Southward v. Astrue (CONSENT)

Filing 14

MEMORANDUM OPINION. Signed by Honorable Judge Susan Russ Walker on 6/29/12. (djy, )

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

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CIVIL ACTION NO. 2:11CV375-SRW

MEMORANDUM OPINION
Plaintiff Johnny R. Southward brings this action pursuant to 42 U.S.C. § 405(g)
seeking judicial review of the final decision of the Commissioner of Social Security
(“Commissioner”) denying his application for a period of disability and disability insurance
benefits under Title II of the Social Security Act.1 The parties have consented to entry of final
judgment by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c). (Docs. ## 8, 9). 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.

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In the present action, plaintiff appeals the Title II decision of the ALJ. (See Complaint,
¶¶ 1, 2, 5; see also Doc. # 11, Plaintiff’s brief, first sentence (“The plaintiff . . . filed applications
for disability insurance benefits 07/16/2007, alleging a disability onset date of 06/01/2007.”).
Plaintiff filed a Title XVI application concurrently with his Title II application; both were denied
initially at the same time. (R. 113-21, 182-84). The Commissioner’s brief suggests that the ALJ also
considered plaintiff’s Title XVI application (see Doc. # 12, p. 1); however, the record makes clear
that he did not. (See R. 18, 36, 44, 140-41, 144-45, 159-60, 165-66). On March 9, 2011, the Appeals
Council denied review of the ALJ’s decision (R. 1-3).Therefore, the final decision of the
Commissioner that is before this court for review is the ALJ’s decision on plaintiff’s Title II claim.

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 ALJ’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 at 1145.
Factual findings that are supported by substantial evidence must be upheld by the court. The
ALJ’s legal conclusions, however, are reviewed de novo because no presumption of validity
attaches to the ALJ’s determination of the proper legal standards to be applied. Davis, 985
F.2d at 531. If the court finds an error in the ALJ’s application of the law, or if the ALJ fails
to provide the court with sufficient reasoning for determining that the proper legal analysis
has been conducted, the ALJ’s decision must be reversed. Cornelius, 936 F.2d at 1145-46.
BACKGROUND
Plaintiff filed his application for benefits on July 16, 2007, when he was 31 years old,
alleging an onset of disability several weeks earlier, on June 1, 2007, due to bipolar disorder,
hearing voices, problems hearing, mood swings, headaches, drugs, and back problems.
(R. 113, 215, 223). Plaintiff had just completed his third year of college, and reported
inpatient and outpatient mental health treatment in June and July 2007, stating that he lost

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his job when he was “admitted involuntarily into the hospital” for four weeks. (R. 218-21,
242). While he admitted that he was treated at Meadhaven for substance abuse, he denied
current use. (R. 244-45). He described past work as a cook, cashier, security monitor at a
casino, and youth program counselor; he also listed other factory, warehouse, and
telemarketing jobs. (R. 230-36). After plaintiff’s claim was denied initially, he reported
increased headaches and depression, an inability to sleep or relate to others, that he seldom
goes out in public by himself, and “pain in the left buttocks back and left leg.” (R. 249-53).
The medical evidence of record reflects that, late in the evening of June 12, 2007,
plaintiff’s parents took him to the Baptist Medical Center East emergency department,
reporting that his behavior had been different for a few days, and that plaintiff was
disoriented and confused. (R. 269). They had found him sitting in the middle of the road that
evening. (R. 265). On the intake form, one of his parents reported that he “smokes weed”
occasionally and may have smoked some that was laced with something. (R. 256). Lab tests
were positive for alcohol and cannabis. (R. 261). Plaintiff reported smoking one or two
marijuana cigarettes and drinking a beer. (R. 269). The ER physician diagnosed “THC
Abuse” and offered to have plaintiff committed to Baptist Health’s Meadhaven unit;
plaintiff’s parents did not agree to admission, and plaintiff was discharged from the ER.
(R. 271).
Four days later, a deputy sheriff brought plaintiff to the Baptist Medical Center South
emergency department, pursuant to a court order, for an involuntary psychiatric evaluation.

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Plaintiff denied any problems and did not know why he was at the emergency room. He was
in no apparent distress, was alert and oriented and responded with ease to the intake nurse.
(R. 279). His sister reported that he “had been acting strange for a few weeks, walking in and
out of traffic, removing clothing, burning clothing on trampoline, talking to the dog, looking
at the sky and thinking someone is coming to get him.” (R. 275). His urine drug screen again
tested positive for THC. (R. 285, 325). Plaintiff was admitted to Meadhaven with an
admitting Axis I diagnosis of “Psychosis, NOS, marijuana dependence, rule out substance
abuse psychosis.” (R. 275). The admitting physician noted that plaintiff was sedated because
he was extremely agitated and aggressive and that he “was extremely inappropriate in the ER
upon admission and actually had to be tasered by security.” (R. 275-76). On June 21, 2007,
by order of the probate court, plaintiff was transferred to the Alabama Department of Mental
Health’s crisis residential facility, pending admission to Greil Psychiatric Hospital (R. 29697, 331). At the crisis unit, plaintiff was agitated and hallucinating, and he fought with the
staff. (R. 331).
Plaintiff was admitted to Greil on July 6, 2007 and remained there until July 12, 2007,
when he was released into his mother’s care. (Exhibits 3F, 11F). The Greil psychiatrist, Dr.
Casu, diagnosed plaintiff with “Bipolar Disorder, Not Otherwise Specified,” “Cannabis
Abuse,”2 and “Personality Disorder Not Otherwise Specified with Paranoid, Compulsive, and
Narcissistic Features.” (R. 327). His GAF at admission was 50; at discharge, Dr. Casu
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On admission, plaintiff “reported that he smokes cannabis ‘regularly’ and drinks seldom.”
(R. 332; see also R. 337).
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assessed plaintiff’s GAF at 70. (Id.). After plaintiff’s discharge, he received outpatient
treatment from East Central Mental Health for several weeks. (Exhibits 4F, 10F, 12F). At
his August 14, 2007 visit with Dr. Lopez, plaintiff indicated that he was “[g]etting ready to
re-start college[.]” (R. 385). On September 5, 2007, he admitting to using marijuana and
feeling superhuman and stated that he “needs assistance in dealing with usage.” (R. 387).
On September 24, 2007, plaintiff reported to Dr. Lee Stutts, a psychologist, for a
consultative examination. (Exhibit 7F). Dr. Stutts reviewed plaintiff’s inpatient and
outpatient psychiatric treatment records and plaintiff’s disability report. (R. 359). He
assessed, on Axis I, “Cannabis Abuse (Rule Out Dependence),” “(Rule Out) CannabisInduced Delirium,” and “(Rule Out) Schizoaffective Disorder, Bipolar Type.” (Id.) On Axis
II, he assessed “(Rule Out) Personality Disorder, NOS.” (Id.). Dr. Stutts wrote, “Mr.
Southward smokes one pack of cigarettes per day. He reportedly uses marijuana, described
as heavy daily use, at least two joints per day. He drinks beer, two at a time, once per week.
Mr. Southward reportedly receives substance abuse treatment at this time at East Central
Mental Health for cannabis.” (R. 360). Dr. Stutts concluded, after evaluation, that “Mr.
Southward appears mildly 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. His prognosis would be considered good with continued, appropriate
treatment.” (R. 362). Dr. Gordon Rankart, Psy.D., a non-examining state agency consultant,
completed a Mental RFC Assessment and Psychiatric Review Technique Form thereafter,

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observing that plaintiff’s “[d]aily marijuana abuse is a contributor to impairments.” (R. 375;
Exhibits 8F, 9F).
On August 11, 2007, plaintiff sought treatment at Pri-Med for lower back pain at a
level of “10.” He stated that he had a motor vehicle accident years previously and had
“occas[]ional flares.” He was diagnosed with “Lumbar Pain” and received a Toradol
injection. (R. 501-02). Four months later, on December 18, 2007, plaintiff went to the Baptist
Health emergency department, complaining of back pain beginning four months earlier,
when he had received a shot. His pain level was noted to be at a level “4.” (R. 484, 488). The
doctor diagnosed chronic low back pain and acute left sciatica and prescribed Indocin. (R.
483-95). On December 24, 2007, plaintiff returned to the Baptist Health ER, ambulating with
a limp and reporting left lower back pain radiating down his left leg to his toes for the
previous four months, worsening in the past one to two weeks. He indicated a pain level of
“10” and stated that the Indocin was not working. The doctor assessed chronic low back pain.
Plaintiff received a Toradol injection and prescriptions for Medrol, Tramadol, and Flexeril.
(R. 469-81). A few days later, on December 27, 2007, plaintiff went to the emergency
department at Jackson Hospital, limping and complaining of back pain radiating down his
left leg for the past two months. He stated that his symptoms had developed gradually and
appeared to be getting worse. He reported a history of a herniated disc. No abnormalities
were noted on physical examination. The physician diagnosed recurrent sciatica and history
of back pain. Plaintiff received a Ketorolac injection in the ER and discharge prescriptions

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for Darvocet – a narcotic pain reliever – and Flexeril. (R. 429-35). On January 2, 2008,
plaintiff returned to the Baptist Health emergency room complaining of back pain for the
previous three months, radiating down his left leg. (R. 460). His straight leg raise was
negative bilaterally, but the doctor noted decreased range of motion and muscle spasm in
plaintiff’s back. The physician diagnosed acute lumbar myofascial strain and acute low back
pain, and he discharged plaintiff with prescriptions for Robaxin and Anaprox DS. (R. 455467). Plaintiff again appeared at the Baptist Health ER three days later, on January 5, 2008,
reporting back, leg and foot pain at a level of “10.” (R. 440). The physician diagnosed acute
lumbar myofascial strain, acute left sciatica and chronic low back pain. (R. 446). Plaintiff
received a Decadron shot in the ER and prescriptions for Ultram and Soma. (R. 451, 453).
On January 20, 2008, at 11:20 a.m. plaintiff sought treatment at Pri-Med, complaining
of severe pain in his left buttock and calf that had lasted for “months.” (R. 499). The notes
do not indicate that plaintiff was examined by a physician. (Id.). At 11:00 p.m. the next
evening, plaintiff sought treatment for back pain, at a level of “10,” at the Tallassee
Community Hospital emergency room. The triage nurse recorded plaintiff’s chief complaint
as follows: “Around 5 pm playing Basketball – fell on left Buttock Now hurting in 9 Back
down left leg hasn’t been[.]” (R. 505). During his examination by the physician, plaintiff
reported “moderate” pain, at a level of “8” with an onset six hours earlier when he fell. He
stated that he had not had similar symptoms previously. (R. 507). Upon examination of
plaintiff’s back, the doctor circled “muscle tenderness/spasm” on the examination form. He

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ordered x-rays of plaintiff’s lumbar spine and sacral bone. (R. 505, 507-08). The radiologist
noted degenerative change (disc space narrowing) at L4-5 and L5-S1 (R. 509) and no
abnormalities of the sacrum (R. 510); the ER physician recorded these x-ray results as
“normal” and diagnosed lumbar spine strain (R. 508). Plaintiff received a Toradol injection
in the ER and a prescription for Feldene. (R. 505-08).
An ALJ conducted an administrative hearing on February 22, 2010,3 at which he heard
testimony from the plaintiff, a vocational expert, and a psychologist. (R. 41-112; see also R.
172-81). The ALJ issued a decision on March 19, 2010. (R. 18-40). He concluded that
plaintiff suffers from the severe impairments of: “schizoaffective disorder, bipolar disorder,
personality disorder, polysubstance abuse, lumbosacral myofascial strain, lumbar
degenerative disc disease, and sciatica.” (R. 21). He found that plaintiff does not have an
impairment or combination of impairments that meets or medically equals a listing (R. 2526). The ALJ found plaintiff to be capable of light work exertionally, with a sit/stand option
and additional postural and non-exertional physical limitations, and with primarily marked
mental limitations. (R. 27-28). The ALJ determined that plaintiff cannot perform any of his
past relevant work and that, considering his substance abuse disorder, there are no jobs that
exist in significant numbers in the national economy that the claimant can perform. (R. 2930). However, based on the hearing testimony of the expert psychologist, the ALJ determined

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The hearing convened originally on May 28, 2009. (R. 9-12). However, the hearing was
postponed at the request of plaintiff’s counsel, so that he could obtain additional medical evidence.
(R. 44-45).
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that, if plaintiff stopped the substance abuse, he still could not perform his past relevant work
but would retain the residual functional capacity to perform other jobs that exist in significant
numbers in the national economy. (R. 35-36). The ALJ concluded, therefore, that plaintiff
was not disabled within the meaning of the Social Security Act at any time from the alleged
onset date through the date of the decision. (R. 36).
DISCUSSION
Plaintiff’s sole allegation of error is that the ALJ failed in his duty to develop the
record because he did not order a consultative physical examination. (Doc. # 11, pp. 5-6).
He contends that, because the administrative record did not include opinion evidence from
a physician regarding plaintiff’s physical limitations, “[t]he ALJ did not have adequate or
sufficient medical evidence to make an informed decision in this case.” (Id., p. 5).
In his analysis of the evidence at step two, the ALJ presented an accurate summary
of plaintiff’s treatment for back and leg pain. (See R. 24). Thereafter, in assessing plaintiff’s
RFC, the ALJ reasoned as follows regarding plaintiff’s allegations of subjective symptoms,
including pain:
Regarding the claimant’s alleged lumbosacral myofascial strain, lumbar
degenerative disc disease, and sciatica, the claimant sought treatment for low
back pain and left leg pain between August 2007 and January 2008. The
records of evidence do not reveal any further treatment for complaints of back
or leg pain or any other impairment. At Tallassee Community Hospital on
January 21, 2008, the claimant had X-rays of the lumbar spine, which revealed
degenerative disc changes at L4-5 and L5-S1 and coccyx X-rays, which were
normal. The claimant was diagnosed with lumbar spine strain (Exhibit 6F).
The records reveal no further treatment for this condition. At the hearing the
claimant testified that he cooks and washes clothes and could shop if he had
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money to spend. He testified that he attends church once a month, visits, and
watches sporting events from his car. He testified that he can stand one hour,
walk one or two hours, and sit three hours in an eight-hour day. The claimant’s
lack of treatment records does not support his allegations of pain.
* * * * *
In sum, the above residual functional capacity assessment is supported by the
claimant’s treatment records and lack of treatment records. The claimant
received treatment for mental problems between June and September 2007 and
for physical problems between August 2007 and January 2008. There are no
further records of treatment, and the claimant testified that he does not take
any medications. Furthermore, it is noted that the claimant sat at the hearing
for two hours without a problem. The claimant’s statement that he experiences
pain at a level 25 on a scale of 10 is simply not credible. The claimant’s
records do not support disabling impairments.
(R. 33-35). The ALJ credited plaintiff’s testimony to the extent that plaintiff experiences a
“moderate degree of pain.” (R. 32). As to plaintiff’s physical limitations, the RFC assessed
by the ALJ was for light work, with a sit/stand option, and: “frequent simple grasping and
fine manipulation; occasional pushing/pulling of arm controls; occasional pushing/pulling
of leg controls; frequent reaching; occasional stooping, crouching, kneeling; never crawling,
climbing, or balancing; occasionally being exposed to moving machinery, marked changes
in temperature and humidity, and driving automotive equipment; and never being exposed
to unprotected heights.” (R. 32).
“[R]egardless of whether a claimant is represented by counsel, the ALJ ‘has a duty to
develop a full and fair record.’” George v. Astrue, 338 Fed. Appx. 803, 805 (11th Cir.
2009)(citing Brown v. Shalala, 44 F.3d 931, 934 (11th Cir. 1995)). Remand is not required,
however, unless the administrative record as a whole is “inadequate or incomplete or
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‘show[s] the kind of gaps in the evidence necessary to demonstrate prejudice.’” George, 338
Fed. Appx. at 805 (citing Graham v. Apfel, 129 F.3d 1420, 1423 (11th Cir. 1997)). “Even
though Social Security courts are inquisitorial, not adversarial, in nature, claimants must
establish that they are eligible for benefits. The administrative law judge has a duty to
develop the record where appropriate but 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 v. Commissioner of Social Security Administration, 496 F.3d
1253, 1269 (11th Cir. 2007)(emphasis added)(citing Doughty v. Apfel, 245 F.3d 1274, 1281
(11th Cir. 2001)).
The Eleventh Circuit has rejected the contention that an ALJ’s RFC assessment cannot
be supported by substantial evidence in the absence of a physical capacities opinion from a
medical source. See Green v. Social Security Administration, 223 Fed. Appx. 915 (11th Cir.
2007)(unpublished opinion)(ALJ’s RFC assessment based on treatment notes and without
a physical capacities evaluation from a medical source determined to be supported by
substantial evidence). In the present case, the absence of an RFC assessment by a medical
source does not deprive the ALJ’s RFC finding of substantial evidentiary support. The
treatment notes of record regarding plaintiff’s physical complaints, including the results of
plaintiff’s spinal x-rays, do not suggest that plaintiff is more limited than determined by the
ALJ. Plaintiff’s treatment for back and leg pain, as the ALJ observed, was confined to the
period between August 2007 and January 2008. Six of plaintiff’s seven visits to the doctor

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for treatment of back and leg pain occurred within a brief period of approximately one month
between December 18, 2007 and January 21, 2008. Thereafter, plaintiff received no
treatment at all in the two years leading up to the administrative hearing in early 2010.
Plaintiff’s treatment notes demonstrate that none of the physicians who treated plaintiff for
his physical complaints imposed restrictions, suggested further objective testing, or indicated
that plaintiff’s condition warranted more than conservative treatment. The treatment records
are adequate to support the ALJ’s assessment of plaintiff’s physical capabilities.
CONCLUSION
Upon consideration of the record as a whole, the court rejects plaintiff’s contention
that the ALJ erred by failing to order a consultative physical examination. Accordingly, the
decision of the Commissioner is due to be affirmed. A separate judgment will be entered.
DONE, this 29th day of June, 2012.

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

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