# Martinez v. Social Security Administration, Commissioner

> District Court, N.D. Alabama · March 11, 2020

URL: https://www.frixlaw.com/law-library/cases/9989318

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** March 11, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION

JOSEPH MARTINEZ }
}
Plaintiff, }
}
v. }
} Case No.: 6:19-CV-00081-RDP
ANDREW SAUL, SOCIAL }
SECURITY ADMINISTRATION, }
COMMISSIONER, }
}
Defendant. }

MEMORANDUM OPINION

Plaintiff Joseph Martinez (“Plaintiff”) brings this action pursuant to Section 1614(a)(3)(A)
of the Social Security Act (the “Act”), seeking review of the decision of the Commissioner of
Social Security (the “Commissioner”) denying his claim for supplemental security income (“SSI”).
See 42 U.S.C. § 1382(c). Based on the court’s review of the record and the parties’ briefs, the
court finds that the decision of the Commissioner is due to be affirmed.
I. Proceedings Below
Plaintiff filed his application for supplemental social security income on December 4,
2013,1 alleging that his disability began on July 11, 1993. (Tr. 138, 271-79). On March 6, 2014,
the Social Security Administration (“SSA”) denied Plaintiff’s application. (Tr. 134). Plaintiff
received a hearing before Administrative Law Judge Denise A. Copeland (“ALJ”) on August 6,

1 The ALJ’s decision states that the current application for SSI was made on November 22, 2013. (Tr. 10). However,
Plaintiff’s application for SSI is dated December 4, 2013. (Tr. 271).
2015. (Tr. 45-88). On September 25, 2015, the ALJ determined that Plaintiff was not under a
disability. (Tr. 135-49). Plaintiff requested review, and the Appeals Council remanded the case
for the ALJ to consider additional evidence. (Tr. 150-53). On remand, a hearing was held on
October 11, 2017. (Tr. 7-32, 89-121). The ALJ again found that Plaintiff was not disabled on
May 3, 2018. (Id.). The Appeals Council denied Plaintiff’s request for review of the ALJ’s

decision on November 13, 2018. (Tr. 1-6). That decision became the final decision of the
Commissioner, and therefore a proper subject of this court’s appellate review.
II. Facts
Plaintiff was twenty years old when he filed his SSI application, and twenty-four years old
at the date of the ALJ’s 2018 decision. (Tr. 7, 271). School records show that Plaintiff entered
10th grade, but withdrew from school in 2011. (Tr. 334). Although Plaintiff contends he was
placed in special education classes, no evidence of such a placement exists in the record. (Tr. 22,
305-326, 351-52). Plaintiff has no past relevant work. (Tr. 117, 333). Plaintiff was found disabled
as a child, and he received supplemental social security income. (Tr. 10). After Plaintiff reached

age 18, the Social Security Administration reviewed Plaintiff’s disability and found that Plaintiff
was not disabled under the criteria applicable to adult disability. (Id.).
In January 2012, and while assessing Plaintiff’s age-18 redetermination, the Disability
Determination Service (“DDS”) sent Plaintiff to Dr. Jerry Gragg, Psy.D. for a psychological
evaluation. (Tr. 411). Plaintiff’s mother accompanied him to the appointment, and stated that a
previous doctor had diagnosed Plaintiff as “mentally retarded,” but she could not provide any
evidence in support of that. (Tr. 411). Plaintiff reportedly watches cartoons, plays board games,
maintains a normal sleep pattern, and prepares simple meals. (Tr. 412). Dr. Gragg performed a
mental status exam, but was unable to gauge Plaintiff’s abstract reasoning skills, judgment, or
concentration because Plaintiff avoided interacting with him, and failed to answer questions. (Tr.
412). Dr. Gragg attempted to administer the Wechsler Adult Intelligence Scale test (WAIS-IV),
but Plaintiff was uncooperative. (Id.). Dr. Gragg reported that Plaintiff’s lack of cooperation
stemmed from severe social anxiety, but he could not offer any further diagnostic impression. (Tr.
412). State agency psychological consultant Dr. Robert Estock subsequently reviewed the claim

file, and reported that there was “no way to ascertain [Plaintiff’s] ability to function” due to
Plaintiff’s lack of cooperation. (Tr. 534-47).
Dr. Scott Boswell treated Plaintiff from March 2013 to September 2017. (Tr. 414-80). On
March 14, 2013, Plaintiff complained to Dr. Boswell of strep pharyngitis, gastric discomfort, and
anxiousness. (Tr. 449, 465-67). Plaintiff also completed paperwork for Dr. Boswell, which
indicated that he was involved in a monogamous sexual relationship and had become involved in
mixed-martial arts. (Tr. 453-54). Dr. Boswell reported that Plaintiff demonstrated normal speech,
intact memory, and appropriate intellectual functioning. (Id.). Dr. Bowell prescribed Lexapro for
anxiety, as well as Ultram and a Medrol Dose pack for pain and discomfort related to the

pharyngitis. (Tr. 455). Records show Plaintiff filled the prescriptions the following day. (Tr.
373).
During a follow up visit in April 2013, Plaintiff reported some improvement on Lexapro,
but still awoke with panic attacks. (Tr. 446). Dr. Boswell prescribed a beta blocker for bedtime
and increased the dose of Lexapro. (Id.). On June 11, 2013, Plaintiff reported he did not want to
take any medication that changed the way he felt. (Tr. 437).
In August 2013, Dr. Boswell treated Plaintiff for pain in his ribs and tailbone, which
Plaintiff claimed to have received from a mixed-martial arts fight. (Tr. 422). Dr. Boswell reported
that Plaintiff’s sacrum was tender to palpation, but the x-rays were negative. (Tr. 421-22). Dr.
Boswell prescribed Morbic for pain, along with Toprol and Lexapro. (Tr. 422-23, 438-39, 447).
Dr. Boswell ultimately referred Plaintiff to Eastern Interventional Pain Center due to Plaintiff’s
continued complaints of pain. (Tr. 421). Throughout his treatment with Dr. Boswell, Plaintiff
repeatedly reported he worked, participated in mixed-martial arts, and was married with a child.
(Tr. 422, 438).

On September 19, 2013, Dr. Boswell ordered an MRI scan of Plaintiff’s lumbar spine. (Tr.
420). The scan showed minor facet hypertrophy at L3-4 without significant stenosis. (Id.). At L4-
5, the scan showed facet hypertrophy, with mild ligamentum flavum infolding, and a posterior disc
bulge with posterior annular fissures and minor bilateral foraminal narrowing. (Id.). At L5-S1,
there was minor facet hypertrophy and posterior broad-based disc bulge with posterior annular
fissures and moderate foraminal stenosis. (Id.).
On November 8, 2013, Plaintiff began treatment at Eastern Interventional Pain Center,
after complaining of low back pain due to an injury sustained during a cage fighting match. (Tr.
499-500, 582). Plaintiff stated that he had previously been prescribed oxycodone and methadone

for his pain, as well as Percocet to manage pain for nose and rib fractures from 2010. (Tr. 492,
582). Urine drug screens performed by Dr. Boswell in April, June, and August 2013 were negative
for oxycodone, methadone, and other controlled substances or drugs of abuse. (Tr. 424, 428, 440).
Oddly, Plaintiff’s records from January 2014 indicate he had been on oxycodone and methadone
for the last two years. (Tr. 492). Dr. Franco at Eastern Pain diagnosed Plaintiff with chronic
opioid drug usage, osteoarthritis, and musculoskeletal pain. (Tr. 491).
On January 30, 2014, Plaintiff reported to Dr. Charles Houston for another psychological
consultative examination, which was arranged by the DDS. (Tr. 483-84). Dr. Houston attempted
to assess Plaintiff’s intellectual functioning by administration of the WAIS-IV, but reported that
attempt was unsuccessful because Plaintiff was uncooperative. (Tr. 484). Plaintiff’s mother
reported that Plaintiff’s behavior was “childlike;” and that Plaintiff did not do household chores,
drive, or visit others, but instead spent most of the time playing with toy cars and soldiers. (Tr.
482-83). Dr. Houston offered a diagnosis of social anxiety disorder, with a rule-out diagnosis of
social phobia and probable depressive disorder. (Tr. 483-84).

In March 2014, state agency psychological consultant Angela Register, Ph.D., reported that
Plaintiff’s medical record was “fraught with inconsistencies.” (Tr. 128). She declined to give any
weight to the opinions of Dr. Houston or Dr. Gragg, given Plaintiff’s refusal to cooperate with
them. (Tr. 125-28).
Dr. Thomas Shafer treated Plaintiff from March 2014 to July 2015. (Tr. 510-33). On
March 6, 2014, Plaintiff initially presented to Dr. Shafer, seeking psychiatric treatment for
depression and anxiety. (Tr. 533). Plaintiff also reported he was experiencing pain in his back
and ribs that prevented him from sleeping. (Id.). Plaintiff reported he was working in construction
part-time. (Tr. 532-33, 587). Dr. Shafter wrote Plaintiff prescriptions for oxycodone, methadone,

Soma, Prozac, and Trazadone. (Tr. 510-33). Pharmacy records indicate that Plaintiff only filled
the prescription for oxycodone - from May 2014 to July 2015. (Tr. 373).
In January 2016, Alan Blotcky, Ph.D., evaluated Plaintiff at the request of Plaintiff’s
attorney. (Tr. 549-53). According to Dr. Blotcky, Plaintiff did not present with psychotic
symptoms. (Tr. 549). Plaintiff reported on several activities of daily living. For example, Plaintiff
spent most of his time watching television, needed help with bathing and dressing, could not cook,
performed no chores other than cleaning his room, did not have a driver’s license, and could not
use a cell phone. (Id.). Plaintiff reported that he had no friends, never had a girlfriend, liked
structure and routines, and became agitated when his routines were disrupted. (Id.). Plaintiff told
Dr. Blotcky that he was prescribed Prozac for depression, social anxiety, and chronic pain, but it
had no impact. (Id.). Plaintiff was appropriately attired, and did not seem depressed or anxious;
rather, Plaintiff appeared “primitive, distant, aloof, and in his own world.” (Tr. 550). Dr. Blotcky
reported that Plaintiff’s communication and social skills were poor, noting that his speech was
sparse and slow. (Id.). Dr. Blotcky opined that Plaintiff’s judgment was “impoverished” and his

insight “nil.” (Id.).
Dr. Blotcky administered and completed the WAIS-IV testing. (Tr. 550-51). Plaintiff
obtained a Verbal Comprehension Index of 58, a Perceptual Reasoning Index of 56, a Working
Memory Index of 58, a Processing Speed Index of 59, and a Full Scale IQ of 51. (Id.). Dr. Blotcky
indicated the Plaintiff’s scores fell in the lower end of the mildly retarded range of intellectual
abilities. (Id.). Dr. Blotcky diagnosed Plaintiff with autism spectrum disorder and mild mental
retardation. (Id.).
Plaintiff was next seen by Dr. Robert Nicke at Eastern Interventional Pain in September
2017. (Tr. 556). Dr. Nicke repeatedly documented concerns about narcotics use, noting: Plaintiff

“does not have the objective findings to support his prior ridiculous level of narcotic consumption,”
“[h]is eye contact and movement are furtive and this is not [consistent with] the type of behavior
I want displayed from opioid pain management patients,” “[h]e has been informed that his current
MRI findings do not justify his current narcotic usage and that these are medications he cannot
expect to be on for the rest of his life.” (Tr. 557, 566, 569, 572, 577). Dr. Nick further opined that
that fact that the “whole nuclear family is on this type of therapy, all with minimal to no objective
findings, is very concerning.” (Tr. 557).
III. ALJ Hearing
After an earlier remand from the Appeals Council, the ALJ held a hearing in Birmingham,
Alabama on October 11, 2017. (Tr. 10, 89-121). At the beginning of the hearing, the ALJ noted
that Plaintiff had not arrived. (Tr. 90). The ALJ also noted that Plaintiff had called earlier to say
he was almost there, but that had been “more than half an hour ago.” (Id.). As a result, the ALJ

determined she would send a Notice to Show Cause to Plaintiff, stating that the hearing would be
rescheduled or a supplemental hearing would be held if Plaintiff could provide good cause for his
absence. (Id.). Plaintiff finally arrived and the ALJ attempted to go forward. But, Plaintiff refused
to cooperate and would not be placed under oath. (Tr. 92). Plaintiff’s attorney stated, “It’s just
not a good day.” (Tr. 94). The ALJ said, “Well, I’m not going to reschedule it though, you know?
I’ll be happy to take some testimony from his mother.” (Tr. 94).
During the hearing, Plaintiff began answering questions, but he could not confirm that he
understood the difference between telling the truth and telling a lie. (Tr. 95). The ALJ then stated,
“[w]e’re not going to go forward.” (Id.). Plaintiff’s mother, Brenda Martinez, then testified. (Tr.

96-113). Plaintiff’s mother noted, “My memory is horrible.” (Tr. 96). When asked by the ALJ
about Plaintiff’s education, Plaintiff’s mother could not provide any evidence of Plaintiff’s
placement in a special education program. (Tr. 97-100). When asked what grade Plaintiff was in
when he left school, Plaintiff’s mother answered that “[i]t might have been the 8th or 9th.” (Tr.
101). Plaintiff’s mother mentioned Plaintiff went to the doctor about once a month, but could not
recall exactly. (Tr. 102) (“My memory—I forget everything, baby”). The ALJ asked why Plaintiff
could not work. Plaintiff’s mother replied, “I wished I knew names of things and could explain it
to you better, hun. But I’m not all there myself.” (Tr. 103). In regard to Plaintiff’s family,
Plaintiff’s mother noted that two of her children were blind and had another child who was “worse
than [Plaintiff].” (Tr. 112). She stated Plaintiff did not do well around strangers, had vomited
when they had trouble finding the hearing location, and had a history of exaggerating things, such
as Plaintiff’s idea that “he’s going to make millions of dollars.” (Tr. 108, 111). Plaintiff’s mother
reported that Plaintiff loved wrestling and his dog. (Tr. 107, 111). At the end of the hearing, the
ALJ said she would hold the record open for 12 days to allow the attorney to submit certain

additional medical records from the Eastern Interventional Clinic, and the claimant’s pharmacy
records. (Tr. 120).
IV. ALJ Decision
The Social Security Administration has established a five-part sequential evaluation
process for determining whether an individual is disabled. 20 C.F.R. § 404.1520(a). First, the
ALJ must determine whether the claimant is engaging in substantial gainful activity. 20 C.F.R. §
4041520(a)(4)(i). Substantial gainful activity (“SGA”) is defined as work activity that involves
doing significant physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity”
is work that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. §

404.1572(b). If the ALJ finds that the claimant engages in substantial gainful activity, then the
claimant cannot claim disability. 20 C.F.R. § 404.1520(b). Second, the ALJ must determine
whether the claimant has a medically determinable impairment that is “severe” or a combination
of impairments that is “severe.” 20 C.F.R. 404.1520(c). An impairment or combination of
impairments is “severe” within the meaning of the regulations if it significantly limits an
individual’s ability to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such
impairment, the claimant may not claim disability. Id. Third, the ALJ must determine whether
the claimant’s impairment or combination of impairments is of a severity to meet or medically
equal the criteria of an impairment listed in 20 C.F.R. § 404, Subpart Π, Appendix 1. See 20 C.F.R.
§§ 404.1520(d), 404.1525, and 404.1526. If such criteria are met, the claimant is declared
disabled. 20 C.F.R. § 1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared disabled under the
third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ must
first determine the claimant’s residual functional capacity (“RFC”), which refers to the claimant’s

ability to work despite the claimant’s impairments. 20 C.F.R. § 404.1520(e). In the fourth step,
the ALJ determines whether the claimant has the RFC to perform past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past relevant work,
then the claimant is deemed not disabled. Id. If the ALJ finds the claimant unable to perform past
relevant work, then the analysis proceeds to the fifth and final step. 20 C.F.R. § 404.1520(a)(4)(v).
In the final part of the analysis, the ALJ must determine whether the claimant is able to do any
other work considering his residual functional capacity age, education, and work experience. 20
C.F.R § 404.1520(g). Here, the burden of proof shifts from the claimant to the ALJ to prove the
existence, in significant numbers, of jobs in the national economy that the claimant can do given

the residual functional capacity, age, education, and work experience. 20 C.F.R. § 1512(f).
404.1560(c).
The ALJ followed the established five-step sequential evaluation process for determining
whether Plaintiff was disabled. (Tr. 11-28). First, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since November 22, 2013, the application date. (Tr. 13). Second, the
ALJ found that Plaintiff has the following severe impairments: degenerative disc disease, obesity,
and mental disorder(s). (Tr. 13-15). Third, the ALJ concluded that Plaintiff does not have an
impairment and/or combination of impairments that meet or medically equal the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 15-21). In reaching this
conclusion, the ALJ considered the severity of Plaintiff’s mental impairments, both “singly and in
combination,” as well as whether “paragraph B” and “paragraph C” criteria were satisfied. The
ALJ found that the record did not support a finding that Plaintiff satisfied the criteria. (Id.).
Fourth, the ALJ found that Plaintiff has the residual functional capacity to perform the light
work as defined in 20 CFR 404.157(b). (Tr. 22). The ALJ set forth the following work

specifications: (1) Plaintiff can understand, remember, and carry out simple work instructions, but
not those that are more detailed and more complex, (2) Plaintiff can adjust to occasional workplace
changes, (3) Plaintiff can never perform work requiring interaction with the general public, but
can occasionally interact with coworkers and supervisors, and (4) Plaintiff is capable of sustained
attention and concentration sufficient to perform work at this level for at least two hours during an
8-hour workday. (Id.). In making these findings, the ALJ considered all symptoms and the extent
to which those symptoms could reasonably be accepted as consistent with objective medical
evidence and other evidence. (Tr. 22). Finally, the ALJ considered the testimony of a vocational
expert and found that other work existed in significant numbers in the national economy that

Plaintiff could perform based on his age, education, past work experience, and RFC. (Tr. 27-28).
Because Plaintiff retained the ability to perform the work requirements of representative
occupations, such as a small parts assembler, electronics worker, and housekeeper, the ALJ found
that Plaintiff was not disabled under Section 1614(a)(3)(A) of the Act. (Id.).
V. Plaintiff’s Argument for Remand or Reversal
Plaintiff presents two arguments for review. He argues that (1) the ALJ’s failure or refusal
to reschedule the October 11, 2017 hearing to allow Plaintiff another opportunity to appear and
testify constitutes a failure to afford Plaintiff a full and fair hearing, and (2) the ALJ’s decision is
not supported by substantial evidence. (Pl.’s Br., Doc # 13, at 14, 19-20). The court addresses
both arguments together because in this context, they substantially overlap.
VI. Standard of Review
Judicial review of disability claims under the Act is limited to whether the Commissioner’s
decision is supported by substantial evidence or whether the correct legal standards were applied.

42 U.S.C. §405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). “Substantial
evidence is less than a preponderance, but rather such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th
Cir. 2005); see also Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990) (quoting Bloodsworth
v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)). The Commissioner’s factual findings are
conclusive when supported by substantial evidence. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th
Cir. 2001). If supported by substantial evidence, the Commissioner’s factual findings must be
affirmed, even if the record preponderates against the Commissioner’s findings. Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1159 (11th Cir. 2004); see also Martin, 894 F.2d at 1529.

Legal standards are reviewed de novo. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005).
VII. Discussion
For the reasons explained below, the court finds that the Commissioner based his decision
on substantial evidence and correct legal standards were applied. The decision, accordingly, is
due to be affirmed.
Plaintiff argues that the ALJ’s failure or refusal to reschedule the October 2017 hearing to
allow him another opportunity to appear constitutes a failure to afford him a full and fair hearing.
(Pl.’s Br., Doc # 13, at 14). In support of this contention, Plaintiff relies, in part, on a Sixth Circuit
decision,2 as well as two Northern District of Illinois decisions.3 (Pl. Br., Doc # 13, at 14-15). The
court is not persuaded.
A claimant is entitled to a full and fair hearing. Miles v. Charter, 84 F.3d 1397, 1400 (11th
Cir. 1996). But, this legal principle does not live in the abstract. Even when a hearing before an
ALJ is less than “totally satisfactory,” remand is unwarranted unless the claimant can show

prejudice. Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985); see also Graham v. Apfel, 129
F.3d 1420, 1422-23 (11th Cir. 1997) (a showing of prejudice must be made before a court will find
that a hearing violated a social security claimant's rights of due process to such a degree that the
case must be remanded to the [Commissioner] for further development of the record.). The
Eleventh Circuit has concluded that this required showing “at least” requires a demonstration that
the ALJ did not have all of the relevant evidence before her in the record, or that the ALJ did not
consider all of the evidence in the record in reaching her decision. Kelley, 761 F.2d at 1540.
Moreover, a presumption exists that judicial and quasi-judicial officers such as ALJs are unbiased.
Coley v. Comm'r of Soc. Sec., 771 F. App'x 913, 920 (11th Cir. 2019).

Here, although Plaintiff’s hearing may not have been totally satisfactory, he was a main
cause of that. But, the key point is this: Plaintiff has failed to demonstrate that the ALJ did not
possess the relevant evidence before her in the record, or that the ALJ failed to properly consider
the evidence in the record. Kelley, 761 F.2d at 1540. The ALJ considered the following: Plaintiff’s
“educational history, documentation regarding the claimant’s prior receipt of supplemental

2 See Stoner v. Secretary of Health and Human Servs., 837 F.2d 759 (6th Cir.1988). Notably, the Eleventh Circuit has
negatively referenced the Stoner decision in Sherrod v. Chater, 74 F.3d 243, 246 n.4 (11th Cir. 1996). In Sherrod,
the court noted Plaintiff’s misplaced reliance on Stoner, as the Stoner court's decision that Plaintiff’s due process rights
were violated turned on the fact that the claimant was unable to be at the hearing due to medical complications. Id.
The Sherrod plaintiff, like the current Plaintiff, were present and represented by counsel at the hearing. Accordingly,
this court also finds Plaintiff’s reliance on Stoner misplaced.

3 Binzen v. Barnhart, No. 01 C 2716, 2002 WL 31324061, at *7 (N.D. Ill. Oct. 16, 2002); see also White v.
Barnhart, 235 F. Supp. 2d 820, 827 (N.D. Ill. 2002).
security income, the three psychological evaluations [], the claimant’s treatment records, and
various statements made by the claimant and/or his mother.” (Tr. 16). The ALJ also considered
Plaintiff’s failed attempts to complete IQ testing, along with the successfully completed IQ testing
performed by Dr. Blotcky, and pharmacy printouts from Gross Drug Company, showing that
Plaintiff did not fill all of his prescriptions. (Tr. 17, 20). Treatment records included reports from

Dr. Boswell, which showed Plaintiff was able to complete new patient paperwork (Tr. 17), records
from Dr. Shafer and Dr. Gragg, which were “absent a showing of intellectual deficits,” but
containing “reports of consistent work activity,” (Tr. 21), as well as opinions rendered by Dr.
Blotcky, Dr. Houston, Dr. Nicke and Dr. Gragg as to Plaintiff’s mental functioning. (Tr. 19, 25).
In considering the breadth of medical and non-medical evidence, the ALJ noted that the
evidence contained “ongoing contradictions and inconsistencies” that “raise[d] significant
questions as to the veracity of allegations.” (Tr 23). When assessing Plaintiff’s education records,
the ALJ noted the lack of evidence of an individualized education plan, reports of intelligence
testing, or special education class records. (Tr. 14, 22). The ALJ also considered Plaintiff’s

mother’s statements that Plaintiff received child disability benefits based on attention deficit
disorder, although there was “no [other] evidence to support this allegation.” (Tr. 14). The ALJ
noted that Plaintiff’s mother’s statements submitted in the third-party function report “differ[ed]
significantly” from statements she made to Dr. Blotcky regarding Plaintiff’s activities of daily
living. (Tr. 17, 19). Moreover, the ALJ contrasted Plaintiff’s testimony at his first 2015 hearing,
where he testified “without difficulty” (Tr 18), with his behavior at the second hearing, even
though “no such behavior ha[d] ever been identified by any of [Plaintiff’s] treating physicians.”
(Tr. 18) (an affidavit submitted by Plaintiff’s mother after the 2015 hearing); (Tr. 27-28)
(testimony of the vocational expert). The court notes that the ALJ carefully considered the entire
record and it further concludes that substantial evidence supports the ALJ’s decision. (Tr. 13).
Ultimately, the ALJ concluded, based that the evidence of record did not contain “any diagnostic
findings, signs, symptoms, or laboratory results” to support a finding of disability (Tr. 15). As the
ALJ stated, “the documentation simply does not support the degree of functional limitation allege.”
(Tr. 16).

Plaintiff has failed to make the required showing of prejudice. Plaintiff merely speculates
that a third hearing would have provided him the opportunity to testify “without emotional
distress.” (Pl. Br. Doc. #13 at 18). Schweiker, 456 U.S. at 195-96; accord Coley, 771 F. App'x at
921 (a generalized speculation that Plaintiff was prejudiced is not enough to overcome the
presumption that the ALJ was unbiased). Plaintiff has also failed to demonstrate how a third
hearing would have changed the outcome, especially in light of the substantial evidence supporting
the ALJ’s decision, including the testimony Plaintiff’s mother provided at the hearing on behalf of
Plaintiff. See Kelley, 761 F.2d at 1540-41 (Plaintiff fails to show prejudice where Plaintiff fails to
indicate what facts could have been submitted that would have changed the outcome).

Plaintiff appears to argue that the ALJ’s comments during the hearing deprived him of a
full and fair hearing. (Pl. Br. Doc #13, at 14-17). At most, the ALJ’s comments indicate frustration
with Plaintiff’s uncooperativeness. Liteky v. United States, 510 U.S. 540, 556 (1994) (even where
a judge is “stern and short-tempered,” the judge’s “ordinary efforts at courtroom administration”
do not demonstrate inappropriate bias). Even if Plaintiff believes he received less than a “totally
satisfactory” hearing, remand is unwarranted because Plaintiff has not shown prejudice. Kelley,
761 F.2d at 1540. The Commissioner’s decision is supported by substantial evidence, and the
correct legal standards were applied. Wilson, 284 F.3d at 1221.
Vill. Conclusion
The court concludes that the ALJ’s determination that Plaintiff is not disabled is supported
by substantial evidence, and the proper legal standards were applied in reaching this determination.
The Commissioner’s final decision is therefore due to be AFFIRMED. A separate order in
accordance with this memorandum decision will be entered.
DONE and ORDERED this March 11, 2020.

□□ DAVID Zz. 24 2
UNITED STATES DISTRICT JUDGE

15

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9989318. Public record. Not legal advice.