Scott v. Social Security Administration

Filing 18

ORDER dismissing the Complaint with prejudice. Signed by Magistrate Judge Beth Deere on 3/30/2015. (jak)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION SHAMEKA SCOTT V. PLAINTIFF NO. 3:14CV91-BD CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration DEFENDANT ORDER Oral argument hearing was held on March 19, 2015. Following a review of the record and arguments presented by counsel, the Court announced its findings of fact and conclusions of law, affirming the Commissioner’s decision. Based on the record as a whole, there was sufficient evidence to support the decision that Ms. Scott could perform a reduced range of light work, in spite of her severe and non-severe impairments.1 An excerpted transcript of the Court’s findings and conclusions is attached. Accordingly, the Complaint is hereby dismissed, with prejudice. So ordered, this 30th day of March, 2015. ___________________________________ UNITED STATES MAGISTRATE JUDGE 1 The Court considered whether the Commissioner erred in finding that Ms. Scott could perform a reduced range of light work. The one reference to sedentary work at page four of the transcript was an unintended misstatement. Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 1 of 14 1 1 2 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION 3 4 5 6 7 8 SHAMEKA SCOTT, . . PLAINTIFF, . . VS. . . SOCIAL SECURITY ADMINISTRATION,. . DEFENDANT. . . . . . . . . . . . . . . . . . Docket No. 3:14-CV-00091-BD Little Rock, Arkansas March 19, 2015 9:57 A.M. 9 10 11 TRANSCRIPT OF 12 EXCERPTED ORAL FINDINGS OF FACT AND CONCLUSIONS OF LAW 13 IN ORAL ARGUMENT HEARING BY TELEPHONE 14 BEFORE THE HONORABLE BETH DEERE 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 ELECTRONIC COURT RECORDER-OPERATOR: Ms. Suzy Flippen 19 20 21 Transcription Service: Robin Warbritton Post Office Box 262 Vilonia, AR 72173 (501) 796-6560 22 23 24 PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING. 25 TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE. Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 2 of 14 2 1 APPEARANCES: 2 For the Plaintiff: Mr. Greg Wallace Bartels Law Firm Post Office Box 1640 Jonesboro, AR 72403-1640 For the Defendant: Mr. Eric B. Tucker Social Security Administration Office of the General Counsel 1301 Young Street Suite A702 Dallas, TX 75202-5433 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 3 of 14 3 P R O C E E D I N G S 1 2 (Call to order of the Court.) * * * 3 THE COURT: 4 All right. I have spent considerable 5 time on the medical records in this case because they are 6 pretty extensive. 7 the case right now than I will at any other time, so I'm 8 prepared to make findings of fact and conclusion -- and reach 9 conclusions, applying the law to the facts at this time. And I think that I probably know more about And what I will do is -- we're still trying to figure 10 11 out the procedure, the most efficient procedure for doing 12 this. 13 those conclusions orally here on the record. 14 that transcribed. 15 an order with the transcript attached, along with a judgment. 16 What I will do is, is make those findings and reach We will have And in a week or so, I will docket that as So, here are my findings in the case of Shameka 17 Nicole Scott v. Carolyn Colvin, Acting Commissioner of the 18 Social Security Administration, case number 3:14-CV-91 here in 19 the Eastern District of Arkansas. 20 I find that jurisdiction is proper. Ms. Scott has 21 cleared all procedural hurdles. She filed for disability and 22 SSI benefits November 7th, 2011, alleging an onset date of 23 August of 2011. 24 upon reconsideration. 25 had two hearings; one on February 22nd, one on May 10th, 2013, Her applications were denied initially and She asked for a hearing. She actually Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 4 of 14 4 1 before an Administrative Law Judge. 2 appeared at the second hearing because she alleged not only 3 physical impairments, but also depression, which would be an 4 non-exertional impairment. On June 13th, 2013, the ALJ issued an unfavorable 5 6 A vocational expert decision. The appeals counsel denied her request for review. Ms. Scott then filed this appeal on April 14, 2014. 7 8 And on April 17th of 2014, the parties consented to the 9 jurisdiction of this Court. Ms. Scott, I believe, was 27 years old at the time of 10 11 her hearings. She lived with her three children, who were all 12 minors; a one year old, I think a seven year old, and a nine 13 year old. 14 The standard in this appeal is whether there's legal 15 error and whether there's substantial evidence to support the 16 Commissioner's finding that Ms. Scott had the residual 17 functional capacity to perform a reduced range of sedentary 18 work in spite of her severe impairments. 19 The ALJ, at step two, found that Ms. Scott had 20 several severe impairments; diabetes, diabetic neuropathy, 21 carpal tunnel syndrome, hypertension, and depression. 22 In her brief, Ms. Scott alleges that the ALJ erred in 23 not finding her back pain to be a severe impairment. But 24 that, of course, is not reversible error because Ms. Scott 25 cleared the step two hurdle, in that the ALJ did find other Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 5 of 14 5 1 severe impairments and did state in his opinion that he 2 considered all impairments later in the analysis, including 3 non-severe impairments. 4 taken. So that -- that point is not well Her argument also is that the ALJ overestimated her 5 6 residual functional capacity because the -- after finding that 7 her carpal tunnel syndrome was a severe impairment, the 8 argument is that there were no restrictions in the residual 9 functional capacity finding to account for her carpal tunnel 10 11 syndrome. She also argues that her diabetic neuropathy was not 12 adequately considered in the ALJ's finding that she could do a 13 reduced range of light work because light work includes a -- a 14 significant amount of walking that would be precluded by her 15 diabetic neuropathy. 16 Those are her arguments. Many of the -- the medical records in this case are 17 rather voluminous, almost running to 900 pages. Many of the 18 records predate her alleged onset date of August 30, 2011. 19 And that includes her diagnosis of carpal tunnel syndrome, 20 that I believe was made maybe some time in 2008. 21 indicate that at the -- at the end of 2009, in December of 22 2009, the doctor that she saw for carpal tunnel syndrome 23 indicated or prescribed conservative therapy with wrist braces 24 and pain for the -- for the carpal tunnel syndrome and 25 indicated that if that was not sufficient, he would refer her Records Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 6 of 14 6 1 for surgical evaluation. There is no indication that she was 2 ever referred for a nerve conduction study to confirm the 3 carpal tunnel -- carpal tunnel syndrome diagnosis or -- or 4 that she ever had such tests. Nonetheless, the ALJ did find it to be a severe 5 6 impairment, which, of course, by definition, means that it had 7 more than a minimal effect on her ability to perform work 8 activities. When I reviewed the medical records from the time of 9 10 her alleged onset date, which would have been August of 2011 11 -- again, there are many, many medical records. 12 and I will run through some of these, many of the records 13 don't relate to -- to her alleged impairments, but many also 14 do. 15 to be her uncontrolled diabetes. For example, Her primary problem, from reviewing the records, appears 16 In other words, her blood sugar levels remain high 17 throughout the relevant period, beginning in August of 2011 18 when she went to the doctor for back pain and reported a 19 history of carpal tunnel syndrome and elevated blood sugar 20 levels. 21 that -- at that visit, noted her poor compliance, and 22 attributed her back problems to be conditioning and muscle 23 strain, and encouraged her to exercise. 24 she didn't keep appointments relating to colposcopy, which is 25 a procedure unrelated to any of her alleged impairments. But even as early of August of 2011, the doctor in He also noted that Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 7 of 14 7 She was also evaluated for physical therapy, didn't 1 2 keep that appointment allegedly because she didn't have the 3 money. 4 -- whether finances actually kept her from complying with 5 medical treatment. But the evidence is -- is unclear about her financial November, she was back at the ER for blood sugar 6 7 issues. 8 physician, but there is no evidence that she did. 9 She was told to follow up with her primary care She returned to the doctor in December of 20 -- the 10 end of December of 2011. 11 returned to the Emergency Room, again for elevated blood 12 sugar, but she had not ever seen her primary care physician. 13 I say returned to the doctor, she On December 29th of 2011, she did see her primary 14 care doctor, but admitted that she had been off insulin 15 September -- since September of that year. 16 Again, I'll discuss later about her allegation that 17 she didn't comply with taking medications because of lack of 18 financial resources. 19 February of 2012, two months later, she went to her 20 primary care doctor for back pain, but her primary care doctor 21 noted that she was not taking medications for carpal tunnel 22 syndrome because it made her drowsy, and he advised her to 23 avoid sitting for long periods and to do more stretching. 24 25 She goes back a month later, in March of 2012, again with allegations of back pain and uncontrolled blood sugar. Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 8 of 14 8 1 Again the next month, April of 2012, again for back pain and 2 blood sugar level. 3 She goes back in May, the next month, back to her 4 primary care doctor, who noted that she had multiple vague 5 complaints but no real abnormalities on physical examination. 6 The doctor -- oh, Ms. -- I guess Ms. Scott herself noted that 7 she was not physically active and that most of her -- the 8 doctor noted that most of the problems were due to poorly 9 controlled diabetes. She went back to the doctor two months later, again 10 11 with back pain. 12 ruptured ovarian cyst, but apparently that was not the case, 13 because when she went for an ultrasound, that diagnosis was 14 rejected. 15 There was a speculation it might be a She went back for what was possibly a toenail fungus 16 later that month, and at that appointment admitted that she 17 did not follow a diet as recommended and did not take her 18 medications as prescribed. 19 She went -- returned to the doctor in November of 20 2012, again with elevated blood sugar, complaining of 21 depression, nausea, and pain. 22 antidepressant. 23 She was given an Returned a couple of weeks later complaining of pain, 24 headaches, nausea, neuropathy, pain in her toe, and 25 depression. Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 9 of 14 9 Returned the next month to the ER, where she was 1 2 diagnosed with a virus. Later that month, she went to her 3 primary care doctor with allegations of shoulder pain, 4 insomnia, shortness of breath. 5 uncontrolled diabetes, bursitis, and depression. The doctor diagnosed The next month, she did see a counselor for the 6 7 depression, was given a Global Assessment Functioning Score of 8 40, which is actually quite low. She went back the next week, February of 2013, to the 9 10 ER, alleging weakness, shoulder plain [sic] -- shoulder pain, 11 and with elevated blood sugar levels. She returned to the doctor April 1st, alleging back 12 13 and shoulder pain. Went to her primary care doctor. 14 Admitted not going to physical therapy as prescribed. She was back at the ER in April of 2013, alleging hip 15 16 pain and again uncontrolled blood sugar. 17 noted in the ER that she was -- did not appear to be acutely 18 ill. 19 returned to her primary care doctor, admitted not taking her 20 medications appropriately. 21 The doctor, however, I think that's when she had pancreatitis. When she So, I guess I've gone through this to illustrate she 22 has a consistent history of noncompliance taking her 23 medications, attending therapy, attending counseling. 24 noncompliant with the diabetic diet. 25 exercise recommendations. She is She doesn't follow And the medical records actually Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 10 of 14 10 1 are replete with examples of this. Her reason for not taking her medications, for not 2 3 following up with other recommended courses of treatment, is a 4 lack of money. 5 for many, many periods of time, is on Medicaid, and which 6 dispels the notion that money kept her from getting her 7 insulin or other medications that were prescribed. 8 fact, there is nothing in the record to show that she was ever 9 refused treatment because of a lack of money. But the record also shows that she, at least And, in And many, if 10 not most, of these records are from AHEC, which is a clinic 11 that is particularly for people with limited financial means. So, there is really not sufficient evidence to find 12 13 that a lack of funds can account for her -- for her 14 noncompliance. 15 the doctor noted that she was having family members bring in 16 food that was not on the diabetic diet that she was supposed 17 to be on. 18 And, in fact, on one of her hospital visits, So, the issue here is, really comes down to one of 19 credibility and whether the ALJ erred in discounting her 20 subjective complaints or subjective reports of her limitations 21 and her pain. 22 allegations and included -- included some restrictions in her 23 residual functional capacity to account for her subjective 24 allegations. 25 reviewing doctors based on Ms. Scott's testimony of her And so, the ALJ did credit her subjection And, in fact, gave little weight to the Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 11 of 14 11 1 subjective complaints. In addition, as I noted, the ALJ considered both her 2 3 severe and non-severe impairments when he limited her to a 4 reduced level of light work. The question then is whether the ALJ gave sufficient 5 6 reason for discounting the severity of Ms. Scott's complaints. 7 And I find that he did. 8 her subjective complaints. 9 medical evidence. He gave good reasons for discounting First, the lack of objective And while this alone is not enough to 10 discount subjective complaints, there -- there was never -- as 11 noted, there was never a nerve conduction study to establish 12 the severity of her carpal tunnel syndrome, and that's -- 13 that's just one example. 14 indicating mild or moderate evidence of -- to support her 15 subjective complaints. Many, many medical records In addition, the ALJ was -- properly considered her 16 17 lack of compliance in taking medications and abiding by her 18 diet. 19 that's not something that is dispositive, but it is relevant. 20 She had three minor children, although she did testify that 21 her sisters helped her with the one year old, but she also had 22 daughters, 7 and 9. 23 Also, her activities of daily living. And again, She took care of her own personal needs. She testified she didn't do much housework, or if she 24 did housework that it -- that it made her extremely tired. 25 But she did pay her own bills, handled her own money. She had Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 12 of 14 12 1 -- had achieved a GED certificate and had one year of college, 2 was able to get along with family and authority figures. 3 was able to drive and, in fact, owned her own car. 4 She The ALJ also considered some inconsistent statements. 5 There is some inconsistency, in that one place in the record 6 she says that she never smoked, and another place where she 7 was a reformed former smoker, and testimony that she didn't 8 drink at all versus that she drank one beer a week. 9 I'm going to ignore that. I mean, that's -- I don't 10 think that -- I don't think that that was a significant 11 inconsistency. 12 However, I do think there's an inconsistency in 13 blaming her noncompliance on a lack of funds, but regularly 14 using the services of AHEC, and the records that show that she 15 was on Medicaid for a significant period of time, and was 16 apparently on and off. 17 know why she was on Medicaid at some times and off on others. 18 And there is no explanation. I don't But, clearly, she was on Medicaid for some good 19 portion of the time. 20 that that's the reason she didn't take her insulin as 21 prescribed. 22 So, it's -- it's inconsistent to say So, all of these are legally sufficient reasons for 23 discounting Ms. Scott's subjective complaints of her symptoms. 24 And certainly, there is evidence supporting the plaintiff's 25 position, including the carpal tunnel syndrome and the -- the Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 13 of 14 13 1 lack of specific restrictions for that, and yet, the -- the 2 limit to a reduced range of light work was a consideration of 3 the carpal tunnel, in that there were lifting restrictions and 4 postural limits included in the residual functional capacity. 5 I'm not allowed to reverse because there's evidence 6 that would support the plaintiff's position. I'm obligated to 7 affirm the Commissioner if there is substantial evidence 8 viewing the record as a whole. 9 decision to deny Ms. Scott benefits is supported by more than And here, the Commissioner's 10 substantial evidence when you look at the record as a whole. 11 The Commissioner considered all of Ms. Scott's impairments, 12 both severe as -- and non-severe, and I find that the ALJ 13 committed no legal error that could justify reversal. 14 And those complete my findings and conclusions. 15 And again, I will have those transcribed and appended 16 to my order and a judgment to reflect that decision. 17 Is there anything further, Mr. Wallace? 18 MR. WALLACE: 19 THE COURT: 20 No, Your Honor. Yes. Thank you. Well, thank you. done an excellent job for your client. Again, you've 21 And, Mr. Tucker, thank you, as well. 22 And we're off the record. 23 MR. TUCKER: 24 MR. WALLACE: 25 Thank you, Your Honor. Thank you. (Adjournment at 10:43 a.m.) Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 14 of 14 14 1 ELECTRONIC SOUND RECORDING CERTIFICATION: 2 I, court approved transcriber, certify that the foregoing is a 3 correct transcript from the official electronic sound 4 recording of the proceedings in the above-entitled matter. 5 6 /s/Robin Warbritton Signature of Approved Transcriber 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Robin Warbritton Typed or Printed Name March 25, 2015 Date

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