United States District Court, N.D. Alabama, Jasper Division
N. JOHNSON, JR. UNITED STATES MAGISTRATE JUDGE
Ashley Thweatt seeks judicial review pursuant to 42 U.S.C.
§ 405(g) of an adverse, final decision of the
Commissioner of the Social Security Administration
(“Commissioner” or “Secretary”),
regarding her claim for Supplemental Security Income (SSI)
and Disability Insurance Benefits (DIB). The undersigned has
carefully considered the record, and for the reasons stated
below, AFFIRMS the Commissioner's
AND STANDARD OF REVIEW
qualify for disability benefits and establish entitlement for
a period of disability, the claimant must be disabled as
defined by the Social Security Act and the Regulations
promulgated thereunder. The Regulations define
“disabled” as the “inability to do any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than
twelve (12) months.” 20 C.F.R. § 404.1505(a). To
establish an entitlement to disability benefits, a claimant
must provide evidence of a “physical or mental
impairment” which “must result from anatomical,
physiological, or psychological abnormalities which can be
shown by medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508.
determining whether a claimant suffers a disability, the
Commissioner, through an Administrative Law Judge (ALJ),
works through a five-step sequential evaluation process.
See 20 C.F.R. § 404.1520. The burden rests upon
the claimant on the first four steps of this five-step
process; the Commissioner sustains the burden at step five,
if the evaluation proceeds that far. Washington v.
Comm'r of Soc. Sec., 906 F.3d 1353, 1359
(11th Cir. 2018).
first step, the claimant cannot be currently engaged in
substantial gainful activity. 20 C.F.R. § 404.1520(b).
Second, the claimant must prove the impairment is
“severe” in that it “significantly limits
his physical or mental ability to do basic work activities .
. . .” 20 C.F.R. § 404.1520(c).
three, the evaluator must conclude the claimant is disabled
if the impairments meet or are medically equivalent to one of
the impairments listed at 20 C.F.R. Part 404, Subpart P, App.
1, §§ 1.00-114.02. 20 C.F.R. § 404.1520(d). If
a claimant's impairment meets the applicable criteria at
this step, that claimant's impairments would prevent any
person from performing substantial gainful activity. 20
C.F.R. §§ 404.1520(a)(4)(iii), 404.1525. That is, a
claimant who satisfies steps one and two qualifies
automatically for disability benefits if they suffer from a
listed impairment. See Williams v. Astrue, 416
Fed.Appx. 861, 862 (11th Cir. 2011) (“If, at
the third step, [the claimant] proves that [an] impairment or
combination of impairments meets or equals a listed
impairment, [the claimant] is automatically found disabled
regardless of age, education, or work experience.”)
(citing 20 C.F.R. § 416.920).
claimant's impairment or combination of impairments does
not meet or medically equal a listed impairment, the
evaluation proceeds to the fourth step where the claimant
demonstrates an incapacity to meet the physical and mental
demands of past relevant work. 20 C.F.R. § 404.1520(e).
At this step, the evaluator must determine whether the
plaintiff has the residual functional capacity
(“RFC”) to perform the requirements of past
relevant work. See 20 C.F.R. §
404.1520(a)(4)(iv). If the claimant's impairment or
combination of impairments does not prevent performance of
past relevant work, the evaluator will determine the claimant
is not disabled. See id.
claimant is successful at the preceding step, the fifth step
shifts the burden to the Commissioner to prove, considering
claimant's RFC, age, education and past work experience,
whether the claimant is capable of performing other work. 20
C.F.R. § 404.1520(f)(1). If the claimant can perform
other work, the evaluator will not find the claimant
disabled. See 20 C.F.R. § 404.1520(a)(4)(v);
see also 20 C.F.R. § 404.1520(g). If the
claimant cannot perform other work, the evaluator will find
the claimant disabled. 20 C.F.R. § 404.1520(a)(4)(v),
court reviews the ALJ's “‛decision with
deference to the factual findings and close scrutiny of the
legal conclusions.'” Parks ex rel. D.P. v.
Comm'r, Social Sec. Admin., 783 F.3d 847, 850
(11th Cir. 2015) (quoting Cornelius v.
Sullivan, 936 F.2d 1143, 1145 (11thCir.
1991)). The court must determine whether substantial evidence
supports the Commissioner's decision and whether the
Commissioner applied the proper legal standards. Winschel
v. Comm'r of Social Sec., 631 F.3d 1176, 1178
(11th Cir. 2011). Although the court must
“scrutinize the record as a whole . . . to determine if
the decision reached is reasonable and supported by
substantial evidence, ” Bloodsworth v.
Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983)
(citations omitted), the court “may not decide the
facts anew, reweigh the evidence, or substitute [its]
judgment” for that of the ALJ. Winschel, 631
F.3d at 1178 (citations and internal quotation marks
omitted). “Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable
person would accept as adequate to support a
conclusion.” Id. (citations omitted).
Nonetheless, substantial evidence exists even if the evidence
preponderates against the Commissioner's decision.
Moore v. Barnhart, 405 F.3d 1208, 1211
(11th Cir. 2005).
AND PROCEDURAL HISTORY
Thweatt, born in 1986, protectively filed an application for
SSI and DIB on February 2, 2015, alleging disability
beginning August 28, 2014. (Tr. 359-71). The Commissioner
denied her claims, and Thweatt timely filed a request for a
hearing on May 12, 2015. (Tr. 322). The Administrative Law
Judge (“ALJ”) held a hearing on July 27, 2016.
(Tr. 190-216). The ALJ issued an opinion denying
Thweatt's claim on January 12, 2017. (Tr. 50-63).
the five-step sequential process, the ALJ found at step one
that Thweatt had not engaged in substantial gainful activity
since August 28, 2014. (Tr. 55). At step two, the ALJ found
the following severe impairments: seizure disorder, diabetes
with neuropathy, obesity, degenerative disc disease,
depression, and anxiety. (Tr. 55). At step three, the ALJ
found that Ms. Thweatt's impairments, or combination of
impairments, did not meet or equal any impairment for
presumptive disability listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1. (Tr. 56-58).
the ALJ found that Ms. Thweatt exhibited the residual
functional capacity (“RFC”) to perform sedentary
work with the following non-exertional limitations:
allows for occasional pushing and pulling with the upper and
lower extremities; no climbing of ladders, ropes, and
scaffolds; occasional climbing of ramps and stairs;
occasional balancing and stooping; no kneeling, crouching, or
crawling; frequent bilateral handling, fingering, and
feeling; avoidance of concentrated exposure to extreme heat,
cold, and vibration; no exposure to hazardous machinery and
unprotected heights; no work around large bodies of water; no
operation of a motor vehicle; no work requiring walking on
uneven or slippery surfaces; and no reading of fine print.
During a regularly scheduled workday, or the equivalent
thereof, the claimant can: (1) understand and remember short
and simple instructions, but is unable to do so with detailed
or complex instructions, (2) do simple, routine, repetitive
tasks, but is unable to do so with detailed or complex tasks,
(3) have no more than occasional contact with the general
public, (4) deal with changes in workplace, if introduced
occasionally and gradually, and are well explained, and (5)
be expected to miss one to two days of work per month.
four, the ALJ determined that Thweatt cannot perform her past
relevant work as a cook, cashier, and material handler. (Tr.
61). At step five, based on the testimony of a vocational
expert, the ALJ determined that, considering Ms.
Thweatt's age, education, work experience, and RFC, a
significant number of other jobs exist in the national
economy that she could perform, including cuff folder, almond
blancher, and foundation maker. (Tr. 62-63). Accordingly, the
ALJ determined that Ms. Thweatt has not been under a
disability, as defined by the Social Security Act, since
August 28, 2014. (Tr. 63).
Thweatt timely requested review of the ALJ's decision.
She submitted additional medical records to the Appeals
Council. (Tr. 14-49, 70-189, 218-55). On October 17, 2017,
the Appeals Council denied review, which deems the ALJ's
decision as the Commissioner's final decision. Ms.
Thweatt filed her complaint with the court seeking review of
the ALJ's decision. (Doc. 1).
appeal, Ms. Thweatt argues (1) the ALJ failed in his duty to
develop a full and fair record; (2) the Appeals Council erred
in refusing to consider additional evidence; and (3) the
ALJ's RFC does not sufficiently account for Thweatt's
seizure disorder. She also claims generally the ALJ's
decision that she can work despite her severe impairments
lacks support in substantial evidence. The court finds
Plaintiff's assertions do not merit reversal.
Thweatt Suffered No. Prejudice From the ALJ's Failure to
Obtain Medical Records
contends the ALJ committed error by failing to ensure the
record contained medical records from Northwest Alabama
Mental Health for January 2016 to February 2017. She argues
the ALJ should have obtained the records given her pro se
status. She also asserts his failure to obtain the records
resulted in incomplete evidence, and the evidence would have
altered the outcome because these records establish she
experiences more than mild to moderate limitations from
depression and PTSD. However, these arguments offer no ground
review incites several statutory rights enjoyed by Thweatt.
The ALJ retains a duty to develop a full and fair record.
Pennington v. Comm'r of Soc. Sec., 652 Fed.Appx.
862, 871 (11th Cir. 2016). A Social Security
claimant has a statutory right, which may be waived, to be
represented by counsel at a hearing before an ALJ. Hunter
v. Soc. Sec. Admin, Comm'r, 705 Fed.Appx. 936, 942
(11th Cir. 2017). In determining whether to remand
a case for further development of the record, a court
considers “whether the record reveals evidentiary gaps
which result in unfairness or clear prejudice.”
Vangile v. Comm'r, Soc. Sec. Admin., 695
Fed.Appx. 510, 512 (11th Cir. 2017) (quoting
Brown v. Shalala, 44 F.3d 931, 935 (11th
Cir. 1995) (per curiam)).
a claimant must demonstrate prejudice before a court may
conclude the ALJ violated her due process rights to such an
extent that the court must remand the case.
Pennington, 652 Fed.Appx. at 871. To demonstrate
prejudice, the claimant must show “the ALJ did not have
all of the relevant evidence before him in the record . . .,
or that the ALJ did not consider all of the evidence in the
record in reaching his decision.” Id., quoting
Kelley v. Heckler, 761 F.2d 1538, 1540
(11th Cir. 1985).
case, the ALJ gave Thweatt three opportunities to request
counsel and postpone the hearing so that an attorney could
obtain medical records. (Tr. 192-94, 196). Ms. Thweatt
declined the opportunity. (Tr 192-94, 196). She also signed a
Waiver of Right to Representation on the day of her ALJ
hearing. (Tr. 356). Therefore, she waived her right to
representation. See Hunter v. Soc. Sec. Admin.,
Comm'r, 705 Fed.Appx. 936, 942 (11th Cir.
2017); McCloud v. Barnhart, 166 Fed.Appx. 410, 416
(11thCir. 2006). After the ALJ issued his
decision, Thweatt obtained counsel, who submitted additional
medical records to the Appeals Council, including the records
Thweatt faults the ALJ for not securing. The Appeals Council
considered these records and determined they would not change
the outcome. Therefore, Thweatt suffered no prejudice ...