LISA D. CUNNINGHAM, Plaintiff,
CAROLYN W. COLVIN,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
John W. Lungstrum United States District Judge.
Plaintiff seeks review of a decision of the Commissioner of Social Security (hereinafter Commissioner) denying Social Security Disability (SSD) benefits and Supplemental Security Income (SSI) benefits under sections 216(i), 223, 1602, and 1614(a)(3)(A) of the Social Security Act. 42 U.S.C. §§ 416(i), 423, 1381a, and 1382c(a)(3)(A) (hereinafter the Act). Finding no error, the court ORDERS that judgment shall be entered pursuant to the fourth sentence of 42 U.S.C. § 405(g) AFFIRMING the final decision of the Commissioner.
Plaintiff applied for SSD and SSI, alleging disability beginning January 10, 2008. (R. 10, 132-45). In due course, Plaintiff exhausted proceedings before the Commissioner, and now seeks judicial review of the final decision denying benefits. She alleges that the Administrative Law Judge (ALJ) erred in evaluating the weight accorded to the treating source opinion of Dr. Romito and in determining the credibility of Plaintiff’s allegations of symptoms, and that substantial record evidence does not support the residual functional capacity (RFC) assessed by the ALJ or the limitations presented in the ALJ’s hypothetical question to the vocational expert. The court finds no error as alleged by Plaintiff.
The court’s review is guided by the Act. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Section 405(g) of the Act provides that in judicial review “[t]he findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The court must determine whether the ALJ’s factual findings are supported by substantial evidence in the record and whether he applied the correct legal standard. Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007); accord, White v. Barnhart, 287 F.3d 903, 905 (10th Cir. 2001). Substantial evidence is more than a scintilla, but it is less than a preponderance; it is such evidence as a reasonable mind might accept to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Wall, 561 F.3d at 1052; Gossett v. Bowen, 862 F.2d 802, 804 (10th Cir. 1988).
The court may “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quoting Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)); accord, Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Nonetheless, the determination whether substantial evidence supports the Commissioner’s decision is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it constitutes mere conclusion. Gossett, 862 F.2d at 804-05; Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).
The Commissioner uses the familiar five-step sequential process to evaluate a claim for disability. 20 C.F.R. §§ 404.1520, 416.920; Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (citing Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988)). “If a determination can be made at any of the steps that a claimant is or is not disabled, evaluation under a subsequent step is not necessary.” Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In the first three steps, the Commissioner determines whether claimant has engaged in substantial gainful activity since the alleged onset, whether she has a severe impairment(s), and whether the severity of her impairment(s) meets or equals the severity of any impairment in the Listing of Impairments (20 C.F.R., Pt. 404, Subpt. P, App. 1). Williams, 844 F.2d at 750-51. After evaluating step three, the Commissioner assesses claimant’s RFC. 20 C.F.R. § 404.1520(e). This assessment is used at both step four and step five of the sequential evaluation process. Id.
The Commissioner next evaluates steps four and five of the sequential process--determining at step four whether, in light of the RFC assessed, claimant can perform her past relevant work; and at step five whether, when also considering the vocational factors of age, education, and work experience, claimant is able to perform other work in the economy. Wilson, 602 F.3d at 1139 (quoting Lax, 489 F.3d at 1084). In steps one through four the burden is on Plaintiff to prove a disability that prevents performance of past relevant work. Blea v. Barnhart, 466 F.3d 903, 907 (10th Cir. 2006); accord, Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001); Williams, 844 F.2d at 751 n.2. At step five, the burden shifts to the Commissioner to show that there are jobs in the economy which are within the RFC assessed. Id.; Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999).
II. Evaluation of the Treating Source Opinion
The ALJ noted that Dr. Romito had completed an RFC form in February 2011 opining that Plaintiff has limitations which, if accepted, would preclude substantial gainful work activity. (R. 13). He explained that he accorded “little weight” to Dr. Romito’s opinion because Dr. Romito had not treated Plaintiff since November 2008, and because although Dr. Romito had opined regarding mental limitations for Plaintiff, he is not a mental health specialist. (R. 14-15).
Plaintiff asserts that both reasons given to discount Dr. Romito’s opinion are insufficient. She points out that Dr. Romito began treating Plaintiff in November 2007, and argues that since he is a treating source it was error not to accord controlling weight to his opinion or at least to weigh it deferentially. With regard to the first reason given, Plaintiff acknowledges that “Dr. Romito had not treated Ms. Cunningham for three years prior to the hearing, ” and argues that due to the degenerative nature of her condition, if she had certain limitations in 2008 as opined by Dr. Romito, her condition no doubt would have been worse in 2011. (Pl. Br. 13-14). Plaintiff’s argument misses the point of the ALJ’s reasoning. The ALJ did not discount Dr. Romito’s opinion because he had not treated Plaintiff for three years prior to the hearing. Rather, he discounted the opinion because it was produced by Dr. Romito in February 2011 even though the doctor had not seen Plaintiff since November 2008. Thus, the physician’s opinion was based upon his recollections of Plaintiff’s treatment more than two years earlier, relying only upon two-year-old recollections refreshed merely by a review of his earlier treatment notes. The ALJ’s concern was not with whether Plaintiff’s condition might have deteriorated since 2008, but rather he was concerned that Dr. Romito’s opinion, produced in February 2011, was not an accurate portrayal of his actual opinion more than two years earlier when he last treated Plaintiff in November 2008. This is a legitimate reason to discount the physician’s opinion.
Plaintiff also argues it was error to discount Dr. Romito’s opinion regarding the effects of pain on Plaintiff’s attention and concentration merely because he is not a mental health specialist. (Pl. Br. 14). She points out that Dr. Romito has the education and experience to opine regarding his patient’s pain level, and argues that if the logic used by the ALJ here is allowed, only a mental health provider would be allowed to give an opinion regarding the effects of pain on attention or concentration. (Pl. Br. 14-15). While it is true that any physician has the expertise to opine regarding the effects of pain on concentration and focus, and that such an opinion may not be disregarded merely because it was not provided by a mental health specialist, that is not what happened here.
Plaintiff acknowledges regulatory and case law factors which have been recognized for use in evaluating the weight accorded to medical opinions. Id. at 15 (citing Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003); Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004); and 20 C.F.R. § 404.1527(d)). One of those factors as cited by Plaintiff is “specialization of the treating source.” Id. Here, the ALJ used the fact that Dr. Romito is not a mental health specialist (specialization of the treating source) as a factor to discount the physician’s opinion. However, that was not the sole reason to discount Dr. Romito’s opinion. This is not error. Moreover, in context the ALJ found Plaintiff’s allegations regarding symptoms (including her allegation that pain prevents her from attending and concentrating) are not credible, and that is a finding which supports his determination that Dr. Romito’s opinion regarding attention and concentration should be discounted.
In her final argument regarding Dr. Romito’s medical opinion, Plaintiff argues that it is unknown how the regulatory factors were used in weighing the opinion, and that constitutes reversible error. (Pl. Br. 15-16). As Plaintiff’s argument suggests, if a treating source opinion is not given controlling weight, it is “still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527 and 416.927.” Watkins, 350 F.3d at 1300. Those factors are: (1) length of treatment relationship and frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician’s opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the area upon which an opinion is rendered; and (6) other factors brought to the ALJ’s attention which tend to support or contradict the opinion. Id. at 1301; 20 C.F.R. §§ 404.1527(d)(2-6), 416.927(d)(2-6); see also Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001) (citing Goatcher v. Dep’t of Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995)). However, the court will not insist on a factor-by-factor ...