Clark v. Social Security Administration, Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 11/09/12. (CVA)

FILED
2012 Nov-09 PM 01:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
KEVIN KENLEY CLARK,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
3:11-cv-4008-AKK

MEMORANDUM OPINION
Plaintiff Kevin Kenley Clark (“Clark”) brings this action pursuant to
Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g), seeking
review of the final adverse decision of the Commissioner of the Social Security
Administration (“SSA”). This Court finds that the Administrative Law Judge’s
(“ALJ”) decision - which has become the decision of the Commissioner - is
supported by substantial evidence and, therefore, AFFIRMS the decision denying
benefits.
I. Procedural History
Clark filed his application for Title II disability insurance benefits on March

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27, 2009, alleging a disability onset date of September 26, 2008, from depression
and panic and anxiety attacks. (R. 126-133, 146). After the SSA denied his
application on June 23, 2009, Clark requested a hearing. (R. 101, 29). At the time
of the hearing on August 24, 2010, Clark was 39 years old, had an associate’s
degree, and past relevant light, semi-skilled work as an electronics assembler and
in electronics quality control. (R. 37, 43, 53-54). Clark has not engaged in
substantial gainful activity since September 26, 2008. (R. 43).
The ALJ denied Clark’s claim on December 16, 2010, which became the
final decision of the Commissioner when the Appeals Council refused to grant
review on September 20, 2011. (R. 1-4, 8). Clark then filed this action pursuant
to section 1631 of the Act, 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
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
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(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
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 impairments 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
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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). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

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

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do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
In performing the Five Step sequential analysis, the ALJ initially
determined that Clark had not engaged in substantial gainful activity since his
application date and therefore met Step One. (R. 13). Next, the ALJ
acknowledged that Clark’s severe impairments of generalized anxiety disorder,
panic attacks with agoraphobia, and “major depression, recurrent, moderate” met
Step Two. Id. The ALJ then proceeded to the next step and found that Clark did
not satisfy Step Three since he “does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments.” Id.
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 Clark had the residual functional capacity (“RFC”) to
perform a full range of work at all exertional levels but with the
following non-exertional limitations: he is able to understand and
remember simple but no detailed or complex instructions; he can
sustain attention for two-hour periods across an eight-hour workday
with normal breaks; he can have occasional contact with the general
public, coworkers and supervisors; any changes in the workplace
should be gradually introduced; and he should have a low stress job
defined as SVP-2 or less involving only simple work-related
decisions.
(R. 15). In light of Clark’s RFC, the ALJ determined that Clark was “unable to
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perform any past relevant work.” (R. 23). Therefore, the ALJ proceeded to Step
Five where he considered Clark’s age, education, experience, and RFC, and
determined that there are “jobs that exist in significant numbers in the national
economy that the claimant can perform.” Id. Because the ALJ answered Step
Five in the negative, the ALJ determined that Clark is not disabled. (R. 24); see
also McDaniel, 800 F.2d at 1030.
V. Analysis
Clark states in his Complaint that he received an unfavorable decision and
“seeks judicial review by this Court and the entry of a judgment for such relief as
may be proper.” Doc. 1 at 2. The court has reviewed the entire record and the
ALJ’s decision and finds no error. Therefore, for the reasons discussed below, the
court finds that the ALJ’s decision is supported by substantial evidence.
A.

The relevant medical evidence
The medical evidence relevant to Clark’s depression and panic and anxiety

attacks consists of a June 12, 2009, consultative examination by Dr. John Haney,
who reported that Clark (1) appeared “rather anxious and sad,” (2) denied
psychiatric hospitalizations, (3) was oriented with respect to time, place, person,
and situation, (4) had intact recent and remote memory and average intelligence,
(5) denied suicidal thoughts, (6) can manage his own funds, and (7) watches
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television, uses the computer, and does small chores daily. (R. 323). Dr. Haney
opined that Clarks’s “[a]bility to function in most jobs appeared moderately to
severely impaired due to [Clark’s] physical and emotional limitations. His ability
to improve in the next six to twelve months appeared limited.” (R. 324). Dr.
Haney diagnosed Clark with major depressive disorder, recurrent, moderate, panic
disorder with agoraphobia, and attention deficit disorder, by history. Id.
Eleven days later, Dr. Steven Dobbs completed a psychiatric review
technique and diagnosed Clark with major depressive disorder and panic disorder
with agoraphobia that caused (1) mild restriction of activities of daily living, (2)
moderate difficulties in maintaining social functioning, concentration, persistence,
and pace, and (3) no episodes of decompensation. (R. 330, 332, 337). Dr. Dobbs
opined in a mental RFC assessment that Clark has no more than moderate
limitations in his ability to (1) understand, remember, and carry out detailed
instructions, (2) maintain attention and concentration for extended periods, (3)
perform activities within a schedule, maintain regular attendance, and be punctual,
(4) work in coordination with or proximity to others without being distracted, (5)
complete a normal workweek or workday without interruptions from
psychological symptoms, (6) interact appropriately with the general public, and (7)
get along with co-workers and peers without distracting them or exhibiting
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behavioral extremes. (R. 341-42). According to Dr. Dobbs, Clark is able to
understand and remember simple and detailed instructions, Clark’s proximity to
others should not be intense, and Clark is able to interact appropriately in “causal,
uncrowded settings and respond appropriately to constructive instructions.” (R.
343).
Finally, treating physician Dr. William Roddy treated Clark from September
2008 through August 2010, but Dr. Roddy’s treatment notes are illegible.1 (R.
254-268, 363-405). On August 10, 2010, Dr. Roddy prepared a treatment
summary where he diagnosed Clark with panic disorder with agoraphobia,
generalized anxiety disorder, major depressive disorder, recurrent-moderate,
assigned a GAF score of 45-50,2 and opined that Clark’s prognosis was poor, and
that Clark would continue “psychotherapy with medication management.” (R.
363-64). Dr. Roddy also described Clark as “cooperative, though anxious and
depressed,” tense, goal directed, and oriented with respect to person, place, time,

1

The ALJ instructed Clark to resubmit Dr. Roddy’s treatment notes but Clark failed to do
so. (R. 21, 42).
2

The Global Assessment of Functioning (“GAF”) Scales are used to score the severity of
psychiatric illnesses. A GAF score of 30 indicates behavior influenced by delusions or
hallucinations or serious impairment in communication or judgement or inability to function in
almost all areas. A GAF score of 45-50 indicates serious symptoms or any serious impairment in
social, occupational, or school functioning. The American Psychiatric Association, Diagnostic
and Statistical Manual of Mental Disorders 34 (4th ed. 2000).
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and situation, and with “fair concentration and judgment, average intelligence and
fair insight.” (R. 364). Dr. Roddy completed a medical assessment form in which
he opined that Clark has (1) moderate limitations in his ability to follow work
rules, understand, remember, and carry out job instructions, and (2) severe
limitations in his ability to deal with the public and work stress, use judgment,
interact with supervisors, function independently, maintain attention and
concentration, understand, remember, and carry out complex or detailed job
instructions, behave in an emotionally stable manner, relate predictably in social
situations, and demonstrate reliability. (R. 365-66).
B.

Clark does not have an impairment that meets or equals a Listing
The ALJ considered whether Clark’s impairments “singly and in

combination” met Listings 12.04 and 12.06 and determined that Clark failed to
satisfy the Paragraph B criteria.3 (R. 14). Specifically, the ALJ determined that
Clark did not have marked restrictions of activities of daily living because he (1)
needed no assistance with personal care “other than to be reminded of his
medications,” (2) helps to care for his children, (3) does chores such as washing

3

Listings 12.04 Affective disorders and 12.06 Anxiety-related disorders’ paragraph B
criteria require a claimant to meet at least two of the following: (1) marked restriction of
activities of daily living; (2) marked difficulties in maintaining social functioning; (3) marked
difficulties maintaining concentration, persistence, or pace; or (4) repeated episodes of
decompensation, each of extended duration. 20 C.F.R. Part 404, Subpart P, Appendix I.
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the dishes, mowing the grass, and shops, and (4) watches television and surfs the
internet. Id. The ALJ found that Clark had no difficulties maintaining social
functioning because he peacefully gets along with family, visits family weekly for
dinner, attends church “every so often,” and can follow instructions and authority
figures. Id. Regarding Clark’s ability to maintain concentration, persistence, and
pace, the ALJ determined that Clark had only moderate difficulty as evidenced by
his ability to shop, drive, watch television, care for his children, and handle money
and bank accounts. Id. Lastly, the ALJ concluded that Clark had no episodes of
decompensation because he “has required no emergency intervention or
psychiatric admission for his mental illness,” but instead, “is seen routinely” for
psychotherapy and medication management. Id.
The ALJ’s decision is supported by substantial evidence. For example, the
court notes that Clark testified that he cares for his personal needs, washes dishes,
pay bills, drives, pumps gas, makes change, shops at Wal-Mart and dollar stores,
watches television, and surfs the internet, (R. 44-46, 166-170), and that Clark’s
mother added on her function report that Clark and his family “come[s] [to her
house] once a week and have dinner.” (R. 182). In other words, the ALJ’s
findings are consistent with the testimony and evidence Clark furnished in support
of his claim. Likewise, regarding episodes of decompensation, the ALJ correctly
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noted that the record evidence is void of any emergency room treatment or
hospitalizations due to Clark’s mental impairments, and is replete instead with
routine visits to Dr. Roddy for evaluation and prescribed drug regimen. Therefore,
the ALJ’s decision that Clark failed to meet a listing is supported by substantial
evidence.
B.

Clark’s RFC is supported by substantial evidence
The ALJ determined that Clark has an RFC to perform a full range of work

at all exertional levels with the following non-exertional limitations: a low stress
job, and one that does not require understanding and remembering complex
instructions, sustaining concentration for more than two-hour periods in an eighthour workday, significant contact with the public, or sudden changes to the
workplace. (R. 15). In assessing Clark’s RFC, the ALJ gave Dr. Roddy’s opinion
“little weight” because Dr. Roddy’s report failed to “give any narrative of his
actual objective findings on routine visits but rather the last paragraph on page one
entirely describes the subjective statements as to symptoms and limitations” and
failed “to reveal the type of significant clinical and examination abnormalities one
would expect if the claimant were in fact disabled, and the doctor did not
specifically address this weakness.” (R. 20). To the extent that Clark claims the
ALJ erred, the court notes that an ALJ can reject a treating physician’s assessment
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when, as here, the physician failed to present “relevant evidence to support an
opinion.” See 20 C.F.R. § 404.1527(c)(3). In fact, because Clark failed to submit
a legible copy of Dr. Roddy’s treatment notes, the court cannot establish a
“longitudinal picture” of Clark’s impairments and ascertain whether Dr. Roddy’s
report is substantiated by his treatment notes. This failure to provide legible notes
is fatal to any assertion that the ALJ should have assigned significant weight to Dr.
Roddy’s opinion. See 20 C.F.R. § 404.1527(c)(2). However, even ignoring this
fact, the court notes that Clark’s own statements undermine Dr. Robby’s findings.
For example, although Clark reported that he has “no problems following [written]
instruction,” Dr. Roddy opined that Clark would have moderate difficulty
following work rules and simple instructions, and severe difficulty following
detailed, non-complex instructions. (R. 179, 365). Furthermore, even though
Clark reported that he spends an hour cutting and an hour trimming his lawn, Dr.
Roddy determined that Clark had severe limitations maintaining concentration,
persistence, and pace. (R. 176, 365). Because Clark’s own statements fail to
support Dr. Roddy’s opinion, the ALJ’s decision to assign Dr. Roddy’s report
“little weight” is supported by substantial evidence.
The ALJ considered next consultative examiner Dr. John Haney’s opinion
and assigned it “little weight” because Dr. Haney considered Clark’s physical
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limitations although, Clark “alleged no physical limitations or conditions
impairing his ability to work and likewise none are found.” (R. 19). Dr. Haney’s
report is also internally inconsistent because he reported that Clark “has high
blood pressure and cholesterol” and “denied other physical [ ] problems,” but
found that Clark’s “[a]bility to function in most jobs appeared moderately to
severely impaired due to the patient’s physical and emotional limitations.” (R.
323-24). (R. 19). In fact, Dr. Haney’s diagnoses did not include physical
impairments and only included major depressive disorder, panic disorder, and
attention deficit disorder. (R. 324). Moreover, as the ALJ correctly observed
regarding Clark’s mental limitations, Dr. Haney’s observation that Clark has
average intelligence, intact memory, normal thought processes, adequate insight,
and logical and goal directed conversation is “inconsistent with the degree of
severity that would preclude the performance of all sustained work activity” and
instead supports that Clark is “capable of simple, unskilled work.” (R. 17, 323,
324). Furthermore, because Dr. Haney is a consulting physician, the ALJ had no
obligation to assign his opinion significant weight. Therefore, the ALJ’s decision
to assign “little weight” to Dr. Haney’s opinion because he considered an
undiagnosed physical condition is supported by substantial evidence.
The ALJ assigned “substantial weight” to psychologist Dr. Steven Dobbs’s
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opinion because he reviewed the entire medical record and determined that Clark
has no more than moderate limitations, which the ALJ found consistent with the
record as a whole, including the “conservative care” from Dr. Roddy and Clark’s
lack of inpatient treatment and activities of daily living. (R. 19). As the ALJ
pointed out, although Dr. Roddy found that Clark was irritable and anxious, Dr.
Roddy also reported no deficits of thought processes, intact memory, fair
concentration, judgment, and insight. (R. 19). According to the ALJ, these
findings are “not indicative of greater than moderate limitations and continue to
support Dr. Dobbs’s opinion.” Id. Because Dr. Dobb’s opinion is supported by
the record as a whole, the ALJ’s decision to assign “substantial weight” to Dr.
Dobb’s opinion is supported by substantial evidence.
C.

Clark’s credibility
Finally, the ALJ considered also Clark’s credibility and found that Clark

gave testimony “which contrasts sharply with other statements by him and third
parties elsewhere in the record.” (R. 17). As an example, the ALJ noted that
Clark reported that he watches his children when his mother-in-law is not
available, and that Clark’s wife and mother reported that Clark plays with,
watches, and feeds his children when his wife is at work. (R. 166, 175, 183).
Conversely, Clark testified that he does not prepare meals for his children and only
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plays with them when his wife is present. (R. 17, 45, 52). The ALJ was also
persuaded by Clark’s “generally unpersuasive appearance while testifying at the
hearing” because he made good eye contact, was alert and attentive, had good
recall, and showed no signs of panic or anxiety attacks. (R. 18). The court defers
to the ALJ’s determination on this issue because he was in the best position to
observe Clark’s demeanor and assess Clark’s credibility. Based on these
inconsistencies, and the failure of the record to demonstrate that Clark’s condition
worsened after his application date, the ALJ found Clark’s statements as
“suspect.” (R. 18). The court sees no reason to disturb this finding because it is
supported by substantial evidence.
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Clark is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. The final decision
of the Commissioner is, therefore, AFFIRMED. A separate order in accordance
with this memorandum of decision will be entered.
Done the 9th day of November, 2012.
________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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