Scott v. Commissioner, Social Security Administration

Filing 44

ORDER that the Commissioners final decision is AFFIRMED, by Magistrate Judge Kathleen M. Tafoya on 10/13/2020. (jgonz, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 17–cv–03128–KMT

CAROL D. SCOTT,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

ORDER

Plaintiff Carol D. Scott [“Scott”], proceeding pro se,1 brings this action pursuant to the
Social Security Act, 42 U.S.C. 405(g), seeking judicial review of a final decision by the
Defendant Commissioner of the Social Security Administration [“Commissioner”], denying her
applications for disability insurance benefits and supplemental security income. (Doc. Nos. 1,
40.) Plaintiff filed an Opening Brief, and following remand and a second appeal, the
Commissioner responded. ([“Opening Brief”], Doc. No. 20; [“Response”], Doc. No. 43; see
Doc. Nos. 32-33, 39.) No additional briefing has been filed, and the time to do so has lapsed.
(See Doc. No. 41.) The Commissioner has also filed the Administrative Record. (Social
1

Mindful of Plaintiff’s pro se status, the court “review[s] h[er] pleadings and other papers
liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell
v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see Haines v. Kerner,
404 U.S. 519, 520–21 (1972) (holding the allegations of a pro se complaint “to less stringent
standards than formal pleadings drafted by lawyers”).

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Security Administrative Record [“AR”], Doc. Nos. 14, 37.) After carefully analyzing the briefs
and the administrative record, the court AFFIRMS the Commissioner’s final decision.
BACKGROUND2
Scott was born on January 3, 1960; she was fifty-five years old on the alleged disability
onset date. (AR 424.) She has completed post-secondary school training for certification as a
nursing assistant [“CNA”]. (AR 608.) Her employment history includes positions as a nurse’s
assistant, a stores laborer, and a telephone order clerk. (AR 608, 949.)
On March 10, 2015, Scott applied for disability insurance benefits, pursuant to Title II of
the Social Security Act [“the Act”], and on September 29, 2015, she applied for supplemental
security income, pursuant to Title XVI of the Act.3 (AR 519-27, 533-38.) In her applications,
Plaintiff claimed that she had been unable to work since January 12, 2015, due to “major
depression” and a “limited ability to use hands and arms.” (AR 607.) The Commissioner denied
Plaintiff’s applications on July 17, 2015, and again, upon reconsideration, on November 30,
2015. (AR 470-73, 476-81.) Plaintiff then successfully requested a hearing before an
administrative law judge [“ALJ”], which took place on April 27, 2017. (AR 44-70, 482-96.) On
June 29, 2017, the ALJ issued a written decision denying benefits, and on September 21, 2017,

2

The following background focuses only on the elements of Plaintiff’s history that are relevant
to the court’s analysis.

3

Plaintiff previously filed a set of disability applications on November 18, 2008, alleging
disability since July 1, 2007. (See AR 410.) Those applications were ultimately denied in a
hearing decision, dated April 13, 2011. (AR 407-18.) Plaintiff’s request for review by the
Appeals Council was denied, and Plaintiff did not pursue judicial review in federal court. (AR
419-22.)
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the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision. (AR 6-12, 2338.)
On December 26, 2017, Plaintiff filed a complaint with this court, seeking review of the
Commissioner’s decision. (Doc. No. 1.) The Commissioner then filed a motion to remand the
case, on June 14, 2018, pursuant to sentence six of 42 U.S.C. § 405(g), for consideration of new
evidence that Scott submitted following issuance of the ALJ’s decision. (Doc. No. 24; see AR
977-80.) That motion was granted, on October 23, 2018, and the case was then remanded to the
Commissioner. (Doc. No. 32.)
On remand, the Appeals Council vacated the Commissioner’s previous decision, and
returned the case to an ALJ for further proceedings consistent with this court’s order.4 (AR 99397.) A hearing was then held, on March 19, 2019, before ALJ Debra L. Boudreau. (AR 92554.) Plaintiff appeared and testified at the hearing, without legal representation. (AR 925, 92728.) The ALJ also heard testimony from a vocational expert. (AR 925, 948-52.) Medical
evidence and opinions were provided by three non-examining state agency psychiatric
consultants—Eleanor E. Cruise, Ph.D., David Strand, Ph.D., and Mark Suyeishi, Psy.D.; three
non-examining state agency physical consultants—Rosemary Greenslade, M.D., James
McElhiney, M.D., and Edwin Swann, M.D.; three psychiatric consultative examiners—LeAnna

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Specifically, the Appeals Council directed the ALJ to: (1) “[c]onsider the new evidence
submitted to the Appeals Council and develop the record as warranted;” (2) “[f]urther evaluate
the claimant’s mental impairments in accordance with” relevant SSA regulations; (3) [g]ive
further consideration to the claimant’s maximum residual functional capacity [RFC] during the
entire period at issue and provide rationale with specific references to evidence of record in
support of assessed limitations[;] and (4) “[i]f warranted by the expanded record, obtain
supplemental evidence from a vocational expert to clarify the effect of the assessed limitations
on the claimant’s occupational base[.]” (AR 896-97.)
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DeAngelo, Ph.D., Carla Duszlak, M.D., and Melisa Obert, Psy.D.; a treating physician, Gregory
Unruh, D.O.; an examining nurse practitioner, Dayanara Gohil, PMHNP; an examining
physician assistant, Sega Sikod, PA-C; and a social worker, Jennifer Ivan, M.S. (AR 908-13; see
AR 424-37, 440-69, 727-32, 750-52, 855-71, 1172-73, 1477-84, 2193-2214.)
At the hearing, which was held in Colorado Springs, Colorado, the ALJ first asked
Plaintiff about her recent out-of-state travel and present living conditions. (AR 931-34.) Scott
reported that she had just visited her sister in North Carolina for a “couple of months,” from late
November 2018, until early January 2019. (AR 933-34.) She told the ALJ that she had returned
to Colorado, primarily because her disability case was “pending in court.” (AR 936.) Scott
testified that she currently lives in her car, alone, because she “do[es]n’t have anywhere [else] to
stay.” (AR 934.) She affirmed that she has “a reliable place to park” her vehicle, but reported
that she does not “feel safe in any of the areas.” (AR 938.) Plaintiff told the ALJ that, due to her
current living situation, she is unable to regularly bathe. (AR 942.) When the ALJ remarked that
Plaintiff appeared “nice and neat and clean,” she responded that her “outward appearance” often
“throws a lot of people.” (AR 942-43.)
The ALJ also questioned Plaintiff regarding her employment status. (AR 938-39, 94344.) Scott testified that she is unable to work, due to the “intensity” of her “symptoms.” (AR
939.) Plaintiff clarified that her “main” problem is “with concentration, and keeping pace with
things that [she is] doing.” (AR 940.) Plaintiff testified that she is “easily distracted,” and “can’t
remember the path” that she is on. (AR 940-41.) However, Plaintiff admitted that she is able to
remember to attend doctors’ appointments, to adhere to her prescribed medications, to wash her
clothes at the laundromat, as well as to insure and register her vehicle. (AR 939, 941-43.) She

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reported that she stopped working as a part-time caregiver at a senior living facility, in late 2018,
because her “symptoms intensified,” and it became “hard” for her to handle “the responsibilities
of work,” given the “stress” of her current living situation. (AR 943-45.) Plaintiff confirmed
that she was presently receiving medical treatment for her conditions, and she reported general
satisfaction with her quality of care. (AR 946-48.) She remarked, however, that her healthcare
providers “can’t give me any medicine that’s going to get me off the streets or change the fact
that I’m homeless and don’t have anywhere to go and stuff.” (AR 948.)
On April 26, 2019, the ALJ issued a written decision in accordance with the
Commissioner’s five-step, sequential evaluation process.5 (AR 896-915.) The ALJ determined,
at step one, that Plaintiff had not engaged in substantial gainful activity since January 12, 2015,
the alleged onset date. (AR 899 ¶ 2.) At step two of his analysis, the ALJ found that Scott
suffered from four severe impairments: “major depressive disorder, adjustment disorder with
anxiety, unspecified neurodevelopmental disorder, and PTSD (post-traumatic stress disorder).”
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The five-step sequential analysis 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 that 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, 750-52 (10th Cir.
1988); see also McCrea v Comm’r of Soc. Sec., 370 F.3d 357, 360 n.3 (3d Cir. 2004) (observing
that the same five-step sequential analysis applies to eligibility determinations for disability
insurance benefits and supplemental security income). It is well-settled that, under this analysis,
the claimant has the burden to establish a prima facie case of disability at steps one through four.
Id. at 751 & n.2. The burden then shifts to the Commissioner, at step five, to show that the
claimant retains sufficient residual functional capacity [“RFC”] to perform work in the national
economy, given his age, education, and work experience. Id. A finding that a claimant is
disabled, or not disabled, at any point in the five-step review is conclusive and terminates the
analysis. Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991). To be
disabling, the claimant’s condition must be so functionally limiting as to preclude any substantial
gainful activity for at least twelve consecutive months. 42 U.S.C. § 423(d)(1)(A), (2)(A); see
Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995).
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(AR 899 ¶ 3.) The ALJ also determined that Plaintiff suffered from several non-severe
impairments, including hypertension, hyperlipidemia, hypothyroidism, and carpal tunnel
syndrome. (AR 899-900 ¶ 3.) None of Plaintiff’s impairments were found to be presumptively
disabling at step three. (AR 900-02 ¶ 4.)
Prior to reaching step four, the ALJ assessed Scott’s residual functional capacity
[“RFC”], and found her capable of a full range of work at all exertional levels, subject to the
following non-exertional limitations:
[S]he is able to understand and remember simple routine tasks that can be learned
and mastered within 30 days. The claimant can sustain concentration, persistence,
and pace for those simple routine tasks over a typical workday and workweek.
She can interact appropriately with others, can make work decisions, can tolerate
occasional task changes of a routine nature, and is able to travel and to recognize
and avoid work hazards.
(AR 902 ¶ 5.)
In establishing this RFC, the ALJ evaluated Plaintiff’s subjective allegations of pain, the
objective medical evidence, and the medical opinion evidence. (AR 902-14.) The ALJ
determined that, while Scott’s impairments could reasonably be expected to cause some of the
alleged symptoms, her testimony regarding the intensity, persistence, and limiting effects of her
conditions was “not entirely consistent” with the objective medical evidence. (AR 904.) The
ALJ concluded, in particular, that portions of Scott’s testimony were “not consistent with the
record.” (AR 908.) The ALJ likewise concluded that the objective diagnostic evidence and
treatment records, though supportive of “some limitations from her mental health impairments,”
did not reveal any “fully disabling” condition. (AR 904.) In addition, the ALJ discussed the
medical opinions, giving “little weight” to the opinions from Monique May, M.D. and Sega
Sikod, PA-C, because they were rendered for a worker’s compensation claim, and revealed only
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“temporary restrictions;” “little weight” to the opinion from consultative examiner, Carla
Duszlak, M.D., because it was rendered “shortly after [Plaintiff] had started [treatment] at Aspen
Pointe, but before she had completed therapy and had her medications adjusted properly;”
“partial weight” to the opinions from non-examining state agency mental consultants, Eleanor
Cruise, Ph.D. and Mark Suyeishi, Psy.D., because they were rendered “under the prior [SSA]
listings,” but were otherwise “consistent” with the record; “little weight” to the opinion from
non-examining state agency physical consultant, Edwin Swann, M.D., because “the overall
record does not support that the claimant has any severe physical impairments;” “great weight”
to the opinions from non-examining state agency physical consultants, James McElhinney, M.D.
and Rosemary Greenslade, M.D., because they were both “consistent with the overall record;”
“little weight” to the opinion from psychiatric examiner, LeAnna DeAngelo, Ph.D., because it
was “not consistent” with Plaintiff’s reported activities of daily living; “partial weight” to the
opinions from Dayanara Gohil PMHNP and Jennifer Ivan, M.S., because they were not
“acceptable medical sources,” and were “based largely on the claimant’s reports;” “little weight”
to the opinion from psychiatric consultative examiner, Melisa Obert, Psy.D., because it was
“based on self-reports” and “not consistent with the overall record;” and “great weight” to the
opinion from non-examining state agency mental consultant, David Strand, Ph.D., which was
rendered on March 11, 2019, because it was “supported by and based on the longitudinal medical
record of evidence.” (AR 908-13.)
At step four, the ALJ determined, based on the vocational expert’s testimony, that Scott
was unable to perform any past relevant work. (AR 914 ¶ 6.) However, at the final step of her
analysis, the ALJ found that “there are jobs that exist in significant numbers in the national

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economy that [Scott] can perform,” based on her age, education, work experience, and residual
functional capacity. (AR 914 ¶ 10.) The ALJ determined that Scott would be able to perform
such jobs as a housekeeping cleaner, a hospital cleaner, or a hand package. (AR 915 ¶ 10.) For
that reason, the ALJ concluded that Scott was not under a “disability,” as defined by the Act, and
denied her applications for disability insurance benefits and supplemental security income. (AR
915 ¶ 11.) That denial prompted Scott’s renewed request for judicial review. (Doc. No. 40.)
STANDARD OF REVIEW
In social security disability cases, the court’s review is limited to determining whether:
(1) substantial evidence supports the Commissioner’s decision; and (2) whether the
Commissioner’s decision comports with relevant legal standards. Vallejo v. Berryhill, 849 F.3d
951, 954 (10th Cir. 2017); see generally 42 U.S.C. § 405(g). “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); accord Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (“Evidence
is not substantial if it is overwhelmed by other evidence in the record or constitutes mere
conclusion.”). Any conflict in the evidence is to be resolved by the ALJ, and not the court. See
Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000) (“We will not reweigh the evidence.”).
A finding of “no substantial evidence” is proper only if there is a “conspicuous absence of
credible choices” or “no contrary medical evidence.” Trimiar v. Sullivan, 966 F.2d 1326, 1329
(10th Cir. 1992) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). Further, “if the
ALJ failed to apply the correct legal test, there is ground for reversal apart from a lack of
substantial evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

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ANALYSIS
Scott argues, on her present appeal, that the ALJ “mischaracterized” the administrative
record, by “cherry-picking” the objective medical evidence that “support[ed] her decision.”
(Doc. No. 40 at 4.) Plaintiff likewise complains that the ALJ’s decision “downplay[ed] the
severity” of her impairments, and “overlook[ed] the indication of symptoms as a source of
distress[.]” (Id.) Defendant insists, however, that the ALJ properly considered the entire
evidentiary record, and followed the applicable law, in determining that Plaintiff is not disabled.
(Resp. 5-13.)
It is unquestionably improper for an ALJ to pick and choose among the evidence of
record, using portions of evidence favorable to her position, while ignoring other evidence.
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012); Hardman v. Barnhart, 362 F.3d
676, 681 (10th Cir. 2004); see also Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996)
(An ALJ need not “discuss every piece of evidence” but “must discuss the uncontroverted
evidence he chooses to rely on as well as significantly probative evidence he rejects.”).
However, the court finds no evidence of such impermissible “cherry-picking” in the ALJ’s
analysis here.
In her written decision, the ALJ exhaustively reviewed the voluminous evidence of
record, including the additional evidence submitted by Plaintiff on appeal. (AR 904-13.) The
ALJ also extensively detailed Plaintiff’s subjective allegations of pain, as set forth in two
function reports, a written statement, and her hearing testimony. (AR 903-04.) The ALJ
accurately recounted Plaintiff’s treatment records, which showed that her mental health
symptoms fluctuated over time, tending to increase with situational stressors. See Sheppard v.

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Astrue, 426 F. App’x 608, 610-11 (10th Cir. 2011) (holding that evidence that tended to show a
claimant’s worsening depression should have been discussed by the ALJ). In addition, the ALJ
discussed Scott’s neuropsychological testing results, which revealed a moderate to severe
impairment with concentration, memory, and executive functioning. (AR 907-08.) The ALJ
then gave specific, legitimate reasons for her assessments of Plaintiff’s credibility, which were
linked to the evidence of record. See White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2001) (“So
long as the ALJ sets forth the specific evidence he relies on in evaluating the claimant’s
credibility,” the determination is supported by substantial evidence.). In making her credibility
determination, the ALJ expressly considered Plaintiff’s activities of daily living, which she found
to be inconsistent with the level of limitation alleged. See Ghini v. Colvin, 82 F. Supp. 3d 1224,
1234 n.11 (“Although activities of daily living do not necessarily translate to the ability to
perform work-related activities on a sustained basis, they do bear on a Plaintiff’s credibility to
the extent that the level of activity is in fact inconsistent with the claimed limitations.”); accord
Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987); see also Lately v. Colvin, 560 F. App’x
751, 755 (10th Cir. 2014) (finding no error where the ALJ “cited and discussed inconsistencies
between the [claimant]’s testimony and her activities of daily living, child-care responsibilities,
diagnostic exams, treatment-seeking behavior, medications, her failure to fully participate in
physical and occupational therapy, her consistent work history, and her collection of
unemployment benefits”). For instance, the ALJ noted that Plaintiff “worked part-time at the
same job until the fall of 2018,” and that “during part of this timeframe she was going to culinary
school and excelling in this job as well as working at a work-study job with a school district.”
(AR 908.) She also noted that “the record indicated that the claimant reported benefits from her

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medications and mindfulness techniques and other coping skills to control her symptoms.” (AR
908.) The ALJ likewise cited specific, relevant evidence to support her conclusions regarding
the amount of weight to assign to each medical source opinion. See Oldham v. Astrue, 509 F.3d
1254, 1258 (10th Cir. 2007) (“The ALJ provided good reasons in his decision for the weight he
gave the treating sources’ opinions. Nothing more was required in this case.”) (internal citation
omitted).
Plaintiff, for her part, cites nothing in the record to explain how the ALJ’s conclusions
were deficient. (See Doc. No. 40 at 4.) Nor does she point to any specific evidence that the ALJ
did not consider, or that she contends was improperly evaluated. See Shinseki v. Sanders, 556
U.S. 396, 409 (2009) (“[T]he burden of showing that an error is harmful normally falls upon the
party attacking the agency’s determination.”); Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th
Cir. 1994) (noting that “perfunctory complaints” failing “to frame and develop an issue” are not
“sufficient to invoke appellate review”); see also Terwilliger v. Comm’r, 801 F. App’x 614, 622
(10th Cir. 2020) (unpublished) (“Terwilliger’s argument fails to show prejudice, and we will not
conjure arguments on his behalf.”).
On this record, then, the ALJ properly exercised her responsibility as fact finder to
analyze the evidence, and her determination of Plaintiff’s RFC is well-grounded in that analysis.
Accordingly, the decision of the Commissioner on this issue must be affirmed. See Nguyen v.
Shalala, 43 F.3d 1400, 1403 (10th Cir. 1994) (The Commissioner’s final decision “must be
affirmed if it is supported by substantial evidence and correct legal standards were used.”); see
also Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (“In reviewing the ALJ’s decision, we

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neither reweigh the evidence nor substitute our judgment for that of the agency.”) (internal
quotation marks omitted).
Accordingly, it is
ORDERED that the Commissioner’s final decision is AFFIRMED.
Dated this 13th day of October, 2020.

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