Blackburn, District Judge.
The matter before me is plaintiff's
Plaintiff alleges that she is disabled as a result of various mental health impairments, as well as by back strain, sciatica, and numbness of her left foot and leg. Plaintiff previously filed applications for disability insurance benefits and supplemental security income benefits in 2007. Following a hearing, the administrative law judge (ALJ) denied those applications, finding that plaintiff's alleged mental and physical impairments were not severe at that time. The Appeals Council denied review, and plaintiff did not appeal that decision to this court.
Plaintiff filed new applications for disability insurance benefits and supplemental security income benefits in July 2010. When hose applications were denied, plaintiff requested a hearing before an administrative law judge. This hearing was held on May 4, 2012. At the time of this most recent hearing, plaintiff was 49 years old. She has high school education and past relevant work experience as a shoe salesperson and an order selector. She has not engaged in substantial gainful activity since May 16, 2009, the first day following the ALJ's prior unfavorable decision. For purposes of disability insurance benefits, plaintiff's date last insured was September 30, 2009.
The ALJ found that plaintiff was not disabled and therefore not entitled to disability insurance benefits or supplemental security income benefits. For purposes of plaintiff's application for disability insurance
A person is disabled within the meaning of the Social Security Act only if her physical and/or mental impairments preclude her from performing both her previous work and any other "substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2). "When a claimant has one or more severe impairments the Social Security [Act] requires the [Commissioner] to consider the combined effects of the impairments in making a disability determination." Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir.1987) (citing 42 U.S.C. § 423(d)(2)(C)). However, the mere existence of a severe impairment or combination of impairments does not require a finding that an individual is disabled within the meaning of the Social Security Act. To be disabling, the claimant's condition must be so functionally limiting as to preclude any substantial gainful activity for at least twelve consecutive months. See Kelley v. Chater, 62 F.3d 335, 338 (10th Cir.1995).
The Commissioner has established a five-step sequential evaluation process for determining whether a claimant is disabled:
20 C.F.R. § 404.1520(a)(4)(i)-(v).
Review of the Commissioner's disability decision is limited to determining whether the ALJ applied the correct legal standard and whether the decision is supported by substantial evidence. Hamilton v. Secretary of Health and Human Services, 961 F.2d 1495, 1497-98 (10th Cir. 1992); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir.1990). Substantial evidence is evidence a reasonable mind would accept as adequate to support a conclusion. Brown, 912 F.2d at 1196. It requires more than a scintilla but less than a preponderance of the evidence. Hedstrom v. Sullivan, 783 F.Supp. 553, 556 (D.Colo. 1992). "Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusion." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.1992). Further, "if the ALJ failed to apply the correct legal test, there is a ground for reversal apart from a lack of substantial evidence." Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). Although a reviewing court should meticulously examine the record, it may not reweigh the evidence or substitute its discretion for that of the Commissioner. Id.
Plaintiff claims the ALJ erred by (1) failing to disqualify himself from the case; (2) rejecting plaintiff's motion to reopen the prior applications; (3) discrediting her subjective reports of pain and functional limitation; and (4) assessing her residual functional capacity. Finding no such reversible error, I affirm.
Due process guarantees a hearing before a fair and impartial tribunal. Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975); Harline v. Drug Enforcement Administration, 148 F.3d 1199, 1203 (10th Cir.1998). The Commissioner's own regulations ensure that "[a]n administrative law judge shall not conduct a hearing if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision." 20 C.F.R. § 404.940. Nevertheless, an administrative law judge enjoys a presumption of honesty and integrity. Withrow, 95 S.Ct. at 1464. Plaintiff bears the burden of rebutting that presumption by demonstrating "some substantial countervailing reason to conclude that [the ALJ] is actually biased with respect to factual issues being adjudicated." Mangels v. Pena, 789 F.2d 836, 838 (10th Cir.1986).
Plaintiff has failed to rebut that presumption here. At best, and even accepting as true plaintiff's interpretation of the transcript of the administrative hearing, the record demonstrates a terse and perhaps impatient adjudicator who may have grown frustrated in his attempts to keep the administrative hearing on track. Moreover, it is clear that the ALJ had developed opinions about the issues based on his previous adjudication of plaintiff's
Liteky v. United States, 510 U.S. 540, 555-556, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994) (emphasis in original). Nothing in the record before me supports a conclusion that the ALJ exhibited "such a high degree of favoritism or antagonism as to make fair judgment impossible." Id. Remand is not warranted on this basis.
Plaintiff also assigns error to the ALJ's refusal to reopen the prior applications. Judicial review of decisions of the Social Security Administration is limited to "final decisions of the Commissioner made after a hearing." 42 U.S.C. § 405(g). A petition to reopen, however, may be denied without a hearing under the Social Security Act. Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977). Thus "the opportunity to reopen final decisions and any hearing convened to determine the propriety of such action are afforded by the [Commissioner's] regulations and not by the Social Security Act," id. and the regulations specifically provide that the denial of a request to reopen is not subject to judicial review, 20 C.F.R. §§ 404.903(l) & 416.1403(5).
There is a limited exception for cases in which the plaintiff has alleged a colorable constitutional claim. Califano, 97 S.Ct. at 986 ("Constitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions.... [W]hen constitutional questions are in issue, the availability of judicial review is presumed[.]"). To the extent plaintiff intends to assert that her alleged mental limitations rendered her incompetent to pursue her appellate rights and that Social Security Ruling 91-5p, 1991 WL 208067 at *2 (SSA July 1, 1991)
Plaintiff next claims that the ALJ improperly discredited her subjective reports regarding her pain and limitations. More particularly, she suggests that the ALJ failed to properly apply the analysis required by Luna v. Bowen, 834 F.2d 161 (10th Cir.1987),
The ALJ noted that plaintiff suffered from severe impairments, but found that plaintiff's complaints were far out of proportion to the relatively mild objective evidence. The ALJ made it abundantly clear that he believed plaintiff to be unworthy of credence largely due to her vastly inconsistent — and, in some instances, patently false — reports to various treatment providers and consulting examiners regarding both her symptoms and the frequency and amount of her past and present drug and alcohol use.
Such deference is warranted here. The ALJ here gave multiple, specific, legitimate reasons for his determination that plaintiff's allegations were entitled to less than full weight. (See Tr. 33-34.) Although plaintiff points me to evidence in the record which allegedly supports her veracity, her arguments essentially ask me to reweigh the evidence, which I am neither inclined nor empowered to do. See Thompson, 987 F.2d at 1487. The record in this case contained multiple, conflicting medical opinions and wildly divergent accounts of plaintiff's symptoms and medical history. Resolving such conflicts in the evidence is the ALJ's responsibility, and he did not err in discharging that duty here. Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir.1988); Gleason v. Apfel, 1999 WL 714172 at *4 (D.Kan. Sept. 1, 1999).
Plaintiff also takes issue with the ALJ's rejection of the disability opinion of Dr. Matthew Brett, which she claims supports her allegations and was entitled to greater consideration as a treating source opinion. (Tr. 26.) See 20 C.F.R. § 404.1527(c)(2); Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.2003). The opinion on which plaintiff relies consists of Dr. Brett's statement on a Med-9 form
Finally, plaintiff maintains that the residual functional capacity assessment fails to adequately account for the moderate mental limitations found by the non-examining state agency psychological consultant. Dr. Mark Berkowitz noted a number of areas in which he found plaintiff to be moderately limited in the initial portion of his opinion. (See Tr. 60-61.) However, under the Commissioner's guidelines, these findings constitute the medical consultant's analysis of the evidence and are "merely a worksheet to aid in deciding the presence and degree of functional limitations and the adequacy of documentation and does not constitute the RFC assessment."
Musgrave, 966 F.2d at 1375-76 (citing Luna, 834 F.2d at 163-64). The Commissioner's regulations have distilled this test into two parts, but the required analysis is the same. See 20 C.F.R. §§ 404.1529 & 416.929; see also Social Security Ruling 96-7p, 1996 WL 374186 (SSA July 2, 1996).
