Hampton v. Social Security Administration, Commissioner

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

JASPER DIVISION

LORENZO KYLE HAMPTON, )

)

Plaintiff, )

)

v. ) Case No.: 6:22-cv-1226-JHE

)

KILOLO KIJAKAZI, ACTING )

COMMISSIONER OF SOCIAL SECURITY )

ADMINISTRATION, )

)

Defendant.

MEMORANDUM OPINION

Plaintiff Lorenzo Kyle Hampton, acting through counsel, seeks review pursuant to §§

205(g) and 1631(c)(3) of the Social Security Act (“Act”), 42 U.S.C. §§ 405(g), 1383(c)(3), of a

final decision of the Commissioner of the Social Security Administration (“Commissioner”)

denying an application for supplemental security income (“SSI”). (Doc. 1)1. The Commissioner

has filed an answer that includes the administrative record. (Doc. 9). The parties have consented

to an exercise of plenary jurisdiction by a United States Magistrate Judge pursuant to 28 U.S.C. §

636(c). (Doc. 11). Each side has filed a brief setting out their respective positions on the

Commissioner’s decision (Doc. 12, Plaintiff’s Brief (“Pl. Brief”); Doc. 13, Commissioner’s Brief

(“Comm’r Brief”)), and Plaintiff has also filed a reply brief. (Doc. 14, Plaintiff’s Reply (“Pl.

Reply”). For the reasons stated below, the Commissioner’s decision is due to be affirmed.

1 References to “Doc(s) ___” are to the document number(s) of the pleadings, motions, orders, exhibits, and other

materials in the court file, as compiled and enumerated on the docket sheet by the Clerk.

I. Procedural History

On April 2, 2019, Plaintiff applied for SSI under Title XVI of the Act, with a protective

filing date of October 1, 1998. (See Tr. 65-66, 318, 343)2. His claim was denied at the initial

level. (Tr. 124-49). Plaintiff was granted a hearing before an Administrative Law Judge (“ALJ”)

on September 9, 2021, at which Plaintiff was represented by his current legal counsel. (Tr. 60-

89). Plaintiff stipulated at the hearing to an amended alleged onset date corresponding to the date

of his protective filing. (Tr. 65-66). After that hearing, Plaintiff received updated medical records

and was granted a supplemental hearing before the ALJ, held on February 3, 2022. (Tr. 41-59).

On February 15, 2022, the ALJ issued a decision finding that Plaintiff was not disabled and thus

not entitled to SSI. (Tr. 12-34). The Appeals Council denied review. (Tr. 1-6). Plaintiff filed this

civil action on September 20, 2022. (Doc. 1).

II. Standard of Review

The court’s review of the Commissioner’s decision is narrowly circumscribed. The

function of this court is to determine whether the decision of the Commissioner is supported by

substantial evidence and whether proper legal standards were applied. Richardson v. Perales, 402

U.S. 389, 390 (1971); Wilson v. Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). This court must

“scrutinize the record as a whole to determine if the decision reached is reasonable and supported

by substantial evidence.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

Substantial evidence is “such relevant evidence as a reasonable person would accept as adequate

to support a conclusion.” Id. It is “more than a scintilla, but less than a preponderance.” Id.; see

2 References to “Tr. __” are to the page(s) of the administrative transcript, found in Doc. 9-3 (Tr. 1-89), Doc. 9-4

(Tr. 90-149), Doc. 9-5 (Tr. 150-237), Doc. 9-6 (Tr. 238-315), Doc. 9-7 (Tr. 316-342), Doc. 9-8 (Tr. 343-442), Doc.

9-9 (Tr. 443-658); Doc. 9-10 (Tr. 659-742), Doc. 9-11 (Tr. 743-797), Doc. 9-12 (Tr. 798-805), Doc. 9-13 (Tr. 806-

812), Doc. 9-14 (Tr. 813-819), and Doc. 9-15 (Tr. 820-902). See also Doc. 9-2, which contains an index of items in

the administrative transcript.

also Biestek v. Berryhill, 587 U.S. ___, ___, 139 S. Ct. 1148, 1154 (2019).

“Substantial evidence may even exist contrary to the findings of the ALJ, and [the

reviewing court] may have taken a different view of it as a factfinder. Yet, if there is substantially

supportive evidence, the findings cannot be overturned.” Barron v. Sullivan, 924 F.2d 227, 230

(11th Cir. 1991). However, the court reviews the ALJ’s legal conclusions de novo because no

presumption of validity attaches to the ALJ’s determination of the proper legal standards to be

applied. Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993). If the court finds an error in the

ALJ’s application of the law, or if the ALJ fails to provide the court with sufficient reasoning for

determining the proper legal analysis has been conducted, it must reverse the ALJ’s decision.

Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991).

III. Statutory and Regulatory Framework

To qualify for benefits and establish entitlement for a period of disability, a claimant must

be disabled as defined by the Act and its implementing regulations. The regulations define

“disabled” as “the inability to do any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death or which has

lasted or can be expected to last for a continuous period of not less than 12 months.” 20 C.F.R. §

416.905(a). To establish entitlement to SSI, a claimant must provide evidence of a “physical or

mental impairment” which “must result from anatomical, physiological, or psychological

abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic

techniques.” 20 C.F.R. § 416.921(a) .

The Regulations provide a five-step process for determining whether a claimant is disabled.

20 C.F.R. § 416.920(a)(4)(i-v). The Commissioner must determine in sequence:

(1) whether the claimant is engaged in substantial gainful activity

(2) whether the claimant has a severe impairment;

(3) whether the claimant’s impairment meets or equals an impairment listed by the SSA;

(4) whether the claimant can perform his or her past work; and

(5) whether the claimant is capable of performing any work in the national economy.

Viverette v. Comm’r of Soc. Sec., 13 F.4th 1309, 1312 (11th Cir. 2021). If a claimant satisfies

Steps One and Two, he or she is automatically found disabled if he or she suffers from a listed

impairment. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). “Once a claimant proves that

she can no longer perform her past relevant work, the burden shifts to the Commissioner to show

the existence of other jobs in the national economy which, given the claimant’s impairments, the

claimant can perform.” Id. (cleaned up).

IV. The ALJ’s Decision

The ALJ applied the sequential evaluation set out in the regulations as follows: At Step

One, she found that Plaintiff has never engaged in substantial gainful activity. (Tr. 19). At Step

Two, the ALJ found Plaintiff has the following severe impairments: persistent depressive disorder,

attention-deficit hyperactivity disorder (“ADHD”), anxiety with depression, adjustment disorder,

dysthymic disorder, and seizure disorder. (Tr. 19). At Step Three, the ALJ found Plaintiff did not

have an impairment or combination of impairments that meets or medically equals a listed

impairment. (Tr. 20).

Before proceeding to Step Four, the ALJ determined Plaintiff’s residual functional capacity

(“RFC”), which is the most a claimant can do despite her impairments. See 20 C.F.R. §

416.945(a)(1). The ALJ determined that Plaintiff had the RFC to perform a full range of work at

all exertional levels but with a number of non-exertional limitations, namely that he: (1) can

understand, remember, and carry out simple instructions and make simple work related decisions;

(2) can work at a consistent pace throughout the workday but not at a production rate pace where

tasks must be performed quickly; (3) can tolerate occasional interaction with coworkers,

supervisors, and the public; and (4) can tolerate occasional changes in work setting; but (5) cannot

work around hazards such as unprotected heights, dangerous machinery, or large, open bodies of

water. (Tr. 23-31). The ALJ recognized at Step Four Plaintiff has no past relevant work. (Tr. 32).

At Step Five, the ALJ found, however, based on hearing testimony from a vocational expert, that,

given Plaintiff’s age (20 years old at the time of his application) and education (high school

graduate, some college), he could perform other work that exists in significant numbers in the

national economy, including laundry worker, cleaner, and garment sorter. (Tr. 33, see also Tr. 84-

85). Therefore, the ALJ determined on behalf of the Commissioner that Plaintiff was not disabled

within the meaning of the Act. (Tr. 33).

V. Analysis

Plaintiff challenges the Commissioner’s decision on what Plaintiff identifies as two

grounds. His primary argument, encompassing almost all his brief, is that the ALJ improperly

rejected the opinions of multiple mental health professionals, specifically as they relate to how

often Plaintiff’s mental impairments would be expected to cause him to miss work. (Pl. Brief at

3-17). Plaintiff’s secondary argument is that the “ALJ failed to fully and fairly develop the record,”

claiming that she “did nothing to ascertain the truth of the severity of [Plaintiff’s] mental

impairments.” (Pl. Brief at 18-19). These claims are addressed in turn.

A. Discounting Opinions Regarding Absenteeism and Other Limitations Due

to Mental Impairments

Plaintiff argues that, in determining his RFC, the ALJ erred in rejecting or discounting

medical source opinions, especially those related to how often Plaintiff’s mental impairments

might be expected to cause him to miss work. First, Plaintiff relies on an opinion by Dr. Robert

Estock, a psychiatrist who reviewed Plaintiff’s medical records on behalf of the State Disability

Determination Service. (Pl. Brief at 6-9). The ALJ actually found his opinions “partially

persuasive” and credited most of them as “partially consistent with the [other] evidence of record.”

(Tr. 28-29). However, the ALJ rejected Dr. Estock’s opinion predicting that Plaintiff “would miss

1 to 2 days a month due to symptoms.” (Tr. 28-29; see Tr. 146). Next, Plaintiff cites Ashly Pruitt,

a therapist at the Northwest Alabama Mental Health Center (“NWAMHC”). (Pl. Brief at 9-10;

see also Tr. 75). On a two-page questionnaire addressing Plaintiff’s ability to perform work-

related activities, Pruitt indicated she would anticipate that Plaintiff’s impairments and treatment

would cause him to be absent from work more than four days per month. (Tr. 866). She also

indicated that Plaintiff’s ability to “[c]arry out very short and simple instructions” and to

“[m]aintain regular attendance and be punctual within customary, usually strict tolerances” both

would be “seriously limited, but not precluded.” (Tr. 865). The questionnaire defined “[s]eriously

limited, but not precluded” as meaning that “[t]here will likely be days when your patient can

effectively perform this activity, and other days (probably 3 or more days per month on average)

when your patient will not be able to persist with this activity for at least 3/4 of a full work day.”

(Tr. 865). In addition, Plaintiff relies on a brief written statement signed by a treating physician,

Dr. Keith E. McCoy (Pl. Brief at 10), who recited that he reviewed the questionnaire completed

by Pruitt and that he found her responses to be “consistent with [his] own observation and clinical

judgment about [Plaintiff].” (Tr. 867). Finally, Plaintiff references Angela Glasgow, a certified

nurse practitioner who, like Pruitt, saw Plaintiff at the NWAMHC and completed the same

questionnaire, with checkbox responses that exactly mirrored Pruitt’s, including that Plaintiff

would likely miss more than four days of work per month. (Tr. 900-01).

The ALJ rejected these opinions, however, and instead implicitly found that Plaintiff would

miss no more than one day of work per month because of his impairments. (See Tr. 28-30). That

finding is consequential because the vocational expert testified that, if Plaintiff could be expected

to miss any more than that, it would foreclose all competitive work. (Tr. 85-86). Plaintiff argues

that the ALJ’s rejection of these opinions is neither (1) sufficiently explained nor (2) supported by

substantial evidence. The undersigned disagrees, as further explained below.

“For claims filed ... on or after March 27, 2017,” an ALJ must “not defer or give any

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

administrative medical finding(s), including those from [a claimant’s] medical sources.” 20 C.F.R.

§ 416.920c(a); see also Cole v. Commissioner, Soc. Sec. Admin., 2023 WL 21287, at *5 (11th Cir.

Jan. 3, 2023); Harner v. Social Sec. Admin., Comm’r, 38 F.4th 892, 897 (11th Cir. 2022)

(discussing 20 C.F.R. § 404.1520c, the parallel regulation to 20 C.F.R. § 416.920c that applies to

claims for disability insurance benefits under Title II of the Act). The regulations provide several

factors for determining what weight to give medical opinions. Those factors include: (1) the

supportability of the opinion, (2) its consistency with other record evidence, (3) the physician’s

relationship with the claimant, (4) the physician’s specialty, and (5) other relevant information,

such as the physician's familiarity with the other record evidence and with making a claim for

disability. 20 C.F.R. § 416.920c(c)(1)-(5). Supportability and consistency are the “most important

factors,” and the ALJ must articulate how they were considered in assessing the opinions of a

medical source. 20 C.F.R. §§ 416.920c(a), (b)(2).

The ALJ relied upon essentially the same explanations and evidence in rejecting the

relevant opinions of Estock, Pruitt, McCoy, and Glasgow, including specifically to the extent they

predicted that Plaintiff should be expected to miss more than one day of work per month due to

psychological symptoms. (See Tr. 28-31; see also Tr. 25-27 (discussing evidence in assessing

Plaintiff’s RFC more broadly); Pl. Brief at 11 (“The ALJ rejected the opinions of therapist Pruitt,

Dr. McCoy, and nurse Glasgow with the same failed rationale as she provided in rejecting Dr.

Estock’s opinion …”). At the outset, Plaintiff claims that the ALJ did not adequately explain why

she discounted Dr. Estock’s opinion. It should be noted, however, that Dr. Estock did not himself

explain the basis for his belief in the first place, and he is not an examining medical source. Both

considerations support the ALJ’s decision to discount his opinion. See Hand v. Soc. Sec. Admin.,

Comm’r, 786 F. App’x 220, 225 (11th Cir. 2019) (affirming ALJ decision to discount as not

sufficiently explained or supported Dr. Estock’s prediction that claimant would miss 1-2 days of

work per month because of psychological symptoms); Reynolds v. Comm’r, Soc. Sec. Admin.,

2023 WL 401356, at *3 (N.D. Ala. Jan. 25, 2023) (same); Harris v. Soc. Sec. Admin., Comm’r,

2022 WL 4110904, at *12 (N.D. Ala. Sept. 8, 2022) (same); Williams v. Kijakazi, 2022 WL

4087509, at *4 (N.D. Ala. Sept. 6, 2022) (same); Williams v. Comm’r of Soc. Sec. Admin., 2018

WL 4344472, at *4 (N.D. Ala. Sept. 11, 2018) (same); Twilley v. Berryhill, 2017 WL 4304988, at

*4–5 (N.D. Ala. Sept. 28, 2017) (same); Pannell v. Berryhill, 2019 WL 296730, at *5 (N.D. Ala.

Jan. 23, 2019) (same); Prince v. Colvin, 2013 WL 754859, at *7 (N.D. Ala. Feb. 27, 2013) (same);

20 C.F.R. § 416.920c(c)(3)(v) (“A medical source may have a better understanding of your

impairment(s) if he or she examines you than if the medical source only reviews evidence in your

folder.”);

Further, the ALJ explained that she had considered Dr. Estock’s absenteeism prediction

and the opinions of Pruitt, Glasgow, and Dr. McCoy to be unsupported by their own findings and

inconsistent with the record evidence otherwise. (Tr. 28-31). In particular, the ALJ cited that,

despite reporting and exhibiting mild to moderate depression and anxiety, Plaintiff’s records

showed only conservative mental health treatment with “routine follow up visits for medication

refills and therapy” and no “emergency department visits or inpatient care for exacerbation of

psychiatric symptoms.” (Tr. 25-26). The ALJ further noted that when Plaintiff was seen by

various medical practitioners, he was deemed to present with normal and appropriate mental status,

appearance, speech, orientation, mood, affect, thought process, and memory; no signs of

aggressive behavior during the visits; with fair insight and judgment; denying hallucinations,

delusions, and suicidal and homicidal ideations; and claiming to know his strengths and that he

could be independent. (See Tr. 26-27, 29, 30-31 (citing Tr. 454, 457, 460, 535, 537, 538, 542, 546,

549, 575, 579, 582, 585, 588, 592, 619, 641-645, 664, 674, 679, 730, 825, 832, 841, 849, 882, 888,

891)).

Plaintiff does not dispute the existence of such “relatively ordinary” (Pl. Brief at 8-9) and

“seemingly normal” (id. at 11) findings. But he nevertheless argues that the ALJ could not

reasonably rely on them in rejecting and discounting the relevant opinions of Estock, McCoy,

Pruitt, and Glasgow. In support, Plaintiff cites Marshall v. Commissioner of Soc. Sec., 2022 WL

4538453 (N.D. Ala. Sept. 28, 2022). (Pl. Brief at 8-9). In that case, the undersigned held that the

ALJ had improperly discounted the opinion of a consulting psychologist regarding the severity of

the claimant’s diminished intellectual function, in reliance upon normal mental status findings

generally (1) by the consulting psychologist himself and (2) by a primary care physician who saw

the claimant several times for distinctly physiological complaints, including hypertension, back

pain, and allergies. See Marshall, at *3-4, 6-7. In so doing, the undersigned reasoned that the

observations about the claimant’s mental status did not sufficiently bear on the claimant’s specific

impairment, i.e., diminished intellectual function, especially as it related to the primary care

physician, who was not a mental health specialist and was examining the claimant for the purpose

of assessing distinctly physiological problems. See id.; see also Simon v. Commissioner, Soc. Sec.

Admin., 7 F.4th 1094, 1108 n. 7 (11th Cir. 2021), superseded by regulation on other grounds as

stated in Glover v. Comm’r, Soc. Sec. Admin., 2022 WL 17826364, at *3 n. 2 (11th Cir. Dec. 21,

2022); Cash v. Comm’r of Soc. Sec., 2021 WL 1117754, at *7 (N.D. Ala. Mar. 24, 2021); see also

20 C.F.R. § 416.920c(c)(4) (providing that the opinion of a medical specialist within their specialty

may be more persuasive than the opinion of a non-specialist in the area). In the present case,

however, the undersigned concludes that the content, consistency, and number of the “normal”

and “appropriate” mental health status observations cited by the ALJ have greater probative value

towards supporting that Plaintiff’s particular impairments, clinical depression and anxiety, have

been well-managed with conservative treatment and have not manifested in acute symptoms. As

such, the ALJ could reasonably rely on such findings in discounting Dr. Estock’s absenteeism

prediction. See Nardelli v. Comm’r of Soc. Sec., 2024 WL 565383, at *5 (11th Cir. Feb. 13, 2024)

(holding that substantial evidence supported ALJ’s finding that claimant was not disabled based

on mental impairments, including evidence showing that the claimant “largely performed within

the range of normal outcomes on mental-status exams and presented in a good mood with normal

affect[,] … displayed fair social skills, demonstrated adequate judgment and insight, and appeared

to have coherent and logical thought processes.”); Caldwell v. Barnhart, 261 F. App’x 188, 191–

92 (11th Cir. 2008) (holding that ALJ was entitled to reject medical opinions regarding the severity

of mental health impairments on the ground that such assessments were inconsistent with providers

own treatment notes documenting that claimant’s “mental status was ‘normal’ and ‘appropriate,’

and that she consistently experienced no acute symptoms,” that her “mental health status was ‘well

maintained,” and that her “memory, attention span, and impulse control were good”).

The ALJ also highlighted that, in early February 2022, the same month she issued her

decision, Plaintiff was first seen at Vernon Medical Center by a nurse practitioner, Amber

Pennington. (Tr. 26, 29, 31 (citing Tr. 894)). The ALJ remarked that the progress notes from that

visit reflected that Plaintiff had denied symptoms such as anxiety, crying spells, isolation, fatigue,

feelings of worthlessness, problems concentrating, or sleep or appetite disturbance. (Id. (citing Tr.

894)). Plaintiff insists, though, that Pennington’s notes actually support rather than detract from

the relevant opinions of Estock, McCoy, Pruitt, and Glasgow because Pennington also deemed

Plaintiff to have “poor insight” and exhibit an “anxious and depressed” “mental state.” (Pl. Brief

at 9 (citing Tr. 894)). However, the ALJ expressly acknowledged those findings (Tr. 27, 30, 32),

which are not otherwise explicated, and she nevertheless considered Pennington’s findings overall

to acknowledge that Plaintiff had reported no active symptoms, that he was able to maintain

relationships, and that his depression and anxiety were not interfering with his activities of daily

living. (Tr. 27, 28, 29 (citing Tr. 894)). That interpretation is reasonably supported. Kitzero v.

Berryhill, 2018 WL 2288006, at *7 (N.D. Ala. May 18, 2018) (“Claimant may interpret some of

the record evidence differently from the ALJ, and a different ALJ may also have interpreted the

evidence differently. Even so, the relevant consideration is not whether the ALJ offered the best

possible explanation or interpretation of the evidence, but whether the ALJ’s consideration of the

evidence was supported by substantial evidence.”).

Finally, the ALJ also explained that she found Plaintiff’s activities support that he was not

limited by his depression or other mental impairments to the extent suggested by Dr. Estock’s

absenteeism opinion or by Pruitt, McCoy, and Glasgow. (See Tr. 27, 30). The ALJ noted that

such activities included that Plaintiff obtained a regular high school diploma and attended

community college for about two years, (25, 30; 68-69); attended basic life skills classes five hours

per day, five times per week before the pandemic and three days per week since (Tr. 25, 27, 30,

79); he is able to manage his personal care needs without problems, prepare simple meals, watch

videos to learn about cooking, use a computer, play video games, take out the trash, straighten his

room, do laundry, care for pets, and help care for his young nephew, count change, watch sports

on television, attend medical appointments, and follow simple instructions. (See Tr. 25, 27, 30,

66, 67, 80-83).

Plaintiff takes issue with the ALJ’s characterizations of a few of these activities as

incomplete or otherwise misleading. (Pl. Brief at 11-14). First, Plaintiff highlights that, while the

ALJ found he can “prepare simple meals,” his hearing testimony was actually that he can only

“microwave cook” and “put stuff in the oven like I’ve made fries and stuff like that,” while he was

still trying to “figure out” things “like when cooking something on the stove, ... like a hamburger

and you’ve got to make sure both sides are brown.” (Pl. Brief at 12 (quoting Tr. 81-82)). Plaintiff

likewise says that although the ALJ found he can “use a computer” and “play video games,” his

hearing testimony was that he “can’t be around [computers] for a long time” and that he only plays

video games for “about 20 minutes.” (Pl. Brief at 12 (quoting Tr. 80)). Finally, Plaintiff

emphasizes that while the ALJ found he “helps care for his nephew,” his hearing testimony was

only that he helps “babysit” with his nephew by “spending time” with him and “fix[ing him] a

bottle … or something to eat,” but he further clarified that the child’s mother is also present. (Pl.

Brief at 12 (citing Tr. 82-83)).

It might be assumed that some of the above points may be somewhat colorable as far as

they go. Despite that, Plaintiff’s argument still ultimately amounts to parsing and quibbling around

the edges of the ALJ’s broader finding that, on the whole, Plaintiff’s activities tend to support that

his mental impairments do not result in acute symptoms or limitations that substantially interfere

with his activities of daily living or that would cause one to expect that he would have a problem

with excessive absenteeism. See Long v. Kijakazi, 2022 WL 4588581, at *10 n. 14 (S.D. Ala.

Sept. 29, 2022) (“Long also quibbles with how the ALJ weighed some of her reported activities of

daily living, but she fails to convince the undersigned that this amounts to anything more than

inviting the Court to impermissibly reweigh the evidence or substitute its judgment for the

ALJ's.”).

Based on the foregoing, the undersigned concludes that the ALJ’s decision to discount or

reject the relevant opinions of Estock, Pruitt, McCoy, and Glasgow, including specifically insofar

as they predict that Plaintiff should be expected to miss more than one day of work per month due

to his mental impairments, is supported by substantial evidence. Therefore, Plaintiff’s first claim

is due to be rejected.

B. Development of a Full and Fair Record

Plaintiff raises one other claim: the ALJ allegedly failed to develop a full and fair record.

(Pl. Brief at 18-19). At the administrative level, Social Security proceedings are inquisitorial rather

than adversarial in nature. See Carr v. Saul, 593 U.S. 83, 89-90 (2021) (citing Sims v. Apfel, 530

U.S. 103, 110-11 (2000)); 20 C.F.R. § 416.1400(b). The ALJ, acting on behalf of the

Commissioner, thus has an obligation to develop a full and fair record as it might pertain to all

circumstances in favor of and against the claim for disability. Washington v. Comm’r of Soc. Sec.,

906 F.3d 1353, 1364 (11th Cir. 2018). “However, there must be a showing of prejudice before it

is found that the claimant's right to due process has been violated to such a degree that the case

must be remanded to the Secretary for further development of the record.” Graham v. Apfel, 129

F.3d 1420, 1423 (11th Cir. 1997) (citing Brown v. Shalala, 44 F.3d 931, 934-35 (11th Cir. 1995)).

In this inquiry, the court is “guided by whether the record reveals evidentiary gaps which result in

unfairness or ‘clear prejudice.’” Id. (quoting Brown, supra).

Plaintiff’s only substantive argument in support of this claim in his brief, however, is a

conclusory assertion that the ALJ “made up [Plaintiff's] RFC out of whole cloth,” having “simply

determined that she did not believe [Plaintiff] and did not believe the unrefuted statements from

the mental health professionals about how his mental impairments would affect his absenteeism.”

(Pl. Brief at 19). As the Commissioner points out, however, Plaintiff failed to identify any specific

action the ALJ was supposedly obligated to take or just what necessary information was

supposedly missing from the record. (Comm’r Brief at 21). In his reply, Plaintiff tries to answer

this by suggesting that the ALJ could have done “anything … and it would have been better than

what she did.” (Pl. Reply at 8 (emphasis original). Plaintiff generally offers, for example, that the

ALJ could have called a medical expert to testify at the hearing, ordered a consultative

examination, or recontacted Plaintiff’s mental health providers “to seek clarification or to resolve

perceived inconsistencies.” (Id.)

The undersigned does not find that to be much of a retort, however. Additional evidence

could potentially be gathered in literally every single Social Security case, and, to be sure, the ALJ

generally has the discretionary authority to seek it. But that’s not strictly the issue. Rather, the

ALJ is only required to develop the record as necessary to afford a reasonable, informed basis

upon which to evaluate the claim of disability and make the findings required to resolve it. See

Graham supra. Thus, the ALJ need not as a rule take any of the additional actions that Plaintiff

proposes provided the record is otherwise sufficient from which to make a disability determination.

See Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007) (“The

administrative law judge has a duty to develop the record where appropriate but is not required to

order a consultative examination as long as the record contains sufficient evidence for the

administrative law judge to make an informed decision.” (citing Doughty v. Apfel, 245 F.3d 1274,

1281 (11th Cir. 2001) (citation omitted)); Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999)

(“[The record, which included the opinions of several physicians including that of Dr. Cameron

Tebbi who treated Anastasia, was sufficient for a decision and additional expert testimony was

unnecessary.”); Land v. Comm’r of Soc. Sec., 843 F. App’x 153, 156 (11th Cir. 2021) (ALJ was

not required to call a medical advisor to appear at hearing “because the record included several

years of medical evidence documenting Land's impairments and treatment”); Prince v. Comm’r,

Soc. Sec. Admin., 551 F. App’x 967, 972 (11th Cir. 2014) (holding that ALJ was not required to

call an independent medical expert or to re-contact the claimant’s treating physicians about their

RFC opinions “because the record was sufficient to determine whether [the claimant] was

disabled”).

To that end, the administrative record in this case spans over 900 pages. As indicated by

the citations in the ALJ’s written decision, it includes voluminous progress notes and other records

from Plaintiff’s numerous visits to a host of medical providers, including mental health

professionals, both before and during his alleged period of disability, as well as from state agency

reviewing physicians. The ALJ granted Plaintiff not one but two hearings and assisted Plaintiff in

obtaining additional outstanding medical records Plaintiff claimed were necessary to his case.

(See Tr. 48-59, 71). Because Plaintiff has not demonstrated evidentiary gaps that resulted in

unfairness or clear prejudice, his claim that the ALJ failed to sufficiently develop the

administrative record is due to be rejected.

VI. Conclusion

Based on the foregoing, and upon careful consideration of the administrative record and

memoranda of the parties, the undersigned concludes that the decision of the Commissioner of

Social Security denying Plaintiff’s claim for a period of disability and supplemental security

income is due to be AFFIRMED. A separate Final Order will be entered.

DONE this 27th day of March, 2024.

—~

wv

JOHN H. ENGLAND, III

UNITED STATES MAGISTRATE JUDGE

16