# Richardson v. Kijakazi (CONSENT)

> District Court, M.D. Alabama · January 24, 2023

URL: https://www.frixlaw.com/law-library/cases/9988141

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** January 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

REGINALD RICHARDSON, )
)
Plaintiff, )
)
v. ) CASE NO. 2:21-CV-527-KFP
)
KILOLO KIJAKAZI, )
Acting Commissioner of Social Security, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff seeks review of the Social Security Administration’s decision denying his
application for Supplemental Security Income (“SSI”) and Disability Insurance Benefits.
The undersigned, having considered the record, briefs, applicable regulations, and caselaw,
finds the decision of the Commissioner of Social Security must be AFFIRMED.
I. STANDARD OF REVIEW
This Court’s role in reviewing claims brought under the Social Security Act is a
narrow one. The scope is limited to determining whether substantial evidence in the record
as a whole supports the Commissioner’s decision and whether the correct legal standards
were applied. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).
Substantial evidence is more than a scintilla but less than a preponderance. Martin v.
Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The Court may not reweigh evidence or
substitute its judgment for that of the Commissioner, and, even if the evidence
preponderates against the Commissioner’s factual findings, the Court must affirm if the
decision is supported by substantial evidence. Winschel, 631 F.3d at 1178; Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).
II. PROCEDURAL BACKGROUND

Plaintiff was 51 years old when the Administrative Law Judge rendered a decision
finding him not disabled. R. 38–39. Plaintiff alleged disability due to high blood pressure,
heart problems, acute bronchitis, hyperthyroidism, arthritis, bad vision, eye pain, eye
ulcers, sweating, severe back pain, severe leg pain, insomnia, stomach cramps, and a severe
cough. R. 144–45. His initial application was denied, and he requested a hearing before an

ALJ. R. 170–76. After a hearing, the ALJ issued a decision finding Plaintiff not disabled.
R. 25, 39. The Appeals Council declined review, making the Commissioner’s final decision
ripe for judicial review. R. 1–3; see 42 U.S.C. § 405(g).
III. THE ALJ’S DECISION
The ALJ found that Plaintiff had severe impairments of mild degenerative disc

disease and depressive disorder but he did not have an impairment or combination of
impairments that met or medically equaled a listed impairment. R. 31–32. He then found
that Plaintiff has the residual functional capacity to perform medium work with certain
exertional and mental limitations. R. 33–34. Specifically, he found Plaintiff should avoid
ladders, scaffolds, unprotected heights, industrial machinery, interaction with the public,

and group work. Id.
The ALJ determined that Plaintiff was unable to perform his past relevant work of
truck driving. R. 37. Considering Plaintiff’s age, education, work experience, and RFC, the
ALJ determined that there were other jobs in the national economy that Plaintiff could
perform, including a loader, order filler, or box maker. R. 38. The ALJ ultimately
concluded that Plaintiff had not been under a disability from the alleged onset date, January
1, 2019. R. 28, 39.

IV. DISCUSSION
Plaintiff raises the following issues on appeal: (1) the ALJ failed to obtain a valid
waiver of representation; (2) the ALJ failed to develop the record for a pro se claimant; and
(3) Plaintiff’s mental RFC is not supported by the record.
A. Substantial evidence supports the ALJ’s waiver determination.

A social security plaintiff has a statutory right to counsel at his administrative
hearing. Smith v. Schweiker, 677 F.2d 826, 828–29 (11th Cir. 1982) (citing 42 U.S.C. §
406, effectuated by 20 C.F.R. § 404.971). A plaintiff may waive this right if (1) he receives
adequate notice of his options for representation and (2) he knowingly and intelligently
waives that right. See Reynolds v. Soc. Sec. Admin., 679 F. App’x 826, 827 (11th Cir. 2017)

(citing Smith, 677 F.2d at 828).
1. Plaintiff received adequate notice of his right to counsel.
The Social Security Administration must notify the plaintiff of his right to counsel
before the administrative hearing. Id. (citing Cowart v. Schweiker, 662 F.2d 731 (11th Cir.
1981); Clark v. Schweiker, 652 F.2d 399 (5th Cir. 1981)). Adequate notice requires that

the ALJ inform Plaintiff of “the possibility of free counsel and limitations on attorney fees
to 25% of any eventual award.” Smith, 677 F.2d at 828–29 (citing Clark, 652 F.2d at 403).
After receiving this information—either in a prehearing notice or at the hearing—a plaintiff
may knowingly and intelligently waive his right to counsel. See Reynolds, 679 F. App’x at
827 (citing Smith, 677 F.2d at 828).
Plaintiff admits to receiving adequate notice of his right to representation. Doc. 12

at 7 (“The ALJ provided a good review of the options for representation, noting there were
organizations that could represent him for free, or on a contingency basis.”). Indeed, on
multiple occasions, the SSA sent Plaintiff written explanations of this right. See R. 170–
171, 176, 181–88. On at least one occasion, the SSA informed Plaintiff of the 25% limit
and the possibility of free counsel. R. 181–88. With this, the SSA satisfied its duty to inform

Plaintiff. See Smith, 677 F.2d at 828–29 (citations omitted). Still, the ALJ reviewed these
options at the hearing. See R. 69–70. Thus, Plaintiff received adequate notice regarding his
options for representation. See Smith, 677 F.2d at 828–29 (citations omitted).
2. Plaintiff knowingly and intelligently waived his right to counsel.
Even if a plaintiff receives adequate notice and agrees to proceed pro se, a court

may still find he did not knowingly and intelligently waive his right. See Brown v. Shalala,
44 F.3d 931, 935–36 (11th Cir. 1995); Cowart, 662 F.2d at 734–35. For example, a court
may find the plaintiff did not knowingly and intelligently waive his right when the hearing
transcript reveals he did not understand his options for representation. See Brown, 44 F.3d
at 935–36. In Brown, the Eleventh Circuit evaluated whether a plaintiff sufficiently waived

her right to representation when she appeared confused by the waiver discussion. Id. The
court focused on the following discussion between the ALJ and the plaintiff:
ALJ: Now, you have signed a waiver of your right to Counsel, and you were
informed when you received your notice of hearing that you had the right to
have . . . a representative.
CLMT: We sent it in, but they just wouldn’t, wouldn’t, we don’t understand it. . . .

. . . .

ALJ: Okay. Well, the main thing I want you to understand here today, is though
you know you had a right to representation?

CLMT: And we, we, we, we sent one in, but they just wouldn’t. I don’t understand.

ALJ: Okay. Well, here’s the thing Miss Brown . . . [Y]ou were informed in a notice
of hearing, that you have a right to have a representative. You have signed a
waiver saying that you understand that and you’re ready to proceed today
without . . . a representative[.]

. . . .

CLMT: –I can go on without a representative

ALJ: Yeah. Is that what you want to do?

CLMT: I can go on without it, sir, because I been signed up. Rehabilitation is sending
me to school, starting in two weeks. . . . Trying to get me to where I can do
something–

ALJ: Okay. Well, . . . I want to stick to the issues that we’re addressing. And that
is you are ready to proceed without a representative here today. That’s what
you desire to do, is that correct?

CLMT: Yes, sir.

Id. at 933. The court found, “Although [the plaintiff] eventually responded in the
affirmative when asked whether she desired to proceed alone . . . [n]othing in her testimony
evince[d] an understanding that she had other options which were either explored or
rejected.” Id. at 935 (citing Cowart, 662 F.2d at 734–35). As such, the court determined
the plaintiff did not knowingly and intelligently waive her right to counsel. Id.
Waiver is also inadequate where a plaintiff agrees to proceed pro se because he was
unable to access representation. See Cowart, 662 F.2d at 734. In Cowart, a plaintiff agreed
to proceed unrepresented, but her spouse’s testimony showed she only did so because she

did not qualify for free counsel and could not afford private counsel. Id. The court
concluded that the plaintiff’s failure to obtain counsel was “due to her inability to afford
counsel rather than a ‘wish’ to proceed without counsel” and, thus, the plaintiff did not
adequately waive her rights. Id. But these concerns dissipate when a plaintiff has access to
representation, failed to procure it for the hearing, and agrees to proceed pro se. See

Granger v. Kijakazi, No. 3:21-CV-251-SMD, 2022 WL 16851868, at *3–5 (M.D. Ala.
Nov. 10, 2022) (finding adequate waiver because plaintiff’s statements that “no attorneys
would touch this case” did not imply he lacked access to representation; instead, they
indicated he sought representation but was unable to acquire it).
A plaintiff’s cognitive defects do not automatically preclude an effective waiver.

See Granger, 2022 WL 16851868, at *3–5. The Granger plaintiff claimed insufficient
waiver due to his cognitive defects. Id. at *3. The court rejected the argument because the
plaintiff never expressed his misunderstanding or asked for clarification regarding his
options. Id. Rather, his statements “strongly suggest he fully understood his right to counsel
and could not find someone to represent him.” Id.

Plaintiff claims insufficient waiver because he “was decidedly incapable of making
an ‘informed choice’” and “was confused, without a grasp on who, if anyone, was
representing him” due to his “severe” mental illness. Doc. 12 at 6–8. At the hearing, the
ALJ and Plaintiff had the following discussion:
ALJ: I understand there are some difference at this point, so is Ms. Moore
representing you?

CLMT: Well, Heard & Smith, I reckon they have to represent me. They
represented me all -- thus far. But -- but also -- and they had something
mailed and it was that they did not want to represent me coming up to
this day and wanted to postpone everything and do nothing about the
case or whatever it is. And so I -- I -- I been injured since -- since --
prior to this case in -- in -- in April[.]

. . . .

And so I’ve been injured. I’ve been in a -- been in a -- truck accident.
And so that that truck accident gave me some head injuries, some back
injuries, and some more stuff that I had to take care of. And so I need
-- I need to go ahead on and get me some extra protection for my
medical, so to speak.

ALJ: I want to cover all of that . . . But I need to know, right now, how I’m
handling whether Mr. Heard’s firm, and in this particular case, Ms.
Moore, on behalf of Mr. Heard, is -- is still your representative. I
mean, officially, they are, because the forms are here, but I’m --
because of the conversation --

CLMT: Officially, they are not, because of the -- the variable they had over
the phone. As of the -- the -- 9th of this prior month, they -- they were
-- they were not showing up as of 7 -- 7/9. This is August now. 7/9 of
July[.]

. . . .

[T]hey decided that they were not even to come, even on the 12th.
Why they called on the 12th is beyond me. But that’s what they told
me on the phone. And so after that, that was -- that was the end of that
with Heard & Smith. And I said if I lost with you, I’d just go ahead
on and I referred to . . . but they need representation unless I lost. And
so since they told me that, if I lost against you, I would get them for
representation.

. . . .

That’s the reason they told me like they told me, and I had a couple of
more attorneys tell me that, and the amount that they want -- well,
they wasn’t going to come to -- they weren’t going to be with me on
-- on the phone on the day. They wanted to postpone, and I figured I
have waited two years in order just for this -- the time before you, so
the least that I could do is talk to you, you know. And so -- so, you
know, I’m -- I’m in a lot of distress, and if I had corona, I couldn’t get
proper help, you know, with -- with -- with how they got it and I’m
fed up. And I been sick for a while.

. . . .

ALJ: Ms. Moore -- Ms. Moore, what’s your position on this?

ATTNY: Your Honor, it looks as Heard & Smith is going to withdraw as his
representative.

. . . .

ALJ: So, believe it or not, the first thing I have to do with you right now is
tell you that you -- because you are no longer represented, you still
are entitled to be represented in these proceedings.

. . . .

Finally, our agency recognizes that once you have -- have understood
that you are entitled to be represented, who might be able to provide
that representation to you, and what if any fee there is with respect to
that representation, and you may simply choose to represent yourself.

But before I get to go any further here with you this afternoon, I need
to know do you want the opportunity now to seek new representation,
since your previous representative has withdrawn? Or do you want to
go forward serving as your own representative?

CLMT: Just go forward as -- serving as my own representative because I -- I
got all the paperwork from the -- the -- the documents stating that I’m
disabled and they -- they should be already have been -- been
submitted in by me.

R. 66–71.

This transcript does not indicate Plaintiff was confused during the waiver discussion.
While Plaintiff initially stated that Heard & Smith represented him, he clarified that the
firm no longer represented him given their statements before and during the hearing. After
Ms. Moore withdrew on the record and the ALJ reviewed Plaintiff’s options, Plaintiff
plainly stated that he wished to proceed unrepresented. Plaintiff’s response to whether he

wanted to proceed pro se is dissimilar to the Brown plaintiff’s responses, which included,
“we don’t understand it” and “I don’t understand.” See 44 F.3d at 933. Plaintiff’s
statements do not suggest his decision to waive stemmed from misunderstanding. Rather,
his testimony that he had longstanding injuries, was “fed up[,]” and waited two years for a
hearing suggests his decision stemmed from an urgency to progress his case. See R. 67–

68.
Plaintiff claims the remainder of the transcript illustrates his confusion, as he “was
not responsive[,] . . . did not understand what the ALJ was asking[,] . . . [and] frequently
interrupted the ALJ with unrelated information.” Doc. 12 at 8. At this stage, the Court’s
only concern is whether Plaintiff understood his right to representation, not whether he

understood the details of the proceeding after he waived that right.
Importantly, the evidence does not show Plaintiff was unable to access representation.
On the contrary, prior to the hearing, Plaintiff was represented by two law firms—
sometimes simultaneously.1 Plaintiff’s testimony shows he engaged other firms as well,

1 On October 2, 2019, Plaintiff appointed Heard & Smith, LLP to represent him. R. 195. On January 15,
2020, Plaintiff appointed Citizens Disability, LLC as his representative. R. 197. On March 25, 2020,
Plaintiff terminated Citizens and requested the SSA appoint Heard & Smith. R. 199. On April 20, 2020,
Plaintiff appointed Heard & Smith once again. R. 208, 668. However, on May 19, 2020, Citizens filed a
request for Plaintiff’s medical records, and on May 20, 2020, Citizens filed Plaintiff’s medical records with
the Office of Disability Adjudication and Review. R. 310, 453. On June 15, 2020, Citizens withdrew as
Plaintiff’s representative due to “extraordinary circumstances.” R. 202. On June 17, 2020, Heard & Smith
filed Plaintiff’s medical records with the SSA. R. 312, 314. On July 1, 2020, Heard & Smith filed a
Response to the Telephone Hearing Request on Plaintiff’s behalf and Plaintiff’s medical records. R. 206,
though unsuccessfully: “I had a couple of more attorneys tell me that, and the amount that
they want -- well, they wasn’t going to come to -- they weren’t going to be with me on --
on the phone on the day.” R. 68. Still, Plaintiff was unable to maintain representation for

the hearing. See R. 66 (“Heard & Smith . . . did not want to represent me coming up to [the
hearing] and wanted to postpone everything and do nothing about the case”). Unlike the
Cowart plaintiff, who lacked financial access to representation, this transcript shows
Plaintiff had ample opportunities for representation. See 662 F.2d at 734. Plaintiff is more
akin to the Granger plaintiff who, despite having access to attorneys, proceeded pro se

because he could not secure counsel. See 2022 WL 16851868, at *3–5. Like the plaintiff
in Granger, Plaintiff failed to maintain representation for his hearing and opted to proceed
pro se. See id. In these situations, a plaintiff can successfully waive his right, and there is
no concern he lacked access to representation. See id.
Finally, Plaintiff argues his schizophrenia precludes him from knowingly and

intelligently waiving his right. Doc. 12 at 8. This argument is unavailing. Plaintiff’s
diagnosis is not determinative of his ability to knowingly and intelligently waive his right
to representation. See Granger, 2022 WL 16851868, at *3–5. The question at hand remains
the same: did the Plaintiff understand his options regarding representation and wish to
proceed unrepresented? See id. As discussed above, the transcript shows that Plaintiff

understood his options. Plaintiff never asked questions or sought clarification regarding

327. On August 3, 6, and 7 of 2020, Heard & Smith filed more medical records on Plaintiff’s behalf. R.
333, 336, 338. On August 11, 2020, Heard & Smith filed Plaintiff’s medical records with the Office of
Disability Adjudication and Review. R. 545. On August 12, 2020, the day of the hearing, Heard & Smith
filed its notice of withdrawal. R. 209.
this right. See id. Similar to the transcript in Granger, this hearing transcript “strongly
suggest[s] [P]laintiff fully understood his right to counsel [but] could not find someone to
represent him.” See id. Accordingly, the Court finds Plaintiff knowingly and intelligently

waived his right to representation, and substantial evidence supports the ALJ’s waiver
acceptance.
B. The ALJ fully developed the record.
Even if a court finds insufficient waiver, remand is not appropriate unless a plaintiff
also shows he was prejudiced by the lack of counsel. See Brown, 44 F.3d at 934. “When a

claimant who has not waived his right to counsel represents himself in a hearing, the
hearing examiner’s obligation to develop a full and fair record rises to a special duty”
showing “the claimant was not prejudiced by lack of counsel.” Smith, 677 F.2d at 829. But
when a plaintiff properly waives his right to representation, the heightened burden does not
apply. See Granger, 2022 WL 16851868, at *6. Regardless, the plaintiff bears the burden

of producing evidence in support of his claim. Ellison v. Barnhart, 355 F.3d 1272, 1276
(11th Cir. 2003). Courts are “guided by whether the record reveals evidentiary gaps which
result in unfairness or ‘clear prejudice.’” Brown, 44 F.3d at 934 (citations omitted). A
prejudice finding requires that the plaintiff show, “the ALJ did not have all of the relevant
evidence before him in the record . . . or that the ALJ did not consider all of the evidence

in the record in reaching his decision.” Pennington v. Comm’r of Soc. Sec., 952 F. App’x
862, 871 (11th Cir. 2016) (citing Kelley v. Heckler, 761 F.2d 1538, 1540 & n.2 (11th Cir.
1985)).
Because Plaintiff successfully waived his right to representation, the ALJ had only
a standard duty to develop the record. Cowart, 662 F.2d at 735. Plaintiff argues he was
prejudiced by the ALJ’s failure to develop the mental health record.2 See Doc. 12 at 9–12.

But Plaintiff fails to identify any evidence that the ALJ either did not have or failed to
consider. This omission precludes a prejudice finding. See Pennington, 952 F. App’x at
871–72 (citing Kelley, 761 F.2d at 1540 & n.2) (plaintiff could not show prejudice because
he failed to assert the existence of medical records not considered by ALJ); Rivera Perez
v. Comm’r of Soc. Sec., No. 6:20-CV-79-Orl-LRH, 2021 WL 289052, at *4 (M.D. Fla. Jan.

28, 2021) (“Indeed, the fact that the [plaintiff] did not identify a single treatment note
missing from the record . . . undermines her position that the ALJ did not fully and fairly
develop the record.”) (citations omitted); Nunez v. Berryhill, No. 1:16-CV-23692-LFL,
2018 WL 6308681, at *11 (S.D. Fla. Sept. 27, 2018) (claim that ALJ did not develop record
failed because plaintiff never identified missing evidence). The record contains ample

evidence of Plaintiff’s mental health; records span from September 22, 2018, until August
7, 2020—mere days before the hearing. See R. 361, 365, 371, 523, 528. The record also
contains a March 2019 consultative examination; an April 2019 state disability
examination; a June 2019 hospitalization; three separate psychiatric examinations
conducted in May, June, and July 2019; and another hospitalization in August 2020. R.

392–95, 397–98, 600, 691–93, 698. The ALJ considered this evidence in making his

2 Because Plaintiff omitted any argument as to Plaintiff’s physical health records, the Court considers that
argument waived and only considers whether the ALJ fully developed the record as it pertains to Plaintiff’s
mental health records. See Gutherie v. Astrue, No. 2:11-CV-3081-KOB, 2013 WL 5519512, at *11 (N.D.
Ala. Sept. 30, 2013) (“[B]ecause the claimant did not raise the ALJ’s findings regarding his physical
impairment on appeal, the court will focus on the ALJ’s findings regarding his mental impairments.”).
determination. See R. 36. Thus, Plaintiff’s prejudice argument fails. See Pennington, 952
F. App’x at 871 (citing Kelley, 761 F.2d at 1540 & n.2).
To be sure, the Court was also unable to identify any gaps in the mental health

record. At the hearing, the ALJ recognized the possibility of outstanding medical evidence:
“I’m pretty sure there’s things that I may not have that I would like to have . . . I’m going
to go over with you what was represented to me that is still outstanding, and then I’m going
to let you tell me if there’s anything else besides that.” R. 73. However, when the ALJ
attempted to confirm which documents were missing, Plaintiff clarified, “Evidently, you

must already have them . . . from talking to you . . . I think you already have them.” R. 96.
Nonetheless, the ALJ reviewed the records that Plaintiff’s former counsel identified as
outstanding. Regarding the unresolved mental health records, the ALJ asked Plaintiff about
his treatment at Centennial Neurology and Baptist Medical South. R. 77. While the ALJ
stated he had no records from Dr. Caballero at Centennial Neurology, R. 81–82, a review

of the record shows that those documents were received a few days after the hearing. R.
687–93. Likewise, the ALJ received records from Baptist South soon after the hearing. R.
696. Again, these documents were considered in the ALJ’s opinion. See R. 36.
Plaintiff generally argues the ALJ failed to sufficiently inquire as to his mental
health and, as such, lacked relevant information when deciding Plaintiff’s case. Doc. 12 at

10. At the hearing, the ALJ asked Plaintiff about his mental health treatments:
ALJ: -- do you get any mental health treatment?

CLMT: Yes, sir. And --

ALJ: Who --
CLMT: -- [INAUDIBLE]

ALJ: I’m sorry, who’s that?

CLMT: Crossbridge usually . . . does that, but it’s like . . . since I been getting
. . . the treatment from Dr. Caballero, it’s been not too [INAUDIBLE].
So I still take the medication and stuff, but I’m not as bad as what I
was.

ALJ: Got it.

R. 92. The ALJ did not otherwise inquire about Plaintiff’s mental health treatment. Plaintiff
takes issue with the ALJ’s focus on his physical impairments in leu of his mental ones, and
he includes a list of questions the ALJ should have asked regarding Plaintiff’s mental
health. Doc. 12 at 10. While the ALJ could have questioned Plaintiff more extensively
regarding his mental health treatment, without more, the limited questioning does not
equate to prejudice. See Kelley, 761 F.2d at 1540. Moreover, it was Plaintiff’s obligation
to support his claim with medical evidence. See Ellison, 355 F.3d at 1276. He failed to do
so despite having opportunities. See R. 95, 101. For example, the ALJ asked Plaintiff twice
whether there was anything else Plaintiff wished to add, and Plaintiff only responded with
information pertaining to his physical health. See id. Accordingly, Plaintiff’s claim that the
ALJ should have asked the proposed questions fails. See Granger, 2022 WL 16851868, at
*7 (ALJ did not err by not asking plaintiff’s proposed questions in part because ALJ invited
plaintiff to include additional information to no avail).
In an attempt to show that the ALJ should have inquired further about Plaintiff’s
mental health, Plaintiff references records evidencing his mental health issues. Doc. 12 at
11–12. But in doing so, Plaintiff contradicts his own argument that the ALJ did not fully
develop the record—the ALJ had not only the hearing testimony to rely on, but the medical
records with which Plaintiff supports his argument. See Granger, 2022 WL 16851868, at
*7 (plaintiff’s identification of medical records supporting his cognitive limitation

undermines his own argument that the ALJ did not have adequate records from which to
render a decision). In fact, Plaintiff’s argument cites to several pieces of evidence that the
ALJ also cited in his decision. Compare Doc. 12 at 11–12 with R. 32–36.
Finally, Plaintiff claims his cognitive deficiencies prevented the ALJ from fully
developing the record. See Doc. 12 at 9 (“[Plaintiff’s] disorganized thoughts frustrated [the

ALJ’s] attempt to update the medical record.”). To show his confusion, Plaintiff points to
his testimony that Dr. Caballero, a neurologist, provided him mental health treatment. See
id. At this stage, the Court’s focus is whether Plaintiff’s confusion prevented the ALJ from
fully developing the record. For the reasons above, the Court finds it did not.
C. Substantial evidence support’s the mental RFC.

The RFC is a determination the ALJ makes based on “all the relevant medical and
other evidence” in the record, including both medical and nonmedical. 20 C.F.R. §§
416.945(a)(1), 416.945(a)(3). It is “used to determine [one’s] capability of performing
various designated levels of work[.]” Pupo v. Comm’r, Soc. Sec. Admin., 17 F.4th 1054,
1064 (11th Cir. 2021) (citing 20 C.F.R. § 416.967). As long as an ALJ “has ‘provide[d] a

sufficient rationale to link’ substantial record evidence ‘to the legal conclusions
reached[,]’” the RFC is supported by substantial evidence. Nichols v. Kijakazi, No. 3:20-
CV-00224-SRW, 2021 WL 4476658, at *7 (M.D. Ala. Sept. 29, 2021) (citing Eaton v.
Colvin, 180 F. Supp. 3d 1037, 1055 (S.D. Ala. 2016)). Even if some evidence exists
supporting a more restrictive RFC, if substantial evidence supports the decision, the court
must affirm. See Jacks v. Comm’r, Soc. Sec. Admin, 688 F. App’x 814, 819–20 (11th Cir.
2017). In evaluating a medical opinion, the ALJ is not required to refer to every piece of

evidence as long as the court can conclude he considered Plaintiff’s conditions as a whole.
Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005). In fact “an ALJ’s RFC assessment
need not ‘match or mirror the findings or opinions of any particular medical source . . .
because the responsibility of assessing the RFC rests with the ALJ.’” Boone v. Kijakazi,
No. 1:21-CV-34-JTA, 2022 WL 4133288, at *5 (M.D. Ala. Sept. 12, 2022) (citation

omitted).
The ALJ determined Plaintiff had the RFC to understand, retain, and carry out
simple instructions with few changes. R. 33–34. The ALJ also advised that Plaintiff should
“avoid interaction with the public, except for incidental contact . . . [and] occasional
interaction with co-workers and supervisors[,]” and he should avoid group, team, or tandem

work. Id. But Plaintiff argues the evidence supports a more restrictive RFC. See Doc. 12 at
13.
As an initial matter, substantial evidence supports the mental RFC. The ALJ
recognized that Plaintiff was able to perform nearly all activities of daily living, including
tending to his hygiene, accomplishing chores, driving, managing money, watching

television, reading, and socializing. R. 32–33. The ALJ stressed that clinical findings
revealed mostly benign mental health issues: despite having very low intelligence, Plaintiff
could conceptualize simple calculations and facts; despite one examiner observing poor
memory, the majority of the evidence showed a normal or intact memory; despite
Plaintiff’s claims that he has difficulty concentrating, treatment notes often showed
Plaintiff had normal attention, appropriate reasoning, and appropriate judgment; and
despite Plaintiff’s claims that he could not handle stress well, Plaintiff reported an ability

to adapt and cope with changes in his routine. Id. The ALJ also recognized the evidence
generally revealed Plaintiff’s logical and coherent stream of thought; appropriate mood and
affect; and good insight and judgment. R. 33, 36.
While Plaintiff was twice hospitalized with mental health symptoms, the ALJ found
those occurrences to be minor. R. 36. Although Plaintiff was hospitalized in June 2019

after becoming belligerent, he was temporarily moved to a psychiatric holding room,
diagnosed with manic depression, and discharged the same day in stable condition. Id.; see
also R. 600. Despite an August 2020 hospitalization for an altered mental status, Plaintiff
still had an appropriate mood and affect, was conversant, and was able to follow
commands. R. 36, 657. In light of these records, the ALJ concluded, “[W]hile it is clear the

claimant has some mental health difficulties, the treatment records, which show some
exacerbations but mainly benign testing, would not support more limitations to the
claimant’s cognitive abilities and social interactions, than provided for in the above
[RFC].” R. 36. By considering these records, the ALJ “has ‘provide[d] a sufficient rationale
to link’ substantial record evidence ‘to the legal conclusions reached[,]’” so the RFC is

supported by substantial evidence. See Nichols, 2021 WL 4476658, at *7 (citing Eaton,
180 F. Supp. 3d at 1055).
Plaintiff takes issue with the ALJ’s evaluations of the opinions of Drs. Lee Stutts
and Norman Garrison. Doc. 12 at 13–15. Plaintiff offers the same argument for both
opinions: the examination records contain evidence which supports more restrictive
limitations not incorporated in the RFC or mentioned in the ALJ’s decision. Id. This
argument is unavailing. The ALJ reviewed Dr. Stutts’s March 2019 psychological

evaluation in which Dr. Stutts opined Plaintiff had a mild impairment in his ability to
understand, remember, and carry out instructions and a moderate impairment in his ability
to respond to others and withstand workplace stressors. R. 36–37. These records show that
Plaintiff had an appropriate mood and affect, was cooperative, had a logical stream of
thought, showed no signs of psychosis, and, despite having low intelligence, was able to

complete simple calculations. Id. After reviewing Dr. Stutts’s findings, the ALJ found the
opinion persuasive, explaining that it was supported by and consistent with the record. See
id.
Only one month later, Dr. Garrison evaluated Plaintiff and observed vastly different
symptoms. See R. 397–99. Plaintiff appeared agitated, irritable, stressed, anxious, hostile,

and paranoid. Id. Plaintiff also exhibited poor insight, affect, intelligence, and judgment.
Id. Ultimately, Dr. Garrison opined that Plaintiff was schizophrenic and paranoid; he “may
well be valid for Social Security Benefits[;]” his poor sight may be part of his
schizophrenia; and it was unlikely he could obtain employment. Id. The ALJ acknowledged
that Plaintiff’s memory, intelligence, affect, and judgment were adjudged poor. R. 36–37.

The ALJ also considered Dr. Garrison’s determination that Plaintiff would never be able
to drive a truck again and found,“[W]hile this is not an opinion that can be weighed, as it
does not provide functional limitations[,]” it was “helpful in analyzing the case as a whole.”
Id. In fact, the ALJ ultimately concluded that Plaintiff could not return to truck driving. R.
37.
As discussed above, the ALJ’s decision shows he considered Plaintiff’s mental

health conditions as a whole, so he was not required to discuss each piece of evidence.
Dyer, 395 F.3d at 1211. Most importantly, the mental RFC did not have to directly mirror
the opinions of Drs. Stutts and Garrison.3 See Boone, 2022 WL 4133288, at *5 (citation
omitted). Even if the record contains evidence supporting more severe limitations, because
substantial evidence supports the decision, the Court must affirm. See Jacks, 688 F. App’x

at 819–20. 4
V. CONCLUSION
For the reasons set forth above, it is ORDERED as follows:
1. The Commissioner’s decision is AFFIRMED.
2. A final judgment will be entered separately.

3 To the extent Dr. Garrison’s statement that Plaintiff “may be” entitled to disability is a disability
determination, the ALJ was not required to adopt it. See 20 C.F.R. § 404.1527(d)(1) (“A statement by a
medical source that [a plaintiff is] ‘disabled’ or ‘unable to work’ does not mean that [the ALJ] will
determine that you are disabled.”).
4 Plaintiff argues that the ALJ’s step-two finding was inconsistent with the record because, in addition to
depression, Plaintiff also has schizophrenia, schizoaffective disorder, or other psychotic disorders. Doc. 12
at 13. This argument is highly underdeveloped: in the single sentence that Plaintiff devotes to the argument,
he fails to cite to any supporting law. Accordingly, the Court considers this issue waived. N.L.R.B. v.
McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in a perfunctory manner,
without supporting arguments and citation to authorities, are generally deemed to be waived.”) (citations
omitted); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 683 (11th Cir. 2014); see also Revel v. Saul,
No.19-CV-248-N, 2020 WL 6472640, at *7 (S.D. Ala. Nov. 2, 3030) (“Given that review of a final decision
of the Commissioner is the same in district court as it is in the Court of Appeals . . . the undersigned finds
that [Plaintiff] has waived her claims . . . by waiving them only in a perfunctory manner without supporting
argument.”) (citations omitted).
DONE this 24th day of January, 2023.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9988141. Public record. Not legal advice.