Jones v. Social Security Administration, Commissioner

Filing 15

MEMORANDUM OPINION AND ORDER: the court finds that the decision of the Commissioner was in accordance with applicable law and supported by substantial evidence. Accordingly, the decision of the Commissioner is AFFIRMED. Costs are taxed against claimant. The Clerk is directed to close the file. Signed by Judge C Lynwood Smith, Jr on 9/11/20. (BJL)

FILED
2020 Sep-11 PM 04:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
TOMMIE JONES,
Claimant,
vs.
ANDREW SAUL, Commissioner,
Social Security Administration,
Defendant.

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Civil Action No. 4:19-CV-01790-CLS

MEMORANDUM OPINION AND ORDER
Tommie Jones commenced this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a final adverse decision of the Commissioner of the Social Security
Administration, affirming the decision of the Administrative Law Judge (“ALJ”) and,
thereby, denying his claim for supplemental security income benefits.1
The court’s role in reviewing claims brought under the Social Security Act is
a narrow one. The scope of review is limited to determining whether there is
substantial evidence in the record as a whole to support the findings of the
Commissioner, and whether the correct legal standards were applied. See Lamb v.
Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253
(11th Cir. 1983).

1

Doc. no. 1 (Complaint).

Claimant contends that the Commissioner’s decision is neither supported by
substantial evidence nor in accordance with applicable legal standards. Specifically,
claimant asserts that: (1) the ALJ improperly rejected the opinion of examining
consultative psychologist, Dr. June Nichols; (2) claimant is entitled to benefits under
Listing 12.05C; (3) the ALJ’s decision was not based on substantial evidence because
the Vocational Expert was not presented with a full picture of claimant’s complaints;
and (4) claimant was prejudiced by lack of counsel at the hearing before the ALJ.2
Upon review of the record, the court concludes that those contentions lack merit, and
the Commissioner’s ruling is due to be affirmed.
I. DISCUSSION
A.

The ALJ Did Not Improperly Reject the Opinion of Dr. Nichols.
Claimant first argues that the ALJ improperly rejected the opinion of June

Nichols, Psy. D., who evaluated claimant’s mental health at the direction of the
Commissioner. Claimant argues that the ALJ’s decision to go against Dr. Nichols’s
opinion should be considered “with a degree of suspicion.” Doc. no. 9 (Brief in
Support of Disability), at 17 (citing Wilder v. Chater, 64 F.3d 335, 337-38 (7th Cir.
1995). Wilder is not applicable. First, Dr. Nichols may be the only examining
psychologist to provide an opinion, but that opinion is far from the only medical
2

See doc. no. 9 (Brief in Support of Disability).
2

evidence in the 1,036-page record presented to this court.
Second, social security regulations regarding the evaluation of medical
evidence were revised in early 2017, and those revisions apply to all claims filed on
or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical
Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Claimant filed his claim for disability
on August 22, 2017.3 Under these new regulations, 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), including those from
[claimant’s own] medical sources.” 20 C.F.R. § 416.920c(a). Instead, the ALJ
evaluates each medical opinion using the following five factors: (1) supportability;
(2) consistency; (3) relationship with the claimant; (4) specialization; and (5) other
factors. 20 C.F.R. § 416.920c(c). The ALJ is required to explain how he or she
considered the supportability and consistency factors, as the ALJ did in this case.4
See 20 C.F.R. § 416.920c(b)(2). Claimant does not argue that these new regulations
are invalid.

3

Indeed, he ignores the Commissioner’s argument altogether.5

See Tr. 166.

4

See Tr. 30 (“[Dr. Nichols] did not provide any rationale to support [her opinions]. In
addition, these opinions are not entirely consistent with the totality of the other evidence.”); Tr. 31
(“[Dr. Register] provided abundant rationale that included citation to objective evidence documented
in the administrative record and her opinions are generally consistent with the totality of the
evidence.”).
5

See doc. no. 14 (Reply in Support of Disability), at 2-5.
3

Accordingly, the ALJ did not improperly reject the opinion of Dr. Nichols.
B.

Claimant Is Not Entitled to Benefits Under Listing 12.05C.
Claimant previously received benefits under Listing 12.05C, but those benefits

were terminated on March 10, 2017, when claimant failed to show up for the medical
improvement evaluation.6 Claimant did not appeal that decision, but instead chose
to file a new claim for disability on August 22, 2017.7 Unfortunately for claimant,
revised Listings went into effect on January 17, 2017, and the revised Listings
removed Listing 12.05C. See Revised Medical Criteria for Evaluating Mental
Disorders, 81 Fed. Reg. 66,138 (Sept. 26, 2016). Accordingly, claimant would now
be evaluated under Listing 12.05B, which provides:
B.

Satisfied by 1, 2, and 3 (see 12.00H):
1.

Significantly subaverage general
functioning evidenced by a or b:

intellectual

a.

A full scale (or comparable) IQ score
of 70 or below on an individually
administered standardized test of
general intelligence; or

b.

A full scale (or comparable) IQ score
of 71-75 accompanied by a verbal or
performance IQ score (or comparable
part score) of 70 or below on an

6

See Tr. 151-63.

7

See Tr. 166.
4

individually administered standardized
test of general intelligence; and
2.

Significant deficits in adaptive functioning currently
manifested by extreme limitation of one, or marked
limitation of two, of the following areas of mental
functioning:
a.

b.

Interact with others (see 12.00E2); or

c.

Concentrate, persist, or maintain pace
(see 12.00E3); or

d.

3.

Understand, remember, or
information (see 12.00E1); or

apply

Adapt or manage onself (see 12.00E4);
and

The evidence about your current intellectual and
adaptive functioning and about the history of your
disorder demonstrates or supports the conclusion
that the disorder began prior to your attainment of
age 22.

20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05B. Claimant appeared to satisfy the first
criterion under 12.05B(1)(a), because the record indicated that he was administered
a Wechler Adult Intelligence Scale, 4th edition (“WAIS’IV”), test in May of 2013
that indicated a Verbal comprehension index score of 61, a Perceptual Reasoning
Score of 84, a Working Memory Index score of 66, a Processing Speed Index score
of 59, and a full scale IQ of 63.8 The ALJ found, however, that claimant had no more
8

Tr. 880.
5

than moderate limitations in any of the areas of adaptive functioning listed in
12.05B(2).9 Further, claimant did not even attempt to argue that he had marked or
extreme limitations in one or more of those areas of adaptive functioning.10
Accordingly, the ALJ did not err in concluding that claimant was not disabled under
Listing 12.05C.
C.

The ALJ’s Decision Was Supported by Substantial Evidence.
Claimant’s argument that the ALJ’s decision was not supported by substantial

evidence is primarily based on his contention that the vocational expert was not posed
a hypothetical question that encompassed all of claimant’s ailments.11

The

hypothetical posed to the vocational expert did contain all of the limitations the ALJ
defined in claimant’s residual functional capacity, however.12 Accordingly, this
argument is without merit.
D.

Claimant Was Not Prejudiced by Lack of Counsel.
Finally, claimant argues that he was not properly informed of his right to

counsel at the hearing before the ALJ and, therefore, he did not effectively waive his

9

Tr. 25-26 (finding moderate limitations with support from Dr. Register).

10

See doc. no. 9 (Brief in Support of Disability), at 24-28; doc. no. 14 (Reply in Support of
Disability), at 5-10.
11

See doc. no. 9 (Brief in Support of Disability), at 28-30.

12

Compare Tr. 27 (ALJ decision defining claimant’s residual functional capacity) with Tr.
59-61 (Hearing Transcript, ALJ posing the hypothetical).
6

right to counsel.13 Specifically, claimant argues that he must be informed that he
could possibly obtain free counsel who would be limited to attorney fees of 25% of
any eventual award. See Smith v. Schweiker, 677 F.2d 826, 829 (11th Cir. 1982).
Because there is no indication that claimant was informed of the possibility of free
counsel, it cannot be presumed that claimant voluntarily waived his right to
representation. Claimant must also show, however, that he was prejudiced by his lack
of counsel. See id. (“Our inquiry does not end here, however, since [claimant] must
show prejudice before we will find that the hearing violated his rights of due
process.”) (alteration supplied). When a claimant appears pro se, the ALJ has a
special duty to fully and fairly develop the record. See Cowart v. Schweiker, 662 F.2d
731, 735 (11th Cir. 1981) (quoting Clark v. Schweiker, 652 F.2d 399, 404 (5th Cir.
1981) (“The ALJ’s ‘basic obligation to develop a full and fair record rises to a special
duty when an unrepresented claimant unfamiliar with hearing procedures appears
before him.’”).

The special duty requires the ALJ to “scrupulously and

conscientiously probe into, inquire of, and explore for all the relevant facts.” Id.
(quoting Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978). The ALJ met that
obligation in this case, and claimant does not argue otherwise.
Claimant argues that if he had been represented, counsel could have: (1)
13

See doc. no. 9 (Brief in Support of Disability), at 30-32.
7

prepared and submitted a timely statement by a treating physician; (2) developed a
better record of claimant’s disabling pain and anxiety; (3) presented the chiropractic
records; and (4) cross-examined the vocational expert.14 Claimant fails to show,
however, that any of these actions would have changed the ALJ’s decision. Claimant
was represented by counsel before the Appeals Council and did not submit a
statement from a treating physician. Claimant’s attorney submitted the chiropractic
records, but the Appeals Council did not find them persuasive.15 Accordingly,
claimant has not shown he was prejudiced by lack of counsel at the hearing before the
ALJ.
II. CONCLUSION
In summary, the court finds that the decision of the Commissioner was in
accordance with applicable law and supported by substantial evidence. Accordingly,
the decision of the Commissioner is AFFIRMED. Costs are taxed against claimant.
The Clerk is directed to close this file.
DONE and ORDERED this 11th day of September, 2020.

______________________________
Senior United States District Judge

14

See doc. no. 9 (Brief in Support of Disability), at 31.

15

See Tr. 2.
8