Brenda Tackett v. Commissioner of Social Security

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11852
Non-Argument Calendar
____________________
BRENDA TACKETT,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant- Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cv-00016-JLB-NPM
____________________
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2 Opinion of the Court 21-11852
Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Brenda Tackett appeals the district court’s order affirming
the Commissioner of the Social Security Administration’s (“SSA”)
denial of a period of disability and disability insurance benefits
(“DIB”), 42 U.S.C. § 405(g), and supplemental security income
(“SSI”), 42 U.S.C. § 1383(c)(3). First, she argues that the adminis-
trative law judge (“ALJ”) erred by failing to consider a licensed so-
cial worker’s medical opinion, failing to articulate the weight given
to this opinion, and failing to consider the medical evidence associ-
ated with this opinion. Second, she argues that the ALJ erred in
relying on a residual functional capacity (“RFC”) determination
and vocational expert (“VE”) testimony that did not fully account
for her mental limitations. Third, she argues that the ALJ erred in
determining that she could perform light work and in failing to in-
clude a sit/stand option in the RFC assessment and in the hypo-
thetical questions to the VE. Fourth, she argues that she did not
knowingly and voluntarily waive her right to representation and
that the ALJ plainly erred in failing to ensure that she had an op-
portunity to review the record before her hearing and in failing to
refer her to a neurologist for a consultative examination.
I.
We review the ALJ’s decision for substantial evidence, and
its application of legal principles de novo. Moore v. Barnhart, 405
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21-11852 Opinion of the Court 3
F.3d 1208, 1211 (11th Cir. 2005). Substantial evidence is more than
a scintilla, Falge v. Apfel, 150 F.3d 1320, 1322 (11th Cir. 1998), but
“less than a preponderance,” Moore, 405 F.3d at 1211. It is “such
relevant evidence as a reasonable person would accept as adequate
to support a conclusion.” Id. This limited review does not permit
us to decide the facts anew, make credibility determinations, or re-
weigh the evidence. Id.
Even if an ALJ commits an error, the error is harmless if it
did not affect the ALJ’s ultimate determination. See Diorio v.
Heckler, 721 F.2d 726, 728 (11th Cir. 1983). Moreover, we do not
consider on appeal an argument that a social security claimant did
not raise before the administrative agency or the district court. Kel-
ley v. Apfel, 185 F.3d 1211, 1215 (11th Cir. 1999).
Medical opinions are statements from acceptable medical
sources that reflect judgments about the nature and severity of the
claimant’s impairments, including the claimant’s symptoms, diag-
nosis and prognosis, what the claimant can still do despite impair-
ments, and the claimant’s physical or mental restrictions. 20 C.F.R.
§ 416.927(a)(1). “[T]he ALJ must state with particularity the weight
given to different medical opinions and reasons therefor.” Id.;
Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1179 (11th Cir.
2011). For applications filed prior to March 27, 2017, as is the case
here, the ALJ is required to evaluate every medical opinion re-
ceived. See 20 C.F.R. § 404.1527(c). An ALJ may discount a physi-
cian’s opinion when the opinion is conclusory, the physician fails
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4 Opinion of the Court 21-11852
to provide objective medical evidence to support his or her opin-
ion, the opinion is inconsistent with the record as a whole, or the
evidence otherwise supports a contrary finding. Id.; Crawford v.
Comm’r of Soc. Sec., 363 F.3d 1155, 1159–60 (11th Cir. 2004).
Licensed clinical social workers are not “acceptable medical
sources” under the regulations. See 20 C.F.R. § 404.1502(a). As
“other sources,” they cannot establish the existence of a medically
determinable impairment, produce medical opinions, or be consid-
ered treating sources. SSR 06-03p, 71 Fed. Reg. 45,593-03 (Aug 9,
2006). 1 The ALJ “may” consider evidence from other sources to
show the severity of an individual’s impairments and how those
impairments affect the individual’s ability to function. Id. How-
ever, the ALJ “generally should explain the weight given to opin-
ions from these sources or otherwise ensure that the discussion of
the evidence . . . allows a claimant or subsequent reviewer to fol-
low the ALJ’s reasoning, when such opinions may have an effect
on the outcome of the case.” 20 C.F.R. §§ 404.1527(f)(2),
416.927(f)(2); SSR 06-03p. Moreover, the ALJ is not required to dis-
cuss every piece of evidence, so long as the ALJ’s decision is not a
broad rejection and there is enough for us to conclude that the ALJ
considered the medical condition as a whole. Dyer v. Barnhart, 395
F.3d 1206, 1211 (11th Cir. 2005).
1 SSR 06-03p was rescinded by 82 Fed. Reg. 15,263 (May 27, 2017) for claims
filed on or after March 27, 2017. However, because Tackett’s claim was filed
on April 20, 2016, this regulation is relevant to her appeal.
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21-11852 Opinion of the Court 5
As an initial matter, we need not consider Tackett’s argu-
ment that the ALJ failed to consider the medical evidence associ-
ated with Dr. Janice Hughes’s report because she failed to raise this
argument in the district court. See Kelley, 185 F.3d at 1215. But
even if Tackett had properly raised this argument, the ALJ did not
err in failing to consider this medical evidence because the ALJ’s
decision considered Tackett’s medical condition as a whole and did
not broadly reject her claim. See Dyer, 395 F.3d at 1211. Con-
sistent with Dr. Hughes psychological testing, the ALJ concluded
that Tackett suffered from ADHD and PTSD. And the ALJ found
that Tackett had mild limitations, but that her mental conditions
did not cause more than minimal limitations in her ability to per-
form basic mental work activities.
Further, the ALJ did not have an obligation to state with par-
ticularity the weight given to Dr. Hughes’s opinion because Dr.
Hughes, a licensed social worker with a doctorate in education,
was not an “acceptable medical source[]” and, thus, could not pro-
duce medical opinions. See 20 C.F.R. § 404.1502(a); SSR 06-03p.
Additionally, the ALJ properly considered Dr. Hughes’s report be-
cause the ALJ expressly stated that he had considered the opinion
evidence in the record, and he cited Dr. Hughes’s report in his de-
cision. Moreover, even if the ALJ failed to adequately consider Dr.
Hughes’s opinions, any error was harmless because this opinion
did not support the imposition of additional limitations that were
not present in the ALJ’s RFC finding. See Diorio, 721 F.2d at 728.
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6 Opinion of the Court 21-11852
Thus, the ALJ did not err in failing to consider Dr. Hughes’s opin-
ion, failing to articulate the weight given to this opinion, or failing
to consider the medical evidence associated with this opinion.
II.
Social Security regulations outline a five-step, sequential
evaluation process to determine whether a claimant is disabled.
See 20 C.F.R. § 404.1520(a)(1). The ALJ must evaluate: (1) whether
the claimant engaged in substantial gainful activity; (2) if not,
whether the claimant has a severe impairment; (3) if so, whether
the severe impairment meets or equals an impairment in the List-
ing of Impairments; (4) if not, whether the claimant has the RFC to
perform past relevant work; and (5) if not, whether in light of the
claimant’s RFC, age, education, and work experience, there are
other jobs the claimant can perform. Phillips v. Barnhart, 357 F.3d
1232, 1237 (11th Cir. 2004). If the ALJ determines that the claimant
is not disabled at any step of the evaluation process, the inquiry
ends. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
At step four of the sequential analysis, the ALJ must assess
and determine a claimant’s RFC by considering all relevant medical
and other evidence. 20 C.F.R. § 404.1520(e); see also Phillips, 357
F.3d at 1238. The RFC is defined as that work “which an individual
is still able to do despite the limitations caused by his or her impair-
ments.” Phillips, 357 F.3d at 1238.
At step four, an ALJ is not required to elicit the testimony of
a VE to prove that the claimant can perform past work, because
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21-11852 Opinion of the Court 7
the burden rests on the claimant to show that he is incapable of
performing past work. Lamb v. Bowen, 847 F.2d 698, 704 (11th
Cir. 1988). However, at step five, the Commissioner may deter-
mine that a claimant has the ability to perform other work in the
national economy through the testimony of a VE. Phillips, 357
F.3d at 1240. “In order for a VE’s testimony to constitute substan-
tial evidence, the ALJ must pose a hypothetical question which
comprises all of the claimant’s impairments.” Id. at 1240, n.7 (quo-
tation marks and alterations omitted). However, an ALJ is “not
required to include findings in the hypothetical that the ALJ had
properly rejected as unsupported.” Crawford v. Comm’r of Soc.
Sec., 363 F.3d 1155, 1161 (11th Cir. 2004).
Here, substantial evidence supports the ALJ’s formulation of
Tackett’s RFC. In formulating Tackett’s RFC, the ALJ determined
that Tackett had mild limitations in understanding, remembering,
or applying information and in concentrating, persisting, or main-
taining pace based on Tackett’s own statements and limitations to
her memory, attention, and concentration that were identified by
the Commissioner’s medical experts. Moreover, the ALJ’s hypo-
thetical question included all of the limitations supported by the
record, and the ALJ was not required to include findings in the hy-
pothetical question that the ALJ had found to be unsupported by
the record. See Crawford, 363 F.3d at 1161. Accordingly, the ALJ
did not err in determining Tackett’s RFC and adequately ac-
counted for Tackett’s mental limitations in the hypothetical ques-
tions.
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8 Opinion of the Court 21-11852
III.
Substantial evidence supports the ALJ’s determination that
Tackett could perform light work and the ALJ’s decision not to in-
clude a sit/stand option in the RFC or in the hypothetical questions
to the VE. Although Dr. Owen opined that Tackett was limited in
her ability to sit and stand, the ALJ gave partial weight to this opin-
ion because the ALJ determined that his opinion was inconsistent
with his examination of Tackett. Thus, the ALJ was not required
to incorporate it into the RFC finding. Additionally, the evidence
from the Commissioner’s consultative examiners showed that
Tackett’s pain was intermittent and was not affected by walking or
sitting. Dr. Owen also found that Tackett was able to walk and
travel without assistance, and that she was able to take care of her-
self. Therefore, substantial evidence supports the ALJ’s decision
not to include a sit/stand option in the RFC and that Tackett could
perform light work. Moreover, the ALJ was not required to in-
clude findings in the hypothetical questions posed to the VE that
the ALJ found unsupported by the record. See Crawford, 363 F.3d
at 1161. Therefore, the ALJ did not err in failing to include a
sit/stand option in the RFC determination or the hypothetical
questions to the VE or in finding that Tackett could perform light
work.
IV.
Our rules state that the failure to object to a magistrate
judge’s report and recommendation (“R&R”) forfeits the right to
challenge on appeal the district court’s order based on unobjected-
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21-11852 Opinion of the Court 9
to factual and legal conclusions if the party was informed of the
time period for objecting and the consequences on appeal for fail-
ing to object. 11th Cir. R. 3-1. In the absence of a proper objection,
however, we may review on appeal for plain error if necessary in
the interests of justice. Id. To establish plain error, a party must
show: (1) a plain error; (2) that affected his substantial rights; and
(3) that “would seriously affect the fairness of the judicial proceed-
ing.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th
Cir. 1999).
“A Social Security claimant has a statutory right, which may
be waived, to be represented by counsel at a hearing before an
ALJ.” Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995). Although
the right may be waived, the Commissioner “has an obligation to
notify the claimant of her right to counsel.” Holland v. Heckler,
764 F.2d 1560, 1563 (11th Cir. 1985); see also 42 U.S.C. § 406(c).
A claimant may waive her right to counsel provided the
waiver is made knowingly and intelligently. Smith v. Schweiker,
677 F.2d 826, 828 (11th Cir. 1982). In order for a waiver to be effec-
tive, the claimant must be properly apprised of her options con-
cerning representation, “either in a prehearing notice or at [her]
hearing.” Id.; see also Brown, 44 F.3d at 935 (concluding that a
claimant had not validly waived her right to representation when
the hearing transcript showed that she was confused by the ALJ’s
questions concerning representation and nothing in her testimony
evinced an understanding that she had other options besides pro-
ceeding pro se).
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10 Opinion of the Court 21-11852
The deprivation of the statutory right to counsel at a Social
Security hearing is “a statutory wrong, not a constitutional wrong.”
Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). The claim-
ant must show that she was prejudiced by lack of counsel before it
is determined that the claimant’s right to due process has been vi-
olated to such a degree that the case must be remanded. Id. at 1423.
Prejudice may exist where “the record reveals evidentiary gaps
which result in unfairness or ‘clear prejudice.’” Id. (quoting Brown,
44 F.3d at 934–35).
Since a hearing before an ALJ in a social security matter is
not an adversary proceeding, the ALJ has a basic obligation to de-
velop a full and fair record. Ingram v. Comm’r of Soc. Sec. Admin.,
496 F.3d 1253, 1269 (11th Cir. 2007). Under SSA regulations, this
requires that the ALJ:
develop [claimant’s] complete medical history for at
least the 12 months preceding the month in which
[the claimant files her] application unless there is a
reason to believe that development of an earlier pe-
riod is necessary or unless [the claimant says her] dis-
ability began less than 12 months before [the claim-
ant] filed [her] application.
20 C.F.R. § 416.912(b)(1). This duty applies regardless of whether
the claimant is represented. Brown, 44 F.3d at 934–35. However,
the ALJ “is not required to order a consultative examination as long
as the record contains sufficient evidence for the administrative law
judge to make an informed decision.” Ingram, 496 F.3d at 1269.
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21-11852 Opinion of the Court 11
The “essential requirements of due process” are notice and
an opportunity to respond. Laskar v. Peterson, 771 F.3d 1291, 1297
(11th Cir. 2014). However, “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
[ALJ] for further development of the record.” Brown, 44 F.3d at
935 (quotation marks omitted).
As an initial matter, Tackett forfeited her due process argu-
ments because she failed to object to the relevant findings in the
R&R, despite the magistrate judge’s warning that the failure to file
timely objections would forfeit these objections for appeal. There-
fore, Tackett’s arguments are reviewable for plain error.
Here, Tackett knowingly and voluntarily waived her statu-
tory right to representation. The Commissioner informed her nu-
merous times of her right to representation in writing, and Tackett
sent a letter to Commissioner which indicated that she wished to
represent herself before the ALJ. Additionally, the ALJ informed
Tackett of her right to representation at her administrative hearing,
and Tackett indicated that she understood this right and wished to
proceed without representation. Moreover, although Tackett
claims that her cognitive deficiencies rendered her waiver of repre-
sentation ineffective, there is no indication in the record that she
lacked the mental capacity to understand the significance of the
waiver.
But even if Tackett did not validly waive her right to repre-
sentation, she has not established that she was prejudiced by her
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12 Opinion of the Court 21-11852
lack of representation. She did not offer any explanation for how
her lack of awareness of the medical evidence on which the ALJ’s
decision was based prejudiced her at her hearing, identify any ques-
tions counsel could have asked the VE, or specify how the failure
to cross-examine the VE negatively impacted her case. Tackett
also failed to show that she was prejudiced by her failure to review
the medical evidence in the record prior to her hearing, as she did
not offer any explanation for how her failure to review this evi-
dence prejudiced her, nor did she allege that this evidence was in-
complete or incorrect.
Finally, the ALJ did not err, plainly or otherwise, in failing to
order a neurological evaluation because the record as a whole was
sufficient for the ALJ to conclude that Tackett was not disabled.
Specifically, the ALJ considered the opinions of two non-examining
state agency consultants and an examining psychologist, all of
whom addressed whether Tackett had an unspecified neurocogni-
tive disorder. Therefore, the ALJ did not err in finding that Tackett
knowingly and voluntarily waived her right to representation, in
failing to ensure that she had an opportunity to review the record
before her administrative hearing, or in failing to refer her to a neu-
rologist for a consultative examination.
AFFIRMED