# McGee v. Social Security Administration, Commissioner

> District Court, N.D. Alabama · November 6, 2023

URL: https://www.frixlaw.com/law-library/cases/9991902

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** November 6, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9991902

## How later opinions describe it (automated extraction)

- concluding that “substantial medical evidence in the record” adequately supported the finding that the claimant was not disabled

## Opinion text

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

Page 23 of 23

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9991902. Public record. Not legal advice.