Scott v. Social Security Administration

Filing 18

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

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

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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

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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

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SHAMEKA SCOTT,

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PLAINTIFF,
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VS.
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SOCIAL SECURITY ADMINISTRATION,.
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DEFENDANT.
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Docket No. 3:14-CV-00091-BD
Little Rock, Arkansas
March 19, 2015
9:57 A.M.

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TRANSCRIPT OF

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EXCERPTED ORAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

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IN ORAL ARGUMENT HEARING BY TELEPHONE

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BEFORE THE HONORABLE BETH DEERE

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UNITED STATES MAGISTRATE JUDGE

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ELECTRONIC COURT RECORDER-OPERATOR:

Ms. Suzy Flippen

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Transcription Service:

Robin Warbritton
Post Office Box 262
Vilonia, AR 72173
[phone]

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PROCEEDINGS RECORDED BY ELECTRONIC SOUND RECORDING.

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TRANSCRIPT PRODUCED BY TRANSCRIPTION SERVICE.

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APPEARANCES:

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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

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Case 3:14-cv-00091-BD Document 17 Filed 03/25/15 Page 3 of 14

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P R O C E E D I N G S

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(Call to order of the Court.)
* * *

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THE COURT:

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All right.

I have spent considerable

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time on the medical records in this case because they are

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pretty extensive.

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the case right now than I will at any other time, so I'm

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prepared to make findings of fact and conclusion -- and reach

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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

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out the procedure, the most efficient procedure for doing

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this.

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those conclusions orally here on the record.

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that transcribed.

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an order with the transcript attached, along with a judgment.

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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

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Nicole Scott v. Carolyn Colvin, Acting Commissioner of the

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Social Security Administration, case number 3:14-CV-91 here in

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the Eastern District of Arkansas.

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I find that jurisdiction is proper.

Ms. Scott has

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cleared all procedural hurdles.

She filed for disability and

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SSI benefits November 7th, 2011, alleging an onset date of

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August of 2011.

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upon reconsideration.

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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

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before an Administrative Law Judge.

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appeared at the second hearing because she alleged not only

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physical impairments, but also depression, which would be an

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non-exertional impairment.
On June 13th, 2013, the ALJ issued an unfavorable

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A vocational expert

decision.

The appeals counsel denied her request for review.
Ms. Scott then filed this appeal on April 14, 2014.

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And on April 17th of 2014, the parties consented to the

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jurisdiction of this Court.
Ms. Scott, I believe, was 27 years old at the time of

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her hearings.

She lived with her three children, who were all

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minors; a one year old, I think a seven year old, and a nine

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year old.

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The standard in this appeal is whether there's legal

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error and whether there's substantial evidence to support the

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Commissioner's finding that Ms. Scott had the residual

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functional capacity to perform a reduced range of sedentary

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work in spite of her severe impairments.

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The ALJ, at step two, found that Ms. Scott had

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several severe impairments; diabetes, diabetic neuropathy,

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carpal tunnel syndrome, hypertension, and depression.

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In her brief, Ms. Scott alleges that the ALJ erred in

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not finding her back pain to be a severe impairment.

But

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that, of course, is not reversible error because Ms. Scott

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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

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severe impairments and did state in his opinion that he

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considered all impairments later in the analysis, including

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non-severe impairments.

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taken.

So that -- that point is not well

Her argument also is that the ALJ overestimated her

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residual functional capacity because the -- after finding that

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her carpal tunnel syndrome was a severe impairment, the

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argument is that there were no restrictions in the residual

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functional capacity finding to account for her carpal tunnel

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syndrome.
She also argues that her diabetic neuropathy was not

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adequately considered in the ALJ's finding that she could do a

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reduced range of light work because light work includes a -- a

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significant amount of walking that would be precluded by her

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diabetic neuropathy.

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Those are her arguments.

Many of the -- the medical records in this case are

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rather voluminous, almost running to 900 pages.

Many of the

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records predate her alleged onset date of August 30, 2011.

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And that includes her diagnosis of carpal tunnel syndrome,

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that I believe was made maybe some time in 2008.

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indicate that at the -- at the end of 2009, in December of

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2009, the doctor that she saw for carpal tunnel syndrome

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indicated or prescribed conservative therapy with wrist braces

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and pain for the -- for the carpal tunnel syndrome and

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indicated that if that was not sufficient, he would refer her

Records

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for surgical evaluation.

There is no indication that she was

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ever referred for a nerve conduction study to confirm the

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carpal tunnel -- carpal tunnel syndrome diagnosis or -- or

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that she ever had such tests.
Nonetheless, the ALJ did find it to be a severe

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impairment, which, of course, by definition, means that it had

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more than a minimal effect on her ability to perform work

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activities.
When I reviewed the medical records from the time of

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her alleged onset date, which would have been August of 2011

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-- again, there are many, many medical records.

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and I will run through some of these, many of the records

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don't relate to -- to her alleged impairments, but many also

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do.

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to be her uncontrolled diabetes.

For example,

Her primary problem, from reviewing the records, appears

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In other words, her blood sugar levels remain high

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throughout the relevant period, beginning in August of 2011

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when she went to the doctor for back pain and reported a

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history of carpal tunnel syndrome and elevated blood sugar

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levels.

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that -- at that visit, noted her poor compliance, and

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attributed her back problems to be conditioning and muscle

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strain, and encouraged her to exercise.

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she didn't keep appointments relating to colposcopy, which is

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a procedure unrelated to any of her alleged impairments.

But even as early of August of 2011, the doctor in

He also noted that

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She was also evaluated for physical therapy, didn't

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keep that appointment allegedly because she didn't have the

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money.

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-- whether finances actually kept her from complying with

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medical treatment.

But the evidence is -- is unclear about her financial

November, she was back at the ER for blood sugar

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issues.

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physician, but there is no evidence that she did.

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She was told to follow up with her primary care

She returned to the doctor in December of 20 -- the

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end of December of 2011.

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returned to the Emergency Room, again for elevated blood

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sugar, but she had not ever seen her primary care physician.

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I say returned to the doctor, she

On December 29th of 2011, she did see her primary

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care doctor, but admitted that she had been off insulin

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September -- since September of that year.

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Again, I'll discuss later about her allegation that

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she didn't comply with taking medications because of lack of

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financial resources.

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February of 2012, two months later, she went to her

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primary care doctor for back pain, but her primary care doctor

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noted that she was not taking medications for carpal tunnel

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syndrome because it made her drowsy, and he advised her to

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avoid sitting for long periods and to do more stretching.

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She goes back a month later, in March of 2012, again
with allegations of back pain and uncontrolled blood sugar.

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Again the next month, April of 2012, again for back pain and

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blood sugar level.

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She goes back in May, the next month, back to her

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primary care doctor, who noted that she had multiple vague

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complaints but no real abnormalities on physical examination.

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The doctor -- oh, Ms. -- I guess Ms. Scott herself noted that

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she was not physically active and that most of her -- the

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doctor noted that most of the problems were due to poorly

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controlled diabetes.
She went back to the doctor two months later, again

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with back pain.

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ruptured ovarian cyst, but apparently that was not the case,

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because when she went for an ultrasound, that diagnosis was

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rejected.

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There was a speculation it might be a

She went back for what was possibly a toenail fungus

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later that month, and at that appointment admitted that she

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did not follow a diet as recommended and did not take her

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medications as prescribed.

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She went -- returned to the doctor in November of

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2012, again with elevated blood sugar, complaining of

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depression, nausea, and pain.

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antidepressant.

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She was given an

Returned a couple of weeks later complaining of pain,

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headaches, nausea, neuropathy, pain in her toe, and

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depression.

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Returned the next month to the ER, where she was

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diagnosed with a virus.

Later that month, she went to her

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primary care doctor with allegations of shoulder pain,

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insomnia, shortness of breath.

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uncontrolled diabetes, bursitis, and depression.

The doctor diagnosed

The next month, she did see a counselor for the

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depression, was given a Global Assessment Functioning Score of

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40, which is actually quite low.
She went back the next week, February of 2013, to the

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ER, alleging weakness, shoulder plain [sic] -- shoulder pain,

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and with elevated blood sugar levels.
She returned to the doctor April 1st, alleging back

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and shoulder pain.

Went to her primary care doctor.

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Admitted

not going to physical therapy as prescribed.
She was back at the ER in April of 2013, alleging hip

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pain and again uncontrolled blood sugar.

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noted in the ER that she was -- did not appear to be acutely

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ill.

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returned to her primary care doctor, admitted not taking her

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medications appropriately.

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The doctor, however,

I think that's when she had pancreatitis.

When she

So, I guess I've gone through this to illustrate she

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has a consistent history of noncompliance taking her

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medications, attending therapy, attending counseling.

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noncompliant with the diabetic diet.

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exercise recommendations.

She is

She doesn't follow

And the medical records actually

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are replete with examples of this.
Her reason for not taking her medications, for not

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following up with other recommended courses of treatment, is a

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lack of money.

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for many, many periods of time, is on Medicaid, and which

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dispels the notion that money kept her from getting her

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insulin or other medications that were prescribed.

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fact, there is nothing in the record to show that she was ever

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refused treatment because of a lack of money.

But the record also shows that she, at least

And, in

And many, if

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not most, of these records are from AHEC, which is a clinic

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that is particularly for people with limited financial means.
So, there is really not sufficient evidence to find

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that a lack of funds can account for her -- for her

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noncompliance.

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the doctor noted that she was having family members bring in

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food that was not on the diabetic diet that she was supposed

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to be on.

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And, in fact, on one of her hospital visits,

So, the issue here is, really comes down to one of

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credibility and whether the ALJ erred in discounting her

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subjective complaints or subjective reports of her limitations

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and her pain.

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allegations and included -- included some restrictions in her

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residual functional capacity to account for her subjective

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allegations.

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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

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subjective complaints.
In addition, as I noted, the ALJ considered both her

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severe and non-severe impairments when he limited her to a

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reduced level of light work.
The question then is whether the ALJ gave sufficient

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reason for discounting the severity of Ms. Scott's complaints.

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And I find that he did.

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her subjective complaints.

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medical evidence.

He gave good reasons for discounting
First, the lack of objective

And while this alone is not enough to

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discount subjective complaints, there -- there was never -- as

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noted, there was never a nerve conduction study to establish

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the severity of her carpal tunnel syndrome, and that's --

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that's just one example.

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indicating mild or moderate evidence of -- to support her

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subjective complaints.

Many, many medical records

In addition, the ALJ was -- properly considered her

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lack of compliance in taking medications and abiding by her

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diet.

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that's not something that is dispositive, but it is relevant.

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She had three minor children, although she did testify that

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her sisters helped her with the one year old, but she also had

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daughters, 7 and 9.

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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

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did housework that it -- that it made her extremely tired.

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But she did pay her own bills, handled her own money.

She had

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-- had achieved a GED certificate and had one year of college,

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was able to get along with family and authority figures.

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was able to drive and, in fact, owned her own car.

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She

The ALJ also considered some inconsistent statements.

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There is some inconsistency, in that one place in the record

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she says that she never smoked, and another place where she

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was a reformed former smoker, and testimony that she didn't

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drink at all versus that she drank one beer a week.

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I'm going to ignore that.

I mean, that's -- I don't

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think that -- I don't think that that was a significant

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inconsistency.

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However, I do think there's an inconsistency in

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blaming her noncompliance on a lack of funds, but regularly

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using the services of AHEC, and the records that show that she

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was on Medicaid for a significant period of time, and was

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apparently on and off.

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know why she was on Medicaid at some times and off on others.

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And there is no explanation.

I don't

But, clearly, she was on Medicaid for some good

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portion of the time.

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that that's the reason she didn't take her insulin as

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prescribed.

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So, it's -- it's inconsistent to say

So, all of these are legally sufficient reasons for

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discounting Ms. Scott's subjective complaints of her symptoms.

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And certainly, there is evidence supporting the plaintiff's

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position, including the carpal tunnel syndrome and the -- the

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lack of specific restrictions for that, and yet, the -- the

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limit to a reduced range of light work was a consideration of

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the carpal tunnel, in that there were lifting restrictions and

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postural limits included in the residual functional capacity.

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I'm not allowed to reverse because there's evidence

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that would support the plaintiff's position.

I'm obligated to

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affirm the Commissioner if there is substantial evidence

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viewing the record as a whole.

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decision to deny Ms. Scott benefits is supported by more than

And here, the Commissioner's

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substantial evidence when you look at the record as a whole.

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The Commissioner considered all of Ms. Scott's impairments,

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both severe as -- and non-severe, and I find that the ALJ

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committed no legal error that could justify reversal.

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And those complete my findings and conclusions.

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And again, I will have those transcribed and appended

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to my order and a judgment to reflect that decision.

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Is there anything further, Mr. Wallace?

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MR. WALLACE:

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THE COURT:

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No, Your Honor.
Yes.

Thank you.

Well, thank you.

done an excellent job for your client.

Again, you've

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And, Mr. Tucker, thank you, as well.

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And we're off the record.

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MR. TUCKER:

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MR. WALLACE:

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Thank you, Your Honor.
Thank you.

(Adjournment at 10:43 a.m.)

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ELECTRONIC SOUND RECORDING CERTIFICATION:

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I, court approved transcriber, certify that the foregoing is a

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correct transcript from the official electronic sound

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recording of the proceedings in the above-entitled matter.

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/s/Robin Warbritton
Signature of Approved Transcriber

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Robin Warbritton
Typed or Printed Name

March 25, 2015
Date