F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS March 22, 2007 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
CA RIE I. ZUM W ALT,
Plaintiff-Appellant,
v. No. 06-6049 (D.C. No. 04-CV-01631-M ) M ICH AEL J. ASTRU E, * (W .D. Okla.) Commissioner of the Social Security Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT **
Before HA RTZ, HOL LOW A Y, and BALDOCK , Circuit Judges.
Carie Zumwalt appeals from an order of the district court affirming the
Commissioner’s denial of her applications for Social Security disability and
* Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for Jo Anne B. Barnhart as appellee in this action. ** After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Supplemental Security Income benefits. M s. Zumwalt w as born on July 14, 1963.
Her left foot was crushed in an automobile accident in 1986 and she has a long
history of being diagnosed with and treated for depression and anxiety. Her last
three jobs were as a housekeeper between June 1988 and August 1997.
On June 4, 2001, M s. Zumwalt filed her applications alleging that she had
become disabled on July 15, 1997. She claimed that she was unable to work
because of problems with her foot, depression, problems with memory and
concentration, and anxiety. Her applications were administratively denied
initially and on reconsideration. She then requested and received a hearing before
an administrative law judge (ALJ). The ALJ determined that M s. Zumwalt
retained the residual functional capacity (RFC) to perform light exertional work,
but that she was limited to simple, routine work because of her mental limitations.
The A LJ found that she could therefore perform her past relevant work as a
housekeeper despite her “medically determinable depression, anxiety and
fractured left lower extremity.” Aplt. App. at 27. The Appeals Council denied
review, making the ALJ’s decision the Commissioner’s final decision. See Jensen
v. Barnhart, 436 F.3d 1163, 1164 (10th Cir. 2005). M s. Zumwalt then sought
relief from the district court, which adopted a magistrate judge’s recommendation
that the Commissioner’s decision be affirmed. M s. Zumwalt appeals.
On appeal M s. Zumwalt argues that the ALJ’s RFC finding was not
supported by substantial evidence because her mental impairments required more
-2- than a limitation to simple, routine work. In support of this argument she directs
this court to the medical evidence from licensed professional counselor (LPC)
Kimberly Feronti-Dickinson; from Dr. Gary Dickinson, who treated her; and from
Dr. J. Ronald Cruse, an agency expert consulting physician, who performed a
mental-status exam (M SE). M s. Zumwalt’s main argument is that Dr. Dickinson
was a treating source and that the ALJ erred in not giving his medical opinion
controlling weight or, at least, failed to make the proper findings explaining why
controlling weight was not given and what weight was given. She also argues
that supporting evidence from LPC Feronti-Dickinson and Dr. Cruse was ignored
and that when the evidence from these three professionals is properly considered,
it proves her disability.
Ordinarily, we review on appeal 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. See Andrade v. Sec’y of
Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). But here we
agree with the Commissioner that Ms. Zumwalt’s objections to the magistrate
judge’s report and recommendation were not specific enough to preserve for
review the arguments she makes on appeal. W e hold that these arguments have
been waived and affirm the district court.
-3- I.
The earliest medical record is a form from St. Anthony Hospital in
Oklahoma City, dated September 27, 1996, showing that an LPC at the hospital
diagnosed M s. Zumwalt with depression and adult attention deficit disorder
(ADD). The LPC recommended individual psychotherapy and a referral to a
primary care provider for ADD medication. The LPC expected a positive
response to treatment.
The next records are from Dr. Clinton Winslow, who treated M s. Zumwalt
from January 22 through August 18, 1997. Only two of Dr. W inslow’s records
reference M s. Zumwalt’s mental health. The first notes that she was emotionally
stable at the time but had reported a history of depression and alcoholism and that
Dr. W inslow gave her a prescription for a refill of Paxil, which she reported she
had been taking “for some time” for her depression. Aplt. App. at 141. The
second of these records shows that during an August 18, 1997, appointment to
treat her allergies, Dr. W inslow observed that she “denie[d] homicidal or suicidal
ideation,” was “[w]ell groomed,” had “[n]ormal thought processes,” and
“[n]ormal affect,” and was “stable.” Id. at 133. Dr. W inslow diagnosed her as
having “[d]epression (stable)” and gave her another prescription for Paxil. Id.
M s. Zumwalt received medical care at the Oklahoma City Indian Clinic
between November 20, 1997, and April 13, 2001. The clinic’s records show that
M s. Zumwalt received treatment for a number of physical and mental complaints,
-4- including depression and chronic pain in her left foot. At times she was denied
medication for depression and adult ADD and referred to outside psychiatric
services; but on other occasions she was prescribed antidepressants by other
providers at the clinic. The records do not show what psychiatric evaluation
methods w ere used by these providers to diagnose M s. Zumwalt’s psychiatric
disabilities, nor do the records contain any medical opinions about the severity of
M s. Zumwalt’s mental limitations.
LPC Feronti-Dickinson met with M s. Zumwalt for the first time on April
30, 2001, and completed her professional assessment the next day. That
assessment is summarized in a letter dated M ay 10, 2001. She diagnosed M s.
Zumwalt with “adult ADD, acute anxiety/depression and PTSD [posttraumatic
stress disorder].” Aplt. App. at 145. The letter said that “[M s. Zumwalt] was
earlier diagnosed with acute anxiety and was placed on Paxil but now appears to
be intolerant of any benefit from this medication,” and that “[s]he is completely
unable to function and has been basically condemend [sic] to her home for at least
the past two (2) years.” Id. LPC Feronti-Dickinson determined that M s. Zumwalt
“is at this time completely disabled and needs some sort of assistance to be able
to achieve a productive future.” Id.
LPC Feronti-Dickinson’s notes and the record of the M SE performed on
M s. Zumwalt’s first visit reveal similar findings, including a determination that
-5- M s. Zumw alt had a global assessment of functioning (GAF) score of 40. 1 LPC
Feronti-Dickinson referred M s. Zumwalt to Dr. Dickinson, a family practice
doctor, to evaluate her for psychotropic m edication and medication management.
Dr. Dickinson’s records show three appointments with M s. Zumwalt in a
45-day period. The first was on M ay 1, 2001, the day after her first appointment
with LPC Feronti-Dickinson and a month before she filed her applications for
benefits. At the initial appointment Dr. Dickinson was told that she had been
previously treated for depression and had “taken Paxil . . . daily for about the past
10 years”; that she suffered from “depression, anxiety, irritability, and anxiety
attacks”; and that she had been previously diagnosed with attention deficit
hyperactivity disorder (ADHD), but never formally treated. Id. at 164. He noted
that M s. Zumwalt was “alert and oriented” and wrote:
Affect appear[s] mildly depressed, but her thought processes are intact and there is no inappropriate behavior displayed. She does seem apprehensive about the exam; however, conversation appears to be normal otherwise and further mental status exam reveals no delusions or hallucinations.
1 The GAF is a subjective determination based on a scale of 100 to 1 of “the clinician’s judgment of the individual’s overall level of functioning.” Am. Psychiatric Ass’n, Diagnostic and Statistical M anual of Mental Disorders 32 (Text Revision 4th ed. 2000). A GA F score of 31-40 indicates “[s]ome impairment in reality testing or communication” or “major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.” Id. at 34.
-6- Id. Dr. Dickinson prescribed medication for ADHD and an antidepressant and
recommended that she continue counseling with LPC Feronti-Dickinson.
The record of the second appointment shows that M s. Zumwalt stopped
taking the anti-ADHD medication and had started taking an anti-anxiety
medication. She also had “responded well” to the antidepressant but felt that its
efficacy may have disappeared just before the appointment. Id. at 163. Dr.
Dickinson increased the dosage of the antidepressant.
The record of the final appointment on June 14, 2001, shows that
M s. Zumwalt again changed her medication regimen, taking a new antidepressant
in the morning and the previously described antidepressant at night, while
continuing to take the anti-anxiety medication. According to the record, “[t]his is
the first time that she has noticed a remarkable improvement in her feelings of
depression and anxiety.” Id. Dr. Dickinson noted: “She still feels somewhat
emotional . . . . She is interacting better w ith her husband and family. She still
sleeps well at nighttime.” Id. He also reported: “The patient is alert and
oriented. Affect appears improved. She smiles and appears to have a more
comfortable feeling today. No display of anxiety at this time. Thought processes
are intact and there is no inappropriate behavior displayed.” Id. His diagnoses
w ere “D epression - improved,” “Anxiety - improved,” and “Possible ADD -
stable.” Id.
-7- After M s. Zumw alt filed her disability applications, she received an M SE
from Dr. Cruse. His report of January 24, 2002, noted, among other things, that
her mood was serious and depressed and her affect was serious and sad. Dr.
Cruse concluded:
I would judge her intellectual ability to be average. Her delayed recall and concentration are above average. Her recent memory, past memory, and judgment are average. Her immediate memory and abstract thinking are below average. Her depression and anxiety appear to be moderate to severe, thus limiting her ability to make adjustments occupationally, personally and socially.
Id. at 227. He diagnosed M s. Zumwalt with major depressive disorder and
anxiety disorder NOS, 2 as w ell as alcohol dependence and polysubstance abuse in
remission.
Also in the record are a Psychiatric Review Technique (PRT) form and an
RFC assessment form, both dated February 15, 2002, prepared by Dr. Sally
Varghese, another consulting physician. Apparently relying heavily on the M SE
from Dr. Cruse, Dr. Varghese noted major depressive disorder and anxiety
disorder N OS, as well as alcohol and polysubstance abuse (both in remission).
Dr. Varghese found that M s. Zumwalt had moderate (1) “Restriction of Activities
of Daily Living,” (2) “Difficulties in M aintaining Social Functioning,” and (3)
2 “NOS” apparently stands for “not otherwise specified.” Anxiety Disorder NOS is a diagnosis that “includes disorders w ith prominent anxiety or phobic avoidance that do not meet criteria for any specific Anxiety Disorder, Adjustment Disorder W ith Anxiety, or Adjustment Disorder W ith M ixed Anxiety and Depressed M ood.” Am. Psychiatric Ass’n, Diagnostic and Statistical M anual of M ental Disorders 484 (Text Revision 4th ed. 2000).
-8- “Difficulties in M aintaining Concentration, Persistence, or Pace.” Id. at 243. O n
the RFC assessment form, Dr. Varghese reported that M s. Zumwalt was
moderately limited in her “ability to understand and remember detailed
instructions,” her “ability to carry out detailed instructions,” and her “ability to
interact appropriately with the public,” and was not significantly limited in any of
the other listed abilities. Dr. Varghese concluded: “[M s. Zumwalt] can follow
simple routine directions. She can relate for work purposes.” Id. at 231.
At the April 12, 2004, hearing before the ALJ, Dr. Dian Bower, a clinical
psychologist, testified to M s. Zumwalt’s mental limitations. Under examination
by the ALJ, Dr. Bower testified that M s. Zumwalt had “some intermittent
treatment since ‘96 several times that she sought treatment at different centers”;
that “[s]he’s been given medication, and each time in a very short period of time
had a very favorable response to that medication”; and that she would have only a
mild restriction of activities of daily living, mild difficulties in maintaining social
functioning, and mild difficulties in maintaining concentration, persistence, or
pace. Id. at 275.
Under examination by M s. Zumwalt’s attorney, Dr. Bower testified that
although the GAF score of 40 recorded by LPC Feronti-Dickinson indicated that
M s. Zumwalt was “in some . . . psychiatric distress,” id. at 277, a G AF score is
like a “snapshot,” id. at 278. Dr. Bower said that it was not uncommon for people
seeking treatment to initially have a GAF level of 40 but that what he looked for
-9- was “how did this patient respond to the treatment that she got,” and that it
appeared from the medical records that M s. Zumwalt responded to D r.Dickinson’s
treatment and then quit the treatment. Id. at 277-78. Dr. Bower stated, however,
that if M s. Zumwalt was still seeing Dr. Dickinson, there must be additional
records and that “those [records] w ould be really helpful to see what happens to
that [GAF score of] 40.” Id. at 279. M s. Zumwalt’s attorney informed the court
that he had requested the rest of Dr. Dickinson’s records but that the records w ere
not available before the hearing. The court agreed to hold the proceeding open
until the end of April 2004 to receive the additional records.
No additional treatment records from Dr. D ickinson were presented.
Instead, an opinion letter from Dr. Dickinson dated April 19, 2004, was
submitted. The letter stated that he had been treating M s. Zumwalt for the
previous three years and continued:
Due to the symptoms of the psychological impairments, it is my opinion that M s. Zumwalt should be restricted to activities with low stress that require only occasional interaction with the general public and co-workers. D ue to the inability to maintain work stressors, this individual should not be subjected to work quotas or production schedules.
M s. Zumwalt has marked limitations in both the ability to maintain attention and concentration for extended periods of time, and the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances.
She will be unable to complete a normal workday and workweek without interruptions from psychologically based symptoms and unable to perform at a consistent pace without an unreasonable
-10- number and length of rest periods. It is my opinion that she would miss at least 2 days each week due to extreme fatigue and depression.
I feel the above limitations have been present since at least M ay 2000, and will continue for the foreseeable future.
Id. at 247. The letter concluded: “M y opinion is based upon my observations and
examinations of M s. Zumwalt and fully set forth in the medical records of this
facility.” Id.
The A LJ denied M s. Zumwalt’s applications for benefits. In district court
M s. Zumwalt raised with the magistrate judge the same arguments she raises on
appeal regarding the adequacy of the ALJ’s consideration and findings regarding
the medical evidence. In his report and recommendation the magistrate judge
stated that the ALJ “did not err in formulating [M s. Zumwalt’s] RFC, specifically
that he did not err in his treatment of the opinion of the medical sources.” Aplt.
App. at 329. The district court adopted the magistrate judge’s recommendation
and affirmed the ALJ’s decision.
II.
The Commissioner argues that M s. Zumwalt’s objections to the magistrate
judge’s recommendations were insufficient to preserve her appellate arguments.
This court has on a number of recent occasions recognized that waiver principles developed in other litigation contexts are equally applicable to social security cases. Thus, waiver may result from the disability claimant’s failure to (1) raise issues before the magistrate judge, (2) object adequately to the magistrate judge’s recommendation, (3) preserve issues in the district court as a general matter, or (4) present issues properly to this court.
-11- Berna v. Chater, 101 F.3d 631, 632-33 (10th Cir. 1996) (citations and internal
quotation marks omitted). “[A ] party’s objections to the magistrate judge’s report
and recommendation must be both timely and specific to preserve an issue for
appellate review.” Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996) (ellipsis and
internal quotation marks omitted). W e have held that objections must be specific
because “only an objection that is sufficiently specific to focus the district court’s
attention on the factual and legal issues that are truly in dispute will advance the
policies behind the M agistrate’s Act that led us to adopt a waiver rule in the first
instance.” United States v. One Parcel of Real Property, 73 F.3d 1057, 1060
(10th Cir. 1996).
M s. Zumwalt’s objection to the magistrate judge’s report is so short, we
quote it in full:
Plaintiff, Carie Zumwalt, hereby objects to the Findings and Recommendation of the United States M agistrate Judge filed herein on November 30, 2005. Plaintiff’s objection is based on several points. The Report and Recommendations do not adequately consider the Plaintiff’s argument that the Administrative Law Judge disregarded the opinion of claimant’s treating physician, Dr. Dickinson, when formulating the Residual Functional Capacity. The M agistrate also failed to give adequate consideration to Plaintiff’s argument regarding the Administrative Law Judge’s disregard of the opinion of Dr. Cruse. Dr. Cruse stated “Her immediate memory and abstract thinking are below average. Her depression and anxiety appear to be moderate to severe, thus limiting her ability to make adjustments occupationally, personally, and socially.” He diagnosed the Plaintiff with a major depressive disorder and anxiety disorder. The ALJ failed to include the above listed impairments in claimant’s RFC and he failed to provide any sort of an explanation as to why he did not do so. Plaintiff argues the ALJ’s decision is not adequate
-12- under Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995). While Kepler does not require a factor by factor recitation of the evidence, the ALJ is still required to provide a reviewable analysis of the evidence of record. See Hardman, 362 F.3d at 678-679. The M agistrate errs by accepting the ALJ’s conclusory findings.
Plaintiff urges the Court to reverse and remand the Administrative Law Judge’s decision because the decision is not supported by substantial evidence and the Administrative Law Judge failed to follow the correct legal standard.
Aplt. App. at 331-32.
The one-sentence objection regarding Dr. Dickinson is a conclusory
assertion, not a reasoned argument. The objection regarding Dr. Cruse does not
acknowledge the magistrate judge’s determination that the ALJ’s decision was
consistent with Dr. Cruse’s opinion or specify why that determination was
erroneous. And there is no mention whatsoever of LPC Feronti-Dickinson. W e
conclude that under our firm-waiver rule, M s. Zumwalt’s objections were not
sufficiently specific to preserve her arguments for appeal.
III.
Nevertheless, our firm waiver rule “does not apply . . . when . . . the
interests of justice require review.” M orales-Fernandez v. INS, 418 F.3d 1116,
1119 (10th Cir. 2005) (internal quotation marks omitted); see Martinez v.
Barnhart, 444 F.3d 1201, 1208 (10th Cir. 2006) (interests of justice did not
excuse waiver under facts of case). W e must therefore determine whether the
interests of justice dictate that we address M s. Zumwalt’s appellate arguments.
-13- W e have said that “our decisions have not defined the ‘interests of justice’
exception with much specificity” and that “[l]ikely this is because ‘interests of
justice’ is a rather elusive concept.” M orales-Fernandez, 418 F.3d at 1119-20.
(internal quotation marks omitted). The factors that we have considered in
determining whether to invoke this exception have generally been the litigant’s
conduct in complying with the objection requirement and the importance of the
issues raised. See id. at 1120. In M orales-Fernandez we held that “[i]n many
respects, the interests of justice analysis we have developed, which expressly
includes review of a litigant’s unobjected-to substantive claims on the merits, is
similar to reviewing for plain error,” id. at 1120, and that “[a]t a minimum . . .
our ‘interest of justice’ standard for determining whether we should excuse a
defendant’s failure to object to a magistrate judge’s recommendation includes
plain error,” id. at 1122. In Wardell v. Duncan we took this analysis a step
further, holding that “[t]he waiver rule may be suspended when the ‘interests of
justice’ w arrant, or when the aggrieved party makes the onerous showing required
to demonstrate plain error.” 470 F.3d 954, 958 (10th Cir. 2006) (citation omitted)
(emphasis added). In that case w e determined that because the plaintiff “bore
some responsibility for the failure to receive the [magistrate judge’s]
recommendation[,] . . . [the] interests of justice would not warrant our suspension
of the waiver rule.” Id.
-14- M s. Zumwalt was represented by counsel and objections–albeit unspecific
ones–were filed. There are no mitigating factors regarding her failure to comply
with the objection requirement. Accordingly, the interests of justice do not
require review and our only concern is plain error.
“Plain error occurs when there is (1) error, (2) that is plain, which
(3) affects substantial rights, and which (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” M orales-Fernandez,
418 F.3d at 1122-23 (internal quotation marks omitted). “[A]n error is ‘plain’ if
it is clear or obvious at the time of the appeal.” Id. at 1124. An error “affects
substantial rights” if there is “a reasonable probability that, but for the error
claimed, the result of the proceeding would have been different.” Id. (internal
quotation marks omitted). Finally, if, as here, the alleged error is
nonconstitutional, a party must show “that allowing [her] non-constitutional error
to stand would be particularly egregious and would constitute a miscarriage of
justice” in order to satisfy the fourth prong of the test. Id. (internal quotation
marks omitted).
M s. Zumwalt’s primary claim is that Dr. Dickinson was her treating
physician and that the ALJ erred in not giving his medical opinion controlling
weight or, at least, in not making explicit findings why controlling weight was not
given and w hat weight was given. Under our precedent, “[t]he record must
demonstrate that the ALJ considered all of the evidence, but an ALJ is not
-15- required to discuss every piece of evidence.” Clifton v. Chater, 79 F.3d 1007,
1009-10 (10th Cir. 1996). An ALJ’s notice of determination “must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator
gave to the treating source’s medical opinion and the reasons for that weight.”
Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (internal quotation
marks omitted). A “[t]reating source” is a claimant’s “own physician,
psychologist, or other acceptable medical source.” 20 C.F.R. §§ 404.1502,
416.902. An “acceptable medical source” is (1) a licensed physician;
(2) a licensed or certified psychologist; (3) a licensed optometrist, for certain
purposes; (4) a licensed podiatrist, for certain purposes; and (5) a qualified
speech-language pathologist, for certain purposes. 20 C.F.R.
§§ 404.1513(a)(1-5), 416.913(a)(1-5).
The ALJ must first decide whether the treating source’s opinion is entitled
to controlling weight. To make this determination
[a]n ALJ must first consider whether the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques. If the answer to this question is “no,” then the inquiry at this stage is complete. If the ALJ finds that the opinion is well-supported, he must then confirm that the opinion is consistent with other substantial evidence in the record. In other words, if the opinion is deficient in either of these respects, then it is not entitled to controlling weight.
Watkins, 350 F.3d at 1300 (internal quotation marks and citations omitted). Even
if the ALJ determines that the treating source’s opinion is not entitled to
-16- “controlling weight,” the opinion is still entitled to deference and must be
weighed by using the follow ing factors:
(1) the length of the treatment relationship and the 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 A LJ’s attention which tend to support or contradict the opinion.
Id. at 1300-01(internal quotation marks omitted); see 20 C.F.R.
§§ 404.1527(d)(2)-(6), 416.927(d)(2)-(6). “After considering the pertinent
factors, the ALJ must ‘give good reasons in the notice of determination or
decision’ for the weight he ultimately assigns the opinion.” Watkins, 350 F.3d at
1301 (quoting 20 C.F.R. § 404.1527(d)(2)). “Finally, if the ALJ rejects the
opinion completely, he must then give specific, legitimate reasons for doing so.”
Id. (internal quotation marks omitted).
As noted by the magistrate judge, the ALJ’s decision did not contain
explicit findings regarding the weight that the ALJ gave Dr. D ickinson’s opinion.
The ALJ discussed Dr. Dickinson’s 2004 letter stating that M s. Zumwalt’s mental
limitations would make it impossible for her to complete a normal workday or
workweek and that the limitations had been present since M ay of 2000. The ALJ
then immediately referenced Dr. Dickinson’s medical records from M ay of 2001
showing that at that time M s. Zumwalt “had some irritability, no major anxiety
-17- attacks and her medications had improved her sleep and decreased the
depression.” A plt. App. at 25. The A LJ followed this with a reference to D r.
Cruse’s determination on January 24, 2002, “that she was oriented x3, her delayed
recall and concentration were above average and her recent memory, and past
memory and judgment were average. She is limited due to moderate to severe
depression.” Id. at 26. The ALJ stated that he “considered the determinations
made by the State Agency pursuant to SSR 96-6p, and agrees that the claimant
has anxiety and depression and [is] limited to simple, routine work and [is] able
to perform her past work as a housekeeper.” Id. 3
The magistrate judge determined that it was clear from the decision (1) that
the ALJ did not give Dr. Dickinson’s opinion controlling weight because of
contradictory medical evidence, and (2) that the A LJ “only gave D r. Dickinson’s
opinion such weight as was consistent with that of the consultative examiner and
the state medical consultant” after considering the degree to w hich D r.
Dickinson’s opinion was supported by relevant evidence and was consistent with
the record as a whole. Aplt. App. at 326-27. W e are unconvinced that any error
by the A LJ in failing to be more explicit about how he w eighed Dr. Dickinson’s
opinions was an error that “affects substantial rights” or would “constitute a
miscarriage of justice.” M orales-Fernandez, 418 F.3d at 1124.
3 S.S.R. 96-6p addresses, among other things, the consideration that an ALJ should give to the findings, including RFC findings, of State Agency medical and psychological consultants. 1996 W L 374180.
-18- Nor has M s. Zumwalt established plain error in any other respect. She
claims that the ALJ did not make sufficient findings concerning LPC
Feronti-Dickinson’s records and opinions and that the ALJ ignored some of her
determinations completely. But LPC Feronti-Dickinson was not an acceptable
medical source, 20 C.F.R. §§ 404.1513(a)(1-5), 416.913(a)(1-5), or a treating
source, 20 C.F.R. §§ 404.1502, 416.902, and the ALJ’s decision discussed her
findings, her opinion that M s. Zumwalt was completely disabled, and her
assignment of a GAF score of 40. Although M s. Feronti-Dickinson’s assessment
would be considered other medical evidence that could be used to show the
severity of her impairments, 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1), the ALJ
had no obligation to give LPC Feronti-Dickinson’s assessment the same w eight as
a “medical opinion,” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2) (defining
medical opinions as statements from acceptable medical sources that reflect
judgments about the nature and severity of a claimant’s impairments). Further,
the statements not referenced in the ALJ’s determination concerned LPC Feronti-
Dickinson’s belief that M s. Zumwalt was disabled, a matter reserved to the
Commissioner. See 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1).
M s. Zumwalt also argues that the ALJ failed to include in his RFC finding
“the specific limitations noted by Dr. Cruse.” A plt. Br. at 18. The A LJ, however,
discussed Dr. Cruse’s opinion in detail in his decision. Dr. Cruse conducted only
an M SE. He did not make an RFC finding or determine that M s. Zumwalt had
-19- any “specific limitations,” although Dr. Varghese relied on Dr. Cruse’s
examination in completing a mental RFC assessment and a PRT form. The ALJ
did not ignore the opinions of Dr. Cruse and no plain error occurred.
Finally, we reject any claim that plain error occurred in that the RFC
finding was not supported by substantial evidence. Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (internal
quotation marks 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.” Langley v. Barnhart, 373 F.3d 1116, 1118 (10th Cir.
2004) (internal quotation marks omitted). The evidence recited earlier adequately
supports the A LJ’s findings.
Keeping in mind that “[i]t is beyond dispute that the burden to prove
disability in a social security case is on the claimant,” M adrid v. Barnhart, 447
F.3d 788, 790 (10th Cir. 2006) (internal quotation marks omitted), the final
opinion letter from Dr. Dickinson, which was inconsistent with the only treatment
records presented from him, does not plainly overwhelm the evidence supporting
the ALJ’s position.
III. CONCLUSION
M s. Zumwalt’s objection to the magistrate judge’s report and
recommendation was not sufficiently specific to preserve her right to make her
-20- arguments on appeal and the circumstances of this case are not so exceptional that
the interests of justice dictate that we should review M s. Zumwalt’s arguments.
The judgment of the district court is AFFIRMED.
Entered for the Court
Harris L Hartz Circuit Judge
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