The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JACK R. GRANGER, )
)
Plaintiff, )
)
v. ) Case No. 3:21-CV-251-SMD
)
KILOLO KIJAKAZI, )
Acting Commissioner of Social Security, )
)
Defendant. )
OPINION & ORDER
Plaintiff Jack R. Granger (“Granger”) applied for a period of disability, disability
insurance benefits (“DIB”), and supplemental security income (“SSI”) on March 21, 2017,
alleging he became disabled on April 4, 2017, which he later amended to September 1,
2016. (Tr. 31, 218-29). Granger’s applications were denied at the initial administrative
level on August 3, 2017. (Tr. 145-56). He then requested and received a hearing before an
Administrative Law Judge (“ALJ”), who found on July 8, 2020, that Granger was not
disabled. (Tr. 28-41). Granger 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). Granger appeals under 42 U.S.C. §
405(g). For the reasons that follow, the undersigned AFFIRMS the Commissioner’s
decision.1
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—
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. 20); Def.’s
Consent (Doc. 19).
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.”).
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
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 the claimant 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 in the administrative proceedings.
Carnes v. Sullivan, 936 F.2d 1215, 1218 (11th Cir. 1991). A court is required to give
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.
deference to factual findings, with close scrutiny to questions of law. Cornelius v. Sullivan,
936 F.2d 1143, 1145 (11th Cir. 1991).
“Substantial evidence is more than a scintilla, but less than a preponderance. It is
such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” 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
Granger was 44 years old on his alleged disability onset date. (Tr. 219). He has a
high school diploma and past relevant work experience as an asphalt raker, yard laborer,
and a yard laborer supervisor. (Tr. 39). Granger alleged disability due to degenerative disc
disease, osteoarthritis of the knees, depression, anxiety, urinary tract infections, diabetes
mellitus, gout, hypertension, and dislocation of left elbow. (Tr. 34).
In the administrative proceedings, the ALJ made the following findings with respect
to the five-step evaluation process for Granger’s disability determination. At step one, the
ALJ found Granger has not engaged in substantial gainful activity since September 1, 2016,
his amended alleged onset date. (Tr. 34). At step two, the ALJ found Granger suffers from
the following severe impairments: degenerative disc disease, osteoarthritis of the knees,
depression, and anxiety. (Tr. 34). At step three, the ALJ found Granger does not have an
impairment or combination of impairments that meets or medically equals the severity of
one of the listed impairments. (Tr. 34).
The ALJ proceeded to determine Granger’s RFC, holding he has the capacity to
perform less than a full range of light work as defined by 20 C.F.R. § 404.1567(b) and
416.967(b) with some additional postural, environmental, and mental limitations. (Tr. 36).
At step four, the ALJ found Granger cannot perform any past relevant work. (Tr. 39). At
step five, the ALJ, considering Granger’s age, education, work experience, and RFC, found
that jobs exist in significant numbers in the national economy that Granger can perform.
(Tr. 40). Accordingly, the ALJ found Granger was “not disabled” from September 1, 2016,
through the decision date of July 8, 2020. (Tr. 41).
IV. GRANGER’S ARGUMENTS
Granger argues the ALJ erred in two ways, both related to Granger’s status as a pro
se litigant. First, Granger claims the ALJ failed to acquire a proper waiver of Granger’s
right to representation. Second, Granger asserts the ALJ did not discharge her heightened
duty to develop a full and fair evidentiary record because Granger was unrepresented. Pl.’s
Br. (Doc. 14) at 6. Because the ALJ did not commit reversable error, the undersigned
affirms the Commissioner’s final decision.
V. ANALYSIS
A. The ALJ Acquired a Waiver of Right to Representation from Granger
Granger contends the Commissioner did not adequately inform him of his right to
representation before accepting his waiver of the same. Pl.’s Br. (Doc. 14) at 7-10.
Moreover, Granger asserts he did not have the cognitive ability to make an informed
decision to waive his right to counsel. Id. at 9-10. The Commissioner responds that the
Social Security Administration (“SSA”) provided Granger with information about his right
to counsel on no less than ten occasions through written correspondence and the ALJ’s
comments at Granger’s hearings. Comm’r Resp. (Doc. 15) at 1. Likewise, the
Commissioner asserts Granger was cognitively competent to waive his right to counsel
because he capably interacted with the ALJ at his hearing, answered the ALJ’s questions
without much difficulty, and never indicated he was confused or did not understand the
hearing process. Id. at 8-9. Because the Commissioner satisfied his burden of procuring an
effective, informed waiver of the right to representation from Granger, the undersigned
finds Granger validly waived his right to representation for his administrative hearing
before the ALJ.
Social Security claimants have a statutory right to representation at a hearing before
an ALJ, but the claimant may waive this right. Coven v. Comm’r of Soc. Sec., 384 F. App’x
949, 950 (11th Cir. 2010) (quoting Graham, 129 F.3d at 1422). A claimant’s waiver of
representation must be an informed decision that the claimant undertakes knowingly and
voluntarily. Id. at 951. The SSA bears the burden of providing the claimant information
“in writing about ‘the options for obtaining’ a lawyer, including ‘the availability to
qualifying claimants of legal service organizations which provide legal services free of
charge.’” Reynolds v. Soc. Sec. Admin., 679 F. App’x 826, 827 (11th Cir. 2017) (quoting
42 U.S.C. § 406(c)). The Eleventh Circuit has found that “[a]n adequate explanation of the
right to counsel includes information about the ‘possibility of free counsel and limitations
on attorney fees to 25% of any eventual award.’” Id. at 828 (quoting Smith v. Schweiker,
677 F.2d 826, 828 (11th Cir. 1982)). A court applies the substantial evidence standard to
determine if the ALJ appropriately found an effective waiver of the claimant’s right to
representation. Coven, 384 F. App’x at 950 (quoting Crawford v. Comm’r of Soc. Sec., 363
F.3d 1155, 1158 (11th Cir. 2004)).
In Coven, the Eleventh Circuit held a claimant made a voluntary and knowing
waiver of her right to representation. Id. The court noted, in reaching its decision, that
Coven received three written notices from the SSA about her right to representation. Id.
Additionally, the court pointed out that Coven signed a written waiver of the right to
representation during the administrative hearing after the ALJ reminded Coven again of
the right to counsel. Id. Thus, the Eleventh Circuit found Coven was fully informed of her
right to counsel from the written correspondence from the SSA and voluntarily waived that
right at the hearing after the ALJ’s final admonition about the right. Id.
Granger maintains the ALJ did not properly inform him of his rights to
representation. Given the evidence in the record, this argument is facially inaccurate and
unavailing. The Commissioner points to numerous instances, no less than 10, in which the
SSA provided Granger notice of his right to representation. Comm’r Resp. (Doc. 15) at 1,
3. Granger apparently concedes he received these documents. Pl.’s Reply (Doc. 17) at 1
(“The number of notices Mr. Granger received does not support the Commissioner’s
assertion that Mr. Granger’s waiver was an ‘informed’ choice.”). At least some of these
notices from the SSA covered all of the information the Commissioner is required to
provide to claimants about the right to representation. For instance, in a Notice of
Disapproved Claim sent by the SSA to Granger on August 3, 2017, the Commissioner
stated:
IF YOU WANT HELP WITH YOUR APPEAL
You can have a friend, lawyer, or someone else help you. There are groups
that can help you find a lawyer or give you free legal services if you qualify.
There are also lawyers who do not charge unless you win your appeal. Your
local Social Security office has a list of groups that can help you with your
appeal.
If you get someone to help you, you should let us know. If you hire someone,
we must approve the fee before he or she can collect it. And if you hire a
lawyer, we will withhold up to 25 percent of any past due Social Security
benefits to pay toward the fee.
(Tr. 146). Likewise, in a request for hearing acknowledgment letter dated October 12,
2017, the SSA again provided Granger notice of his right to representation. Specifically,
the SSA said:
Your Right to Representation
You may choose to have a representative help you. We will work with this
person just as we would work with you. If you decide to have a
representative, you should find one quickly so that person can start preparing
your case.
Many representatives charge a fee only if you receive benefits. Others may
represent you for free. Usually, your representative may not charge a fee
unless we approve it. We are enclosing a list of groups that can help you find
a representative.
(Tr. 162). Additionally, the SSA provided an enclosure offering more information about
Granger’s right to representation. At the beginning of that document, the SSA informed
Granger, “You can have a representative, such as an attorney, help you when you do
business with Social Security. We will work with your representative, just as we would
with you.” (Tr. 165). The document continued, “[f]or your protection, your representative
cannot charge or collect a fee from you without first getting written approval from us.
However, your representative may accept money from you in advance as long as it is held
in a trust or escrow account.” (Tr. 165). The document also provided more detailed
information about the permitted fee agreements and the role of a representative and
articulated a list of organizations that could help Granger find a representative, including
potentially for free. (Tr. 165-68).
Furthermore, at his two hearings before the ALJ, the ALJ amply informed and
questioned Granger about his right to representation. At his initial hearing, which the ALJ
terminated to permit Granger to present additional evidence and try to find a representative,
the ALJ advised Granger of his right to representation. The ALJ had the following
exchange with Granger:
ALJ: All right. Now you also came today without an attorney or any other
type of representative. I need to advise you that -- one time, that you have the
right to get a representative since I’m postponing the hearing for you to get
these -- or for us to get the other records for you. If you want to get a
representative, now would be the time to do that. We don’t appoint
representatives for you, you have to hire your own but they -- they're not
entitled to a fee unless you win your case. So if you want to get a
representative, now would be the time because the next time you come back,
because I’ve advised you of that right, we’ll go ahead with the hearing
whether you have a representative or not, okay?
CLMT: Yes ma’am.
ALJ: All right. Do you have any questions for me?
CLMT: No ma’am.
(Tr. 82-83). Again, at the subsequent hearing, the ALJ advised Granger of his right to
counsel and received a waiver of that right from Granger. The ALJ and Granger had the
following exchange:
ALJ: Okay. All right. All right, and we had a hearing as you already
mentioned, in April of this year. We postponed it to get some records and for
you to also attempt to find an attorney. You did not, and you’ve signed today
the waiver of representation. As we explained in April, we go forward with
the hearing without the representative if you did not get one. Yes sir?
CLMT: I was just -- like nobody will touch it, anyhow.
ALJ: Okay.
CLMT: Once you already involved with this, no attorneys will touch it at all.
ALJ: Okay.
CLMT: Because they say once you’re already involved, you know, that they
don’t get into it.
ALJ: Okay. All right . . . .
(Tr. 50-51). Given the repetitive written and verbal warnings about the right to
representation the Commissioner provided to Granger, and Granger’s failure to claim he
did not understand this right, substantial evidence supports the ALJ’s finding of a waiver
of the right to representation. Granger asserts his statement that no lawyer would touch this
case after it was started demonstrates his lack of understanding. Pl.’s Br. (Doc. 14) at 8-9.
Specifically, Granger claims the ALJ never tried to ascertain if Granger had tried to procure
a representative’s services or just relied on statements from others that doing so would be
futile. Id. at 9. This argument is unpersuasive.
The Commissioner, through written correspondence and through the ALJ’s
questioning, informed Granger numerous times about his right to a representative.
Additionally, Granger’s statement about not being able to retain a representative does not
suggest he did not reach out to try to hire a lawyer. Granger noted particularly, “[b]ecause
they say once you’re already involved, you know, that they don’t get into it.” (Tr. 51).
Based on a plain reading, the “they” to which Granger was referring most reasonably
denotes the potential representatives themselves, not others. Moreover, Granger did not say
he could not get an appointment with a potential representative or in any other way imply
that he was unable to access a representative; instead, Granger’s statement indicates he
sought representation but was unable to procure it. Granger consequently agreed to proceed
with the hearing representing himself. (Tr. 51). Under these circumstances, the undersigned
finds that Granger made a knowing, voluntary, intelligent, and informed decision to waive
his right to representation at the hearing before the ALJ.
Granger briefly—in a single sentence with reference to another section of the
brief—contends he may not have been cognitively able to knowingly and voluntarily waive
his right to representation. Granger says, “[f]urthermore, in light of Mr. Granger’s hearing
testimony, and the remainder of the record, it is unclear if Mr. Granger had the cognitive
ability to make an informed waiver.” Pl.’s Br. (Doc. 14) at 10. Notably, Granger points to
no law to support his argument or suggest a standard for this Court to apply in adjudicating
his speculated lack of cognitive ability to waive his right to representation.
Further, Granger’s argument is unavailing based on his statements on the record
during his exchanges with the ALJ regarding the right to counsel. Granger never said he
did not understand his rights. Granger never asked for clarification from the ALJ. Rather,
Granger expressed that he had sought counsel but was unable to retain someone because
they told him they would not participate in a case that was already ongoing. Instead of
demonstrating Granger lacked the cognitive ability to waive his right to representation,
Granger’s statements on the record strongly suggest he fully understood his right to counsel
and could not find someone to represent him. The SSA was not required to provide Granger
a representative; it was only required to notify Granger of his right to hire a representative.
The Commissioner met his obligation to do so, and the record provides more than
substantial evidence that Granger was cognitively capable of executing a knowing,
voluntary, and informed waiver of his right to representation. The ALJ’s decision to accept
Granger’s written and oral waivers was proper and is affirmed.
B. The ALJ Correctly Developed the Record
As the parties rightly point out, the ALJ has a heightened duty to fully and fairly
develop the record where the claimant is pro se and has not waived his right to
representation. Pl.’s Br. (Doc. 14) at 10; Comm’r Resp. (Doc. 15) at 9; see Brown v.
Shalala, 44 F.3d 931, 934-35 (11th Cir. 1995) (quoting Smith, 677 F.2d at 828). As noted,
Granger knowingly, intelligently, and voluntarily waived his right to representation. The
heightened burden, accordingly, does not apply in this case. Instead, the ALJ bore the
standard duty to develop the record before adjudicating Granger’s claim. Graham, 129
F.3d at 1422-23 (citing Cowart v. Schweiker, 662 F.2d 731, 735 (11th Cir. 1981)). The
Code of Federal Regulations explains the ALJ’s responsibility to develop the evidentiary
record:
(b) Our responsibility:
(1) Development. Before we make a determination that you are not disabled,
we will develop your complete medical history for at least the 12 months
preceding the month in which you file your application unless there is a
reason to believe that development of an earlier period is necessary or unless
you say that your disability began less than 12 months before you filed your
application. We will make every reasonable effort to help you get medical
evidence from your own medical sources and entities that maintain your
medical sources’ evidence when you give us permission to request the
reports.
20 C.F.R. § 404.1512(b)(1); see also Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir.
2003). Despite the ALJ’s duty to develop the record, “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, 355 F.3d at 1276. Regardless, Granger contends the ALJ
erred by not receiving supplemented medical records for the approximately 10 months
between the hearing and the ALJ’s decision. Likewise, Granger argues the ALJ
impermissibly relied on outdated consultive examinations in reaching her decision.
Granger acknowledges the ALJ relied on consultive examinations conducted by multiple
medical professionals in reaching her decision, but asserts that these examinations were
unhelpful because they were at least 24 months old at the time of the hearing. Pl.’s Br.
(Doc. 14) at 10-11. Conspicuously, Granger cites to no law explicitly requiring the ALJ to
order updated consultive examinations or to supplement medical records in the period
between the hearing and decision.
The Eleventh Circuit in Ellison denied a claimant’s allegation that the ALJ should
have procured all medical records for the 24 month time between the claimant’s application
for benefits and the hearing. Ellison, 355 F.3d at 1276. The court noted, “[t]he ALJ was
required to develop Ellison’s medical history for the 12 months prior to [his application for
benefits].” Id. The Eleventh Circuit continued, “The ALJ . . . was in no way bound to
develop the medical record for [the period between the application and hearing.]” Id.
Here, Granger has offered no support for his contention that the ALJ erred by not
requesting supplemental records or updated consultive examinations. The existing records,
which were voluminous, along with multiple consultive examinations, adequately
supported the ALJ’s opinion. Indeed, the ALJ took numerous actions to ensure a robust
and well-developed record on which to make her decision. First, the record before the ALJ
included medical records from as far back as 2003. (Tr. 392). Likewise, the record included
consultive examinations and medical records from the intervening period between
Granger’s application in March 2017 to the September 2019 hearing. (Tr. 628-937).
Second, at the April 2019 session, the ALJ postponed Granger’s hearing to permit him to
submit further medical evidence. (Tr. 81). Third, the ALJ asked Granger to provide her
with a list of providers he had visited in the past few years, and, before reconvening for the
September hearing, the ALJ ordered and received the records from the providers Granger
listed. (Tr. 81-82); Comm’r Resp. (Doc. 15) at 11. Finally, the ALJ sought and received
records from providers Granger identified at the September 2019 hearing before the ALJ
rendered her decision. (Tr. 652-718, 720-937). Therefore, the ALJ was not derelict in
developing the evidentiary record for a full and fair hearing and decision. Substantial
medical evidence supports the ALJ’s opinion, and the ALJ’s failure to receive certain
supplemental records between the September hearing and the decision, as well as the ALJ’s
failure to order updated consultive examinations, is not reversable error.
Granger next contends the ALJ erred by not posing the correct inquiries to himand
by failing to adequately question his sister. Pl.’s Br. (Doc. 14) at 12-15. Granger has offered
a list of questions he believes the ALJ should have asked to both him and his sister. Yet, at
the hearing, the ALJ specifically asked Granger, “[a]nything else we haven’t talked about
you want me to know about you?” To which, Granger responded, “[n]ot that I can think of,
ma’am.” (Tr. 64). Accordingly, to the extent Granger claims the ALJ did not properly ask
him about his limitations, the ALJ granted Granger an ample opportunity through an open
forum to explain those limitations and Granger declined.
Similarly, the ALJ asked Granger’s sister, who attended the September 2019
hearing, “Sandra, anything you think he left out?” Sandra only responded, “Well, I was
going to comment on the insurance part. He was on Alabama Medicaid.” (Tr. 64). Thus,
the ALJ offered the same open forum to Granger’s sister, and once again, she declined to
opine further about Granger’s limitations. Prompted by the ALJ’s open-ended question to
both witnesses, either could have discussed the issues in Granger’s proposed list of
questions. Granger’s argument, therefore, that the ALJ failed to properly probe the
available witnesses for information about Granger’s limitations is unfounded.
Finally, Granger once again raises his cognitive function as a reason the ALJ did
not appropriately develop the evidentiary record. Granger claims that “[t]he hearing
testimony revealed that Mr. Granger was likely not sophisticated enough to elaborate on
the nature of his psychological, cognitive[,] and physical symptoms, or how they affected
his ability to perform substantial gainful activity. He could have answered specific
questions . . . but no more.” Pl.’s Br. (Doc. 14) at 15. Granger then points to multiple
medical records supporting his cognitive limitations. Yet, by pointing to these medical
records, which were part of the evidence considered by the ALJ, Granger contradicts his
own argument. The ALJ had not only the testimony of Granger and Granger’s sister before
her but also the medical records Granger references. Thus, the ALJ had an adequate record
on which to reach a decision. Furthermore, for the reasons previously articulated, Granger’s
participation in the hearing does not suggest he was cognitively incapable of articulating
his limitations to the ALJ. See above cognitive analysis at 11-12. Therefore, substantial
evidence supports the ALJ’s decision, and the ALJ did not commit reversable error by not
asking the specific questions Granger would have preferred.
VI. CONCLUSION
Accordingly, it is ORDERED that the decision of the Commissioner is AFFIRMED.
A separate final judgment will issue.
DONE this 10th day of November, 2022.
Stephen M. Doyle
CHIEF U.S. MAGISTRATE JUDGE