McGee v. Social Security Administration, Commissioner

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

MIDDLE DIVISION

ANDREW MCGEE, )

)

Plaintiff, )

)

v. )

) No. 4:22-cv-01041-LSC

KILOLO KIJAKAZI, )

Acting Commissioner, )

Social Security Administration, )

)

Defendant. )

MEMORANDUM OF OPINION

I. Introduction

The plaintiff, Andrew McGee (“McGee” or “Plaintiff”), appeals from the

decision of the Commissioner of the Social Security Administration

(“Commissioner”) denying his applications for a period of disability, Supplemental

Security Income (“SSI”), and Disability Insurance Benefits (“DIB”). McGee timely

pursued and exhausted his administrative remedies and the decision of the

Commissioner is ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).

II. Background

McGee completed both his General Educational Development (“GED”) test

and specialized electronic engineering job training at a vocational school. (Tr. at

474.) Additionally, he enrolled in electronic engineering courses at a community

college but did not complete the degree. (Tr. at 105, 474.) He previously worked as

a motor vehicle assembler and a fast-food cook. (Tr. at 103–05, 118–19, 475.) He

was twenty-eight at the time of his application for a period of disability, DIB, and

SSI on January 22, 2020. (See Tr. at 126, 157, 221, 396.) McGee’s application for

benefits claimed a disability onset date of June 2, 2017. (Tr. at 127, 158, 189, 222.)

The Social Security Administration established a five-step sequential

evaluation process for determining whether an individual is disabled and thus

eligible for a period of disability, DIB, or SSI. See 20 C.F.R. §§ 404.1520, 416.920;

see also Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The evaluator will

follow the steps in order until making a finding of either disabled or not disabled; if

no finding is made under a particular step, the analysis will proceed to the next step.

See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The first step requires the evaluator

to determine whether the claimant is engaged in substantial gainful activity (“SGA”).

Id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not engaged in SGA, the

evaluator moves on to the next step.

The second step requires the evaluator to consider the combined severity of

the claimant’s medically determinable physical and mental impairments. Id. §§

404.1520(a)(4)(ii), 416.920(a)(4)(ii). An individual impairment or combination of

impairments that is not classified as “severe” and that does not satisfy the durational

requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 will result in a finding

of not disabled. Id. The decision depends on the medical evidence contained in the

record. See Hart v. Finch, 440 F.2d 1340, 1341 (5th Cir. 1971) (concluding that

“substantial medical evidence in the record” adequately supported the finding that

the claimant was not disabled).

Similarly, the third step requires the evaluator to consider whether the

claimant’s impairment or combination of impairments meets or medically equals

one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20

C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the criteria of a listed impairment

and the durational requirements set forth in 20 C.F.R. §§ 404.1509 and 416.909 are

satisfied, the evaluator will make a finding of disabled. Id.

If the claimant’s impairment or combination of impairments does not meet or

medically equal a listed impairment, the evaluator must determine the claimant’s

residual functional capacity (“RFC”) before proceeding to the fourth step. See 20

C.F.R. §§ 404.1520(e), 416.920(e). The fourth step requires the evaluator to

determine whether the claimant has the RFC to perform the requirements of his past

relevant work. See id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant’s

impairment or combination of impairments does not prevent him from performing

his past relevant work, the evaluator will make a finding of not disabled. Id.

The fifth and final step requires the evaluator to consider the claimant’s RFC,

age, education, and work experience in order to determine whether the claimant can

adjust to other work. Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can

perform other work, the evaluator will find him not disabled. Id.; see also 20 C.F.R.

§§ 404.1520(g), 416.920(g). If the claimant cannot perform other work, the evaluator

will find him disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g),

416.920(a)(4)(v), 416.920(g).

Applying the sequential evaluation process, the Administrative Law Judge

(“ALJ”) found that Plaintiff has not engaged in SGA since his alleged disability

onset date. (Tr. at 13–14.) Next, the ALJ found that Plaintiff has seven severe

impairments: “obesity, Asperger’s syndrome, panic disorder, depression, labral tear

of right shoulder, loss of vision of the left eye, and degenerative disc disease.” (See

Tr. at 14.) The ALJ also found that Plaintiff does not have an impairment or

combination of impairments that meets or medically equals the listed impairments

in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. at 14–18.) Following this

determination, the ALJ established that Plaintiff has the following RFC:

to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)

except he should never climb ladders, ropes or scaffolds; he can

frequently reach overhead and laterally with the right upper extremity;

he can frequently handle and finger with his bilateral upper extremities;

he can have only occasional exposure to extremes of cold and full body

vibration[;] he should have no exposure to hazards such as unprotected

heights and hazardous machinery; he would be able to perform job

duties that do not require precise depth perception (i.e., threading a

needle); he could perform jobs that do not require peripheral vision on

the left side[;] he would be able to recognize ordinary hazards in the

workplace such as doors ajar, approaching vehicles and boxes on the

floor; he would be able to understand, remember, and carry out simple

instructions and tasks[;] he could tolerate changes in the workplace that

are infrequent and gradually introduced; he can have occasional work-

related interaction with supervisors and coworkers and no contact with

the general public.

(Tr. at 19.)

The ALJ determined that Plaintiff is unable to perform any of his past relevant

work. (Tr. at 32.) The ALJ also established that Plaintiff was a “younger individual”

at twenty-five years old on his original alleged disability onset date and has a high

school education. (Id.) However, the ALJ also concluded that the “[t]ransferability

of job skills is not material to the determination of disability [in this case] because

using the Medical-Vocational Rules as a framework supports a finding that the

claimant is ‘not disabled,’ whether or not the claimant has transferable job skills.”

(Tr. at 33.)

The ALJ enlisted a vocational expert (“VE”). Considering Plaintiff’s age,

education, work experience, and RFC in conjunction with the Medical-Vocational

Guidelines, the VE found that there are a significant number of jobs in the national

economy Plaintiff could perform, such as mail sorter, final inspector, and injection

molding machine tender. (Tr. at 33–34.) The ALJ concluded Plaintiff “ha[d] not

been under a disability, as defined in the Social Security Act, from June 2, 2017,”

which was Plaintiff’s original alleged disability onset date, through November 15,

2021, the date of the ALJ’s decision. (Tr. at 34.)

III. Standard of Review

This Court’s role in reviewing claims brought under the Social Security Act

is a narrow one. The scope of its review is limited to determining (1) whether there

is substantial evidence in the record as a whole to support the findings of the

Commissioner and (2) whether the correct legal standards were applied. See Stone

v. Comm’r of Soc. Sec., 544 F. App’x 839, 841 (11th Cir. 2013) (citing Crawford v.

Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004)). This Court gives

deference to the factual findings of the Commissioner, provided that those findings

are supported by substantial evidence but applies close scrutiny to the legal

conclusions. See Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996).

Nonetheless, this Court may not decide facts, weigh evidence, or substitute its

judgment for that of the Commissioner. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th

Cir. 2005) (quoting Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)).

“The substantial evidence standard permits administrative decision makers to act

with considerable latitude, and ‘the possibility of drawing two inconsistent

conclusions from the evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence.’” Parker v. Bowen, 793 F.2d 1177,

1181 (11th Cir. 1986) (Gibson, J., dissenting) (quoting Consolo v. Fed. Mar.

Comm’n, 383 U.S. 607, 620 (1966)). Indeed, even if this Court finds that the proof

preponderates against the Commissioner’s decision, it must affirm if the decision is

supported by substantial evidence. See Miles, 84 F.3d at 1400 (citing Martin v.

Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

However, no decision is automatic, for “despite th[e] deferential standard [for

review of claims], it is imperative that th[is] Court scrutinize the record in its entirety

to determine the reasonableness of the decision reached.” Bridges v. Bowen, 815

F.2d 622, 624 (11th Cir. 1987) (citing Arnold v. Heckler, 732 F.2d 881, 883 (11th

Cir. 1984)). Moreover, failure to apply the correct legal standards is grounds for

reversal. Bowen v. Heckler, 748 F.2d 629, 635 (11th Cir. 1984) (citing Wiggins v.

Schweiker, 679 F.2d 1387, 1389 (11th Cir. 1989)).

IV. Discussion

Plaintiff argues that the ALJ’s decision should be reversed and remanded for

four reasons: (1) the ALJ did not properly determine that Plaintiff’s hand and neck

tremors and his anxiety are a severe impairment, (2) the ALJ did not pose a complete

hypothetical question to the VE, (3) the ALJ improperly discounted and did not fully

consider the testimony of June Nichols, Psy. D., Plaintiff’s treating physician, and

(4) the ALJ did not consider the combined effects of Plaintiff’s physical and mental

impairments.

a. The ALJ properly considered Plaintiff’s hand and neck tremors

and anxiety.

Plaintiff first argues that the ALJ erroneously found his hand and neck tremors

not to be a severe impairment. (Doc. 14 at 17.) At step two, the ALJ had to determine

whether Plaintiff had a medically determinable impairment or combination of

impairments that is “severe.” 20 C.F.R. §§ 404.1520(c), 416.920(c). The burden of

showing that an impairment is “severe” rests at all times with Plaintiff. Turner v.

Comm’r of Soc. Sec., 182 F. App’x 946, 948 (11th Cir. 2006) (citing Jones v. Apfel,

190 F.3d 1224, 1228 (11th Cir. 1999)). The second step of the process “acts as a

filter.” Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987). Therefore, if the ALJ

finds one severe impairment, they will continue to the next step of the process. See

id. “Nothing requires that the ALJ must identify, at step two, all of the impairments

that should be considered severe.” Heatly v. Comm'r of Soc. Sec., 382 F. App'x 823,

825 (11th Cir. 2010).

The ALJ found numerous severe impairments: “obesity, Asperger’s

syndrome, panic disorder, depression, labral tear of right shoulder, loss of vision of

the left eye, and degenerative disc disease.” (Tr. at 14.) As discussed above, the ALJ

is not required to find all severe impairments. See Heatly, 382 F. App’x at 825.

Moreover, an impairment must be medically determinable before it can be

found to be severe. See 20 C.F.R. §§ 404.1520, 416.920. To be medically

determinable, it must be demonstrated by objective medical evidence. See id. §§

404.1521, 416.921; see also 42 U.S.C. § 423(d)(5)(A) (“An individual's statement as

to pain or other symptoms shall not alone be conclusive evidence of disability . . . ;

there must be medical . . . findings, established by medically acceptable clinical or

laboratory diagnostic techniques, which show the existence of a medical impairment

that results from anatomical, physiological, or psychological abnormalities.”)

The only mention of Plaintiff’s tremors is in his application and transcript of

the oral hearing. (See Tr. at 114, 116, 128.) For example, when he visited Childrens

Health System on June 27, 2007, Plaintiff’s mother completed a form to disclose all

symptoms experienced by Plaintiff. (See Tr. at 742.) She specifically did not mark

Plaintiff experienced any tremors. (Id.) More recently, Plaintiff visited consulting

physician Dr. Russell Stanley, D.O. for a physical exam on September 19, 2020.

(See Tr. at 1051–59.) In the evaluating notes, Plaintiff stated he frequently dropped

things with his hands. (Tr. at 1052.) However, in Dr. Stanley’s review of Plaintiff’s

systems, he noted “[n]o headache, dizziness, syncope, seizure history, [or] tremor .

. . .” (Tr. at 1053.) Dr. Samuel Fleming, PhD, who was also a consulting psychology

physician for Plaintiff, included in his notes from a visit on August 19, 2020, that

“[n]o unusual mannerisms or motor activity were noted.” (Tr. at 1047.) Lastly,

according to Plaintiff’s brief, the shaking appears to happen during Plaintiff’s panic

attacks (Doc. 14 at 18), and the ALJ found the panic attacks to be a severe

impairment. (Tr. at 14.) Therefore, it is unclear that Plaintiff’s shaking is distinctly

different from his panic attacks. And, to the extent the two are different, there is no

objective medical evidence in the record to support Plaintiff’s claims of hand and

neck tremors.

The same standard applies to Plaintiff’s anxiety. However, unlike the hand

and neck tremors, there is objective medical evidence in the record. For example,

during Dr. Stanley’s physical exam on September 19, 2020, he noted Plaintiff was

“[p]ositive for anxiety.” (Tr. at 1053.) Dr. Fleming echoed those concerns during

Plaintiff’s visit on August 19, 2020, writing that Plaintiff has “social interaction

problems” and that Plaintiff “stated that he becomes anxious in large groups.” (Tr.

at 1048.) Moreover, Plaintiff’s one-time primary care physician, Dr. John Raines,

D.O., assessed Plaintiff during a visit on May 8, 2017, and diagnosed him with

“Generalized Anxiety Disorder.” (Tr. at 1077–78.)

However, as discussed above, the ALJ is not required to find all severe

impairments. Any error by the ALJ in omitting Plaintiff’s anxiety from the list of

severe impairments was harmless because she found other severe impairments,

proceeded to step three, and considered all of Plaintiff’s impairments in determining

whether Plaintiff had a listed impairment. See Vangile v. Comm'r, Soc. Sec. Admin.,

695 F. App'x 510, 514 (11th Cir. 2017) (finding that “any step two error the ALJ

may have committed by failing to explicitly mention [the claimant’s] chronic

mastoiditis was harmless because she found two other severe impairments,”

proceeded to step three of the analysis, and considered all of the claimant’s

impairments—including the one omitted at step two—in determining that the

claimant did not have a “combination of impairments” that met or was medically

equal in severity to one of the listed impairments).

The ALJ considered Plaintiff’s anxiety at both step three and step four. For

example, when determining Plaintiff has a moderate limitation when interacting with

others, the ALJ considered Plaintiff’s allegations of “nervousness, anxiousness,

intolerance of social activity, and panic attacks.” (Tr. at 15.) At step four, the ALJ

noted the symptoms Plaintiff endorsed, including anxiety. (Tr. at 20.) Therefore, the

ALJ considered Plaintiff’s anxiety at the other steps in the process, and she did not

commit a reversible error.

For the reasons detailed above, this Court finds there was substantial evidence

for the ALJ to find that Plaintiff’s hand and neck tremors were not a severe

impairment. Further, the ALJ properly considered Plaintiff’s anxiety throughout the

five-step process. Thus, this Court will not disturb the decision of the ALJ.

b. The ALJ posed a complete hypothetical question to the VE.

Plaintiff alleges the ALJ erred by failing to comprehensively describe his

“anxiety impairment, including his hand and neck tremors.” (Doc. 14 at 18.) The

hypothetical question to the VE stems from the ALJ’s determination of Plaintiff’s

RFC. See 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). A claimant’s RFC

reflects his ability to perform “work-related physical and mental activities in a work

setting” within a forty-hour work week in light of his “functional limitations and

restrictions that result from an individual’s medically determinable impairment or

combination of impairments, including the impact of any related symptoms.” SSR

96-8p, 1996 WL 374184, at *1 (July 2, 1996); see also 20 C.F.R. §§ 404.1520(e),

416.920(e). “RFC is not the least an individual can do despite his or her limitations

or restrictions, but the most.” SSR 96-8p, 1996 WL 374184, at *1 (emphasis in

original). The ALJ bases a claimant’s RFC on all the evidence in the record,

including information about the claimant’s symptoms and medical opinions. Id. at

*2. Moreover, the determination of a claimant’s RFC lies within the sole purview of

the ALJ, not the doctors providing medical opinions or other evidence. Robinson v.

Astrue, 365 F. App’x 993, 999 (11th Cir. 2010) (“[T]he task of determining a

claimant's [RFC] and ability to work is within the province of the ALJ, not of

doctors.”).

Therefore, after determining the plaintiff’s RFC, the ALJ poses the

hypothetical question to the VE. When the ALJ poses a hypothetical consistent with

an RFC that is supported by substantial evidence, the ALJ does not err in posing that

hypothetical. Bouie v. Astrue, 226 F. App'x 892, 895 (11th Cir. 2007). However, in

the hypothetical question, the ALJ is not required to include functional limitations

she properly rejected as unsupported. See McSwain v. Bowen, 814 F.2d 617, 619–20

& n.1 (11th Cir. 1987); Martinson v. Shalala, 843 F. Supp. 1448, 1450–51 (M.D.

Fla. 1994) (approving hypothetical questions relying on “objective medical

testimony” of plaintiff's physicians but disregarding plaintiff's complaints of pain,

which were found to be incredible).

Similar to the reasoning that the ALJ did not err in finding the tremors or

anxiety not to be severe impairments, the ALJ was not required to include the

tremors in the RFC because the alleged impairment lacked objective medical

evidence. See Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir.

2004). However, as described above, the ALJ must consider the Plaintiff’s anxiety

as it relates to his ability to work. See Wind v. Barnhart, 133 F. App'x 684, 690 (11th

Cir. 2005). Here, the ALJ considered anxiety-related restrictions in the RFC. For

example, she included a limitation that Plaintiff could “tolerate changes in the

workplace that are infrequent and gradually introduced.” (Tr. at 19.) This conclusion

resulted from findings from Dr. Fleming and Dr. Raines. (Tr. at 21–22.) The two

doctors, as previously mentioned, considered Plaintiff’s struggles with anxiety. (See

Tr. at 992, 1047, 1049.) Also, Plaintiff can only have “occasional work-related

interaction with supervisors and coworkers and no contact with the general public.”

(Tr. at 19.) In addition to the opinions from Dr. Fleming, the ALJ stated the

conclusions were consistent with opinions from the state agency psychological

consultants. (Tr. at 27.) Dr. Harold Veits, M.D., a consulting physician at the state

level, reviewed the submitted evidence on September 3, 2020, and concluded

Plaintiff had a moderate limitation interacting with peers and supervisors. (See Tr.

at 151.) Another consulting physician at the state level, Dr. Teresa Moran, M.D.,

concurred with the conclusion after reviewing the evidence on February 16, 2021.

(See Tr. at 215.)

The ALJ properly included work-related restrictions, supported by the

medical record, in the RFC. Relying on the RFC, the ALJ posed a complete

hypothetical question to the VE; therefore, the ALJ did not err.

c. The ALJ did not improperly discount Dr. Nichols’s opinion.

i. Weight of the Doctor’s Opinion

First, Plaintiff alleged the ALJ did not give proper weight to Dr. Nichols’s

conclusions. (See Doc. 14 at 19.) The ALJ “will not defer or give any specific

evidentiary weight, including controlling weight, to any medical opinion(s) or prior

administrative medical finding(s).” 20 C.F.R. §§ 404.1520c(a). In evaluating

medical opinions and prior administrative medical findings, the ALJ will consider

the following: supportability, consistency, relationship with the claimant, length of

the treatment relationship, frequency of examinations, purpose of the treatment

relationship, extent of the treatment relationship, examining relationship

specialization, and other factors. 20 C.F.R. §§ 404.1520c(c), 416.920c(c). While the

ALJ must explain the role of the supportability and consistency factors in evaluating

the opinion of a medical source or administrative medical finding, she is not required

to do the same for the other factors. Id. §§ 404.1520c(b)(2), 416.920c(b)(2).

Supportability and consistency are the “most important factors” to determine

the persuasiveness of a medical opinion. Id. For supportability, “[t]he more relevant

the objective medical evidence and supporting explanations presented by a medical

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

finding(s), the more persuasive the medical opinions or prior administrative medical

finding(s) will be.” Id. §§ 404.1520c(c)(1), 416.920c(c)(1). For consistency, “[t] he

more consistent a medical opinion[] or prior administrative medical finding[] is with

the evidence from other medical sources and nonmedical sources in the claim, the

more persuasive the medical opinion[] or prior administrative medical finding[] will

be.” Id. §§ 404.1520c(c)(2), 416.920c(c)(2).

The ALJ properly considered Dr. Nichols’s testimony and substantial

evidence supports her findings. First, the ALJ explained Dr. Nichols’s conclusions

were not “adequately supported.” (Tr. at 30.) Plaintiff visited Dr. Nichols for a

consulting psychological evaluation on September 29, 2021. (See Tr. at 1388.) After,

she filled out a separate form entitled “Mental Health Source Statement” on October

13, 2021. (See Tr. at 1393.) Dr. Nichols seemingly contradicted herself between her

exam notes and the later form. In her psychological evaluation notes, she described

Plaintiff as “neat and clean.” (Tr. at 1390.) However, on the “Mental Health Source

Statement,” she circled an answer that indicated Plaintiff could not perform basic

standards of neatness and failed to describe what led to that conclusion. (See Tr. at

1393.) The ALJ pointed out this contradiction when considering Dr. Nichols’s

opinion. (Tr. at 31.)

Even for the conclusions that do not directly contradict themselves, Dr.

Nichols failed to adequately explain her conclusions and to support them with

objective medical evidence. See 20 C.F.R. § 404.1520c(c)(1). On the form, there are

thirteen questions. (Tr. at 1393.) The entire form does not have a single word of

explanation covering the reasons she circled “yes” or “no.” (See id.) Therefore, the

ALJ correctly considered the lack of explanation from Dr. Nichols under the

supportability factor in determining that her conclusions were not as persuasive as

the opinion of other doctors.

Additionally, the ALJ explained the consistency factor, which also weighed

against Dr. Nichols’s conclusions. (See Tr. at 31.) For example, during her

evaluation on September 29, 2021, Dr. Nichols stated the Plaintiff “cannot interact

with supervision.” (Tr. at 1391.) Plaintiff worked at Five Guys for three years, where

Plaintiff started out as a “normal employee” but moved up to “hospitality manager.”

(Tr. at 103.) In these roles, Plaintiff managed other employees, counted money, and

placed the money in a safe. (Id.) The ALJ concluded job requirements Plaintiff

performed were not consistent with the “extreme limitations” put forth by Dr.

Nichols. (Tr. at 31.) Moreover, Dr. Nichols stated Plaintiff could not “adhere to basic

standards of neatness and cleanliness.” (Tr. at 1391.) However, during a visit with

Dr. Fleming on August 19, 2020, Plaintiff had “adequate” personal hygiene. (Tr. at

1047.) Dr. Fleming also concluded Plaintiff has only a “mild” limitation in his

“[a]bility to manage basic care.” (Tr. at 1050.)

Therefore, the ALJ explained her considerations when analyzing the

supportability and consistency factors. And her analysis and conclusions are

supported by substantial evidence. For these reasons, this Court will not disturb the

decision of the ALJ.

ii. Duty to Recontact the Doctor

Plaintiff alleges the ALJ erred by not recontacting Dr. Nichols for further

explanation. (Doc 14. at 19–20.) In all Social Security Disability cases, the plaintiff

bears the ultimate burden of proving disability and is responsible for furnishing or

identifying medical and other evidence regarding his impairments. Doughty, 245

F.3d. at 1280; 42 U.S.C. § 423(d)(5)(A). Furthermore, “[i]t is not unreasonable to

require the claimant, who is in a better position to provide information about his own

medical condition, to do so.” See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

However, the ALJ is “tasked not only with the obligation to consider the reasons

offered by both sides, but also with actively developing the record in the case.”

Washington v. Comm’r of Soc. Sec., 906 F.3d 1353, 1356 (11th Cir. 2018).

Before remanding for further development of the record, a reviewing court

must consider “whether the record reveals evidentiary gaps which result in

unfairness or ‘clear prejudice.’” Smith v. Schweiker, 677 F.2d 826, 830 (11th Cir.

1982) (quoting Ware v. Schweiker, 651 F.2d 408, 413 (5th Cir. 1981)). “[A]lthough

the ALJ has a duty to develop a full and fair record, there must be a showing of

prejudice before [a reviewing court] will remand for further development of the

record.” Robinson, 365 Fed. App’x at 995 (citing Brown v. Shalala, 44 F.3d 931,

935 (11th Cir. 1995)).

Plaintiff places the burden on the ALJ to recontact Dr. Nichols regarding her

conclusory statements. (See Doc. 14 at 19–20.) But the nature of the relationship—

and precedent—mandate the opposite conclusion. To begin with, Plaintiff is a

patient of Dr. Nichols and therefore has direct contact with the medical provider and

access to all records. (See Tr. at 23, 1388–93.) Additionally, the ALJ pointed out that

Plaintiff’s attorney crafted the form for Dr. Nichols to fill out. (Tr. at 30.) This shows

that not only did Plaintiff have contact with the doctor, so did Plaintiff’s lawyer. The

attorney could have easily recontacted Dr. Nichols to gather more objective medical

evidence before submitting the report. Therefore, the sufficiency of the medical

evidence provided to prove a disability and to support Dr. Nichols’s conclusion lies

solely on Plaintiff’s shoulders—not the ALJ. Even if Plaintiff did not bear the burden

of proving any disabilities, he has not demonstrated any prejudice. Therefore, the

ALJ did not err in failing to recontact Dr. Nichols.

iii. ALJ’s Alleged Bias

Plaintiff also alleges the ALJ was biased. (Doc 14. at 23.) As discussed above,

a claimant is entitled to a full and fair hearing. Clark v. Schweiker, 652 F.2d 399,

404 (5th Cir. 1981). “An administrative law judge shall not conduct a hearing if he

or she is prejudiced or partial with respect to any party or has any interest in the

matter pending for decision.” 20 C.F.R. § 404.940. If there is bias, the claimant is

entitled to an unbiased reconsideration of his application for benefits before a

different ALJ. Miles, 84 F.3d at 1401. However, “[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) (citing Schweiker v. McClure, 456 U.S. 188,

195 (1982)). While a conflict of interest or other specific reasons demonstrate bias,

generalized accusations are not enough. Id. And the party claiming bias bears the

burden of proving the assertion. Id.

First, Plaintiff likely waived this argument, as the Commissioner points out.

(See Doc. 19 at 17.) The regulation demands a plaintiff to raise concerns of ALJ bias

to the ALJ at the “earliest opportunity.” See 20 C.F.R. § 404.940. The “earliest

opportunity” to present the allegations of bias was before the Appeals Council. See

Miles, 84 F.3d at 1400–01 (noting the Appeals Council was the earliest opportunity

to bring allegations of bias based on an ALJ opinion). Plaintiff did not raise the issue.

(See Tr. at 357–60.) However, the allegations of bias stem from the ALJ’s opinion,

after all proceedings with the ALJ concluded. (See Doc. 14 at 19–22.) Therefore,

Plaintiff could not raise the issue to the ALJ, as specifically demanded by the

regulations. Nevertheless, Plaintiff should have presented the allegations of bias to

the Appeals Council. Because Plaintiff did not raise the issue to the Appeals Council,

he likely waived it.

Notwithstanding the waiver issue, Plaintiff’s assertion lacks merit. Plaintiff

contends that the ALJ made “critical remarks” about Plaintiff’s attorney in her

opinion. (Doc. 14 at 21.) The Supreme Court has said that “[j]udicial remarks during

the course of a trial that are critical or disapproving of, or even hostile to, counsel,

the parties, or their cases, ordinarily do not support a bias or partiality challenge.”

Liteky v. United States, 510 U.S. 540, 555 (1994). Further, “expressions of

impatience, dissatisfaction, annoyance, and even anger, that are within the bounds

of what imperfect men and women . . . sometimes display” do not solely establish

bias. Id. at 555–56. Therefore, a showing of prejudice “at least requires a showing

that the ALJ did not have all of the relevant evidence before him . . . , or that the ALJ

did not consider all of the evidence in the record in reaching his decision.” Kelley v.

Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985).

Plaintiff is undoubtedly entitled to a fair hearing. However, his allegations of

bias concerning the ALJ’s “critical remarks” and belief the ALJ should have

recontacted Dr. Nichols are not enough to overcome the presumption the ALJ is

unbiased. As explained above, critical remarks are not enough. Further, the remarks

made by the ALJ were arguably not “critical” of Plaintiff’s attorney. Rather, the ALJ

observed that the Plaintiff switched doctors and that Plaintiff’s attorney created the

forms filled out by Dr. Nichols. (Tr. at 22, 24, 30.) The record contains this

information. (See Tr. at 1308.) Furthermore, as explained above, the ALJ did not

have a duty to recontact Dr. Nichols about information Plaintiff had the burden of

providing. Therefore, that cannot establish bias either.

To prove his point, Plaintiff relies on Miles. 84 F.3d at 1400, see Doc. 14 at

21. However, his reliance is misguided. In Miles, the ALJ used outside experiences

to make incorrect, conclusory statements about the plaintiff. See Miles, 84 F.3d at

1399–1401. As the Plaintiff admits, the ALJ did not improperly look outside the

record in this case. (Doc. 14 at 21.) Therefore, Miles is not similar to the facts in this

case. Plaintiff provides scant evidence of bias, let alone enough to overcome the

presumption that ALJs are not biased.

d. The ALJ properly considered the impact of the combination of

Plaintiff’s impairments.

Finally, Plaintiff argues that the ALJ erred by not finding him disabled based

on a combination of physical and mental impairments. (Doc. 14 at 23.) When “a

claimant has alleged a multitude of impairments, a claim for social security benefits

may lie even though none of the impairments, considered individually, is disabling.”

Walker v. Bowen, 826 F.2d 996, 1001 (11th Cir. 1987) (quoting Bowen v. Heckler,

748 F.2d 629, 635 (11th Cir. 1984)). The ALJ’s findings must be “specific and well-

articulated.” Id. The Eleventh Circuit has “repeatedly held that an ALJ's finding

regarding a claimant's ‘impairment or combination of impairments’ established that

the ALJ had indeed considered the impact of the claimant's combined impairments.”

Reliford v. Barnhart, 157 F. App'x 194, 196 (11th Cir. 2005) (citing Wilson v.

Barnhart, 284 F.3d 1219, 1224–25 (11th Cir. 2002)); see also Hutchinson v. Astrue,

408 F. App’x. 324, 327 (11th Cir. 2012) (“The ALJ specifically stated that

Hutchinson did not have an ‘impairment, individually or in combination’ that met

one of the listed impairments in evaluating step three of the process. That statement

shows that the ALJ considered the combined effects of Hutchinson's impairments

during her evaluation.”).

The ALJ expressly stated that she considered the combination of multiple

impairments. First, the ALJ noted that Plaintiff did not allege “any particular

impairment or combination of impairments” that met the required standard. (Tr. at

14.) The ALJ opined that her own analysis of Plaintiff’s alleged “impairment or

combination of impairments” did not meet the threshold of listed impairments at step

three. (Id.) Further, the ALJ reached the conclusion that none of Plaintiff’s mental

impairments considered in combination met the “criteria of listings 12.04, 12.06, and

12.10.” (Id.) At step four, the ALJ took a similar approach when crafting the RFC.

(See Tr. at 20.) The ALJ listed each impairment Plaintiff claimed when applying for

benefits. (Tr. at 19.) The ALJ again noted she considered an impairment “alone and

in combination with other impairments.” (Tr. at 20.) Lastly, at step four, the ALJ

stated the mental impairments “have been considered together.” (Tr. at 26.) The

ALJ’s statements—just like the ALJ’s statements in Hutchinson—show that she

considered the combined effects of Plaintiff's impairments. Therefore, she did not

err.

Vv. Conclusion

Upon review of the administrative record, and considering Plaintiffs

argument, this Court finds the Commissioner’s decision is supported by substantial

evidence and is in accordance with the applicable law. For the foregoing reasons,

this Court hereby AFFIRMS the Commissioner’s decision.

DONE and ORDERED on November 6, 2023.

Xe

United States DistWét Judge

215708

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