However, our review does not end here, because the case need not be remanded if the error is harmless. Mills v. Astrue, 226 F. App'x 926, 931 (11th Cir. 2007) (citing Diorio v. Heckler, 721 F.2d 726, 729 (11th Cir. 1983) (finding that ALJ's mischaracterization of past work was harmless error, because it was irrelevant when there was no finding of severe impairment)). While there is evidence in the record, such as the medical opinion of Dr. Lucas and Plaintiff's own testimony, which could be used to support the ALJ's final decision, without some guidance as to how the ALJ weighed the evidence in this case, there is no basis upon which this Court can meaningfully conclude whether the correct legal standards were applied. Any attempt to glean from the ALJ's decision whether the error was harmless, or the extent to which the ALJ relied on specific evidence, would be mere conjecture, and would necessarily involve re-weighing the evidence.
Additionally, Plaintiff references Section 404.1527(d)(2) of the Code of Federal Regulation, which states that generally, the opinions of treating sources are given more weight than those of individual examiners. See Mills v. Astrue, 226 Fed. Appx. 926 (11th Cir. 2007). While this may be generally correct, this Court also recognizes Section 404.1527(d)(4), which provides that "[g]enerally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion."
In general, 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) (citing 20 C.F.R. § 404.1527(d)(1)-(2), (5)). The opinion of a treating physician, such as Dr. Serravezza, must be given substantial or considerable weight unless "good cause" is shown to the contrary.
However, before a non-examining source's opinion may be given controlling weight, the treating physician's opinion must be properly discounted. Mills v. Astrue, 2007 WL 979925, at *6 (11th Cir. 2007). Here, the Court finds the treating physician's opinion was not properly discounted.
"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 Mills v. Astrue, 226 F.App'x 926, 930 (11th Cir. 2007) (unpublished) (citing 20 C.F.R. §§ 404.1527(d)(1), (2) and (5)).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).
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 Fed.Appx. 926, 931-32 (11th Cir. 2007) (unpublished) (citing Diorio v. Heckler, 721 F.3d 726, 728 (11th Cir. 1983) (finding that ALJ's mischaracterization of past work was harmless error, because there was no severe impairment found)). In this case, from the ALJ's opinion it is clear that the ALJ simply made a drafting or typographical error in determining Claimant's RFC. This error does not contradict the ALJ's ultimate findings and a remand to correct the error would be an empty exercise.
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.
179 F. App'x 589, 591 (11th Cir. 2006). See also Mills v. Astrue, 226 F. App'x 926, 931 (11th Cir. 2007) (holding the ALJ's failure to articulate reasons for discounting a doctor's medical opinion is not harmless, even though there is evidence on record supporting the ALJ's decision, because it would force the court to engage in a re-weighing of the evidence); McCloud v. Barnhart, 166 F. App'x 410, 418 (11th Cir. 2006) (finding ALJ's error was not harmless when he labeled claimant's GAF score of 45 as moderate when it actually indicates severe impairment because the court is unable to determine the weight the ALJ placed on the score). Similarly, this court is unable to conclude that the ALJ's error is harmless, and is not in a position to re-weigh the evidence in a manner which ignores or negates the ALJ's error in fact finding regarding Plaintiff's pain testimony.
The Eleventh Circuit has indicated that when an ALJ's reasons for discounting a treating physician's opinion are not supported by substantial evidence, the Court should determine whether the error was harmless. In Mills v. Astrue, 225 F. App'x. 926, 931 (11th Cir. 2007), the ALJ articulated two reasons for discounting one of claimant's treating physicians. The Eleventh Circuit found that neither reason was supported by substantial evidence.
See, e.g., Mushero v. Astrue, 384 Fed. Appx. 693, 695 n.1 (10th Cir. 2010) ("[T]he ALJ should ensure that any reasons for discounting the treating psychiatrist's opinion are supported in the record."); Mills v. Astrue, 226 Fed. Appx. 926, 932 (11th Cir. 2007) (if ALJ does not give treating doctor's opinion substantial weight, "he must show good cause by articulating reasons that are supported by the evidence"). The ALJ's other reason for discounting Dr. Latham's opinion, that there was "no indication" that he "was aware of the definitions" of various ratings, is also inadequate. The ALJ was correct that the record contains no such indication.