However, any such error is harmless when a correct application of the regulations would not contradict the ALJ's findings. Mills v. Astrue, 226 Fed. App'x. 926, 931 (11th Cir. 2007). For the reasons discussed below, the court finds the ALJ's failure to explain how she considered the factors of supportability and consistency was harmless error.
Thus, any error is harmless. See Mills v. Astrue, 226 Fed.Appx. 926, 931 (11th Cir. 2007) (“[W]hen an incorrect application of the regulation results in harmless error because the correct application would not contradict the ALJ's ultimate findings, the ALJ's decision will stand.”)
The Court agrees with the Commissioner that the ALJ is not required to specifically reference every piece of evidence, Mitchell v. Comm'r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014), and the Commissioner identifies multiple inconsistencies within the questionnaires filled out by P.A. Hill that could fall under the ALJ's identification of internal inconsistencies. The Court also agrees with Plaintiff this Court should not now engage in an administrative review that was not done in the first instance at the administrative level, but rather must examine the administrative decision as delivered. Mills v. Astrue, 226 F. App'x 926, 931-32 (11th Cir. 2007) (acknowledging evidence in the record not mentioned by the ALJ may support administrative decision but concluding that court could not "say the error was harmless without re-weighing the evidence," which would require "conjecture that invades the province of the ALJ"); see also Martin v. Heckler, 748 F.2d 1027, 1031 (5th Cir. 1984) (noting it to be "inappropriate on judicial review for the first time to apply administrative criteria not themselves considered by the [Commissioner]"). Accordingly, the Court declines to stake its recommendation for remand to the tenuous arguments presented about P.A. Hill, and instead turns to the ALJ's failure to properly consider the side effects of Plaintiff's medication as part of the analysis of Plaintiff's subjective complaints.
It is the province of the ALJ to examine the entirety of the record evidence and deliver a decision that weighs that evidence in its totality. See Caulder v. Bowen, 791 F.2d 872, 877-78 (11th Cir. 1986); see also Mills v. Astrue, 226 F. App'x 926, 931-32 (11th Cir. 2007) (acknowledging evidence in the record not mentioned by the ALJ may support administrative decision but concluding that court could not "say the error was harmless without re-weighing the evidence," which would require "conjecture that invades the province of the ALJ"); Martin v. Heckler, 748 F.2d 1027, 1031 (5th Cir. 1984) (noting it to be "inappropriate on judicial review for the first time to apply administrative criteria not themselves considered by the [Commissioner]"). Because the additional evidence must be considered and weighed against the totality of the record evidence, the Court need not address Plaintiff's remaining contention that the ALJ improperly discounted treating physician Dr. Rosenbaum's opinion.
Pate is correct that these are errors (the first is a particularly egregious error of law), but they are harmless. See 28 U.S.C. § 2111; Mills v. Astrue, 226 F. App'x. 926, 931 (11th Cir. 2007) ("[W]hen an incorrect application of the regulations results in harmless error because the correct application would not contradict the ALJ's ultimate findings, the ALJ's decision will stand."); accord Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983); cf. Prevatte v. French, 547 F.3d 1300, 1305 (11th Cir. 2008) (district court may raise harmlessness of error sua sponte in habeas review). Despite the styling of Pate's first argument as an objection to a truism in the world of Social Security appeals—that determination of disability is reserved to the Commissioner—it is more accurately stated as a complaint that the ALJ completely disregarded the physician's opinion because, the ALJ says, the issue of disability is reserved to the Commissioner. If that is the real fuss here, Pate is right: the ALJ cannot do that.
A mere statement by the Commissioner that the new evidence would not ultimately change the disability determination will not suffice because it is the province of the ALJ to examine the entirety of the record evidence and deliver a decision that weighs that evidence in its totality. See Caulder v. Bowen, 791 F.2d 872, 877-78 (11th Cir. 1986); see also Mills v. Astrue, 226 F. App'x 926, 931-32 (11th Cir. 2007) (acknowledging evidence in the record not mentioned by the ALJ may support administrative decision but concluding that court could not "say the error was harmless without re-weighing the evidence," which would require "conjecture that invades the province of the ALJ"); Martin v. Heckler, 748 F.2d 1027, 1031 (5th Cir. 1984) (noting it to be "inappropriate on judicial review for the first time to apply administrative criteria not themselves considered by the [Commissioner]"). Because the additional evidence must be considered and weighed against the totality of the record evidence, the Court need not address Plaintiff's remaining contention that the ALJ's evaluation of the medical opinion evidence, conducted without the additional evidence, was improper.
"[W]hen an incorrect application of the regulations results in harmless error because the correct application would not contradict the ALJ's ultimate findings, the ALJ's decision will stand." Mills v. Astrue, 226 F. App'x 926, 931 (11th Cir. 2007) (citing Diorio v. Heckler, 721 F.2d 726, 728 (11th Cir. 1983)). First, Dr. Morgan's opinion, which was dated December 7, 2008, (R. 232), predates Simpson's onset date by two-and-a-half years, (R. 110). "Medical opinions that predate the alleged onset of disability are of limited relevance."
Doc. No. 16 at 7. The Eleventh Circuit has stated that "when an incorrect application of the regulations results in harmless error because the correct application would not contradict the ALJ's ultimate findings, the ALJ's decision will stand." Mills v. Astrue, 226 F. App'x. 926, 931-32 (11th Cir. 2007) (unpublished) (citing Diorio v. Heckler, 721 F.3d 726, 728 (11th Cir. 1983). In this case, Dr. Caraballo's opinion provides that Claimant's right ear canal was very painful, had some drainage, and decreased hearing acuity, but the mastoid area appeared intact.
"Generally, the opinions of examining physicians are given more weight than non-examining, treating more than non-treating, and specialists on issues within their areas of expertise more weight than non-specialists." Mills v. Astrue, 226 F.App'x 926, 930 (11th Cir. 2007) (unpublished) (citing 20 C.F.R. §§ 404.1527(d)(1), (2) and (5)). Nevertheless, "the opinion of a treating physician `must be given substantial or considerable weight unless "good cause" is shown to the contrary.'" Id. (quoting Phillips, 357 F.3d at 1240).
meant that their opinions were relevant. So while the court could guess about how persuasive the ALJ found Dr. Blotcky and Dr. Bennett's opinions, “[t]o do so would call for conjecture that invades the province of the ALJ.” Mills v. Astrue, 226 Fed.Appx. 926, 931 (11th Cir. 2007).