REPORT AND RECOMMENDATION
BERNARD M. JONES, Magistrate Judge.
Plaintiff, Rachel Sipka, seeks judicial review of the Social Security Administration's denial of disability insurance benefits (DIB) and supplemental security income (SSI). This matter has been referred by Chief United States District Judge Joe Heaton for proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)(B), 636(b)(3) and Rule 72(b), Fed. R. Civ. P. The Commissioner has filed the Administrative Record (AR) [Doc. No. 11], and both parties have briefed their respective positions.1 For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.
I. Procedural Background
On September 4, 2015, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and therefore not entitled to DIB and SSI. AR 9-20. The Appeals Council denied Plaintiff's request for review. AR 1-4. Therefore, the ALJ's decision constitutes the final decision of the Commissioner. Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).
II. The ALJ's Decision
The ALJ followed the five-step sequential evaluation process required by agency regulations. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (explaining process); see also 20 C.F.R. §§ 404.1520; 416.920. The ALJ first determined that Plaintiff met the insured requirements of the Social Security Act through December 31, 2017, and had not engaged in substantial gainful activity since her alleged onset date, November 1, 2012. AR 11.
At step two, the ALJ determined that Plaintiff suffers from the following severe impairments: depressive mood disorder, chronic low back pain, diabetes mellitus and asthma. AR 11. At step three, the ALJ found that Plaintiff's impairments do not meet or medically equal any of the impairments listed at 20 C.F.R. Part 404, Subpart P, App. 1. AR 12.
The ALJ next determined Plaintiff's residual functional capacity (RFC):
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except she can stand and/or walk 30 minutes at a time, with the occasional need for a cane for balance. She must avoid concentrated exposure to dust, odors, fumes and pulmonary irritants. She can perform simple and routine tasks and instructions. She can have no more than occasional interaction with co-workers and supervisors and rare interaction with the public.
AR 13. Given this RFC, the ALJ determined Plaintiff is unable to perform her past relevant work as Certified Nurses Aid. AR 18. Based on the testimony of a vocational expert (VE), however, the ALJ found Plaintiff could perform other work existing in significant numbers in the national economy such as lab equipment cleaner; central supply worker; and counter supply worker. AR 19. The ALJ determined that the VE's testimony was consistent with information contained in the Dictionary of Occupational Titles. Id. Thus, the ALJ determined that Plaintiff was not disabled.
III. Claims Presented for Judicial Review
Plaintiff challenges the weight the ALJ afforded the mental status report prepared by an examining consultative psychologist. Essentially, Plaintiff contends that no evidence contradicted the opinion of the consultative psychologist and that, therefore, the opinion should have been given great weight. Further, Plaintiff contends the ALJ failed to properly consider limitations allegedly resulting from dyslexia.
IV. Standard of Review
Judicial review of the Commissioner's final decision is limited to determining whether the factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Poppa v. Astrue, 569 F.3d 1167, 1169 (10th Cir. 2009). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quotation omitted). A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it. Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004). The court "meticulously examine[s] the record as a whole, including anything that may undercut or detract from the ALJ's findings in order to determine if the substantiality test has been met." Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (citations omitted). While the court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, the court does not reweigh the evidence or substitute its own judgment for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
V. Analysis
A. The Opinion of the Consultative Mental Examiner
Plaintiff contends the ALJ erred in giving only "partial weight" to the results of the mental status examination conducted by of Stephanie C. Crall, Ph.D., for the two-fold purpose of determining Plaintiff's then-current mental status and her ability to manage her own funds. AR 339-342. Plaintiff had had no mental health treatment before attending the mental status examination.
Dr. Crall determined Plaintiff's functional memory was below average, but that her general fund of knowledge was average. Although Dr. Crall did not comment on the results of the test for judgment, it appears from Plaintiff's reported answers to hypothetical questions that Plaintiff's judgment was sound. AR 341.
Dr. Crall relied on Plaintiff's "clinical presentation" as well as her unverified "reported history and symptoms" in diagnosing generalized anxiety order and depressive order, not otherwise specified. Based solely on Plaintiff's representations with no objective testing, Dr. Crall also provisionally diagnosed a "reading disorder." Id. Plaintiff was capable, in the opinion of Dr. Crall, of managing her own funds. AR 342. Dr. Crall included the following summary of her general impressions:
In the opinion of this evaluator, Rachel's ability to engage in work-related mental activities, such as sustaining attention, understanding, and remembering and to persist at such activities was likely adequate for simple and some complex tasks. In the opinion of this evaluator, the presence of chronic pain (i.e. in her neck, shoulders, elbows and feet), anxiety and depression (with irritability) interfered with her ability to obtain and maintain competitive employment.
AR 341.
Two days after the consultative mental examination, Ronald Schatzman, M.D., performed a consultative physical examination. AR 343-349. Plaintiff reported problems with her neck, shoulders, elbows, wrist and feet, but the medical records contain only one record of reported shoulder pain after an emergency room visit. AR 334.2 Plaintiff had apparently sought no regular medical treatment for her physical complaints, as no other relevant medical records are included among the exhibits. The results of the consultative examination did not substantiate any of the medical problems or explain any of the symptoms Plaintiff reported. Examination revealed her cervical spine was non-tender with a full range of motion. Additionally, straight leg raising was negative in both sitting and supine positions. AR 345. All range of motion evaluations were normal as were those for her wrist and hand and lumbosacral spine. AR 346-349.
Plaintiff contends Dr. Crall's opinion—regarding both her mental and physical limitations—should have been afforded "great weight:"
A treating physician's medical opinion is subject to a two-step inquiry, but so is the Consultative Examiner (CE) opinion. An ALJ must give a CE opinion "great weight" if it is "`well-supported by medically acceptable clinical or laboratory diagnostic techniques'" and is not "`inconsistent with the other substantial evidence in the case record.'" Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (quoting SSR 96-2p, 1996 WL 374188, at 2); see also 20 C.F.R. § 416.927(d)(2) (listing same criteria).
Pl.'s Br., 3-4. With regard to the ALJ's consideration of Dr. Crall's opinion, Plaintiff contends the ALJ erred by failing to "account for [Plaintiff's] chronic pain restrictions when assessing residual functional capacity (RFC)." Id. at 4. But Dr. Crall's opinion was based solely on Plaintiff's report of chronic pain, not on "medically acceptable clinical or laboratory diagnostic techniques." Watkins, 350 F.3d 1300. Additionally, the law does not require that a disability claimant be able to work pain-free. See Ray v. Bowen, 865 F.2d 222, 225 (1989) ("disability requires more than mere inability to work without pain"); Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1988) (same); Brown v. Bowen, 801 F.2d 361, 362-63 (10th Cir. 1986) (same). As the ALJ noted:
[T]he medical evidence of record does not reflect any significant treatment for any of the claimant's physical concerns. The focus of the medical records is clearly on her mood disorder or depression. The claimant never had mental health treatment until May 2013 when she commenced care at COCMHC, due to her anger and destructive (to property) responses to interaction issues and life events such as the molestation of her grandchildren and death of her mother. It is very clear that the claimant applied the techniques and strategies taught to her by her therapist to much more effectively manage her feelings and anger. In 2014, enough improvement was noted that the sessions were moved from once a week to once every two weeks. In the last 12 months, the claimant has also missed many more appointments suggesting that she herself finds less need for the therapy. The medical evidence is clear that the claimant is capable of managing her depression and anger in an effective way and that she is able to apply techniques and tools she has learned in order to achieve these objectives. Her activities of daily living are fairly normal and include reading, crochet, embroidery, and watching her two grandchildren for two hours per day.
AR 18. The ALJ did not err in the weight afforded the consultative examiner's opinion. The RFC findings are not overwhelmed by contrary evidence, and reversal is not warranted on this ground.
B. Consideration of Plaintiff's Reported Dyslexia
Plaintiff further asserts that the ALJ erred in failing to discuss Plaintiff's alleged dyslexia in determining her RFC. Pl.'s Br. at 6. The ALJ did acknowledge Plaintiff's allegation that she was dyslexic. AR 14. He also noted Dr. Crall's provisional diagnosis of a "reading disorder." AR 16. The only evidence of functional limitations from dyslexia, however, were Plaintiff's own statements to the consultative examiner and her testimony at the administrative hearing. Plaintiff's alleged dyslexia was not, therefore, a medically determinable impairment, and without a diagnosis of dyslexia from an acceptable medical source, the ALJ properly omitted dyslexia from his step two list of impairments. Thus, reversal is not required.
RECOMMENDATION
After a thorough review of the administrative record and consideration of Plaintiff's assignments of error, the undersigned Magistrate Judge concludes the ALJ's decision is based on substantial evidence in the record as a whole and is free of legal error. Thus, it is recommended that the Commissioner's decision be affirmed.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by January 30, 2018. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the Chief District Judge in this matter.
