SUZANNE MITCHELL, Magistrate Judge.
Lisa Nelson (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's (Commissioner) final decision that she was not "disabled" under the terms of the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Stephen P. Friot has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3) and Fed. R. Civ. P. 72(b). Doc. 15.
After a careful review of the record (AR), the parties' briefs, and the relevant authority, the undersigned recommends the entry of judgment affirming the Commissioner's final decision. See 42 U.S.C. § 405(g).
The Social Security Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). "This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just his underlying impairment." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
Plaintiff "bears the burden of establishing a disability" and of "ma[king] a prima facie showing that [s]he can no longer engage in [her] prior work activity." Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis in order to decide whether Plaintiff was under a disability for the relevant timeframe. AR 15-24; see 20 C.F.R. § 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically, the ALJ found Plaintiff:
AR 15-24.
The Social Security Administration's (SSA) Appeals Council found no reason to review that decision, id. at 1-6, "making [it] the Commissioner's final decision for [judicial] review." Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
A court reviews the Commissioner's final decision to determine "whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards." Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Substantial evidence is "more than a scintilla, but less than a preponderance." Lax, 489 F.3d at 1084. A decision is not based on substantial evidence "if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (internal quotation marks omitted). A court will "neither reweigh the evidence nor substitute [its] judgment for that of the agency." Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (internal quotation marks omitted).
Furthermore, a court "must `exercise common sense' in reviewing an ALJ's decision and must not `insist on technical perfection.'" Jones v. Colvin, 514 F. App'x 813, 823 (10th Cir. 2013) (quoting Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (2012)). The ALJ's decision must be evaluated "based solely on the reasons stated in the decision." Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). A "post hoc rationale is improper because it usurps the agency's function of weighing and balancing the evidence in the first instance." Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008).
Plaintiff, through counsel, specifically identifies a single claim of error in her twenty-six page brief: "Error 1. The physician errors and RFC." Doc. 23, at 2, 4 (bolding omitted and capitalization altered). In responding to Plaintiff's brief, counsel for the Commissioner noted that while he "[n]ormally . . . attempts to organize briefs either by following the order of issues as raised by Plaintiff, or at least using headings that refer directly to those used by Plaintiff[, i]n this case, both approaches proved to be elusive." Doc. 24, at 5 n.1. The undersigned agrees with that assessment and, for this report, simply addresses Plaintiff's claims, assertions, representations, and questions in the order presented by her counsel.
Plaintiff begins her brief, Doc. 23, at 4-5, by noting that the ALJ gave "considerable weight" to the opinions
In Plaintiff's view, the State experts' opinions are "stale" because "[t]he last agency opinion was rendered 3/28/2014 [and Plaintiff's] mental condition worsened to the point that she was ultimately hospitalized for suicidality in 2015 . . . ." Doc. 23, at 5. To support that contention, she directs the court to various references in the administrative record to her "stressors," "emotional problems," and "family problems." Id. at 5-7. Plaintiff does not claim, however, that the ALJ—who noted her "long history of psychological treatment," AR 19,—erred by failing to consider that evidence. Doc. 23, at 5-8.
Instead, focusing on the ALJ's findings that she "has only been hospitalized for mental reasons once," AR 19, and "has only needed to be hospitalized once," id. at 21, Plaintiff speculates that, "[e]vidently, this ALJ's test for disability is premised on being repeatedly hospitalized with mental health problems." Doc. 23, at 7. Similarly, she describes the ALJ's "personal litmus test for disability [as] being hospitalization(s). . . ." Id. She then repeats her contention that "a change of medical condition for the worse made [the State experts'] decisions stale. Id. at 8.
Plaintiff fails to demonstrate error. She does not dispute the accuracy of the ALJ's findings that she "has only been hospitalized for mental reasons once" and "has only needed to be hospitalized once." AR 19, 21. And, while she "complains that the state agency medical consultants' opinions were issued before much of the medical evidence concerning h[er mental condition] was generated[, s]he cites no rule preventing the ALJ from giving substantial weight to the state agency expert's opinions." Patterson v. Colvin, 662 F. App'x 634, 639 (10th Cir. 2016). Plaintiff simply "seeks to have this court reweigh the evidence to h[er] benefit, which we do not do . . . ." Id. (citation omitted).
Plaintiff then turns to the State experts' opinions regarding her physical limitations. Doc. 23, at 9. The ALJ gave "some weight" to the experts' opinions that Plaintiff had no severe physical impairments, and he did so because "the opinions . . . "are somewhat consistent with the record . . . ." AR 22. The ALJ explained, "While the undersigned agrees that [Plaintiff] is not disabled and the majority of her medical records represent mental health treatment, the undersigned does find that the record establishes that [Plaintiff] has at least one [physical] impairment that more than minimally limits her." Id.
Plaintiff contends the experts' "opinions had become stale because even the ALJ found severe physical impairments." Doc. 23, at 9. But, once again, she "cites no rule preventing the ALJ from giving [some] weight to the state agency expert's opinions." Patterson, 662 F. App'x at 639. She also questions "[h]ow . . . the ALJ [could] find severe impairments and they find no severe impairments and they get any weight at all[.]" Doc. 23, at 9. But Plaintiff fails to challenge—or mention—the ALJ's explanation for that decision, see id., and her failure to develop and support an argument is sufficient to reject it. See Threet v. Barnhart, 353 F.3d 1185, 1190 (10th Cir. 2003) (finding appellate argument insufficiently developed and declining to "speculate on [appellant's] behalf"); see also Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (holding inadequately framed or developed "perfunctory complaints" are insufficient to invoke review).
Next, Plaintiff questions the ALJ's assessment of her functional restrictions—light physical exertion with multiple postural and environmental restrictions, AR 18,—resulting from her physical impairments. Doc. 23, at 9-12. The ALJ provided this explanation for his physical RFC assessment:
AR 20.
Plaintiff claims error in connection with what she labels "[u]rinary Tract problems." Doc. 23, at 9 (bolding omitted). She asks, "[I]f she has frequent urination, let alone dysuria/incontinence why was that not considered in RFC?" Id. Specifically, she maintains "[s]he had dysuria, urgency and frequency began well before onset," and, as support, points to a single page in the administrative record—AR 285. Id. That particular record documents Plaintiff's report of her symptoms of "frequent urination" and "discomfort with urination" on April 22, 2012, a single occasion almost a year prior to her claimed April 15, 2013 onset of disability date. AR 285. By regulation, "[u]nless [a claimant's] 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." 20 C.F.R. § 404.1509. Plaintiff, however, has not directed the court to any evidence of record bearing on her urinary complaints during the twelve-month period following her report of symptoms on April 22, 2012.
Plaintiff then cites record evidence of an "anterior and posterior repair with a transvaginal tape obturator" procedure performed on June 16, 2014, following the diagnoses of "cystocele, rectocele, stress urinary incontinence." Doc. 21, at 9 (citing AR 908-09). She questions whether that procedure "solve[d] her problems of urinary incontinence" and answers, "It is hard to say because she still has frequent urination in 2014. AR 788." Id. The distinction between urinary incontinence and urinary frequency aside, Plaintiff's lone supporting citation—AR 788—is not to documentation of a diagnosis or to any assessment of functional limitation. Instead, it is to her report of frequent urination on a single occasion in September, 2014. See AR 788.
Next, Plaintiff informs the court "she should have frequent urination because she is taking Chlorthalidone and that is one of the side effects." Doc. 23, at 9. (emphasis added). She relies on the same evidence, AR 788, as her sole support. Doc. 23, at 9. Nonetheless, there is no mention of the side effects of Chlorthalidone in the record she cites. See AR 788. Similarly, Plaintiff claims "[s]he also has taken Lasix for lower extremity swelling. AR 858." Doc. 23, at 9. She explains, "Lasix is a diuretic; that is what it is supposed to do; cause repeated, continuous urination." Id. But according to her only cited evidence of record, Plaintiff was administered only a "one-time dose of Lasix .. . ." See AR 858.
Plaintiff has failed to establish error by the ALJ regarding "Urinary Tract problems." Doc. 23, at 9.
Next, Plaintiff notes that her irritable bowel syndrome is a severe impairment and complains, "But, alas, no symptomology in RFC yet again." Id. at 10. Specifically, she points to her alleged need for "frequent bathroom breaks . . . [t]hat was never considered in RFC" and to her administrative hearing testimony "that she can't eat or she goes to the bathroom . . . a lot." Id. at 11.
To support her claim that the ALJ erred by failing to include an RFC limitation to work where she could have "frequent bathroom breaks," id., Plaintiff maintains that "in September, 2014 she was positive for abdominal pain, constipation and diarrhea and still carried the diagnosis. AR 787, 854." Id. The first of those two cited records, AR 787, is evidence that she reported abdominal pain, constipation, and diarrhea on one occasion in September 2014. And the other, id. at 854, is a treatment note showing she had a past history of irritable bowel syndrome. But neither record establishes that she requires more "bathroom breaks," Doc. 23, at 11, than are allowed during an eight-hour workday with normal breaks. Likewise, the fact that she is on medications— Cholecalciferol and Dicyclomine—to treat her irritable bowel syndrome, id. at 10-11, is not evidence of any such requirement.
Plaintiff has failed to establish error by the ALJ in assessing limitations from her irritable bowel syndrome. Id.
Plaintiff also contends, "There was no provision for migraine headaches in RFC and no consideration of them either." Id. at 11. She advises "[s]he has frequent headaches" and takes Topamax, a medication "used to prevent migraine headaches." Id. As her proof of error, she cites medical evidence of her headache treatment from September 17, 2014 through September 1, 2015. Id. (citing AR 778-805, 886). Nonetheless, Plaintiff fails to suggest just what RFC limitations the ALJ should have included and to explain why, based on the evidence she cites, he should have done so. Id. at 11-12. Plaintiff simply leaves the court to speculate and, as such, fails to establish error regarding the ALJ's RFC assessment.
Finally, Plaintiff contends "[o]ne more thing fits here and that is her medications that were not analyzed properly in light of her RFC and the overall MER." Id. at 12. She states "[s]he takes diuretics and powerful migraine medications [and] has side effects from those medications she testified about." Id. She claims, "The ALJ never addressed those medications properly because if he had accepted their side effects he would have to have accepted more frequent absences and bathroom breaks." Id.
Plaintiff fails to support her claim with any reference to the evidence of record. See id. She identifies two types of medications, diuretics and migraine medication, id., and as to the diuretics, the undersigned has already concluded Plaintiff's claimed limitations from Chlorthalidone and Lasix were not supported by the only evidence she cited. See supra § II(C)(2)(a). Similarly, there is nothing in the records she cited in connection with her migraine treatment, see Doc. 23, at 11-12 (citing AR 778-805, 886), to show that she was restricted on account of any of the possible side effects of Topamax. See AR 780. To the contrary, at an office visit on April 30, 2015, Plaintiff report[ed] no side effects" from Topamax. Id. at 802.
Once more, Plaintiff has failed to establish error in the ALJ's assessment of her physical functional limitations.
After finding that Plaintiff suffered from severe mental impairments— depression, anxiety, personality disorder, and a history of posttraumatic stress disorder, id. at 15,—the ALJ determined "[t]he severity of [Plaintiff's] mental impairments . . . do not meet or medically equal the criteria of listings 12.04 and 12.06." Id. at 16.
In reaching this conclusion, the ALJ "considered whether the `paragraph B' criteria are satisfied" and explained that to satisfy those criteria, Plaintiff's mental impairments "must result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration." Id. He noted that "[a] marked limitation means more than moderate but less than extreme" and that "[r]epeated episodes of decompensation, each of extended duration, means three episodes within 1 year, or an average of once every 4 months, each lasting for at least 2 weeks." Id.
The ALJ then made detailed findings, citing Plaintiff's own reports along with certain objective and opinion evidence of record. Id. at 16-17. He concluded Plaintiff "has only mild limitation" in her activities of daily living, "moderate limitation" in maintaining social functioning, "moderate limitations" with her concentration, persistence, and pace," and, "[a]s for episodes of decompensation" found Plaintiff "was hospitalized once, but the record does not document an episode of decompensation." Id. As such, the ALJ found Plaintiff's mental impairments were severe, see 20 C.F.R § 404.1520a(d)(1), but found those impairments did not meet or equal the severity of a listed mental disorder. See id. § 404.1520a(d)(2).
Plaintiff does not challenge these findings directly. See Doc. 23. Instead, she refers to "[p]hysician weight," id. at 12 (bolding omitted), and points to the ALJ's determination that
AR 21. Plaintiff asserts "this is not the proper way to determine the weight to a treating physician," Doc. 23, at 14, and submits that by giving little weight to Dr. Sklar's assessment, the ALJ effectively rejected that assessment and must therefore provide legitimate and specific reasons for his decision to do so. Id. at 13.
Through its governing regulations, the SSA tells claimants that, "[g]enerally, we give more weight to opinions from your treating sources . . . ." 20 C.F.R. § 404.1527(c)(2).
Id.
Binding court precedent underscores the significance of treating source opinion evidence, holding that when an ALJ "evaluat[es] the medical opinions of a claimant's treating physician, the ALJ must complete a sequential twostep inquiry, each step of which is analytically distinct." Krauser, 638 F.3d at 1330. At the first step, the ALJ must determine if the opinion "is wellsupported by medically acceptable clinical or laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record." Id. "If the opinion is deficient in either of these respects, it is not to be given controlling weight." Id. If the ALJ finds the opinion is not entitled to controlling weight, he must then proceed to the second step of the inquiry to "make clear how much weight the opinion is being given (including whether it is being rejected outright) and give good reasons, tied to the factors specified in the cited regulations for this particular purpose, for the weight assigned." Id. These factors are:
Id. at 1331 (quotation omitted). So long as the ALJ provides a well-reasoned discussion, his failure to "explicitly discuss" all the factors "does not prevent [the] court from according his decision meaningful review." Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).
Here, at the first step, the ALJ expressly found the extreme limitations assessed by Dr. Sklar "were not consistent with the record." AR 21. That is, the ALJ determined that the doctor's opinions were "inconsistent with other substantial evidence in the record" and were "not to be given controlling weight." Krauser, 638 F.3d at 1330. Consequently, he proceeded, as required, to step two to "make clear how much weight the opinion [wa]s being given," id., concluding that Dr. Sklar's assessment merited "little weight . . . ." AR 21. And, contrary to Plaintiff's contention, the ALJ provided specific and legitimate reasons to support his determination. Id.
Plaintiff challenges three of those reasons, starting with the ALJ's stated rationale for rejecting Dr. Sklar's assessment of extreme limitations in activities of daily living: "that [Plaintiff] is basically independent in her personal care . . . ." Doc. 23, at 13. She directs the court to one of the three exhibits the ALJ cited in support of that finding—Exhibit 5E/2—to establish a lack of evidentiary support for the finding. See AR 21, 206. The exhibit in question is one page of a function report Plaintiff completed and submitted to the SSA on which she explained that, due to her conditions, she: dresses in a "nightgown then sweats and change[s] back [and] forth," does not bathe "very often" and "do[es]n[o]t care, not important," "do[es]n[o]t care" about caring for her hair and "used to color/cut"; does not shave; "[f]eed[s] [her]self; and "[u]ses the toilet." Id. at 206. In Plaintiff's view, "If that is caring for your personal self as a normal person you are wrong." Doc. 23, at 13. But the ALJ's stated focus was not on whether Plaintiff's personal care was "normal." Id. Rather, it was on Plaintiff's ability to care independently for her personal needs, AR 21, and Plaintiff fails to argue how, or why, the cited exhibit does not support that finding. See Doc. 23.
Next, Plaintiff quotes another of the reasons the ALJ cited in giving "little weight" to Dr. Sklar's assessment of Plaintiff's extreme limitations: "[c]ooperative with medical providers." Id. at 14; AR 21. She then simply claims "[t]here is no such information in this exhibit," Doc. 23, at 14 (emphasis added), leaving the court to guess which of the three exhibits cited by the ALJ— Exhibits 5E/2, 13F/4, 29F/9, AR 21—she references. Meaningful review of this contention is not possible. See Threet, 353 F.3d at 1190 (finding appellate argument insufficiently developed and declining to "speculate on [appellant's] behalf").
Finally, see Doc. 23, at 14, Plaintiff questions the following reason the ALJ provided in rejecting Dr. Sklar's assessment of extreme limitations: "Dr. Sklar indicated that [Plaintiff] had three or more episodes of decompensation, each of extended duration. The only thing [Plaintiff] had that could be considered an episode of decompensation was her one inpatient hospitalization, and that did not last a full two weeks." AR 21. But despite her challenge, Plaintiff, admits "[t]his is a fact" and does not suggest why it was unreasonable for the ALJ to rely on that fact when weighing Dr. Sklar's opinions. Doc. 23, at 14.
Plaintiff fails to demonstrate error in the ALJ's assessment of the opinion of her treating physician.
The ALJ further concluded that
AR 21-22.
In challenging this assessment, Plaintiff neither confronts the ALJ's ultimate rationale in assigning "little weight" to Dr. Kissel's findings—that "[t]he record simply does not establish that [Plaintiff] is materially limited to such extent that she is unable to work more than a couple hours a day and less than ten hours a week at inconsistent times," id. at 21-22,—nor does she address the ALJ's extensive findings, id. at 19-20, regarding the objective medical evidence of her mental impairments. See Doc. 23, at 14-20. What she does argue is, first, that "hospitalization is not the test for disability." Id. at 14. But the ALJ did not say it was. See AR 21-22. Rather, he measured the consultative examiner's imposition of extreme limitations against the fact that Plaintiff had not required hospitalization due to her impairments.
Plaintiff then points to the ALJ's decision to discount Dr. Kissel's assessment because of Dr. Kissel's determination that Plaintiff's "personality suggested a tendency to over report her personal problems." AR 21; see Doc. 23, at 14-15. Plaintiff fails to establish error. The ALJ's rationale was legitimate—Plaintiff's subjective reports of her personal problems plainly informed Dr. Kissel's findings. See AR at 727-35.
Next, disputing the validity of the ALJ's finding that Dr. Kissel's references to Plaintiff's physical health difficulties were "somewhat outside of [the psychologist's] realm of expertise," id. at 21 (emphasis added), Plaintiff submits that a "clinician is required to look at all of the patient's medical conditions under the DSM V Axis system." Doc. 23, at 15. But, once again, the ALJ did not conclude otherwise. Instead, he cited Dr. Kissel's lack of expertise regarding "physical health" issues in discounting the psychologist's opinions regarding the impact of Plaintiff's physical limitations. AR 21. This was a legitimate consideration. See 20 C.F.R § 404.1527(c)(5) ("We generally give more weight to the medical opinion of a specialist about medical issues related to his or her area of specialty than to the medical opinion of a source who is not a specialist.").
Then, directing the court to the ALJ's description of Dr. Kissel as "a consultative examiner paid by [Plaintiff's] representative," AR 21, Plaintiff contends, "One more thing, ALJ's do not like it when an attorney pays to have his indigent client seen. They think it is a bought and paid for report. They have no trust in the independence of third parties." Doc. 23 at 16. Plaintiff, however, is simply speculating. The ALJ noted Dr. Kissel's role in providing opinion evidence without any suggestion that he had discounted the expert's medical source evidence for that reason. See AR 21-22.
Finally, according to Plaintiff, the ALJ's assessment of Dr. Kissel's opinion "was not a proper treating physician analysis according to this Circuit." Id. at 17.
Plaintiff fails to establish error in the ALJ's assessment of Dr. Kissel's opinions.
Here, Plaintiff returns to her earlier claim, see id. at 9-12, that the ALJ erred in his evaluation of her physical impairments and limitations. See id. at 20-28. The undersigned has addressed Plaintiff's previous contentions and in doing so has documented the ALJ's discussion and analysis of Plaintiff's physical impairments. See supra § II(C)(2)(a-d).
In revisiting the ALJ's assessment of her physical RFC, Plaintiff broadly contends that "[e]ven though the ALJ found . . . fibromyalgia (FMS), irritable bowel syndrome (IBS), hypothyroidism and obesity were severe impairments, there were insufficient corresponding limitations for them in RFC or, alternatively, an explanation of why they really were not that severe or had no impact on work in RFC." Id. at 21.
Specifically, Plaintiff faults the ALJ's assessment of her obesity. Id. at 21-23. Nonetheless, contrary to Plaintiff's assertions and consistent with Social Security Ruling (SSR) 02-1p, 2002 WL 34686281, at *3, the ALJ considered Plaintiff's obesity in the sequential evaluation process, finding at step two that Plaintiff's obesity was a severe impairment. See AR 15. The ALJ did not specifically address whether Plaintiff was presumptively disabled by her obesity at step three but Plaintiff does not suggest that he overlooked probative evidence to that effect. See Doc. 23, at 21-23. Next, in conjunction with his obligations at step four, the ALJ acknowledged "[a]n individual's [RFC] is her ability to do physical and mental work activities on a sustained basis despite limitations from her impairments," AR 14, and "considered [Plaintiff's] obesity in assessing her functioning . . . ." Id. at 21.
Plaintiff also broadly contends that "[e]ven though the ALJ found . . . depression, anxiety, personality disorder[, and] history of post-traumatic stress disorder (PTSD). . . were severe impairments, there were insufficient corresponding limitations for them in RFC or, alternatively, an explanation of why they really were not that severe or had no impact on work in RFC." Doc. 23, at 21. Nonetheless, Plaintiff does not pinpoint any symptom of any particular mental impairment that the ALJ failed to consider or properly evaluate. See id. at 21-28. Likewise, Plaintiff ignores the significant restrictions the ALJ did impose due to the effects of her severe mental impairments: a limitation to work that she could learn in thirty days or less or by demonstration, and to work requiring no more than occasional interaction with either her coworkers or supervisors or with the public. See AR 18.
Plaintiff also cites extensively to the Tenth Circuit's decision in Wells v. Colvin, 727 F.3d 1061 (10th Cir. 2013). See Doc. 23, at 24-27. In doing so, she references "mental impairments [that] are non-severe at step two . . . ." Id. at 24. As neither the ALJ nor Plaintiff identified a mental impairment at step two that was not severe, Plaintiff's reliance on this decision is not apparent.
Finally, Plaintiff maintains "the ALJ's decision does not indicate that he properly considered the cumulative effect of [Plaintiff's] impairments." Id. at 28. She claims that by regulation, 20 C.F.R § 404.1523, "the ALJ must `consider the combined effect of all of [the claimant's] impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." Doc. 23, at 28. But Plaintiff, who quotes only one phrase of the regulation, fails to explain the applicability to this case of a regulation governing the determination of whether a claimant's "physical or mental impairment or impairments are of a sufficient severity that such impairment or impairments could be the basis of eligibility under the law . . . ." 20 C.F.R. § 404.1523(C) (emphasis added).
Plaintiff fails to demonstrate reversible error.
The undersigned recommends the entry of judgment affirming the Commissioner's final decision.
The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court by April 20, 2018, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to make a timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.
