IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DAVID C. CLARKE, : 

: 

Plaintiff, : 

: 

v. : CIVIL ACTION 09-0685-M 

: 

MICHAEL J. ASTRUE, : 

Commissioner of : 

Social Security, : 

: 

Defendant. : 

MEMORANDUM OPINION AND ORDER

In this action under 42 U.S.C. §§ 405(g) and 1383(c)(3),

Plaintiff seeks judicial review of an adverse social security

ruling which denied claims for disability insurance benefits and

Supplemental Security Income (hereinafter SSI) (Docs. 1, 18). 

The parties filed written consent and this action has been

referred to the undersigned Magistrate Judge to conduct all

proceedings and order the entry of judgment in accordance with 28

U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 24). Oral argument

was waived in this action (Doc. 23). Upon consideration of the

administrative record and the memoranda of the parties, it is

ORDERED that the decision of the Commissioner be AFFIRMED and

that this action be DISMISSED. 

This Court is not free to reweigh the evidence or substitute

its judgment for that of the Secretary of Health and Human SerCase 1:09-cv-00685-M Document 25 Filed 05/25/10 Page 1 of 11
2

vices, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir.

1983), which must be supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). The substantial evidence test requires "that the decision under review be supported

by evidence sufficient to justify a reasoning mind in accepting

it; it is more than a scintilla, but less than a preponderance." 

Brady v. Heckler, 724 F.2d 914, 918 (11th Cir. 1984), quoting

Jones v. Schweiker, 551 F.Supp. 205 (D. Md. 1982).

At the time of the administrative hearing, Plaintiff was

forty years old, had completed a high school education (Tr. 31-

32), and had previous work experience as a saw hand with a

logging company (Tr. 32). In claiming benefits, Plaintiff

alleges disability due to pelvis fractures (Doc. 18 Fact Sheet).

The Plaintiff filed applications for disability insurance

benefits and SSI on January 30, 2007 (Tr. 96-113). Benefits were

denied following a hearing by an Administrative Law Judge (ALJ)

who determined that although he could not return to his past

relevant work, Clarke was capable of performing light work with a

sit/stand option (Tr. 14-25). Plaintiff requested review of the

hearing decision (Tr. 6-7) by the Appeals Council, but it was

denied (Tr. 1-5).

Plaintiff claims that the opinion of the ALJ is not

supported by substantial evidence. Specifically, Clarke alleges

that: (1) The ALJ did not properly consider his complaints of

Case 1:09-cv-00685-M Document 25 Filed 05/25/10 Page 2 of 11
3

pain; and (2) the ALJ improperly rejected his testimony

concerning his limitations and abilities (Doc. 18). Defendant

has responded to—and denies—these claims (Doc. 19). The relevant

medical evidence of record follows.

On April 27, 2006, Clarke was working when a tree fell on

him; he was admitted to the emergency room at Grove Hill Memorial

Hospital and transferred to the University of South Alabama

Medical Center for eight days of treatment; he was diagnosed to

have fractures of the left superior and inferior rami and

anterior column as well as a urethral transection (Tr. 223-255). 

Following surgical procedures, with no complications, Plaintiff

was transferred to Rotary Rehabilitation at Mobile Infirmary for

two weeks (Tr. 256-67). During the course of rehabilitation,

Clarke’s abilities changed as follows: supervision with eating

to independence; minimal assistance with grooming to modified

independence; total assistance with bathing, upper and lower body

dressing, and toileting to moderate assistance with bathing,

supervision with upper body dressing, and minimal assistance with

lower body dressing and toileting. Moderate assistance with bed

transfers remained at moderate assistance; Clarke progressed to

minimal assistance with toilet transfers. A the time of his

discharge, he was walking fifty feet with a rolling walker, with

non-weight bearing in the left lower extremity and a stand-by

attendant (Tr. 257). Plaintiff was discharged with a Foley

Case 1:09-cv-00685-M Document 25 Filed 05/25/10 Page 3 of 11
1Ultram is an analgesic “indicated for the management of moderate

to moderately severe pain.” Physician's Desk Reference 2218 (54th ed.

2000). 

2Mobic is a nonsteroidal anti-inflammatory drug used for the

relief of signs and symptoms of osteoarthritis and rheumatoid

arthritis. Physician's Desk Reference 855-57 (62nd ed. 2008). 

4

catheter still in place; he was in no apparent distress (Tr.

258). 

On June 23, 2006, Dr. Sudhakar Madanagopal, Orthopaedic

Surgeon at USAMC, saw Clarke in the clinic, who was complaining

of swelling in the left thigh and pelvis; the doctor noted that

Plaintiff would be admitted to the hospital to drain some of the

fluid which had collected (Tr. 304; see generally Tr. 288-306). 

Clarke was admitted to USAMC on June 28, 2006, for two nights,

for a Morrell-Lavell lesion of the left thigh which necessitated

an uncomplicated procedure (Tr. 268-80). He was discharged, on

crutches, and told not to put any weight on his left leg. 

Dr. Greer Megginson, Urologist, removed Plaintiff’s catheter

on July 13, 2006 (Tr. 318). After removal, Clarke had no

problems voiding, but complained of potency for which medications

were prescribed (Tr. 315-17, 324). 

On July 11, Dr. Madanagopal noted that Plaintiff had a

significant decrease in swelling of the left hip and was

neurovascularly intact in the left lower extremity; Clarke could

begin weight bearing as tolerated (Tr. 302). The doctor

prescribed Ultram1 and Mobic.2 On August 18, Madanagopal noted

Case 1:09-cv-00685-M Document 25 Filed 05/25/10 Page 4 of 11
3Naprosyn, or Naproxyn, “is a nonsteroidal anti-inflammatory drug

with analgesic and antipyretic properties” used, inter alia, for the

relief of mild to moderate pain. Physician's Desk Reference 2458 (52nd

ed. 1998).

5

that the lesion was completely settled down and that the fracture

was healing well; the doctor noted that it was time for Plaintiff

to begin weaning himself off of the crutches and that he could

return to sedentary work (Tr. 300). On September 22, the doctor

noted that Plaintiff’s gait was normal, but that he still had

weakness on his hip extension and flexion; Madanagopal was going

to send Clarke to a work hardening program to improve his

strength (Tr. 298). On November 3, the doctor noted good

progress with the program but that he still had several weeks of

strengthening; Naprosyn3 was prescribed. 

On November 21, 2006, Clarke underwent a physical work

performance evaluation by Ergo Science which determined that he

was capable of performing medium level work, as defined by the

Dictionary of Occupational Titles, for an eight-hour day (Tr.

395; see generally Tr. 395-404). On January 2, 2007, based on

this work evaluation, Dr. Madanagopal declared maximum medical

improvement, as of that date, and stated the following about

Plaintiff’s abilities:

[H]is walking ability is frequent, his

repeated squatting is frequent, his climbing

stairs is frequent and crawling ability

frequently, climbing ladder frequently. His

main restrictions are mainly in lifting,

Case 1:09-cv-00685-M Document 25 Filed 05/25/10 Page 5 of 11
6

carrying, pushing, and pulling. He is

probably able to occasionally lift up to 50

pounds and frequently lift up to 25 pounds

and carry up to 10 pounds. 

(Tr. 294). Plaintiff complained of left hip pain, for which he

was given a cortisone shot (Tr. 294). Clarke was given another

injection on February 13 which made him feel a lot better;

another prescription for Naprosyn was written (Tr. 289-91). On

March 30, the doctor noted that injections had helped with

Plaintiff’s trochanteric bursitis and that the pain had become

minimal; Ultram was prescribed and Clarke was released from the

clinic (Tr. 328). On October 9, 2007, Dr. Madanagopal noted that

Plaintiff had not returned to work because of his concerns for

pain; the doctor thought it best for Clarke to undergo another

functional capacity evaluation to determine his actual

restrictions (Tr. 326). 

A second physical work performance evaluation was completed

on October 25, 2007 by Ergo Science which, again, determined that

Plaintiff was capable of sustaining medium level work for an

eight-hour day (Tr. 413; see generally Tr. 413-21). The report

specifically stated that Clarke could do the following on an

occasional basis: lift forty-five pounds from the floor to his

waist; lift forty pounds from his waist to eye level; carry

forty-five pounds with two hands and thirty-five pounds with one

hand; push forty-six pounds, pull thirty-four pounds; work bent

Case 1:09-cv-00685-M Document 25 Filed 05/25/10 Page 6 of 11
7

over, either standing or stooping; squat or crouch; and climb a

ladder. On a frequent basis, Plaintiff could do the following: 

sit; work, while standing, with his arms over his head; climb;

repeatedly squat; walk; and perform repetitive trunk rotation,

while either standing or sitting. On a constant basis, Clarke

could stand or kneel (Tr. 415). It was noted that Plaintiff

completed the three-hour evaluation without any additional rest

periods (Tr. 420). It was further noted that Clarke self-limited

on greater than twenty percent of the tasks which was

inconsistent with his abilities (Tr. 421).

On March 27, 2008, Plaintiff was admitted to Mississippi

Baptist Medical Center for three days during which he underwent

an excision and primary anastomosis of the posterior urethral

stricture and posterior urethroplasty with SP tube placement and

cystoscopy (Tr. 478-93). 

On August 6, 2008, Huey Kidd, Doctor of Osteopathy, examined

Clarke who was alert and interactive; he was able to heel walk,

toe walk, bend and touch his toes, squat, and stand (Tr. 495-99). 

Plaintiff did have to hold on to the table to pull himself up. 

Deep tendon reflexes were intact throughout; he had full range of

motion of the upper and lower extremities and 5/5 strength. It

was Kidd’s opinion that Clarke had no limits in sitting and could

lift up to fifty pounds occasionally, twenty-five pounds

frequently, and ten pounds constantly; he could carry up to ten

Case 1:09-cv-00685-M Document 25 Filed 05/25/10 Page 7 of 11
8

pounds constantly. Plaintiff could constantly push or pull with

his arms, handle, finger, feel, talk, hear, and reach overhead;

he could occasionally push or pull with his legs, balance, stoop,

kneel, crouch, or crawl.

At the evidentiary hearing, Clarke testified that he has

back pain and numbness; his constant back pain necessitates that

he lie down on his right side (Tr. 34-35). His hip hurts daily,

goes numbs, and tingles; two cortisone shots had helped some (Tr.

35, 47). The pain interfered with his ability to concentrate

three days a week (Tr. 48). Plaintiff testified that he could

walk farther than a block, stand about five minutes, sit for

three minutes, lift a gallon of milk, climb twelve stairs, bend,

stoop, and squat (Tr. 38-40). He cooked and washed dishes (Tr.

40). A Vocational Expert (hereinafter VE) testified as to

various jobs a person, meeting certain hypothetical criterion,

could perform (Tr. 51-56).

The ALJ determined that Clarke had the residual functional

capacity fo perform light work, except that he would need to

alternate sitting or standing every one-to-two hours to relieve

pain (Tr. 19). In reaching this decision, the ALJ discounted

Plaintiff’s credibility, finding that his statements about his

limitations were inconsistent with the medical evidence (Tr. 22). 

The ALJ also gave significant evidentiary weight to the opinion

of Dr. Kidd (Tr. 22). The ALJ also found it “extremely

Case 1:09-cv-00685-M Document 25 Filed 05/25/10 Page 8 of 11
9

significant” that Clarke’s treating physician found that he could

return to work (Tr. 22). The ALJ relied on the VE’s testimony in

finding that Plaintiff could perform the jobs of cashier, gate

guard, and counter clerk (Tr. 24). 

Clarke has raised two claims in bringing this action, viz.,

that (1) the ALJ did not properly consider his complaints of pain

and (2) that the ALJ improperly rejected his testimony concerning

his limitations and abilities (Doc. 18). The Court will address

these two claims together.

The standard by which the Plaintiff's complaints of pain are

to be evaluated requires "(1) evidence of an underlying medical

condition and either (2) objective medical evidence that confirms

the severity of the alleged pain arising from that condition or

(3) that the objectively determined medical condition is of such

a severity that it can be reasonably expected to give rise to the

alleged pain." Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.

1991) (citing Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.

1986)). The Eleventh Circuit Court of Appeals has also held that

the determination of whether objective medical impairments could

reasonably be expected to produce the pain was a factual question

to be made by the Secretary and, therefore, "subject only to

limited review in the courts to ensure that the finding is

supported by substantial evidence." Hand v. Heckler, 761 F.2d

1545, 1549 (11th Cir.), vacated for rehearing en banc, 774 F.2d

Case 1:09-cv-00685-M Document 25 Filed 05/25/10 Page 9 of 11
10

428 (1985), reinstated sub nom. Hand v. Bowen, 793 F.2d 275 (11th

Cir. 1986). Furthermore, the Social Security regulations

specifically state the following:

statements about your pain or other symptoms

will not alone establish that you are

disabled; there must be medical signs and

laboratory findings which show that you have

a medical impairment(s) which could

reasonably be expected to produce the pain or

other symptoms alleged and which, when

considered with all of the other evidence

(including statements about the intensity and

persistence of your pain or other symptoms

which may reasonably be accepted as

consistent with the medical signs and

laboratory findings), would lead to a

conclusion that you are disabled. 

20 C.F.R.. 404.1529(a) (2009). 

Plaintiff’s claims are without merit. The objective medical

evidence demonstrates that although Clarke suffered a serious

injury, he recuperated for less than a full year before his

treating physician released him to go back to work. The

conclusions from two different work assessments were that

Plaintiff was capable of performing sustained medium work for an

eight-hour day. While the Plaintiff may still suffer some pain

and limitations from the accident, the Court finds substantial

support for the ALJ’s conclusions that they do not rise to the

extent expressed by Clarke.

Plaintiff has asserted that the ALJ erred in finding that he

had not been hospitalized since his injury (Doc. 18, p. 9; cf.

Case 1:09-cv-00685-M Document 25 Filed 05/25/10 Page 10 of 11
11

Tr. 23). While the ALJ did reach this conclusion, she has fairly 

summarized the medical evidence of record, including his

hospitalizations; this conclusion is, at most, harmless error.

Clarke also challenged the ALJ’s finding that his pain was

controlled by prescription and over-the-counter medications (Doc.

18, p. 9; Tr. 23). Plaintiff has not pointed to anything, other

than his own testimony, to rebut the ALJ’s conclusion. The Court

finds no merit in the argument.

Upon consideration of the entire record, the Court finds

"such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." Perales, 402 U.S. at 401. 

Therefore, it is ORDERED that the Secretary's decision be

AFFIRMED, see Fortenberry v. Harris, 612 F.2d 947, 950 (5th Cir.

1980), that this action be DISMISSED. Judgment will be entered

by separate Order. 

DONE this 21st day of May, 2010.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

Case 1:09-cv-00685-M Document 25 Filed 05/25/10 Page 11 of 11