirements for the listings at issue would have changed had the ALJ ordered a PFT.

Treatment records consistently showed that Plaintiff had no acute pulmonary disease, that

Plaintiff’s respiratory examinations were within normal limits, and that Plaintiff’s lungs were

clear to auscultation with no deficits noted. (Tr. 535-36, 575, 883, 893, 933). The ALJ’s opinion

shows that the ALJ considered the medical evidence regarding COPD, found COPD to be a severe

impairment, and accounted for the limitations imposed by COPD by limiting Plaintiff to avoiding

concentrated exposure to extreme heat and humidity and to avoiding concentrated exposure to

pulmonary irritants such as fumes, odors, dust, and gas. (Tr. 22). The ALJ advised Plaintiff that

Dr. Adediji’s consultative examination was being included into the record and that Plaintiff had

the right to submit any written comments concerning the evidence, a written statement as to the

5 “FEV1 means forced expiratory volume in the first second of a forced expiratory maneuver,”

and “FVC means forced vital capacity.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 3.00B10-11.

facts and law he believed applied to the case in light of that evidence, and written questions

for the author of the new evidence, along with the right to request a supplemental hearing.

(Tr. 71-72, 341-42). In response, Plaintiff stated that Dr. Adediji’s examination report and

medical statement provided substantial support for his alleged impairments and inability to work,

and he did not object to the lack of a PFT. (Tr. 344). Plaintiff now speculates that a PFT would

have resulted in objective medical findings, i.e., the requisite FEV1 or FVC values on testing.

However, Plaintiff has not cited any evidence that a medical professional ordered or recommended

obtaining a PFT. Under such circumstances, and in light of the record as a whole, the mere lack

of a PFT does not amount to an evidentiary gap and reflects no unfairness or clear prejudice. See

Bailey v. Soc. Sec. Admin., Comm’r, 782 F. App’x 838, 843 (11th Cir. 2019) (“[B]ecause the record

was sufficient for the ALJ to determine whether [plaintiff’s] liver impairments ‘met’ Listing 5.05B

and F, the ALJ was under no obligation to order a consultative examination or obtain expert

medical testimony.”); Felipa, 2019 WL 6465023 at *3.

V. Conclusion

After carefully and independently reviewing the record, and for the reasons stated above,

the court concludes as follows:

• that Plaintiff’s motion for summary judgment (Doc. 11) is due to be DENIED;

• that the Commissioner’s motion for summary judgment (Doc. 12) is due to be

GRANTED; and

• that the Commissioner’s decision is due to be AFFIRMED.

A separate judgment will issue.

DONE this the 15th day of July 2024.

/| 4,

( LAY

CHAD W. BRYAN

UNITED STATES MAGISTRATE JUDGE

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