REPORT AND RECOMMENDATION

GARY M. PURCELL, Magistrate Judge.

Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of the final decision of Defendant Commissioner denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The Commissioner has answered the Complaint and filed the administrative record (hereinafter "AR___"), and the parties have briefed the issues. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). For the following reasons, it is recommended the Commissioner's decision be affirmed.

I. Administrative History and Agency Decision

Plaintiff previously applied for disability benefits on June 4, 2009, alleging disability beginning on February 1, 2009. AR 119. The Social Security Administration denied Plaintiff's application on November 30, 2009, and upon reconsideration on March 16, 2011. Id. Following Plaintiff's request for a hearing, Plaintiff appeared with counsel and testified at an administrative hearing before an Administrative Law Judge ("ALJ") on May 1, 2012. Id. On July 11, 2012, the ALJ issued a decision in which he found Plaintiff was not disabled within the meaning of the Social Security Act through December 31, 2011, the date last insured. AR 119-29. The Appeals Council denied Plaintiff's request for review, see id. 135-37, and therefore the ALJ's decision was the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall v. Astrue, 561 F.3d 1048, 1051 (10th Cir. 2009).

Plaintiff applied again for disability benefits on July 31, 2014. AR 314-16. Plaintiff alleged he became disabled beginning on January 1, 2013, due to a lumbar spine condition, eleven pounds of metal in his back and right leg, right leg injury, injuries resulting from a car wreck 19 years prior, left foot pain due to nerve pain issues, and grand mal seizure. AR 21, 423. The Social Security Administration denied Plaintiff's application on October 20, 2014, see id. at 142, 143-50, and on reconsideration on January 8, 2015. AR 152, 153-63.

Plaintiff appeared with counsel and testified at an administrative hearing conducted on March 8, 2016, before an ALJ. AR 78-115. A vocational expert ("VE"), Christy V. Wilson, also testified at the hearing. AR 21, 107-14. On April 26, 2016, the ALJ issued a decision in which he found Plaintiff was not disabled through December 31, 2013, the date Plaintiff was last insured. AR 164-88. Plaintiff filed an appeal and the Appeals Council vacated and remanded the ALJ's decision explaining that Plaintiff "was actually insured through September 30, 2014. There is therefore an unadjudicated period from January 1, 2014 through September 30, 2014." AR 195. Upon remand, the Appeals Council directed the ALJ to, inter alia, "[g]ive further consideration to the evidence of record, especially any evidence from the period beginning January 1, 2014 through September 30, 2014." Id.

Plaintiff appeared with council and testified at a second administrative hearing on August 18, 2017. AR 48-77. A VE, Diana Kaiser, also testified at the hearing. AR 66-74. On September 27, 2017, the ALJ issued a decision in which he found Plaintiff was not disabled within the meaning of the Social Security Act. AR 18-40. Following the agency's well-established sequential evaluation procedure, the ALJ found at the first step that Plaintiff had not engaged in substantial gainful activity since January 1, 2013 through his date last insured of September 30, 2014. AR 26. At the second step, the ALJ found Plaintiff had severe impairments of status post back surgery with residuals of back pain, right leg injury, left foot pain due to nerve pain, grand mal seizures, anxiety, depression, sleeping difficulties, and allied disorders. Id.

At the third step, the ALJ found these impairments were not per se disabling as Plaintiff did not have an impairment or combination of impairments that met or medically equaled the requirements of a listed impairment. Id. At step four, the ALJ found Plaintiff had the following residual functional capacity ("RFC"):

AR 28.

Relying on the VE's testimony as to the ability of a hypothetical individual with Plaintiff's work history, age, education, and determined RFC, the ALJ concluded Plaintiff could perform the jobs of addresser, document preparer, and sorter. AR 39-40. Based on this finding, the ALJ concluded Plaintiff had not been under a disability, as defined by the Social Security Act, from January 1, 2013 through the date of last insured, September 30, 2014. AR 40.

The Appeals Council denied Plaintiff's request for review, and therefore the ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981; Wall, 561 F.3d at 1051.

II. Plaintiff's Argument

On appeal, Plaintiff contends the ALJ erred by not properly considering the opinion of S.A. Chaudry, M.D., a consultative examiner, rendered in May 2012. Pl.'s Br. (Doc. No. 20) at 4-6. Specifically, Plaintiff contends that based on Dr. Chaudry's opinion, the ALJ should have found that Plaintiff was limited to only occasional reaching, handling, fingering, feeling, pushing, and pulling. Id.

III. General Legal Standards Guiding Judicial Review

The Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and whether the correct legal standards were applied. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010); Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003). "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 v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citation and quotations omitted). The "determination of whether the ALJ's ruling is supported by substantial evidence must be based upon the record taken as a whole. Consequently, [the Court must] remain mindful that evidence is not substantial if it is overwhelmed by other evidence in the record." Wall, 561 F.3d at 1052 (citations, quotations, and brackets omitted).

The Social Security Act authorizes payment of benefits to an individual with disabilities. 42 U.S.C. § 401 et seq. A disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); accord, 42 U.S.C. § 1382c(a)(3)(A); see 20 C.F.R. §§ 404.1509, 416.909 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than twelve months. Barnhart v. Walton, 535 U.S. 212 (2002).

The agency follows a five-step sequential evaluation procedure in resolving the claims of disability applicants. See 20 C.F.R. §§ 404.1520(a)(4), (b)-(g), 416.920(a)(4), (b)-(g). "If the claimant is not considered disabled at step three, but has satisfied her burden of establishing a prima facie case of disability under steps one, two, and four, the burden shifts to the Commissioner to show the claimant has the [RFC] to perform other work in the national economy in view of her age, education, and work experience." Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). "The claimant is entitled to disability benefits only if he is not able to perform other work." Bowen v. Yuckert, 482 U.S. 137, 142 (1987).

IV. Analysis

Plaintiff contends the ALJ failed to properly consider the opinion of consultative examiner, Dr. Chaudry, in reaching his decision that Plaintiff was not disabled. Dr. Chaudry found that Plaintiff was limited to only occasional use of his hands and arms for reaching, handling, fingering and feeling, pushing and pulling. AR 544. Plaintiff argues the ALJ failed to consider Dr. Chaudry's opinion and such was error because Dr. Chaudry's opinion regarding the limitations of Plaintiff's hands and arms contradicts the determined RFC.

As an initial matter, the undersigned notes Plaintiff's reliance on Dr. Chaudry's opinion is misplaced. As the Commissioner points out in her Response, Dr. Chaudry's consultative opinion in 2012 was rendered in connection with Plaintiff's 2009 disability application. In a recent Tenth Circuit decision, the court explained that it had not found any legal authority requiring an ALJ to consider opinions of consultative examiners from a prior disability proceeding. Atterberry v. Berryhill, ___ F. App'x ___, 2018 WL 3689233, at *3 (10th Cir. Aug. 2, 2018). Further, the Tenth Circuit specifically declined to create such a precedent in the Atterberry decision, noting that prior disability proceedings may involve different medical issues and evidence. Id.1

Moreover, presuming without deciding that the ALJ failed to consider Dr. Chaudry's opinion,2 this omission would not rise to the level of reversible error. Dr. Chaudry stated that Plaintiff could only occasionally reach, finger, handle, feel, push and pull with his hands. AR 544. When assessing a medical opinion, the ALJ must consider the factors listed in 20 C.F.R. § 404.1527(c) and give good reasons for the weight he assigns to the opinion. See Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003). Those factors include, but are not limited to, the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed, the degree to which the physician's opinion is supported by relevant evidence, and the consistency between the opinion and the record as a whole. Id. at 1300-01.

Plaintiff does not contend Dr. Chaudry's opinion finds support within the medical record. Indeed, it is not supported by Dr. Chaudry's own examination records. During his examination of Plaintiff, Dr. Chaudry noted that Plaintiff "can button and unbutton, pick up piece of paper, and tear it up with no difficulty. Fine and gross manipulative movements of the hand and fingers are normal and intact. Grip strength in both hands normal, 5/5." AR 536. Dr. Chaudry also recorded a full range of motion in Plaintiff's upper extremities and that Plaintiff could effectively oppose his thumb and forefingers, manipulate small objects, and grab tools. AR 539-40. In short, nothing contained within Dr. Chaudry's examination records supports his subsequent conclusion that Plaintiff was limited to only occasional reaching, fingering, handling, feeling, pushing and pulling with his hands. In light of this, any failure on the part of the ALJ to consider Dr. Chaudry's opinion does not constitute reversible error. See Barnhill-Stemley v. Colvin, 607 F. App'x 811, 815 (10th Cir. 2015) (affirming the ALJ's decision to discount a physician's opinion because the physician's own examination records were inconsistent with his stated opinion as to the plaintiff's limitations).

RECOMMENDATION

In view of the foregoing findings, it is recommended that judgment enter AFFIRMING the decision of the Commissioner to deny Plaintiff's application for benefits. The parties are advised of their respective right to file an objection to this Report and Recommendation with the Clerk of this Court on or before November 28th, 2018 in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").

This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.