Johnson v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 10/29/12. (CVA)
2012 Oct-29 PM 12:50
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
KRYSTAL S. JOHNSON,
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
Civil Action Number
Plaintiff Krystal S. Johnson (“Johnson”) brings this action pursuant to
section 1631(c)(3) of the Social Security Act (“the Act”), 42 U.S.C. § 1383(c)(3),
seeking review of the final adverse decision of the Commissioner of the Social
Security Administration (“SSA”). Doc. 1. This court finds that the Administrative
Law Judge’s (“ALJ”) decision - which has become the decision of the
Commissioner - is supported by substantial evidence. Therefore, for the reasons
elaborated herein, the Court will AFFIRM the decision denying benefits.
I. Procedural History
Johnson filed her application for Title XVI Supplemental Security Income
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(“SSI”) on May 19, 2008, alleging a disability onset date of January 15, 2006, due
to schizophrenia, bipolar disorder, depression, suicidal ideations, and having
multiple personalities. (R. 97, 128). After the SSA denied her application on
September 18, 2008, (R. 61-65), Johnson requested a hearing on September 20,
2008. (R. 66). At the time of the hearing on May 18, 2010, Johnson was 26 years
old with a ninth grade education. (R. 39-59, 132). Her past relevant work
included working as a housekeeper and laundry attendant. (R. 23, 129). While
Johnson maintained that she had not engaged in substantial gainful activity since
May 2008, the ALJ questioned this assertion stating that evidence existed that
Johnson performed work described as unskilled for three or four months on a full
time basis in 2008. (R. 16).
The ALJ denied Johnson’s claims on July 28, 2010. (R. 11-28). Johnson
appealed the decision on August 12, 2010 and presented arguments on September
9, 2011. (R. 7, 153). However, the Appeals Council issued a form denial on
October 26, 2011, (R. 1), which made the ALJ’s decision the final decision of the
Commissioner. Johnson then filed this action on December 27, 2011, pursuant to
42 U.S.C. § 1383(c)(3). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
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evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
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automatic affirmance.” Lamb, 847 F.2d at 701.
III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(i). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. §§ 404.1520(a)-(f), 416.920(a)-(f). Specifically, the Commissioner
must determine in sequence:
whether the claimant is currently unemployed;
whether the claimant has a severe impairment;
whether the impairment meets or equals one listed by the Secretary;
whether the claimant is unable to perform his or her past work; and
whether the claimant is unable to perform any work in the national
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McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative
answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
In performing the five step analysis, the ALJ initially determined that
Johnson “has arguably engaged in substantial gainful activity since May 19, 2008,
the application date” because “[a]ccording to [Johnson’s] own submissions, she
performed work that was described by the vocational expert as unskilled for three
or four months on a full time basis at substantial gainful activity levels in 2008
(Exhibits 3E, 3F, and 5F).” (R. 16). Nonetheless, the ALJ afforded Johnson the
benefit of any reasonable doubt and found in her favor at Step One. Id. Next, the
ALJ found that Johnson suffered from the severe impairments of “depressive
disorder, anxiety disorder with post traumatic stress disorder, and borderline
intellectual functioning (provisional).” Id. The ALJ then proceeded to the next
step and found that Johnson failed to satisfy Step Three because she “does not
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have an impairment or combination of impairments that meets or medically equals
one of the listed impairments.” (R. 16). Although the ALJ answered Step Three
in the negative, consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ
proceeded to Step Four, where he determined that:
[T]he claimant has the residual functional capacity [“RFC”] to
perform a full range of work at all exertional levels but with the
following nonexertional limitations: the claimant can perform simple,
routine, repetitive tasks free of fast-paced production requirements.
She can make simple work-related decisions and should have few, if
any, changes in the work place. She should have no more than
occasional interaction with the public and with coworkers.
(R. 18). Moreover, in light of the full range of work, “nonextertional limitations”
RFC, the ALJ determined that Johnson is “capable of performing past relevant
work as a housekeeper and a laundry attendant.” (R. 23). Consequently, the ALJ
found that Johnson “has not been under a disability, as defined in the Social
Security Act, since May 19, 2008, the date the application was filed.” (R. 24).
The court turns now to Johnson’s contentions that the ALJ erred (1) in
determining that Johnson “arguably” engaged in substantial gainful activity since
her application date and by failing to analyze the actual earnings Johnson made to
determine if her work rose to this level, (2) by failing “to make specific findings as
to mental work related functioning” for Johnson’s three mental disorder severe
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impairments, (3) in assessing Johnson’s RFC by “selectively adopting [a] State
Agency reviewing opinion over [an] examining opinion and rejecting consistent
opinions from both [a] treating and consultative source,” and (4) by failing to
develop the record by “obtain[ing] clarification from any of the treating or
consultative sources” or by “utiliz[ing] a medical expert  to assist [the ALJ] with
resolving any insufficiencies or conflicts in the record.” See doc. 8, at 7-12. The
court addresses each contention in turn.
Alleged error in substantial gainful activity determination and in
failing to analyze Johnson’s earnings
Johnson contends that the ALJ erred in determining that Johnson engaged in
substantial gainful activity since May 19, 2008, the date of her SSI application,
and, in that same vein, erred by not using Johnson’s earnings to determine if
Johnson had, in fact, engaged in gainful activity. Doc. 8 at 4-5. As a threshold
matter, the court notes that in Step One, the ALJ must determine if the claimant
engaged in substantial gainful activity. See 20 C.F.R. § 416.920(b). If the ALJ
answers the question affirmatively, the ALJ will find that the claimant is not
disabled. See id. Substantial gainful activity is work activity that involves
significant physical or mental activities and that is done for pay or profit. See 20
C.F.R. § 404.1572. The regulation further provides that work may be substantial
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even if an individual does less, or has less responsibility than when she worked
before. Id. Indeed, the focus is on the earnings rather than on the activity: “[i]n
evaluating your work activity for substantial gainful activity purposes, our primary
consideration will be the earnings you derive from the work activity.” See 20
C.F.R. § 404.1574; Social Security Ruling (SSR) 83–33. Relevant to the dispute
before this court is the Program Operations Manual System (POMS) DI 10501.015
Table 2 which indicates that average monthly income over $940.00 per month in
2008 qualified as substantial gainful activity. See Stroup v. Barnhart, 327 F.3d
1258, 1262 (11th Cir. 2003) (“While the POMS does not have the force of law, it
can be persuasive.”).
Turning to the relevant facts here, although the court agrees that Johnson
had no substantial gainful activity after the May 19, 2008 date of her application,1
Johnson, however, engaged in substantial gainful activity from April 2008 to May
6, 2008, i.e., after her alleged disability onset date of January 15, 2006. See (R.
128-129). Indeed, although Johnson has no reported wages from 2004 through
Exhibits 3E, 3F, and 5F which the ALJ cites as evidence that Johnson engaged in SGA
since May 19, 2008 simply do not support that contention. Exhibit 3E is a Disability Report
where Johnson reported she worked as a housekeeping/laundry attendant at a hotel from April
2008 to May 6, 2008. (R. 129). Exhibit 3F is the consultative examination report of Dr. Chebon
Porter who noted that Johnson reported last working in May 2008. (R. 169). Finally, Exhibit 5F
is the consultative examination report of Dr. Jon Rogers who noted that Johnson last worked as a
laundry attendant and housekeeper at Holiday Inn Express from February to May, 2008. (R.
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2006 and only $163.48 in wages for 2007, she earned $2439.64 in 2008 when she
worked from April 2008 to May 6, 2008. (R. 102, 104, 129). Consequently,
under POMS, Johnson’s work in 2008, at least in April, qualifies as substantial
gainful activity. Therefore, the ALJ committed no reversible error, especially
since the ALJ gave Johnson “the benefit of any reasonable doubt...and proceed[ed]
to the remaining steps of the process.” (R. 16).
Alleged failure to make specific findings as to mental work related
functioning per SSR 96-8p and 20 CFR 416.945
Johnson contends next that, in violation of SSR 96-8p2 and 20 C.F.R.
416.945(c)3, the ALJ failed “to make specific findings as to mental work related
functioning” concerning the three severe impairments of “depressive disorder,
anxiety disorder with post traumatic stress disorder, and borderline intellectual
functioning (provisional)” that the ALJ determined Johnson suffered. (R. 16);
doc. 8 at 7. Contrary to Johnson’s contention, the ALJ made specific findings
SSR 96-8p states that “[w]ork-related mental activities generally required by
competitive, remunerative work include the abilities to: understand, carry out, and remember
instructions; use judgment in making work-related decisions; respond appropriately to
supervision, co-workers and work situations; and deal with changes in a routine work setting.”
SSR 96-8p, pg. 5.
20 C.F.R. 416.945(c) discusses how an ALJ must use a claimant’s “mental abilities” in
an RFC assessment, i.e. “assess the nature and extent of [a claimant’s] mental limitations and
restrictions and then determine [the claimant’s] residual functional capacity for work activity on
a regular and continuing basis [as well as] limitations in understanding, remembering, and
carrying out instructions, and in responding appropriately to supervision, coworkers, and work
pressures in a work setting.” 20 C.F.R. 416.945(c).
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related to Johnson’s mental capacity to engage in work-related functions.
Specifically, after noting that Johnson could “perform a full range of work at all
exertional levels,” the ALJ then found Johnson’s nonexertional limitations, stating
that Johnson “can perform simple, routine, repetitive tasks free of fast-paced
production requirements. She can make simple work-related decisions, and should
have few, if any changes in the work place. She should have no more than
occasional interaction with the public and with coworkers.” (R. 18). In doing so,
the ALJ addressed the “work-related mental activities” mentioned in sections 20
C.F.R. 416.945(c) and SSR 96-8p.
Moreover, in reaching the RFC determination, the ALJ relied on several
medical opinions and objective findings. For instance, the ALJ noted that several
doctors assessed Johnson’s I.Q. (79 in 2006, 80 in 2008, and 75 in 2010) and GAF
(57 in 2007, and 42 and 51 in July and September 2008, respectfully) and
determined that Johnson’s intellectual abilities fell within the borderline range.
(R. 19-21). In addition to the IQ and GAF assessments, William Beidleman,
Ph.D., conducted a psychiatric consultative examination in February 2007 and
observed that Johnson “did not appear overly anxious, depressed, psychotic or
manic.” (R. 19-20, 314). Eighteen months later, Jon Rogers, Ph.D., conducted a
psychological evaluation and opined that Johnson “was able to function
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independently.” (R. 20, 178). The next psychological evaluation occurred in May
2009 when Robert Savage, Ph.D., administered several tests and noted no “sensory
or motor impairment that would have impacted [Johnson’s] performance.” (R. 21,
238). Critically, Dr. Savage stated that Johnson’s personality and her emotional
functioning profile tests indicated “grossly exaggerated symptom reporting” and
“some symptom magnification of her psychiatric symptoms,” and that Johnson’s
responses “were not indicative of current psychosis, acute depressive symptoms,
or suicidiality.” (R. 21, 238).
Overall, based on the record, the ALJ determined that Johnson’s severe
impairments of depressive disorder, anxiety disorder with post traumatic stress
disorder, and provisional borderline intellectual functioning did not prevent her
from performing her past work as a housekeeper and a laundry attendant, taking
into consideration Johnson’s nonexertional limitations. Because Johnson failed to
show what “specific findings” the ALJ should have made regarding Johnson’s
mental work-related functioning, and how these findings would have changed the
ultimate result, the substantial evidence supports the ALJ’s RFC determination.
Alleged error in adopting state agency reviewing opinion over
examining opinion and rejecting opinions from a treating and
Johnson contends next that the ALJ erred by giving “great weight” to state
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agency consultant Dr. Gordon Rankart’s reviewing assessment over other
examining opinions and in finding consultative examiner Dr. Chebon Porter’s
assessment and non-physician, treating source Ms. Sharon Harper’s questionnaire
assessment inconsistent with the other record evidence. See doc. 8 at 7-12. As a
threshold matter, the regulations make clear that the responsibility for assessing
the RFC falls on the ALJ. 20 C.F.R. § 416.946. In determining whether a
claimant is disabled, the ALJ “will always consider the medical opinions in [the]
case record together with the rest of the relevant evidence [he] received,” 20
C.F.R. 404.15279(b), and “may reject any medical opinion if the evidence
supports a contrary finding,” Sharfarz v. Bowen, 825 F.2d 278, 280 (11th Cir.
Here, consistent with 20 C.F.R. 404.15279(b), the ALJ reviewed medical
reports and evidence from five psychiatric and psychological doctors, see
generally (R. 14-24), and weighed the opinions of the examiners based on the
entire case record. Based on the record, the ALJ gave “significant” or “great”
weight to the opinions of Drs. Rogers, Rankart, Savage, and Beidleman, three of
whom examined Johnson in person, and gave partial weight to the findings and
opinions of Dr. Porter. (R. 22-23). Finally, while the ALJ gave no weight to the
opinions non-physician therapist Sharon Harper expressed in the questionnaire, he
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did consider her treatment notes. (R. 21-23).
In light of Johnson’s contention that the ALJ erred in assigning weight to
the medical evidence, the court reviews each physician’s or therapist’s opinion
i. Dr. Rankart’s reviewing opinion
Johnson contends that the ALJ erred in giving “great weight” to the state
agency consultant Dr. Gordan Rankart’s reviewing opinion over other examining
and treating opinions. Doc. 8 at 8. However, while the ALJ gave “great weight”
to Dr. Rankart’s Mental RFC and his opinion in his Psychiatric Review Technique
Form, the ALJ did not give Dr. Rankart’s reviewing opinions greater weight than
the examining opinions. (R. 23). In fact, the ALJ gave “great weight” to the May
27, 2009 examining opinion of Dr. Savage, “significant weight” to the September
11, 2008 examining opinion of Dr. Rogers, “great weight” to the February 23,
2007 examining opinion by Dr. Beidleman, and “partial weight” to the July 10,
2008 examining opinion of Dr. Porter. See (R. 14-24). There is no indication that
the ALJ weighed Dr. Rankart’s review of Johnson’s record greater than the
examining opinions on record. To the contrary, the ALJ referred to the examining
opinions a great deal more than Dr. Rankart’s opinion, and, in fact, only discussed
Dr. Rankart’s review in two sentences. See (R. 23, 14-24). In short, the court
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finds no error in the weight the ALJ gave to Dr. Rankart’s reviewing opinion.
ii. Non-physician Sharon Harper’s treatment opinions from
Birmingham Health Care
Johnson also contends that the ALJ should have considered and given
greater weight to the treating opinion of non-physician therapist Sharon Harper.
Doc. 8 at 8-12. Ms. Harper opined in a questionnaire on December 10, 2009 that
Johnson had marked4 restrictions and difficulties with her “activities of daily
living,” with “maintaining social functioning,” with “concentration, persistence,
[and] pace,” and with her “ability to respond to customary work pressures.” (R.
241-242). Johnson claims this opinion supports her disability. While the court
recognizes that “[m]edical opinions from treating sources about the nature and
severity of an individual’s impairment(s) are entitled to special significance and
may be entitled to controlling weight,” that is the case only if “a treating source’s
medical opinion. . . is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the case record [should] the adjudicator give it controlling weight.”
SSR 96-8p, pg.6-7 (citing SSR 96-2p and 96-5p). Moreover, mental health
therapists, such as Ms. Harper, are not “acceptable” medical sources as defined in
The questionnaire defined “marked” as “[a]n impairment which seriously affects ability
to function.” (R. 241).
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20 C.F.R. 416.913(a), and, instead, are recognized as “other” sources whose
testimony may be used to show the severity of a claimant’s impairment or how it
affects her ability to work. 20 C.F.R. 416.913(d).
The lack of support in the medical record is the fatal flaw in Johnson’s
reliance on Ms. Harper’s opinions. As the ALJ pointed out, although he
considered Ms. Harper’s treatment notes, he did not consider the opinion Ms.
Harper provided in her questionnaire because (1) it was “wholly inconsistent with
the contents of the letters and records detailing [Johnson’s] treatments,” (2) it was
“set forth on a check-off form supplied and drafted by [Johnson’s] attorney,” and
(3) it “fails almost entirely to provide any clinical or objective support for the
conclusory assertions indicated thereon.” (R. 23). Specifically, while Ms. Harper
opined that Johnson had marked limitations, the details she provided in an
accompanying letter contradicted her opinion, i.e., (1) that when Johnson returned
for her first follow-up visit she “showed improvement, reporting no suicidal
ideation and lessening of the auditory hallucinations,” (R. 240), (2) on another
follow-up visit, Johnson “reported her mood was stable, and she was sleeping
better at that time,” (R. 240), (3) during two subsequent visits Johnson reported
“improvement in symptom reduction had continued” and “improved depression
symptoms, more energy, and no hallucinations.” (R. 318). These entries formed
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the basis for the ALJ’s determination that Ms. Harper’s treatment notes showed
“[Johnson] repeatedly reports improving symptoms, which is inconsistent with a
finding of any marked limitations.” (R. 23). In other words, Ms. Harper failed to
reconcile the inconsistences between her questionnaire and her treatment notes.
The ALJ also found that Ms. Harper’s opinion was not supported by the
evidence. See (R. 17-23). For example, the ALJ determined that Johnson’s
reports that she cooked and cleaned for her husband, including washing the dishes,
sweeping, mopping the floor, and cleaning the bathroom, that she goes to the
library, attends church services, and uses food stamps and shops for food weekly
contradicted Ms. Harper’s contention that Johnson had marked restrictions in her
ability to handle activities of daily living. (R. 17, 19, 120-121). Likewise, the
ALJ found that the evidence showing that Johnson “has married since her alleged
onset date of disability,” “was cooperative and generally motivated in her
consultative examinations,” and “presented to her consultative examinations as a
pleasant and cheerful person. . . [with] spontaneous speech, normal articulation,
and normal conversation” contradicted Ms. Harper’s opinion that Johnson had
marked limitations in social functioning. (R. 17). Finally, while Ms. Harper
opined that Johnson had marked restrictions with her ability to respond to
customary work pressures, the ALJ rejected this finding, (R. 18), based on the
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medical opinions in the record, including Dr. Rankart who opined that Johnson “is
capable of simple-task employment,” (R. 192), and Dr. Rogers who opined that
Johnson could “function independently,” (R. 178). Thus, the ALJ concluded that
Johnson “appears to have some restrictions, but she is still capable of performing a
number of activities of daily living; therefore, the undersigned finds [Johnson] has
moderate restrictions,” moderate difficulties in ability to function socially, and
“some difficulties with maintaining concentration, persistence, and pace; [but
Johnson’s] limits in this domain are no more than moderate, consistent with her
abilities to complete tests and remain on tasks during tests.” (R. 17-18). As
such, the ALJ found that while “the entire world of work is not open to [Johnson]”
due to her noted limitations, “she retains sufficient capacity to perform her past
work as a housekeeper and as a laundry attendant because the requirements of
these jobs fall well within the functional capacity outlined.” (R. 23).
Based on the evidence in the record and the inconsistencies between Ms.
Harper’s treatment notes and her questionnaire, the court finds that the substantial
evidence supports the ALJ’s rejection of Ms. Harper’s opinion.
iii. Dr. Porter’s consultative examination opinion
Next, Johnson contends that the ALJ erred in only giving partial weight to
the opinions of Chebon Porter, Ph.D., a licensed clinical psychologist consultative
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source who examined Johnson on July 10, 2008. (R. 169). The ALJ found Dr.
Porter’s findings and opinions “inconsistent with the record” and overly
influenced by Johnson’s statements and claims, rather than Dr. Porter’s own
independent evaluation. (R. 22-23). Indeed, as it relates to Johnson’s psychiatric
history, Dr. Porter relied heavily on Johnson’s reports. See (R. 170). In fact, Dr.
Porter’s entries include multiple references to what Johnson reported: (1) “Ms.
Johnson reported the following history,” (2) “[p]er trauma-related issues,
[Johnson] reported the following. . . regularly have nightmares, flashbacks,
intrusive thoughts, emotional detachment, chronic anxiety, distress with exposure
to trauma-relates cues, distrust of others (i.e., only trusts her husband), and severe
anger control problems...she reported a long history of physical altercations. . . and
although she continues to have issues with emotions consistent with severe
anger/range, she has not acted out  in approximately 3 years,” and (3) “Johnson
also reported a history of severe depression [with] a history of approximately 6-7
suicide attempts via cutting her wrists...Per her description, she has a very limited
ability to manage stress or conflict, both of which trigger acute decompensation
into severe depression; SI’s, hopelessness, agitation, worthlessness, shame,
tearfulness, and eventual hypersomnia.” (R. 170) (emphasis added). Ultimately,
Dr. Porter diagnosed Johnson with Posttraumatic Stress Disorder (chronic/severe),
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major depressive disorder (recurrent/unspecified), alcohol dependence, cocaine
dependence (in sustained full remission), cannabis dependence (in sustained full
remission), and borderline intellectual functioning (provisional). (R. 171). He
concluded that “[Johnson] does not appear to be capable of managing routine work
stress/tasks or working cohesively with others sufficient to maintain gainful
employment. She does appear to be capable of managing benefits independently
(i.e., per her report, she’s managed finances and paid bills throughout her
relationship and marriage to her husband). Her prognosis is guarded.” (R. 171).
Johnson contends that Dr. Porter’s finding that she is incapable of managing
routine work stress supports her disability claims and attacks the ALJ’s decision to
not give this assessment great weight. In determining the weight to give to Dr.
Porter’s opinion, the ALJ noted that Dr. Porter “was likely influenced” by “several
allegations” Johnson made concerning her psychiatric history, none of which the
record corroborated. (R. 22-23). In particular, the ALJ found that nothing in the
record corroborated Johnson’s report to Dr. Porter that she was waiting for an
inpatient bed at the psychiatric hospital at UAB. (R. 23, 169). In fact, Dr. Savage,
a psychologist at UAB who evaluated Johnson, opined that Johnson had grossly
exaggerated symptom reporting rendering her results invalid and that Johnson’s
responses were “not indicative of current psychosis, acute depressive
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symptomology, or suicidality.” (R. 238). The ALJ noted that when Johnson
reported to Dr. Porter that her doctor wanted to place her in an inpatient facility to
observe her for medications, that allegation was wholly unsupported by the record
and another example of Johnson’s exaggeration of her symptoms. (R. 22).
Based on this court’s review of the record, it is clear that the ALJ’s decision
to assign significant weight to the opinions of Drs. Rankart, Rogers, Savage,
Beidleman, while excluding Dr. Porter’s opinion that Johnson was unable to work,
was consistent with the medical record and not evidence of error. (R. 23).
Therefore, substantial evidence supports the ALJ’s decision to only give partial
weight to Dr. Porter’s findings.
Alleged failure to develop the record to clarify inconsistencies by recontacting consulting physician or with medical expert
Finally, Johnson contends that the ALJ’s RFC findings were not based on
substantial evidence since the ALJ purportedly failed to fully develop the record by
obtaining a medical expert to examine or review the record or by re-contacting
“any of the treating or consultative sources.” Doc. 8 at 11-12. The court disagrees.
i. Alleged failure to re-contact any of the treating or consultative
sources for clarification of the medical record
As to Johnson’s contention that “the ALJ could have obtained clarification
from any of the treating or consultative sources” to resolve any insufficiencies or
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conflicts in the record, doc. 8 at 11, the ALJ is only obligated to obtain clarification
when a consultative physician’s report is “inadequate or incomplete” such that the
ALJ cannot make an informed decision regarding whether a claimant is disabled.
See Davison v. Astrue, 370 Fed.App’x 995, 997 (11th Cir. 2010); Vesty v. Astrue,
353 Fed.App’x 219, 225 (11th Cir. 2009); 20 C.F.R. § 416.919p(a)-(b). In such a
case, the ALJ must attempt to develop the record by contacting the treating or
consultative physician to determine whether the required information is available.
In Johnson’s case, however, the reports of the consultative examiners, along
with Ms. Harper’s treatment notes and Dr. Rankart’s reviewing opinion, constituted
a sufficiently complete record from which the ALJ could determine Johnson’s
disability. Specifically, the doctors determined Johnson’s chief complaints,
reviewed Johnson’s history and her resulting hospitalizations, reviewed the impact
the alleged illnesses had on Johnson’s activities, conducted laboratory tests and
reviewed the results, and reported their diagnoses. See (R. 169, 174, 180, 237,
243, 312, 316). The record was sufficient and required no further development.
ii. Alleged failure to obtain medical expert testimony
Alternatively, Johnson contends that the ALJ “could have utilized a medical
expert to assist him with resolving any insufficiencies or conflicts in the record.”
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Doc. 8 at 11. While an ALJ “has a basic duty to develop a full and fair record,”
Ellison v. Barnhart, 355 F.3d 1272, 1276 (11th Cir. 2003), the ALJ is not obligated
to automatically obtain testimony from a medical expert. Rather, the ALJ “may ask
for and consider the opinion of a medical . . . expert concerning whether ...[a
claimant’s] impairment(s) could reasonably be expected to produce [his or her]
alleged symptoms.” 20 C.F.R. § 404.1529 (emphasis added). Critically, the ALJ is
not required to order additional medical opinion when, as here, the record contains
sufficient evidence for the ALJ to make a disability determination. Ingram v.
Comm’r of Soc. Sec., 496 F.3d 1253, 1269 (11th Cir. 2007) (citation omitted).
Indeed, the ALJ considered Johnson’s entire medical record available, which
included reports from five physicians and a therapist, to find that Johnson is not
disabled. Based on the extensive medical reports available, the ALJ developed a
full and fair record in Johnson’s case.
Overall, the ALJ held that “[Johnson] simply alleges a greater degree of
disability than is warranted by objective evidence.” (R. 23). Based on this court’s
review of the record, the findings the ALJ made concerning his evaluation of the
medical reports were sufficiently extensive for the ALJ to make a RFC
determination and to find that Johnson was not disabled. Accordingly, the ALJ
committed no error by failing to obtain a medical expert’s opinion.
Page 22 of 23
Based on the foregoing, the court concludes that the ALJ’s determination
that Johnson is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.
Done the 29th day of October, 2012.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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