SUZANNE MITCHELL, Magistrate Judge.
Kimberly Mathis (Plaintiff) brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of Defendant Acting Commissioner'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 Vicki Miles-LaGrange 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. 5. The parties then consented to the undersigned's exercise of jurisdiction over all further proceedings, including the entry of a final judgment. Doc. 10. Following a careful review of the parties' briefs, the administrative record (AR), and the relevant authority, the undersigned affirms the Commissioner's decision.
Plaintiff applied for benefits, and, by amendment, alleged her impairments became disabling on May 3, 2005. AR 12. AR 601-05, 12. The Social Security Administration (SSA) initially and on reconsideration denied Plaintiff's claim. Id. at 385-89, 392-94. After a hearing and an unfavorable decision from the ALJ, the Appeals council remanded because Plaintiff was not present at the hearing and there was an issue regarding notice. Id at 333-34. Id. at 155-63, 335-51, 414-15, 331-34. After another hearing and unfavorable decision, the Appeals Council again remanded. Id. at 352-75, 480, 376-80. The Appeals Council ordered the ALJ to "[i]f necessary, obtain evidence from a medical expert to clarify the nature and severity of [Plaintiff's] impairments. . . ." Id. at 378. A different ALJ held a hearing, received additional testimony, and determined Plaintiff was not disabled within the meaning of the Social Security Act. Id. at 35-79, 9-34. The SSA Appeals Council found no reason to review her decision, and the ALJ's decision became the Commissioner's final decision. AR 1-6. Plaintiff now seeks review of that decision. Doc. 1.
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 which 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)).
The Commissioner applies a five-step inquiry to determine whether a claimant is disabled. See 20 C.F.R. § 404.1520; see also Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing the five steps). Under this sequential procedure, Plaintiff bears the initial burden of proving she has one or more severe impairments. See 20 C.F.R. § 404.1520; Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If she succeeds, the ALJ conducts a residual functional capacity (RFC)
The ALJ applied the prescribed sequential analysis to determine if Plaintiff was disabled within the meaning of the Social Security Act and found that through June 30, 2006, the date she last met the insured status requirements of the Social Security Act, she:
AR 15, 23, 27.
The court reviews the Commissioner's final "decision to determine whether the factual findings are supported by substantial evidence and whether the correct legal standards were applied." Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014) (internal quotation marks omitted). 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 v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks omitted). The 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).
"An important requirement in this case is that [Plaintiff] had to show [s]he was disabled on or before h[er date last insured — June 30, 2006]." Vititoe v. Colvin, 549 F. App'x 723, 728 (10th Cir. 2013) (claimant had to establish that on or before his date last insured he could not engage in any substantial gainful activity for a continuous twelve-month period); see Potter v. Sec'y of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir. 1990) (holding "the relevant analysis is whether the claimant was actually disabled prior to the expiration of her insured status").
Plaintiff claims that the ALJ erred at step two of the sequential evaluation process by failing to find Plaintiff's "chronic lumbar back pain, chronic migraine headaches, insomnia, depression, post-traumatic stress disorder, and personality disorder to be `severe.'" Doc. 12, at 13.
Even assuming error, it is harmless. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008) ("[A]ny error [at step two] became harmless when the ALJ reached the proper conclusion that [claimant] could not be denied benefits conclusively at step two and proceeded to the next step of the evaluation sequence."); see also Smith v. Colvin, 821 F.3d 1264, 1266-67 (10th Cir. 2016 (where the ALJ "went on to consider [claimant's RFC] . . . any error at step two would have been harmless."). The undersigned finds the ALJ did just that, and as such, any step-two error here does not require reversal of the unfavorable decision. See AR 23.
Here, Plaintiff makes two claims. Doc. 12, at 16-19. First, she maintains that "when formulating an RFC . . . [t]he ALJ must also consider any medical opinions in the form of statements from acceptable medical sources reflecting the medical source's judgment about the nature and severity of the impairment and resulting limitations. 20 C.F.R. § 404.1527." Id. at 16. She points to this February 2006 opinion by Arthur Conley, M.D., who performed Plaintiff's neck surgery in May 2005:
Id. at 16-17. As Plaintiff acknowledges, id. at 17, the ALJ gave this opinion some weight. See AR 25.
Plaintiff faults that determination, arguing that "SSR 96-2p requires that a treating physician's opinion be given controlling weight if it is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with substantial evidence in the record. Robinson v. Barnhart, 366 F.3d 1078 (10th Cir. 2004)." Doc. 12, at 17. To support her argument, she submits only this:
Id. Apart from voicing her disagreement with the ALJ's ultimate decision to give Dr. Conley's opinion some but not controlling weight, Plaintiff does not challenge (or even address) the reasons the ALJ stated for doing so:
AR 25.
Plaintiff fails to demonstrate error. She fails to direct the court to any authority to support her sole contention that the ALJ was somehow required to give Dr. Conley's opinion controlling weight because he was a specialist and Plaintiff's surgeon and had treated her for over a year.
Second, Plaintiff maintains "[t]he ALJ also failed to develop a proper RFC, because she did not include all of [Plaintiff's] limitations." Doc. 12, at 17. She claims "the ALJ's RFC fails to address any non-exertional mental limitations that exist as a result of her depression, PTSD, and pain disorder. (Tr. at 23)." Id. Plaintiff alleges:
Id. at 17-18.
In reviewing Plaintiff's mental impairments, the ALJ noted Plaintiff failed to mention any on her disability application and was not receiving mental health counseling. Even though her primary care physician had prescribed psychotropic medications and valium, he made no notation of any functional limitations stemming from mental impairments. See AR 20. The ALJ further noted that Dr. Danaher based his assessment only on Plaintiff's self-reported symptoms. Id. Plaintiff reported to Dr. Danaher that she had been referred to mental health counseling but had "always refused treatment." Id.
The ALJ also relied on the opinion of Dr. Levit, a medical expert who testified at Plaintiff's administrative hearing, which "did not suggest any discrete mental impairment with mental limitations." Id. The ALJ gave greater weight to Dr. Levit's opinion, because he had full access to the complete medical evidence of record and was not limited to Plaintiff's self-reported history and symptoms. Id. at 21. The ALJ also considered the state agency psychological consultants' opinions from Drs. Hannah Swallow and Bernard Pearce, but gave these "little weight" as they lacked support in the medical evidence of record. Id.
At the hearing, Dr. Levit testified regarding Plaintiff's mental limitations. Id. at 45. He testified that Plaintiff's psychological complaints stemmed from her physical condition including Plaintiff's panic attacks, migraine/headaches, depression disorder—each is "secondary to a general medical condition by history. . . ." Id. "[E]verything seems to point to the fact that her symptoms . . . [are] caused by her physical complaints." Id. at 46. Dr. Levit considered Plaintiff's function report, and noted it "was mostly based on physical[] too." Id.; see id. at 650-59.
Plaintiff further maintains that despite finding that Plaintiff "had mild limitations in activities of daily living, social functioning, and concentration, persistence, and pace," Doc. 12, at 18, "the ALJ omitted any mental limitations from the RFC, despite finding that there were mild limitations. (Tr. at 21-22). As such, the ALJ failed to perform a proper RFC analysis. . . ." Id. at 19. Plaintiff suggests that in assessing Plaintiff's RFC, the ALJ "simply . . . disregard[ed]" what she had found at step two to be Plaintiff's nonsevere mental impairments. Id. In support of her claim, she argues that "a conclusion that the claimant's mental impairments are non-severe at step two does not permit the ALJ simply to disregard those impairments when assessing a claimant's RFC and making conclusions at Step 4 and Step 5. Wells v. Colvin, 727 F.3d 1061, 1068-1069 (10th Cir. 2013)." Id.
The ALJ's findings regarding Plaintiff's mild limitations were in "broad functional areas . . . known as the `paragraph B' criteria." AR 21. As the ALJ correctly recognized, the Social Security Administration has specifically directed by Ruling that "the limitations identified in the `paragraph B' criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process." Id at 22; see SSR 96-8p, 1996 WL 374184, at
Once again, Plaintiff fails to demonstrate error.
Plaintiff last challenges the ALJ's credibility assessment, arguing the ALJ improperly determined she possibly engaged in "drug-seeking behavior." Doc. 12, at 19-20. She maintains her "overall amount of medical treatment" "bolster[ed] her credibility regarding her complaints of pain." Id. at 20.
The ALJ found:
AR 24-25 (emphases added). The ALJ also noted that Plaintiff's February 2007 function report revealed she brushed her horses, while also reporting an inability to hold anything. Id. at 21-22. She irons, shops, does laundry, drives short distances, and lifts furniture, but needs helps dressing and no longer cooks. Id. at 650-57. She reported in 2005 she no longer drove, yet was in a car accident in 2006 and reported riding a motorcycle as well. Id. at 293, 698, 810. And she reported lifting furniture in 2010. Id. at 946.
Credibility determinations remain the province of the ALJ, and the court will not overturn them if substantial evidence supports the determinations. See Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005). Here, the ALJ cites medical findings throughout the record to determine Plaintiff lacks credibility and appropriately gives limited weight to doctors' opinions derived from her non-credible subjective claims. Because the ALJ set forth specific evidence to support his determination of Plaintiff's lack of credibility, this Court finds no error in the ALJ's rejection of her subjective complaints as to pain. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).
The court affirms the Commissioner's decision.
