Watkins v. Astrue

Filing 15

MEMORANDUM OF OPINION. Signed by Honorable Judge Susan Russ Walker on 7/15/11. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
ROBERT L. WATKINS,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

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CIVIL ACTION NO. 2:10CV491-SRW
(WO)

MEMORANDUM OF OPINION
Plaintiff Robert L. Watkins brings this action pursuant to 42 U.S.C. § 405(g) and
§ 1383(c)(3) seeking judicial review of a decision by the Commissioner of Social Security
(“Commissioner”) denying his application for supplemental security income under the Social
Security Act. The parties have consented to entry of final judgment by the Magistrate Judge,
pursuant to 28 U.S.C. § 636(c). Upon review of the record and briefs submitted by the
parties, the court concludes that the decision of the Commissioner is due to be affirmed.
PROCEDURAL HISTORY
On September 13, 2005, plaintiff filed an application for supplemental security
income, alleging disability since June 1, 2000, due to mental illness. On June 17, 2009, after
the claim was denied initially and on reconsideration, an ALJ conducted an administrative
hearing. The ALJ rendered a decision on July 16, 2009. The ALJ concluded that plaintiff
suffered from the severe impairments of “Malingering, with invalid IQ scores; History of

polysubstance dependence; Bipolar Disorder vs. anxiety attacks; borderline intellectual
functioning; Anti-social Personality Disorder; and Hepatitis C.” (R. 26). He found that
plaintiff’s impairments, considered in combination, did not meet or equal the severity of any
of the impairments in the “listings”; that plaintiff had no past relevant work; and that he
retained the residual functional capacity to perform jobs existing in significant numbers in
the national economy, including the representative jobs of cleaner, hand packer, and grounds
keeper. Thus, the ALJ concluded that the plaintiff was not disabled within the meaning of
the Social Security Act. (R. 24-40). On March 26, 2010, the Appeals Council granted
plaintiff’s request for review, finding that the ALJ had failed to address the opinions of two
consultative examiners properly. (R. 296-99). On May 14, 2010, the Appeals Council issued
a decision adopting the findings of the ALJ and assigning “little weight” to the two
examining source opinions. Plaintiff appeals from this final decision of the Commissioner.
STANDARD OF REVIEW
The court’s review of the Commissioner’s decision is narrowly circumscribed. The
court does not reweigh the evidence or substitute its judgment for that of the Commissioner.
Rather, the court examines the administrative decision and scrutinizes the record as a whole
to determine whether substantial evidence supports the Commissioner’s factual findings.
Davis v. Shalala, 985 F.2d 528, 531 (11th Cir. 1993); Cornelius v. Sullivan, 936 F.2d 1143,
1145 (11th Cir. 1991). Substantial evidence consists of such “relevant evidence as a
reasonable person would accept as adequate to support a conclusion.” Cornelius, 936 F.2d

2

at 1145. Factual findings that are supported by substantial evidence must be upheld by the
court. The Commissioner’s legal conclusions, however, are reviewed de novo because no
presumption of validity attaches to the Commissioner’s determination of the proper legal
standards to be applied.

Davis, 985 F.2d at 531.

If the court finds an error in the

Commissioner’s application of the law, or if the Commissioner fails to provide the court with
sufficient reasoning for determining that the proper legal analysis has been conducted, the
Commissioner’s decision must be reversed. Cornelius, 936 F.2d at 1145-46.
BACKGROUND 1
In June of 2000, apparently in connection with an earlier SSI application in
Minnesota, plaintiff was examined by psychologist Robert C. Barron, Ph.D. (Exhibit 1F).
Plaintiff was applying for disability “on the basis of back pain, as well as cognitive and
emotional problems.” Plaintiff “walked with a slow gait” and “sat hunched over, periodically
straightening up clutching at his back while wincing and grunting as though experiencing
significant subjective discomfort.” He reported that he “broke his vertebrae” 2 a few years
previously loading chickens and has constant back pain. He further reported both auditory
and visual hallucinations and he told Dr. Barron that “his skull was cracked when he fell off

1

In his brief, plaintiff does not challenge the physical exertion aspect of the Commissioner’s RFC
finding. Instead, his argument is directed to the Appeals Council’s treatment of the medical source opinions
regarding his mental limitations.
2

X-rays conducted in 2008 showed mild degenerative changes in plaintiff’s cervical spine and a
“severely desiccated disc at L4-L5.” (R. 285).

3

a truck onto a pavement a number of years ago,”3 causing problems with thinking, learning,
and memory. Dr. Barron noted that plaintiff’s “[s]peech and language development were
impoverished and he was prone to respond in a slow, mumbling manner while being an
extremely vague historian,” and that his “[a]ffective reactions were subdued with sad fac[]es
and overall mood appeared to be dysphoric.”
Plaintiff reported that he bathed and changed clothes every other day when reminded
to do so, did not cook or perform household chores, and did not drive or take public
transportation. He stated that “if he took the bus, they would have to call police in the state
because he would become nervous and angry and assault someone.” He reported that he was
able to shop only with someone else and that he could sometimes make selections but not
purchases, and that he does not know how to manage finances. He stated that he watches
television in his spare time but “someone needs to explain the plot to him,” and that he
“doesn’t read, but thinks he knows how to do so.” Dr. Barron interviewed plaintiff’s
“significant other,” who confirmed plaintiff’s reports. Dr. Barron administered the Wechsler
Adult Intelligence Scale - III, resulting in a Verbal IQ score of 62, Performance IQ score of
54, and Full Scale IQ score of 54. Dr. Barron concluded that these scores were valid, and
he diagnosed “[d]ementia due to head trauma, by report” on Axis I, and “[h]ead injury, by
report” on Axis III. He also rendered a “[p]rovisional [d]iagnosis of schizophrenia” on Axis
II. Dr. Barron determined that “[o]n the basis of client’s cognitive, social, and emotional
functioning, it would not appear that he would be capable of communicating,

3

The only evidence in the present record regarding a cracked skull is by plaintiff’s report. The
transcript includes no medical documentation of this injury.

comprehending, and retaining simple directions, withstanding work stresses, meeting
production requirements, or relating to others at an unskilled, competitive employment
level.” (R. 167-71). On July 11, 2000, R. Owen Nelson, Ph.D. – a non-examining
psychologist – concluded, based on Dr. Barron’s report, that plaintiff met Listing 12.02 for
organic mental disorders.4 (Exhibit 2F, R. 172-80).5
In January 2001, plaintiff sought treatment at the Hennepin County Medical Center
in Minneapolis for coughing and congestion. He also reported “bad nerves,” complaining
that he thinks someone is behind him and that his life is being threatened. He stated that he
has never seen a psychiatrist, that he lived in St. Paul with his girlfriend of 15 years, and that
his social life was “ok.” (R. 197). The medical provider diagnosed paranoia, not otherwise
specified, and upper respiratory infection, and referred plaintiff for psychological evaluation.
(R. 198). A psychiatrist evaluated plaintiff on August 10, 2001. Plaintiff reported a feeling
of fear that someone was behind him and that people were going to harm him. He stated that

4

This Listing applies where the “[h]istory and physical examination or laboratory tests demonstrate
the presence of a specific organic factor judged to be etiologically related to the abnormal mental state and
loss of previously acquired functional abilities.” 20 C.F.R. Pt. 404, Subpt. P, ¶ 12.02.
5

At some point thereafter, plaintiff was incarcerated in Minnesota. (R. 188). A Minnesota attorney
previously representing the plaintiff stated, in a letter to the ODAR in Minneapolis and in a later letter to the
ALJ, that plaintiff had told the attorney that he was receiving SSI benefits previously but that his benefits
were suspended due to an outstanding Alabama warrant. The attorney enclosed paperwork showing that an
indictment issued on April 6, 2001, for two counts of unlawful distribution of cocaine, and that the charges
were “nolle prossed” by the Alabama Circuit Court on the prosecution’s motion in September 2005. (R. 15058). The attorney requests a favorable determination on the basis of the Circuit Court record, contending that
the “only issue should be whether the ongoing suspension of his benefits by SSA is valid.” (R. 150).
However, the matter before the Commissioner – on which he rendered the decision now before this court for
review – was the new claim for SSI benefits filed by plaintiff in 2005 (see R. 95-113), not an appeal of a
discontinuation or suspension of benefits. (See R. 69, letter from SSA attorney to plaintiff’s previous
attorney). Plaintiff’s present counsel does not argue otherwise.

5

he “hears people calling his name,” but reported no other hallucinations. He reported a
remote history of IV drug use and use of marijuana.6
The psychiatrist recorded, in the mental status examination, that plaintiff was wellgroomed, oriented x 3, with a good memory and appropriate affect, and with “+” insight and
knowledge. (R. 193). The psychiatrist diagnosed “Anxiety disorder NOS” and history of
polysubstance abuse.” He also noted that plaintiff was positive for Hepatitis C and had a
history of a closed head injury due to “MVA.” (R. 193). He prescribed Celexa, and
recommended follow-up in four to six weeks. The next treatment note from the psychiatry
clinic is dated ten months later – June 4, 2002 – when plaintiff was evaluated by Dr. Michael
Ekern.7 Dr. Ekern noted that plaintiff had been prescribed Celexa several months previously
for “depression/anxiety symptomatology” but had stopped taking the medication because of
sexual side effects. He wrote:
His only medication has been Trazodone. He is hepatitis C positive, and
apparently has a history of depression. There is a history of head injury with
loss of consciousness. He is on Social Security disability, and he says this is
for depression. He likes to fish, watch television, ride around with friends. He
lives with a girlfriend. He does vaguely describe a persistent, depressed mood
every day; however, appetite is good. There is no crying, no suicidal thoughts,

6

Two weeks earlier, plaintiff sought treatment at the clinic after he had screened positive for
hepatitis C. He then “denied IV drug use.” (R. 194). When plaintiff reported to the clinic for follow-up of
his hepatis testing a week after he saw the psychiatrist, he again “denie[d] IV drugs.” (R. 189). However,
when plaintiff was treated in the gastroenterology clinic in November 2001, the physician wrote that plaintiff
had “confirmed hepatitis C in the setting of prior IV drug use.” The doctor noted that prior to treating
plaintiff with interferon, he “would need psychiatric consultation because of the history of depression.”
(R. 188; see also R. 187, April 30, 2002 note (same)).
7

On August 17, 2001, when plaintiff returned to the clinic for follow-up of his hepatitis lab tests,
he complained of anxiety and insomnia. The physician diagnosed “Hep C +” and “sleep disturbance” and
prescribed Trazodone. (R. 189-90).

6

no other symptoms of depression, perhaps, except decreased sleep, but he also
states that he is a worrying person and worries about everything. Also, he
describes some symptoms which may be anxious and obsessional vs. psychotic
vs. reasonable, given his history of being around violence in the past.
Occasionally, he thinks he hears someone calling his name and turns, and no
one is there. He says he has a fear that someone is behind him and might harm
him, so he turns to check. No other possible psychotic symptomatology. It is
difficult to characterize these symptoms as being either psychotic or anxious.
(R. 184). Under “Mental Status Examination,” Dr. Ekern observed, “Casually dressed,
average grooming, pleasant, relates to me well, good eye contact. Thought form coherent,
no abnormal movements, no suicidal thoughts, homicidal thoughts, or psychosis. He had
some vague depression symptoms and worry symptoms, as noted above. Rule out psychotic
symptoms, as noted above. Mood was somewhat depressed. Affect did not appear depressed.
He appeared to have some reasonable insight and judgment. No evidence of cognitive
problem on routine interview.” (R. 184). Dr. Ekern diagnosed “Anxiety disorder, not
otherwise specified (NOS). Also depression NOS. History of polysubstance dependence and
rule out primary psychotic disorder in this individual with hepatitis C.” (R. 184). Dr. Ekern
concluded:
He wants to avoid sexual side effects in medication, and does want treatment
for anxiety and vague depression symptoms and worry, so we will begin
titration of Serzone 50 mg twice a day for four days, then 100 mg twice a day
for a week, then 150 mg twice a day, and he can take one dose at night and one
at supper time or earlier in the day. I stated to him that he may not need the
trazodone, so he should try and sleep without the trazodone. We will see him
back in three to four weeks, and continue to assess for anxious, depressive, and
possibly psychotic symptoms.
(R. 184). There is no indication in the record that plaintiff returned to the Psychiatry Clinic

7

at Hennepin County Medical Center for further treatment at any time. (See Exhibits 3F, 9F).8
In December 2005, non-examining psychologist Dr. R. Owen Nelsen reviewed the
record in connection with plaintiff’s current application. This time, however, Dr. Nelsen
found that plaintiff had “No Medically Determinable Impairment” due to “Insufficient
Evidence,” based on plaintiff’s failure to respond to requests for information. (Exhibit 4F,
R. 204-17). Accordingly, on December 9, 2005, plaintiff’s SSI application was denied.
(R. 63, 85-89). On January 26, 2006, plaintiff requested reconsideration of the decision. He
wrote, “I am disable I can not stand to be around people because my health is bad and I can
not perform on a job because of my mental condition.” (R. 84).
The Commissioner sent plaintiff to Karl Kirkland, Ph.D., a clinical psychologist at
UAB School of Medicine, for a consultative psychological evaluation on April 24, 2006.9
Plaintiff stated that he was “on disability, but his payments got interrupted because he went
to prison,” and that he was applying for disability because of medical problems, including
a cracked skull, back problems and chronic liver problems. Dr. Kirkland wrote:
Mr. Watkins reports that he went to prison because he shot at the police.
When asked why he shot at the police, he indicates that he does not know why
he shot at the police. A little further questioning revealed that he was involved
in a robbery one and assault one, both of which are class A felonies. It was
immediately obvious that Mr. Watkins knew a lot more than he was letting on
at this point.

8

Plaintiff returned to the Hennepin County Medical Center for treatment of an upper respiratory
infection on January 3, 2004 (R. 249-53) and for treatment of back pain after he slipped on the ice and of
pain and burning with urination (R. 246-48).
9

At this time, responsibility for administrative processing of plaintiff’s claim had been transferred
to from Minnesota to Alabama. (See R. 61, 218).

8

(R. 219). Dr. Kirkland set forth plaintiff’s school history, including multiple failures, multiple
behavioral problems and dropping out of school in junior high school. Dr. Kirkland
continued:
After dropping out of school, Mr. Watkins indicates that he tried to sell
parched peanuts on the streets of Montgomery and failed. He then started
“being bad.” As the evaluation progressed, it became apparent that he went on
to develop what appears to be a well-developed antisocial personality disorder.
This was preceded by major conduct disorders in childhood and adolescence.
He has been charged with multiple counts of assault and battery. His most
serious crime has been armed robbery. He reports that alcohol was never a
major problem, but he reports long-term abuse of marijuana and cocaine. He
also reports that he has used cocaine intravenously.
There was a major pattern present. Mr. Watkins would initially act naive and
evidenced a major tendency to minimize problems in any given area. He
presented himself as rather naive and innocent. However, when his answers
really did not match his history and further questioning occurred, it would be
revealed that in fact he had the complete history available to him and the
history was horrendous with regard to criminal background primarily. He does
meet diagnostic criteria for an antisocial personality disorder. This is often
term[ed] psychopathy. This involves an individual who is impaired in their
ability to empathize and deform social relations with others.
* * * * *
Robert Watkins has never held a job. He has never worked either in prison or
since he has been out of prison. He indicates that he moved up to Minnesota
to get out of the jurisdiction of most of his legal problems and lived up there
about five years. He tried to work there and even took some medication during
that time, but every time he tried to work they would tell him that he could not
focus or that he is not willing to work. He describes himself as being lazy and
undisciplined. He indicates that while in Minnesota he took Celexa and
Trazodone, but does not feel that these medicines really helped him any. He
has always wondered [whether] he might have attention deficit disorder.
While there is some overlap here, it does not sound like attention deficit
disorder as much as it sounds like characterological disturbance and a lack of
self-discipline.
9

(R. 220-21). Plaintiff reported that he stays in most of the time, because he fears that
someone will hurt him or that he will hurt others, and because he begins to feel depressed,
paranoid and panicky whenever he goes out in public. Dr. Kirkland noted, however, that
“[c]ontrary to the above characterization when asked about dating, Mr. Watkins could not
resist the opportunity to brag a little bit. When discussing this area, the examiner had the
impression that he goes out a lot more than he is willing to acknowledge. He did
acknowledge dating some. He is sexually active and has no sexual dysfunction.” (R. 221).
Plaintiff “did not volunteer any significant psychotic symptomatology” but, when asked
specifically, indicated that he hears a voice calling his name. Dr. Kirkland noted that “the
auditory hallucinations appeared to be very benign if they are real.” (R. 221). Dr. Kirkland
concluded:
There did appear to be an element of some malingering present. He seems to
be over reporting symptoms in a major way. In addition, he missed some
common, easy to answer items included by most examiners to explore the
possibility of malingering. For example, he stated that the shape of a ball is
square and the US flag is blue, red, and yellow. These responses are almost
always pathognomonic signs of malingering. When confronted about this, he
appears to be able to give more complete answers.
(R. 222). Dr. Kirkland stated that plaintiff “does appear to have some legitimate symptoms,
namely the anxiety symptoms as reported above, it also appears that he is malingering.” Dr.
Kirkland noted that plaintiff’s “thought process was generally coherent and goal directed,”
and “his speech was normal.” He stated, “He was pleasant and appears to have good social
skills, which would also be consistent with the antisocial personality disorder. This examiner
feels that this is the most explanatory diagnosis for Mr. Watkins. He indicates that he
10

suffered from a cracked skull at some point. This examiner did not have those records. He
also reports physical problems of having back problems. He tended to over dramatize the
level of impairment. At other times, he reported that he goes out on a regular basis. He does
appear to be capable of managing financial benefits.” (R. 222). Dr. Kirkland’s Axis I
diagnoses included “History of panic attacks rule out panic disorder,” “anxiety attacks rule
out panic disorder,” “Polysubstance dependence,” and “Malingering.” On Axis II, he
diagnosed, “Rule out antisocial personality disorder.” (R. 223).
The day after he saw Dr. Kirkland, plaintiff reported to Dr. Myrtle Goore for a
consultative physical examination. (Exhibit 6F, R. 224-29). Plaintiff told Dr. Goore that he
was on disability for his depression and mental disease while he was in Minnesota. He stated
that “primarily he is unable to tolerate crowds or to be in any situation where there are more
than 2-3 people because he becomes argumentative, or he becomes very irritated. (R. 224).
He indicated that he “rakes the yard occasionally, but he mostly just sits around all day. He
does not have any outside interests. He does not go to church. He does not belong to any
clubs or groups. He does not go hunting or fishing.” (R. 225). Plaintiff reported that he was
incarcerated for seven years “because he was accused of shooting at the police,” that he
drinks alcohol frequently and that, while he did use intravenous drugs, he no longer does so.
Dr. Goore noted no abnormalities in plaintiff’s physical examination. She diagnosed
“Depression and mental lapses,” and “Hepatitis C.” (R. 228).
Dr. Aileen McAlister, a non-examining agency psychiatrist, completed a PRTF on
May 10, 2006. (Exhibit 7F). She noted Dr. Kirkland’s mental status observations and his
11

conclusion that plaintiff was malingering. Dr. McAlister concluded that “[d]ue to inability
to obtain a valid [medical source examination] to evaluate current severity, claim is rated
“insufficient evidence.” (R. 242). Accordingly, on May 15, 2006, plaintiff’s request for
reconsideration was denied. (R. 61, 81-82). In August 2006, plaintiff retained counsel and
requested a hearing before an ALJ. (R. 58-60).
On September 26, 2007, plaintiff appeared at Montgomery Area Mental Health
Authority (“MAMHA”), seeking treatment. He reported symptoms of psychosis,
hallucinations, anxiety and depression, and a “long history of mental illness which he
recalled as far back as 1970s following a skull injury. He stated that he had received
outpatient services while living in Minnesota, and that he wanted to resume mental health
treatment with MAMHA. (R. 261). Plaintiff reported that it was “difficult to be in social
setting to work.” (R. 264). For “[c]hanges client would like to make in living situation,” the
therapist wrote, “wants own place.” For “[c]hanges client would like to make in family/social
relationships, she wrote “none,” and for “[c]hanges client would like to make in work
situation, she noted, “does not want to work.” (R. 265). She noted his legal history to include
convictions for attempted murder of a police officer, robbery and assault. (Id.). The therapist
recommended monthly individual therapy and medication evaluation as needed. (R. 262).
A nurse practitioner reviewed the record on October 18, 2007 and diagnosed “Schizophrenia,
Paranoid-type by [history].” (R. 259).
However, a psychiatrist who evaluated plaintiff the following day, diagnosed “major
depression, recurrent, with [illegible].” The psychiatrist observed that plaintiff’s mood was
12

stable, and that he was “alert, rational [and] coherent.” He prescribed Risperidone,
Trazodone, and Effexor. (R. 258). Plaintiff had an individual therapy session that same day
and another session on November 1, 2007. (R. 256-57). Although plaintiff was scheduled
to return in two weeks, on November 14, 2007 (R. 256), the next therapy session of record
took place on January 24, 2008. At that time, the therapist noted plaintiff’s complaint of
hearing things and thoughts of someone wanting to kill him or him wanting to kill someone.
Plaintiff told his therapist he had “[n]o meds in past week[.]” The therapist “[e]ncouraged
[him] to start meds as Rxd ASAP” and to continue with supportive counseling. (R. 255).
There are no further treatment notes from MAMHA in the administrative transcript.10
On February 14, 2008, plaintiff went to Vonceil C. Smith, Ph.D., for another
consultative psychological evaluation. (Exhibit 11F). Plaintiff responded “I don’t know”
frequently to questions from Dr. Smith. Plaintiff reported “a skull fracture after falling from
a truck as a young child, experiencing an unspecified loss of consciousness.” Plaintiff was
“guarded and evasive” in giving his substance abuse history. He told Dr. Smith that he had

10

At the June 17, 2009, administrative hearing, plaintiff testified that he had last been to
Montgomery Area Mental Health on May 28th, and he showed the ALJ a prescription from MAHMA bearing
a date of May 28th which plaintiff had not yet filled. Plaintiff testified that he did not remember his most
recent appointment before May. By letter dated January 8, 2009, the medical records clerk at MAMHA –
in response to a December 23, 2008 request from the DDS disability examiner for “[m]edical records from
1/2008 TO PRESENT” – provided only a copy of the January 24, 2008, record of individual therapy. (R.
274A-279). Thus, there is no evidence that plaintiff was treated at MAMHA during the sixteen month period
between January 2008 and May 2009. The court notes that the prescription plaintiff produced at the hearing
was admitted into evidence by the ALJ but is not included in the administrative transcript. However, Dr.
McKeown testified that the prescription “would reflect an individual with a bipolar disorder.” (R. 307, 31013). Because the evidence is described adequately in the hearing transcript, the Commissioner’s failure to
include a copy of it in the administrative record filed with the court is harmless; it does not affect this court’s
ability to review the Commissioner’s decision.

13

“about three” children, but he did not know their ages. He stated that he completed sixth
grade, but did not know whether he had repeated any grades. Plaintiff further provided a
history of “approximately ten arrests for attempted murder and armed robbery,” but he
“fail[ed] to specify further other than he has served three prison sentences.” He claimed not
to remember discharging a firearm at police, although he reported that his conviction for
attempted murder stemmed from that event. Dr. Smith observed, on mental status
examination that:
Mr. Watkins was unkempt and malodorous. He appeared older than his stated
chronological age. He was alert and oriented to person and partially to place.
His demeanor was guarded, distant, and terse. His speech was undertalkative.
His stream of thought was slow. He reportedly hears voices, male in nature,
calling his name “all the time,” but especially at night, as well as sees
peripheral shadows. His mood was described as irritable, and he appeared
angry with constricted affect. He reported suicidal thoughts without intention,
plan, or history of attempts. Homicidal ideations were denied. He failed to
identify psychosocial stressors.
(R. 270). Dr. Smith administered the WAIS-III. Plaintiff’s IQ scores were 56 (Verbal), 51
(Performance) and 49 (Full Scale). Dr. Smith stated that plaintiff demonstrated poor effort
on the WAIS-III and, accordingly, that his IQ scores were invalid and are an
underrepresentation of his intellectual functioning; she further stated that he was
“inappropriate” for the MMPI. Dr. Smith concluded:
Based on the findings of this evaluation, Mr. Watkins appears markedly
impaired in his ability to understand, remember, and carry out instructions and
to respond appropriately to supervision, co-workers, and work pressures in a
work setting.
(R. 271). Dr. Smith completed a “Medical Source Opinion Form (Mental)” on which she

14

indicated that plaintiff is markedly limited in a number of work functions and extremely
limited in his ability to maintain social functioning. She further concluded that he could not
manage benefits in his own best interest. (R. 273-74).
On November 21, 2008, plaintiff reported to Dr. Alan Babb for a consultative
examination. Dr. Babb stated that plaintiff was “completely uncooperative during the exam,”
and he noted plaintiff’s “intoxicated affect.” He reported that, after every question, plaintiff
“shrugged his shoulders and said, ‘I don’t know.’” Dr. Babb wrote, under “Review of
Systems,” that “Patient is unable to provide any useful information and answers ‘I don’t
know’ to every question.” He further noted that “[t]hroughout the interview and examination
today every time I touched him he pulled back, winced and said he hurt all over. This appears
to be obvious deception. When I tried to examine his abdomen he kept wincing up and
tightening up and refused to cooperate. . . . When I asked him to grab my hand he made very
little effort and just weakly grabbed at them.” (R. 281-82). With regard to the neurologic
exam, Dr. Babb wrote:
He refuses to answer any questions and his mental status cannot be determined
at this time. He says he does not know the date but does know that his name
is Lee. He makes great effort to look as dysfunctional as possible. During the
earlier part of the interview he was able to kind of give me some pieces of
information on the side, but when I went back and asked him those same
questions again he shrugged his shoulders and again stated that he “didn’t
know” which is obvious malingering and deception. However, because of his
past history of a closed head trauma I do not know what his baseline
intellectual function and behavior is. Again, he has poor effort on grip strength
and refuses to lift his legs. He is able to ambulate without any assist[ive]
devices. He has a very flat affect and later when he mentioned about having
taken Lortab I couldn’t help but wonder if he is under the influence of Rx

15

drugs.11
(R. 282-83). Dr. Babb wrote that the “[n]eurologic findings show very poor intellect” but
that the “patient is very uncooperative” and “[i]ntellectual skills, again, cannot be determined
at this time.” Dr. Babb’s impressions were (1) history of closed head trauma with unknown
neurologic sequela, (2) willful malingering, (3) chronic alcohol and drug abuse by history,
(4) elevated blood pressure, (5) history of elevated liver function tests, (6) history of
antisocial behavior with a history of al ong prison sentence for attempted murder, and
(7) prescription drug abuse. Dr. Babb concluded:
It is difficult to make a final assessment on this patient. I do not know him or
what his baseline is. He appears to be able to function “on the street” but here
today shows willful malingering and is uncooperative. He seems to go to great
lengths to appear to be as “retarded” as possible. . . . [I]t is alarming that he is
taking Lortab on his own. I also believe strongly that he is using illegal drugs
and urine drug screens need to be performed on him on a regular basis.
* * * * *
He appears to have numerous emotional, psychiatric and physical issues that
would make long-term employment very difficult. However, I believe there
is an overwhelming element of malingering and deception today. I also suspect
there is extensive use of illegal drugs and prescription drug abuse.
(R. 284). Dr. Babb concluded that plaintiff could not manage benefits in his own best
interest. (R. 287). Dr. Babb completed a “Medical Source Statement of Ability to Do WorkRelated Activities (Mental).” Dr. Babb concluded that plaintiff’s “ability to understand,
remember and carry out instructions” is not affected by plaintiff’s impairment, yet he marked
blocks to indicate that plaintiff has marked and extreme limitations in this area, due to his

11

Dr. Babb noted that plaintiff has no prescription for Lortab. (R. 280).

16

history of drug and alcohol abuse, history of closed head trauma, history of malingering, and
his antisocial disorder. (R. 290). Dr. Babb marked “No” to indicate that plaintiff’s “ability
to interact appropriately with supervisors, co-workers, and the public, as well as to respond
to changes in the work setting” is not affected by his impairment but, again, he checked
blocks indicating that plaintiff has “marked” limitations in specific functions in this area. (R.
290). Dr. Babb wrote, “I do not know his baseline. He seems very retarded here today. He
may be malingering. He has [history of] closed head trauma.” (Id.) When asked to identify
the factors that support his assessment of plaintiff’s functional limitations, Dr. Babb
responded, “very uncooperative here today.” (Id.). Dr. Babb expressed his opinion that
plaintiff’s limitations “started [with] head injury 20 years ago by [history].” (Id.).
At the administrative hearing, when the ALJ asked plaintiff about his physical
limitations, plaintiff responded, “They say my liver messed up, I don’t know. And my arms,
shoulders, arthritis, all because of that. I know there’s pain, it hurt up in them all cause here.”
He stated that it hurts in his left shoulder and liver, and his hip is bruised and still hurts from
when he fell off of the truck in 1970. He stated that his head feels terrible, it hurts, and he
felt “like just running into that wall.” (R. 308-09). On questioning from his representative,
plaintiff stated that he has no income to go and check on his hip, that he has severe headaches
and shoulder pain. He stated that these problems have kept him from getting and keeping
employment and that “some of the men” said that he could not pay attention and could not
function. (R. 309).
Dr. Doug McKeown, a clinical and forensic psychologist, testified as a medical
17

expert. With regard to plaintiff’s head trauma, he stated that there is no information in the
record indicating that “there was any sequella or continuing difficulty associated with that.”
Dr. McKeown noted the mental evaluation by Dr. Barron in June 2000 and testified that
“there is some questions as to the authenticity of those particular scores at that time” and that
Dr. Barron’s conclusions were inconsistent with the record as a whole. He stated that the
evidence is insufficient to establish that plaintiff meets Listing 12.02 because there is nothing
“that even establishes information related to [the head] injury” and there is “really nothing
that indicates any significant difficulties or limitations as a result of that [injury].”
Dr. McKeown stated that Dr. Smith’s primary diagnosis of malingering in the
consultative psychological examination conflicted with her RFC form indicating significant
limitations and difficulties for the plaintiff; he stated that those RFC conclusions would
“make some sense” only if Dr. Smith’s evaluation were based on plaintiff’s report. Dr.
McKeown reiterated, however, that the degree of dysfunction Dr. Smith indicated in the RFC
is inconsistent with her clinical impression of malingering. Dr. McKeown noted that plaintiff
had only five visits over a three year period at MAMHA and that there is nothing in the
record to substantiate “that there’s been any regular ongoing medication provided.” He stated
that the prescription provided by plaintiff at the hearing “would reflect an individual with
bipolar disorder.” He stated that MAMHA had “looked at ... basically what would be
considered a bipolar disorder based on at least the medications that have been prescribed but
we do not know whether that’s ever been implemented really.” Dr. McKeown stated that
there is nothing in the record that “spells out issues associated with polysubstance
18

dependency” at the current time and, that there is nothing that, in his opinion, establishes
mental retardation. Dr. McKeown referred to plaintiff’s history of non-compliance and the
consultative examiners’ opinions that plaintiff was malingering, and concluded that plaintiff
has no more than mild to moderate limitations, except that he is markedly limited in functions
related to complex tasks. Dr. McKeown completed a mental RFC form, based on his
assessment of the record, including the consultative evaluations; the ALJ admitted the form
as an exhibit. Dr. McKeown noted the MAMHA record indicating that plaintiff was
noncompliant with his medications and his failure to go for treatment. (R. 292-94; 310-17).
DISCUSSION
The Appeals Council granted review because it concluded that the ALJ “did not
address the examining source opinions of Dr. Barron (Exhibit 1F) and Dr. Smith (Exhibit
11F) pursuant to 20 C.F.R. 416.927.” (R. 10). The Appeals Council reasoned:
Dr. Barron provided a consultative psychological evaluation on June 27, 2000
at which time he did not feel the claimant would be capable of performing the
required mental functions of even unskilled work (Exhibit 1F). Dr. Smith
provided a consultative psychological evaluation on February 14, 2008 and
completed an assessment form which reflected significant work-related mental
limitations that, if accepted, would preclude the performance of even unskilled
work (Exhibit 11F). The Appeals Council concludes that these opinions are
entitled to little weight.
The Appeals Council first notes that Dr. Barron’s diagnostic impressions were
described as either provisional or based on the claimant’s reported history,
which suggests a lack of objective support. Dr. Smith reported that the
claimant did not give his best effort during the evaluation, which obviously
renders this opinion less persuasive. This is consistent with the claimant’s
behavior during Dr. Babb’s examination provided on November 21, 2008, at
which time he willfully malingered and displayed uncooperative behavior,
antisocial behavior, and medical noncompliance (Exhibit 13F). For these
19

reasons, the Council assigns little weight to the examining source opinions of
Dr. Barron and Dr. Smith.
(R. 10-11). The Appeals Council “adopt[ed] the findings of the Administrative Law Judge
with the exception that little weight is assigned to the examining source opinions of Dr.
Barron and Dr. Smith.” (R. 11).
Plaintiff notes that “the medical opinions expressed by Drs. Barron and Smith are the
only opinions of record from examining mental health professionals regarding the
limitations imposed by Mr. Watkins’s mental impairments.” (Doc. # 10, p. 5)(emphases in
original). Plaintiff contends – in an argument relegated to a footnote at the conclusion of his
brief – that the Appeals Council’s “stated three reasons for rejecting the medical opinions
provided by examining mental health professionals of record not only lack sound rationale
reasoning, they approach upon improperly playing both judge and physician” in violation of
Eleventh Circuit precedent. (Id., p. 6 n. 6).
The opinion of a consultative examiner is not entitled to the deference accorded under
the law to the opinions of treating physicians. McSwain v. Bowen, 814 F.2d 617, 619 (11th
Cir. 1987)(opinions of two physicians were “not entitled to deference because as one-time
examiners they were not treating physicians”). Generally, the opinions of examining
physicians are given more weight than those of non-examining physicians. See 20 C.F.R.
§ 404.1527(d)(1). However, the Commissioner “may reject the opinion of any physician
when the evidence supports a contrary conclusion.” Carson v. Commissioner of Social Sec.,
373 Fed. Appx. 986, 988 (11th Cir. Apr. 20, 2010)(citing Sryock v. Heckler, 764 F.2d 834,

20

835 (11th Cir. 1985)).
There is no evidence of record – other than plaintiff’s own report and the report of his
“significant other” that plaintiff’s mother had confirmed it – that plaintiff actually had a head
injury. Dr. Barron’s diagnosis of “dementia due to head injury” is qualified explicitly as “by
report.” (R. 170). He also rendered a “Provisional Diagnosis of Schizophrenia, Paranoid
Type.” (Id.). The Appeals Council’s observation that “Dr. Barron’s diagnostic impressions
were described as either provisional or based on the claimant’s reported history” is,
accordingly, supported Dr. Barron’s own report; the Appeals Council’s conclusion that these
provisional and “by report” diagnoses “suggest[] a lack of objective support” is both
reasonable and supported by the expert testimony of Dr. McKeown. In assigning “little
weight” to Dr. Smith’s functional assessment, the Appeals Council noted Dr. Smith’s own
report that plaintiff did not give his best effort during the examination, and reasoned that this
rendered her conclusions of disabling functional limitations less persuasive. The Appeals
Council further cited Dr. Babb’s observations of plaintiff’s willful malingering and refusal
to cooperate during Dr. Babb’s consultative examination and plaintiff’s history of
malingering. These reasons are also supported by substantial evidence and provide ample
cause for assigning little weight to Dr. Smith’s opinion of disabling functional limitations.
Before the Appeals Council, plaintiff argued that the ALJ had “erred by failing to
discredit the medical opinions expressed by Drs. Barron and Smith.” (R. 16). In this court,
plaintiff argues, in a single sentence in a footnote, that “even Dr. Babb expressed that Mr.
Watkins lacked the ability to perform the basic mental demands required of work activity.”
21

(Doc. # 10, p. 6 n. 6). To the extent that plaintiff intends this sentence to express a
contention that the Commissioner erred in his treatment of Dr. Babb’s RFC opinion, the court
rejects the argument. Dr. Babb’s RFC opinion, as set forth above, also indicates – contrary
to his findings of marked and extreme limitations in specified functions – that plaintiff’s
limitations do not affect his ability to understand, carry out and remember instructions; his
ability to interact appropriately with supervisors, co-workers and the public; or his ability to
respond to changes in the work environment. (R. 290-91). Dr. Babb further indicated, on
the RFC form, his opinion that plaintiff may be malingering. (R. 291). He observed in his
narrative report that “[i]t is difficult to make a final assessment on this patient” and that
plaintiff was willfully malingering and being uncooperative during the examination.” (R.
284). While the ALJ did not explicitly state the weight he assigned to Dr. Babb’s RFC
responses regarding marked and extreme functional limitations, the ALJ cited Dr. Babb’s
conclusions of malingering, obvious deception and lack of cooperation, Dr. Babb’s stated
inability to assess plaintiff’s current mental status, and Dr. Babb’s observation that it was
difficult to make a final assessment on the plaintiff. (R. 34, 35, 38). The ALJ’s decision –
adopted by the Appeals Council – makes clear that he concluded that plaintiff’s willful
malingering during the consultative examinations rendered the opinions of disabling
functional limitations to be entitled to little weight.
Plaintiff acknowledges that “like the ALJ, the Appeals Council does not have to
accept [examining source] medical opinions” but argues that “the Commissioner’s decision
must nonetheless be supported by substantial evidence.” (Doc. # 10, pp. 5-6). Plaintiff
22

points to Eleventh Circuit case law for the proposition that “the opinion of a non-examining
reviewing physician is entitled to little weight and, taken alone, does not constitute
substantial evidence to support an administrative decision.” He then argues, “As the only
medical opinions of record from examining mental health professionals reveal that Mr.
Watkins’s mental impairments prevent him from performing substantial gainful activity, it
goes without saying that the Commissioner’s final decision is based upon non-examining
opinions of record. As such, the Commissioner’s final decision lacks the support of
substantial evidence.” (Id., p. 6). In short, plaintiff contends that the Commissioner cannot
– without an RFC opinion from an examining source – render an RFC finding supported by
substantial evidence. However, because the Appeals Council discounted the mental RFC
assessments of the consultative examiners properly, the Appeals Council was entitled to rely
on the opinion expressed by the non-examining medical expert. Contrary to plaintiff’s
argument, the Commissioner’s RFC assessment may be supported by substantial evidence,
even in the absence of an opinion from an examining medical source about plaintiff’s
functional capacity. See Green v. Social Security Administration, 223 Fed. Appx. 915, 923
(11th Cir. 2007)(unpublished opinion)(ALJ’s RFC assessment supported by substantial
evidence where he rejected treating physician’s opinion properly and formulated the
plaintiff’s RFC based on treatment records, without a physical capacities evaluation by any
physician).12 Additionally, it is clear from the ALJ’s decision – adopted by the Appeals

12

The Eleventh Circuit stated:

Green argues that once the ALJ decided to discredit Dr. Bryant’s evaluation, the record

23

Council – that he did not rely solely on Dr. McKeown’s testimony but, also, considered and
relied on the diagnoses rendered by treating and consultative examiners, the consistent
medical opinions by different examiners of blatant malingering, plaintiff’s admission to the
MAMHA intake counselor that he did not want to work, and plaintiff’s infrequent visits to
mental health providers for treatment. (R. 27-40).
CONCLUSION
The evidence shows that plaintiff has mental impairments which cause some workrelated mental limitations, and the Commissioner included such limitations in his RFC
assessment.

The record further demonstrates that the difficulties encountered by the

examining and non-examining medical sources,13 and by the Commissioner, in attempting
to identify the actual extent of plaintiff’s limitations were due to plaintiff’s consistent efforts
– at least during the period in which he was seeking to establish his entitlement to benefits 14

lacked substantial evidence to support a finding that she could perform light work. Dr.
Bryant’s evaluation, however, was the only evidence that Green produced, other than her
own testimony, that refuted the conclusion that she could perform light work. Once the ALJ
determined that no weight could be placed on Dr. Bryant’s opinion of the Green’s
limitations, the only documentary evidence that remained was the office visit records from
Dr. Bryant and Dr. Ross that indicated that she was managing her respiration problems well,
that she had controlled her hypertension, and that her pain could be treated with
over-the-counter medication. Thus, substantial evidence supports the ALJ’s determination
that Green could perform light work.
223 Fed. Appx. at 923.
13

Plaintiff’s treating psychiatrists at MAMHA and Hennepin County Medical Center provided no
opinion regarding plaintiff’s functional limitations.
14

The treatment notes for plaintiff’s medical treatment in Minnesota, while he was receiving SSI
benefits, reveal plaintiff’s ability to provide descriptions of his symptoms and history to his treating
practitioners and to interact with them on a much higher level than was exhibited during his consultative
examinations. (See Exhibit 3F).

24

– to exaggerate those limitations. Upon review of the record as a whole, the court concludes
that the decision of the Commissioner is supported by substantial evidence and proper
application of the law and, therefore, that it is due to be affirmed. A separate judgment will
be entered.
DONE, this 15th day of July, 2011.

/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE