Milton v. Commissioner, Social Security Adminstration

Filing 32

ORDER: The Social Security Administration's decision is affirmed. The Clerk shall enter judgment in favor of Defendant and against Plaintiff, and shall terminate this case. The parties shall bear their own costs, by Judge William J. Martinez on 7/30/2018. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-0392-WJM
JACQUELYN MILTON,
Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION,1
Defendants.

ORDER AFFIRMING DECISION OF ADMINISTRATIVE LAW JUDGE

This Social Security benefits appeal is brought pursuant to 42 U.S.C. §§ 405(g)
and 1383(c). Plaintiff Jacquelyn Milton (“Milton” or “claimant”), proceeding pro se,
challenges the final decision of the Social Security Administration (“Administration”)
denying her application for disability insurance benefits and supplemental security
income. The denial was affirmed by an Administrative Law Judge (“ALJ”), who found
that Plaintiff was “not disabled under sections 216(i) and 223(d) of the Social Security
Act.” (Admin. Record (“R”) (ECF No. 11) at 22.) The Appeals Council denied Plaintiff’s
request for review, making the ALJ’s decision the final decision of the Social Security
Administration for purposes of judicial review. This appeal followed.
For the reasons set forth below, the ALJ’s denial of benefits is affirmed.

1

The Social Security Administration no longer has a commissioner or a lawful acting
commissioner. See Letter from Thomas H. Armstrong, General Counsel of the Government
Accountability Office, to President Donald Trump (Mar. 6, 2018), available at
https://www.gao.gov/assets/700/690502.pdf (last accessed May 23, 2018). Lacking any other
alternative, the Court sua sponte substitutes the Social Security Administration itself as the
proper defendant.

I. BACKGROUND
Milton was born in 1964, and was 45 years old on the alleged disability onset
date. (R. at 20.) She had previously worked as a home health aide and a cashier. (Id.)
On September 24, 2013, Milton sought disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act.
(ECF No. 25 at 2.) Milton alleged disability beginning July 15, 2010 due to multiple
impairments, including: memory loss, knee problems, back problems, right shoulder
slipping out of its socket, incontinence, and elbow surgeries. (Id.; ECF No. 24 at 2.)
Milton’s application was initially denied on March 17, 2014 and she requested a hearing
which was held on June 1, 2015 before ALJ Patricia E. Hartman. (R. at 10.) At the
hearing, Milton was represented by attorney Linda S. Kreusel, but her main
representative at the time was Evelyn L. Rosenthal, a non-attorney representative. (Id.)
Plaintiff is no longer represented by either Ms. Kreusel or Ms. Rosenthal and appears
pro se in this appeal before the Court. (ECF No. 24 at 1.) On August 25, 2015, the ALJ
issued a written decision in accordance with the Commissioner’s five-step sequential
evaluation process. 2
At step one, the ALJ found that Milton had met the insured status requirements
of the Social Security Act through December 31, 2016 and that Milton had not engaged

2

The five-step process requires the ALJ to consider whether a claimant: (1) engaged in
substantial gainful activity during the alleged period of disability; (2) had a severe impairment;
(3) had a condition which met or equaled the severity of a listed impairment; (4) could return to
his past relevant work; and, if not, (5) could perform other work in the national economy. See
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Williams v. Bowen, 844 F.2d 748, 750–51 (10th
Cir. 1988). The claimant has the burden of proof through steps one to four; the Social Security
Administration has the burden of proof at step five. Lax v. Astrue, 489 F.3d 1080, 1084 (10th
Cir. 2007).

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in substantial gainful activity since March1, 2010, the alleged onset date of her
disability. (R. at 12.) The ALJ noted that although Milton had worked as a caregiver for
her mother since July 2011, earning $9.00 per hour and working 8.5 hours a week, this
work does not qualify as “substantial gainful activity.” (Id.)
At step two, the ALJ found that Milton suffered from the following severe
impairments: degenerative joint disease/ patella maltracking of the bilateral knees post
arthroscopy, degenerative changes to the left tibial plateau, lumbar degenerative disc
disease with sciatica, and obesity. (Id.) The ALJ found that “[t]hese impairments are
severe because, individually and in combination, they more than minimally limit the
claimant’s ability to engage in work-related activity.” (R. at 13.) The ALJ also found
that Plaintiff had the following non-severe impairments: rosacea, bunions, foot
hypermobility, pronated foot, alcohol abuse in remission, and status post bladder
surgery.3
At step three, the ALJ found that Milton “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments” in the Social Security regulations. (R. at 14.) The ALJ explained
that “[n]o treating or examining physician has suggested the presence of any
impairment or combination of impairments of listing level severity.” (Id.)

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The Court also acknowledges that in her Closing Brief (ECF No. 28), Milton attached a
health report dated July 3, 2017. Physician Assistant Patricia A. Bolshoun diagnosed Milton
with “[s]evere episode of recurrent major depressive disorder, without psychotic features” and
ordered ambulatory referral to psychiatry. This information was not presented to the ALJ
because this medical visit after the ALJ had filed her decision, and therefore does not
undermine the ALJ’s decision. The Court, however, is aware of no authority that would prevent
Milton from filing a new application for Social Security benefits based on this and her other
diagnoses.

3

Before proceeding to step four, the ALJ assessed Milton’s residual functional
capacity (“RFC”). The ALJ concluded that Milton “has the residual f unctional capacity
to perform medium work.” (R. at 15.) Specifically, the ALJ found that Milton
can occasionally climb ramps and stairs, but cannot climb
ladders or scaffolds. She can occasionally stoop, kneel,
crouch, and crawl. She cannot work at unprotected height
or with dangerous, unprotected machinery or in extreme
cold. She is limited to with a maximum SVP of 4.
(Id.)
In developing this RFC, the ALJ noted that “[t]he record as a whole is not entirely
consistent with the claimant’s allegations.” (R. at 16.) These inconsistencies include:
•

“While the claimant testified that she stopped working in 2010 due, in part, to
knee pain, the record does not show that she reported consistent knee pain until
after she injured her knee in February 2013.” (Id.)

•

“The record does not show that the claimant sought any further treatment until
November 2010, weighing against finding her disabled since March 2010.” (Id.)

•

“At her physical consultative examination, the claimant had adequate attention
and concentration. . . . She did not report problem s with memory with any
consistency to treating sources, weighing against this allegation as well.” (R. at
17.)

•

“While the claimant stated that she could only stand 10 minutes, she reported
exercising with Jillian Michaels DVDs after she injured her knee jumping a
snowbank, which is not entirely consistent with her allegations.” (Id.)

•

“In October 2013, the claimant denied having any limitations lifting due to her
impairments and denied limitations walking, only suggesting an inability to climb
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stairs, weighing against the credibility of her reported walking and lifting
limitations.” (Id.)
•

“The claimant’s activities of daily living are not entirely consistent with her
allegations. While she reported having poor memory, she works as a caregiver
for her mother, which requires her to remind her mother to perform personal care
tasks and she has to set up appointments for her mother.” (Id.)

Thus, the ALJ found that “the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms. However, the claimant’s
statements concerning the intensity, persistence, and limiting effects of these
symptoms are not entirely credible.” (R. at 15.)
Next, at step four, the ALJ concluded that Milton is capable of performing past
relevant work as a home health aide and cashier II. (R. at 20.) This work does not
require the performance of work-related activities precluded by the claimant’s residual
functional capacity. Moreover, the ALJ went on to step five and found that, “[i]n the
alternative, considering the claimant’s age, education, work experience, and residual
functional capacity, other jobs exist in significant numbers in the national economy that
the claimant can perform.” (Id.) The vocational expert testified that, Milton’s RFC
would permit her to perform the requirements of representative occupations, such as
laundry worker, cleaner/housekeeper, and production assem bly jobs. (R. at 21.)
Accordingly, the ALJ found that Milton can make a successful adjustment to
other work that exists in significant numbers in the national economy. Thus, the ALJ
found that Milton “has not been under a disability, as defined in the Social Security Act,
from march 1, 2010, through the date of this decision.” (R. at 22.)
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II. STANDARD OF REVIEW
The Court reviews the Social Security Administration’s decision to determine
whether substantial evidence in the record as a whole supports the factual findings and
whether the correct legal standards were applied. Wall v. Astrue, 561 F.3d 1048, 1052
(10th Cir. 2009). Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. Id. “It requires more than a scintilla,
but less than a preponderance.” Lax, 489 F.3d at 1084. Evidence is not substantial if it
is overwhelmed by other evidence in the record. Grogan v. Barnhart, 399 F.3d 1257,
1261–62 (10th Cir. 2005). In reviewing the Commissioner’s decision, the Court may
neither reweigh the evidence nor substitute its judgment for that of the agency. Salazar
v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). “On the other hand, if the ALJ failed to
apply the correct legal test, there is a ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).
Because Plaintiff is proceeding pro se, the Court must liberally construe her
pleadings. Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Trackwell v. United States
Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). T he Court, however, cannot act as
advocate for Plaintiff, who must still comply with the fundamental requirements of court
procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
III. ANALYSIS
On appeal, Milton restates her alleged impairments and explains that while she
is receiving food stamps and Temporary Assistance for Needy Families (TANF)
benefits, these funds are about to run out. (ECF No. 24 at 2–3.) She ex plains that she

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has had to move in with her son and his family, because she can no longer afford her
own accommodation. (Id.) Milton states, “I remember this has been the worst and
hardest few years[,] trying to get my benefits. I’ve lost so much.” (ECF No. 28 at 2.)
While Milton claims to be struggling financially, she does not argue that the ALJ
made a reversible error on the merits of her claims. Upon reviewing the ALJ’s decision,
the Court finds that the ALJ’s factual findings are indeed supported by substantial
evidence in the record as a whole and the ALJ applied the correct legal standards.
Accordingly, the Court affirms the Social Security Administration’s decision. As shown
by the Court’s summary of the ALJ’s RFC analysis (See Part I), the documentation in
the record does not support Milton’s claimed impairments.
Again, however, although Milton does not now qualify for Social Security
benefits, she may qualify for DIB and SSI at a later time if her impairments continue to
deteriorate. She may apply to the Social Security Administration for benefits at such
time, and make use of additional or new evidence in support of her claim, evidence
which is not properly before the Court in the context of the instant appeal.
IV. CONCLUSION
For the reasons set forth above, the Social Security Administration’s decision is
AFFIRMED. The Clerk shall enter judgment in favor of Defendant and against Plaintiff,
and shall terminate this case. The parties shall bear their own costs.

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Dated this 30th day of July, 2018.
BY THE COURT:

William J. Martínez
United States District Judge

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