CAROL MIRANDO, Magistrate Judge.
Plaintiff Janice Williams seeks judicial review of the denial of her claim for supplemental security income ("SSI") by the Commissioner of the Social Security Administration ("Commissioner"). The Court has reviewed the record, the briefs and the applicable law. For the reasons discussed herein, the decision of the Commissioner is AFFIRMED.
Plaintiff raises three issues on appeal: (1) whether the Administrative Law Judge ("ALJ") fully and fairly developed the record; (2) whether the ALJ properly considered Plaintiff's failure to follow prescribed treatment in evaluating her credibility; and (3) whether substantial evidence supports the ALJ's assessment of Plaintiff's residual functional capacity ("RFC").
On April 9, 2012, Plaintiff filed an application for SSI, alleging her disability began August 15, 2008 due to uncontrolled diabetes, anemia and severe nerve pain.
The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards and whether the findings are supported by substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390 (1971)). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g).
The Eleventh Circuit has restated that "[i]n determining whether substantial evidence supports a decision, we give great deference to the ALJ's fact findings." Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (citation omitted). Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact or found that the preponderance of the evidence is against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991); see also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record to determine the reasonableness of the factual findings). The Court reviews the Commissioner's conclusions of law under a de novo standard of review. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).
The ALJ noted in his decision, "[Plaintiff] is a 55-year-old former housekeeping worker who completed high school but may have had special education services while in school." Tr. 17. On her application for SSI, Plaintiff did not allege any intellectual disability as her disabling impairment. Tr. 81. Plaintiff also denied attending special education classes on her disability report. Tr. 182.
In contrast, Plaintiff's counsel submitted a Pre-Hearing Memorandum before the ALJ's hearing, suggesting Plaintiff has "altered mental status," "labile personality," communication problems, "mild mental slowing" and illiteracy. Tr. 229-30. Counsel noted that Plaintiff's "untreated" mental impairments contributed to her difficulties complying with her treatment plans. Tr. 230. Counsel did not allege Plaintiff's possible mental impairments as disabling. Tr. 229-30.
During the hearing before the ALJ, Plaintiff testified that although she finished high school, she was in special education classes throughout school. Tr. 20, 33. Plaintiff further testified she cannot read or understand a newspaper, is unable to write a check and has not ever written one. Tr. 39. She also testified she did not pass the driver's license test. Id. Based on Plaintiff's testimony, her counsel indicated to the ALJ that her high school diploma "is probably more like a special education diploma." Tr. 30. Plaintiff's counsel requested a consultative psychological examination of Plaintiff, arguing that she is illiterate and has only limited education. Tr. 58-59. Counsel admitted Plaintiff's limited ability to read is not indicated anywhere in the record, and his request was solely based on Plaintiff's testimony during the hearing. Tr. 59. The ALJ responded Plaintiff finished high school, and he would consider counsel's request. Tr. 59-60.
In his decision, the ALJ noted Plaintiff alleged diabetes, hip pain and intellectual difficulties and also "is often non-compliant with her prescribed medication regimen and dietary recommendations" regarding her diabetes. Tr. 19. The ALJ found Plaintiff's alleged intellectual disability did not contribute to her non-compliance with prescribed medications because:
Tr. 20-21. The ALJ did not include any mental limitations in Plaintiff's RFC. Tr. 18.
Plaintiff argues the ALJ erred by not ordering a consultative psychological examination, although substantial evidence supports the presence of Plaintiff's intellectual disability. Doc. 20 at 6-8. The Commissioner responds Plaintiff does not show that a consultative examination and intelligence testing were necessary, or that the absence of them prejudiced her claims. Doc. 21 at 5-11.
It is well established that the ALJ has a duty to develop a full and fair record. Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003); Graham v. Apfel, 129 F.3d 1420, 1422-23 (11th Cir. 1997) (the ALJ has an affirmative duty to develop the record fully and fairly). The Supreme Court has held that "Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 110-11 (2000). Accordingly, if the ALJ has insufficient medical evidence regarding a claimant's impairments to determine whether she is disabled, the ALJ may order a mental examination at the government's expense. 20 C.F.R. § 404.1517. The ALJ is not required to order a consultative examination if the ALJ has sufficient information to make a determination. Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999); Fries v. Comm'r of Soc. Sec. Admin., 196 F. App'x 827, 830-31 (11th Cir. 2006) ("the ALJ is not required to order an examination if such an examination is not necessary in order to enable the ALJ to make a disability determination.").
In determining whether the ALJ properly developed the record, the Court is "guided by whether the record reveals evidentiary gaps which result in unfairness or `clear prejudice.'" Graham, 129 F.3d at 1423 (citing Brown v. Shalala, 44 F.3d 931, 934-35 (11th Cir. 1995)). If the record was sufficient for the ALJ to evaluate Plaintiff's impairments and functional abilities and does not show the kind of gaps in the evidence necessary to demonstrate prejudice, there is no error and the Commissioner's decision must stand. See id. Instead, the claimant must make "a showing of prejudice before [the court] 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. "[The] claimant cannot show prejudice by speculating that she would have benefitted from a more comprehensive hearing." McCabe v. Comm'r of Soc. Sec., 661 F. App'x 596, 599 (11th Cir. 2016) (citing Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985)). Prejudice is shown when "the ALJ did not have all the relevant evidence before him or did not consider the evidence in reaching his decision." Id. (citing Kelley, 761 F.2d at 1540).
Here, the Court finds a consultative psychological examination and intelligence testing were not necessary for the ALJ to make an informed decision. It is Plaintiff's burden to prove that she has a disabling impairment and produce evidence in support of her claim. Ellison, 355 F.3d at 1276. Plaintiff here clearly did not meet her burden because, as Plaintiff's counsel admitted during the hearing, the record does not establish the presence of any intellectual disability. Tr. 59. Instead of producing evidence as required, Plaintiff's counsel asked the ALJ to order a consultative examination based on Plaintiff's testimony alone, which the ALJ did not find credible. Tr. 20-21, 59; cf. Ellison, 355 F.3d at 1276.
The Court also finds Plaintiff does not establish prejudice sufficient to merit remand. See Brown, 44 F.3d at 935. As admitted by her counsel during the hearing and in the brief, the evidence Plaintiff supplies in support of her claim does not firmly establish the presence of her intellectual disability, let alone reveal the effect of the disability on her ability to work. Tr. 21, 59; Doc. 20 at 7-8. Rather, Plaintiff speculates a consultative examination would show that "an intellectual disability is likely present." Doc. 20 at 8. As noted, Plaintiff "cannot show prejudice by speculating that she would have benefitted from a more comprehensive hearing." McCabe, 661 F. App'x at 599 (citing Kelley, 761 F.2d at 1540); see Joint v. Colvin, No. 8:14-CV-3192-T-TGW, 2016 WL 7406693, at *5 (M.D. Fla. Mar. 2016) (holding the ALJ was not required to order an updated consultative examination or additional intelligence testing because "the plaintiff seeks [them] in the hope that [they] would be more favorable to her claim than the current evidence of record").
Even if a consultative psychological examination establishes the presence of an intellectual disability, "the mere existence of [the] impairment[] does not reveal the extent to which [it] limit[s] her ability to work or undermine the ALJ's determination in that regard." Moore v. Barnhart, 405 F.3d 1208, 1213 n.6 (11th Cir. 2005). Thus, the absence of a consultative psychological examination does not show "the kind of gaps in the evidence necessary to demonstrate prejudice." Graham, 129 F.3d at 1423. Accordingly, the Court finds the ALJ properly developed the record and did not order a consultative psychological examination and intelligence testing. See id.; Brown, 44 F.3d at 934-35.
The ALJ found Plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms not entirely credible "in light of several factors." Tr. 19. As one of the several factors, the ALJ discussed at length Plaintiff's non-compliance with her prescribed medications and dietary recommendations:
Tr. 19-20. Based on this discussion and other evidence, the ALJ found, "[n]o single factor mentioned is conclusive on the issue to be determined, but when viewed in combination, and in conjunction with the medical history and examination findings, they suggest that [Plaintiff] is not as limited as is alleged." Tr. 21.
Plaintiff does not challenge the ALJ's finding that she did not follow the prescribed medications and dietary recommendations. Doc. 20 at 9-12. Instead, Plaintiff argues the ALJ erred by considering her failure to follow the prescribed treatment in assessing her credibility. Id. at 10-11. Plaintiff also asserts the ALJ should have inquired whether Plaintiff had a reasonable explanation for not following her prescribed treatment, such as the effect of her "likely" mental impairment. Id. at 11-12. The Commissioner responds the ALJ properly discounted Plaintiff's credibility, and substantial evidence supports his credibility findings. Doc. 21 at 11-15.
The Court finds the ALJ properly considered Plaintiff's noncompliance with her prescribed treatment in assessing her credibility. Tr. 19-20. Plaintiff relies on legal authority supporting that a claimant must follow the prescribed treatment, if this treatment is expected to restore her ability to work. Doc. 20 at 9-10; see 20 C.F.R. § 416.930(a). "A medical condition that can reasonably be remedied either by surgery, treatment, or medication is not disabling." Dawkins v. Bowen, 848 F.2d 1211, 1213 (11th Cir. 1988) (internal quotation marks and citation omitted). Thus, the claimant is found not disabled, if the claimant does not "follow the prescribed treatment without a good reason." 20 C.F.R. § 416.930(b). This precedent, however, does not apply when the ALJ's denial of benefits, as here, was not significantly based on a finding of noncompliance. Ellison, 355 F.3d at 1275.
Rather, the ALJ here appropriately considered Plaintiff's noncompliance with the prescribed treatment in discounting her credibility. SSR 96-7p, 1996 WL 374186, at *7 (July 2, 1996) ("[T]he individual's statements may be less credible . . . if the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure."); 20 C.F.R. § 416.920(c)(3). Furthermore, the ALJ properly examined whether Plaintiff had good reasons for her noncompliance, such as Plaintiff's intellectual disability and inability to afford treatment, and found that there were none. Tr. 20-21; see SSR 96-7p, 1996 WL 374186, at *7 (July 2, 1996); Jasper v. Colvin, No. 8:16-cv-727-T-23AEP, 2017 WL 655528, at *5-*6 (M.D. Fla. Jan. 31, 2017).
The Eleventh Circuit long has recognized that "credibility determinations are the province of the ALJ." Moore v. Barnhart, 405 F.3d 1208, 1212 (11th Cir. 2005) (citing Wilson v. Heckler, 734 F.2d 513, 517 (11th Cir. 1984)). "If the ALJ discredits subjective testimony, he must articulate explicit and adequate reasons for doing so." Wilson, 284 F.3d R 1225 (internal citations omitted). "The question is not . . . whether the ALJ could have reasonably credited [a claimant's] testimony, but whether the ALJ was clearly wrong to discredit it." Werner v. Comm'r of Soc. Sec., 421 F. App'x 935, 939 (11th Cir. 2011). "A clearly articulated credibility finding with supporting evidence in the record will not be disturbed by a reviewing court." Foote, 67 F.3d at 1562.
Here, based on the requirements of 20 C.F.R. § 404.1529, the ALJ considered Plaintiff's symptoms and the extent to which the symptoms reasonably can be accepted as consistent with the objective medical and other evidence. Tr. 18-21. After his careful consideration of Plaintiff's medical evidence, the ALJ articulated explicit and adequate reasons for discounting Plaintiff's credibility. Tr. 19-21. Based on the findings above, substantial evidence supports the ALJ's credibility determination.
The ALJ found Plaintiff has the RFC to perform light work "except [she] is unable to work in hazardous environments, such as near unprotected heights or dangerous machinery. In addition, she should never be required to climb a ladder, rope or scaffold and should only occasionally be required to climb a ramp or stairs, stoop, kneel and crawl." Tr. 18. Plaintiff argues the ALJ erred by not considering Plaintiff's mental impairments in assessing her RFC. Doc. 20 at 13. She further asserts the ALJ's RFC assessment did not account for her lapses in concentration, unscheduled breaks and work absences. Id. at 13-14. The Commissioner responds the ALJ properly assessed Plaintiff's RFC. Doc. 21 at 15-17.
As noted, although it is Plaintiff's burden to prove that she has a disabling impairment and produce evidence in support of her claim, the record here does not establish Plaintiff's intellectual disability. Ellison, 355 F.3d at 1276; Tr. 20-21, 59. Even if her medical record establishes the presence of her mental impairments, as discussed, "the mere existence of these impairments does not reveal the extent to which they limit her ability to work or undermine the ALJ's determination in that regard." Moore, 405 F.3d at 1213 n.6. Similarly, Plaintiff provides her treatment history only in support of her additional limitations, which is not sufficient to disturb the ALJ's RFC findings. Doc. 20 at 13-14; see id.; Wind v. Barnhart, 133 F. App'x 684, 690 (11th Cir. 2005) ("[A] diagnosis or a mere showing of a `deviation from purely medical standards of bodily perfection or normality' is insufficient; instead, the claimant must show the effect of the impairment on her ability to work.").
RFC assessments and the application of vocational factors are exclusively reserved to the Commissioner. SSR 96-6p, 1996 WL 374180 (July 2, 1996); 20 C.F.R. § 404.1527(d)(2). The Eleventh Circuit has held that "[a] claimant's [RFC] is a matter reserved for the ALJ's determination, and while a physician's opinion on the matter will be considered, it is not dispositive." Beegle v. Soc. Sec. Admin., Comm'r, 482 F. App'x 483, 486 (11th Cir. 2012). Here, the ALJ properly considered the entire record in assessing Plaintiff's RFC. Tr. 18-21; see 20 C.F.R. § 404.1545(a). Accordingly, the Court finds substantial evidence supports the ALJ's RFC determination.
Upon review of the record, the Court concludes that the ALJ applied the proper legal standards, and hos determination that Plaintiff was not disabled is supported by substantial evidence.
ACCORDINGLY, it is hereby
ORDERED:
1. The decision of the Commissioner is AFFIRMED.
2. The Clerk of Court is directed to enter judgment pursuant to sentence four of 42 U.S.C. § 405(g) in favor of the Commissioner, and close the file.
20 C.F.R. §§ 404.1567(b), 416.967(b).
