# Anderson v. O'Malley (CONSENT)

> District Court, M.D. Alabama · November 7, 2024

URL: https://www.frixlaw.com/law-library/cases/10733343

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** November 7, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

LADARIUS KINTIA ANDERSON, )
)
Plaintiff, )
)
v. ) CASE NO. 2:24-CV-254-KFP
)
MARTIN J. O’MALLEY, )
Commissioner of Social Security, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER
Pursuant to 42 U.S.C. § 405(g), Plaintiff Ladarius Kintia Anderson filed a
Complaint seeking review of the Social Security Administration’s decision denying his
application for disability, disability insurance benefits, and supplemental security income.
Doc. 1. The Court construes Plaintiff’s supporting brief (Doc. 6) as a motion for
summary judgment and the Commissioner’s opposition brief (Doc. 7) as a motion for
summary judgment. The parties have consented to the exercise of dispositive jurisdiction
by a magistrate judge pursuant to 28 U.S.C. § 636(c). Docs. 8, 9.
After scrutiny of the record and the motions submitted by the parties, the Court
finds that Plaintiff’s motion for summary judgment is due to be DENIED, the
Commissioner’s motion for summary judgment is due to be GRANTED, and the decision
of the Commissioner is due to be AFFIRMED.
I. STANDARD OF REVIEW
This Court’s role in reviewing claims brought under the Social Security Act is a

narrow one. The scope is limited to determining whether substantial evidence in the
record as a whole supports the Commissioner’s decision and whether the correct legal
standards were applied. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir.
2011). Substantial evidence is more than a scintilla but less than a preponderance. Martin
v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The Court may not reweigh evidence
or substitute its judgment for that of the Commissioner and, even if the evidence

preponderates against the Commissioner’s factual findings, the Court must affirm if the
decision is supported by substantial evidence. Winschel, 631 F.3d at 1178; Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
II. PROCEDURAL BACKGROUND
On December 19, 2019, Plaintiff filed an application for a period of disability and

disability insurance benefits, and an application for supplemental security income,
alleging disability as of June 4, 2018. R. 16. Plaintiff’s applications were denied on initial
review and reconsideration. Id. After the reconsideration denial, Plaintiff requested a
hearing before an Administrative Law Judge (ALJ). Id. The ALJ held a telephone hearing
on January 30, 2023. Id. On August 21, 2023, the ALJ held a supplemental telephone

hearing. Id. At this supplemental hearing, Plaintiff (through his counsel) amended the
alleged disability onset date to December 19, 2019. Id. The ALJ issued an unfavorable
decision on November 28, 2023 (R. 31), and the Appeals Council denied Plaintiff’s
request for review of the hearing decision, (R. 1). Thus, the hearing decision became the
final decision of the Commissioner. See 42 U.S.C. § 405(g).

III. THE ALJ’S DECISION
Upon review of the record, the ALJ determined Plaintiff had severe impairments
of “borderline intellectual functioning, schizophrenia, anxiety, personality disorder, and
history of substance abuse.” R. 21. Despite these impairments, the ALJ determined
Plaintiff has the residual functional capacity (RFC) to perform a full range of work at all
exertional levels, but with nonexertional limitations. R. 24–25. The ALJ then found,

based on testimony from vocational experts, that a significant number of jobs exist in the
national economy Plaintiff could perform with his limitations. R. 30. Thus, the ALJ
determined Plaintiff was not disabled. R. 31.
IV. DISCUSSION
Plaintiff identifies one issue for this Court’s review: whether the ALJ erred by

failing to order a mental consultative examination. Doc. 6 at 2. He argues that “[t]he
evidence of record, lacking a valid, persuasive, qualified expert’s functional assessment
of [Plaintiff’s] mental capacities during the whole of the period of disability at issue, did
not provide the ALJ adequate evidence to make an informed decision as to the nature and
extent of [Plaintiff’s] mental limitations and their impact on his RFC.” Id. at 7.

The ALJ has a basic duty to develop a full and fair record. Graham v. Apfel, 129
F.3d 1420, 1422 (11th Cir. 1997) (citation omitted). This duty generally requires the ALJ
to assist, when necessary, in gathering medical evidence from Plaintiff’s medical sources
and to order a consultative examination when one is necessary to make an informed
decision. 20 C.F.R. § 404.1512(b). Nonetheless, “the claimant bears the burden of
proving that he is disabled, and, consequently, he is responsible for producing evidence in

support of his claim.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003)
(citations omitted).
“Ordering 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) (quoting 20

C.F.R. § 416.919a(b)). Before the Court will remand a case for further development of
the record, there must be a showing that the ALJ’s failure to develop the record led to
evidentiary gaps, which resulted in unfairness or clear prejudice. Graham, 129 F.3d at
1423 (citing Brown v. Shalala, 44 F.3d 931, 934–35 (11th Cir. 1995)). 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.” Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985)
(citation omitted).1

1 The Social Security regulations provide:

Situations that may require a consultative examination. 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. Some
examples of when we might purchase a consultative examination to secure needed
medical evidence, such as clinical findings, laboratory tests, a diagnosis, or prognosis,
include but are not limited to:
(1) The additional evidence needed is not contained in the records of your medical
sources;
Here, Plaintiff’s failure to show up for scheduled consultative exams created the
alleged incomplete record. Dr. Robert Estock, a State agency psychiatric consultant,

completed a psychiatric review technique (PRT) assessment and noted in his report that
Plaintiff had failed to attend a scheduled mental consultative evaluation. R. 28; see also
R. 168. Dr. Harold R. Veits, another State agency psychiatric consultant, also completed
a PRT assessment and also noted that Plaintiff failed to appear for two mental
consultative evaluations. R. 28; see also R. 188. “The failure to appear for a consultative
examination may alone be sufficient to support a finding that a plaintiff is not disabled.”

Tinch v. Astrue, 2009 WL 3379570, at *3 (M.D. Ala. Oct. 19, 2009) (citations omitted).
When a person is “applying for benefits and do[es] not have a good reason for failing . . .
to take part in a consultative examination . . . [the ALJ] may find that [the person] [is] not
disabled.” 20 C.F.R. §§ 404.1518; 416.918. Plaintiff gave no reason, good or otherwise,
for missing his consultative exams. “[Plaintiff] asks this [C]ourt to reverse the ALJ’s

decision for failure to develop the record where [his] own failure to cooperate is the sole
reason that the record may be incomplete. The [C]ourt will not do so.” Robinson v.
Colvin, 2015 WL 4067266, at *8 (N.D. Ala. July 1, 2015).

(2) The evidence that may have been available from your treating or other medical
sources cannot be obtained for reasons beyond your control, such as death or
noncooperation of a medical source;
(3) Highly technical or specialized medical evidence that we need is not available from
your treating or other medical sources; or
(4) There is an indication of a change in your condition that is likely to affect your ability
to work, but the current severity of your impairment is not established.

20 C.F.R. § 404.1519a(b).
Additionally, the Court finds that, even without the mental consultative exam, the
record contained sufficient information for the ALJ to render a decision based on

substantial evidence, and the ALJ’s failure to order a consultative examination did not
result in unfairness or clear prejudice to Plaintiff. As an initial matter, at no time during
the hearing or supplemental hearing before the ALJ did Plaintiff or his counsel request an
additional consultative examination, provide an explanation for his failure to attend his
consultative exams, or suggest that further medical evidence was needed to evaluate
Plaintiff’s condition. R. 41–94. It appears the ALJ considered all the medical records that

existed from Plaintiff’s alleged onset date through the date of his decision, and Plaintiff
does not challenge the accuracy of these records or the ALJ’s analysis of these records.
See Doc. 6.
The objective evidence, treatment records, Plaintiff’s self-assessment in his initial
and supplemental testimony, and the exam findings of evaluating doctors provided

substantial evidence for the ALJ to make an RFC determination. The ALJ considered that
Plaintiff had been hospitalized for psychiatric complaints on 13 occasions since the
amended alleged onset date and considered the records of those hospitalizations. R. 26–
28. The ALJ also noted that in between hospitalizations, Plaintiff has normal mental
status examination results during mental health counseling and group treatment activities,

corroborated by Plaintiff’s testimony of helping around the house, taking out the trash,
and working part-time at McDonald’s with earnings close to the substantial gainful
activity level. Id.; see also R. 48–49, 86–87. Based on his analysis of the record, the ALJ
determined that Plaintiff was capable of a full range of work at all exertional levels with
nonexertional limitations pertaining to Plaintiff’s mental impairments. The absence of a
mental consultative exam did not render the ALJ incapable of making this overall RFC

determination. Plaintiff’s “disagreement with the interpretation of [the] evidence does not
warrant a remand of [his] case.” Sarria v. Comm’r of Soc. Sec., 579 F. App’x 722, 724
(11th Cir. 2014).
Thus, the ALJ did not err in failing to order a consultative examination under these
circumstances.

V. CONCLUSION
For the reasons set forth above, the undersigned finds that the ALJ’s
determinations are supported by substantial evidence and that the ALJ correctly applied
the law. Accordingly, it is ORDERED as follows:
1. Plaintiff’s Motion for Summary Judgment (Doc. 6) is DENIED;
2. The Commissioner’s Motion for Summary Judgment (Doc. 7) is

GRANTED; and
3. The Commissioner’s decision is AFFIRMED.
A final judgment will be entered separately.
DONE this 7th day of November, 2024.

/s/ Kelly Fitzgerald Pate
KELLY FITZGERALD PATE
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10733343. Public record. Not legal advice.