# Murray v. Commissioner of Social Security

> District Court, M.D. Florida · March 31, 2025

URL: https://www.frixlaw.com/law-library/cases/10836766

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 31, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10836766

## How later opinions describe it (automated extraction)

- concluding that a claimant was not prejudiced by the lack of counsel where the “[c]laimant’s proffer of prejudice amount[ed] to no more than speculation[ ] on [the] ways in which an attorney could have bolstered his credibility before the ALJ”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

NICHOLAS JOHN MURRAY,

Plaintiff,

v. Case No. 8:23-cv-2422-CPT

LELAND DUDEK, Acting
Commissioner of Social Security,1

Defendant.
_____________________________/

O R D E R
The Plaintiff seeks judicial review of the Commissioner’s denial of his claim for
Supplemental Security Income (SSI). (Doc. 12). For the reasons discussed below, the
Commissioner’s decision is affirmed.
I.
The Plaintiff was born in 1984, obtained a GED, and has past relevant work
experience as an announcer and mail clerk. (R. 136, 150). The Plaintiff applied for
SSI in September 2019, alleging disability as of July 2019 due to schizophrenia,
paranoia, and mood disorder. Id. at 154–55. The Social Security Administration

1 Mr. Dudek became the Acting Commissioner of Social Security on February 16, 2025. Pursuant to
Federal Rule of Civil Procedure 25(d), Mr. Dudek is substituted for the former Acting Commissioner,
Michelle King, as the Defendant in this suit.
(SSA) denied the Plaintiff’s application both initially and on reconsideration. Id. at
166, 182.
At the Plaintiff’s request, an Administrative Law Judge (ALJ) conducted a

hearing on the matter in January 2023. Id. at 130, 211. At the hearing, the Plaintiff
elected to proceed pro se after being advised of his right to counsel and testified on his
own behalf. Id. at 130–53. A vocational expert (VE) also testified. Id.
In February 2023, the ALJ determined that the Plaintiff (1) had not engaged in

substantial activity since his application date in September 2019; (2) had the severe
impairments of schizophrenia and depression; (3) did not, however, have an
impairment or combination of impairments that met or medically equaled the severity
of any of the listings,2 including—of significance here—Listings 12.03 and 12.04
relating to various mental disorders; (4) had the residual functional capacity (RFC) to

perform a full range of work at all exertional levels but with some nonexertional
limitations; and (5) based on the VE’s testimony, could engage in his past relevant
work as a mail clerk, as well as in other jobs that exist in significant numbers in the
national economy. Id. at 11–23. In light of these findings, the ALJ concluded that the
Plaintiff was not disabled. Id. at 23.

2 The listings are found at 20 C.F.R. Pt. 404, Subpt. P, App’x 1, and catalog those impairments that
the SSA deems considerable enough to prevent a person from performing any gainful activity. 20
C.F.R. § 416.920(a)(4)(iii). When a claimant’s affliction matches an impairment on the list, the
claimant is automatically entitled to disability benefits. 20 C.F.R. § 416.920(a)(4)(iii); Edwards v.
Heckler, 736 F.2d 625, 628 (11th Cir. 1984).
The Appeals Council denied the Plaintiff’s subsequent request for review. Id. at
1–7. Accordingly, the ALJ’s decision became the final decision of the Commissioner.
Viverette v. Comm’r of Soc. Sec., 13 F.4th 1309, 1313 (11th Cir. 2021) (citation omitted).

II.
The Social Security Act (the Act) defines disability as the inability “to engage
in any substantial gainful activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected to last for a continuous

period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R.
§ 416.905(a).3 A physical or mental impairment under the Act “results from
anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 1382c(a)(3)(D).

To determine whether a claimant is disabled, the Social Security Regulations
(Regulations) prescribe “a five-step, sequential evaluation process.” Carter v. Comm’r
of Soc. Sec., 726 F. App’x 737, 739 (11th Cir. 2018) (per curiam) (citing 20 C.F.R.
§ 404.1520(a)(4)).4 Under this process, an ALJ must assess whether a claimant: (1) is
performing substantial gainful activity; (2) has a severe impairment; (3) has a severe

impairment that meets or equals one of the listings; (4) has the RFC to engage in his
past relevant work; and (5) can perform other jobs in the national economy given his

3 Unless otherwise indicated, citations to the Code of Federal Regulations are to the version in effect
at the time of the ALJ’s decision.
4 Unpublished opinions are not considered binding precedent but may be cited as persuasive authority.
11th Cir. R. 36-2.
RFC, age, education, and work experience. Id. (citing Phillips v. Barnhart, 357 F.3d
1232, 1237 (11th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)). Although a
claimant bears the burden of proof through step four, the burden temporarily shifts to

the Commissioner at step five. Goode v. Comm’r of Soc. Sec., 966 F.3d 1277, 1278–79
(11th Cir. 2020) (citation omitted); Sampson v. Comm’r of Soc. Sec., 694 F. App’x 727,
734 (11th Cir. 2017) (per curiam) (citing Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.
1999)). If the Commissioner carries that burden, a claimant must then prove he cannot

engage in the work identified by the Commissioner. Goode, 966 F.3d at 1279. In the
end, “‘the overall burden of demonstrating the existence of a disability . . . rests with
the claimant.’” Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018)
(quoting Doughty v. Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001)).
A claimant who does not prevail at the administrative level may seek judicial

review in federal court provided the Commissioner has issued a final decision on the
claimant’s disability application after a hearing. 42 U.S.C. § 405(g). Judicial review
is confined to ascertaining whether the Commissioner applied the correct legal
standards and whether the Commissioner’s decision is buttressed by substantial
evidence. Id.; Hargress v. Soc. Sec. Admin., Comm’r, 883 F.3d 1302, 1305 n.2 (11th Cir.

2018) (per curiam) (citation omitted). Substantial evidence is “more than a mere
scintilla” and is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (internal
quotation marks and citations omitted). In evaluating whether substantial evidence
bolsters the Commissioner’s decision, a court may not decide the facts anew, reweigh
the evidence, or make credibility determinations. Viverette, 13 F.4th at 1314 (citation
omitted); Carter, 726 F. App’x at 739 (citing Moore v. Barnhart, 405 F.3d 1208, 1211

(11th Cir. 2005) (per curiam)). Further, while a court will defer to the Commissioner’s
factual findings, it will not defer to his legal conclusions. Viverette, 13 F.4th at 1313–
14; Keeton v. Dep’t of Health & Hum. Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (citations
omitted).
III.

The Plaintiff raises two challenges on appeal: (1) the ALJ erred in going forward
with the hearing despite the Plaintiff’s inability to understand the proceeding and to
execute a valid waiver of his right to counsel; and (2) the ALJ also erred in finding that
the Plaintiff did not satisfy the criteria for Listings 12.03 and 12.04.5 (Doc. 12). Each
of these issues will be addressed in turn.

A.
It is well settled that a claimant is statutorily entitled to be represented by
counsel at an ALJ hearing. See Graham v. Apfel, 129 F. 3d 1420, 1422 (11th Cir. 1997)
(per curiam) (citing Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995) (per curiam)).
To effectuate this right, the Commissioner must notify a claimant of the right before

the hearing and must also “advise the claimant of the availability . . . of legal . . .
organizations which provide legal services free of charge.” 42 U.S.C. § 406(c); see also

5 The Court has combined the Plaintiff’s challenges to the ALJ’s findings under Listings 12.03 and
12.04 into a single issue to facilitate its disposition of same.
42 U.S.C. § 1383(d) (stating that the provisions of section 406, which address old age,
survivors and disability insurance, also apply to SSI).
Once a claimant has been apprised of his right to counsel, he may knowingly,

intelligently, and voluntarily waive that right. See Thomas-Joseph v. Comm’r of Soc. Sec.,
2022 WL 1769134, at *2 (11th Cir. June 1, 2022) (per curiam) (citing Brown v. Shalala,
44 F.3d at 934–35). An ALJ’s determination that a claimant has waived his right to
counsel will be upheld on appeal if it is supported by substantial evidence. See Reynolds

v. Soc. Sec. Admin., 679 F. App’x 826, 827 (11th Cir. 2017) (per curiam); Coven v.
Comm’r of Soc. Sec., 384 F. App’x 949, 950 (11th Cir. 2010) (per curiam).
Irrespective of whether a claimant waives the right to be represented by an
attorney, an ALJ has an independent duty to compile a full and fair record regarding
the claimant’s disability application. Brown, 44 F.3d at 934 (citation omitted). This

duty necessitates that an ALJ “investigate the facts and develop the arguments both
for and against granting benefits.” Sims v. Apfel, 530 U.S. 103, 111 (2000). In doing
so, the ALJ must assemble the pertinent evidence concerning a claimant’s medical
history for at least the twelve months preceding the claimant’s application. See 20
C.F.R. § 416.912(b)(1).

An ALJ’s obligation to compile a full and fair record rises to a “special duty”
when a pro se claimant does not properly waive his right to counsel. Kelley v. Heckler,
761 F.2d 1538, 1540 n.2 (11th Cir. 1985) (per curiam) (citation omitted); see also Smith
v. Schweiker, 677 F.2d 826, 829 (11th Cir. 1982). This heightened duty dictates that an
ALJ “conscientiously probe into, inquire of, and explore for all the relevant facts,” and
essentially develop “a record which shows that the claimant was not prejudiced by
[the] lack of counsel,” Brown, 44 F.3d at 934–35 (quoting Clark v. Schweiker, 628 F.2d

399, 404 (5th Cir. July 1981)).
Regardless of whether an unrepresented claimant has validly waived his right
to a lawyer, he is not entitled to a remand to the Commissioner unless he makes a
showing of prejudice. Kelley, 761 F.2d at 1540 nn. 2, 3. This at least requires a

claimant to demonstrate “that the ALJ did not have all of the relevant evidence before
him in the record (which would include relevant testimony from [the] claimant), or
that the ALJ did not consider all of the evidence in the record in reaching his decision.”
Id. at 1540 (citing Smith, 677 F.2d at 830).
The standard for remand differs to a “degree” when a pro se claimant has not

competently waived his right to an attorney. Kelley, 761 F.2d at 1540 n.2. In such a
situation, a reviewing court need not “‘determine that the presence of counsel would
necessarily have resulted in any specific benefits in the handling of the case before the
ALJ.’” Brown, 44 F.3d at 935 (quoting Clark, 652 F.2d at 404).
Here, in the period leading up to the ALJ hearing, the Plaintiff was housed at a

forensic mental health facility and was deemed to be incompetent in a state criminal
case in which he was charged with felony battery. (R. 100–04, 391). Roughly two
weeks before the hearing, however, the Plaintiff was again evaluated and found to be
competent. Id. at 115–19.
The next day, an SSA representative spoke with the Plaintiff on the telephone
to arrange for him to take part in the hearing. (R. 446). During that conversation, the
representative supplied the Plaintiff with information regarding his right to counsel

and noted in his report that the Plaintiff comprehended that information. Id.
At the hearing, the Plaintiff appeared telephonically and was unaccompanied
by an attorney. Id. at 132–33. The ALJ acknowledged at the start of the proceeding
that the Plaintiff was located in a mental health facility and explained to the Plaintiff

that he had the right to be represented by a lawyer who could help him prepare for the
hearing, collect evidence, determine if witnesses were needed, and send the Plaintiff
for an examination if necessary. Id. The ALJ also noted that counsel was typically
only paid based on the potential backpay award if a claimant won. Id.
The ALJ then asked whether the Plaintiff understood his right to an attorney,

and if so, whether he wished to waive that right and proceed with the hearing or
whether he preferred instead to seek someone to represent him. Id. at 133. In response
to this query, the Plaintiff informed the ALJ that he wanted to “go forward.” Id. The
ALJ then continued with the hearing.
The Plaintiff now contends that he could not have validly relinquished his right

to counsel because he was deemed to be incompetent in the state court matter in
advance of the hearing. (Doc. 12 at 2–13). This contention misapprehends the record
evidence. As noted above, the Plaintiff was determined to be competent in his state
criminal case approximately two weeks before the hearing. (R. 115–19). The Plaintiff
does not address this fact, much less explain why it is not dispositive of his competency
argument. The Plaintiff’s first challenge fails on this basis alone.
Even were that not the case, the record reveals that the Plaintiff was capable of

waiving his right to counsel. The report of the competency assessment performed
close-in-time to the ALJ hearing described the Plaintiff as being able to comprehend
the legal charges against him, the possible penalties, and the adversarial nature of the
legal process. Id. The report also described the Plaintiff as having the capacity to
disclose pertinent information to his attorney, to behave suitably in the courtroom,

and to testify to the relevant facts. Id.
Furthermore, consistent with these findings, the ALJ concluded given his
observations of the Plaintiff at the hearing that the Plaintiff grasped the claims process
and testified coherently and appropriately at the proceeding. Id. at 19. The ALJ

observed in this respect that although the Plaintiff’s answers to some queries were
“elongated,” the Plaintiff otherwise “addressed the question asked,” spoke
“candid[ly],” provided “reasoned testimony,” and offered responses which “did not
indicate any thought abnormalities.” Id. The ALJ additionally noted that the Plaintiff
“did not become off track during the hearing” and exhibited an understanding of the

subject matter. Id. These facts constitute substantial evidence supporting a finding
that the Plaintiff competently waived his right to counsel. See Granger v. Kijakazi, 2022
WL 16851868, at *5 (M.D. Ala. Nov. 10, 2022) (stating that “the record provide[d]
more than substantial evidence that [the claimant] was cognitively capable of
executing a knowing, voluntary, and informed waiver of his right to representation”
in part because the claimant “never said he did not understand his rights” and “never
asked for clarification from the ALJ”); cf. Newberger v. Astrue, 2008 WL 299012, at *2–
3 (M.D. Fla. Feb. 1, 2008) (finding that the claimant, who was unable to read, did not

effectively waive her statutory right to counsel because she made apparent that she
“desired legal representation but was having trouble obtaining (and keeping) it”).
Not only is there sufficient evidence showing that the Plaintiff validly waived
his right to representation, the Plaintiff does not establish that he suffered the requisite
prejudice under either of the two standards that might apply here. Kelley, 761 F.2d at

1540 n.2 (“It is irrelevant which standard [of review] we apply in the present case
because, under either standard, the record as a whole indicates that [the claimant] was
not prejudiced by his lack of counsel at the hearing.”). At the hearing, the ALJ
questioned the Plaintiff fully about his competency and his mental health more

broadly. The ALJ’s areas of inquiry included the Plaintiff’s memory, hallucinations,
paranoid thoughts, crying spells, panic attacks, suicidal ideations, difficulties sleeping,
ability to concentrate, and his energy and appetite levels. (R. 139–49). The ALJ also
probed the Plaintiff about the care he was receiving at the mental health facility where
was residing and any medication side effects. Id. Additionally, in his decision, the

ALJ reviewed at length the Plaintiff’s medical history, commencing with the treatment
the Plaintiff obtained as far back as 2008. Id. at 16. In short, the ALJ gathered “all of
the relevant evidence” relating to the Plaintiff’s mental health and “consider[ed] all of
th[at] evidence . . . in reaching his” disability determination. Kelley, 761 F.2d at 1540;
see also Graham, 129 F.3d at 1423 (determining that the record was adequate where the
“ALJ’s questioning brought out all aspects of how [the claimant’s] symptoms affected
her” and the “ALJ’s opinion . . . thoroughly evaluated [the claimant’s] medical
history”).

In an effort to avoid this conclusion, the Plaintiff points to the ALJ’s purported
failure to secure “updated medical records” from the mental health facility where the
Plaintiff was situated at the time of the hearing or from the jail where he was
incarcerated before and after that time frame. (Doc. 12 at 11). This contention is
unavailing.

To start, the Plaintiff’s treatments notes from the mental facility were submitted
to the SSA after the ALJ rendered his unfavorable decision and, according to the
Appeals Council, did not give rise to a reasonable probability that the ALJ would have
rendered a different disability determination. (R. 2). The Plaintiff does not contest
this ruling by the Appeals Council and has therefore waived any such argument. See

Grant v. Soc. Sec. Admin., Comm’r, 2022 WL 3867559, at *2 (11th Cir. Aug. 30, 2022)
(concluding that a party abandons a claim when, among other things, he “raises it in
a perfunctory manner without supporting arguments and authority”) (citing Sapuppo
v. Allstate Floridian Ins. Co., 739 F.3d 678, 681–82 (11th Cir. 2014)); Battle v. Comm’r,

Soc. Sec. Admin., 787 F. App’x 686, 687 (11th Cir. 2019) (per curiam) (“Issues raised in
a perfunctory manner . . . are generally deemed to be waived.”) (internal quotation
marks and citation omitted); Outlaw v. Barnhart, 197 F. App’x 825, 828 n.3 (11th Cir.
2006) (per curiam) (finding that a plaintiff waived an argument “because he did not
elaborate on [the] claim or provide citation to authority about [it]”) (citation omitted).
Moreover, the Plaintiff does not identify any information in the mental health
facility materials that establishes he suffered prejudice. See Kelley, 761 F.2d at 1540.
At most, the Plaintiff suggests only that these materials would have alerted the ALJ to

the Plaintiff’s earlier “incompetency adjudication.” (Doc. 12 at 11–12). This
contention ignores the later finding of competency and is thus meritless.
As for the Plaintiff’s time in jail, the Plaintiff told the SSA representative during
their discussion before the hearing that he did not receive any treatment since the last
evidence in the file because he had been in jail. (R. 446). The Plaintiff’s bare-bones

assertion that there may nonetheless be jail records which might have helped him
(Doc. 12 at 11) is plainly insufficient. See Graham, 129 F.3d at 1423 (rejecting the
claimant’s argument that the record was incomplete in part because the claimant did
not designate “anything in the record which suggest[ed] that additional medical

evidence specific to her situation might [have] be[en] gathered,” nor did “she allege[ ]
undiscovered facts or an undeveloped avenue of inquiry”); Smith, 677 F.2d at 830
(concluding that a claimant was not prejudiced by the lack of counsel where the
“[c]laimant’s proffer of prejudice amount[ed] to no more than speculation[ ] on [the]
ways in which an attorney could have bolstered his credibility before the ALJ”).

B.
The Plaintiff’s second challenge—as referenced previously—centers around
Listings 12.03 and 12.04, both of which pertain to a claimant’s mental impairments.
The first of these listings defines the schizophrenia spectrum and other psychotic
disorders,6 while the second concerns depressive, bipolar, and related disorders.7 20
C.F.R. pt. 404, subpt. P, app. 1, §§ 12.03, 12.04. The Plaintiff’s second challenge fails
as well.

As alluded to above, a claimant bears the burden of proving that one or more of
his afflictions meet or equal a listed impairment. See Bellew v. Acting Comm’r of Soc.
Sec., 605 F. App’x 917, 920 (11th Cir. 2015) (per curiam) (citing Barron v. Sullivan, 924
F.2d 227, 229 (11th Cir. 1991)). To “meet” a listing, “a claimant must have a diagnosis

included in the Listings” and must also supply medical reports showing that his
malady fulfills “the specific criteria of the Listings and the duration requirement.”
Wilson v. Barnhart, 284 F.3d 1219, 1224 (11th Cir. 2002) (per curiam) (citing 20 C.F.R.
§ 404.1525(a)–(d)) (internal quotation marks omitted). And to “equal” a listing, “the
medical findings must be at least equal in severity and duration to the listed findings.”

Id.
Listings 12.03 and 12.04 each consist of three paragraphs. The first paragraph
in both, Paragraph A, delineates the diagnostic standards required to medically
substantiate a claimant’s mental disorder; the second paragraph in both, Paragraph B,
establishes four categories of functional limitations relative to a claimant’s mental

6 The schizophrenia spectrum and other psychotic disorders are “characterized by delusions,
hallucinations, disorganized speech, or grossly disorganized or catatonic behavior, causing a clinically
significant decline in functioning.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(B)(2)(a).
7 Depressive, bipolar, and related disorders are “characterized by an irritable, depressed, elevated, or
expansive mood, or by a loss of interest or pleasure in all or almost all activities, causing a clinically
significant decline in functioning.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(B)(3)(a).

impairment; and the third paragraph in both, Paragraph C, addresses “serious and
persistent mental disorders.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00A. To fall
within the ambit of either Listing 12.03 or Listing 12.04, a claimant must demonstrate

that he meets the elements of Paragraph A (which are different for the two listings) and
either Paragraph B or Paragraph C (which are the same for the two listings). Id. at
§ 12.01.
There is no dispute here that the Plaintiff fulfills the requirements of Paragraph

A for both listings. The only question is whether the Plaintiff satisfies the strictures of
Paragraphs B or C. The Court proceeds to that issue now.
As referenced above, Paragraph B sets forth functional criteria in the areas of
mental functioning that a person uses in a work setting. See 20 C.F.R. pt. 404, subpt.
P, app. 1, §§ 12.03, 12.04. To assess a claimant’s mental condition under these

measures, an ALJ must evaluate the extent to which a claimant’s medically
determinable impairments affect the following four domains: (1) understanding,
remembering, or applying information; (2) interacting with others; (3) concentrating,
persisting, or maintaining pace; and (4) adapting or managing oneself. Id. To satisfy
Listings 12.03 or 12.04, a claimant must show that he has an extreme limitation in

one, or a marked limitation in two of these areas. Id.
In this case, the ALJ concluded that the Plaintiff displayed only a moderate
limitation in each of the above four categories and that the Plaintiff therefore did not
fulfill the Paragraph B requirements. (R. 14–15). In rendering this determination, the
ALJ largely predicated his findings on the Plaintiff’s compliance with his anti-
psychotic medication. Id. The ALJ explained, for example, that according to the
record evidence, the Plaintiff “ha[d] been able to interact appropriately with medical
providers and staff while compliant with anti-psychotic medication,” and that “none of the

[Plaintiff’s] medical providers indicated that he lack[ed] adequate insight about his
impairment and/or prognosis when he [wa]s on the correct medication[.]” Id. (emphasis
added).
The Plaintiff initially contends that, in relying on his behavior while taking

psychotropic medication, the ALJ neglected to consider that the Plaintiff’s severe
mental impairments prevented him from regularly taking his prescribed drugs. (Doc.
12 at 19–20). In support of this contention, the Plaintiff asserts that the bulk of the
record evidence pertains to periods when his care was managed for him, such as when
he was incarcerated, held under the Baker Act, committed to a mental facility, or

enrolled in a residential treatment program. Id. The Plaintiff, however, does not cite
any legal authority to buttress his argument and has thus waived any such contention.
See Grant, 2022 WL 3867559, at *2; Battle, 787 F. App’x at 687; Outlaw, 197 F. App’x
at 828 n.3.
Even were that not the case, the Plaintiff’s argument overlooks the relevant

Regulation, which states that the Commissioner may deny SSI benefits when a
claimant, without good reason, fails to follow a prescribed course of treatment that
could restore his ability to work. See 20 C.F.R. § 416.930(b) (cautioning claimants
that if they “do not follow the prescribed treatment without a good reason, [the SSA]
will not find [them to be] disabled[.]”). Here, the ALJ determined as part of his RFC
analysis that the Plaintiff’s history of incarceration and Baker Act admissions were
often preceded by his failure to take his psychotropic medication and that the Plaintiff
became stable once he complied with his prescription protocols. (R. 16–19). The ALJ

also determined that the Plaintiff made a choice not to adhere to his medication
regimen since he did not report any debilitating side effects from taking those drugs
other than drooling when the dosage was too high. Id. at 19. Substantial evidence
supports the ALJ’s findings under the circumstances presented. See Flemming v.

Comm’r of the Soc. Sec. Admin., 635 F. App’x 673, 677 (11th Cir. 2015) (per curiam)
(ruling that substantial evidence bolstered the ALJ’s assessment that the claimant’s
“psychotic behavior was mainly self-induced,” where the record showed that he “did
not exhibit psychotic behavior when in compliance with treatment programs and when
not self-medicating with marijuana or abusing other substances”).

The Plaintiff alternatively asserts that the ALJ erred in concluding he suffered
only a moderate limitation in the Paragraph B categories of interacting with others and
adapting or managing oneself. With respect to the matter of interacting with others,
the ALJ grounded his determination—as alluded to above—on the fact that the
Plaintiff was able to engage appropriately with medical providers when he was taking

his anti-psychotic medication. (R. 14). The ALJ further observed that, despite the
Plaintiff’s claims to the contrary, there was no indication in the record that he struggled
when dealing with family, friends, or significant others. Id. The ALJ noted as well
that the Plaintiff exhibited a proper demeanor during his psychiatric assessments, was
cooperative when on medication, and expressed a desire to obtain employment. Id.
As for adapting and managing oneself, the ALJ recounted that when in
compliance with his medication protocols, the Plaintiff maintained suitable hygiene
and attire, could complete chores, and did not quarrel with his medical providers. Id.

The ALJ noted too that there were no medical source statements evidencing that the
Plaintiff would have considerable difficulty adjusting to new developments in his life.
Id.
In response to these findings by the ALJ, the Plaintiff identifies other evidence
in the record purportedly reflecting that he suffered from extreme restrictions in the

areas of interacting with others and adapting or managing himself. By way of
example, the Plaintiff highlights treatment notes showing that he was housed in a
single cell in the mental health component of the Pinellas County Jail due to paranoia
and an inability to interact appropriately with those around him; that he had a
propensity to use racial slurs and yell at the staff; that there were occasions when he

was restrained in a five-point chair or hid under his mattress to avoid jail employees;
that he at times refused to eat meals, shower, or dress; and that he left feces in his cell
even though he had access to a toilet. (Doc. 12 at 20–22).
There are a number of problems with the Plaintiff’s line of argument. First,
“[u]nder a substantial evidence standard of review, [a claimant] must do more than

point to evidence in the record that supports h[is] position; [ ]he must show the absence
of substantial evidence supporting the ALJ’s conclusion.” Sims v. Comm’r of Soc. Sec.,
706 F. App’x 595, 604 (11th Cir. 2017) (per curiam) (citing Barnes v. Sullivan, 932 F.2d
1356, 1358 (11th Cir. 1991) (per curiam)). The Plaintiff does not do so here.
Second, the Plaintiff’s line of argument effectively asks the Court to re-weigh
the evidence, which it cannot do. Carter, 726 F. App’x at 739. This is especially so
given that, elsewhere in his decision, the ALJ thoroughly reviewed the bulk of the

items the Plaintiff now suggests he overlooked. See (R. 15–20).
Third, to the extent that the ALJ may not have explicitly delineated in his
decision some of the information upon which the Plaintiff now relies, any such
omission is immaterial. It has long been established that an ALJ need not set forth

every piece of evidence in his decision, so long as his decision demonstrates that he
considered the claimant’s medical condition as a whole. See Stowe v. Soc. Sec. Admin.,
Comm’r, 2021 WL 2912477, at *4 (11th Cir. July 12, 2021) (per curiam) (citing Dyer v.
Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005) (per curiam)). It is apparent from the
ALJ’s decision that he did so here.

The Plaintiff’s final argument as part of his second challenge is that the ALJ
wrongly determined he did not meet the Paragraph C criteria in Listings 12.03 and
12.04. Under Paragraph C, a claimant must show that his mental disorder is “serious
and persistent, that is, [he has] a medically documented history of the existence of the
disorder over a period of at least [two] years.” See 20 C.F.R. pt. 404, subpt. P, app. 1,

§§ 12.03, 12.04. In addition, there must be evidence of both (a) “[m]edical treatment,
mental health therapy, psychosocial support(s), or a highly structured setting(s) that is
ongoing and that diminishes the symptoms and signs of [a claimant’s] mental
disorder;” and (b) “[m]arginal adjustment, that is, [a claimant has] minimal capacity
to adapt to changes in [his] environment or to demands that are not already part of
[his] daily life.” Id. (internal citations omitted).
The only controverted issue here is whether the Plaintiff satisfies the “marginal

adjustment” requirement. The Regulations discuss how the SSA evaluates this
element, explaining:
[The SSA] will consider that [a claimant has] achieved only marginal
adjustment when the evidence shows that changes or increased demands
have led to exacerbation of [the claimant’s] symptoms and signs and to
deterioration in [his] functioning; for example, [he has] become unable
to function outside of [his] home or [in] a more restrictive setting, without
substantial psychosocial supports. Such deterioration may have
necessitated a significant change in medication or other treatment.
Similarly, because of the nature of [his] mental disorder, evidence may
document episodes of deterioration that have required [the claimant] to
be hospitalized or absent from work, making it difficult for [him] to
sustain work activity over time.

Id. at § 12.00(G)(2)(c) (internal citation omitted).
In this case, the ALJ determined that there was “no evidence of marginal
adjustment” and based this finding on the assessments rendered by a consulting
psychiatrist, Dr. Alfred Jonas, who—at the ALJ’s request—examined the Plaintiff’s
mental impairments under both Paragraphs B and C. (R. 15) (citing id. at 1088–92).
As pertinent here, Dr. Jonas opined that the Plaintiff’s mental disorder was “serious
and persistent,” and that there was evidence of “medical treatment, mental health
therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and
that diminishes the symptoms and signs of the [Plaintiff’s] mental disorder.” Id. at
1091. Dr. Jonas did not respond, however, when asked whether there was evidence
of marginal adjustment. Id. In other words, Dr. Jonas did not indicate one way or the
other whether this criterion was met. Id.

In his decision, the ALJ deemed Dr. Jonas’s assessments to be partially
persuasive, reasoning:
Dr. Jonas’s opinions are consistent with those of the competency
evaluators in the record and with the objective examination findings at
both the State hospital and the Boley Center[8] while the [Plaintiff] was
compliant with medication. Specifically, Dr. Jonas diagnosed
schizophrenia and substance abuse and noted a range of mild to extreme
limitations interacting with others; none to extreme limitations with
concentration, persistence, and pace; and moderate to extreme
limitations with [the] ability to manage oneself, noting that when the
[Plaintiff] was using substances and not taking antipsychotic
medications, he will be extremely functionally impaired. However, the
doctor also noted that when the [Plaintiff] was not using substances and
was medication compliant, the evidence showed he was much closer to
normalized. The doctor further noted the [Plaintiff] only met the first
part of the “C” criteria, [including] that treatment and/or a highly
structured setting diminished the signs and symptoms of the [Plaintiff’s]
disorder, but it was unknown whether the [Plaintiff] would have minimal
adjustment if the [Plaintiff] did not abuse substances and was compliant
with antipsychotic medications consistently. Based on the last record
from the Boley Center, the [Plaintiff’s] ability to meaningfully participate
in the hearing, and the prior administrative agency findings, the
undersigned finds the moderate limitations within the range opined by
Dr. Jonas are more persuasive than the extreme limitations.

Id. at 20.9

8 The Boley Center is a multidisciplinary rehabilitation and treatment center where the Plaintiff resided
in or around 2019 while serving a sentence on burglary charges. (R. 17–19).
9 The Plaintiff does not dispute the ALJ’s weighing of Dr. Jonas’s opinion and has thus waived the
right to do so. See Grant, 2022 WL 3867559, at *2; Battle, 787 F. App’x at 687; Outlaw, 197 F. App’x
at 828 n.3.
The Plaintiff now contends that the ALJ’s determination the Plaintiff did not
satisfy the “marginal adjustment” requirement is unsupported because there is a dearth
of evidence demonstrating “how [the] Plaintiff adapt[ed] to his environment in his

daily life outside of highly structured environments of confinement, commitment, and
in residential mental health treatment.” (Doc. 12 at 23). This contention does not
survive scrutiny.
By assessing a moderate limitation in the domain of adapting and managing
oneself under Paragraph B, the ALJ determined that the Plaintiff’s “functioning in this

area independently, appropriately, effectively, and on a sustained basis” to be “fair.”
20 C.F.R. Pt. 404, subpt. P, app. 1, § 12.00(F)(2)(c). To find “marginal adjustment”
under Paragraph C, however, the ALJ had to conclude that the Plaintiff had only a
“minimal capacity” to “adapt to changes in [his] environment or to demands [which]
are not already part of [his] daily life.” Id. at § 12.00(G)(2)(c). Thus, although

Paragraphs B and C involve separate criteria, the ALJ’s finding that the Plaintiff had
a moderate limitation in the Paragraph B category of adapting or managing oneself
substantiates his determination under Paragraph C. See Bellew, 605 F. App’x at 927
(“[T]he medical opinions and evidence that [the claimant] had only mild or moderate

limitations in activities of daily living, social functioning, and maintaining
concentration, persistence, or pace were sufficient to support the ALJ’s conclusion that
the evidence did not demonstrate that ‘even a minimal increase in mental demands or
a change in the environment’ would predictably cause [the claimant] to
decompensate,” as required by a prior version of Paragraph C for Listings 12.02, 12.03,
12.04, and 12.06); Himes, 585 F. App’x at 764 (addressing a prior version of the
Paragraph C criteria for Listing 12.04 and stating that “medical opinions and evidence
[which] indicat[ed the claimant] . . . had mild or moderate limitations in activities of

daily living, social functioning, and maintaining concentration, persistence, or pace
support[ed] the ALJ’s conclusion that a minimal increase in mental demands or a
change in the environment would not predictably cause [the claimant] to
decompensate”); Swinsinski v. O’Malley, 2024 WL 1231318, at *7 (M.D. Fla. Mar. 22,

2024) (“[I]n addition to the ALJ’s explicit finding that [the claimant] d[id] not satisfy
the Paragraph C criteria, the ALJ implicitly found [that the claimant] did not have
marginal adjustment when he concluded she had only a moderate limitation in her
ability to adapt and manage herself.”) (citation omitted); Deaton v. O’Malley, 2024 WL
3964925, at *6 (S.D. Fla. Aug. 28, 2024) (“Although the [P]aragraph B and

[P]aragraph C criteria are obviously separate, the ALJ’s finding that [the claimant]
only ha[d] a ‘mild’ limitation in the area of adapting or managing oneself offer[ed]
clear support for the ALJ’s finding regarding marginal adjustment.”).10
The ALJ’s marginal adjustment finding is further buttressed by the
administrative determinations made by the state agency consulting psychologists at

10 The fact that the ALJ did not elaborate upon his rationale for citing Dr. Jonas’s opinion in support
of his Paragraph C finding does not alter the Court’s conclusion. It is well settled an ALJ need not
“mechanically recite the evidence leading to [his] determination” that a claimant does not meet a
listed impairment. Hutchison v. Bowen, 787 F.2d 1461, 1463 (11th Cir. 1986) (internal citation omitted);
see also Deaton, 2024 WL 3964925, at *6 (“[G]iven that an ALJ does not automatically err when she
does not make an explicit finding regarding certain listings, the alleged step three error in this case—
a conclusory paragraph C finding—does not automatically warrant reversal.”).
the initial and reconsideration levels, who likewise deemed the Plaintiff to suffer from
only moderate limitations with respect to the Paragraph B functional domains. (R.
19-20). It is also bolstered by the ALJ’s finding—uncontested by the Plaintiff—that
the moderate limitations within the range opined by Dr. Jonas were more persuasive
than the extreme ones, and by the evidence the ALJ detailed in his decision
demonstrating the Plaintiff's ability to function when properly medicated. Jd. at 14—
15.
In sum, the substantial evidence standard is a deferential one—“more than a
scintilla, but less than a preponderance,” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir.
1996) (quotation omitted)—and is met here.
IV.
In light of all the above, it is hereby ORDERED:
1. The Commissioner’s decision is affirmed.
2. The Clerk of Court is directed to enter Judgment in the Defendant’s
favor, to terminate any pending motions, and to close the case.
SO ORDERED in Tampa, Florida, this 31st day of March 2025.

USisehediay P
HONORABLE CHRISTOPHER P. TUITE
United States Magistrate Judge
Copies to:
Counsel of record

23

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10836766. Public record. Not legal advice.