United States District Court, D. Colorado
ROSLYN K. MCKELLAR, Plaintiff,
CAROLYN W. COLVIN, Defendant.
MEMORANDUM OPINION AND ORDER
B. Shaffer United States Magistrate Judge
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.
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
was represented by her father at the hearing 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
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.
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.
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 National); (2)
electronics worker (830 Colorado; 86, 000 National); and (3)
library clerk (230 Colorado; 15, 000 National). Id.
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.
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.
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. Id. at
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.
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. 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
then assessed the following residual functional capacity
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
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.
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
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
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).
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 ...