Hernandez v. Social Security Administration, Commissioner

Filing 20

MEMORANDUM OF DECISION: Plaintiff Eric P. Hernandez brings this action pursuant to Section 205(g) of the Social Security Act (the Act), seeking review of the decision of the Commissioner of Social Security (Commissioner) denying his claim for a perio d of disability and disability insurance benefits. The Commissioner's final decision is therefore due to be affirmed. A separate order in accordance with this memorandum of decision will be entered. Signed by Judge R David Proctor on 03/27/2024. (CLD)

FILED
2024 Mar-27 PM 03:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
ERIC P. HERNANDEZ,
Plaintiff,
v.
MARTIN J. O’MALLEY,
COMMISSIONER OF SOCIAL
SECURITY,

Defendant.

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Case No. 4:22-cv-1343-RDP

MEMORANDUM OF DECISION
Plaintiff Eric P. Hernandez brings this action pursuant to Section 205(g) of the Social
Security Act (the “Act”), seeking review of the decision of the Commissioner of Social Security
(“Commissioner”) denying his claim for a period of disability and disability insurance benefits
(“DIB”). See 42 U.S.C. § 405(g). Based on the court’s review of the record and the briefs submitted
by the parties, the court finds that the decision of the Commissioner is due to be affirmed.
I.

Proceedings Below
Plaintiff filed an application for disability and DIB on August 10, 2020, alleging his

disability began on April 16, 2017.1 (R. 226). Plaintiff’s application was denied initially on
September 23, 2020, and upon reconsideration on May 12, 2021. (Id.). Plaintiff filed a request for
a hearing before an Administrative Law Judge (“ALJ”) on July 29, 2021. (R. 133). The request

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Plaintiff filed a previous application for disability and DIB on December 6, 2018. (R. 46). On January 31,
2020, an order of dismissal was filed for failure to appear. (R. 94). On November 3, 2021, Plaintiff requested that his
previous claim be reopened. (R. 312). Plaintiff alleged that he was out of town and did not receive notice of the hearing
date. (Id., R. 46). Plaintiff’s request was denied. (R. 15).

was granted, and a hearing was held via video conference before ALJ Clarence Gutherie on
February 8, 2022. (R. 41-59). Plaintiff, his counsel, and Vocational Expert (“VE”) Sandra Bruff
attended the hearing. (Id.).
Following the hearing, the ALJ entered a decision finding Plaintiff was not disabled under
Sections 216(i) and 223(d) of the Act through December 31, 2020, the date last insured. (R. 35).
The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on August 22,
2022. (R.1-3). This court reviews the case pursuant to 42 U.S.C. § 405(g).
Plaintiff was 45 years old at the time of the hearing and had earned a GED through Job
Corps. (R. 44, 45). Plaintiff stated that he was married, has two children, but only he and his wife
reside together – with their pets. (R. 44, 263). Plaintiff previously worked as a roofer, a driver
transporting railroad crews, a truck driver, and a delivery driver and shift manager for Pizza Hut.
(R. 313). Plaintiff testified that his obesity, diverticulitis, anxiety, depression, bipolar disorder,
high blood pressure, high cholesterol, diabetes, hepatic steatosis, gastroesophageal reflux disease,
and sleep apnea all affect his ability to work. (R. 47-48). During the hearing, the ALJ said to
Plaintiff, “It[ ] look[s] like your claim is mainly mental in nature, right, more than physical?”
Plaintiff responded in the affirmative. (R. 48). Plaintiff testified that he has been receiving mental
health treatment since 2017 from Dave Harvey (“Harvey”) at Quality of Life. (Id.).
Plaintiff testified that, “a little over half [of each] month,” he cannot get up and dress
himself. (R. 50). He stated that he had not left the house for three weeks prior to the hearing. (R.
54.). Further, that during regular working hours, he sleeps for over half of the day. (R. 55). Plaintiff
explained that he experiences “stomach issues . . . ten to fourteen days out of a month” and is
“bloated, [with] a lot of acid reflux.” (R. 48). “Probably ten to twelve to fourteen days” per month,
his stomach problems cause him to go to the bathroom “six to seven times” during daylight hours

2

for “anywhere from twenty to twenty-five minutes.” (R. 49). Plaintiff said he had been hospitalized
for stomach problems “four to five” times. He has seen a specialist and takes Omeprazole over the
counter. (Id.).
Plaintiff also testified that he “do[es]n’t get along very well with other people.” (R. 50-51).
As Plaintiff explained, he “can’t really nail down” why, but said, “I just get nervous around other
people.” (Id.). Plaintiff’s wife noted on his Function Report that he “can’t handle being around a
lot of people” and that he “gets nervous and panics” around others. (R. 262). Plaintiff asserts that
he is decent at following written instructions but cannot follow spoken instructions well, cannot
work with authority figures, and has been fired from a job for not getting along with others. (R.
275-76). However, when asked by the ALJ why he cannot work by himself, Plaintiff responded,
“I don’t focus on the job . . . “don’t finish my tasks” . . . “just easily distracted.” (R. 51-52).
On April 2, 2017, Plaintiff presented to Gadsden Regional Medical Center (“GRMC”)
seeking treatment for abdominal pain. (R. 588). Plaintiff was admitted into the hospital by Dr.
Sinha for further evaluation and treatment. (Id.). A CT scan showed normal results. (R. 582). A
colonoscopy was also performed where two small sigmoid polyps were removed and submitted to
a pathologist for review. (R. 586). The pathology report stated, “no adenomatous change or
carcinoma identified.” (R. 592). Plaintiff was discharged on April 8, 2017 with a diagnosis of
diverticulitis of the large intestine.2 (R. 582).
On July 4, 2017, Plaintiff was again admitted to GRMC with “[a]cute diverticulitis.” (R.
567). Plaintiff was discharged with “left lower quadrant abdominal pain [and] early sigmoid
diverticulitis and/or colitis.” (R. 572). Plaintiff’s treatment plan advised him to continue with
“home medications.” (R. 573). Plaintiff’s medical records show a follow up appointment with a

2

The medical records note Plaintiff was first diagnosed with diverticulitis on August 20, 2015. (R. 877).

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gastroenterologist, Dr. Amin, on July 6, 2017. (R. 573). Dr. Amin noted, “[n]o GI plans [and to]
[c]ontinue with current management.” (Id.).
Plaintiff returned to GRMC on October 20, 2018, this time complaining of upper abdomen
pain radiating to his left shoulder. (R. 561). Plaintiff was found to have “peritoneal adhesions”
from his previous surgeries in 2017. (Id.). Plaintiff also was on antibiotics for “possible underlying
diverticulitis.” (R. 562). During this visit, Plaintiff’s physical vitals were found to be mostly
normal except for some mild tenderness in his abdomen. (R. 561).
On September 25, 2019, Plaintiff presented to the GRMC emergency room with complaints
of abdominal pain radiating into his chest. (R. 547, 551). Plaintiff stated that he “had this pain for
several weeks.” (Id.). After Plaintiff was admitted, a CT scan was taken, and Dr. Jon Roden found
signs of sigmoid diverticulosis but not diverticulitis. (Id.). A consult was ordered with Dr. Amin,
but Plaintiff “[did] not want to see him.” (R. 551). At this visit, Plaintiff’s vitals were normal. (R.
554).
On May 31, 2020, Plaintiff went back to GRMC complaining of abdominal pain. (R. 542).
The medical center again found Plaintiff’s vitals normal, and his lab results and CT scan were
“unremarkable.” (Id.). Plaintiff denied vomiting, nausea, or diarrhea. (Id.). It was noted that
Plaintiff’s last bowel movement, which occurred the day before his visit to the medical center, was
normal. (R. 544-45). Plaintiff was released with MiraLAX to help with constipation. (R. 545).
On July 27, 2020, Plaintiff was again seen at GRMC by Dr. John Padley with periumbilical
pain that was bleeding at one point. (R. 537). Plaintiff was discharged from the medical center
later that day with antibiotics and instructions to follow-up with his primary doctor. (R. 541).
Along with an April 2, 2017 diagnosis of diverticulitis, Dr. Sinha made sixteen other
diagnoses — one being “[m]ajor depressive disorder” and another being diabetes. (R. 584). Dr.

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Sinha, however, noted that Plaintiff’s psychiatric and neurological systems were normal,
specifically observing Plaintiff was “cooperative with normal mood, affect, and cognition.” (Id.).
Plaintiff first visited Quality of Life in 2015 for treatment of diabetes and returned every
few months. (R. 594-35). Until 2020, Plaintiff was consistently (1) determined not to have anxiety
nor depression during these visits and (2) responded “not at all” when asked if he felt depressed.
(R. 642, 678, 688). On March 28, 2017, Plaintiff responded that he found little interest or pleasure
in doing things and felt bad about himself for several days out of a two-week period. (R. 636-37).
On November 26, 2018, Dr. Cesar Fernandez noted that Plaintiff denied having a depressed mood.
(R. 905).
On May 28, 2020 during a Quality of Life visit, Plaintiff reported that he had thoughts of
suicide but did not have a plan. (R. 697). It was noted that Plaintiff was tearful and crying during
his physical exam and appeared anxious. (R. 703). It was then that Plaintiff was first prescribed
antidepressants, including Prozac. (R. 701). Plaintiff continued to regularly visit Quality of Life.
(R. 708, 715, 731). On June 25, 2020, it was noted that Plaintiff had no psychosis but trouble
maintaining employment due to irresponsibility and alcohol abuse. (R. 731).
On September 23, 2020, Dr. Robert Heilpern and Dr. Robert Estock both completed
consultive examinations of Plaintiff. (R. 99, 100, 101). Dr. Heilpern could not determine Plaintiff’s
functional capacity because “[n]either [Plaintiff] nor [Plaintiff’s] third party have cooperated in
returning necessary functional information” and stated that “[w]ithout this information, the
evidence is insufficient overall.” (R. 99). Dr. Estock found that Plaintiff’s medically determinable
impairments satisfied none of the criteria listings. (R. 100). Plaintiff continued to visit Quality of
Life and, on November 5, 2020, was examined by Dr. Christopher Randolph and given a GAF
score of 50. (R. 772).

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Dr. Virginia Bare completed a consultive evaluation on May 21, 2021. (R. 108). In her
evaluation, Dr. Bare noted that Plaintiff had been diagnosed with depression but also observed that
Plaintiff’s thought process had logical content and was goal oriented. (Id.). Dr. Bare found no
presence of ‘A’ or ‘C’ Criteria, but did find a moderate limitation under ‘B’ criteria for ability to
understand and remember, interact with others, concentrate and maintain pace, and adapt or
manage oneself. (R. 107-08). Dr. Bare concluded that Plaintiff’s impairments related to mental
health and were moderate across all domains. (R. 108).
On October 18, 2021, Dave Harvey of Quality of Life completed a mental health source
statement. (R. 809). Harvey noted that Plaintiff may understand, remember, and carry out very
short simple instructions. (Id.). He also selected “no” when asked if Plaintiff could maintain
attention, perform activities within a schedule, sustain ordinary routine without supervision, adjust
routine, and interact with supervisors or co-workers. (Id.). Harvey also noted that Plaintiff “is not
able to be gainfully employed in any capacity.” (Id.).
On January 18, 2022, Plaintiff was examined by Dr. June Nichols at Gadsden Psychology
services. (R. 956). Dr. Nichols found Plaintiff’s stream of consciousness to be clear and his thought
process within normal limits. (R. 960). Dr. Nichols noted that, “[t]here was no evidence of
delusions.” (Id.). Plaintiff’s speed of mental processing was noted as adequate, and his memory
function and remote functions were described as “grossly intact.” (Id.). In conclusion, Dr. Nichols
stated, “In a 30-day period, [Plaintiff] would likely fail to report to work 25+ days in a 30-day
period due to his psychological symptoms.” And, “[t]hese symptoms are likely to resolve in the
next 12 months.” (R. 961).
Like the mental health source statement completed by Dave Harvey in October 2021, Dr.
Nichols completed another one on February 4, 2022. (R. 809, 955). Similar to Harvey’s statement,

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Dr. Nichols noted that Plaintiff may understand, remember, and carry out very short simple
instructions, as well as may understand, remember, and carry out very short simple instructions.
(R. 955). He also selected “no” when asked if Plaintiff could maintain attention, perform activities
within a schedule, sustain ordinary routine without supervision, adjust routine, and interact with
supervisors or co-workers. (Id.). Dr. Nichols did note, however, that Plaintiff would be off task up
to 70% of the time in an eight-hour day and would fail to report to work “25+” days out of a thirtyday period. (Id.).
Plaintiff continued to receive consultations from Harvey and Dr. Randolph, and on May
18, 2022, Plaintiff’s GAF score was again recorded as 50. (R. 786, 788, 791, 827). Plaintiff’s
anxiety and depression had only improved slightly, but all other mental characteristics were
described as “within normal limits.” (R. 827-28).
On October 11, 2022, Harvey observed that Plaintiff had made fair progress in recovering
from his anxiety and depression. (R. 823). On October 21, 2022, Plaintiff was evaluated by Dr.
Randolph via telephone and found to be “irritable” with “some panics.” (R. 812).
II.

ALJ Decision
Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520. First,

the ALJ must determine whether the claimant is engaging in substantial gainful activity. Id. §
404.1520(a)(4)(i). “Substantial gainful activity” is defined as activity that is both “substantial” and
“gainful.” Id. § 1572. “Substantial” work activity is work that involves doing significant physical
or mental activities. Id. § 404.1572(a). “Gainful” work activity is work done for pay or profit. Id.
§ 404.1572(b). If the ALJ finds that the claimant engages in activity that meets both criteria, then
the claimant cannot claim disability. Id. § 404.1520(b). Second, the ALJ must determine whether
the claimant has a medically determinable impairment or a combination of medical impairments

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that significantly limits the claimant’s ability to perform basic work activities. Id. §
404.1520(a)(4)(ii). Absent such impairment, the claimant may not claim disability. Id. Third, the
ALJ must determine whether the claimant’s impairment meets or medically equals the criteria of
an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. See id. §§ 404.1520(d), 404.1525,
and 404.1526. If such criteria are met, the claimant is declared disabled. Id. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared disabled under the
third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ must
first determine the claimant’s residual functional capacity (“RFC”), which refers to the claimant’s
ability to work despite his impairments. Id. § 404.1520(e). In the fourth step, the ALJ determines
whether the claimant has the RFC to perform past relevant work. Id. § 404.1520(a)(4)(iv). If the
claimant is found to be capable of performing past relevant work, then the claimant is deemed not
disabled. Id. If the ALJ finds the claimant unable to perform past relevant work, then the analysis
proceeds to the fifth and final step. Id. § 404.1520(a)(4)(v). In the last part of the analysis, the ALJ
must determine whether the claimant is able to perform any other work commensurate with his
RFC, age, education, and work experience. Id. § 404.1520(g). Here, the burden of proof shifts
from the claimant to the ALJ to prove the existence, in significant numbers, of jobs in the national
economy that the claimant can do given his RFC, age, education, and work experience. Id. §§
404.1520(g), 404.1560(c).
Here, the ALJ first concluded that Plaintiff’s previous claim was not due to be re-opened
based on a finding of no evidence to support this position. The ALJ held the prior determination
to be “final and binding.” (R. 15). For Plaintiff’s second disability claim, the ALJ found Plaintiff
met the insured status requirements of the Act on December 31, 2020. (R. 18). At step one, the
ALJ found that Plaintiff did not engage in substantial gainful activity as required by the Act. (R.

8

18). At step two, the ALJ determined that Plaintiff had severe impairments of obesity, gastritis,
diverticulitis status post colectomy, anxiety disorder, depression, and bipolar disorder. (R. 19). The
ALJ found, however, that Plaintiff did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments contained within the Act.
(Id.). The ALJ determined that Plaintiff has a moderate limitation in understanding, remembering,
or applying information. (Id.). The ALJ found Plaintiff to have a marked limitation in interacting
with others, but only a moderate limitation in concentrating, persisting, or maintaining pace. (R.
21). The ALJ also found Plaintiff to only have a moderate limitation in adapting or managing
himself. (Id.).
At step three, the ALJ looked to the listed impairments and determined that because
Plaintiff’s mental impairments did not cause at least two “marked” limitations or one “extreme”
limitation, the paragraph B criteria were not met. (R. 22). The ALJ then moved to consider
paragraph C criteria and found the evidence failed to establish the presence of the necessary
criteria. (R. 22-23). In doing so, the ALJ found Plaintiff did not have marked limitations in a broad
area of functioning, nor did he have an extreme limitation in a broad area of functioning. (R. 19).
The ALJ then considered step four, Plaintiff’s Residual Functional Capacity (“RFC”). (R.
23). The VE characterized Plaintiff’s past work as medium work and testified there are jobs in the
national economy that a person with Plaintiff’s limitations could perform – three of those being a
floor cleaner, a janitor, and a bus detailer. (R. 56). The VE stated that an individual of Plaintiff’s
age, education, and work history that could only maintain concentration for two hours would be
unable to perform any work in the national economy. (R. 57). But, the VE further testified that a
hypothetical person who could not interact with co-workers or supervisors would be unable to
perform any work in the national economy. (R. 56-57). The VE opined that to perform the medium

9

work she identified, an individual would only be allowed one absence each month and could only
be off-task for 10% of the time. (R. 56).
The ALJ determined Plaintiff to have an RFC for medium work except he can never climb
ladders, ropes, scaffolds, or be exposed to workplace hazards. (Id.). The ALJ further determined
Plaintiff would be limited to performing detailed but uninvolved tasks without a high production
rate pace; has the ability to make simple work-related decisions; can tolerate occasional changes
in work setting; and can work alone, which is defined as no interaction with the public; can have
limited interaction with co-workers and supervisors; cannot perform tandem tasks; and must have
five percent off-task time in addition to any regular breaks. (Id.). The ALJ found that Plaintiff was
unable to perform any past relevant work based on a review of the evidence and a comparison of
the physical demands of Plaintiff’s past relevant work to the RFC. (R. 33). Concurring with the
testimony of the VE, the ALJ found that Plaintiff cannot perform past relevant work, either as
actually or generally performed. (Id.).
At the fifth and final step, the ALJ found that through the date last insured, considering
Plaintiff’s age, education, work experience, and RFC, Plaintiff was capable of making a successful
adjustment to other work that existed in significant numbers in the national economy during the
alleged period of disability. (R. 34). In making these findings, the ALJ ultimately concluded
Plaintiff was “not under a disability within the meaning of the Social Security Act from January
19, 2019, through the date last insured.” (R. 16, 34).
This appeal followed that determination.
III.

Plaintiff’s Argument for Remand or Reversal
Plaintiff makes four arguments for reversal: (1) the ALJ erred in his treatment of the

medical opinions (Doc. #14 at 23); (2) the ALJ’s evaluation of Plaintiff’s subjective symptoms is

10

not supported by substantial evidence (Id. at 33); (3) the ALJ erred in the application of SSR 183p (Id. at 36); and (4) there is good cause for Plaintiff’s failure to appear at his previous hearing
and there is good cause for a late appeal of the previous decision (Id. at 37).
IV.

Standard of Review
The only issues before this court are whether the record reveals substantial evidence to

sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838 (11th
Cir. 1982), and whether the correct legal standards were applied. See Lamb v. Bowen, 847 F.2d
698, 701 (11th Cir. 1988); Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C.
§ 405(g) mandates that the Commissioner’s findings are conclusive if supported by “substantial
evidence.” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). The district court may not
reconsider the facts, reevaluate the evidence, or substitute its judgment for that of the
Commissioner; instead, it must review the final decision as a whole and determine whether the
decision is reasonable and supported by substantial evidence. See id. (citing Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a preponderance of evidence;
“(i)t is such relevant evidence as a reasonable person would accept as adequate to support a
conclusion.” Martin, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other citations
omitted). If supported by substantial evidence, the Commissioner’s factual findings must be
affirmed even if the evidence preponderates against the Commissioner’s findings. See Martin, 894
F.2d at 1529. While the court acknowledges that judicial review of the ALJ’s findings is limited
in scope, the court also notes that review “does not yield automatic affirmance.” Lamb, 847 F.2d
at 701.

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V.

Discussion
Plaintiff alleges (1) that the ALJ erred in the treatment of the medical opinions by not

providing an articulate assessment of the “supportability” and “consistency” of the medical
opinions, (2) there is no substantial evidence to support the ALJ’s evaluations of Plaintiff’s
subjective symptoms, (3) that the ALJ erred in applying SSR 18-3p, and (4) there is good cause
for Plaintiff’s failure to appear at the previous hearing and good cause for a late appeal of the
previous hearing. (Doc. #14 at 23, 33, 36, 37). The court addresses these arguments below.
A.

The ALJ Did Not Err in its Treatment of the Opinions of Dr. Estock, Dr. Bare,
Dr. Nichols, or Dave Harvey.

Plaintiff argues that the ALJ did not provide an “articulate assessment of the
‘supportability’ and ‘consistency’ of the medical opinions,” and further argues, “to the extent
articulated, the ALJ’s reasons for dismissing … the medical opinions is not supported by
substantial evidence.” (Doc. #14 at 23, 25).
The court’s review of the ALJ’s decision is limited to whether his decision is supported by
substantial evidence and whether the correct legal standards were applied. E.g., Wilson v.
Barnhart, 284 F.3d 1219, 1221 (11th Cir. 2002). When an ALJ articulates their evaluation of the
medical record in an opinion, the ALJ is required to “articulate … how persuasive” they find all
of the medical opinions. 20 C.F.R. § 416.920c (b). In explaining how they determined the
persuasiveness of the medical opinion, an ALJ must “explain how [they] considered the
supportability and consistency factors for a [medical opinion].” 20 C.F.R. § 416.920c (b)(2).
i.

The ALJ Properly Considered Dr. Estock’s Opinion.

As the ALJ indicated, while Dr. Estock recited Plaintiff’s impairments and found his
depression and anxiety severe, he did not provide a statement regarding Plaintiff’s functional

12

abilities because there was insufficient evidence to do so. (R. 29, 96-102). Dr. Estock simply did
not provide any opinion or prior administrative medical finding that the ALJ was required to
evaluate under the regulations, 20 C.F.R. § 404.1513, and the ALJ was only required to evaluate
this non-opinion evidence from Dr. Estock in assessing Plaintiff’s RFC. See 20 C.F.R. §
404.1545(a)(3) (RFC is based on all of the relevant medical and other evidence). The ALJ properly
reviewed the evidence from Dr. Estock and noted that the record evidence at the time of Dr.
Estock’s review supported his findings that Plaintiff had severe mental impairments; however, that
evidence was insufficient to assess any functional limitations. (R. 29, 100-01).
But, the ALJ evaluated Dr. Estock’s opinion findings regarding Plaintiff’s mental
impairments, and specifically addressed the supportability and consistency of those findings. (R.
29). The ALJ found them “moderately persuasive,” despite the concern they did not speak to “what
[Plaintiff] can still do despite [his] impairments … or limitations.” (R. 29); 20 C.F.R. §
404.1513(a)(2).
Plaintiff complains that the ALJ incorrectly indicated that he had not reported mental health
symptoms prior to May 2020. But, the record evidence he cites actually supports the ALJ’s
observation. Specifically, in March 2017 -- although Plaintiff expressed that he had little interest
and gained little pleasure in doing things -- denied feeling down, depressed, or hopeless. (R. 64243). And, his psychiatric evaluation was normal. (Id.). Further, in April 2017, while secondary
diagnoses of major depressive disorder and anxiety disorder were listed during his hospitalization
for diverticulitis, the records do not document any psychological complaints, and the psychiatric
examination was normal. (R. 581-84). And again, in November 2018, although mild major
depressive disorder and generalized anxiety disorder were listed as diagnoses, Plaintiff denied any

13

psychiatric symptoms, and his examination was normal.3 (R. 904-06). Plaintiff’s remaining
arguments lack merit. (See Doc. 18 at 13-14).
ii.

The ALJ Properly Considered Dr. Bare’s Opinion.

Turning to Dr. Bare’s findings, the ALJ discussed their supportability and consistency at
length (R. 30-31), and, in doing so, discussed an extensive amount of evidence. (Id.). The ALJ (1)
concluded that Dr. Bare’s findings were mostly persuasive, but (2) explained why particular
administrative findings (and portions of those) were not wholly persuasive, and (3) addressed
limitations “not phrased in vocationally relevant terms.” (R. 30).
The ALJ looked to “all available evidence in [Plaintiff’s] file” to determine his RFC. (R.
31). The ALJ recognized Dr. Bare’s examination findings that showed Plaintiff “had logical
thought process, no hallucinations, and normal perception” in determining his RFC. (R. 300). The
ALJ, “giv[ing Plaintiff] the benefit of the doubt,” found that he had a marked limitation in
interacting with others and a moderate limitation in three broad areas of mental functioning. (R.
30). Yet, Dr. Bare’s opinion only found moderate limitations across all four areas. (Id.). As a result,
substantial evidence supports the ALJ’s finding that Dr. Bare’s opinion is inconsistent with the
record as a whole.
iii.

The ALJ Properly Considered Dave Harvey’s and Dr. Nichol’s
Opinions.

Plaintiff argues the ALJ erred in considering Dave Harvey’s and Dr. Nichols opinions
together; however, he fails to cite any case law or regulation supporting that contention. (Doc. #14
at 29-30). Plaintiff points to a regulation indicating that an ALJ is not required to consider multiple
opinions from a single source separately; however, he has not presented any authority holding that

3

Further, the examinations Plaintiff cites are dated prior to the beginning of the relevant period the ALJ
considered, which began January 19, 2019. (R. 15).

14

an ALJ may not consider two opinions together, especially when (as here) the opinions express
almost identical findings and are contained in identical forms. (R. 809, 955). Of course, the key
question this court must address is whether substantial evidence supports the ALJ’s evaluation of
the opinions.
The ALJ properly evaluated the opinions of Harvey and Dr. Nichols for “supportability”
and “consistency,” as required by the regulations. See 20 C.F.R. § 404.1520c. The ALJ first
addressed the findings of each opinion. (See R. 31). The ALJ found the opinions were not
supported by Plaintiff’s treatment records. (R. 31). The ALJ also looked at the findings of Harvey
and Dr. Nichols by comparing them to the record as a whole. (Id.).
As the ALJ noted, Plaintiff “had logical thought process, no hallucinations, and normal
perception.” (Id.). These findings are supported by substantial evidence in the record. (See R. 20,
22, 25, 27, 29, 30, 31) (citing Exs. B3F, B5F, B6F, B8F, B17F, B18F). The ALJ even looked
beyond the date last insured and found there was no “deterioration in [Plaintiff’s] conditions.” (R.
31). The ALJ expounded upon his findings by specifically identifying factors from Dr. Nichols’s
opinion. (Id.). Although the ALJ considered the findings contained within Dr. Nichol’s opinion,
he also noted that Plaintiff had “good eye contact, clear and normal speech, clear stream of
consciousness, normal orientation and thought process with no evidence of confusion, loose
associations, tangentiality, flight of ideas.” (Id.). The ALJ also found that Plaintiff had “good
insight and judgment, adequate speed of mental processing, … grossly intact memory functions,
abstract thinking, and average range estimated intellectual ability.” (Id.). Thus, the ALJ relied on
substantial evidence from the record in addressing the “supportability” of Harvey and Dr.
Nichols’s opinions.

15

The ALJ then separately addressed the “consistency” of Harvey and Dr. Nichols’s
opinions. (See R. 31). The ALJ found the opinions to be inconsistent with the treatment records
and specifically noted that the findings of Plaintiff’s primary physicians showed a normal
orientation. (R. 31-32, 611, 642, 905, 678, 688). The ALJ further found the opinions inconsistent
with the record as there is no evidence of treatment or reports of symptoms (other than one
occasion in March 2017 when it was reported Plaintiff had little interest in activities). (R. 31-32).
The ALJ also correctly stated that the finding by the Harvey opinion that Plaintiff cannot be
gainfully employed is a finding reserved solely for the Commissioner. (Id.); see 20 C.F.R. §
404.1520b(c).
Counsel for Plaintiff claims the ALJ “picked and chose instances where [Plaintiff] had
some normal psychiatric findings.” (Doc. #14 at 30). To be clear, an ALJ may not “pick and
choose.” But, this court cannot find any instance when the ALJ did so here. (R. 15-34). In fact, it
is Plaintiff who is “picking and choosing” findings that favor his case. (See Doc. #14 at 30-32).
The ALJ looked to a limited number of findings made indicating that Plaintiff was reported to have
abnormal psychiatric findings, and contrasted those with a number of instances where Plaintiff
was found to have been within normal psychiatric measures. (See R. 31). In doing so, the ALJ
viewed the record evidence as a whole. See 20 C.F.R. § 416.920c (a).
This court concludes the ALJ’s assessments of Dr. Estock, Dr. Bare, Dave Harvey, and Dr.
Nichols’s opinions are supported by substantial evidence. See Martin, 894 F.2d at 1529.
B.

Substantial Evidence Supports the ALJ’s Evaluation of Plaintiff’s Subjective
Symptoms Reports.

The ALJ properly considered Plaintiff’s reports regarding his subjective symptoms by
consulting other evidence along with the medical evidence. Substantial evidence supports the
ALJ’s finding that Plaintiff’s alleged intensity and persistence of symptoms is not consistent with

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the record as a whole. The ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause symptoms alleged by Plaintiff; however, he determined that the
intensity and limiting effects were inconsistent with evidence in the record. (R. 24, 32).
The ALJ looked to statements made by Plaintiff himself in assessing the intensity and
persistence of his mental and physical impairments. (R. 24). For example, the ALJ found that, as
Plaintiff reported, “[he] is able to follow written instructions, manage his personal care without
problems, prepare simple meals using a microwave, clean inside the house, ride in a car, leave the
home, count change, watch sports, use a phone to text, shop at Walmart, and go places without
needing reminders.” (Id.) (citing Ex. B7E). The ALJ further found that Plaintiff’s allegations were
contradicted by “examination findings show[ing] [Plaintiff] had normal perception, thought
content, cognition, insight, and judgment.” (R. 26) (citing Exs. B6F and 8F). The ALJ concluded
that “the objective medical evidence does not fully support [Plaintiff’s] allegations of disabling
symptoms.” (Id.).
Plaintiff asks this court to consider a one-off secondary diagnosis of depression as evidence
that his mental health symptoms have persisted since 2017. At the same time, Plaintiff’s position
is wholly inconsistent with the fact that he sought no treatment and, in fact, denied the very
existence of depression–until May 2020. (R. 611, 642, 905, 678, 688). Here, the ALJ, looking to
the entire record, found that Plaintiff did not seek treatment for his mental impairments until May
2020. (R. 26). Those findings are supported by substantial evidence.
C.

The ALJ Did Not Err With Respect to SSR 18-3p.

Plaintiff argues that the ALJ erred in the application of SSR 18-3p when (1) he conflated a
treatment note of medication non-compliance related to blood pressure and diabetes medication
into one related to mental health related medication, and (2) relied on an erroneous finding that

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there had not been a psychiatric diagnosis before mid-2020 when in fact he had depression and
anxiety diagnoses in 2017 and 2018. (R. 33).
An ALJ need only consider alternate reasons for failing to comply with prescribed
treatment when the claim is denied solely for failure to comply with prescribed treatment. See
Ellison v. Barnhart, 355 F.3d 1272, 1275 (11th Cir. 2003) (finding where “an ALJ relies on
noncompliance as the sole ground for denial of disability benefits … the ALJ is required to
determine whether the claimant was able to afford the prescribed treatment.”). Plaintiff is correct
to point out that the ALJ mentions the failure to comply with a prescribed treatment plan. (Docs.
#14 at 36-67; #19 at 4-6). But here, Plaintiff’s noncompliance was not the sole ground for the
denial of benefits, as Plaintiff would have this court believe. (Doc. # 19 at 4-6).
The ALJ was not required to determine whether Plaintiff could afford the prescribed
treatment. Plaintiff offered no testimony that he could not afford his treatment and provided no
evidence that he applied for free or subsidized medication despite his financial constraints, nor has
he demonstrated why he failed to so do. See SSR 18-3p; Allen v. Schweiker, 645 F.2d 799 (5th Cir.
1981). The ALJ relied on the evidence submitted by Plaintiff and the record, as a whole, to
determine that he was ineligible. (See R. 24-27). The court finds the ALJ complied with SSR 183p.
D.

The ALJ Properly Denied Plaintiff’s Request to Re-Open His Previous
Hearing.

Plaintiff next argues there is good cause for his failure to appear at the hearing held in
January 2020, and there is good cause for his late appeal. Plaintiff contends that his failure to
appear was because he did not receive notice of the hearing until after the hearing, and he was out
of town during the hearing. (Doc. #14 at 38). A notice of the hearing was mailed to Plaintiff in
October 2019, which he signed and returned. (R. 94). The ALJ found “no evidence that would

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support reopening the prior determination” and Plaintiff’s request to reopen was “denied as final
and binding.” (R. 15).
Under 20 C.F.R. § 404.900(a), federal court review is appropriate only when a party has
completed the steps of (1) an initial review, (2) a reconsideration, (3) a hearing before an ALJ, and
(4) an appeals council review. Following that process, the Administration will issue its “final
decision” and a claimant may seek review with a federal court. See 20 C.F.R. § 404.900(a)(5).
Plaintiff has failed to complete the entire administrative review process regarding his prior
claim. As the ALJ noted in his Order of Dismissal, the initial determination dated January 18,
2019, remained in effect.4 (R. 95). Thus, Plaintiff failed to exhaust his remedies before the
Commissioner regarding his prior claim, and this court lacks jurisdiction to revisit the claim. See
20 C.F.R. § 404.900(a).
Plaintiff requested the ALJ to reopen the prior decision. (R. 312). The ALJ reviewed the
request and determined that there was no basis for reopening. (R. 15). As discussed above, the ALJ
correctly found that Plaintiff was not disabled and thus reopening would be futile. Additionally,
the Social Security Act does not provide for review of the Commissioner’s denial of a request to
reopen. See 42 U.S.C. § 405(g); Sherrod v. Chater, 74 F.3d 243, 245 (11th Cir. 1996). Therefore,
this court lacks subject matter jurisdiction to review a decision by the Commissioner not to reopen
a prior administrative decision under the Social Security Act, absent some colorable constitutional
challenge. See Califano v. Sanders, 430 U.S. 99, 107-09 (1977); Sherrod, 74 F.3d at 245. However,
Plaintiff is not without remedy. He may submit a written request for reconsideration to the

4
Contrary to Plaintiff’s argument, the record -- including the ALJ’s Notice of Dismissal -- indicates Plaintiff
had received notice of his initial hearing, as he signed and returned the enclosed Acknowledgment of Receipt (Notice
of Hearing) (R. 94).

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appropriate authority within the Administration laying out his argument for good cause as
explained in 20 C.F.R. § 404.909(b).
VI.

Conclusion
After careful review, the court concludes that the ALJ’s determination that Plaintiff is not

disabled is supported by substantial evidence and the proper legal standards were applied in
reaching this determination. The Commissioner’s final decision is therefore due to be affirmed. A
separate order in accordance with this memorandum of decision will be entered.
DONE and ORDERED this March 27, 2024.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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