Dillard v. Social Security Administration, Commissioner

Filing 16

MEMORANDUM OPINION AND ORDER AFFIRMING THE DECISION OF THE COMMISSIONER For the reasons stated within (and pursuant to 42 U.S.C. § 405(g)), the court AFFIRMS the Commissioner's decision. The court separately will enter final judgment. Signed by Magistrate Judge Nicholas A Danella on 3/27/2024. (SRD)

FILED
2024 Mar-27 PM 01:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
LIONAL SHON DILLARD,

)
)
)
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)
)
)
)
)
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Plaintiff,
v.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

Case No. 7:23-cv-00212-NAD

MEMORANDUM OPINION AND ORDER
AFFIRMING THE DECISION OF THE COMMISSIONER
Pursuant to 42 U.S.C. § 405(g), Plaintiff Lional Shon Dillard filed for review
of an adverse, final decision of the Commissioner of the Social Security
Administration (“Commissioner”) on his claim for disability benefits. Doc. 1.
Plaintiff Dillard applied for disability benefits with an alleged onset date of
September 26, 2019. 1 Doc. 7-4 at 2; Doc. 7-3 at 38. The Commissioner denied
Dillard’s claim for benefits. Doc. 7-3 at 2–6, 16–28. In this appeal, the parties
consented to magistrate judge jurisdiction. Doc. 15; 28 U.S.C. § 636(c)(1); Fed. R.
Civ. P. 73.
After careful consideration of the parties’ submissions, the relevant law, and
1

Dillard initially alleged an onset date of September 1, 2017 (Doc. 7-4 at 2), but
later amended his onset date to September 26, 2019 (Doc. 7-3 at 38).
1

the record as a whole, the court AFFIRMS the Commissioner’s decision.
ISSUES FOR REVIEW
In this appeal, Dillard argues that the court should reverse the Commissioner’s
decision for four reasons: (1) the Administrative Law Judge (ALJ) “committed
reversible error by improperly rejecting the opinion of Mr. Dillard’s treating
physician, Maria Prelipcean”; (2) the Appeals Council “committed reversible error
by failing to accept additional evidence from Mr. Dillard’s treating surgeon,
Kimberly Vinson”; (3) “the ALJ committed reversible error by improperly rejecting”
Dillard’s testimony “regarding his subjective symptoms”; and (4) “the ALJ
committed reversible error by making an RFC determination without fully and fairly
developing the record.” Doc. 10 at 5.
STATUTORY AND REGULATORY FRAMEWORK
A claimant applying for Social Security benefits bears the burden of proving
disability. Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). To qualify for
disability benefits, a claimant must show disability, which is defined as the “inability
to engage in 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.”
42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. § 404.1505.
A physical or mental impairment is “an impairment that results from

2

anatomical, physiological, or psychological abnormalities which are demonstrable
by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 423(d)(3).
The Social Security Administration (SSA) reviews an application for
disability benefits in three stages:

(1) initial determination, including

reconsideration; (2) review by an ALJ; and (3) review by the SSA Appeals Council.
See 20 C.F.R. § 404.900(a)(1)–(4).
When a claim for disability benefits reaches an ALJ as part of the
administrative process, the ALJ follows a five-step sequential analysis to determine
whether the claimant is disabled. The ALJ must determine the following:
(1)

whether the claimant is engaged in substantial gainful activity;

(2)

if not, whether the claimant has a severe impairment or
combination of impairments;

(3)

if so, whether that impairment or combination of impairments
meets or equals any “Listing of Impairments” in the Social
Security regulations;

(4)

if not, whether the claimant can perform his past relevant work
in light of his “residual functional capacity” or “RFC”; and

(5)

if not, whether, based on the claimant’s age, education, and work
experience, he can perform other work found in the national
economy.

20 C.F.R. § 404.1520(a)(4); see Winschel v. Commissioner of Soc. Sec. Admin., 631
F.3d 1176, 1178 (11th Cir. 2011).
The Social Security regulations “place a very heavy burden on the claimant to
3

demonstrate both a qualifying disability and an inability to perform past relevant
work.” Moore, 405 F.3d at 1211. At step five of the inquiry, the burden temporarily
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.”
Washington v. Commissioner of Soc. Sec., 906 F.3d 1353, 1359 (11th Cir. 2018)
(quoting Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987)).

If the

Commissioner makes that showing, the burden then shifts back to the claimant to
show that he cannot perform those jobs. Id. So, while the burden temporarily shifts
to the Commissioner at step five, the overall burden of proving disability always
remains on the claimant. Id.
STANDARD OF REVIEW
The federal courts have only a limited role in reviewing a plaintiff’s claim
under the Social Security Act. The court reviews the Commissioner’s decision to
determine whether “it is supported by substantial evidence and based upon proper
legal standards.” Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997).
A.

With respect to fact issues, pursuant to 42 U.S.C. § 405(g), the

Commissioner’s “factual findings are conclusive if supported by ‘substantial
evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990). “Substantial
evidence is more than a scintilla and is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Crawford v. Commissioner of

4

Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004).
In evaluating whether substantial evidence supports the Commissioner’s
decision, a district court may not “decide the facts anew, reweigh the evidence,” or
substitute its own judgment for that of the Commissioner. Winschel, 631 F.3d at
1178 (citation and quotation marks omitted); see Walden v. Schweiker, 672 F.2d 835,
838 (11th Cir. 1982) (similar). If the ALJ’s decision is supported by substantial
evidence, the court must affirm, “[e]ven if the evidence preponderates against the
Commissioner’s findings.” Crawford, 363 F.3d at 1158 (quoting Martin, 894 F.2d
at 1529).
But “[t]his does not relieve the court of its responsibility to scrutinize the
record in its entirety to ascertain whether substantial evidence supports each
essential administrative finding.” Walden, 672 F.2d at 838 (citing Strickland v.
Harris, 615 F.2d 1103, 1106 (5th Cir. 1980)); see Walker v. Bowen, 826 F.2d 996,
999 (11th Cir. 1987). “The ALJ must rely on the full range of evidence . . . , rather
than cherry picking records from single days or treatments to support a conclusion.”
Cabrera v. Commissioner of Soc. Sec., No. 22-13053, 2023 WL 5768387, at *8 (11th
Cir. Sept. 7, 2023).
B.

With respect to legal issues, “[n]o . . . presumption of validity attaches

to the [Commissioner’s] legal conclusions, including determination of the proper
standards to be applied in evaluating claims.” Walker, 826 F.2d at 999.

5

BACKGROUND
A.

Dillard’s personal and medical history

Dillard was born on October 25, 1968. Doc. 7-7 at 33.
The administrative record contains medical records of Dillard’s appointments
with his primary care physician, Dr. Michael Han, beginning in 2013. Doc. 7-14 at
58. His records from Dr. Han from 2013 to 2016 show developing thyroid issues
and some recurrent bouts of pneumonia, but no other major problems. Doc. 7-14 at
35–62.
In

2016,

Dillard

underwent

a

parathyroidectomy

to

address

hyperparathyroidism. Doc. 7-15 at 13. At the time, he was under the care of Dr.
Han and endocrinologist, Dr. Maria Prelipcean. Doc. 7-15 at 20. At the time of his
surgery, Dillard reported “some difficulty with dyspnea [shortness of breath] on
exertion.” Doc. 7-15 at 24.
On September 5, 2017, Dillard saw Dr. Han for an annual physical. Doc. 714 at 29. His exam was generally normal; he had a higher than normal body mass
index (BMI) and was instructed to follow an exercise regimen and low calorie diet.
Doc. 7-14 at 29–31.
On September 6, 2018, Dillard saw Dr. Han for an annual exam. Doc. 7-14
at 24. Dillard had a history of high cholesterol and was on a diet. Doc. 7-14 at 24.
He also had a multinodular goiter that was being followed by Dr. Prelipcean and for

6

which a thyroidectomy was recommended.

Doc. 7-14 at 24.

Dillard was

prehypertensive and reported fatigue. Doc. 7-14 at 24. His BMI was above normal
and he was instructed to follow an exercise program and a low calorie diet. Doc. 714 at 26. His history of hyperparathyroidism was listed as stable. Doc. 7-14 at 26.
On October 30, 2018, Dillard underwent a total thyroidectomy at St. Vincent’s
Hospital on the recommendation of Dr. Prelipcean. Doc. 7-8 at 49–55.
On September 12, 2019, Dillard saw Dr. Han for an annual exam. Doc. 7-14
at 19. Dillard had vocal cord paralysis after his thyroidectomy and had consulted
with specialists about surgical options; one ENT (ear nose and throat) surgeon had
already recommended surgery. Doc. 7-14 at 19. Dillard reported fatigue but no
dyspnea. Doc. 7-14 at 19–20. An ENMT (ear, nose, mouth, and throat) exam was
normal. Doc. 7-14 at 20. He had an above normal BMI and was encouraged to
exercise and diet. Doc. 7-14 at 21.
On September 26, 2019, Dillard saw Dr. Kimberly Vinson at the Vanderbilt
Voice Center at the Vanderbilt University Medical Center with complaints of trouble
breathing and speaking since his 2018 thyroidectomy; he was referred to Dr. Vinson
by his endocrinologist, Dr. Prelipcean. Doc. 7-11 at 48–49. He was diagnosed with
stenosis of the larynx, paralysis of the right vocal folds, and paresis of the left vocal
folds. Doc. 7-11 at 48. Dr. Vinson noted that Dillard had a change of voice after
his thyroid surgery and noted that he was “unable to move around as he did prior to

7

thyroidectomy due to respiratory distress,” and that he had to stop and catch his
breath after walking even short distances. Doc. 7-11 at 49. Dillard stated that his
voice was raspy, but his biggest complaint was trouble breathing at rest that was
even worse with exertion. Doc. 7-11 at 50. Dillard stated that he was unable to do
any work around the house or walk a block without having to stop; he said he had
been in good health with no limitation prior to his thyroidectomy. Doc. 7-11 at 50.
Upon examination, Dillard was breathing well but had inspiratory stridor (high
pitched breathing) with tracheal tugging. Doc. 7-11 at 50. An external ENMT
examination was normal. Doc. 7-11 at 50. A scope of Dillard’s throat showed
immobile right vocal folds and minimal abduction in the left vocal folds. Doc. 7-11
at 50. Dr. Vinson presented Dillard with treatment options, including surgical
cordotomy or tracheotomy (which would “certainly improve his airway”), and
Dillard said he would contact Dr. Vinson if he wanted to proceed with any of the
surgical options. Doc. 7-11 at 52.
On November 25, 2019, Dillard underwent an elective right cordotomy
performed by Dr. Vinson to address his difficulty breathing. Doc. 7-10 at 32–39,
62–63.
On December 2, 2019, Dillard presented to the emergency department at St.
Vincent’s Hospital with shortness of breath and difficulty breathing. Doc. 7-8 at 10–
11. He had undergone his cordotomy one week prior and his breathing had improved

8

at first but then worsened. Doc. 7-8 at 11. He had throat pain with breathing stridor
and his breathing difficulty remained the same whether he was sitting or lying down.
Doc. 7-8 at 11. An ENMT examination was normal. Doc. 7-8 at 13. After ENT
evaluations by two doctors, Dr. Simpson and Dr. Black, Dillard was found to have
edema in his throat and was given racemic epinephrine and steroid treatment; he was
admitted to the intensive care unit for close airway monitoring. Doc. 7-8 at 15.
Dillard was diagnosed with bilateral cord paralysis with postoperative worsening
airway obstruction. Doc. 7-8 at 16. On December 3, 2019, Dillard was reported to
have reduced edema and to have done okay overnight with improved breathing.
Doc. 7-8 at 44. He was discharged with a steroid prescription. Doc. 7-8 at 44.
On December 5, 2019, Dillard saw Dr. Vinson for a follow-up appointment.
Doc. 7-9 at 9. Since his release from the emergency department, Dillard felt that his
breathing was “stable or slightly better than before surgery.” Doc. 7-9 at 9. He was
having some trouble with a feeling of dryness in his throat and using his CPAP. Doc.
7-9 at 9. Dillard had severe roughness of voice and mild turbulent breathing, but
was breathing “well” with mild audible breathing with deep inspiration and no other
breathing issues. Doc. 7-9 at 9. An external ENMT exam was normal. Doc. 7-9 at
9. Dr. Vinson scoped Dillard’s throat and found bilateral vocal cord paralysis, some
granulation tissue at the surgical site, and limited glottic airway. Doc. 7-9 at 10.
On December 18, 2019, Dillard saw Dr. Vinson for a follow-up appointment.

9

Doc. 7-9 at 6–8. His breathing was unlabored. Doc. 7-9 at 8. Dr. Vinson performed
a revision cordotomy to remove granulated tissue. Doc. 7-9 at 11–12.
On March 20, 2020, Dillard saw his endocrinologist, Dr. Prelipcean, for a
telehealth visit for his thyroid issues. Doc. 7-13 at 38. His voice sounded fine on
the telephone, and he had no shortness of breath and was breathing “ok”; Dillard
reported that his energy level was “ok,” and that he had been “doing a lot of
yardwork” but was congested. Doc. 7-13 at 38. Dillard was not having any thyroid
problems. Doc. 7-13 at 38. Dr. Prelipcean noted that Dillard sounded “much better
on the phone” and had “not had any more shortness of breath.” Doc. 7-13 at 39.
On June 10, 2020, Dillard saw Dr. Prelipcean for his thyroid issues. Doc. 712 at 20. Dr. Prelipcean noted that Dillard’s voice was “raspy but better” and that
his breathing was baseline; it had been better after surgery but was “now back to
exertional” shortness of breath. Doc. 7-12 at 20. Dr. Prelipcean noted that Dillard
had gained 20 pounds and was less active; he had no choking. Doc. 7-12 at 20. He
appeared clinically euthyroid. Doc. 7-12 at 21. Dillard had an above normal BMI
and was instructed to follow a daily exercise plan and low calorie diet. Doc. 7-12 at
21.
On September 17, 2020, Dillard saw Dr. Han for an annual exam. Doc. 7-12
at 15; Doc. 7-14 at 14. Dillard was tolerating his thyroid medications well, had no
change in symptoms, and was “stable.” Doc. 7-12 at 15. Dillard complained of

10

fatigue. Doc. 7-12 at 15. He had a higher than normal BMI and was instructed to
follow an exercise program and low calorie diet; he also was directed to exercise to
combat prehypertension. Doc. 7-14 at 16. Dr. Han noted that there had “been no
other interval hospitalizations, surgeries or emergency room visits” and “no other
focal complaints at this time.” Doc. 7-12 at 15. Dillard did not have dyspnea or
chest pain. Doc. 7-12 at 16. His ENMT exam was normal. Doc. 7-12 at 16.
On October 12, 2020, Dillard saw Dr. Prelipcean for his thyroid conditions;
he had vocal cord paresis and hoarseness, but had no choking or breathing problems.
Doc. 7-12 at 11. Dillard was planning to make an appointment with Dr. Vinson at
Vanderbilt. Doc. 7-12 at 11. He appeared clinically euthyroid. Doc. 7-12 at 12.
On October 15, 2020, Dillard saw Dr. Prelipcean for a thyroid levels check
and appeared to be clinically euthyroid. Doc. 7-12 at 10.
On January 4, 2021, Dr. Richard Snow noted that he had seen Dillard for sleep
apnea, and that Dillard’s CPAP machine had been retitrated, in part to account for
the fact that he had gained 50 pounds. Doc. 7-12 at 31. Dr. Snow noted that Dillard
had stridor both while awake and asleep that did not resolve while using his CPAP
machine. Doc. 7-12 at 31–32.
On January 11, 2021, Dillard’s wife, Crystal Dillard, filled out a third-party
function report. Doc. 7-7 at 13–18. Crystal stated that Dillard’s life had “changed
drastically” since his thyroidectomy resulted in vocal cord paralysis, and that Dillard

11

could no longer perform household tasks or maintain employment because his
breathing was so limited and he could not engage in any physical exertion. Doc. 77 at 13. Crystal stated that Dillard took their son to school and assisted with childcare
and could do limited household tasks like laundry for a short period of time. Doc.
7-7 at 14. She stated that she and their son helped with household tasks, that Dillard
could not walk more than a few feet without “gasping for air,” and that Dillard could
no longer do things like mow the lawn or do manual tasks around the home. Doc.
7-7 at 14. She stated that Dillard could only run errands or shop for a few minutes.
Doc. 7-7 at 14. She stated that Dillard always had used a CPAP machine but after
his injury he started gasping for air in his sleep. Doc. 7-7 at 14. She stated that
Dillard had to do self-care slowly and could no longer walk or exercise. Doc. 7-7 at
14.
Crystal stated that Dillard cooks their meals daily, but that he has to sit down
to catch his breath. Doc. 7-7 at 15. She stated that he could do laundry and dishes,
but could not clean the house or perform household repairs or mow the lawn. Doc.
7-7 at 15. Crystal stated that Dillard could shop for groceries—though it took him a
long time because he had to go slow and rest—and he could handle money. Doc. 77 at 16. She stated that Dillard could no longer participate in physical activities.
Doc. 7-7 at 17. Crystal stated that Dillard’s impairments affected his ability to lift,
walk, talk, climb stairs, and complete tasks, and that he could not lift more than 20

12

pounds, walk more than a few feet at a regular pace, talk for long, or climb stairs.
Doc. 7-7- at 18.
Also on January 11, 2021, Dillard filled out his own adult function report.
Doc. 7-7 at 25–32. Dillard stated that he had trouble breathing, was not able to walk
without taking breaks, and could no longer do yardwork. Doc. 7-7 at 25. Dillard
stated that on a typical day he would get his son ready for school, take his son to
school, do some housework (but not too much because it would make him tired the
next day), pick up his son from school, get supper ready, shower, and get ready for
bed. Doc. 7-7 at 26. Dillard stated that, with the help of his wife and son, he took
care of their dog. Doc. 7-7 at 26. He stated that he used a CPAP machine and that
he had no issues with personal care. Doc. 7-7- at 26. He stated that he had no
problem cooking meals daily, though he had to watch what he ate because he choked
easily. Doc. 7-7 at 27. He stated that he was able to do chores, including cleaning,
laundry, vacuuming, and small home repairs, as long as he could take breaks to rest.
Doc. 7-7 at 27. He stated that he had to hire someone to do yardwork because doing
yardwork resulted in his being unable to do anything the next day. Doc. 7-7 at 27.
He stated that he was able to shop in stores for groceries and cleaning supplies about
once per week. Doc. 7-7 at 28. He stated that he had previously golfed but had to
quit. Doc. 7-7 at 29. Dillard stated that his impairments affected his ability to lift,
squat, bend, reach, walk, sit, kneel, talk, climb stairs, and complete tasks. Doc. 7-7

13

at 30. He stated that he got winded walking to the mailbox and back, that he had
trouble talking, and that he had trouble climbing stairs and lifting objects due to his
breathing. Doc. 7-7 at 30. He stated that he could walk about 20 yards before
needing to stop and rest for 5 to 10 minutes. Doc. 7-7 at 30.
On April 14, 2021, Dillard saw Dr. Prelipcean for management of his thyroid
conditions. Doc. 7-16 at 20. Dillard had gained 10 pounds. Doc. 7-16 at 20. He
had hoarseness but Dr. Prelipcean noted that he “talk[ed] fine” and had “stable”
breathing. Doc. 7-16 at 20. His BMI remained above normal and he was instructed
to exercise and diet. Doc. 7-16 at 21. Dillard appeared clinically euthyroid. Doc. 716 at 21. Dr. Prelipcean noted that Dillard sounded much better and had not had any
more shortness of breath. Doc. 7-16 at 22.
On June 23, 2021, Dillard underwent a disability assessment at Bear Creek
Family Practice LLC with Dr. Mohammad Aryanpure.

Doc. 7-13 at 44–51.

Dillard’s range of motion, dexterity, and grip strength were normal. Doc. 7-13 at
45–47.

On examination, Dillard denied fatigue but admitted hoarseness and

shortness of breath. Doc. 7-13 at 48–49. Dillard stated that he had undergone
multiple surgeries to help correct his vocal cords but “it did not help.” Doc. 7-13 at
48. Dillard’s ENMT exam was normal. Doc. 7-13 at 49–50. Otherwise, Dillard’s
exam was generally normal. Doc. 7-13 at 48–51.
On September 21, 2021, Dillard saw Dr. Han for an annual physical. Doc. 7-

14

14 at 8. Dr. Han noted that, regarding his history of thyroid issues, Dillard was
stable, was compliant with his medication, and was tolerating his medication well
without any change in symptoms. Doc. 7-14 at 8. He had no dyspnea. Doc. 7-14
at 9. An ENMT exam was normal. Doc. 7-14 at 9. Dillard reported fatigue and had
an above normal BMI for which an exercise program and diet were recommended.
Doc. 7-14 at 8, 10. Dillard was advised to continue to work on his diet. Doc. 7-14
at 10. Dr. Han noted that Dillard had had no “other interval hospitalizations,
surgeries, or emergency room visits,” and had “no other focal complaints at this
time.” Doc. 7-14 at 8.
On October 20, 2021, Dillard saw Dr. Prelipcean for management of his
thyroid medications. Doc. 7-16 at 8. Dillard’s weight was stable. Doc. 7-16 at 8.
His voice was “baseline,” but he reported that he felt like his breathing was “a little
worse, similar to prior to surgery,” and he stated that he intended to seek further
treatment at Vanderbilt. Doc. 7-16 at 8. His BMI was above normal and he was
instructed to follow a daily exercise program and diet. Doc. 7-16 at 10. Dillard was
euthyroid. Doc. 7-16 at 10.
On November 22, 2021, Dr. Prelipcean filled out a medical source statement
in which she stated that Dillard had diagnoses of hypothyroidism, vocal cord
paralysis, and hypocalcemia. Doc. 7-16 at 55. Dr. Prelipcean checked boxes—
without further explanation—that Dillard would not be able to sustain an 8-hour

15

workday in a competitive environment and would miss 5 or more days of work per
month as a result of his impairments. Doc. 7-16 at 55.
On December 9, 2021, Dillard saw Dr. Vinson for a follow-up appointment.
Doc. 7-16 at 42; Doc. 7-17 at 10. Dillard reported that he felt that “his breathing has
gradually worsened over the past year.” Doc. 7-16 at 42. Dillard stated that he had
felt “well for about a year after his last surgery,” but that he had increased dyspnea
with movement which had been “stable over some months,” and that he was barely
able to walk to the mailbox. Doc. 7-16 at 42. Dillard reported gaining 50 pounds in
the last 2 years and believed that the weight gain might be related to his dyspnea.
Doc. 7-16 at 42. Dillard had moderate roughness of his voice and stridor at rest, but
no “retractions or air hunger.” Doc. 7-16 at 42. Dr. Vinson scoped Dillard’s throat
and noted bilateral vocal fold immobility and limited glottic airway. Doc. 7-16 at
43. Dr. Vinson discussed options for treatment with Dillard, who said he wanted to
try another cordotomy before undergoing a tracheotomy. Doc. 7-16 at 44.
On January 6, 2022, Dillard saw Dr. Han for a telehealth visit with sinus
congestion, sinus pressure, and cough; he did not have dyspnea or chest pain. Doc.
7-14 at 7. He was diagnosed with an upper respiratory infection and treated with
antibiotics. Doc. 7-14 at 7.
On June 21, 2022, Dr. Vinson filled out a medical source statement in which
she checked boxes showing that Dillard suffered from vocal paralysis, obstructed

16

airway, shortness of breath, and weight gain (though not fatigue), that he was not
able to sustain an 8-hour workday in a competitive work environment, would miss
“five days or more” of work per month due to his impairment, and that his
impairments had been present since September 2019. Doc. 7-3 at 15.
B.

Social Security proceedings
1.

Initial application and denial of benefits

On July 28, 2020, Dillard filed an application for disability insurance benefits
alleging disability due to obesity and thyroid gland disorders with an onset date of
September 1, 2017. Doc. 7-4 at 2. On July 1, 2021, Dillard’s application was denied
at the initial level based on a finding that Dillard did not have severe limitations and
could stand or walk for about 6 hours in an 8-hour workday. Doc. 7-4 at 2–8; Doc.
7-5 at 9–12.
On July 8, 2021, Dillard requested reconsideration of the initial denial. Doc.
7-4 at 9; Doc. 7-5 at 18. On August 27, 2021, Dillard’s application was denied at
the reconsideration level based on a finding that he could do medium work. Doc. 74 at 9–16; Doc. 7-5 at 20–23.
On August 31, 2021, Dillard requested a hearing before an ALJ. Doc. 7-5 at
29–30.
2.

ALJ hearing

On April 14, 2022, the ALJ conducted a telephonic hearing on Dillard’s

17

application for benefits. Doc. 7-3 at 33–35. The ALJ noted that the record would
remain open for a brief period after the hearing because Dillard was trying to obtain
medical records for a November 2021 doctor’s visit. Doc. 7-3 at 37.
Dillard’s counsel noted that Dillard was amending his onset date to September
26, 2019. Doc. 7-3 at 38. Dillard’s counsel also provided an opening statement
summarizing Dillard’s position, noting that Dillard had a 33-year work record, but
had severe impairments of hyperparathyroidism, vocal paralysis and scar tissue that
impaired his ability to speak, and shortness of breath due to issues in his throat, as
well as hypocalcemia, fatigue, and obesity. Doc. 7-3 at 39.
Dillard testified that he had previously worked in machine maintenance and
as an oiler greaser. Doc. 7-3 at 40–41. Dillard testified that, since his thyroid
surgery, he had trouble breathing and trouble speaking, and that he could not walk
far and had to sit down to catch his breath. Doc. 7-3 at 42. He testified that his vocal
cords were paralyzed when his thyroid was removed, so he had to take deep breaths
to talk. Doc. 7-3 at 42. Dillard testified that he could not do any yardwork or play
with his 10-year-old child because he must sit for long periods of time to rest and
catch his breath. Doc. 7-3 at 42. He testified that he was always tired, was “not able
to get enough breath in,” had to take medication every day, and had gained quite a
bit of weight since his surgery because he was “not able to do anything.” Doc. 7-3
at 43. Dillard testified that, on an average day, he gets up, gets his son ready for

18

school, takes his son to school, comes home, sits down to “rest a little bit,” and
“might try” to do laundry or “dust, whatever,” with breaks to sit down and rest. Doc.
7-3 at 43. Dillard testified that, if he was not doing anything strenuous, he could
stand for about 10 to 15 minutes, then had to sit down for about 10 to 15 minutes to
catch his breath, but he could only do “heavy” activity for a few minutes before
needing to sit down. Doc. 7-3 at 44. He stated that he had the same symptoms every
day. Doc. 7-3 at 44.
Dillard testified that he lived with his wife and son and was able to drive and
run errands and go to the grocery store, but had to “walk real slow pushing the cart”
and had to sit down and rest for about 15 minutes after pushing the cart to his car
and unloading the groceries. Doc. 7-3 at 44–45. Dillard testified that he was able
to handle personal care by himself, that he did not have side effects from his
medication, and that he did not have trouble sleeping. Doc. 7-3 at 45. Dillard
testified that his main disabling condition was “breathing,” specifically, “[t]rying to
get enough air in so I can do my daily whatever I need to do,” but that he did not
have a lung problem. Doc. 7-3 at 45. He stated that he saw Dr. Prelipcean for his
thyroid problems and Dr. Vinson for his vocal cord issues, and that neither doctor
could do anything to improve his condition. Doc. 7-3 at 46. Dillard stated that the
last time he saw Dr. Vinson she scoped his throat and said “everything looked fine”
and had not gotten worse. Doc. 7-3 at 47. Dillard testified that he had no issues

19

with sitting in a chair throughout the day. Doc. 7-3 at 47. He testified that something
like picking up a vacuum or clothes hamper can make him lose his breath. Doc. 73 at 47. He stated that his wife and son help make sure everything gets done. Doc.
7-3 at 48. Dillard testified that he had not worked since 2017. Doc. 7-3 at 48.
Vocational Expert (VE) Lynn Jones then testified that a hypothetical
individual with Dillard’s age, education, work experience, and RFC (residual
functional capacity) would not be able to perform Dillard’s past relevant work. Doc.
7-3 at 49–50. However, VE Jones testified that such a hypothetical individual with
the limitations posed by the ALJ could perform jobs classified as light work that
existed in significant numbers in the national economy. Doc. 7-3 at 50–52. VE
Jones testified that no jobs existed at the sedentary level that such a hypothetical
individual could perform. Doc. 7-3 at 52. VE Jones testified that an individual could
not miss two or more days of work per month and remain employed. Doc. 7-3 at 54.
3.

ALJ decision

On May 4, 2022, the ALJ entered an unfavorable decision. Doc. 7-3 at 16–
28. The ALJ found that Dillard “has not been under a disability within the meaning
of the Social Security Act from September 26, 2019, through the date of this
decision.” Doc. 7-3 at 20.
In the decision, the ALJ applied the five-part sequential test for disability (see
20 C.F.R. § 404.1520(a); Winschel, 631 F.3d at 1178). Doc. 7-3 at 20–21. The ALJ

20

found that Dillard met the insured status requirements through December 31, 2022,
and had not engaged in substantial gainful activity since September 26, 2019, the
amended alleged onset date. Doc. 7-3 at 21–22. The ALJ found that Dillard had
severe impairments of “obesity and hypothyroidism with thyroidectomy causing
vocal cord paralysis.” Doc. 7-3 at 22. The ALJ also found that Dillard suffered from
non-severe sleep apnea. Doc. 7-3 at 22. The ALJ determined that Dillard did not
have an impairment or combination of impairments that met or medically equaled
the severity of one of the impairments listed in the applicable Social Security
regulations. Doc. 7-3 at 23.
The ALJ determined Dillard’s RFC, finding that Dillard had the capacity to
perform “light work” as defined in the applicable regulations,2 except that Dillard
could only occasionally climb ramps; could not climb ladders, ropes, or scaffolds;
could have no more than occasional verbal communications in a job in which verbal
communications were not an essential part of job duties; and had to avoid
concentrated exposure to pulmonary irritants such as dust, fumes, odors, gases, poor
ventilation, and chemicals. Doc. 7-3 at 22–23.
2

Pursuant to the applicable regulations, “[l]ight work involves lifting no more than
20 pounds at a time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, [a claimant] must have the
ability to do substantially all of these activities.” 20 C.F.R. § 404.1567(b).
21

In making the RFC finding, the ALJ “considered all symptoms and the extent
to which these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence,” according to the requirements of 20 C.F.R.
§ 404.1529 and SSR (Social Security Ruling) 16-3p. Doc. 7-3 at 23. The ALJ also
stated that the ALJ had considered the medical opinions and prior administrative
medical findings. Doc. 7-3 at 23.
In assessing Dillard’s RFC and the extent to which Dillard’s symptoms
limited his function, the ALJ’s decision stated that the ALJ “must follow” the
required “two-step process”:

(1) “determine[] whether there is an underlying

medically determinable physical or mental impairment[] . . . that could reasonably
be expected to produce the claimant’s pain or other symptoms”; and (2) “evaluate
the intensity, persistence, and limiting effects of the claimant’s symptoms to
determine the extent to which they limit the claimant’s work-related activities.”
Doc. 7-3 at 23.
The ALJ stated that Dillard alleged an inability to work due to vocal cord
issues after his vocal cords were paralyzed as a result of a thyroid surgery. Doc. 73 at 23. The ALJ summarized Dillard’s testimony that his vocal cord issues limited
his activities because he is always tired, that he got his son ready and took his son to
school in the mornings but then had to rest when he got home, that he could sit for
10 to 15 minutes and stand for 10 to 15 minutes at a time, that he was able to drive

22

and run errands but had to walk very slowly at the store, and that he had to rest after
pushing the cart or unloading groceries. Doc. 7-3 at 23. The ALJ stated that Dillard
alleged that his main issue was that he could not get enough air, although the
condition was not due to a lung issue. Doc. 7-3 at 23.
The ALJ found that Dillard’s “statements concerning the intensity,
persistence, and limiting effects of the severe impairment(s) is/are not consistent
with the objective medical evidence.” Doc. 7-3 at 23. The ALJ found that Dillard
alleged “debilitating symptomatology and limitations, yet the evidence as a whole
fails to confirm a disabling level of functional limitations caused by any physical or
mental impairment.” Doc. 7-3 at 23. The ALJ found that Dillard’s description of
his symptoms and limitations throughout the record had “generally been inconsistent
and unpersuasive,” and that, while it would be reasonable for Dillard to “experience
some symptoms that would cause some exertional and non-exertional limitations,
the objective medical evidence does not support a finding of disability.” Doc. 7-3 at
23.
The ALJ then found that Dillard had a thyroidectomy in October 2018, which
caused vocal cord paralysis due to a recurrent laryngeal nerve injury. Doc. 7-3 at
23. The ALJ found that the injury caused “some hoarseness and paresis,” and Dillard
underwent a right partial cordotomy in November 2019 for his vocal cord paralysis.
Doc. 7-3 at 23. The ALJ found that Dillard presented to the hospital a week later

23

with difficulty breathing, was treated with steroids, and improved. Doc. 7-3 at 23–
24. The ALJ found that, when Dillard saw Dr. Vinson for a follow-up appointment
in December 2019, he had stable breathing, generally normal findings other than
some granulation at the surgery site and mild hypoparathyroidism, and was
tolerating his medication well. Doc. 7-3 at 24.
The ALJ found that, through September 2020, Dillard had “no further
hospitalization, surgeries, or emergency room visits, and no other focal complaints,”
and records from regular follow-up appointments with Dr. Prelipcean and Dr. Han
did not show disabling limitations or symptoms. Doc. 7-3 at 24. The ALJ found
that Dillard mainly complained of fatigue and had mild post-hypoparathyroidism,
but was doing well on his medication, had normal ENMT examinations, and his
hypothyroidism was stable. Doc. 7-3 at 24. The ALJ found that Dillard had sinus
issues in January 2022, but that those issues were due to an upper respiratory
infection. Doc. 7-3 at 24.
The ALJ found that in June 2021 Dillard had a consultative examination with
Dr. Aryanpure that was normal and had a normal pulmonary function test; the ALJ
found that Dr. Aryanpure did not give a medical opinion under the applicable rules.
Doc. 7-3 at 24. The ALJ found that Dillard saw Dr. Vinson in December 2021 with
breathing that had gradually worsened over the prior year and that was worse with
movement, such that he reported that he was barely able to walk and had gained 50

24

pounds; he had stridor and limited glottic airway. Doc. 7-3 at 24. The ALJ found
that Dillard chose to undergo a left cordotomy. Doc. 7-3 at 24. The ALJ found that,
“although [Dillard] reported to Dr. Vinson that his symptoms had worsened over the
year, a review of Dr. Prelipcean’s and Dr. Han’s treatment notes over that past year
is devoid of any complaints of worsening breathing,” and their notes indicated
normal exams with fatigue that could have been “due to the CPAP and significant
weight gain.” Doc. 7-3 at 24. The ALJ found that Dillard “was able to talk and
communicate at the hearing.” Doc. 7-3 at 24.
The ALJ found that Dr. Prelipcean opined that Dillard would miss 5 or more
days of work per month due to his impairments. Doc. 7-3 at 24. The ALJ then found
that Dillard qualified as obese, and that—as set forth in SSR 19-2p—obesity could
combine with other impairments and cause additional pain and limitation, including
causing fatigue that could affect ability to sustain work activity, especially in cases
like Dillard’s involving sleep apnea. Doc. 7-3 at 25. The ALJ found that Dillard’s
obesity did not prevent ambulation, reaching, or orthopedic and postural maneuvers,
and did not prevent Dillard from working or being able to complete a full range of
activities of daily living. Doc. 7-3 at 25. The ALJ found that Dillard’s obesity and
other impairments did warrant a reduction to light work with additional restrictions,
but did not rise to the level of disability. Doc. 7-3 at 25.
The ALJ found the assessments of the state agency consultants “partially

25

persuasive,” as they were not entirely consistent with or supported by the evidence
at the hearing level, which showed that Dillard had greater limitations than opined
by the consultants. Doc. 7-3 at 25.
The ALJ found that Dr. Prelipcean’s opinion was “not persuasive because it
is not consistent with or supported by the evidence showing [Dillard] is stable and
doing well with little [sic] issues,” and because Dillard “has not had any further
hospitalization, surgeries, or emergency room visits, and no other focal complaints,
and his ENMT examination[s] have all been normal.” Doc. 7-3 at 25.
The ALJ then summarized the function reports from Dillard and his wife,
which showed that Dillard had no difficulty with personal care, cares for animals
and children, cooks meals, can do chores, and can drive and go shopping, but cannot
do yardwork, and no longer golfs. Doc. 7-3 at 25.
The ALJ found that, “[a]fter assessing [Dillard’s] subjective allegations in
light of the regulatory factors” and the evidence, Dillard’s impairments of
prehypertension, CPAP, and symptoms of fatigue would limit him to light work in
order to limit heavy lifting and carrying and prolonged standing and walking. Doc.
7-3 at 26. The ALJ found that, due to Dillard’s vocal cord issues, he could only
occasionally verbally communicate and should avoid pulmonary irritants. Doc. 7-3
at 26.
The ALJ found that Dillard was unable to perform his past relevant work as

26

an oiler greaser. Doc. 7-3 at 26–27. The ALJ then found that, considering Dillard’s
age, education, work experience, and RFC, along with the testimony of the VE, there
existed jobs in significant numbers in the national economy that Dillard could
perform, including jobs such a garment sorter, marker, and photocopy machine
operator. Doc. 7-3 at 27. Accordingly, the ALJ found that Dillard had not been
disabled, as defined in the Social Security Act, from September 26, 2019 (the
amended alleged onset date), through the date of the decision. Doc. 7-3 at 28.
4.

Appeals Council decision

Dillard requested that the SSA Appeals Council review the ALJ’s decision.
Doc. 7-3 at 2; Doc. 7-7 at 63–65. Dillard submitted additional evidence to the
Appeals Council consisting of the medical source statement from Dr. Vinson dated
June 21, 2022. Doc. 7-3 at 15; see Doc. 7-7 at 63. Dr. Vinson stated that Dillard
had diagnoses of bilateral vocal fold paralysis and stenosis of the larynx, that he had
symptoms of vocal paralysis, obstructed airway, shortness of breath, and weight gain
(but not fatigue or limited speech), and that he could not sustain an 8-hour workday
in a competitive environment, would miss 5 days or more of work per month as a
result of his impairment, and had suffered those impairments since around
September 2019. Doc. 7-3 at 15.
On December 19, 2022, the Appeals Council denied Dillard’s request for
review of the ALJ’s May 4, 2022 decision, finding no reason to review the ALJ’s

27

decision. Doc. 7-3 at 2–6. The Appeals Council did not exhibit Dillard’s additional
evidence from Dr. Vinson, finding that the evidence did not “show a reasonable
probability that it would change the outcome of the decision.” Doc. 7-3 at 3.
Because the Appeals Council found no reason to review the ALJ’s decision, the
ALJ’s decision became the final decision of the Commissioner.
DISCUSSION
Having carefully considered the record and briefing, the court concludes that
the ALJ’s decision was supported by substantial evidence and based on proper legal
standards.
I.

The ALJ evaluated the opinion of Dillard’s treating physician Dr.
Prelipcean according to the proper legal standards, and substantial
evidence supported the ALJ’s decision to find that Dr. Prelipcean’s
opinion was not persuasive.
The ALJ evaluated the opinion of Dr. Prelipcean according to the proper legal

standards, and the ALJ’s decision to find that Dr. Prelipcean’s opinion was not
persuasive was supported by substantial evidence. In his briefing, Dillard argues
that the ALJ erred in finding Dr. Prelipcean’s opinion not persuasive because the
ALJ did not sufficiently address the consistency and supportability of the opinion,
but rather relied on “vague generalities.” Doc. 10 at 10–12. Dillard also argues that,
contrary to the ALJ’s finding that Dillard was doing well and had few issues, the
record supports and is consistent with Dr. Prelipcean’s opinion of more severe
limitations. Doc. 10 at 12–14. However, the ALJ’s decision shows that the ALJ
28

properly considered Dr. Prelipcean’s opinion, and that substantial evidence
supported the ALJ’s finding that the opinion was not persuasive.
The SSA has revised its regulations on the consideration of medical opinions
for all claims filed on or after March 27, 2017—like the claim in this case. Under
those revised regulations, an ALJ need not “defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s),” including the
opinion of a treating or examining physician. 20 C.F.R. § 404.1520c(a). And the
Eleventh Circuit has found that the SSA’s new regulations validly abrogated the socalled “treating-physician rule,” such that an ALJ no longer is required to defer to
the medical opinion of a treating physician. See Harner v. Social Sec. Admin.,
Comm’r, 38 F.4th 892 (11th Cir. 2022).
Instead, the ALJ considers the persuasiveness of a medical opinion according
to the following five factors: (1) supportability; (2) consistency; (3) the relationship
with the claimant, including the length of the treatment relationship, the frequency
of examinations, and the purpose and extent of the treatment relationship;
(4) specialization; and (5) other factors, including evidence showing that the medical
source has familiarity with other evidence or an understanding of the SSA’s policies
and evidentiary requirements. 20 C.F.R. § 404.1520c(c).
Supportability and consistency are the most important factors, and the ALJ
must explain how the ALJ considered those factors. 20 C.F.R. § 404.1520c(b)(2).

29

“Supportability” requires an ALJ to consider that “[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 opinion(s) or prior administrative medical finding(s)
will be.” 20 C.F.R. § 404.1520c(c)(1). “Consistency” requires an ALJ to consider
that “[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.” 20 C.F.R. § 404.1520c(c)(2). The ALJ may explain how
the ALJ considered the other factors, but the ALJ is not required to do so. 20 C.F.R.
§ 404.1520c(b)(2).
Moreover, a “statement by a medical source that [the claimant is] ‘disabled’
or ‘unable to work’ does not mean that [the SSA] will determine” that the claimant
is “disabled.” 20 C.F.R. § 404.1527(d)(1). That is because opinions about whether
a claimant is disabled, the claimant’s “residual functional capacity” (RFC), and the
application of vocational factors “are not medical opinions, . . . but are, instead,
opinions on issues reserved to the Commissioner.” Dyer v. Barnhart, 395 F.3d 1206,
1210 (11th Cir. 2005). Any such statement from a treating physician may be relevant
to the ALJ’s findings but is not determinative, because it is the ALJ who must find
the claimant’s RFC. See, e.g., 20 C.F.R. § 404.1546(c).

30

Here, the ALJ’s decision shows that the ALJ properly applied the new, revised
regulations and considered and explained the lack of supportability and consistency
in Dr. Prelipcean’s opinion. Dr. Prelipcean opined, through checked boxes and
without explanation, that Dillard would not be able to sustain an 8-hour workday in
a competitive environment and would miss 5 or more days of work per month as a
result of his impairments. Doc. 7-16 at 55.
According to the applicable regulations, the ALJ had to consider and explain
the supportability and consistency of Dr. Prelipcean’s opinion.

20 C.F.R.

§ 404.1520c(b)(2). Here, the ALJ explicitly found that Dr. Prelipcean’s opinion was
“not consistent with or supported by the evidence showing [Dillard] is stable and
doing well with little [sic] issues.” Doc. 7-3 at 25. The ALJ then found further that
Dillard had not had any further hospitalizations, surgeries, emergency room visits,
or other focal complaints, and that his ENMT examinations had all been normal.
Doc. 7-3 at 25.
Other parts of the ALJ’s decision demonstrate further the ALJ’s supportability
and consistency analysis. See, e.g., Agan v. Kijakaz, No. 4:22-CV-00368-RDP, 2023
WL 5193468, at *9 (N.D. Ala. Aug. 11, 2023) (“An ALJ may refer to evidence
discussed elsewhere in the decision when evaluating medical opinions or prior
administrative findings.”). Earlier in the decision (when assessing Dillard’s RFC),
the ALJ found that records of Dillard’s appointments with Dr. Prelipcean showed

31

“no disabling limitations or symptoms,” and that—while he suffered from a main
complaint of fatigue and mild post-hypoparathyroidism—Dillard was doing well on
his medication and remained stable. Doc. 7-3 at 24. The ALJ also found that records
from Dr. Vinson, Dr. Han, and consultative examiner, Dr. Aryanpure, all showed
relatively normal examinations without disabling limitations or symptoms. Doc. 73 at 24. Accordingly, the ALJ’s decision shows that the ALJ considered the record
and found that Dr. Prelipcean’s opinion was neither supported by her own treatment
notes nor consistent with the record as a whole. Therefore, the ALJ properly
considered and explained the supportability and consistency of Dr. Prelipcean’s
opinion in accordance with the applicable regulations.

See 20 C.F.R.

§ 404.1520c(b)(2). Moreover, the ALJ did not simply rely on “vague generalities”
(see Doc. 10 at 10), but pointed to specific record evidence that did not support and
was inconsistent with Dr. Prelipcean’s opinion.
In addition, substantial evidence supported the ALJ’s finding that Dr.
Prelipcean’s opinion was not supported by or consistent with the record. As an initial
matter, Dr. Prelipcean’s opinion only contained checked boxes on severe limitations
without any factual explanation for the basis of those limitations. See Doc. 7-16 at
55. The Eleventh Circuit has rejected the idea that check-box opinions from treating
sources should be discounted as conclusory solely because of the formatting, but
instead has held that the opinions should be considered in light of prior treatment

32

notes. Schink v. Commissioner of Soc. Sec., 935 F.3d 1245, 1262 (11th Cir. 2019).
Here, the extreme limitations in Dr. Prelipcean’s check-box opinions are not
supported by her treatment notes for Dillard. Rather (as discussed above), her
treatment notes show little basis for extreme limitation.
Dillard stated that his primary difficulty in being able to work was his
breathing (see Doc. 7-3 at 45), but on multiple occasions Dr. Prelipcean noted in her
records that Dillard’s voice and breathing were okay and that he did not have
shortness of breath or breathing problems. Doc. 7-13 at 38–39; Doc. 7-12 at 11;
Doc. 7-16 at 20, 22. At one visit, Dillard actually reported that he had okay energy
and had been doing yardwork. Doc. 7-13 at 38. Dr. Prelipcean routinely found
Dillard to be euthyroid, and Dillard generally had normal examinations during his
appointments with Dr. Prelipcean in which she noted that he had an above normal
BMI and should follow an exercise plan and diet. See Doc. 7-12 at 10–11, 20–21,
27; Doc. 7-12 at 10, 12; Doc. 7-13 at 38; Doc. 7-16 at 8, 10, 20–22. In short, Dr.
Prelipcean’s treatment records suggest that Dillard was relatively stable and doing
relatively well; therefore, substantial evidence supported the finding that Dr.
Prelipcean’s records do not show adequate support for an opinion that Dillard’s
impairments were so extreme that he could not complete an 8-hour workday and
would miss 5 or more days of work per month.
While this court cannot “reweigh the evidence” (Winschel, 631 F.3d at 1178),

33

the rest of the record also is inconsistent with such extreme limitation. The one time
that Dillard presented to the emergency room with difficulty breathing, it was shortly
after surgery and he was diagnosed with edema around his surgical site and improved
upon treatment with steroids. Doc. 7-8 at 10–16, 44. The record does not show any
other need for emergent treatment of Dillard’s impairments. After his cordotomies
with Dr. Vinson, Dillard routinely had normal annual exams with Dr. Han in which
he was “stable,” had no shortness of breath, and had no “other focal complaints.”
Doc. 7-12 at 15–16; Doc. 7-14 at 8–10. Like Dr. Prelipcean, Dr. Han consistently
advised Dillard to follow an exercise program. Doc. 7-12 at 15; Doc. 7-14 at 16, 21.
Dillard saw Dr. Han in January 2022 for sinus issues, after reporting to Dr. Vinson
that his breathing had worsened, but he did not report shortness of breath and the
record does not show any serious issues. Doc. 7-14 at 7. During his visits with Dr.
Vinson, Dillard reported at times that his breathing had improved, and Dr. Vinson
noted that Dillard was breathing “well” and that his breathing was “unlabored.” Doc.
7-9 at 8–9. Dillard reported shortness of breath during his examination with Dr.
Aryanpure, but otherwise the examination was normal. Doc. 7-13 at 44–51. This
record evidence is not consistent with severely debilitating impairments.
Additionally, the record contains evidence from Dillard and from his wife that
Dillard was capable of doing some household errands and chores. See Doc. 7-7 at
13–18, 25–32.

34

In sum, the record contains ample evidence of relatively normal examinations
and activities that are not consistent with the extreme limitations in Dr. Prelipcean’s
opinion and that support the ALJ’s finding. As such, a “reasonable person would
accept” the evidence as “adequate to support [the] conclusion” that Dr. Prelipcean’s
opinion was not supported by or consistent with the evidence in the record. See
Crawford, 363 F.3d at 1158. Consequently, the ALJ did not err in finding that Dr.
Prelipcean’s opinion was not persuasive.
II.

The Appeals Council did not err in declining to exhibit the new evidence
that Dillard submitted and in denying review of the ALJ’s decision.
The Appeals Council did not err in declining to exhibit additional evidence

from Dillard’s treating surgeon, Dr. Vinson, and in denying review of the ALJ’s
decision. Dillard argues that the Appeals Council erred by failing to accept the
additional evidence from Dr. Vinson because there is a reasonable probability that
Dr. Vinson’s opinion would have changed the outcome of the proceedings as it was
consistent with and bolstered Dr. Prelipcean’s opinion. Doc. 10 at 14–17.
“‘With a few exceptions, a claimant is allowed to present new evidence at
each stage of the administrative process,’ including before the Appeals Council.”
Washington v. Social Sec. Admin., Comm’r, 806 F.3d 1317, 1320 (11th Cir. 2015)
(quoting Ingram v. Commissioner of Soc. Sec. Admin., 496 F.3d 1253, 1261 (11th
Cir. 2007)). “The Appeals Council will review a case if it ‘receives additional
evidence that is new, material, and relates to the period on or before the date of the
35

hearing decision, and there is a reasonable probability that the additional evidence
would change the outcome of the decision.’” Pupo v. Commissioner, Soc. Sec.
Admin., 17 F.4th 1054, 1063 (11th Cir. 2021) (quoting 20 C.F.R. § 416.1470(a)(5));
20 C.F.R. § 404.970(a)(5).
However, the Appeals Council is not required “to provide a detailed
discussion of a claimant’s new evidence when denying a request for review.”
Mitchell v. Commissioner, Soc. Sec. Admin., 771 F.3d 780, 784 (11th Cir. 2014).
The Appeals Council must grant a petition for review only if it finds that the ALJ’s
“action, findings, or conclusion is contrary to the weight of the evidence,” including
the new and material evidence. Ingram, 496 F.3d at 1261. When the Appeals
Council denies review based on new evidence, a court reviews whether the
claimant’s new evidence “renders the denial of benefits erroneous.” Ingram, 496
F.3d at 1262.
In this case, the decision of the Appeals Council does not warrant reversal
because the new evidence—Dr. Vinson’s opinion—did not render the denial of
benefits erroneous. See Ingram, 496 F.3d at 1262. While Dr. Vinson’s opinion is
consistent with Dr. Prelipcean’s opinion in that both opinions state that Dillard could
not work a full 8-hour day and would miss 5 or more days of work per month (see
Doc. 7-16 at 55; Doc. 7-3 at 15), Dr. Vinson’s opinion also is unsupported and
inconsistent with the record evidence—just like Dr. Prelipcean’s opinion. As

36

discussed above regarding Dr. Prelipcean’s opinion (see supra Part I), Dr. Vinson’s
opinion contains no explanation for the severity of the limitations. See Doc. 7-3 at
15. Moreover, while Dr. Vinson’s treatment records do show symptoms including
shortness of breath (see Doc. 7-11 at 48–52; Doc. 7-16 at 42), they also show the
following: that there were instances in which Dillard was breathing well and had
unlabored breathing (Doc. 7-9 at 9; Doc. 7-11 at 50; Doc. 7-9 at 8–9), that Dillard
reported feeling well for about a year after his surgery (Doc. 7-16 at 42), and that
Dillard declined the more serious surgical intervention of a tracheotomy that would
“certainly improve his airway” (Doc. 7-11 at 52; Doc. 7-16 at 44). Like Dr.
Prelipcean’s opinion, the severity of the restrictions in Dr. Vinson’s opinion also is
not consistent with Dillard’s generally normal medical records. See supra Part I.
Thus, while Dr. Vinson’s opinion is consistent with Dr. Prelipcean’s opinion,
there was no “reasonable probability” that Dr. Vinson’s opinion “would change the
outcome of the decision” (Pupo, 17 F.4th at 1063), and the opinion is not so clearly
probative or determinative as to render the denial of benefits erroneous. See Ingram,
496 F.3d at 1262. Accordingly, the Appeals Council’s denial of review of the ALJ’s
decision does not provide a basis for reversal.
III.

The ALJ properly assessed Dillard’s subjective testimony regarding his
impairments.
The ALJ properly assessed Dillard’s subjective testimony regarding his

impairments. The ALJ’s decision properly was based on the multi-part “pain
37

standard,” and substantial evidence supported the ALJ’s decision not to credit
Dillard’s subjective testimony regarding his impairments.
A.

The ALJ’s decision properly was based on the multi-part “pain
standard.”

As a threshold matter, the ALJ’s decision properly was based on the multipart “pain standard.” In his brief, Dillard argues that the ALJ improperly rejected
his testimony without adequate explanation under the Eleventh Circuit’s pain
standard. Doc. 10 at 18–19. But the ALJ’s consideration of Dillard’s testimony and
the record properly tracked the applicable regulations and caselaw.
When a claimant attempts to establish disability through his own testimony
concerning pain or other subjective symptoms, the multi-step “pain standard”
applies. That “pain standard” requires (1) “evidence of an underlying medical
condition,” and (2) either “objective medical evidence confirming the severity of the
alleged pain” resulting from the condition, or that “the objectively determined
medical condition can reasonably be expected to give rise to” the alleged symptoms.
Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see Raper v.
Commissioner of Soc. Sec., 89 F.4th 1261, 1277 (11th Cir. 2024); 20 C.F.R.
§ 404.1529 (standard for evaluating pain and other symptoms).
Then, according to both caselaw and the applicable regulations, an ALJ “will
consider [a claimant’s] statements about the intensity, persistence, and limiting
effects of [his] symptoms,” and “evaluate [those] statements in relation to the
38

objective medical evidence and other evidence, in reaching a conclusion as to
whether [the claimant is] disabled.” 20 C.F.R. § 404.1529(c)(4); see Hargress v.
Social Sec. Admin., Comm’r, 883 F.3d 1302, 1307 (11th Cir. 2018).
Here, the ALJ’s decision articulated and tracked that controlling legal
standard. In analyzing Dillard’s RFC, and the extent to which Dillard’s symptoms
limited his functioning, the ALJ’s decision reasoned that the ALJ “must follow” the
required “two-step process”:

(1) “determine[] whether there is an underlying

medically determinable physical or mental impairment[] . . . that could reasonably
be expected to produce the claimant’s pain or other symptoms”; and (2) “evaluate
the intensity, persistence, and limiting effects of the claimant’s symptoms to
determine the extent to which they limit the claimant’s work-related activities.”
Doc. 7-3 at 23. The ALJ then applied the two-part test and found that it would be
reasonably expected for Dillard to “experience some symptoms that would cause
some exertional and non-exertional limitations,” but that Dillard’s “statements
concerning the intensity, persistence, and limiting effects of the severe
impairment(s) is/are not consistent with the objective medical evidence.” Doc. 7-3
at 23. Thus, the ALJ’s decision was based on the proper legal standards.
B.

Substantial evidence supported the ALJ’s finding regarding
Dillard’s subjective testimony.

Furthermore, substantial evidence supported the ALJ’s decision not to entirely
credit Dillard’s subjective testimony.
39

1.

The Eleventh Circuit requires that an ALJ must articulate
explicit and adequate reasons for discrediting a claimant’s
subjective testimony.

Under controlling Eleventh Circuit law, an ALJ must articulate explicit and
adequate reasons for discrediting a claimant’s subjective testimony. Wilson, 284
F.3d at 1225. A claimant can establish that he is disabled through his “own
testimony of pain or other subjective symptoms.” Dyer, 395 F.3d at 1210.
An ALJ “will not reject [the claimant’s] statements about the intensity and
persistence of [his] pain or other symptoms or about the effect [those] symptoms
have” on the claimant’s ability to work “solely because the available objective
medical evidence does not substantiate [those] statements.”

20 C.F.R.

§ 404.1529(c)(2).
So, when an ALJ evaluates a claimant’s subjective testimony regarding the
intensity, persistence, or limiting effects of his symptoms, the ALJ must consider all
of the evidence, objective and subjective. 20 C.F.R. § 404.1529. Among other
things, the ALJ considers the nature of the claimant’s pain and other symptoms, his
precipitating and aggravating factors, his daily activities, the type, dosage, and
effects of his medications, and treatments or measures that he has to relieve the
symptoms. See 20 C.F.R. § 404.1529(c)(3).
Moreover, the Eleventh Circuit has been clear about what an ALJ must do, if
the ALJ decides to discredit a claimant’s subjective testimony “about the intensity,

40

persistence, and limiting effects of [his] symptoms.” 20 C.F.R. § 404.1529(c)(4). If
the ALJ decides not to credit a claimant’s subjective testimony, the ALJ “must
articulate explicit and adequate reasons for doing so.” Holt v. Sullivan, 921 F.2d
1221, 1223 (11th Cir. 1991).
“A clearly articulated credibility finding with substantial supporting evidence
in the record will not be disturbed by a reviewing court.” Foote v. Chater, 67 F.3d
1553, 1562 (11th Cir. 1995); see Mitchell, 771 F.3d at 792 (similar). “The credibility
determination does not need to cite particular phrases or formulations but it cannot
merely be a broad rejection which is not enough to enable . . . [a reviewing court] to
conclude that the ALJ considered [the claimant’s] medical condition as a whole.”
Dyer, 395 F.3d at 1210 (quotation marks and alterations omitted). 3 “The question is
not . . . whether [the] ALJ could have reasonably credited [the claimant’s] testimony,
but whether the ALJ was clearly wrong to discredit it.” Werner v. Commissioner of
Soc. Sec., 421 F. App’x 935, 939 (11th Cir. 2011).
3

The Social Security regulations no longer use the term “credibility,” and have
shifted the focus away from assessing an individual’s “overall character and
truthfulness”; instead, the regulations now focus on “whether the evidence
establishes a medically determinable impairment that could reasonably be expected
to produce the individual’s symptoms and[,] given the adjudicator’s evaluation of
the individual’s symptoms, whether the intensity and persistence of the symptoms
limit the individual’s ability to perform work-related activities.” Hargress, 883 F.3d
at 1308 (quoting SSR 16-3p, 81 Fed. Reg. 14166, 14167, 14171 (March 9, 2016)).
But, generally speaking, a broad assessment of “credibility” still can apply where
the ALJ assesses a claimant’s subjective complaints about symptoms and
consistency with the record. Id. at 1308 n.3.
41

2.

The ALJ properly explained the decision not to entirely
credit Dillard’s subjective testimony regarding his
impairments, and substantial evidence supported that
decision.

The ALJ properly explained the decision to discredit Dillard’s subjective
testimony, and substantial evidence supported the ALJ’s decision. The ALJ made a
clear and explicit finding that the ALJ did not credit Dillard’s testimony about the
intensity, persistence, and limiting effects of his symptoms because Dillard alleged
“debilitating symptomatology and limitations, yet the evidence as a whole fails to
confirm a disabling level of functional limitations caused by any physical or mental
impairment.” Doc. 7-3 at 23. The ALJ elaborated that Dillard’s testimony had been
generally “inconsistent and unpersuasive” and that the objective evidence did not
support the severity of limitations alleged. Doc. 7-3 at 23. So, the ALJ provided the
required, explicit articulation for discrediting Dillard’s subjective testimony. See
Wilson, 284 F.3d at 1225.
In arriving at that articulation, the ALJ undertook a full consideration of the
record evidence. In assessing Dillard’s RFC, the ALJ stated that the ALJ had
“considered all symptoms and the extent to which these symptoms can reasonably
be accepted as consistent with the objective medical evidence and other evidence,”
according to the requirements of 20 C.F.R. § 404.1529 and SSR 16-3p. Doc. 7-3 at
23. The ALJ then provided a summary of Dillard’s testimony about his limitations
and activities, finding that Dillard said he was always tired and had to take breaks,
42

but also said that he could do things like take his son to school and shop for groceries.
Doc. 7-3 at 23. The ALJ also summarized the medical evidence, including Dillard’s
single visit to the hospital for emergent treatment for breathing issues, his first
follow-up appointment with Dr. Vinson at which he had breathing with mild audible
inspiration, his lack of further hospitalizations, his relatively normal appointments
with Dr. Prelipcean and Dr. Han, and his normal consultative examination with Dr.
Aryanpure. Doc. 7-3 at 23–24. The ALJ summarized Dillard’s December 2021 visit
to Dr. Vinson, including Dillard’s reports that his breathing had worsened over the
last year, that he had increased dyspnea with movement, and that he was barely able
to walk. Doc. 7-3 at 24. The ALJ found that Dillard chose to have another
cordotomy before trying a tracheotomy, and that—while he said his breathing had
worsened over the past year—records from Dr. Prelipcean and Dr. Han did not show
evidence of worsening breathing. Doc. 7-3 at 24. The ALJ also considered the
function reports from Dillard and his wife, finding that Dillard could not do
yardwork or golf, but could do other activities like perform self-care, care for
animals and children, cook meals, do some chores, and go shopping. Doc. 7-3 at 25.
Accordingly, the ALJ’s decision considered information based on both objective and
subjective evidence and identified evidence calling into doubt Dillard’s subjective
testimony. See 20 C.F.R. § 404.1529.
Further, the ALJ did not entirely discredit Dillard’s subjective testimony. In

43

determining Dillard’s RFC, the ALJ found that the opinions of the state agency
consultants were only partially persuasive, as “the assessments are not entirely
consistent with or supported by the evidence received at the hearing level that shows
the claimant is more limited” than the state agency consultants opined. Doc. 7-3 at
25. This finding shows that the ALJ did credit some of Dillard’s testimony about
his limitations. Moreover, the ALJ factored parts of Dillard’s testimony into the
RFC and explicitly found that Dillard could only do light work “in order to limit[]
heavy lifting and carrying and prolonged standing and walking,” had to have only
occasional nonessential verbal communications “[d]ue to his vocal chord [sic]
issues,” and should avoid pulmonary irritants “[d]ue to his breathing issues.” Doc.
7-3 at 26. Thus, the ALJ’s RFC determination did not just discredit Dillard’s
subjective testimony, but rather accounted for the credible portions of Dillard’s
testimony regarding his impairments.
The ALJ’s decision therefore includes “explicit and adequate reasons for
discrediting” Dillard’s subjective testimony. Wilson, 284 F.3d at 1225. The ALJ’s
summary of the record shows that the ALJ did not reject Dillard’s testimony solely
because it was not substantiated by the objective medical evidence (see 20 C.F.R
§ 404.1529(c)(2)), but instead that the ALJ considered all of the evidence, objective
and subjective (see 20 C.F.R. § 404.1529). The ALJ’s recitation of the record also
shows that the decision to discredit part of Dillard’s subjective testimony was based

44

on the record as a whole and was not just “a broad rejection.” Dyer, 395 F.3d at
1210.
Substantial evidence supported the ALJ’s decision not to credit all of Dillard’s
testimony about his impairments. The record shows that Dillard only required
emergent care for his breathing issues on one occasion after surgery, and that Dillard
improved after being treated with steroids and undergoing a revision of scar tissue.
Doc. 7-8 at 10–16, 44; Doc. 7-9 at 6–12. Dillard routinely saw Dr. Prelipcean and
Dr. Han with stable condition and no emergent complaints and with either no
shortness of breath or only exertional shortness of breath. Doc. 7-13 at 38–39; Doc.
7-12 at 11, 15–16, 20; Doc. 7-14 at 8–10; Doc. 7-16 at 21. Dr. Prelipcean and Dr.
Han routinely recommended that Dillard follow an exercise plan and did not make
any notation that he was incapable of exercise. Doc. 7-12 at 15, 21; Doc. 7-14 at 10,
16, 21; Doc. 7-16 at 10.
Dillard’s testimony also shows inconsistencies. Dillard stated that he had
been in good health without limitation before his thyroidectomy (Doc. 7-11 at 50),
but the record shows that he presented with fatigue and exertional dyspnea before
his surgery (Doc. 7-14 at 24; Doc. 7-15 at 24). Dillard stated that he could not move
around or do yardwork (Doc. 7-7 at 25; Doc. 7-3 at 42), but he reported to Dr.
Prelipcean in March 2020 that he had been doing a lot of yardwork and had okay
energy levels (Doc. 7-13 at 38). He also told Dr. Vinson that he was doing “well”

45

for about a year after his surgery. Doc. 7-16 at 42. Although Dillard told Dr. Vinson
in December 2021 that his breathing had worsened over the past year (Doc. 7-16 at
42), he did not report dyspnea when he saw Dr. Han for sinus issues in January 2022
(Doc. 7-14 at 7). Dillard also declined to pursue the more extreme option of a
tracheotomy to address his breathing issues. Doc. 7-16 at 44. And while Dillard
stated that he was incapable of doing work, he and his wife stated in his function
reports that he was able to perform his own self-care, care for his son, do some
chores, run errands, and prepare dinner daily. Doc. 7-7 at 13–16, 25–30.
Thus, the record includes sufficient facts inconsistent with the alleged severity
of Dillard’s limitations to support the ALJ’s finding regarding Dillard’s subjective
testimony, as well as the ALJ’s ultimate finding that Dillard was not disabled. As
explained above, substantial evidence requires “such relevant evidence as a
reasonable person would accept as adequate to support a conclusion” (Crawford,
363 F.3d at 1158); and the court must affirm an ALJ’s factual findings if they are
supported by substantial evidence, “[e]ven if the evidence preponderates against the
Commissioner’s findings” (Crawford, 363 F.3d at 1158 (quoting Martin, 894 F.2d
at 1529)). Even if the evidence in this case were to preponderate against the
Commissioner’s findings, a review of the record shows that there is sufficient
evidence based on which a reasonable person would accept the ALJ’s findings that
Dillard’s testimony regarding his limitations was not consistent with the record. See

46

Crawford, 363 F.3d at 1158. Accordingly, substantial evidence supported the ALJ’s
decision. Moreover, the court cannot conclude that “the ALJ was clearly wrong to
discredit” Dillard’s subjective testimony (Werner, 421 F. App’x at 939); the ALJ
clearly articulated a credibility finding supported by substantial evidence, and as a
result the court cannot disturb that finding. See Foote, 67 F.3d at 1562.
IV.

The ALJ did not err by failing to properly develop the record.
The ALJ properly found Dillard’s RFC based on an adequately developed

record. In briefing, Dillard argues that the ALJ erred by determining Dillard’s RFC
without fully and fairly developing the record because the ALJ rejected, at least in
part, all of the medical opinions in the record and did not get sufficient information
from consultative examinations. Doc. 10 at 19–25. Dillard also attached a note from
Dr. Prelipcean as an exhibit to his briefing, which states in relevant part that Dillard
had “bilateral paralysis of his vocal cords causing him significant problems with
breathing, shortness of breath with minimal exertion, hoarseness, and swallowing,”
that he would possibly need “reinterventions” at Vanderbilt “down the line,” and
that he had “been placed on disability.” Doc. 10-1.
An ALJ “has a basic duty to develop a full and fair record.” Henry v.
Commissioner of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015). By statute, the
Commissioner must “develop a complete medical history of at least the preceding
twelve months for any case in which a determination is made that the individual is

47

not under a disability.” 42 U.S.C. § 423(d)(5)(B). Applicable regulations further
clarify that the Commissioner has the responsibility to “develop [the claimant’s]
complete medical history for at least the 12 months preceding the month in which
[the claimant] file[s] [his] application unless there is a reason to believe that
development of an earlier period is necessary or unless [the claimant] say[s] that
[his] disability began less than 12 months before [he] filed [his] application.” 20
C.F.R. § 404.1512(b)(1).
An ALJ also can order a consultative examination.

20 C.F.R.

§ 404.1512(b)(3). The ALJ “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 [ALJ] to make an informed decision.” Ingram, 496 F.3d
at 1269.
So, while the ALJ does have the “basic duty to develop a full and fair record”
(Henry, 802 F.3d at 1267), the claimant ultimately “bears the burden of proving that
he is disabled, and, consequently, he is responsible for producing evidence in support
of his claim.” Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); see also
20 C.F.R. § 404.1512(a) (“[I]n general, you have to prove to us that you are . . .
disabled. You must inform us about or submit all evidence known to you that relates
to whether or not you are . . . disabled.”).

And, notwithstanding the ALJ’s

responsibility to develop a “full and fair” record, “there must be a showing of

48

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.” Graham v. Apfel, 129 F.3d 1420,
1422–23 (11th Cir. 1997). The Eleventh Circuit has instructed that “[t]he court
should be guided by whether the record reveals evidentiary gaps which result in
unfairness or clear prejudice.” Graham, 129 F.3d at 1423 (quotation marks omitted).
Here, the record was fully and fairly developed. The ALJ had an extensive
record of Dillard’s medical treatment back to as early as 2013, including records of
multiple visits to Dr. Prelipcean, Dr. Han, and Dr. Vinson.

See 42 U.S.C.

§ 423(d)(5)(B); 20 C.F.R. § 404.1512(b)(1); Doc. 7-9 at 9; Doc. 7-11 at 48–52; Doc.
7-13 at 38–39; Doc. 7-14 at 19, 24, 35–58; Doc. 7-15 at 13. The record also contains
the results of a consultative examination by Dr. Aryanpure, even though Dr.
Aryanpure did not submit an opinion complying with the regulations. Doc. 7-13 at
44–51.
In light of the extensive medical evidence in the record, the ALJ did not need
to order a consultative examination or rely on a particular physician opinion in
determining Dillard’s RFC; the amount of medical evidence in the record was
sufficient for the ALJ to make an informed finding regarding Dillard’s RFC. See
Ingram, 496 F.3d at 1269. Moreover, the “task of determining a claimant’s residual
functional capacity and ability to work rests with the [ALJ], not a doctor.” Moore
v. Social Sec. Admin., Comm’r, 649 F. App’x 941, 945 (11th Cir. 2016); see also 20

49

C.F.R. § 404.1546(c) (“If your case is at the [ALJ] hearing level . . . , the [ALJ] . . .
is responsible for assessing your residual functional capacity.”).
Nor can Dillard make the required showing of prejudice; there could be no
fact-based argument about how a hypothetical consultative examination would have
changed the ALJ’s RFC finding. The note from Dr. Prelipcean (Doc. 10-1) does not
show prejudice as it largely restates the information already in the record. Further,
the fact that Dr. Prelipcean stated that Dillard had been placed on disability is neither
determinative nor probative, as a determination of disability is reserved for the ALJ.
See, e.g., 20 C.F.R. § 404.1546(c). Dillard has identified no evidentiary gaps in the
record resulting in “unfairness or clear prejudice,” and consequently there is no basis
for reversal due to failure to develop the record. See Graham, 129 F.3d 1422–23;
Doc. 15 at 17–19.
In sum, substantial evidence supported the ALJ’s RFC finding, and the ALJ’s
duty to develop the record did not require the ALJ to order an additional consultative
examination. See Ellison, 355 F.3d at 1276; 20 C.F.R. § 404.1512(a).
CONCLUSION
For the reasons stated above (and pursuant to 42 U.S.C. § 405(g)), the court
AFFIRMS the Commissioner’s decision. The court separately will enter final

50

judgment.
DONE and ORDERED this March 27, 2024.

_________________________________
NICHOLAS A. DANELLA
UNITED STATES MAGISTRATE JUDGE

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