REPORT AND RECOMMENDATION

SUZANNE MITCHELL, Magistrate Judge.

Stacie Elaise Johnson (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that she was not "disabled" under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Joe Heaton has referred the matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. §§ 636(b)(1)(B), 636(b)(3). Doc. 17.

Plaintiff asserts the Administrative Law Judge failed to properly weigh the medical evidence. Doc. 16, at 7.1 After a careful review of the AR, the parties' briefs, and the relevant authority, the undersigned recommends the court affirm the Commissioner's 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 h[er] 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. The ALJ's findings.

The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 15-28; see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found Plaintiff:

AR 17-28.

2. The Appeals Council's findings.

The SSA's Appeals Council denied Plaintiff's request for review, so the ALJ's unfavorable decision is the Commissioner's final decision. Id. at 1-5; see Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011).

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

The court reviews the Commissioner's final decision to determine "whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards." Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Substantial evidence is "more than a scintilla, but less than a preponderance." Lax, 489 F.3d at 1084; see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) ("It means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (internal quotation marks and 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 (citation 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) (citation omitted).

III. Discussion.

A. Issues for judicial review.

Plaintiff asserts the ALJ improperly evaluated the medical evidence pertaining to her mental status. Doc. 16, at 7-8. Plaintiff particularly argues the ALJ erred by "dismiss[ing]" the opinion of the consultative examiner, Richard Kahoe, Ph.D. on the issues of Plaintiff's intellectual functioning and her ability to pay attention and concentrate, and by failing to properly weigh Dr. Kahoe's opinion against the state agency psychologists' opinions. Id. at 7-8. Defendant counters that "the ALJ expressly weighed each opinion and gave reasons for the weight assigned to each," and that the "only question for the court[] is whether the ALJ's rationale is supported by substantial evidence." Doc. 21, at 6.

B. Relevant law.

"Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. §§ 404.1527(a)(1), 416.927(a)(1); see Cowan v. Astrue, 552 F.3d 1182, 1189 (10th Cir. 2008) (doctor's "brief statement on the medical form was not a true medical opinion" because it "did not contain [the doctor's] judgment about the nature and severity of [the claimant's] physical limitations, or any information about what activities [the claimant] could still perform"). The applicable regulations governing the consideration of medical opinions distinguish between "treating" physicians, "examining" physicians, and "nonexamining" (or "consulting") physicians. See id. §§ 404.1527(c), 416.927(c). While an examining physician's opinion "[g]enerally" receives more weight than a non-examining physician's opinion, see 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1), an ALJ is not required by "cases or the regulations" to weigh two opinions against one another. See Adkins v. Colvin, 645 F. App'x 807, 810 (10th Cir. 2016) ("There is nothing that [plaintiff] has cited to in cases or the regulations that required the ALJ to weigh these two opinions relative to each other.").

An ALJ must "give consideration to all the medical opinions in the record [and] discuss the weight he assigns to such opinions." Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citations omitted); see Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2008) ("An ALJ must evaluate every medical opinion in the record, although the weight given each opinion will vary according to the relationship between the disability claimant and the medical professional." (citing 20 C.F.R. § 416.927(c))). In deciding what weight to give any medical opinion, the ALJ must consider six specific factors. Hamlin, 365 F.3d at 1215 (citation omitted).5 The ALJ, however, need not "explicitly discuss" or "apply expressly each of the six relevant factors in deciding what weight to give a medical opinion." Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). Rather, in discussing the weight given to a medical opinion, if "[t]he ALJ provided good reasons"-e.g., by making clear both "the weight" given and "the reasons for that weight"-then "[n]othing more was required." Id. at 1258 (internal quotation marks omitted).

C. Consideration of the psychological evidence.

Dr. Kahoe conducted a December 2016 consultative examination of Plaintiff. AR 377-81. In his report, Dr. Kahoe diagnosed Plaintiff with severe "Major Depressive Disorder," "Generalized Anxiety Disorder," and "Agoraphobia, Without Panic Disorder" at Axis I, and, at Axis II, "Borderline Intellectual Functioning-provisional," and "Borderline and Obsessive-Compulsive Personality Features." Id. at 381. In Dr. Kahoe's opinion Plaintiff's thought processes were "generally logical and coherent, with occasional tangential thinking." Id. at 378. While he opined that Plaintiff's attention and concentration skills were "severely impaired," testing showed her verbal recall and computation skills were better than average, her abstracting ability was "marginal," and her intellectual ability was "borderline" given her "background and intellectual level." Id. Plaintiff's "rather vague, jumbled litany of [medical] problems" made her sound to Dr. Kahoe as "more than a little hypochondriac." Id. at 380. Dr. Kahoe's impressions of Plaintiff after his evaluation were that her:

Id. Dr. Kahoe also reported Plaintiff:

Id.

The ALJ considered Dr. Kahoe's report when evaluating whether Plaintiff's psychological issues met or medically equaled a listing. Id. at 18-20. After noting the results of Dr. Kahoe's evaluation of Plaintiff's intellectual skills, Plaintiff's own admissions that she could "drive a car, pay bills, count change, handle a savings account, and use a checkbook/money order," and two state agency psychologists' independent examinations of the evidence (which included Dr. Kahoe's report), the ALJ determined Plaintiff was only moderately limited in her ability to understand, remember, or apply information. Id. at 19 (citing id. at 269-76, 378).

Considering Plaintiff's ability to concentrate, persist, or maintain pace, the ALJ determined Plaintiff was moderately limited, noting that while Dr. Kahoe found Plaintiff's attention and concentration to be severely impaired, other evidence in the record demonstrated Plaintiff could maintain sufficient "attention and concentration to drive a car and to go grocery shopping once a week." Id. at 20 (citing id. at 269-76, 378). Additionally, the ALJ considered the state agency psychologists' opinions that Plaintiff's ability to maintain attention and concentration for extended periods was only moderately limited based on their examination of the totality of the evidence. Id. at 20; see id. at 93-94, 97, 105-06, 109-10, 120, 124, 133, 137.

In crafting Plaintiff's RFC assessment,6 which Plaintiff does not challenge in this appeal, the ALJ "reviewed and analyzed all of the evidence in the record, including evidence not expressly identified or discussed" by the ALJ in the decision. Id. at 22. The ALJ contrasted Plaintiff's treatment records from 2015 and 2016, which were "unremarkabl[e]" for "anxiety, depression or other mental symptoms," with Dr. Kahoe's December 2016 evaluation of Plaintiff which was "notable for logical and coherent thought processes, severely impaired attention and concentration, memory deficits, and marginal abstracting ability." Id. Despite Dr. Kahoe's diagnoses of Plaintiff's mental state, the ALJ observed there were no records related to mental health treatment until August of 2017 when Plaintiff appeared at the Northwest Center for Behavioral Health for a treatment evaluation. Id. at 23 (citing id. at 392).

Plaintiff began a medication regimen and her treatment plan called for weekly counseling sessions. Id. (citing id. at 392, 397). The ALJ observed the record contained no other treatment records except an October 2017 "note from [Plaintiff's] primary care provider" which indicated Plaintiff "was, at that time, treating with a counselor for depression and anxiety." Id. (citing id. at 400). Her denial of sleep difficulties at that appointment, however, was "inconsistent with her [October 2016] function report wherein she reported sleeping just two hours at a time." Id. (citing id. at 269-76).

Regarding the totality of Dr. Kahoe's opinion, the ALJ observed Dr. Kahoe's diagnoses and findings "provided little in the way of a functional assessment" and, in particular, his conclusion that Plaintiff's "attention and concentration and cognitive processes were `severely impaired' offer[ed] little insight into the extent of such impairment and, viewed in the context of an isolated Social Security consultative examination, support[ed] no more than a finding that the [Plaintiff] ha[d] the mental limitations" the ALJ had assessed in the RFC. Id. at 25. The ALJ gave some weight to Dr. Kahoe's determination that Plaintiff was "a little hypochondriac" because it was "supported by the medical evidence of record" and fell within Dr. Kahoe's expertise. Id.7 But the ALJ only afforded partial weight to Dr. Kahoe's multiple diagnoses of Plaintiff's mental functioning. Id. He also noted that Dr. Kahoe's diagnosis of "Borderline Intellectual Functioning-provisional," garnered little weight because it was "inconsistent with the evidence [when] viewed in its entire[t]y." Id. To this point, the ALJ observed Plaintiff had never received special education. Id. He also observed that Plaintiff was fully capable of reading and filling out the October 2016 function report, a work history report, and a recent medical report despite her testimony that she was unable to either read or understand such documents. Id. at 23, 25.

Regarding the state agency psychologists' reports, the ALJ afforded them great weight noting that both on initial review and on reconsideration the doctors had independently examined the evidence, completed mental medical source statements,8 and had opined that "the [Plaintiff] [could] perform simple tasks with routine supervision; [could] relate to supervisors and peers on a superficial work basis; [could not] relate to the general public; and [could] adapt to a work situation." Id. at 24-25 (citing id. at 110, 138).

D. Analysis.

Plaintiff first argues the ALJ legally erred in failing to weigh Dr. Kahoe's findings "against" the state agency psychologists' findings. Doc. 16, at 8. This argument fails because the ALJ is under no duty to weight two opinions relative to one another. See Adkins, 645 F. App'x at 810 ("There is nothing that [plaintiff] has cited to in cases or the regulations that required the ALJ to weigh these two opinions relative to each other."); see also 20 C.F.R. §§ 404.1527(c), 416.927(c) (evaluating "every medical opinion" received and considering six factors in deciding weight to give to "any medical opinion"). The undersigned recommends the court reject this argument.

Plaintiff next argues the ALJ ignored Dr. Kahoe's opinions concerning her mental impairments in the areas of concentration, attention, and intellectual functioning without explanation. Doc. 16, at 8-9. Plaintiff asserts the ALJ instead focused only on her ability to perform simple math problems and her lack of special education classes. Id. But the ALJ considered Dr. Kahoe's findings and found them to be both isolated to the examination and inconsistent with Plaintiff's documented activities of daily living and her recent history. AR 19, 22-23, 25. The ALJ explained that Dr. Kahoe provided numerous diagnoses yet he provided "little in the way of a functional assessment" of the extent of Plaintiff's impairments. Id. at 25. And, the mere presence of a severe impairment does not establish disability under the Social Security Act. See Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997) ("[T]he claimant must show more than the mere presence of a condition or ailment."); Paulsen v. Colvin, 665 F. App'x 660, 666 (10th Cir. 2016) ("The mere diagnosis of a condition does not establish its severity or any resulting work limitations."). Because the record demonstrates the ALJ fully discussed Dr. Kahoe's opinions and provided specific and legitimate reasons for discounting some of his opinions, the court should reject Plaintiff's assertion that the ALJ erred in his consideration of Dr. Kahoe's report. See, e.g., Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (finding the ALJ had reasonably discounted the non-treating physician's opinion of severe migraines when the physician "did not have a treating relationship" with the claimant, had "based his opinion on a single, subjective report" by the claimant, and "his opinion was not supported by the evidence of record").

Finally, Plaintiff argues the ALJ improperly rejected Dr. Kahoe's findings in favor of the state agency psychologists' findings. Doc. 16, at 9-10. The court should conclude otherwise.

The ALJ found the state agency psychologists' opinions were based on their independent reviews of the medical evidence and that their functional assessments corresponded with the record. AR 24-25. In their opinions, both state agency psychologists found that Plaintiff was not significantly limited in her ability to understand or carry out simple instructions, was markedly limited in her ability to understand or remember detailed instructions but only moderately limited in her ability to carry out those instructions, was moderately limited in her ability to maintain attention and concentration for extended periods, was not significantly limited in her ability to make simple work-related decisions, sustain an ordinary routine or work with or in proximity to others without being distracted by them, was markedly limited in her ability to interact appropriately with the general public, and was not significantly limited in her ability to get along with co-workers or peers or maintain socially appropriate behavior. Id. at 97-98, 109-10, 124-25, 137-38.

To the extent these opinions conflicted with Dr. Kahoe's opinions regarding Plaintiff's intellectual ability and her ability to concentrate, the ALJ explained why he was giving them more weight than Dr. Kahoe's opinion. Id. at 24-25. See Allman v. Colvin, 813 F.3d 1326, 1333 (10th Cir. 2016) ("The ALJ is in the best position to resolve conflicts in the evidence."). Having weighed the evidence, the ALJ then "accommodated the symptoms of the [Plaintiff's] depression, anxiety, agoraphobia without panic disorder, and borderline and obsessive-compulsive personality disorder with the mental limitations assessed" in the RFC assessment. AR 26, 21. Each of the jobs the vocational expert identified and the ALJ listed had a reasoning level of 1. Id. at 27. Notably, Plaintiff does not challenge the contents of the RFC assessment and does not explain how it insufficiently accounted for her mental symptoms. Consequently, she cannot establish reversible error. See, e.g., McAnally v. Astrue, 241 F. App'x 515, 519 (10th Cir. 2007) (agreeing with the magistrate judge that "the claimant ha[d] shown no error by the ALJ because she d[id] not identify any functional limitations that should have been included in the RFC assessment or discuss any evidence that would support the inclusion of any limitations") (internal quotation marks omitted); cf. Mays v. Colvin, 739 F.3d 569, 578-79 (10th Cir. 2014) (holding "an ALJ's failure to weigh a medical opinion involves harmless error if there is no inconsistency between the opinion and the ALJ's assessment of residual functional capacity").

The ALJ properly discussed the three psychological opinions, the weight he assigned to each, and the reasoning for that weight. See 20 C.F.R. §§ 404.1527(c), 416.927(c). The court should therefore conclude that Plaintiff's claim that the ALJ improperly considered the medical evidence lacks merit and does not require reversal. See Vigil v. Colvin, 805 F.3d 1199, 1201-02 (10th Cir. 2015) ("`In reviewing the ALJ's decision, we neither reweigh the evidence nor substitute our judgment for that of the agency.'" (quoting Newbold, 718 F.3d at 1262)).

IV. Recommendation and notice of right to object.

For these reasons, the undersigned recommends the court affirm the Commissioner's decision.

The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court on or before March 11, 2020, 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 timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues 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.