Peters v. Social Security Administration
Filing
27
OPINION AND ORDER by Magistrate Judge T Lane Wilson , remanding case (terminates case) (crp, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
SHERRY LYNN PETERS,
)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)
Case No. 14-cv-397-TLW
OPINION AND ORDER
Plaintiff Sherry Lynn Peters seeks judicial review of the decision of the Commissioner of
the Social Security Administration denying her claim for disability insurance benefits from
August 12, 2010 to December 23, 2011 under Title II of the Social Security Act (“SSA”), 42
U.S.C. §§ 416(i), and 423. In accordance with 28 U.S.C. § 636(c)(1) & (3), the parties have
consented to proceed before a United States Magistrate Judge. (Dkt. 14). Any appeal of this
decision will be directly to the Tenth Circuit Court of Appeals.
INTRODUCTION
In reviewing a decision of the Commissioner, the Court is limited to determining whether
the Commissioner has applied the correct legal standards and whether the decision is supported
by substantial evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).
Substantial evidence is more than a scintilla but less than a preponderance and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. See id. The
Court’s review is based on the record, and the Court will “meticulously examine the record as a
whole, including anything that may undercut or detract from the ALJ’s findings in order to
determine if the substantiality test has been met.” Id. The Court may neither re-weigh the
evidence nor substitute its judgment for that of the Commissioner. See Hackett v. Barnhart, 395
F.3d 1168, 1172 (10th Cir. 2005). Even if the Court might have reached a different conclusion, if
supported by substantial evidence, the Commissioner’s decision stands. See White v. Barnhart,
287 F.3d 903, 908 (10th Cir. 2002).
BACKGROUND
Plaintiff, then a 48-year old female, protectively filed for benefits under Title II of the
Social Security Act (“SSA”), 42 U.S.C. §§ 416(i), and 423 on December 1, 2010. (R. 107).
Plaintiff alleged a disability onset date of May 5, 2010, but amended the date to August 12, 2010,
at the hearing before the administrative law judge (“ALJ”). (R. 37, 107). Plaintiff claimed that
she was unable to work due to “diabetes, anxiety and neck pain.” (R. 70). Plaintiff’s claims for
benefits were denied initially on July 11, 2011, and on reconsideration on October 21, 2011. (R.
61-65, 70-72). Plaintiff then requested a hearing before an ALJ. (R. 73). The ALJ held the
hearing on August 12, 2012, and issued a partially favorable decision on November 16, 2012,
awarding benefits beginning December 23, 2011. (R. 32-57, 8-26). Plaintiff appealed this
decision on January 8, 2013, citing an onset date earlier than December 23, 2011. The Appeals
Council denied plaintiff’s request for review; therefore the ALJ’s November 16, 2012 decision is
the final decision of the Commissioner. (R. 1-3). Plaintiff timely filed an appeal. (Dkt. 2).
The ALJ’s Decision
The ALJ found plaintiff “not disabled prior to December 23, 2011, but became disabled
on that date and has continued to be disabled through the date of this decision” because
plaintiff’s age category changed to an “individual closely approaching advanced age.” (R. 12,
24). Plaintiff did not engage in any substantial gainful activity after her alleged onset date of
August 12, 2010. (R. 14). The ALJ found plaintiff had the severe impairments of “major
2
depressive disorder, diabetes mellitus with neuropathy, cervicalgia status post cervical fusion,
status post-left knee surgery, and an anxiety disorder” since the alleged onset date of August 12,
2010. Id. The ALJ determined that plaintiff did not have “an impairment or combination of
impairments that meets or medically equals the severity of one of the listed impairments in 20
CFR Part 404, Subpart P Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).” (R. 18-9).
The ALJ analyzed plaintiff’s mental impairments utilizing the “paragraph B” criteria to
determine the degree of her functional limitation. He found moderate restriction in the areas of
activities of daily living; maintaining social functioning; and maintaining concentration,
persistence, or pace; with no episodes of decompensation. (R. 19). The ALJ noted that although
plaintiff “displayed anxiety symptoms when she was examined by [the] consultative examiner
and mental health providers, [ ] her regular physicians reported that [plaintiff] had a normal
mood and appearance.” Id. The ALJ also considered the fact that plaintiff is able to “leave her
home unaccompanied on a weekly basis despite her anxiety,” and that although plaintiff claimed
that her agoraphobia began during her childhood, she was able to work successfully for over
twenty years despite this condition. Id.
The ALJ assigned “little weight” to the IQ scores plaintiff received in 2012, finding that
the “diagnosis of mild mental retardation and borderline intellectual function are inconsistent
with [plaintiff’s] educational and work history.” Id. Plaintiff graduated from high school, where
she attended regular classes and maintained a “C” average, attended vocational training, and
“worked for over 20-years as a rehabilitation-training specialist for the developmentally
disabled.” Id. The ALJ found “[t]his profile is not supportive of a diagnosis of mild mental
retardation or borderline intellectual functioning.” Id. The ALJ noted that plaintiff began mental
health treatment in 2011, receiving a GAF score of 65 during her initial evaluation. Id. He found
3
that her mental health treatment records support a finding that her condition has remained stable
since that time, in contrast to plaintiff’s allegations of significant decline, resulting in moderate
limitation in functioning. Id.
After reviewing plaintiff’s testimony, the medical evidence, and other evidence in the
record, the ALJ determined that since August 12, 2010, plaintiff retained the residual functional
capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant
is able to perform work where interpersonal contact is incidental to the work
performed, incidental is defined as interpersonal contact requiring a limited
degree of interaction such as meeting and greeting the public, answering
simple questions, accepting payments, and making change; complexity of
tasks can be learned by demonstration, repetition, or experience; several work
variables; judgment within limits; and little supervision for routine tasks and
detailed supervision for non-routine tasks.
(R. 19-20). With those limitations, plaintiff was unable to “perform her prior relevant work as a
rehabilitating training specialist.” (R. 24). Relying on the vocational expert’s testimony, the ALJ
found that plaintiff could perform other work, such as circuit board assembler and grind machine
operator. (R. 25). The ALJ found that, on December 23, 2011, plaintiff’s age category changed
from 45-49 (“a younger individual”) to one closely approaching advanced age. (R. 24-5). This
change in age resulted in plaintiff being granted benefits beginning on December 23, 2011 based
on “direct application of Medical-Vocational Rule 201.14.” (R. 25).
The Medical Evidence
Physical Evaluations
According to administrative records beginning in 2007, plaintiff suffered a neck injury at
work, which resulted in a herniated cervical disc. Plaintiff underwent surgery to repair this
condition on January, 13, 2009. (R. 222-50). At that time, plaintiff had a medical history of
hypertension, diabetes, a right knee arthroscopy, and obesity.
4
In January 2010, plaintiff suffered a left knee injury at work. On May 13, 2010, plaintiff
underwent knee surgery to repair a left medial meniscus tear. Plaintiff’s surgeon cleared her to
return to “work full duty with no restrictions” on July 13, 2010. (R. 193-221, 251-265). Plaintiff
was injured in a motor vehicle accident on August 12, 2010, plaintiff’s alleged onset date.
Records from the subsequent Emergency Room visit indicate plaintiff suffered a cervical sprain.
(R. 283-95).
Dr. Kenneth Trinidad, D.O., examined plaintiff on August 13, 2010, August 30, 2010,
September 20, 2010, October 4, 2010, November 1, 2010, November 29, 2010, January 3, 2011,
and January 31, 2011. (R. 321-25, 416). Plaintiff was diagnosed with cervical and thoracic
sprain, right arm radiculitis, and post traumatic headaches. Dr. Trinidad prescribed physical
therapy, traction, and ordered an MRI. Id. After therapy and traction failed to yield desired
improvement, Dr. Trinidad referred plaintiff to Dr. James C. Mayoza, M.D. at Tulsa Orthopedic
Associates, Inc. (R. 328).
Plaintiff underwent an MRI on September 21, 2010 which revealed “[a]t C 3/4 and C 4/5,
pathology is minimal, and there is only borderline to minimal foraminal narrowing. The central
canal is also borderline narrowed at C 4/5.” (R. 331). Additionally Dr. Jeffrey Watts, MD, the
radiologist, noted “[a]t C 5/6 there is a more prominent 3 to 4 mm posterior disc protrusion with
anterior surface cord contact and subtle flattening. There is mild narrowing of the central canal
with only borderline narrowing of the foramina.” Id. Lastly, Dr. Watts observed the previous
surgery on the cervical disc and opined that “the central canal and foramina are not
compromised.” (R. 330-31).
Dr. Mayoza evaluated plaintiff and reviewed her MRI on November 18, 2010, and
December 16, 2010. He diagnosed plaintiff with “HNP adjacent to previous fusion level at C6-
5
7,” and recommended “removal of the hardware at C6-7 and then performing a discectomy at the
C5 level with anterior interbody fusion at C5-6 with Mosaic implant. … [A] Mosaic implant with
bone graft at the C5-6 level following the hardware removal at C6-7 … will make way for the
implantation of the Mosaic plate and bone graft. This surgery is necessary for injuries received in
the motor vehicle accident as described by the patient occurring on 08/12/2010.” (R. 327).
Dr. Brad Liston, D.O., state certified medical examiner and consultative examiner,
evaluated plaintiff in March of 2011. Dr. Liston determined plaintiff had a significantly reduced
range of motion in her cervical spine with accompanying pain, reduced right shoulder rotation,
negative straight leg raise tests bilaterally, and normal grip strength. (R. 417-426).
In May, 2012, Dr. Trinidad and Dr. Mayoza each submitted a medical source statement
stating that plaintiff had a cervical disc herniation at C5-C6, and opining that plaintiff was
physically limited to standing and/or walking to four to five hours of eight; frequently lifting
and/or carrying less than ten pounds; using her left arm two to three hours of eight a day for
reaching, pushing, and pulling, and less than two hours of eight on her right arm; using her left
hand two to three hours of eight for grasping, handling, fingering, or feeling, and less than two of
eight on her right hand. (R. 521-22). These statements were not based on new evaluations, but
were based on the doctors’ 2010-2011 respective examinations, and objective testing. (R. 329,
521-22).
Mental Health Evaluations
In May 2011, plaintiff began a series of mental health evaluations with a variety of
doctors. The first consultative evaluation was with Dennis Rawlings, Ph.D., who examined
plaintiff and diagnosed her with major depressive disorder with psychotic features, a panic
disorder with agoraphobia, social phobia, obsessive-compulsive disorder, borderline intellectual
6
functioning and estimated her IQ between 75 and 80. (R. 427-433). On June 21, 2011, Ron
Cummings, Ph.D., assessed plaintiff’s records and completed a mental RFC form opining that
plaintiff could “maintain concentration, persistence and pace for a normal work day and work
week.” (R. 438). Dr. Cummings noted “the evidence in the record supports a finding of MDIs
[medically determinable impairments] in the areas of affective, anxiety and somatoform
disorders.” (R. 452).
Family and Children’s Services provided mental health treatment to plaintiff from July
2011 to August 2012. (R. 481-520). On July 29, 2011, Stevan Lahr, D.O. examined plaintiff
determining her attention and concentration were adequate; her motor activity was within normal
limits; her thought processes were linear; and her insight and judgment were average. (R. 512).
Dr. Lahr diagnosed plaintiff with major depressive disorder, recurrent, severe, and panic disorder
with agoraphobia. Id. Additionally, plaintiff had a global assessment functioning score of 65. Id.
Plaintiff received medication and treatment for major depressive disorder, panic disorder without
agoraphobia, and post-traumatic stress disorder. Id. Mr. Robert Joshua Pillow, BHRS, BS,
plaintiff’s therapist, noted an eight (8) point decrease in her GAF score within 2011-2012. (R.
573).
In October 2012, Larry Vaught, Ph.D., an agency mental health consultative examiner,
evaluated plaintiff. Dr. Vaught diagnosed plaintiff with major depressive disorder, recurrent,
severe with psychotic features; panic disorder with agoraphobia; generalized anxiety disorder;
and cognitive disorder, NOS, moderate to severe. (R. 584). Additionally, plaintiff scored a 61 on
the WAIS-III Full Scale IQ, and Dr. Vaught noted “rule out mild mental retardation” on her
form. (R. 576-86).
7
ANALYSIS
Plaintiff appeals the onset date of her disability benefits, arguing that she was disabled
beginning on August 12, 2010 rather than December 23, 2011, the date the ALJ awarded
benefits. Plaintiff argues for the earlier date based on three claims. First, plaintiff argues that she
met Listing 12.05C. Second, plaintiff claims the ALJ failed to properly consider her treating
physicians’ opinions. Third, plaintiff argues the ALJ failed to properly analyze her credibility.
The Court has determined that plaintiff’s second allegation of error is dispositive; therefore it
will be addressed first.
Treating Physicians’ Opinions
Plaintiff argues that the ALJ failed to properly weigh the opinions of treating physicians
Dr. Trinidad and Dr. Mayoza. (Dkt. 20). Specifically, plaintiff claims that the ALJ “erred when
he decided to interpret medical findings and use his layman’s opinion instead of those from the
treating physician.” Id. at 12. In addition, plaintiff alleges the ALJ failed to consider several
factors listed in Section 404.1527 and erred in “ignor[ing]” Dr. Liston’s prognosis of chronic
cervical pain. Id.
The Commissioner counters that “the ALJ reasonably considered all of the medical
evidence of record—both the records of Plaintiff’s treating providers and the functional
assessments rendered by the consultative examiners and state agency medical consultants—in
assessing plaintiff’s RFC.” (Dkt. 23 at 6). The Commissioner further defends the ALJ’s decision
by reiterating his findings and claiming that contrary to plaintiff’s claim, neither Dr. Trinidad’s
nor Dr. Mayoza’s “opinion contains any indication that it was intended to be retrospective to the
period during which Plaintiff asserts she was disabled (Pl. Br. 10; see Tr. 521-22).” Id. at 6-7.
8
The proper procedure for evaluating the opinion of a treating physician is well
established. “Under the regulations, the agency rulings, and our case law, an ALJ must give good
reason in the notice of determination or decision for the weight assigned to a treating physician’s
opinion.” Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (citing 20 C.F.R. §
404.1527 (d)(2) and Social Security Ruling 96-2p, 1996 WL 374188 at 5). “The type of opinion
typically accorded controlling weight concerns the ‘nature and severity of the claimant’s
impairments including the claimant’s symptoms, diagnosis and prognosis, and any physical or
mental restrictions.’” Lopez v. Barnhart, 183 F. App’x 825, 827 (10th Cir. 2006) (unpublished).
Generally, an ALJ should give more weight to opinions from treating physicians. Watkins, 350
F.3d at 1300 (citing 20 C.F.R. § 404.1527(d)(2)). However, it is error to give the opinion
controlling weight simply because it is provided by a treating source. Id.
In determining whether the opinion should be given controlling weight, the analysis is
sequential. First, the ALJ must determine whether the opinion qualifies for “controlling weight”
by determining whether it is well-supported by medically acceptable clinical and laboratory
diagnostic techniques, and whether it is consistent with the other substantial evidence in the
administrative record. Id. If the answer is “no” to the first part of the inquiry, then the analysis is
complete. If the ALJ finds that the opinion is well-supported, he must then confirm that the
opinion is consistent with other substantial evidence in the record. Id. “[I]f the opinion is
deficient in either of these respects, then it is not entitled to controlling weight.” Id.
Second, if the ALJ finds the treating physician’s opinion is not well-supported by
medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the
other substantial evidence in the record, it is entitled to deference and must be evaluated in
reference to the factors enumerated in 20 C.F.R. § 404.1527. Those factors are:
9
(1) the length of the treating relationship and the frequency of examination, (2)
the nature and extent of the treatment relationship, including the treatment
provided and the kind of examination or testing performed, (3) the degree to
which the physician’s opinion is supported by relevant evidence, (4) consistency
between the opinion and the record as a whole, (5) whether or not the physician is
a specialist in the area upon which an opinion is rendered; and (6) other factors
brought to the ALJ’s attention which tend to support or contradict the opinion.
Watkins, 350 F.3d at 1301 (citing Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001)).
The ALJ must give good reasons in his decision for the weight he ultimately assigns the opinion.
Id. (citing 20 C.F.R. § 404.1527(d)(2)).
Third, if the ALJ rejects the opinion outright, he is required to “give ‘specific, legitimate
reasons’ for doing so.” Id. (citing Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1990) (quoting
Frey v. Bowen, 816 F.2d 508, 513 (10th Cir.1987)). The reasons must be of sufficient specificity
to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
physician’s opinion and the reasons for that weight. See Oldham v. Astrue, 509 F.3d 1254, 1258
(10th Cir.2007) (holding that an ALJ, in weighing a treating physician’s opinion, need not
analyze every factor, but must render a decision that is “sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical opinion
and the reasons for that weight.”)
In his step two analysis, the ALJ summarized plaintiff’s medical records at length, and
noted that she had been examined by Drs. Trinidad and Mayoza from August 2010 until January
2011. The ALJ summarized the September 2010 MRI plaintiff received after an automobile
accident, authorized by Dr. Trinidad and reviewed by Dr. Mayoza. (R. 14-5). The MRI revealed
the following impressions:
At C 3/4 and C 4/5, pathology is minimal, and there is only borderline to minimal
foraminal narrowing. The central canal is also borderline narrowed at C 4/5.
10
At C 5/6 there is a more prominent 3 to 4 mm posterior disc protrusion with
anterior surface cord contact and subtle flattening. There is mild narrowing of the
central canal with only borderline narrowing of the foramina.
There has been previous ACDF at C5/6, and the central canal and foramina are
not compromised.
(R. 331).
The ALJ noted that upon physical examination and review of plaintiff’s MRI, Dr.
Mayoza recommended surgery. (R. 15). The ALJ did not note Dr. Mayoza’s diagnosis of “HNP
adjacent to previous fusion level at C6-7,” or his detailed surgical treatment recommendations.
(R. 335). Plaintiff did not have the surgery because she no longer had health insurance. (R. 533,
538). The ALJ noted that Dr. Trinidad recommended that plaintiff continue to take her
prescribed pain medications, Robaxin, Ultram, and Mobic. (R. 15, 416).
Plaintiff did not receive further care for her neck pain until she presented to Bedlam
Longitudinal Clinic in August 2011. (R. 533). Plaintiff received care for her physical problems
from medical students under supervision of licensed doctors at Bedlam from August 2011
through January 2012. (R. 523-62). She also received care for her physical issues from a
physician’s assistant at Morton Clinic from May 2012 through July 2012. (R. 563-70).
The ALJ discussed plaintiff’s March 2011 physical consultative examination with Dr.
Liston.1 (R. 15). He stated that plaintiff reported her pain level to be 10 of 10 and that it radiated
into her right hand. Id. The ALJ misstated Dr. Liston’s report to show “[t]he claimant had normal
range of motion in her neck with mild to moderate neck pain.” Id. Dr. Liston’s report assesses
plaintiff with “Chronic Cervical Pain” and lists her only normal cervical range of motion as
“flexion,” which was listed as 50 of 50; “extension” is listed as 40 of 60; “left rotation” is listed
1
The ALJ incorrectly indicated several times in his decision that Dr. Liston was plaintiff’s
“primary care physician,” instead of a consultative examiner. (R. 21, 22, 23).
11
as 60 of 80; and “right rotation” is listed as 20 of 80; all with pain, and the level of pain is not
indicated. (R. 418, 422).
In his weight discussion, the ALJ gave Drs. Trinidad and Mayoza’s opinions “little
weight,” stating that both doctors last saw plaintiff in 2010 and 2011, and their reports were
completed in 2012 with “no evidence showing that the medical assessments made in 2012, were
compiled after a current examination of the claimant. Physical examinations performed by the
claimant’s primary care physician after January 2011 establish that the claimant does not have
any neurological deficits, cervical instability, or muscle spasms.” (R. 23). The ALJ continued,
crediting Dr. Liston’s March 5, 2011 consultative evaluation with “normal grip strength in her
hands” to further discount these treating physicians’ opinions.2 Id. Next, the ALJ stated that
plaintiff’s September 2010 MRI “clearly shows that the claimant has only mild abnormalities in
her cervical spine with no evidence of even moderate canal stenosis or neural foraminal
narrowing,” and was “inconsistent with the medical statements.” Id. This interpretation appears
to be the ALJ’s own.
For instance, Dr. Mayoza interpreted plaintiff’s 2010 MRI in conjunction with a physical
examination on November 18, 2010, and concluded that plaintiff suffered a “HNP [herniated
disc] adjacent to previous fusion level at C6-7,” and recommended surgery to relieve her
symptoms. (R. 329). Dr. Mayoza even specifically noted the MRI as support for his opinion. (R.
521). Further, Dr. Mayoza’s opinion clearly states at the top of the form “Medical Source
Opinion of Residual Functional Capacity as of 12/16/10,” which was plaintiff’s last appointment
date. Id. Based on the MRI, Dr. Mayoza recommended surgery.
2
See supra at 11, n.1.
12
Likewise, Dr. Trinidad based his diagnoses of plaintiff’s need for surgical intervention on
the 2010 MRI. (R. 521-22). Dr. Trinidad’s opinion is also titled, “Medical Source Opinion of
Residual Functional Capacity as of 01/31/11.” (R. 522).
Finally, Dr. Liston’s consultative exam was performed two months after plaintiff last
visited Dr. Trinidad, and three months after she last visited Dr. Mayoza. (R. 417-22). Dr.
Liston’s cervical spine range of motion test results support the opinions of Drs. Mayoza and
Trinidad, yet the ALJ failed to discuss Dr. Liston’s findings of reduced cervical range of motion
with pain, and miscast his opinion as finding no “cervical instability.” (R. 23, 422). Thus, the
ALJ did not cite any medical opinion in support of his “interpretation” of the MRI.
“In choosing to reject the treating physician’s assessment, an ALJ may not make
speculative inferences from medical reports and may reject a treating physician’s opinion
outright only on the basis of contradictory medical evidence and not due to his or her own
credibility judgments, speculation or lay opinion.” Robinson v. Barnhart, 366 F.3d 1078, 1082
(10th Cir. 2004) (quoting McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir.2002)). The
Court will not re-weigh the evidence, but the Court will evaluate whether the ALJ’s decision
followed the proper standards of review and whether the decision is supported by substantial
evidence. Grogan, 399 F.3d at 1261.
The Court finds that the ALJ’s interpretation of the 2010 MRI and his analysis of the
treating physician opinions of Drs. Trinidad and Mayoza are not supported by substantial
evidence and therefore must be remanded for proper analysis.
Listing 12.05
Listing 12.05 requires a claimant to establish “significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested during the
13
developmental period; i.e. the evidence demonstrates or supports onset of the impairment before
age 22. The required level of severity for this disorder is met when the requirements in A, B, C,
or D are satisfied.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05. 3 So, a claimant must establish
two things to meet Listing 12.05: (1) that he or she has significantly subaverage general
intellectual functioning with deficits in adaptive functioning; and (2) that this functioning
manifested itself before the age of 22. If both of these requirements are met, a claimant can
establish that he or she meets the level of severity required by showing that paragraph A, B, C, or
D is satisfied.
Plaintiff only argues that the ALJ’s “finding that [her] impairments do not meet Listing
12.05C is not supported by substantial evidence.” (Dkt. 20). Plaintiff fails to argue or provide
any evidence that she satisfied the first two prongs of the Listing requirement; therefore, she has
failed to meet her burden. See Wall v. Astrue, 561 F.3d 1048, 1062 (10th Cir. 2009) (“[T]he
claimant bears the burden to prove her disability.”).
Further, even if the ALJ had found that plaintiff met the first two requirements of Listing
12.05, he still found evidence that undercuts her claim of meeting the paragraph C criteria of
Listing 12.05.
Paragraph C is met when a claimant has “[a] valid verbal, performance, or full scale IQ of
60 through 70 and a physical or other mental impairment imposing an additional and significant
work-related limitation of function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05C. Plaintiff
argues that she meets the IQ requirement of Listing 12.05C, as evidenced by the recorded IQ
score during her 2012 consultative examination with Dr. Vaught. However, “[i]t is within the
3
All citations to the Code of Federal Regulations (C.F.R.) are to the 2012 edition. While recent
changes to the C.F.R. are minimal, the Court uses the 2012 version to avoid “retroactive
rulemaking.” Cherry v. Barnhart, 327 F. Supp. 2d 1347, 1360 (N.D. Okla. 2004).
14
province of an ALJ to make factual determinations regarding the validity of an IQ score, that is,
whether the IQ score is ‘an accurate reflection of [a claimant’s] intellectual capabilities.’ In
doing so, an ALJ may ‘consider other evidence in the record.’” Flores v. Astrue, 285 F. App’x
566, 568-69 (10th Cir. 2008) (unpublished)4 (quoting Lax v. Astrue, 489 F.3d 1080, 1087 (10th
Cir. 2007)).
In support of his finding that plaintiff’s IQ score is not an accurate reflection of her
intellectual abilities, the ALJ cited plaintiff’s admission that she graduated high school, attended
regular classes, began vocational training, and worked for twenty years as a rehabilitation
training specialist for developmentally disabled clients. (R. 19, 427). The ALJ noted that as a
rehabilitation specialist, plaintiff cooked, assisted with daily activities, and handled patients’
personal tasks. (R. 21). The record further demonstrates that plaintiff’s duties included
organizing client households, including bills; ordering and distributing medication; shopping for
groceries; assisting clients with paperwork; bathing, and dressing clients; and engaging in meal
preparation, and clean up. (R. 137, 141). Finally, Dr. Vaught did not diagnosis plaintiff with
“mental retardation,” but stated “rule out mild mental retardation.” (R. 584).
Based on the foregoing, the Court finds that the ALJ did not commit reversible error
when he found that plaintiff did not meet or medically equal a Listing.
CONCLUSION
For the reasons set forth above, the Commissioner’s decision in this case is REVERSED
AND REMANDED. On remand, the ALJ should conduct a proper analysis of the opinions of
treating physicians, Dr. Trinidad and Dr. Mayoza, taking care to provide sufficient explanation
for the weight given to those opinions. The ALJ may also reevaluate the other medical source
4
10th Cir. R. 32.1 provides that “[u]npublished opinions are not precedential, but may be cited
for their persuasive value.”
15
opinions, if necessary. The Court finds no reversible error in the other aspects of this case,
particularly with regard to Listing 12.05C finding. See Wells v. Colvin, 727 F.3d 1061, 1066
(10th Cir. 2013) (reversing and remanding for re-evaluation of physical limitations and finding
no reversible error in other aspects of the ALJ’s decision).
SO ORDERED this 28th day of September, 2015.
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?