REPORT AND RECOMMENDATION

SUZANNE MITCHELL, Magistrate Judge.

Ann Musgrove-Kelly (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. Doc. 4. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge David L. Russell 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. 3.

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).

I. Administrative determination.

A. Disability standard.

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 h[er] underlying impairment." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).

B. Burden of proof.

Plaintiff "bears the burden of establishing a disability" and of "ma[king] a prima facie showing that [s]he can no longer engage in his 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.

C. Relevant findings.

1. Administrative Law Judge (ALJ) findings.

The ALJ assigned to Plaintiff's case applied the standard regulatory analysis in order to decide whether Plaintiff was disabled during the relevant time period. AR 79-92; see 20 C.F.R. § 404.1520(a)(2); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically, the ALJ found Plaintiff:

AR 79-92.

2. Appeals Council action.

The Social Security Administration's (SSA) Appeals Council found no reason to review that decision, so the ALJ's decision is the Commissioner's final decision in this case. Id. at 1-4; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).

II. Judicial review of the Commissioner's final decision.

A. Review standard.

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 (citation omitted). 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). 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).

B. Issues for judicial review.

Plaintiff, appearing through counsel, contends the ALJ's decision is erroneous because: (1) "[t]he ALJ's treatment of the doctors opinions, both treating and nontreating, was flawed," Doc. 14, at 2; (2) the ALJ "fail[ed] to properly consider affective and anxiety disorders and migraines," id. at 8 (bolding omitted and capitalization altered); and (3) "RFC error." Id. at 10 (same). She raises additional issues in narrative fashion. Id. at 2-12. This report addresses her assertions in the order presented.

C. Analysis.

1. Whether the ALJ's treatment of certain medical opinion evidence was flawed.

a. Dr. Wright.

Plaintiff first claims the ALJ rejected an opinion by Dr. Wright "because the ALJ said `as I do not find he treated the claimant I do not consider whether to accord his opinion controlling weight.' AR 89." Id. at 2. She contends the ALJ "is wrong, Dr. Wright did treat [her]," id., and, to support this contention, relies on the following statement made by Dr. Wright in a September 12, 2013 "Workers Compensation Progress Report": "I'm not certain why but her appointment by Dr. Remondino was cancelled today and we were asked to evaluate and treat her." AR 234. She also points to Dr. Wright's reference to a physical examination and X-rays and contends he "made recommendations for further treatment." Doc. 14, at 2. She concludes, "The report refutes the ALJ's findings." Id.

In addition, Plaintiff claims the ALJ's "logic in how he rejected Dr. Wright's opinion is horribly flawed because he gave great weight to the agency doctors and they certainly have never treated [her]. AR 89." Id. In Plaintiff's view, "[w]ith that logic (the requirement for treatment to consider whether to accord controlling weight) the agency opinions could never have been given any weight and should have been rejected too if it were true, or if that was his belief on nontreating opinions, but it is obviously and errantly not and error for which remand should occur." Id. at 2-3.

Plaintiff asks the court to remand this matter "for a proper evaluation of Dr. Wright's opinion" because "[a]ccording little weight to a doctor's opinion is the same as effectively rejecting that opinion and the opinions of examining physicians are presumptively entitled to more weight." Id. at 3. She recites the treating physician rule, cites applicable case law and regulatory factors, id. at 3-4, and maintains the ALJ "obviously never even considered [or] applied [the rule and the requisite factors] properly in his evaluation." Id. at 4.

Plaintiff made these claims without preamble.2 She failed to recount her treatment history, even to the extent of informing the court about the roles Drs. Wright and Remondino played in her treatment, including where they— and the "agency doctors," id. at 2—fit in the longitudinal timeline. She leaves it to the court to connect the dots. This failure only exacerbates the inadequacies inherent in her issue-spotting briefing, a method she continues to follow in concluding her challenge to the ALJ's assessment of Dr. Wright's opinion evidence:

Id. at 4.

The only issue Plaintiff has adequately framed for review is whether the ALJ erred in finding that Dr. Wright did not treat her and declining, on that basis, to consider whether his opinion merited controlling weight. Plaintiff's sparse references—in a brief already devoid of foundational factual information—to findings by Dr. Wright and "[t]he agency" do not provide an adequate basis for review of either the legal or evidentiary sufficiency of the ALJ's ultimate analysis of Dr. Wright's opinion evidence. Id. Similarly, her allusions to a "listing-level disability," to "listing 1.04," and to "arachnoiditis," id., are equally skeletal and insufficient to compel review.3 See id.

Plaintiff's 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); Effinger v. Callahan, No. 97-7001, 1997 WL 446724, at *2 (10th Cir. Aug. 6, 1997) (unpublished op.) (The court "will not comb through the record where counsel has not provided specific references tied to an argument.") (citing SEC v. Thomas, 965 F.2d 825, 827 (10th Cir. 1992)).

As to the claim Plaintiff has developed, she has not demonstrated error. Because the ALJ knew Plaintiff received workers' compensation benefits, he reviewed the medical opinions in connection with her workers' compensation claim and found:

AR 89 (emphasis added).

Under regulations effective from August 24, 2012 until March 26, 2017,—and, so, the regulations in effect at the time of the ALJ's decision, id. at 92, and the Notice of Appeals Council Action, id. at 1—"[i]f [the SSA] f[ound] that a treating source's opinion on the issue(s) of the nature and severity of [claimant's] impairment(s) [wa]s well-supported by medically acceptable clinical and laboratory diagnostic techniques and [wa]s not inconsistent with the other substantial evidence in [claimant's] case record, [the SSA] w[ould] give it controlling weight." 20 C.F.R. § 404.1527(c)(2) (emphasis added). This is the controlling weight analysis the ALJ declined to undertake because he "d[id] not find [Dr. Wright] treated [Plaintiff]." AR 89. In claiming error, Plaintiff only parses the meaning of "treat," Doc. 14, at 2-4, and fails to establish4 under the following (then effective) SSA regulation, that Dr. Wright was a "treating source" whose opinion could receive controlling weight:

20 C.F.R. § 404.1502 (emphasis added).5

Plaintiff fails to demonstrate error by the ALJ in finding that Dr. Wright did not treat Plaintiff and declining, on that basis, to "consider whether to accord his opinion controlling weight. . . ." AR 89.

b. State agency experts.

Next, Plaintiff submits "[s]he had a fractured fusion until it solidified" and "[t]hat is really what makes the ALJ's findings so errant." Doc. 14, at 5. She argues "[t]he agency opinions" "were not really `opinions'" because "the nonexamining agency doctors were prognosticating which is not a current RFC nor a true medical opinion according to the law." Id. To the contrary, as was the case when the State agency experts provided their opinions in this matter,

SSR 82-52, at *2, 1982 WL 31376 (1982). Here, as the ALJ found, the State agency experts' RFC was "an assessment for February 24, 2014,[6] or twelve months after onset (onset February 25, 2013) (See Exhibit 4A, page 10)." AR 90.

Plaintiff fails to demonstrate that the opinions of the State agency experts—the opinions given "the greatest weight" by the ALJ, id. at 89—were not "true medical opinion[s] according to the law." Doc. 14, at 5.

c. Dr. Remondino.

Plaintiff identifies Dr. Remondino as her "treating surgeon," id. at 6, and maintains "the ALJ never weighed the treating neurosurgeon's opinion." Id. at 7. She accurately notes, id., the SSA's requirement that "[i]f the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." SSR 96-8p, at *7, 1996 WL 374184 (1996). Nonetheless, she fails to point to any opinion expressed by Dr. Remondino about Plaintiff's functional capacity that the ALJ overlooked. Doc. 14, at 6-8. Instead, she alleges "that the ALJ's opinion does not . . . analyze Dr. Remondino's findings of only 1+ reflexes at the knees and ankles, which is the loss described by the listing. AR 511." Id. at 6.7 Plaintiff is mistaken. After a thorough discussion and analysis of Dr. Remondino's July 10, 2014 medical findings, the ALJ concluded: "Range of motion is limited and the claimant does experience ongoing pain but there is absence of neurologic deficit." AR 85. Likewise, in addressing whether Plaintiff had an impairment or combination of impairments that met or medically equaled the severity of a listed impairment, the ALJ determined that "[t]he medical evidence indicates that the claimant does not have motor loss with accompanying sensory or reflex loss as required under Section 1.04A." Id. at 83.

In sum, Plaintiff has not established that the ALJ neglected to analyze Dr. Remondino's medical findings bearing on "listing 1.04." Doc. 14, at 4. And, contrary to Plaintiff's claim of error, id. at 6, the ALJ plainly accepted Dr. Remondino's finding that Plaintiff "experience[s] ongoing pain." AR 85. As to Plaintiff's remaining assertions, they are grounded only on speculation and on Plaintiff's own opinion that "[s]he certainly should not be doing light work." Doc. 14, at 7.

2. Whether the ALJ failed to properly consider affective and anxiety disorders and migraines.

Plaintiff claims, "First of all migraines are never mentioned, nor analyzed for RFC even if nonsevere which is error." Id. at 8. The claim—made in an evidentiary vacuum—is not adequately developed for review. See Effinger, 1997 WL 446724, at *2.

Then, Plaintiff claims, "Dr. Holden has been treating depression since 2013. AR 424. The ALJ says it is not severe because `medication is controlling her condition.' AR 85. No it is not. The evidence the ALJ says supports such a finding does not support it." Doc. 14, at 8.

Plaintiff confuses the ALJ's credibility assessment finding regarding her anxiety medications, see AR 85-86, with his assessment of the severity of her mental impairments and maintains "his flawed reasoning is not the proper test for severity." Doc. 14, at 8. She ignores, and, so, does not dispute, what is the ALJ's actual analysis of her mental impairments. See AR 80-82. Similarly, when she contends "[t]he problem [also] lies with . . . th[e] ALJ['s] subsequent failure to properly consider the mental health . . . impairments at steps four and five8 and in determining RFC," Doc. 14, at 10, she not only fails to support her argument but she ignores, and, so again, does not dispute, the ALJ's RFC assessment of her nonsevere mental impairments. See AR 82.

3. Whether there was RFC error.

Plaintiff's claim here is as follows:

Doc. 14, at 10-11.

Limitations "already noted," id. at 10, by Plaintiff have already been addressed in this report. And, in this claim of error, Plaintiff fails to identify any omitted limitation—"already noted," id., or otherwise—leaving the court with nothing to review.

III. Recommendation and notice of right to object.

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 May 2, 2017, 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 referred to the Magistrate Judge in this matter.