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McKellar v. Colvin

United States District Court, D. Colorado

March 15, 2017



          Craig B. Shaffer United States Magistrate Judge

         This action comes before the court pursuant to Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33 and 1381-83(c) for review of the Commissioner of Social Security's final decision denying Roslyn K. McKellar's (“Plaintiff”) application for Disabled Adult Child Benefits and Supplemental Security Income. Pursuant to the Order of Reference dated April 20, 2016, this civil action was referred to the Magistrate Judge pursuant to Title 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and D.C.Colo.LCivR 72.2. See Docs. 19, 28, 29. The court has carefully considered the Complaint (filed November 16, 2015) (Doc. 1), Plaintiff's Opening Brief (filed March 15, 2016) (Doc. 21), Defendant's Response Brief (filed April 6, 2016) (Doc. 26), Plaintiff's Reply (filed April 18, 2016) (Doc. 27), the entire case file, the administrative record, and applicable case law. For the following reasons, the court affirms the Commissioner's decision.


         In August 2012, Plaintiff filed an application for disabled adult child benefits and supplemental security income, alleging a disability onset date of January 2, 2005. (See Social Security Administrative Record (hereinafter “AR”) at 18, 160-61, 162-71). Plaintiff alleges she became disabled due to symptoms related to asthma, morbid obesity, an abnormal spine, anxiety, hypertension, metrorrhagia, polycystic ovaries, and dysmenorrhea. Id. at 198. Plaintiff was born on January 1, 1987, and was 18 years old on the date of her alleged disability onset. Id. at 160. She completed the eighth grade, after which she was apparently home-schooled. She testified that she never received her GED; however, the record also indicates that Plaintiff has completed some college coursework. Id. at 41, 52, 327 (stating that Plaintiff was a freshman in college). She has never been employed. Id. at 41, 199. After her initial application was denied, Plaintiff requested a hearing, which was held on May 21, 2014, before an Administrative Law Judge (“ALJ”). Id. at 104, 35-75.

         Plaintiff was represented by her father at the hearing[1] and testified that she suffered from social anxiety, panic disorders, and depression. Id. at 42. She estimated that she had three to four panic attacks per month. Id. at 43. Plaintiff also testified that her social phobia kept her from leaving the house and made her nervous to talk to people. Id. at 44. She said that other than going to the grocery store with her mother, she did not go to church or meetings of any kind, she did not socialize with any friends or neighbors, and she never went anywhere alone. Id. at 44-46. Plaintiff also stated that when she and her parents would dine out, she would typically get her food in a to-go container and sit in the car. Id. With respect to her depression, Plaintiff testified that she would cry for no reason and that she would often stay in bed. Id. at 46.

         Plaintiff also testified regarding her physical ailments, which included asthma, excessive menstrual bleeding and cramping, and back pain. Id. at 42. She reported that even with asthma medication, she still had trouble breathing and that she would get tired after only minimal movement. Id. Regarding her back pain, Plaintiff testified that the pain was constant and could be caused by anything. Id. at 47. According to Plaintiff, her pain could be so bad that it would cause her to stay in bed all day. Id. She further stated that she could only walk a few blocks and that she could tolerate standing for 10 to 15 minutes at a time. Id. at 50. She also said that she rarely lifted objects heavier than a remote control or a book, and that the only housework she did was washing a few dishes or wiping out the sink. Id. at 51.

         A vocational expert (“VE”) also testified at the hearing. See Id. at 57. The ALJ asked the VE to assume hypothetically that an individual similar to Plaintiff had the following limitations: (1) lifting 10 pounds frequently, 20 pounds occasionally; (2) standing or walking for up to six hours out of an eight hour day; (3) sitting for up to six hours out of an eight hour day; (4) can climb stairs, but would be limited to occasional climbing of ladders; (5) occasionally stoop and crouch; (6) avoid concentrated exposure to vibration; (7) avoid even moderate exposure to fumes, odors, dust, gases, and poor ventilation; (8) could work in a relatively clean environmental work setting; and (9) must avoid concentrated exposure to hazards such as machinery and heights. Id. at 58.

         In response, the VE identified three “light” exertional jobs that someone with those limitations could perform and testified about the number of each of those positions in the regional and national economy: (1) small products assembler (1, 460 Colorado; 118, 000[2] National); (2) electronics worker (830 Colorado; 86, 000 National); and (3) library clerk (230 Colorado; 15, 000 National). Id. at 59-60.

         The ALJ then posed a second hypothetical in which she asked the VE to assume that an individual - with all of the previous limitations - would be limited to sedentary exertional work. Id. at 60. The VE testified that, although the Dictionary of Occupational Titles did not recognize two of the previous jobs as sedentary, they actually were. Id. at 59-60. Under this new hypothetical, the number of small products assemblers would be eroded to 35, 400 (National) and 440 (Colorado). Id. at 60. The VE further testified that the number of electronics workers would be eroded to 60, 000 (National) and 580 (Colorado). Id. The library clerk position, however, would be eliminated. Id. The VE also identified two new “sedentary” jobs that would satisfy the ALJ's second hypothetical: (1) call out operator (185 Colorado; 11, 600 National); and (2) drive-in order clerk (290 Colorado; 26, 000 National). Id. at 62.

         In the third hypothetical, the ALJ added a limitation that the individual would be limited to occasional interaction with co-workers, the public, and supervisors. Id. at 62. Based on this additional limitation, the VE eliminated the call out operator position as well as the drive-in order clerk position. Id. at 63. The ALJ then asked whether any of the surviving jobs would be affected by restricting the individual to only minimal work with co-workers, the public, and supervisors. Id. The VE testified that any erosion would be negligible. Id.

         The ALJ next asked the VE to assume that the individual would be limited to a job where she (1) would need the opportunity to sit or stand at will during the course of an eight-hour day; (2) would be able to sit for up to 30 to 45 minutes at one time; (3) could stand for 15 to 20 minutes at one time; and (4) could walk two or three blocks. Id. at 64. The VE stated that the only job available would be a surveillance system monitor (230 Colorado; 18, 000 National). Id. at 64-65. When asked to assume that the limitation on social interaction was eliminated, the VE testified that such an individual could perform the aforementioned positions of call out operator and drive-in order clerk.[3] Id. at 65.

         The ALJ then posited an individual who, under the previous limitations, would be in bed up to seven days every other month due to menstrual problems. Id. at 66. The VE testified that there was no competitive employment compatible with those limitations. Id. The VE further testified that most employers would tolerate up three to four absences every other month. Id.

         On June 23, 2014, the ALJ issued his decision denying benefits. Id. at 15. The ALJ's opinion followed the five-step process outlined in the Social Security regulations.[4] At step one, the ALJ found that Plaintiff had not engaged in substantial gainful employment since January 2, 2005, the alleged onset date. Id. at 20. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: asthma, kyphosis and scoliosis of the back, obesity, menorrhagia, dysmenorrhea, and polycystic ovaries. Id. at 20. At step three, the ALJ found that Plaintiff did not have an impairment that met or medically equaled a listed impairment. Id. at 23-24.

         The ALJ then assessed the following residual functional capacity (“RFC”):

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity (RFC) to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) with the following limitations: the claimant can lift and/or [sic] up to 10 pounds occasionally and less than 10 pounds frequently; she can stand and/or walk about 2 hours in an 8-hour workday; she can sit for about 6 hours in an 8-hour workday; she can climb stairs, but is limited to occasional climbing of ladders; she can occasionally stoop and crouch; she must avoid concentrated exposure to vibrations; she could work in a relatively clean environmental work setting, but she should avoid even moderate exposure to fumes, odors, dusts, gases, and poor ventilation; she should avoid concentrated exposure to hazards such as dangerous machinery and unprotected heights.

Id. at 24. In fashioning Plaintiff's RFC, the ALJ discussed much of the medical evidence in Plaintiff's medical records. The ALJ observed that many of Plaintiff's medical records were inconsistent with her claims regarding the severity of the limitations resulting from her impairments. Id. at 25-27. In addition, the ALJ credited the opinion of Dr. Howard Horsley, a state agency consultant, who reviewed Plaintiff's medical records and prepared a physical RFC assessment. Id. at 26. Dr. Horsley concluded that, despite Plaintiff's impairments, she was capable of performing full-time sedentary work. Id. at 26, 434-41. The ALJ also found Plaintiff's statements regarding the intensity, persistence, and limiting effects of her symptoms “not entirely credible.” Id. at 25.

         At step four, the ALJ noted that Plaintiff had no past relevant work. Id. at 27. At step five, the ALJ found: “[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.” Id. Specifically, the ALJ found that Plaintiff could work as a small products assembler, an electronics worker, a call out operator, and a drive-in order clerk. Id. at 28. The ALJ also noted that even if Plaintiff needed to alternate sitting and standing throughout the day, she would still be able to perform the occupation of surveillance system monitor. Id.

         Because there were a significant number of jobs that Plaintiff could perform, the ALJ found that Plaintiff did not meet the definition of “disabled” for purposes of the Social Security Act. Id. Accordingly, Plaintiff's application for disability benefits was denied.

         Following the ALJ's decision, Plaintiff's father requested review and submitted additional evidence. Id. at 9-14. The Appeals Council denied the request for review on September 14, 2015. Id. at 1-7. The decision of the ALJ then became the final decision of the Commissioner. 20 C.F.R. § 404.981; Nelson v. Sullivan, 992 F.2d 1118, 1119 (10th Cir. 1993) (citation omitted). Plaintiff filed this action on November 16, 2015. The court has jurisdiction to review the final decision of the Commissioner. 42 U.S.C. § 405(g).


         In reviewing the Commissioner's final decision, the court is limited to determining whether the decision adheres to applicable legal standards and is supported by substantial evidence in the record as a whole. Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (citation omitted); Angel v. Barnhart,329 F.3d 1208, 1209 (10th Cir. 2003). The court may not reverse an ALJ simply because it may have reached a different result based on the record; the question instead is whether there is substantial evidence showing that the ALJ was justified in his decision. See Ellison v. Sullivan,929 F.2d 534, 536 (10th Cir. 1990). “Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Flaherty v. Astrue,515 F.3d 1067, 1070 (10th Cir. 2007) (internal citation omitted). Moreover, “[e]vidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan,966 F.2d 1371, 1374 (10th Cir. 1992) (internal citation omitted). The court will not “reweigh the evidence or retry the case, ” but must “meticulously examine the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if ...

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