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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13452
Non-Argument Calendar
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D.C. Docket No. 4:19-cv-01790-CLS
TOMMIE JONES,
Plaintiff-Appellant
versus
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 26, 2021)
Before MARTIN, BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
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Tommie Jones disagrees with the SSA’s determination that he is not
disabled. So when the Appeals Council denied review and the district court
affirmed the Commissioner’s ruling, he appealed the decision before this Court.
Because he has not shown reversible error, we affirm.
I.
In 2013, an ALJ found that Tommie Jones was disabled. His impairments
included “mild mental retardation, depression, history of substance abuse,” and
“mild to moderate degenerative disk disease.” The ALJ found that Jones was
under a disability since October 6, 2011. Eventually, the Social Security
Administration notified Jones that he needed to be examined to see if he still met
the requirements for the regular or special disability programs. He did not show up
to the examination, and the SSA found that his disability ceased as of March 2017.
Instead of appealing that cessation finding, Jones applied for supplemental
security income in August 2017. He claimed that his disability began on March
11, 2017, and reported problems with his neck, back, legs, arms, and post-
traumatic stress disorder that limited his ability to work. Jones claimed that he did
not like anyone, but also that he had no problem with personal care.
Jones also submitted an October 2017 evaluation by psychologist June
Nichols. In her assessment of his ability to concentrate, Dr. Nichols indicated that
Jones was unable to spell “world” backwards, but was able to perform “addition,
subtraction, and the more complex arithmetic involving multiplication.” She also
found that his “[r]ecent memory functions appear to be grossly intact” and that his
“[g]eneral fund of knowledge was adequate.” Ultimately, though, Dr. Nichols’s
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diagnostic impression included major depressive disorder, mild intellectual
disability, and physical issues including chronic back pain. She also opined that
Jones is “likely unable to maintain effective social interaction on a consistent and
independent basis with supervisors, coworkers, and the public,” and that he is
“unable to sustain concentration and persist in a work relate[d] activity at a
reasonable pace.”
In November 2017, a disability officer determined that Jones was not
disabled. The report included a finding that the “level of severity is not fully
supported by the objective current MSE.” Included were findings by the state
consultative psychological consultant, Dr. Register, who noted that, while Jones
had some limitations, he “can maintain attention and concentration for at least 2
hours at a time as required in order to perform simple tasks, sufficiently to
complete an 8-hour day and a 40-hour week.” And in response to the Nichols
evaluation, the report found that it “relies heavily on the subjective report of
symptoms and limitations provided by the individual, and the totality of the
evidence does not support the opinion.” Moreover, it found that Nichols’s report
“contains inconsistencies, rendering it less persuasive.”
Jones had a hearing in January 2019. The ALJ noted that Jones did not have
counsel. Jones replied that he had representation when he first got his social
security benefits, but felt that he “didn’t need no other attorney for Social Security”
when he “was already on Social Security.” So the hearing proceeded, and the ALJ
heard from Jones and then from a vocational expert. The ALJ asked the VE two
hypotheticals. First, the ALJ asked whether an individual “of Mr. Jones’s age,
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education, [and] work experience” with various limitations could perform work in
the national economy. The VE replied that he could. Then, the ALJ asked a
second, more limiting hypothetical, adding more limitations—to which the VE
replied that such a worker would not be able to perform work in the national
economy.
The ALJ found that Jones was not disabled. In particular, in the five-step
process, the ALJ found that Jones’s impairment did not render him disabled at step
3, and also found that “considering the claimant’s age, education, work experience,
and residual functional capacity, the claimant is capable of making a successful
adjustment to other work that exists in significant numbers in the national
economy.” In reaching these findings, the ALJ found the Nichols evaluation to be
“only somewhat persuasive.” In particular, the ALJ noted that the Nichols
evaluation was not “entirely consistent” with the totality of other evidence. The
ALJ specifically noted that the Nichols evaluation was in tension with Dr.
Register’s report.
The Appeals Council denied review, so Jones filed a complaint in federal
district court. There, he argued that the ALJ improperly rejected the Nichols
evaluation, and that he was entitled to benefits under Listing 12.05(C). Jones also
argued that the ALJ decision was not based on substantial evidence, and that he
was prejudiced by the lack of counsel.
The district court affirmed the Commissioner’s ruling. First, the district
court found that under the five factors of
20 C.F.R. § 416.920c(c), the ALJ
properly found that the Nichols evaluation’s conclusions were not controlling.
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Second, the court recognized that Listing 12.05(C) was removed by the time Jones
applied for disability benefits, and found that Jones did not show that he qualified
under the other regulations. Third, the court found that the Commissioner’s ruling
was supported by substantial evidence, because the hypothetical posed to the
vocational expert contained “all of the limitations the ALJ defined in [Jones’s]
residual functional capacity.” And fourth, the court found that Jones did not show
prejudice from lack of counsel.
So Jones appeals.
II.
“In social security cases where the ALJ denies benefits and the Appeals
Council denies review, we review the ALJ’s decision as the Commissioner’s final
decision.” Henry v. Comm’r of Soc. Sec.,
802 F.3d 1264, 1267 (11th Cir. 2015)
(internal quotation marks omitted) (alterations adopted). While our review of the
legal principles on which the ALJ relied is de novo, we “are limited to assessing
whether the ALJ’s resulting decision is supported by substantial evidence.”
Id. at
1266–67. And substantial evidence “as to the Secretary’s factual findings is more
than a scintilla, but less than a preponderance.” Martin v. Sullivan,
894 F.2d 1520,
1529 (11th Cir. 1990).
III.
Jones raises three arguments before us. First, he argues that he did not have
counsel at his hearing, and was prejudiced thereby. Second, he argues that the ALJ
did not properly consider the opinion of Dr. Nichols. Third, Jones argues that the
district court’s finding that he was not entitled to benefits under Listing 12.05 was
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not supported by substantial evidence. We address each of these arguments in
turn.
A.
First up is Jones’s contention that his lack of counsel at his hearing was
reversible error. However, even assuming that Jones is correct that he wrongfully
lacked counsel, that alone is not enough for reversal. We have held that “there
must be a showing of prejudice before we will find that the claimant’s right to due
process has been violated to such a degree that the case must be remanded to the
Secretary for further development of the record.” Brown v. Shalala,
44 F.3d 931,
935 (11th Cir. 1995). And speculation that a lack of counsel provided such
prejudice is not enough. See Smith v. Schweiker,
677 F.2d 826, 830 (11th Cir.
1982).
Speculation is all that Jones provides to this Court. He argues that, with
counsel, he could have “[prepared] and submit[ted] a timely statement by a treating
physician,” “[developed] a better Record of claimant’s disabling pain and anxiety,”
“[presented] the chiropractic records,” and “[c]ross examined the [vocational
expert].” But it is Jones’s burden to show prejudice, and merely asserting that his
counsel might have been more successful than he was is not enough to meet that
standard.
B.
Second, Jones argues that the ALJ erred in finding Nichols’s opinion to be
only “somewhat persuasive.” Jones gives two reasons to find the ALJ’s
assessment to be error—(1) he asserts that the ALJ had a duty to recontact Dr.
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Nichols for clarification, and (2) he contends that the ALJ improperly discounted
Dr. Nichols’s opinion, without giving grounds for doing so. Neither are
convincing.
To support his claim that the ALJ should have recontacted Dr. Nichols,
Jones relies upon Johnson v. Barnhart, 138 F. App’x 266, 270–71 (11th Cir. 2005),
an unpublished case from this Circuit. In Johnson, this Circuit stated that if “after
weighing the evidence, the Commissioner cannot reach a determination, then she
will seek additional information or recontact the physicians.” Id. at 270. But
saying the ALJ can sometimes reach out to a physician if necessary is not the same
thing as saying that the ALJ must always reach out to a physician. The ALJ here
was able to reach a determination, so even under Jones’s rule there is no occasion
for recontacting Dr. Nichols.1
The ALJ also did not err when it only found Nichols’s opinion to be
“somewhat persuasive.” Jones mostly seems to argue that we should adopt the
Seventh Circuit’s rule of considering an ALJ’s “decision to go against the only
medical evidence in the case” with “a degree of suspicion.” Wilder v. Chater,
64
F.3d 335, 337 (7th Cir. 1995). But the Seventh Circuit’s opinion is not binding
upon us, and in this case the ALJ explicitly noted that Nichols’s opinion was in
tension with the findings of a state agency psychological consultant. Jones has not
brought any controlling case law before us to show that the ALJ erred in its
1
Moreover, the current regulations provide that, when the Commissioner is unable to reach a
conclusion of whether the claimant is disabled, it “may recontact [the claimant’s] medical
source.”
20 C.F.R. § 416.920b(b)(2)(i) (emphasis added). And that is only one of four possible
actions listed in that section.
Id.
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assessment of Nichols’s opinion, and does not explain why he thinks the ALJ’s
report did not provide “some measure of clarity” as to its assessment. So we have
no issue affirming the Commissioner here as well.
C.
Finally, Jones asserts that the ALJ’s decision that Jones was not entitled to
benefits under Listing 12.05 was not supported by substantial evidence. As an
initial matter, Jones only argued before the agency and the district court that he
was entitled to benefits under Listing 12.05(C). We generally do not reach
arguments that were not raised before the administrative agency or the district
court. Kelley v. Apfel,
185 F.3d 1211, 1215 (11th Cir. 1999).
To the extent Jones did preserve that argument, though, he has failed to
show that he was entitled under Listing 12.05. The only applicable provision Jones
points us to in his initial brief is Listing 12.05(B), which requires showing
“[s]ignificant deficits in adaptive functioning.” 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 12.05. The ALJ found that Jones did not meet the requirements of that listing.
As we said earlier, substantial evidence must be more than a scintilla, but does not
even need to reach a preponderance. Martin,
894 F.2d at 1529.
The ALJ only found “moderate” limitations in such categories as
concentrating, interacting with others, and adapting or managing oneself. In
reaching those findings, the ALJ cited to the opinion of Dr. Register, a function
report, a disability determination explanation, and information from the CED
Mental Health Center. Jones argues with the ALJ’s conclusion, but he does not
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give us any reason to find that the ALJ relied on less than a “scintilla” to reach its
conclusion. So here, too, Jones’s claim does not succeed.
IV.
The substantial evidence standard is a hard one for claimants to overcome.
That is so here. AFFIRMED.
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