PAUL M. WARNER, Chief Magistrate Judge.
District Judge Ted Stewart referred this case to Chief Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(b)(1)(B).
Plaintiff alleges disability due to various physical and mental impairments. In August 2013, Plaintiff applied for DIB, alleging disability beginning on November 1, 2012.
This court "review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotations and citation omitted). The Commissioner's findings, "if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance." Lax, 489 F.3d at 1084 (quotations and citation omitted). "In reviewing the ALJ's decision, [this court may] neither reweigh the evidence nor substitute [its] judgment for that of the [ALJ]." Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006) (quotations and citation omitted). "The failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed [are] grounds for reversal." Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (quotations and citation omitted).
A five-step evaluation process has been established for determining whether a claimant is disabled. See 20 C.F.R. § 404.1520(a)(4)(i)-(v); see also Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step process). If a determination can be made at any one of the steps that a claimant is or is not disabled, the subsequent steps need not be analyzed. See 20 C.F.R. § 404.1520(a)(4).
Williams, 844 F.2d at 750-51 (quotations and citations omitted); see 20 C.F.R. § 404.1520(a)(4)(i)-(ii).
Williams, 844 F.2d at 751 (quotations and citations omitted); see 20 C.F.R. § 404.1520(a)(4)(iii).
At the fourth step, the claimant must show that the impairment prevents performance of his "past relevant work." 20 C.F.R. § 404.1520(a)(4)(iv). "If the claimant is able to perform his previous work, he is not disabled." Williams, 844 F.2d at 751. If, however, the claimant is not able to perform his previous work, he "has met his burden of proof, establishing a prima facie case of disability." Id.
At this point, "[t]he evaluation process . . . proceeds to the fifth and final step." Id. At this step, the burden of proof shifts to the Commissioner, and the decision maker must determine "whether the claimant has the residual functional capacity [("RFC")] . . . to perform other work in the national economy in view of his age, education, and work experience." Id.; see 20 C.F.R. § 404.1520(a)(4)(v). If it is determined that the claimant "can make an adjustment to other work," 20 C.F.R. § 404.1520(a)(4)(v), he is not disabled. If, on the other hand, it is determined that the claimant "cannot make an adjustment to other work," id., he is disabled and entitled to benefits.
In support of her claim that the ALJ's decision should be reversed, Plaintiff argues that the ALJ erred (1) at step two of the sequential evaluation process by failing to determine that certain of Plaintiff's alleged impairments were severe and (2) in evaluating certain medical opinions. The court will address those arguments in turn.
As noted above, step two of the sequential evaluation process determines whether the claimant has medical impairments, either individually or in combination, that are severe. See 20 C.F.R. § 404.1520(a)(4)(ii). To establish severity, the claimant must "show that his impairments would have more than a minimal effect on his ability to do basic work activities." Williams, 844 F.2d at 751; see 20 C.F.R. § 404.1520(a)(4)(ii). While step two requires only "a de minimus showing," Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005) (quotations and citations omitted), the claimant still bears the burden of demonstrating severity at step two. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) ("The claimant first must bear the burden . . . at step two that he has a medically severe impairment or combination of impairments."); see also Kirby v. Astrue, 500 F.3d 705, 708 (8th Cir. 2007) ("Severity is not an onerous requirement for the claimant to meet, but it is also not a toothless standard.") (citation omitted). If the claimant fails to carry this burden, and "the process ends at step two, the burden of proof never shifts to the [Commissioner]." Bowen, 482 U.S. at 146 n.5.
In this case, the ALJ concluded at step two that Plaintiff did not have a medical impairment or combination of impairments that were severe. Accordingly, the ALJ concluded that Plaintiff was not disabled and, therefore, not entitled to DIB.
Plaintiff contends that the ALJ erred at step two by failing to determine that the following alleged impairments were not severe: (A) neuropathy, visual impairments, and diarrhea; and (B) cognitive impairments. The court will address those alleged impairments in turn.
Plaintiff's arguments concerning these three impairments fail for several reasons. First, Plaintiff does not argue that she carried her burden of showing that these alleged impairments significantly limited her ability to do basic work activities, as required by the relevant regulations. See 20 C.F.R. § 404.1520(c) ("If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled.").
Second, in her arguments concerning these alleged impairments, Plaintiff merely points to select portions of the record evidence that, according to Plaintiff, demonstrate the existence of the alleged impairments. Plaintiff cannot satisfy her burden of establishing severity by showing the mere existence of the alleged impairments. See Cowan v. Astrue, 552 F.3d 1182, 1186 (10th Cir. 2008) ("[W]hile the showing a claimant must make at step two is de minimis, a showing of the mere presence of a condition is not sufficient.").
Third, Plaintiff does not argue that these alleged impairments significantly limited her ability to perform basic work activities for twelve (12) consecutive months, as required by the relevant regulations. See 20 C.F.R. § 404.1509 ("Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months.").
Finally, the court concludes that Plaintiff's arguments regarding these impairments are nothing more than an effort to reargue the weight of the evidence, which is an unavailing tactic on appeal. It is not this court's role to reweigh the evidence before the ALJ. See Madrid, 447 F.3d at 790. Indeed, it is the ALJ's role to weigh and resolve evidentiary conflicts and inconsistencies. See, e.g., Rutledge v. Apfel, 230 F.3d 1172, 1174 (10th Cir. 2000); Eggleston v. Bowen, 851 F.2d 1244, 1247 (10th Cir. 1988). From an evidentiary standpoint, the only issue relevant to the court is whether substantial evidence exists in the record to support the ALJ's conclusions. See Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (providing that the court reviewing the ALJ's decision reviews "only the sufficiency of the evidence, not its weight") (emphasis omitted); see also Lax, 489 F.3d at 1084 ("The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. We 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.") (quotations and citations omitted) (alteration in original).
In arguing that the ALJ erred by failing to conclude that these impairments were severe, Plaintiff relies exclusively upon her separate argument that the ALJ erred in his treatment of certain medical opinions. Essentially, Plaintiff contends that the medical opinions of psychologist Dr. Lori K. Kotter ("Dr. Kotter"), to which the ALJ assigned partial weight, demonstrate that Plaintiff's cognitive impairments were severe. As will be discussed below, the court concludes that the ALJ did not err in his treatment of Dr. Kotter's medical opinions, or for that matter, in his treatment of any of the medical opinions referenced by Plaintiff. Consequently, and for the reasons set forth below, the court concludes that Plaintiff's arguments concerning the severity of her cognitive impairments are without merit.
The following standards govern the ALJ's evaluation of medical opinions.
Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (quotations and citations omitted) (sixth alteration in original); see also 20 C.F.R. § 404.1527(c).
An ALJ is not required to discuss every factor set forth in the relevant regulations. See Oldham, 509 F.3d at 1257 (stating that when an ALJ does not discuss every factor, it "does not prevent this court from according his decision meaningful review"). As with other evidentiary matters, when an ALJ is considering medical opinion evidence, it is the ALJ's role to weigh and resolve evidentiary conflicts and inconsistencies. See, e.g., Rutledge, 230 F.3d at 1174; Eggleston, 851 F.2d at 1247.
Plaintiff argues that the ALJ erred in his evaluation of the medical opinions of (A) Dr. Matthew B. Johnson, M.D. ("Dr. Johnson") and Dr. Kotter, and (B) the state agency physicians.
For the opinions of both Dr. Johnson and Dr. Kotter, Plaintiff contends the ALJ erred by not engaging in a proper evaluation of those opinions. Plaintiff also asserts that the ALJ erred by impermissibly picking and choosing evidence from those opinions to support the conclusion that Plaintiff was not disabled. Both of those arguments fail.
With respect to Plaintiff's first argument, court concludes that the ALJ engaged in a proper analysis of both Dr. Johnson's opinions and Dr. Kotter's opinions. The ALJ determined that the portion of Dr. Johnson's opinions relating to the severity of Plaintiff's alleged impairments was entitled great weight and that other portions were entitled to partial weight.
The ALJ relied upon proper factors to support his evaluation of Dr. Johnson's opinions. For the portion of Dr. Johnson's opinions to which the ALJ accorded great weight, the ALJ determined that it was consistent with the lack of functional limitations noted in Dr. Johnson's treatment records.
The ALJ also relied upon proper factors to support his treatment of Dr. Kotter's opinions. For one portion of Dr. Kotter's opinions, the ALJ concluded that certain medical evidence supported it.
Turning to Plaintiff's second argument, the court is not persuaded that the ALJ erred by impermissibly picking and choosing evidence from Dr. Johnson's opinions and Dr. Kotter's opinions to support the conclusion that Plaintiff was not disabled. The ALJ evaluated Dr. Johnson's opinions and Dr. Kotter's opinions based on the entire record, assigned weight to those opinions using the proper factors, and provided an explanation as to why portions of those opinions were accepted, and others were rejected. In doing so, the ALJ provided sufficient analysis and explanation. See Harris v. Berryhill, No. 2:16-CV-00933-DBP, 2017 WL 2623848, at *3 (D. Utah June 16, 2017) (unpublished) ("The court recognizes that the ALJ is not required to accept the entirety of [a medical] opinion and that it is well within the ALJ's purview to adopt some parts of the opinion while rejecting others. That said, in doing so the ALJ is required to explain why he has accepted, and given great weight to, some portions of [the medical] opinions while rejecting others.") (emphasis omitted).
For those reasons, the court concludes that the ALJ did not err in evaluating Dr. Johnson's opinions or Dr. Kotter's opinions.
Plaintiff argues that the ALJ erred by failing to properly evaluate the opinions of the state agency physicians. Plaintiff also argues that those opinions cannot constitute substantial evidence to support the ALJ's decision because they were based on an incomplete medical record. The court concludes that both of Plaintiff's arguments are without merit.
First, the ALJ relied upon a proper factor to support his evaluation of the state agency physicians' opinions. See 20 C.F.R. § 404.1527(e)(2)(ii) (providing that factors set forth in 20 C.F.R. § 404.1527(c) apply to evaluation of state agency physicians' opinions). The ALJ concluded that the state agency physicians' opinions were entitled to great weight.
Second, Plaintiff has failed to demonstrate how the state agency physicians' review of an incomplete medical record constitutes reversible error. Indeed, in making this argument, Plaintiff fails to establish how the unreviewed medical evidence would have altered the state agency physicians' opinions. Put another way, Plaintiff has failed to demonstrate that the unreviewed medical evidence establishes additional impairments or restrictions than those shown by the record reviewed by the state agency physicians. Furthermore, as noted by the Commissioner, because the unreviewed evidence is generally consistent with the record examined by the state agency physicians, the unreviewed evidence does not render the state agency physicians' opinions stale. See Tarpley v. Colvin, 601 F. App'x 641, 644 (10th Cir. 2015) (rejecting the claimant's argument that the ALJ should not have relied upon a physician's medical opinion based on an incomplete medical record because the later opinions and subsequent medical records were generally consistent with the opinion and did not render it "stale").
For those reasons, the court concludes that the ALJ did not err in his evaluation of the state agency physicians' opinions.
Based on the foregoing, the court concludes that all of Plaintiff's arguments fail. Accordingly, IT IS HEREBY RECOMMENDED that the Commissioner's decision in this case be AFFIRMED.
Copies of this Report and Recommendation are being sent to all parties, who are hereby notified of their right to object. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The parties must file any objection to this Report and Recommendation within fourteen (14) days after being served with a copy of it. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Failure to object may constitute waiver of objections upon subsequent review.
