Bruner

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

CHARLES B., )

)

Plaintiff, )

)

v. ) Case No. 2:24-cv-755-SMD

)

FRANK M. BISIGNANO, )

Commissioner of Social Security, )

)

Defendant. )

OPINION & ORDER

On September 9, 2022, Plaintiff Charles B. (“Plaintiff”) proactively applied for

Disability Insurance Benefits (“DBI”) under Title II of the Social Security Act, alleging

disability beginning December 1, 2021. Tr. 333-34. Plaintiff’s application was denied at

the initial administrative level and on reconsideration. Tr. 254-64, 269-74. Plaintiff then

requested and received a hearing before an Administrative Law Judge (“ALJ”), who found

he was not disabled. Tr. 7-39, 191-228. Plaintiff appealed to the Social Security Appeals

Council (“Appeals Council”), which denied review. Tr. 1-6. Therefore, the ALJ’s order

became the final decision of the Commissioner of the Social Security Administration

(“Commissioner”). Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Plaintiff appeals

that decision pursuant to 42 U.S.C. § 405(g). For the following reasons, the Court

AFFIRMS the Commissioner’s decision.1

1 Under 28 U.S.C. § 636(c), the parties have consented to the undersigned Chief United States Magistrate

Judge conducting all proceedings and entering final judgment in this appeal. Pl.’s Consent (Doc. 11); Def.’s

Consent (Doc. 12).

I. STATUTORY FRAMEWORK

The Social Security Act establishes the framework for determining who is eligible

to receive Social Security benefits. Martin v. Sullivan, 894 F.2d 1520, 1530 (11th Cir.

1990). In making a benefits determination, an ALJ employs a five-step process:

(1) Is the person presently unemployed?

(2) Is the person’s impairment severe?

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

impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1?

(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?

20 C.F.R. § 404.1520(a); 20 C.F.R § 416.920(a)(4). “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).2

A claimant bears the burden of proof through step four. See Wolfe v. Chater, 86 F.3d 1072,

1077 (11th Cir. 1996). The burden shifts to the Commissioner at step five. Id.

To perform the fourth and fifth steps, the ALJ must first determine the claimant’s

Residual Functional Capacity (“RFC”). Phillips v. Barnhart, 357 F.3d 1232, 1238-39 (11th

Cir. 2004). A claimant’s RFC is what the claimant can still do—despite his impairments—

based on the relevant evidence within the record. Id. The RFC may contain both exertional

and non-exertional limitations. Id. at 1242-43. Considering the claimant’s RFC, the ALJ

2 McDaniel is an SSI case. SSI cases arising under Title XVI of the Social Security Act are appropriately

cited as authority in Title II cases, and vice versa. See, e.g., Smith v. Comm’r of Soc. Sec., 486 F. App’x

874, 875 n.* (11th Cir. 2012) (per curiam) (“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.”).

determines, at step four, whether the claimant can return to past relevant work. Id. at 1238.

If a claimant cannot return to past work, the ALJ considers, at step five, the claimant’s

RFC, age, education, and work experience to determine if there are a significant number

of jobs available in the national economy he can perform. Id. at 1239. To determine if a

claimant can adjust to other work, the ALJ may rely on (1) the Medical Vocational

Guidelines (“Grids”)3 or (2) the testimony of a vocational expert (“VE”).4 Id. at 1239-40.

II. STANDARD OF REVIEW

A federal court’s review of the Commissioner’s decision is limited. A court will

affirm the Commissioner’s decision if the factual findings are supported by substantial

evidence and the ALJ applied the correct legal standards. Kelley v. Apfel, 185 F.3d 1211,

1213 (11th Cir. 1999) (citing Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997)). A

court may reverse the Commissioner’s final decision when it is not supported by substantial

evidence, or the proper legal standards were not applied. Carnes v. Sullivan, 936 F.2d 1215,

1218 (11th Cir. 1991). A court is required to give deference to factual findings, with close

scrutiny to questions of law. Cornelius v. Sullivan, 936 F.2d 1143, 1145 (11th Cir. 1991).

For purposes of judicial review, “[s]ubstantial evidence is more than a mere

scintilla, but less than a preponderance. It is such relevant evidence as a reasonable person

3 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. See 20 C.F.R. pt. 404 subpt. P, app.

2. Each factor can independently limit the number of jobs realistically available to an individual. Phillips,

357 F.3d at 1240. Combinations of these factors yield a statutorily-required finding of “Disabled” or “Not

Disabled.” Id.

4 A vocational expert is an “expert on the kinds of jobs an individual can perform based on his or her

capacity and impairments.” Phillips, 357 F.3d at 1240.

would accept as adequate to support a conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233,

1239 (11th Cir. 1983) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). Despite

the limited nature of review, a court must scrutinize the record in its entirety and take

account of evidence that detracts from the evidence relied on by the ALJ. Walker v. Bowen,

826 F.2d 996, 999 (11th Cir. 1987); Hillsman v. Bowen, 804 F.2d 1179, 1180 (11th Cir.

1986). However, a court may not decide the facts anew or substitute its judgment for that

of the Commissioner. Cornelius, 936 F.2d at 1145.

III. ADMINISTRATIVE PROCEEDINGS

Plaintiff was 52 years old on the date of the ALJ’s decision. Tr. 32, 34. He has a

high school education and past relevant work as a Field Artillery Man and Staff Sergeant.

Tr. 383. Plaintiff alleged disability due to post-traumatic stress disorder (“PTSD”), muscle

spasms, sleep apnea, knee pain, back pain, shoulder pain, and arthritis. Tr. 382.

In the administrative proceedings, the ALJ made the following findings with respect

to the five-step evaluation process. At step one, the ALJ found Plaintiff has not engaged in

substantial gainful activity since his alleged onset date. Tr. 21. At step two, the ALJ found

Plaintiff has the severe impairments of PTSD, anxiety disorder, cervical and lumbar

degenerative disc disease, and hypertension. Tr. 12-13. At step three, the ALJ found

Plaintiff does not have an impairment or combination of impairments that meets or

medically equals the severity of any of the listed impairments. Tr. 13-19.

The ALJ proceeded to determine Plaintiff’s RFC, finding he has the capacity to

perform medium level work with additional functional limitations. Tr. 19-32. At step four,

the ALJ found that Plaintiff could not perform his past relevant work. Tr. 32. However, at

step five, the ALJ considered Plaintiff’s age, education, work experience, RFC, and the

testimony of a vocational expert (“VE”), and found that other work existed which Plaintiff

could perform. Tr. 32-34. This work included box maker, inspector, and stacker at the

medium exertional level, and inspector, sorter, and hand packager at the light exertional

level. Tr. 32-34. Accordingly, the ALJ found Plaintiff was not disabled from December 1,

2021, through the decision date. Tr. 34.

IV. PLAINTIFF’S ARGUMENTS

Plaintiff presents three issues for the Court’s review:

(1) Whether the ALJ erred in her analysis of the supportability and

consistency of a state agency medical consultant’s opinion.

(2) Whether the ALJ erred by failing to recontact a consultative examiner

because her mental examination report was inadequate or incomplete.

(3) Whether the ALJ wrongly rejected a treating provider’s opinion because

it did not comport with the regulatory definition of a medical opinion.

Pl.’s Br. (Doc. 27) p. 1.

V. ANALYSIS

In evaluating the persuasiveness of a medical opinion, an ALJ is required to consider

five factors: (1) supportability; (2) consistency; (3) relationship with the claimant; (4)

specialization; and (5) other factors that “tend to support or contradict a medical opinion

or prior administrative medical finding.” 20 C.F.R. § 404.1520c(a), (c). Because

supportability and consistency are the most important factors considered, an ALJ must

articulate how she considered these factors for a medical source’s opinion.5 See Simon v.

Kijakazi, 2021 WL 4237618, at *3 (M.D. Fla. Sept. 17, 2021); 20 C.F.R. § 404.1520c(a)-

(c). An ALJ may—but is not required to—explain how she considered the other remaining

factors. Nix v. Saul, 2021 WL 3089309, at *6 (N.D. Ala. July 22, 2021) (citing 20 C.F.R.

§ 404.1520c(b)(2)). The Social Security Regulations provide that a “medical opinion

without supporting evidence, or one that is inconsistent with evidence from other sources,

will not be persuasive regardless of who made the medical opinion.” 82 F. Reg. 5844, 5845

(Jan. 18, 2017) (emphasis added). “Thus, a medical opinion is unpersuasive if it is either

unsupported by, or inconsistent with, the record.” Tracy F. v. O’Malley, 2024 WL

1701572, at *3 (D. Idaho Apr. 19, 2024) (citing Woods v. Kijakazi, 32 F.4th 785, 792-93

(9th Cir. 2022)) (emphasis added).

Plaintiff challenges the ALJ’s evaluation of three opinions rendered by medical

providers. First, Plaintiff argues that the ALJ improperly evaluated the opinion of Dr. E.

Russell March (“Dr. March”), a state agency medical consultant, by failing to provide a

sufficient analysis of the opinion’s supportability and consistency. Pl.’s Br. (Doc. 27) pp.

6-9. Second, Plaintiff argues that the ALJ improperly evaluated the opinion of LPC Tatiana

Parker (“LPC Parker”), a consultative examiner, because LPC Parker’s report was

5 For supportability, “the more relevant the objective medical evidence and supporting explanations

presented by a medical source are to support his or her medical opinion(s) or prior administrative medical

finding(s), the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.

20 C.F.R. § 404.1520c(c)(1).

For consistency, “the more consistent a medical opinion(s) or prior administrative medical finding(s) is

with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive

the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(2).

inadequate and incomplete, triggering the ALJ’s obligation to recontact LPC Parker. Id. at

9-12. Third, Plaintiff argues that the ALJ improperly evaluated the opinion of NP Brandy

Clary (“NP Clary”), a treating provider, because the opinion did not comport with the

regulatory definition of a medical opinion. Id. at 13-15. The undersigned addresses the

ALJ’s evaulation of each opinion, in turn.

A. Dr. March

At the initial level of review, Dr. Victoria Hogan (“Dr. Hogan”)—a state agency,

non-examining consultative physician—reviewed Plaintiff’s medical records and opined

that Plaintiff could perform a range of medium work with some postural limitations. Tr.

230-37. The ALJ found Dr. Hogan’s opinion “generally persuasive.” Tr. 31. In so doing,

the ALJ reasoned that although Dr. Hogan did not examine Plaintiff, she “provided specific

reasons for her findings about [Plaintiff’s] impairments.” Tr. 30. In support of her opinion

that Plaintiff could perform a range of medium work, Dr. Hogan explained:

50 YOM alleging Muscle Spasms; Sleep apnea; Knee pain; Back pain;

Shoulder pain; & Arthritis. MRI from 2019 shows mild degenerative

spondylosis throughout the lumbar spine xmost notable at L4/5 with mild to

mod central canal and neural foraminal stenosis. PE: TTP lumbar spine and

lower portion of thoracic spine. No current & detailed phys exam so CE was

req’d & obtained from Dr. Babb. Exam dated 11/29/2022 noted cl c/o chronic

back pain but according to Dr. Babb the cause of the pain is unknown. Noted

cl is not followed by any orthopedic, pain specialist, or MH specialist at VA

but he is currently drawing 100% SC through VA. V/S: BP 142/102, Ht

74.5”, Wt 202 lbs. Exam noted cl ambulated nl & used no assistive device;

nl abduction of shoulders with nl flexion/extension of wrists & elbows;

anterior flexion of LS 100 deg, SLR 90 deg, nl passive ROM of hips, knees

& ankles; nl gait; grip strength 5/5, sensory exam nl, reflexes nl, no tremor;

no motor, sensory or reflex abn; no deformity of any ext; no assistive device.

Dx: LBP of unknown etiology; undefined MH d/o not on any meds; elevated

BP. Based on mild degen changes, c/o back pain, & elevated BP, case will

be rated an 03. CI should be able to function at the [medium exertional] level

noted above.

Tr. 235.

At the redetermination level of review, Dr. March—also a state agency, non-

examining consultative physician—reviewed Plaintiff’s medical records, including records

unavailable to Dr. Hogan, and opined that Plaintiff could perform a range of light work

with some postural limitations. Tr. 239-248. The ALJ found Dr. March’s more restrictive

opinion “partially persuasive.” Tr. 31. The ALJ reasoned that Dr. March’s findings “are

not entirely consistent with the preponderance of the medical evidence and are not fully

supportable, especially as they conflict with Dr. Hogan’s prior administrative medical

findings.” Tr. 31. In support of his opinion that Plaintiff could perform only light level

work, Dr. March stated:

7/19/22 low back pain. MRI from 2019 shows mild degenerative spondylosis

throughout the lumbar spine is most notable at L4/5 with mild to mod central

canal and neural foraminal stenosis. PE: TTP lumbar spine and lower portion

of thoracic spine.

Tr. 244. Additionally, the ALJ noted that “[b]eing a nonexamining physician, Dr.

March has no relationship with [Plaintiff].” Tr. 31.

Plaintiff argues that the ALJ’s evaluation of Dr. March’s opinion is improper

because she failed to properly address the opinion’s supportability and consistency. Pl.’s

Br. (Doc. 27) p. 7. In particular, Plaintiff contends that the ALJ improperly discounted Dr.

March’s opinion—which was formulated at the reconsideration level and based on 705

pages of medical records—because it conflicted with Dr. Hogan’s opinion—which was

formulated at the initial review level and based on only 96 pages of records. Id. at 7-8.

Plaintiff asserts that “it is hard to fathom that Dr. Hogan’s opinion of a 96-page medical

record could possibly be more accurate and account for the entirety of Plaintiff’s limitations

than Dr. March’s opinion, especially when Dr. March’s opinion was based on over 800

pages of medical evidence.” Reply (Doc. 29) p. 2. Further, Plaintiff argues that the ALJ

improperly discounted Dr. March’s opinion based on his status as a non-examining

physician because the ALJ accepted Dr. Hogan’s opinion, although she, too, did not

examine Plaintiff. Pl.’s Br. (Doc. 27) p. 8.

To begin, the Court finds that the ALJ properly evaluated Dr. March’s opinion

regarding its supportability and consistency. In evaluating Dr. March’s opinion, the ALJ

found it “not entirely consistent with the preponderance of the medical evidence and [] not

fully supportable,” particularly considering that the opinion conflicted with Dr. Hogan’s,

whose opinion was supported by a detailed discussion of the objective medical evidence—

including both MRI findings and physical examination results. Tr. 31, 235. In contrast to

Dr. Hogan’s explanation as to why Plaintiff could perform medium work, Dr. March’s

opinion that Plaintiff could perform light work was supported only by a brief description

of Plaintiff’s MRI findings and a lone statement of “low back pain.” Tr. 31. Read in

combination with the entirety of the ALJ’s opinion—which includes thorough discussions

of medical imaging, physical examinations, and self-reports of manageable pain—these

explanations sufficiently address the supportability and consistency of Dr. March’s opinion

as required under the Social Security Regulations (the “Regulations”), and are substantial

evidence supporting the ALJ’s finding that the opinion was only “partially persuasive.”

Further, the Court rejects Plaintiff’s suggestion that the ALJ erred in finding Dr.

Hogan’s opinion more persuasive than Dr. March’s because Dr. Hogan reviewed more

records than Dr. March. The Regulations direct ALJs to evaluate the persuasiveness of

medical opinions primarily based on supportability and consistency—not on the number

of pages of medical evidence before them. See 20 C.F.R. § 404.1520c(c)(1)-(2). And

although Dr. March reviewed additional medical records that were unavailable to Dr.

Hogan, he does not indicate that those additional records formed the basis for his more

restrictive work limitations. Instead, Dr. March principally relied on the same MRI findings

and complaints of low back pain discussed by Dr. Hogan. Compare Tr. 235 with Tr. 244.

Thus, to the extent Plaintiff contends the ALJ necessarily erred in finding Dr. Hogan’s

opinion more persuasive than Dr. March’s because of the availability of additional

evidence, the Court finds the argument unpersuasive.

Additionally, Plaintiff argues that the ALJ inconsistently evaluated Dr. Hogan and

Dr. March’s opinions by discounting Dr. March’s opinion because he was a non-examining

physician while finding Dr. Hogan’s opinion more persuasive even though she, too, was a

non-examining physician. Pl.’s Br. (Doc. 27) p. 8. The Court disagrees. In evaluating Dr.

Hogan’s opinion, the ALJ acknowledged that Dr. Hogan was a non-examining physician

but nevertheless found her opinion generally persuasive because it was supported by

specific reasoning and grounded in the objective medical evidence. Tr. 30. Likewise, in

evaluating Dr. March’s opinion, the ALJ acknowledged that Dr. March had no examining

relationship with Plaintiff but found the opinion partially persuasive because it was “not

entirely consistent with the preponderance of the medical evidence” and was “not fully

supportable.” Tr. 31. In both instances, the ALJ’s evaluation turned on the regulatory

factors of supportability and consistency, not on the absence of an examining relationship.

Therefore, the Court rejects Plaintiff’s argument that the ALJ applied the non-examining

relationship factor in a contradictory manner.

In conclusion, the Court finds that the ALJ did not reversibly err in evaluating Dr.

March’s opinion under § 404.1520c, and finds that substantial evidence supports the ALJ’s

determination that Dr. March’s opinion was partially persuasive and less persuasive than

Dr. Hogan’s.

B. LPC Parker

“[T]he ALJ has a basic obligation to develop a full and fair record.” Graham v.

Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). When the evidence in the record is insufficient

or inconsistent such that the Commissioner cannot make a disability determination, a

claimant may be required to submit to a consultative examination. See 20 C.F.R. §

404.1519a. Importantly, “[t]he facts in a particular case and the information and findings

already reported in the medical and other evidence of record will dictate the extent of detail

needed in the consultative examination report for that case. Thus, the detail and format for

reporting the results of a purchased examination will vary depending upon the type of

examination or testing requested.” 20 C.F.R. § 404.1519n(b).

The Regulations provide that “[a] complete consultative examination is one which

involves all the elements of a standard examination in the applicable medical specialty.”

20 C.F.R. § 404.1519n(c). “When the report of a complete consultative examination is

involved, the report should include the following elements:

(1) [the claimant’s] major or chief complaint(s);

(2) A detailed description, within the area of specialty of the examination, of

the history of [the claimant’s] major complaint(s);

(3) A description, and disposition, of pertinent ‘positive’ and ‘negative’

detailed findings based on the history, examination and laboratory tests

related to the major complaint(s), and any other abnormalities or lack thereof

reported or found during examination or laboratory testing;

(4) The results of laboratory and other tests (e.g., X-rays) performed

according to the requirements stated in the Listing of Impairments (see

appendix 1 of this subpart P);

(5) The diagnosis and prognosis for [the claimant’s] impairment(s)[.]

20 C.F.R. § 404.1519n(c)(1)-(5). Importantly, “[w]hen the evidence . . . does not require a

complete consultative examination . . . [the Commissioner] may not require a report

containing all of the elements in paragraph (c).” 20 C.F.R. § 404.1519n(e). If it is

determined that a consultative examination is inadequate or incomplete, the Commissioner

will recontact the medical source and ask the source to “furnish the missing information or

prepare a revised report.” 20 C.F.R. § 404.1519p(b).

In December 2022, Plaintiff submitted to a consultative mental health examination

conducted by LPC Parker. Tr. 24; 698-703. The referral form submitted for LPC Parker’s

review sought information regarding, inter alia, a history of Plaintiff’s past and present

illness; his report of his functionality; and his mental status. Tr. 700-01. The form further

asked LPC Parker to provide details regarding any abnormal findings as to Plaintiff’s

orientation, thought content, thought process, memory, fund of information, concentration,

abstract thinking, insight and judgement, and estimated level of intelligence. Tr. 701-03.

Finally, the form asked LPC Parker for Plaintiff’s diagnosis but did not ask for Plaintiff’s

prognosis. Tr. 703. Instead, the form requested information about Plaintiff’s ability to

manage funds. Tr. 703.

In evaluating Plaintiff’s memory, LPC Parker’s report indicates that Plaintiff was

able to repeat the words “Apple, Tree, Penny” after five minutes. Tr. 702. The report also

shows that Plaintiff was asked to complete a digit span test by repeating the following

numbers backwards: 87, 649, 8537, to which he responded: 78, 964, 5873. Tr. 702. While

LPC Parker provided Plaintiff’s response to the digit span test, she did not note that the

response was incorrect. Tr. 702. Similarly, in evaluating Plaintiff’s concentration, LPC

Parker’s report indicates that Plaintiff spelled “WORLD” backward and forward; “was able

to adhere to instructions without difficulty of concentration” when asked to perform a

three-step command; and when asked to perform serial sevens,6 replied: 100, 98, 96, 94.

Tr. 702. While LPC Parker provided Plaintiff’s response to the serial sevens test, she did

not note that the response was incorrect. Tr. 702.

Plaintiff contends that LPC Parker’s report was inadequate or incomplete because

it failed to include (1) a description of pertinent positive and negative detailed findings

based on the history, examination and laboratory tests related to Plaintiff’s major

complaints, and any other abnormalities or lack thereof reported or found during

examination or laboratory testing; and (2) Plaintiff’s prognosis. Pl.’s Br. (Doc. 27) p. 10.

Because the report purportedly lacked this categorical information, Plaintiff argues that the

ALJ had a duty to recontact LPC Parker for further clarification. Id. at 9-12. However, as

set forth above, the Regulations specifically contemplate that when the evidence needed

“does not require a complete consultative examination,” a consultative examiner’s report

6 The serial sevens test “involve[s] the serial subtraction of seven beginning with the number 100.” Proenza

v. Saul, 2020 WL 6162850, at *5 n.3 (S.D. Fla. Aug. 4, 2020).

is not required to contain all of the elements set forth in § 404.1519n(c). Accordingly, the

absence of one or more of the listed items in section (c) does not, by itself, render a

consultative examination report inadequate or incomplete, causing Plaintiff’s argument to

fail. Nonetheless, even assuming the omitted information should have been included in the

report, Plaintiff has not shown that the omission created an evidentiary gap preventing the

ALJ from evaluating Plaintiff’s mental impairments, nor has he shown that inclusion would

have altered the disability determination. See id. at 12 (arguing in conclusory fashion that

the lack of this information created an “evidentiary gap result[ing] in clear prejudice”). As

such, Plaintiff has not shown that the ALJ’s failure to recontact LPC Parker constitutes

clear prejudice or unfairness, which is required for this Court to remand. See Brown v.

Shalala, 44 F.3d 931, 935 (11th Cir. 1995) (In determining whether it is necessary to

remand a case for development of the record, a court should consider whether the record

reveals evidentiary gaps which result in unfairness or clear prejudice.).

Plaintiff also argues that the ALJ was required to recontact LPC Parker because her

report did not explicitly state that Plaintiff erred when performing the digit span and serial

sevens tests. Pl.’s Br. (Doc. 27) pp. 10-12. Because the report failed to note these

conclusions, Plaintiff argues that it caused the ALJ to incorrectly state that Plaintiff “was

able to do the . . . digit span backward and forward” and that he “was able to perform serial

sevens.” Id. at 11; Tr. 24. Had the ALJ recontacted LPC Parker and requested this

information, Plaintiff contends that the ALJ would have recognized these abnormalities

and “would have properly assessed Plaintiff’s mental limitations.” Pl.’s Br. (Doc. 27) p.

12.

The Court finds that the omission of explanatory comments regarding Plaintiff’s test

results does not render LPC Parker’s report inadequate or incomplete. Indeed, while the

report did not explicitly state that Plaintiff was unable to perform the digit span and serial

sevens tests, it did contain Plaintiff’s exact responses to those tasks. Thus, the report

contained sufficient information for the ALJ to evaluate Plaintiff’s mental functioning

without recontacting LPC Parker, particularly considering the wealth of other evidence

cited by the ALJ in assessing Plaintiff’s mental limitations. As such, the report was neither

inadequate nor incomplete, and the ALJ did not reversibly err by failing to recontact LPC

Parker for additional information.7

To be sure, Plaintiff’s argument may be more accurately framed as to whether the

ALJ’s mischaracterization of evidence provided in LPC Parker’s report is reversible error.

But even if the argument is so framed, Plaintiff fails to show that he was prejudiced by the

mischaracterization of the test results. Importantly, the ALJ did not solely rely upon

Plaintiff’s performance on the digit span and serial sevens tests to formulate Plaintiff’s

mental limitations. Instead, the ALJ relied on other findings from the same examination

conducted by LPC Parker, including Plaintiff’s ability to recall three words after five

minutes, spell “WORLD” forward and backward, and follow a three-step command

7 See, e.g., Stinson v. Kijakazi, 565 F. Supp. 3d 1219, 1228 (M.D. Ala. 2021) (finding that a consultative

examiner’s report was not incomplete because it failed to specify the claimant’s physical limitations);

Thomas v. Bisignano, 2026 WL 1034391, at *5-6 (M.D. Ala. Apr. 16, 2026) (finding that the evidence

before the ALJ was sufficient for the ALJ to properly assess the claimant’s disability without needing to

contact the consultative physician because the plaintiff failed to show evidentiary gaps that resulted in

unfairness or clear prejudice); Daniel R. v. Comm’r, Soc. Sec. Admin., 2022 WL 16707088, at *6 (N.D. Ga.

Jan. 18, 2022) (“Moreover, while an ALJ has the discretion to recontact a medical source, request additional

existing records, or ask for more information, he is not required to develop the record further when the

existing record provides support for the RFC determination.”).

without difficulty. Tr. 24. In addition, the ALJ found persuasive the opinions of two non-

examining state agency consulting psychiatrists, Tr. 31, both of whom reviewed LPC

Parker’s examination and other evidence to conclude that Plaintiff had mild limitations in

understanding, remembering, or applying information and in concentrating, persisting, or

maintaining pace, Tr. 231, 240. Plaintiff does not identify any evidence suggesting that

obtaining the omitted explanatory comments would have resulted in greater functional

limitations or would otherwise alter the ALJ’s disability determination, and the Court will

not speculate otherwise.

At most, Plaintiff identifies an omission in LPC Parker’s narrative and a factual

mischaracterization by the ALJ regarding two testing exercises. On this record, however,

Plaintiff has not demonstrated that either alleged error prejudiced him by creating an

evidentiary gap or altering the ALJ’s disability determination. Therefore, remand is not

warranted.

C. NP Clary

On March 8, 2024, Brandy Clary, NP—who is Plaintiff’s treatment provider—

completed a Physical Residual Functional Capacity Questionnaire (“PRFCAQ”) on

Plaintiff’s behalf. Tr. 530-538. In the report, NP Clary diagnosed Plaintiff with chronic

back, neck, and shoulder pain. Tr. 532. She opined that Plaintiff suffered from decreased

strength in his upper extremities, was capable of low stress jobs, could walk two city blocks

without rest or severe pain, and needed a job that permitted shifting positions at will from

standing, sitting and walking. Tr. 532-33. She also opined that Plaintiff would need to take

unscheduled breaks during an 8-hour work day. Tr. 534. The ALJ found that NP Clary’s

PRFCAQ was not a medical opinion because NP Clary did not diagnose Plaintiff with any

medically determinable impairment. Tr. 30. Nonetheless, she discussed the opinion and

found it “has little [] substantive value as to her estimation of [Plaintiff’s] functional

abilities” and is therefore “of de minimus persuasive value.” Tr. 30.

Plaintiff argues that the ALJ “erroneously failed to assess NP Clary’s opinion”

because she found that NP Clary did not diagnose Plaintiff with any medically

determinable impairment. Pl.’s Reply Br. (Doc. 29) pp. 3-4; Pl.’s Br. (Doc. 27) pp. 13-15.

Plaintiff asserts that NP Clary diagnosed Plaintiff with, inter alia, chronic back pain, which

is recognized as a medically determinable impairment. Pl.’s Br. (Doc. 27) p. 15. She

contends that the ALJ’s finding otherwise is harmful error because it allowed the ALJ to

solely rely on the less restrictive opinion of a non-examining state agency medical

consultant to craft Plaintiff’s RFC. Id. Had the ALJ adopted the limitations assessed by NP

Clary, Plaintiff argues that the hypothetical to the VE would have changed, leading to a

more restrictive RFC. Id.

Assuming arguendo that the ALJ erred in concluding that NP Clary’s PRFCAQ was

not a medical opinion, Plaintiff fails to show that the error is harmful. Critically, the ALJ

did not disregard the questionnaire despite finding that it was not a medical opinion. Rather,

the ALJ explained that the PRFCAQ had little substantive value and proceeded to compare

the limitations asserted therein with NP Clary’s treatment notes, objective imaging,

physical examinations, and other medical evidence. Tr. 26-28. In finding the opinion “of

de minimus persuasive value,” the ALJ specifically noted mild radiographic findings,

normal gait, normal strength, negative straight-leg raising, pain scores reflecting only

minimal pain, improvement with medication, and the absence of significant functional

deficits. Tr. 28. Thus, the ALJ effectively evaluated NP Clary’s opinion, notwithstanding

her finding that the PRFCAQ did not meet the qualifications of a medical opinion under

the Regulations. Therefore, because the ALJ’s reasoning demonstrates that NP Clary’s

opinion was unpersuasive under the supportability and consistency factors regardless of

the finding that it did not constitute a medical opinion, remand is not warranted.

VI. CONCLUSION

As explained above, the Court finds that the ALJ did not commit reversible legal

error and that substantial evidence supports the Commissioner’s decision. Accordingly, it

is

ORDERED that the Commissioner’s decision is AFFIRMED. A separate judgment

will issue.

DONE this 6th day of August, 2026.

Stephen M. Doyle

CHIEF U.S. MAGISTRATE JUDGE