Barfuss v. Astrue

Filing 18

MEMORANDUM DECISION that the Commissioners Decision denying Plaintiff Angelia Barfuss application for Social Security disability benefits is AFFIRMED. Signed by Magistrate Judge Brooke C. Wells on 09/27/2011. (asp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
ANGELIA P. BARFUSS,
Plaintiff,

MEMORANDUM DECISION AND ORDER
AFFIRMING THE COMMISSIONER’S
ADMINISTRATIVE DECISION

v.
Case No. 1:10-cv-118 BCW
MICHAEL J. ASTRUE, Commissioner of the
Social Security Administration,
Defendant.

Magistrate Judge Brooke Wells

Plaintiff Angelia Barfuss seeks judicial review of the determination of the Commissioner
of Social Security denying her application for Social Security disability insurance benefits.
Ms. Barfuss, who was born in September of 1972, filed for benefits on May 23, 2007,
when she was 34 years old. Plaintiff contends she is disabled due to fibromyalgia, multiple
myalgias, dysthymic disorder, mixed anxiety disorder with panic attacks, Eustachian tube
dysfunction with loss of hearing, chronic headaches, and obsessive compulsive disorder. The
Social Security Administrative Law Judge (ALJ) found at step two of the required sequential
evaluation process 1 that Ms. Barfuss’ severe impairments were “rule out fibromyalgia/multiple
arthralgias; dysthymic disorder; and a mixed anxiety disorder with panic attacks.” 2 The ALJ
further found that Plaintiff’s fibromyalgia, Eustachian tube dysfunction, ganglion cyst, and
obsessive compulsive disorder were non-severe impairments.

1

See Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005) (explaining the five-step sequential evaluation for
determining if a claimant is disabled).

2

Tr. 13 (Tr. refers to the transcript of the record).

At step three, the ALJ considered Ms. Barfuss’ arguments that she met listings 14.09D, 3
12.04, 4 or 12.06 5 and rejected these arguments. The ALJ found Plaintiff did not have an
impairment or combination of impairments that meets or medically equals any of the listed
impairments in the regulations.
Next, the ALJ found a residual functional capacity (RFC) for light work with limitations
in that Plaintiff can “occasionally climb ramps, stairs, ladders, ropes or scaffolding; balance;
kneel; crawl; stoop; or, crouch” 6 with only mild mental limitations.7 The ALJ found moderate
limitations in Ms. Barfuss’ ability to complete a normal workday and workweek without
interruptions, perform at a constant pace, and use public transportation.
At step four, the ALJ found that Ms. Barfuss was unable to perform her past relevant
work as a child monitor and teacher’s aide II. Then, at step five, the ALJ found Plaintiff could
perform the jobs of final assembler, office helper, and folder. Accordingly, the ALJ concluded
Ms. Barfuss was not disabled as defined by the Social Security Act.
Ms. Barfuss contends that the ALJ’s decision should be reversed for the following
reasons: (1) the ALJ failed to identify all of Plaintiff’s severe impairments; (2) failed to consider
the combination of her impairments in determining the severity at step two and therefore erred in
the RFC determination at step four; (3) erred in failing to properly give controlling weight to
Plaintiff’s treating physician, Dr. Rourk Neville; and (4) erred in determining Plaintiff’s
credibility and rejecting her statements concerning her physical conditions.
3

Listing 14.09D “directs a finding of disability for an individual with a history of inflammatory arthritis with
significant documented constitutional symptoms and signs and involvement of two or more organs/body systems
with at least one of the systems being involved with at least a moderate level of severity.” Tr. 15.

4

Listing 12.04 relates to affective disorders.

5

Listing 12.06 is for anxiety-related disorder.

6

Tr. 16.

7

“I.e., can function well 90% of the time.” Id. at 16.

2

This Court’s review of the ALJ’s decision is limited to determining whether her findings
are supported by substantial evidence and whether the correct legal standards were applied. 8 If
supported by substantial evidence, the findings are conclusive and must be affirmed. 9
Substantial evidence means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” 10 “The possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency's findings from being supported by
substantial evidence.” 11
The ALJ is required to consider all of the evidence; however, the ALJ is not required to
discuss all of the evidence. 12 The court should evaluate the record as a whole, including that
evidence before the ALJ that detracts from the weight of the ALJ’s decision. 13 But, a reviewing
court should not re-weigh the evidence or substitute its judgment for that of the ALJ’s. 14
Further, the court “may not ‘displace the agenc[y's] choice between two fairly conflicting views,
even though the court would justifiably have made a different choice had the matter been before
it de novo.’” 15
In applying these standards, the Court has considered the Administrative Record, the
parties’ briefs and arguments and finds as follows.

8

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); Glenn v. Shalala, 21 F.3d 983 (10th Cir. 1993); Rutledge v.
Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000)

9

Richardson v. Perales, 402 U.S. 389, 402 (1981).

10

Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996).

11

Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004).

12

Id.

13

Shepard v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).

14

Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).

15

Lax, 489 F.3d at 1084 (quoting Zoltanski, 372 F.3d at 1200).

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The Court finds that the ALJ’s determination of severe impairments at step two is
supported by the record. Contrary to Plaintiff’s assertions, the ALJ did not summarily dismiss
Plaintiff’s ailments. Rather, the ALJ specifically addressed each condition and provided reasons
supported in the record for finding them non-severe. For example, the ALJ pointed to the lack of
an assessment by a rheumatologist in assessing Plaintiff’s claims of fibromyalgia. Although Ms.
Barfuss’ treating physician did opine regarding this disorder, his treatment notes undermined his
diagnosis. In similar fashion, the ALJ noted how Plaintiff’s cysts and Eustachian tube
dysfunction had improved with treatment. And finally, during the hearing before the ALJ,
Plaintiff’s own counsel acknowledged that Ms. Barfuss’ obsessive compulsive disorder was not
disabling.
In addition, the severity finding at step two is a threshold showing made by a claimant
that is necessary for the sequential analysis to continue. Once the claimant shows that she has a
severe impairment, the ALJ proceeds with the sequential process and should account for all
impairments, both severe and non-severe, in evaluating a claimant’s RFC. 16 Given the ALJ’s
RFC determination in this case, the Court rejects Plaintiff’s assertion that the ALJ erred at step
two. The Court finds the ALJ’s findings at step two are supported by evidence in the record and
any alleged failures in finding severe impairments would at best, be harmless error. 17
Ms. Barfuss next contends that the ALJ failed to consider her combination of
impairments in determining the severity at step two and therefore erred in the RFC determination
at step four. The record does not support Plaintiff’s position. In assessing Plaintiff’s RFC the
ALJ noted she considered the entire record. The Tenth Circuit has stated that “’[O]ur general
16

20 C.F.R. §§ 416.920, 416.923.

17
See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) (finding that any error at step two is harmless
when the ALJ reaches a proper conclusion that the claimant cannot be denied benefits at step two and proceeds to
the next step in the evaluation process).

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practice, ... is to take a lower tribunal at its word when it declares that it has considered a
matter.’” 18 In this case the Court finds there is no reason to depart from this general practice. A
close inspection of the ALJ’s discussion of the evidence and her reasoning indicates she
considered all of Ms. Barfuss’ impairments.
Next, Plaintiff argues the ALJ failed to give proper controlling weight to her treating
physician, Dr. Rourk Neville. “’Under the regulations, the agency rulings, and our case law, an
ALJ must give good reasons ... for the weight assigned to a treating physician's opinion,’” that
are “’sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source's medical opinion and the reason for that weight.’” 19
Dr. Neville, who treated Ms. Barfuss for over ten years, diagnosed her with fibromyalgia.
Yet, Dr. Neville’s examination findings over the years were often inconsistent with this
diagnosis showing normal findings. As noted by Plaintiff, Dr. Neville’s finding of tender points
is an acceptable method for diagnosing fibromyaligia. 20 However, there is conflicting evidence
in the record and the “limited scope of review precludes this court from reweighing the evidence
or substituting [its] judgment for that of the [Commissioner].” 21 Because the record adequately
reflects the reasoning behind the ALJ’s decision to not give Dr. Neville controlling weight, the
Court will not disturb the ALJ’s determination.
Finally, Ms. Barfuss contends that the ALJ erred in determining her credibility and
rejecting certain statements she made regarding her physical conditions. Specifically, Plaintiff
asserts that the ALJ rejects her “entire testimony solely on the basis of inconsistent statements
18

Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th
Cir. 2005)).
19

Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (quoting Watkins v. Barnhart, 350 F.3d 1297, 1300
(10th Cir. 2003)).
20

SSR 92-2p, 92-9p.

21

Hamilton v. Sec’y of Health & Human Servs., 961 F.2d 1495, 1500 (10th Cir. 1992).

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regarding her bedtime and past drug abuse.” 22 The record, however, reflects that the ALJ cited
to much more evidence than these inconsistent statements in discounting Ms. Barfuss’
credibility.
“Because ‘[e]xaggerating symptoms or falsifying information for purposes of obtaining
government benefits is not a matter taken lightly by this Court,’ [the Court] generally treat[s]
credibility determinations made by an ALJ as binding upon review.” 23 Here, the ALJ found
Plaintiff’s allegations were out-of-proportion to the medical findings in the record. For example,
Ms. Barfuss claimed she needed to nap four hours a day, which was not supported anywhere in
the record. And, despite Plaintiff’s use of a cane, nowhere in the record was a cane prescribed
by a health care professional or deemed necessary to help Plaintiff complete her daily routine.
Further, the ALJ also noted the conservative care Plaintiff received and the lack of deterioration
in her alleged ailments despite continuous treatment for a lengthy period of time. Taken
together, there is much more than inconsistent statements which support the ALJ’s credibility
determination. Accordingly, the Court finds no error.
In conclusion, the Court finds that the ALJ’s Decision is thorough and detailed in its
discussion of the Administrative Record, the ALJ’s findings are supported by substantial
evidence, and she applied the correct legal standards. It is therefore ORDERED that the
Commissioner’s Decision denying Plaintiff Angelia Barfuss’ application for Social Security
disability benefits is AFFIRMED. Judgment shall be entered in favor of Defendant and this case
closed.

22

Reply brief p. 7.

23

Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1988) (quoting Broadbent v. Harris, 698 F.2d 407, 413 (10th Cir.
1983)).

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DATED this 27 September 2011.

Brooke C. Wells
United States Magistrate Judge

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