United States District Court, D. Utah, Northern Division
Benson District Judge.
REPORT AND RECOMMENDATION
M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE.
Judge Dee Benson referred this case to Chief Magistrate Judge
Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(B). Before the court is Plaintiff Shelly
W.'s (“Plaintiff”) appeal of the Acting
Commissioner of Social Security's
(“Commissioner” or “Defendant”) final
decision denying her claim for disability insurance benefits
(“DIB”) under Title II of the Social Security Act
(the “Act”). The court has carefully reviewed the
written memoranda submitted by the parties and concludes that
oral argument is not necessary in this case. After careful
review of the administrative record, the parties' briefs,
and the relevant law, the court finds no reversible legal
error and concludes that the Commissioner's decision is
supported by substantial evidence. The court therefore
recommends that the decision be affirmed.
November 2012, Plaintiff filed an application for DIB under
Title II of the Act. Plaintiff alleged a disability onset
date of June 2012. She was thirty-five (35) years old when
she alleges she became disabled due to back pain, nerve
damage, bipolar dis, depression, attention
deficit-hyperactivity disorder (“ADHD”),
arthritis, and a dislocated left hip. Plaintiff has a GED, and
past relevant work experience as a mail clerk, tax clerk, and
secretary. After Plaintiff's claim was initially
denied, she requested a hearing before an Administrative Law
Judge (“ALJ”). Following a hearing on July 22, 2015,
the ALJ found Plaintiff was not disabled in a decision dated
October 20, 2015. The Appeals Council denied Plaintiff's
request for a review of the ALJ's decision,
making the ALJ's decision the final decision of the
Commissioner for purposes of judicial review. See 42
U.S.C. § 405(g); 20 C.F.R. § 404.981. This appeal
court “‘review[s] the Commissioner's decision
to determine whether the factual findings are supported by
substantial evidence in the record and whether the correct
legal standards were applied.” Hackett v.
Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). The
Commissioner's findings, “if supported by
substantial evidence, shall be conclusive.” 42 U.S.C.
§ 405(g). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion. It requires more than a scintilla, but
less than a preponderance.” Lax, 489 F.3d at
1084 (quotations and citation omitted). In reviewing the
ALJ's decision, the court cannot “reweigh the
evidence” or “substitute” its judgment for
that of the ALJ. Madrid v. Barnhart, 447 F.3d 788,
790 (10th Cir. 2006) (quotations and citations omitted).
“[F]ailure to apply the correct legal standard or to
provide this court with a sufficient basis to determine that
appropriate legal principles have been followed [are] grounds
for reversal.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005) (quotations and citation
five-step evaluation process has been established for
determining whether a claimant is disabled. See 20
C.F.R. § 404.1520(a)(4)(i)-(iv); see also Williams
v. Bowen, 844 F.2d 748, 750- 51 (10th Cir. 1988)
(discussing the five-step process). If a determination can be
made at any one of the steps that a claimant is or is not
disabled, the subsequent steps need not be analyzed.
See 20 C.F.R. § 404.1520(a)(4). The five-step
sequential disability determination is as follows:
1. If the claimant is performing substantial gainful work she
is not disabled.
2. If the claimant is not performing substantial gainful
work, her impairment(s) must be severe before she can be
found to be disabled.
3. If claimant is not performing substantial gainful work and
has a severe impairment(s) that has lasted or is expected to
last for a continuous period of at least twelve months, and
her impairment(s) meets or medically equals a listed
impairment contained in [20 C.F.R. § 404, Part P,
Appendix 1], the claimant is presumed disabled without
4. If the claimant's impairment(s) does not prevent her
from doing her past relevant work, she is not disabled.
5. Even if the claimant's impairment(s) prevent her from
performing her past relevant work, if other work exists in
significant numbers in the national economy that accommodates
her residual functional capacity [(“RFC”)] and
vocational factors, she is not disabled.
Martin v. Barnhart, 470 F.Supp.2d 1324, 1326-27 (D.
Utah 2006); see 20 C.F.R. §
404.1520(a)(4)(i)-(v); Williams, 844 F.2d at 750-51.
claimant bears the burden of proof beginning with step one
and ending with step four. See Henrie v. U.S. Dep't
of Health & Human Servs., 13 F.3d 359, 360 (10th
Cir. 1993); Williams, 844 F.2d at 750-51. At step
five, the burden of proof shifts to the Commissioner to
establish “whether the claimant has the [RFC] . . . to
perform other work in the national economy in view of his [or
her] age, education, and work experience.”
Williams, 844 F.2d at 751 (quotations and citations
omitted); see 20 C.F.R. § 404.1520(a)(4)(v). If
it is determined that the claimant “can make an
adjustment to other work, ” 20 C.F.R. §
404.1520(a)(4)(v), she is not disabled. If, on the other
hand, it is determined that the claimant “cannot make
an adjustment to other work, ” id., she is
disabled and entitled to benefits.
opening brief alleges three flaws in the ALJ's decision
which Plaintiff argues warrant reversal. First, Plaintiff
alleges that the ALJ failed to properly weigh the medical
opinion evidence. Second, Plaintiff alleges that the ALJ
failed to properly weigh Plaintiff's
credibility. Finally, Plaintiff alleges that the
Appeals Council failed to properly consider new
evidence.The court will address each of these
arguments in turn.
The ALJ's Evaluation of the Medical Opinion
alleges that the ALJ improperly weighed the medical opinion
evidence. Plaintiff argues that the ALJ should have assigned
greater weight to the opinions of Plaintiff's treating
physician, Roark Neville, M.D. (“Dr. Neville”),
and treating psychiatrist Dennis Smith, M.D. (“Dr.
Smith”). Plaintiff also argues that the ALJ erred
by assigning more weight to the opinions of non-examining
sources than to those of Drs. Smith and
Neville. The court agrees with the Commissioner
that Plaintiff's arguments are an invitation to reweigh
the evidence, which this court cannot do. See
Madrid, 447 F.3d at 790. For the following reasons, the
court finds that the ALJ applied the correct legal standard
in weighing the medical opinion evidence and committed no
Treating Source Opinions
opinion of a treating physician is properly denied
controlling weight ‘if it is not well-supported by
medically acceptable clinical and laboratory diagnostic
techniques or if it is inconsistent with the other
substantial evidence in the case record.'”
Simmons v. Colvin, 635 Fed.Appx. 512, 515 (10th Cir.
2015) (unpublished) (quoting Watkins v. Barnhart,
350 F.3d 1297, 1300 (10th Cir. 2003)). “And the opinion
may be rejected outright if the ALJ gives specific,
legitimate reasons for doing so, relating to such matters as
the degree to which the physician's opinion is supported
by relevant evidence, the consistency between the opinion and
the record as a whole, and any other factors . . . which tend
to support or contradict the opinion.” Id.
(internal quotations and citation omitted). In addition, the
regulations provide that certain issues, including
“[o]pinions that [the claimant] [is] disabled” or
“unable to work, ” are “reserved to the
Commissioner.” 20 C.F.R. § 404.1527(d)(1)-(3);
See also Social Security Ruling (“SSR”)
96-5p (“treating source opinions on issues reserved to
the Commissioner are never entitled to controlling weight or
the ALJ reasonably gave “little weight to the statement
of [Dr. Neville] . . . that the claimant is ‘unable to
work.'” As properly noted by the ALJ,
“[t]his legal conclusion has been specifically reserved
to the Commissioner in accordance with [SSR]
addition, the ALJ gave no weight Dr. Neville's opinion
set forth in a medical questionnaire. In the
questionnaire, Dr. Neville opined that Plaintiff could sit,
stand, and walk for less than one hour; was incapable of
tolerating even low work stress; and would miss more than
three days of work per month. The ALJ explained that he gave
this opinion “no weight” because
“[a]lthough [Dr. Neville] has a treating relationship
with the claimant, the extreme limitations opined by [Dr.
Neville] appear to be ...