Taufer v. Colvin

Filing 24

MEMORANDUM DECISION-A careful and thorough review of the record in plaintiff's case confirms that there is substantial evidence to support the findings of the ALJ that plaintiff is not disabled within the meaning of Title XVI of the Act. Accordingly the decision of the ALJ is affirmed. SO ORDERED. See Order for details. Signed by Judge David Sam on 1/13/14. (jmr)

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
ROXANNE TAUFER,

)
Plaintiff,

vs.

)
)

CAROLYN COLVIN, ACTING
Commissioner of the Social
Security Administration,

Case No. 2:13CV0077 DS

MEMORANDUM DECISION

)
)

Defendant.

)

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
I.

INTRODUCTION

Plaintiff Roxanne Taufer filed an application for Social
Security benefits alleging a disability beginning on July 20,
1984 (amended at the hearing to July 1, 2006). Tr. 69, 164. Ms.
Taufer alleged disability based on cerebral palsy, borderline IQ,
reading and math disorders, carpal tunnel syndrome, depression
and anxiety. Tr. 69. After a hearing, an administrative law judge
(“ALJ”) concluded at step five of the five-part sequential
evaluation process, see 20 C.F.R. § 416.920, see also Williams v.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988), that Plaintiff was
not disabled because she could perform other jobs in the national
economy.

Her request for review was denied by the Appeals

Council.

She now seeks judicial review of the decision of the

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Commissioner of Social Security denying her claim for benefits.
Plaintiff contends that prejudicial error occurred when the
Appeals council failed to consider subsequently submitted
evidence; the ALJ erred in failing to recognize documented
bilateral arm and psychological impairments which would prevent
Ms. Taufer from performing any work in the national economy; and
the ALJ failed to support his credibility findings with
substantial evidence.
II.

STANDARD OF REVIEW

The Court reviews the ALJ’s decision only to determine if
the factual findings are supported by substantial evidence and if
he applied the correct legal standards.

Goatcher v. United

States Dep’t of Health & Human Servs., 52 F.3d 288, 289 (10th
Cir. 1995).

Substantial evidence “means such relevant evidence

as a reasonable mind might accept as adequate to support a
conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971)

(quotation and citation omitted).

The Court may not re-weigh the

evidence or substitute its judgment for that of the Commissioner.
Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995).
III.

DISCUSSION

A. Subsequently Submitted Evidence
The court has considered plaintiff’s argument that the
appeals council failed to consider subsequently submitted
evidence. The new evidence consists of psychological and IQ
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testing performed by Dr. Kotter on September 13, 2012. Tr. 9-20.
The court agrees with plaintiff that the new evidence relates to
the period on or before the date of the ALJ’s decision, because
IQ remains fairly stable throughout one’s life, absent an
intervening event. Plaintiff’s Opening Brief at 10-11 citing
Muncy v. Apfel, 247 F.3d 72 (8th cir. 2001).
is not the only factor to consider.

Nevertheless, this

Despite it’s relevance, the

court concurs with defendant that the evaluation’s findings would
not have changed the ALJ’s decision. Defendant’s
Answer Brief at 21. The ALJ’s opinion was supported by the record
and the totality of the evidence.

Highly supportive of this

conclusion is the ALJ’s finding as follows:
[T]he claimant has not established the necessary
criteria for a meeting or medically equaling of listing
11.07 or any other listed impairment. In his brief, the
claimant’s representative concedes that the claimant
does not have an IQ score of 70 or less, as required
for listing section 11.07A, and that the claimant does
not have disorganization of motor function as described
in 11.04B, necessary for meeting listing 11.07D(See
Exhibit 12E). Therefore, without the necessary criteria
being satisfied, the undersigned finds that the
claimant’s cerebral palsy does not meet or medically
equal listing 11.07A or D. In making this finding, the
undersigned notes that the record establishes a fullscale IQ score of 78, and that the claimant does not
have significant and persistent disorganization of
motor function of two extremities, resulting in
sustained disturbance of gross and dexterous movement,
or gait and station. Although the claimant’s
representative contends that the claimant’s working
memory index score of 63 and verbal comprehension index
score 72 qualify to meet or equal listing 11.07A, the
undersigned disagrees.
Tr. 28-29.

Considering the facts, as opposed the conclusions
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presented by plaintiff, the revised IQ score of 72 is higher than
the 70 or less required for listing section 11.07A.

Furthermore,

even considering the new evidence, Dr. Kotter found “a full scale
IQ of 72, . . . [and] a 95% chance that her true IQ falls within
the range of 68 to 77.” Tr. 12.
Hence the court finds, as noted by defendant in its brief at
21, that the new evidence was not different in a significant way
from the findings of Dr. Allen, who evaluated Plaintiff in
February 2011 and whose findings were considered by the ALJ. (Tr.
28-29, 35, 272-276). The IQ score considered by the ALJ as well
as the IQ score and likely range presented in the new evidence,
as well as Dr. Kotter’s other findings that plaintiff had major
depressive disorder, recurrent, mild; generalized anxiety
disorder; mathematics and reading disorders; and borderline
intellectual function fall within the reasonable consideration
and conclusions of the ALJ and the ALJ’s findings were supported
by substantial evidence as well as the totality of the evidence,
with or without the new evidence.
B. Evaluation of Plaintiff’s Residual Functional Capacity
Plaintiff claims the ALJ failed to include all impairments
supported by the record in his residual functional capacity
(“RFC”) finding. Plaintiff argues that the ALJ found few mental
limitations in his RFC compared to the DDS report that found at
least moderate limitation in completing a normal workday and

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workweek. Tr. 311-314.

In addition, math and reading limitations

were allegedly not given appropriate consideration and the ALJ
findings are inconsistent with the three jobs the Vocational
Expert (“VE”) concluded were available in significant numbers in
the national economy. And last, plaintiff argues reversible error
based on the weight given by the ALJ to Ms. Taufer’s long-term
treating physician’s opinions versus the DDS opinions.
Accordingly, plaintiff argues the ALJ incorrectly assessed her
RFC.
“The determination of RFC is an administrative assessment,
based upon all the evidence of how the claimant's impairments and
related symptoms affect her ability to perform work-related
activities. See Soc. Sec. Rul. 96–5p, 1996 WL 374183, at *2, *5.
The final responsibility for determining RFC rests with the
Commissioner, based upon all the evidence in the record, not only
the relevant medical evidence. See 20 C.F.R. §§ 404.1527(e)(2);
404.1545(a)(3); 404.1546©. Young v Barnhart, 146 F. Appx 952, 955
(10th cir. 2005)(unpublished)(citing SSR 96-5p). The court finds
the ALJ properly carried out his assessment responsibility in
plaintiff’s case.
This court considers the record as a whole in reviewing
plaintiff’s claims on appeal.

In short, the ALJ found that

plaintiff had the RFC to perform a limited range of sedentary
work. Tr. 30-31.

The ALJ based this decision on the objective

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medical evidence and relied on the opinions of Dr. Fyans, who
physically examined Plaintiff in May 2011 (Tr. 331-336), and Dr.
Allen who conducted a consultative examination in February 2011,
(Tr. 272-276).

Both Drs. Fyans and Allen concluded that

plaintiff’s impairments, while significant, were not disabling.
The ALJ’s reliance on these conclusions was not misplaced. The
ALJ also relied on the opinions of Drs. Burkett and Peterson,
nonexamining state agency medical consultants, who reviewed the
medical record in January 2011 and concluded that Plaintiff was
capable of performing a range of light work. Tr. 285-287, 303310, 341. Even with this recommendation, the ALJ combined these
findings with the plaintiff’s self-reported limitations, as well
as the record evidence, to further limit plaintiff exertionally
to sedentary work. Tr. 30.
Regarding plaintiff’s mental limitations, plaintiff argues
that the ALJ, without explanation, disregarded the testimony and
evidence provided that Ms. Taufer had limitations in
concentration, persistence and pace that would not be tolerated
in any job. To the contrary, the ALJ ”weighed the opinion
evidence regarding the claimant’s mental condition,” (Tr.
35)including the opinions of Dr. Allen and nonexaming state
agency psychological consultants and found consistent,
substantial evidence supported by the record, that with the
mental limitation of the residual functional capacity, plaintiff

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is able to perform some work-related activity. Tr. 35.
Finally, regarding plaintiff’s claims that the ALJ failed to
give appropriate weight to Dr. Lytle’s opinion, the ”Treating
Physician Rule” states:
According to what has come to be known as the treating
physician rule, the Commissioner will generally give
more weight to medical opinions from treating sources
than those from non-treating sources. 20 C.F.R.
§404.1527(d)(2). “In deciding how much weight to give a
treating source opinion, an ALJ must first determine
whether the opinion qualifies for ‘controlling weight.’
” Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th
Cir.2003). To make this determination, the ALJ:
must first consider whether the opinion is
well-supported by medically acceptable
clinical and laboratory diagnostic
techniques. If the answer to this question is
‘no,’ then the inquiry at this stage 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. [I]f the
opinion is deficient in either of these
respects, then it is not entitled to
controlling weight.
Id. (quotations omitted); see also § 404.1527(d)(2).
Even if a treating physician's opinion is not entitled
to controlling weight, “[t]reating source medical
opinions are still entitled to deference and must be
weighed using all of the factors provided in [§ ]
404.1527.' ” Id. (quoting Social Security Ruling (SSR)
96–2p, 1996 WL 374188, at *4).
Those factors are:
(1) the length of the treatment 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)
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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.
Id. at 1301 (quotation omitted).
Langely v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (citing
Watkins. V. Barnhart, 350 f.3d 1297, 1300, 1301 (10th Cir.
2003)).

Applying this rule to the facts and evidence in this

case, the court finds the ALJ did not err in evaluating the
opinion of Dr. Lytle, plaintiff’s treating physician. It is clear
the ALJ considered Dr. Lytle’s findings and compared them to the
findings of Dr. Fyans and plaintiff’s self reporting and
therefore properly evaluated the medical and nonmedical evidence
of record.
quantified.

The weight given was discussed, even if not
Furthermore, reviewing the notes of her treating

physican independent of the ALJ’s opinion, the court finds
plaintiff’s self-reported restrictions described in connection
with her application inconsistent with the treatment records and
her self-reporting to her treating physician. Tr. 32, 267-71,
427-42,531-36.
Accordingly, the court agrees with defendant’s summation
that “the ALJ’s decision [was] sufficiently specific to make
clear to any subsequent reviewers [including this court] the
weight the [ALJ] gave to the treating source’s medical opinion
and the reasons for that weight.” Defendant’s Answer Brief at 18,

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citing Oldham v. Astrue, 509 F.3d 1254, 1258 (10th cir.
2007)(citation and internal quotation marks omitted).
Finally, addressing the arguments regarding plaintiff’s
credibility, the ALJ found that ”after careful consideration of
the evidence, the undersigned finds that the claimant’s severe
and extreme allegations are somewhat out of proportion and not
reasonably consistent with the medical record and all other
evidence.

Therefore, the claimant’s allegations are not fully

persuasive. . . . [and the ALJ finds] that the claimant can
perform at a higher level than she states or perceives she can.”
Tr. 32. The court has reviewed the record in its entirety and
concurs with the conclusion of the ALJ. The ALJ considered
opinion evidence, medical evidence, plaintiff’s own treatment
records, examining and nonexamining physician evaluations. Thus,
the court finds the ALJ’s credibility determination was “closely
and affirmatively linked to substantial record evidence.” Wall v.
Astrue, 561 F.ed 1048, 1070 (10th Cir. 2009) (citation and
internal quotation marks omitted).
Brief at 11-15.

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See also Defendant’s Answer

IV. CONCLUSION
A careful and thorough review of the record in plaintiff’s
case confirms that there is substantial evidence to support the
findings of the ALJ that plaintiff is not disabled within the
meaning of Title XVI of the Act. Accordingly the decision of the
ALJ is affirmed.
SO ORDERED.
DATED this 13th day of January, 2014.

__________
David Sam
Senior Judge
United States District Court

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