REPORT AND RECOMMENDATION
BERNARD M. JONES, Magistrate Judge.
Plaintiff, Sheila Butler, seeks judicial review of the Social Security Administration's denial of her application for supplemental security income (SSI). United States District Judge David L. Russell has referred the matter for proposed findings and recommendations. See 28 U.S.C. §§ 636(b)(1)(B), 636(B)(3); Fed. R. Civ. P. 72(b). The Commissioner has filed the Administrative Record (AR) [Doc. No. 15], and both parties have briefed their positions.1 For the reasons set forth below, it is recommended that the Commissioner's decision be affirmed.
I. Procedural Background
On April 29, 2016, an Administrative Law Judge (ALJ) issued an unfavorable decision finding Plaintiff was not disabled and, therefore, not entitled to SSI. AR 16-22. The Appeals Council denied Plaintiff's request for review. Id. at 1-3. Accordingly, the ALJ's decision constitutes the Commissioner's final decision. See Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011). Plaintiff timely commenced this action for judicial review.
II. The ALJ's Decision
"The Social Security Administration has established a five-step process for consideration of disability claims." Smith v. Colvin, 821 F.3d 1264, 1266 (10th Cir. 2016). "At the second step, the [ALJ] is to consider whether an impairment is severe." Id. If the impairment is severe, the ALJ "must continue to consider the impairment through the third, fourth, and fifth steps." Id. "If the claimant has no severe impairments, the judge can end the review at the second step." Id.; see also 20 C.F.R. § 416.920(a)(4)(ii) ("If you do not have a severe medically determinable physical or mental impairment . . . or a combination of impairments that is severe . . . we will find that you are not disabled.").
Here, at step two, the ALJ determined that Plaintiff suffers from the medically determinable impairments of "degenerative joint disease of the left knee; status post (s/p) left and right knee arthroscopies; and obesity" but that the impairments, individually or in combination, had not significantly limited Plaintiff's ability to perform basic work activities and were therefore not severe. AR 18-19. Finding no severe impairments, the ALJ found Plaintiff not disabled under the Social Security Act. Id. at 21-22.
III. Claims Presented for Judicial Review
Plaintiff alleges the ALJ: (1) lacked substantial evidence to find Plaintiff's right knee impairment was non-severe; (2) relied on a stale medical opinion; (3) failed to weigh the treating physician's opinion; and, (4) failed to properly consider the combined effects of Plaintiff's obesity with her other impairments. For the reasons set forth below, the Court finds no grounds for reversal.
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. See Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004). While the Court considers whether the ALJ followed the applicable rules of law in weighing particular types of evidence in disability cases, it does not reweigh the evidence or substitute its own judgment for that of the Commissioner. See Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotations and citations omitted).
V. Analysis
At step two, the ALJ must determine "whether the claimant has a medically severe impairment or combination of impairments." Bowen v. Yuckert, 482 U.S. 137, 140-141 (1987). The agency's "severity regulation" governs the determination, and provides in relevant part:
If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled. We will not consider your age, education, and work experience.
Id. (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)).
It is the claimant that carries the burden at step two, and at that stage she must present evidence establishing a medically severe impairment or combination of impairments. See id. at 146 & n.5. A claimant need only make a "de minimis" showing that her condition is medically severe, however, "a mere diagnosis is patently insufficient." Timmons v. Astrue, 360 F. App'x 984, 987 (10th Cir. 2010) (citing Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997)).
A. The ALJ's Alleged Lack of Substantial Evidence
The ALJ found "no objective medical evidence to support that the [Plaintiff's] right knee symptoms and limitations will last more than 12 months." AR 20. According to Plaintiff, the ALJ lacked substantial evidence to support this finding and she should have "fully developed the record." See Pl.'s Br. at 2-8. The Court, however, agrees with the Commissioner that Plaintiff ignores her burden to provide such evidence. See Def.'s Br. at 5-8.
Related to Plaintiff's right knee impairment, the ALJ wrote:
[T]here is no objective medical evidence to support that [Plaintiff's] right knee symptoms and limitations will last more than 12 months. In October 2015, she presented to her orthopedic surgeon with right knee pain. She displayed limited range of motion and palpable pain but no other objective abnormalities. There was no evidence of effusion, crepitation, or ligament instability. Notably, she did not report any left knee symptoms or limitations (Ex. 5F/6). A MRI showed findings consistent with a torn medial meniscus. There was also some medial knee arthritis and mild patellofemoral arthritis (Ex. 5F/5). She underwent right knee arthroscopy in January 2016 (Ex. 5F/2). She reported doing "quite well"2 and her wounds were "healing nicely" one-week s/p surgical intervention.3 A physical examination was normal except for limited range of motion. Though she testified that she has plans to begin physical therapy, her orthopedic surgeon recommended nothing more than over-the-counter anti-inflammatories (Ex. 5F/4). The record documents no subsequent workup or treatment of her right knee. She brought a cane to the hearing but acknowledged that she does not have a prescription (Hearing Testimony). Thus, her right knee symptoms and limitations are not expected to last 12 months.
AR 20.
Plaintiff complains that her hearing occurred on March 3, 2016 — only forty-three days after her surgery — and thus there was "a lack of supporting medical evidence, to indicate whether [Plaintiff] was improving, or whether she was still experiencing limitations after her recovery, or whether it was even successful." Pl.'s Br. at 2. But as the ALJ held, there is no medical evidence showing Plaintiff returned to see her surgeon, Dr. Christopher Jordan, M.D., after three weeks or that she ever started physical therapy. And, as the Commissioner notes, see Def.'s Br. at 7, Plaintiff did not submit any additional evidence to the ALJ after the hearing (but before her decision) or submit additional evidence to the Appeals Council. In fact, there was no request from Plaintiff's counsel for any other existing medical records to be obtained, for a consultative examination to be performed, or for any other development of the record to be undertaken. AR, passim; see also Cowan v. Astrue, 552 F.3d 1182, 1188 (10th Cir. 2008) (finding no error in the ALJ's alleged failure to develop the record, in part because plaintiff's counsel did not request further development). In sum, Plaintiff points to no medical evidence related to her right knee that exists after January 2016. As it was Plaintiff's burden to present evidence at step two, and because this Court cannot reweigh the only evidence Plaintiff did present to the ALJ, the Court should find that the ALJ's step two decision was well supported and reversal is not warranted on this issue. See, e.g., Galloway v. Sullivan, 930 F.3d 33, 1991 WL 52686, at *3 (10th Cir. Apr. 9, 1991) (unpublished op.) (emphasizing that "[i]f the process ends at step two, the burden of proof never shifts to the Secretary" and holding that because "the claimant failed to meet this burden, . . . the ALJ was therefore correct in concluding his evaluation at step two"); Randle v. Colvin, CIV-13-1262-D, 2015 WL 874058, at *1, *3 (W.D. Okla. Feb. 27, 2015) (unpublished district court order) (adopting finding that where plaintiff failed to present sufficient medical evidence to establish a severe impairment, "the ALJ . . . correctly observed that Plaintiff failed to meet her de mimimis burden . . . at step two of the sequential evaluation process").
B. The ALJ's Alleged Reliance on Stale Evidence
In reaching her step-two determination, the ALJ gave "substantial" weight to the initial State agency medical consultant's opinion that Plaintiff's impairments were not severe. AR 21. Plaintiff alleges this was in error, because the opinion was "stale" and was "rendered well before the right knee surgery. . . ." Pl.'s Br. at 9-10.4 The Court again finds no grounds for reversal.
Ordinarily, an ALJ's reliance on a "patently stale opinion" would be "troubling." Chapo v. Astrue, 682 F.3d 1285, 1293 (10th Cir. 2012). However, Plaintiff had to prove she was disabled on or before July 6, 2014. AR 18. And, the ALJ was not only considering whether Plaintiff's right knee impairment was severe at step two, but also whether her left knee and obesity impairments were severe. Id. To that end, Plaintiff first presented with left knee pain in October 2013, had surgery in December 2013, and engaged in physical therapy until January 2014. Id. at 20; see also id. at 209-211, 233, 263, 265. She then presented with renewed left knee pain in June 2014. Id. at 262. Likewise, Plaintiff's obesity was documented from September 2013 through July 2014. See id. at 227-39. Thus, the State agency physician's opinion, dated October 21, 2014, was not stale. And, even if the opinion was stale as to Plaintiff's right knee, the Court has already determined that substantial evidence supported the ALJ's decision as to that impairment. See supra at 4-5. Plaintiff cites no medical evidence, not already considered by the ALJ, that shows her impairments materially changed after the State agency physician's opinion. See Tarpley v. Colvin, 601 F. App'x 641, 644 (10th Cir. 2015) (finding no error in the ALJ's giving great weight to an agency opinion that was formulated before subsequent medical records were available, in part because "nothing in the later medical records . . . supports . . . a material change in [the plaintiff's] condition that would render [the physician's] opinion stale").
C. The ALJ's Alleged Failure to Weigh the Treating Physician's Opinion
Relatedly, Plaintiff argues that the State Agency physician's opinion was "in substantial contrast to Dr. Jordan's opinion, the treating surgeon, because he thought her knee was severe enough she needed to go under general anesthesia (always risky) and have a major non-elective surgery. So, that begs a question: why did the ALJ not weigh Dr. Jordan's treating opinion?" Pl.'s Br. at 10. This argument is without merit.
The ALJ discussed Dr. Jordan's treatment notes and clearly understood that Plaintiff had required surgery on both knees. AR 21. But Dr. Jordan never offered any opinion on Plaintiff's abilities and limitations; thus, there was no "opinion" for the ALJ to weigh. AR 254-67; see Moua v. Colvin, 541 F. App'x 794, 797-98 (10th Cir. 2013) ("Dr. Bhakta's treatment notes do not offer any medical opinions concerning [the plaintiff's] abilities or limitations. . . . Thus, there was no pertinent medical opinion for the ALJ to weigh."); see also Nguyen v. Colvin, No. CIV-15-973-R, 2016 WL 4384373, at *5 (W.D. Okla. July 28, 2016) (unpublished report and recommendation) (rejecting plaintiff's claim the ALJ failed to weigh the treating physician's opinion where the plaintiff cited only treatment notes, holding: "When a physician's treatment notes do not offer any medical opinions concerning a claimant's abilities and limitations, there is no pertinent medical opinion for the ALJ to weigh." (citations and internal alterations omitted)), adopted, 2016 WL 4384799 (W.D. Okla. Aug. 16, 2016) (unpublished district court order). As such, the Court finds no grounds for reversal in the ALJ's alleged failure to weigh Dr. Jordan's opinion.
D. The ALJ's Alleged Failure to Consider Plaintiff's Obesity in Combination with Her Other Impairments
Finally, Plaintiff argues that the ALJ committed reversible error in failing to consider the impact of her obesity in combination with her other impairments. See Pl.'s Br. at 13-15. The Court disagrees.
Related to Plaintiff's obesity, the ALJ found:
[T]he claimant's obesity constitutes no more than a slight abnormality. Her BMI was 33.8 kg/m2 in September 2013 and 36.9 kg/m2 in July 2014 (Ex. 2F). She reported an improved BMI of 34.8 kg/m2 at the hearing in March 2016 (Hearing Testimony). Although she testified that she has trouble getting around, there is no medically documented evidence of mobility or balance deficits. She demonstrated no pain while weight bearing, pivot shifting, or squatting (Ex. 3F, 5F), even one-week s/p right knee arthroscopy in January 2016 (Ex. 5F/4). Accordingly, her obesity, alone or in combination with her other impairments, does not significantly limit her ability to perform basic work activities (SSR 02-1p).
AR 20 (emphasis added).
This language completely belies Plaintiff's assertion that "the ALJ did discuss [Plaintiff's] obesity, but failed to evaluate it in combination with [Plaintiff's] musculoskeletal impairments." Pl.'s Br. at 15. And, to the extent Plaintiff's argument can be read to suggest the ALJ should have found a significant impact, this Court cannot reweigh the evidence. See supra at 3. As such, the Court should reject Plaintiff's request for reversal on this ground.
RECOMMENDATION
The ALJ applied the correct legal standards and considered the relevant medical evidence. Plaintiff demonstrates no reversal error in those assessments and this Court cannot reweigh the medical evidence to reach a different conclusion. So, 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 February 8, 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. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
