SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

Darlene Wright (Plaintiff) brings this action for judicial review of the Defendant Commissioner of Social Security's final decision that she was not "disabled" under the terms of the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). United States District Judge Robin J. Cauthron referred this 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. 16. Following a careful review of the parties' briefs, the administrative record (AR), and the relevant authority, the undersigned recommends the court affirm the Commissioner's decision.

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 his 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 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 timeframe. AR 17-25; see 20 C.F.R. § 404.1520(a)(4), see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). Specifically, the ALJ found Plaintiff:

(1) had not engaged in substantial gainful activity since her alleged onset date of November 29, 2013;

(2) had the severe impairments of obesity and diabetes mellitus;

(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;

(4) had the residual functional capacity to perform medium work with some restrictions;

(5) could perform her past relevant work as a manager and a cleaner and therefore;

(6) was not disabled.

2. Appeals Council findings.

The SSA's Appeals Council denied Plaintiff's request for review on September 21, 2017, so the ALJ's unfavorable decision is the Commissioner's final decision in this case. AR 1-6; 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 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). In applying that standard, 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 contends that the ALJ (1) failed to weigh the opinion of consultative examiner Glenn Shean, PhD, (2) "misconstrued" Dr. Shean's opinion and improperly excluded mental limitations from Plaintiff's residual functional capacity, and (3) improperly weighed the opinion of consultative examiner Paula Crawford-Harris, MD. Doc. 19, at 3-10. Because Plaintiff's first two arguments are closely related, the court will evaluate them together.

1. ALJ's evaluation of Dr. Shean's opinion.

Plaintiff argues that the ALJ "failed to ever weigh" Dr. Shean's opinion. Doc. 19, at 3. Plaintiff contends that it was "critical" for the ALJ to weigh Dr. Shean's opinion because he assessed mental limitations that the ALJ did not include in the RFC. Id.

Plaintiff also argues that the ALJ "cherry-picked" portions of Dr. Shean's opinion consistent with an unfavorable disability finding. Id. at 5. She contends the ALJ omitted "critical limitations" from Dr. Shean's opinion in the RFC assessment. Id. at 6.

Plaintiff correctly observes that in weighing Dr. Shean's opinion, the ALJ did not specify the precise weight he was giving Dr. Shean's opinion, for example by using terms such as "great weight," "some weight," or "little weight," as is typical in Social Security hearing decisions.

Plaintiff is also correct that the ALJ opted not to mention certain portions of Dr. Shean's opinion. The ALJ found that

Ms. Wright attended a consultative psychological examination with Dr. Glenn Shean in May 2014, at which time she reported she had not received mental health treatment but had been prescribed medication to address her chronic pain, anxiety, and depression

(Exhibit 8F). Dr. Shean noted Ms. Wright's mood appeared mildly dysphoric, but she otherwise performed adequately on the mini mental status examination and showed no signs of perceptual or thought abnormalities. Dr. Shean's diagnostic impression included depressive disorder, but he opined Ms. Wright's depression in and of itself would not provide a barrier to her working on a regular and continuing basis.

In evaluating Dr. Shean's opinion, the ALJ and Plaintiff seemed to have reached two different conclusions regarding Dr. Shean's assessment. The ALJ noted Dr. Shean's report that Plaintiff performed adequately on the mini mental status examination and showed no signs of perceptual or thought abnormalities, and the ALJ understood Dr. Shean's conclusion to be that Plaintiff's "depression in and of itself would not provide a barrier to her working on a regular and continuing basis." Id. at 23, see id. at 413-14. Plaintiff has instead emphasized Dr. Shean's finding that Plaintiff could perform "moderately complex as well as simple and repetitive tasks" and that Plaintiff's combination of physical and emotional disorders would result in difficulties "dealing with the demands and stresses encountered in full time competitive work." Doc. 19 at 6; AR 414. However, "[t]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence. We may not displace the agency's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation and quotation omitted).

In evaluating Plaintiff's mental health complaints, the ALJ found that Plaintiff had a history of anxiety and insomnia, for which she was "periodically" prescribed medication, but that her mental health impairments "have not been a focus of her medical treatment." Id. The ALJ found that while the record contained a diagnosis of depression and evidence that Plaintiff had been prescribed medication for this condition, "there were, however, few comments or notes regarding [Plaintiff's] psychological symptoms or their impact on her functioning." Id. The ALJ concluded that Plaintiff's allegations concerning her mental impairments "were not supported by the evidence; for example, she has not undergone any formal mental health treatment, has not regularly reported psychological symptoms, and has not been observed to exhibit significant psychological symptoms." Id. at 24.

The ALJ also assigned "very significant weight" to the opinions of the state agency psychological consultants, who both opined that Plaintiff did not have any severe mental impairments, reasoning that the state agency findings were consistent with the record, which "did not show [Plaintiff] has been limited to more than a minor degree by her psychological symptoms since her alleged onset of disability date." Id. at 24, 62-63, 76-77.

Any error stemming from the ALJ's failure to discuss every functional limitation assessed by Dr. Shean and to assign a specific weight to Dr. Shean's opinion is harmless. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162-63 (10th Cir. 2012) (Where the ALJ did not "explicitly state[]" what weight he assigned to a consultative examiner's opinion, any "alleged error" was harmless where the opinion was generally consistent with the ALJ's RFC findings and Plaintiff suffered no prejudice.). The ALJ's adequately considered and explained his interpretation of Dr. Shean's opinion. The ALJ also considered Plaintiff's lack of formal mental health treatment in assessing her RFC. The ALJ adequately explained his rationale for finding Plaintiff's mental impairments to be non-severe. See Doyal v. Barnhart, 331 F.3d 758, 761 (10th Cir. 2003) (although ALJ did not use "phrase 'I find' in connection" with conclusion, "the form of words should not obscure the substance of what the ALJ actually did"); see also Keyes-Zachary, 695 F.3d at 1167 (in reviewing an ALJ's decision, "common sense, not technical perfection, is [the court's] guide"); Davis v. Erdmann, 607 F.2d 917, 919 n.1 (10th Cir. 1979) ("[W]e will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned." (citations omitted)). Substantial evidence supported the ALJ's opinion.

Plaintiff further argues that the ALJ, relying on Dr. Shean's opinion, should have adopted several specific, work-related mental limitations into the RFC, including

ability to perform moderately complex as well as simple and repetitive tasks, ability to interact appropriately with co-workers, and low stress job setting with no pace or production requirements, and that, due to a combination of physical and emotional disorders, she would have difficulties dealing with the demands and stresses encountered in full time competitive work, but would need extra, unscheduled breaks and would be absent more than 2 days a month due to these conditions.

Plaintiff's argument fails. First, as discussed above, the ALJ explained his reasons for finding Plaintiff's mental impairments non-severe and was under no obligation to include in the RFC work-related limitations not supported by the evidence. An ALJ need not include in the RFC limitations "claimed by plaintiff but not accepted by the ALJ as supported by the record." See Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995); see also Smith v. Colvin, 821 F.3d 1264, 1270 (10th Cir. 2016) ("The administrative law judge had to ask only about the effect of those limitations ultimately assessed; the judge did not need to ask about the effect of limitations that he didn't believe applied."). The ALJ found Plaintiff's subjective allegations concerning her mental impairments "had minimal support in the medical evidence and were not persuasive," AR 24, a finding Plaintiff does not challenge. The ALJ was under no obligation to include in the RFC limitations inconsistent with his findings.

Plaintiff has also included in her proposed RFC several limitations that would likely lead to a finding of disability, but she provides no record support. Plaintiff suggests that she "would need extra, unscheduled breaks and would be absent more than 2 days a month due to these conditions." Doc. 19, at 7. Plaintiff neither explains why she includes these additional restrictions, nor points to any evidence or justification that would support their inclusion.

2. ALJ's evaluation of Dr. Crawford-Harris' opinion.

Plaintiff argues that the ALJ erred in assigning "significant weight" to the opinion of consultative examiner Paula Crawford-Harris, MD. Id. at 9. Plaintiff cites a portion of the state agency opinions from R.S. Kadian, MD, and Gurcharan Singh, MD, in which both Dr. Kadian and Dr. Singh assessed Plaintiff as being able to perform a full range of work at the medium exertional level with no additional physical limitations. Id.; see AR 65-66, 79-80. However, both Dr. Kadian and Dr. Singh opined that Dr. Crawford-Harris' opinion represents "an overestimate of the severity" of Plaintiff's limitations, and is "without substantial support from other evidence of record." AR 66, 80- 81. Dr. Crawford-Harris assessed Plaintiff as having no restrictions with respect to sitting, standing, or walking, and as being capable of lifting and carrying 50 pounds occasionally and 50 pounds frequently. Id. at 419.

Plaintiff argues that the ALJ has not addressed the conflict between the opinions of Dr. Crawford-Harris and the state agency physicians. Doc. 19, at 9. In weighing the opinions of Dr. Kadian, Dr. Singh, and Dr. Crawford-Harris, the ALJ found that

I considered the State agency opinions and gave them very significant weight in making this decision, as they were well supported by the objective and diagnostic findings and consistent with the record overall. They additionally were consistent with the opinion of Dr. Crawford-Harris, the consultative medical examiner, which opinion I gave significant weight, as it was supported by her examination findings as well as x-rays taken at the time of the examination.

III. Recommendation and notice of right to object.

For the reasons discussed above, 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 August 31, 2018, 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.

ENTERED this 10th day of August, 2018.

/s/_________

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

AR 414.