1

 Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No.

103-296, 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social

Security matters were transferred to the Commissioner of Social Security.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

LARRY CLARK, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 1:06cv705CSC

) (WO)

MICHAEL J. ASTRUE, )

COMMISSIONER OF )

SOCIAL SECURITY, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. Introduction

The plaintiff, Larry Clark (“Clark”), applied for disability insurance benefits pursuant

to Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., alleging that he was unable

to work because of a disability. His application was denied at the initial administrative level.

Clark then requested and received a hearing before an Administrative Law Judge (“ALJ”).

Following the hearing, the ALJ also denied the claim. The Appeals Council rejected a

subsequent request for review. The ALJ’s decision consequently became the final decision

of the Commissioner of Social Security (“Commissioner”).1

 See Chester v. Bowen, 792 F.2d

129, 131 (11th Cir. 1986). The case is now before the court for review pursuant to 42 U.S.C.

§ 405(g) and § 1631(c)(3). Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the

parties have consented to entry of final judgment by the United States Magistrate Judge.

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2

 A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological

abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

3

 McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986), is a supplemental security income case (SSI). The

same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately cited as

authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

2

Based on the court’s review of the record in this case and the briefs of the parties, the court

concludes that the decision of the Commissioner should be reversed and remanded to the

Commissioner for further proceedings.

II. Standard of Review

Under 42 U.S.C. § 423(d)(1)(A), a person is entitled to disability benefits when the

person is unable 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 12 months. . . . 

To make this determination,2

 the Commissioner employs a five-step, sequential

evaluation process. See 20 C.F.R. § 404.1520, §416.920.

(1) Is the person presently unemployed?

(2) Is the person’s impairment severe?

(3) Does the person’s impairment meet or equal one of the specific impairments

set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?

(4) Is the person unable to perform his or her former occupation?

(5) Is the person unable to perform any other work within the economy?

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.”

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).3

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The standard of review of the Commissioner’s decision is a limited one. This court

must find the Commissioner’s decision conclusive if it is supported by substantial evidence.

42 U.S.C. § 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). “Substantial

evidence is more than a scintilla, but less than a preponderance. It is such relevant evidence

as a reasonable person would accept as adequate to support a conclusion.” Richardson v.

Perales, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of the

record which support the decision of the ALJ but instead must view the record in its entirety

and take account of evidence which detracts from the evidence relied on by the ALJ.

Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986). 

[The court must] . . . scrutinize the record in its entirety to determine the

reasonableness of the [Commissioner’s] . . . factual findings . . . No similar

presumption of validity attaches to the [Commissioner’s] . . . legal conclusions,

including determination of the proper standards to be applied in evaluating

claims.

Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).

III. Administrative Proceedings

Clark was 51 years old at the time of the hearing before the ALJ. (R. 273.) He is a high

school graduate. (Id.) Clark’s prior work experience includes working as a quality assurance

inspector, assistant construction supervisor, and a ventilation mechanic. (R. 104.) Clark

alleges that he became disabled on April 11, 2003, due to back pain, hearing loss, posttraumatic stress disorder (“PTSD”), and knee and hip problems. (R. 94, 275, 277, 280-81.)

Following the hearing, the ALJ concluded that Clark suffers from severe impairments of

status post discectomies and fusion of the low back, tinnitus vs. bilateral high frequency

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hearing loss, and coronary artery disease. (R. 40.) He also determined that Clark suffers from

non-severe impairments of high blood pressure, allergic rhinitis, gastroesophageal reflux

disease, obesity, knee problems, and PTSD. (Id.) The ALJ found that Clark would be unable

to return to his past relevant work. (R. 56.) In addition, the ALJ concluded that Clark

retained the residual functional capacity to perform a wide range of sedentary work. (Id.)

Accordingly, the ALJ concluded that Clark is not disabled. (Id.)

IV. The Plaintiff’s Claims

As stated by Clark, he presents the following issues for the court’s review:

1. Whether the ALJ’s finding that Clark’s PTSD and depression are

non-severe is based on substantial evidence.

2. Whether the ALJ’s RFC finding is based on substantial evidence.

3. Whether the Appeals Council committed reversible error in

failing to remand this matter to the ALJ for consideration of the

report of Keith G. Venderzyl, M.D.

(Doc. # 7 at 5-6.)

V. Discussion

Clark raises several issues and arguments related to this court’s ultimate inquiry of

whether the Commissioner’s disability decision is supported by the proper legal standards and

by substantial evidence. See Bridges v. Bowen, 815 F.2d 622 (11th Cir. 1987). However, the

court pretermits discussion of Clark’s specific arguments because the court concludes that the

ALJ erred as a matter of law, and, thus, this case is due to be remanded for further

proceedings.

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When deciding whether Clark’s PTSD was a non-severe impairment at step two of the

sequential evaluation, the ALJ determined that he was “not convinced that the claimant’s

PTSD has resulted in significant work-related limitations for a period of 12 continuous

months during the period under adjudication.” (R. 43.) The ALJ thus failed to apply the

correct severity standard. An impairment is not severe if it is a slight abnormality which has

such a minimal effect on the individual that it would not be expected to interfere with the

individual’s ability to work, irrespective of age, education, or work experience. See McDaniel

v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986); Brady v. Heckler, 724 F.2d 914, 920 (11th Cir.

1984). The application of a severity standard that is greater than de minimis is invalid under

the terms of the Social Security Act. See Stratton v. Bowen, 827 F.2d 1447, 1453 (11th Cir.

1987) (determining that ALJ’s determination that the claimant did not “have any impairment

or impairments which significantly limited [his] ability to perform basic work-related

functions” was an “overly stringent interpretation of the threshold severity requirement.”).

The ALJ’s determination that Clark’s condition did not result in “significant work-related

limitations” was an incorrect application of the severity standard. 

Furthermore, the court cannot conclude that the ALJ’s determination that Clark’s

PTSD did not meet the Commissioner’s twelve-month durational requirement, as set forth in

20 C.F.R. § 404.1505(a), is supported by substantial evidence. The record clearly

demonstrates that Clark suffered from this psychological condition from as early as October

2002 until April 2004. For example, the Department of Veterans Affairs determined that,

based on a review of Clark’s medical records and other reports, Clark was entitled to a

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 It is likewise clear that the ALJ addressed Clark’s PTSD and depression jointly, as if both illnesses

are one and the same; however, PTSD and depression are separate and distinct mental conditions. The ALJ

must consider every impairment alleged by Clark and determine whether the alleged impairments are

sufficiently severe - either singularly or in combination - to create a disability. See Gibson v. Heckler, 779

F.2d 619, 623 (11th Cir. 1986). 

6

“[s]ervice connection for posttraumatic stress disorder with an evaluation of 30 percent

effective October 7, 2002.” (R. 169-70.) In addition, on March 18, 2003, Surya Rao

Mudragada, a Veterans Administration psychiatrist, conducted an initial evaluation of Clark

and determined that Clark suffered from moderate PTSD. (R. 198.) Medical evidence also

indicates that Clark’s mental condition was chronic. For example, on March 15, 2004, Malissa

H. Williams, a certified registered nurse practitioner, conducted a psychological evaluation

of Clark, assessing that he suffered from PTSD and “chronicity of disorder.” (R. 208.) On

April 15, 2004, Jose L. Garrido, a psychiatrist, also conducted an examination and assessed

that Clark suffered from PTSD and “chronicity of disorder.” (R. 201.) 

The ALJ erroneously relied on one entry from Dr. Garrido’s April 15, 2004, notes to

conclude that Clark’s PTSD did not meet the twelve-month durational limitation.

Specifically, the ALJ concluded that Clark’s “Zoloft was increased to 100 milligrams at that

time” and that “[i]t is significant to note that although the assessment of the claimant’s

symptomatology apparently increased from ‘mild’ to ‘moderate’ for a brief period in March

2004, no evidence has been presented through the date of this decision to show that the

claimant’s PTSD and depression have failed to respond appropriately to the increase in his

medication.” (R. 45.) In doing so, the ALJ substituted his judgment for that of the medical

specialists.4

 This he cannot do. See Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir.

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 (R. 209) 

7

1982). The ALJ is not free to simply ignore medical evidence, nor may the Commissioner

pick and choose between the records selecting those portions which support his ultimate

conclusion.

More importantly, the court concludes that the ALJ failed to fully develop the record

regarding Clark’s mental condition. Specifically, the ALJ failed to consider whether

additional medical evidence concerning Clark’s treatment for PTSD was necessary,

particularly in light of evidence demonstrating that he suffered from a chronic mental

condition. It is error for the ALJ to fail to obtain additional testing or otherwise develop the

evidence, if that information is necessary to make an informed decision. See Holladay v.

Bowen, 848 F.2d 1206, 1209 (11th Cir. 1988). While the burden is on Clark to submit

evidence establishing disability, the circumstances of this case demand that the ALJ take

additional steps to see that the record is fully developed. Although the nurse practitioner’s

notes from April 15, 2004, indicate that she had “given Atlanta material to get involved in the

DCS PTSD program,”5

 the ALJ did failed to consider whether Clark sought additional

treatment in a PTSD program. See generally Baker v. Bowen, 886 F.2d 289, 292 (10th Cir.

1989) (failure to obtain x-rays particularly a problem when claimant is complaining of

arthritis, a disease commonly diagnosed by x-rays); Smith v. Apfel, 231 F.3d 433, 437 (7th Cir.

2000) (“fail to see how the ALJ could have properly assessed the extent of arthritis without

`updated x-rays”). In addition, the ALJ failed to order additional testing with respect to

Clark’s mental health prior to denying his application for benefits. Pursuant to 20 C.F.R. §

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In Sneed v. Barnhart, – F.3d –, 2006 WL 3770655 (11th Cir. December 22, 2006), the court noted

the holding in McCall but also referred to the Third Circuit’s opinion in Plummer v. Apfel, 186 F.3d 422, 432

(3d Cir. 1999) in which the court notes as follows:

Because 42 U.S.C. § 421(d), which covers hearings before an ALJ, is excluded from §

421(h)'s purview, an ALJ is not required to employ the assistance of a qualified psychiatrist

or psychologist in making an initial determination of mental impairment. Instead, the

Commissioner's regulations provide an ALJ with greater flexibility than other hearing

officers. At the initial and reconsideration levels, a PRT form-outlining the steps of the §

404.1520a procedure-must be completed and signed by a medical consultant. 20 C.F.R. §

404.1520a(d)(1). However, the ALJ has several options available: she can complete and sign

the document without the assistance of a medical adviser; she can call a medical adviser for

assistance in completing the document; or, if new evidence is received or the issue of mental

impairments arises for the first time, she can remand the case for completion of the document

and a new determination. 20 C.F.R. § 404.1520a(d)(1)(i-iii). In summary, the regulations

allow the ALJ to remand for further review, to proceed with a determination without the

assistance of a medical adviser, or to call a medical adviser for assistance with the case. 

8

416.917, the ALJ is required to order additional medical tests when the claimant’s medical

sources do not give sufficient medical evidence to make a determination as to disability. Yet,

despite the lack of certain medical evidence and without securing a consultative exam, the

Commissioner determined that Clark’s mental condition did not constitute a severe mental

impairment. The court therefore concludes that the ALJ inadequately developed the record

in this case by failing to secure additional evaluations or medical records regarding Clark’s

mental health. The court further concludes that the Commissioner could not make an

informed decision based on the record, and thus, the Commissioner’s decision is not

supported by substantial evidence.

Finally, the court notes that in this case no qualified person completed a Psychiatric

Review Technique Form (PTRF) at the initial administrative stages of review, and the ALJ

did not order a consultative psychiatric or psychological examination. In this circuit this was

error. See 42 U.S.C. § 421(h); McCall v. Bowen, 846 F.2d 1317, 1320 (11th Cir. 1988).6

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Sneed thus suggests that McCall’s seemingly blanket requirement that an ALJ must make every reasonable

effort to obtain the opinion of a qualified psychiatrist or psychologist may not be consistent with the applicable

statutes. However, McCall remains the law of this circuit. Moreover, for all of the reasons set forth in this

opinion, the ALJ’s determination in this case was erroneous as a matter of law.

9

Accordingly, the court will order that this case be remanded to the Commissioner for

further proceedings consistent with this opinion. A separate final judgment will be entered.

Done this 15th day of March, 2007.

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

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