REPORT AND RECOMMENDATION

GARY M. PURCELL, Magistrate Judge.

Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying his application for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. §423. Defendant has answered the Complaint and filed the administrative record (hereinafter AR___), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). For the following reasons, it is recommended the Commissioner's decision be affirmed.

I. Administrative History and Final Agency Decision

Plaintiff filed his application for disability insurance benefits on November 13, 2015. AR 146-51. Plaintiff alleged he became disabled on June 15, 2014, due to depression, back, knees, arms, and feet issues, cholesterol, arthritis, and high blood pressure. AR 172. The Social Security Administration denied Plaintiff's application on February 29, 2016, see id. at 50, 51-62, and on reconsideration on September 14, 2016. AR 63-76, 77.

Plaintiff appeared with counsel and testified at an administrative hearing conducted on before an Administrative Law Judge ("ALJ") on May 4, 2017. AR 571-98. A vocational expert ("VE") testified at the hearing. AR 591-96. The ALJ issued a decision in which she found Plaintiff was not disabled within the meaning of the Social Security Act. AR 31-43. Following the agency's well-established sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity since November 13, 2015. AR 36. At the second step, the ALJ found Plaintiff had severe impairments of degenerative disc disease, degenerative joint disease of the left knee status post surgery, obesity, anxiety, and depression. Id. At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. AR 37.

At step four, the ALJ found Plaintiff had the residual functional capacity ("RFC") to perform a limited range of light work. AR 38. Specifically, Plaintiff can never climb ladders, ropes, or scaffolding and can only occasionally perform all other postural activities including balancing, stooping, crouching, crawling, kneeling, or climbing ramps or stairs. Id. Plaintiff is also limited to simple, routine, and repetitive tasks with no strict production requirements, no more than occasional changes in the work setting, no public contact, and only occasional contact with supervisors and coworkers. Id.

Relying on the VE's testimony as to the ability of a hypothetical individual with Plaintiff's work history, age, education, and determined RFC, the ALJ concluded Plaintiff is unable to perform any past relevant work. AR 41-42. Additionally, the ALJ, still relying on the VE's testimony, concluded Plaintiff could perform the jobs of housekeeper, inspector packer, and small product assembler. AR 42-43. Based on these findings, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from November 13, 2015 through the date of the decision. AR 43.

The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).

II. Issues Raised

Plaintiff raises one issue on appeal. Specifically, Plaintiff argues the ALJ failed to properly consider Plaintiff's tearful affect and its corresponding limitation in the RFC. Plaintiff's Opening Brief (Doc. No. 16) at 3-6.

III. General Legal Standards Guiding Judicial Review

The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "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 v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citations and quotations omitted). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).

The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "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); accord 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. §404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).

The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. See 20 C.F.R. § 404.1520(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of her age, education, and work experience." Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "The claimant is entitled to disability benefits only if he is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).

IV. Analysis

Plaintiff contends that in determining the RFC, the ALJ failed to properly consider his tearful affect. Specifically, Plaintiff contends that he suffers from frequent "crying episodes" and that when these occur, he would inherently be off-task for significant periods of time during the workday. Doc. No. 16 at 4. As a result, he argues the ALJ erred by not including such a corresponding limitation in his RFC. Id. However, in reviewing the record, the undersigned concludes there is no medical evidence to support Plaintiff's contention.

The record indicates Plaintiff presented as "tearful" during medical visits with Kristin Colton, P.A. AR 348, 352, 356, 360, 364, 402, 451, 455, 513. Additionally, during his consultative mental examination on February 22, 2016, Dr. Julie Wallace noted that Plaintiff's "mood was depressed and he was teary at different times during the interview." AR 340. Finally, Dr. Bill Buffington occasionally noted that Plaintiff was positive for crying spells. AR 286, 289, 292, 300, 370, 375, 378, 383, 416, 425, 440, 459.

Plaintiff acknowledges the ALJ considered his tendency toward tears in her decision. In the RFC, the ALJ limited Plaintiff to simple, routine, repetitive tasks and no public contact. AR 38. In giving substantial weight to the opinion of Dr. Jason Gunter, the state reviewing psychologist, the ALJ specifically tied these RFC limitations to Plaintiff's tearful affect, stating, "His opinion is consistent with the generally benign mental status exams from depressed mood. The claimant has some memory loss and a tearful affect, and should avoid detailed or complicated tasks and public contact, but there are no significant findings to suggest he could not complete simple tasks or interact with coworkers." AR 41.

Plaintiff complains that the ALJ's limitations to simple tasks and no public contact is a "mere smokescreen" because they are not related to a tearful affect. Doc. No. 16 at 4. He also contends that the appropriate limitation would have been related to Plaintiff being "off-task for the duration that he is crying." Id. As the Commissioner points out, however, in asserting this argument, Plaintiff relies solely on his own speculation and/or assertions as there is no medical evidence in the record indicating Plaintiff would require such a limitation. Doc. No. 17 at 8.

Not a single medical provider or consultative examiner, including Dr. Buffington, Ms. Colton, P.A., Dr. Wallace, or Dr. Gunter, suggested any functional limitations due to crying. Indeed, Dr. Gunter concluded that Plaintiff could perform simple tasks with routine supervision, perform activities within a schedule, sustain an ordinary routine, complete a normal workday and workweek without interruptions from psychologically based symptoms, interact appropriately with coworkers and supervisors for incidental work purposes, and adapt to work changes with some forewarning. AR 73-74. Notably, Plaintiff did not challenge the ALJ's decision to give substantial weight to Dr. Gunter's opinion.

Typically, in cases similar to the present, a plaintiff's alleged error rests on a disagreement with the ALJ's decision where the record may support differing conclusions. In those situations, the Court usually explains that while the record contains conflicting evidence, as long as there is substantial evidence supporting the ALJ's decision, it should be affirmed. See, cf., White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001) (recognizing that much of the medical evidence was in conflict but the ALJ weighed all the evidence in reaching his decision and the court could not "now reweigh that evidence and substitute [its] judgment for his"). Here, the record does not contain conflicting evidence, as there is a complete absence of evidence to support Plaintiff's contention that he required a limitation allowing him to be off-task for significant time periods during the workday due to crying. Accordingly, Plaintiff's claim of error should be denied.

RECOMMENDATION

In view of the foregoing findings, it is recommended that judgment enter affirming the decision of the Commissioner. Plaintiff is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court on or before August 29th, 2019 in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").

This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.