S. ALLAN ALEXANDER, Magistrate Judge.
Plaintiff Cynthia Lindsey appeals a decision by the Commissioner of Social Security denying her application for a period of disability (POD) and disability insurance benefits (DIB) under Sections 216(I) and 223 of the Social Security Act. Plaintiff protectively applied for disability on January 28, 2013 alleging disability beginning on October 31, 2010. Docket 7, p. 112-13, 123-25. Her claim was denied initially on May 6, 2013, and on reconsideration on May 15, 2013. Id. at 46-55, 56-62. She requested a hearing (id. at 73-74) and was represented by counsel at the hearing held on June 20, 2014. Id. at 22-45. The Administrative Law Judge (ALJ) issued an unfavorable decision on July 7, 2014 (id. at 5-18), and the Appeals Council denied plaintiff's request for a review on September 21, 2015. Id. at 1-3. Plaintiff timely filed this appeal from the ALJ's most recent decision under 42 U.S.C. § 405(g), and it is now ripe for review.
Because both parties have consented to have a magistrate judge conduct all the proceedings in this case as provided in 28 U.S.C. § 636(c), the undersigned has the authority to issue this opinion and the accompanying final judgment.
Plaintiff was born on June 7, 1969 and has a high school education. Docket 7, p. 27. She was forty-five years old at the time of the hearing. Id. at 26. Her past relevant work was as a bookkeeper, office manager and bar and grill operator. Id. at 38. Plaintiff contends that she became disabled before her application for disability as a result of bipolar disorder. Docket 7, p. 127. The ALJ determined that plaintiff suffered from "severe" impairments of "anxiety, depression and bipolar disorder" (Docket 7, p. 10), but that her impairments did not meet or equal a listed impairment in 20 C.F.R. Part 404, Subpart P, App. 1 (20 CFR 404.1520(d), 404.1525, and 404.1526). Id. at 12.
Based upon testimony by the vocational expert [VE] at the hearing, and after considering the record as a whole, the ALJ determined that plaintiff retains the Residual Functional Capacity [RFC] to
Docket 7, p. 13. The ALJ evaluated all of the evidence in the record, including testimony of both plaintiff and a VE at the hearing, plaintiff's mother in law and plaintiff's husband, and found that because plaintiff could perform the jobs of a cleaner/housekeeper, garment sorter and assembler of small part, she is not disabled under the Social Security Act. Id. at 18.
Plaintiff claims that the ALJ committed reversible error because he did not properly consider the opinion of Dr. Charles Small, her treating psychologist, or fully evaluate the record evidence. Docket 13.
In determining disability, the Commissioner, through the ALJ, works through a five-step sequential evaluation process.
The court considers on appeal whether the Commissioner's final decision is supported by substantial evidence and whether the Commissioner used the correct legal standard. Crowley v. Apfel, 197 F.3d 194, 196 (5
Plaintiff contends the ALJ failed to properly consider the opinion of Dr. Charles Small, her treating psychologist. Docket 13, p. 5. She asserts that the ALJ did not conduct the proper Newton analysis and consider the factors set forth in 20 CFR 404.1527. Newton v. Apfel, 209 F.3d 448, 455 (5
The Commissioner responds that the ALJ was not required to consider the Newton factors where the record contains first-hand competing evidence from another treating or examining physician. Docket 14, p. 7. Because, according to the Commissioner, Dr. Small's opinion is inconsistent with records of Dr. Terry, also a physician from Life Help, the ALJ was not required to consider the Newton factors. Id. The court agrees that the ALJ is not required to consider the Newton factors when the record contains first-hand competing evidence from another treating or examining physician. However, it finds troubling the Commissioner's reliance on Dr. Terry's records as competing evidence from another treating source. It is clear that Dr. Small and Dr. Terry practice together and rely on one another's records when providing a medical source statement for the purpose of social security claims. The very nature of clinics such as Life Help requires that patients see various physicians on different visits and similarly diminishes the need for every provider at Life Help to provide an independent medical opinion as to plaintiff's impairments. Nevertheless, because plaintiff was examined by Dr. Whelan, the ALJ was not required to conduct a Newton analysis as to Dr. Small's opinions.
Plaintiff asserts that the ALJ failed to properly consider the Third Party Function Report prepared by Sheila Robertson, plaintiff's mother-in-law, and a letter submitted by Kristopher Lindsey, plaintiff's husband. Docket 13, p. 10-11. She alleges that the ALJ's failure to afford more weight to these third-party statements is improper "picking and choosing." Id.
The Commissioner acknowledges that the ALJ did not assign a specific stated weight to Robertson's report, but notes that plaintiff did not demonstrate any harm suffered as a result of that perceived error. Docket 14, p. 14. "The ALJ's findings of fact are conclusive when supported by substantial evidence, 42 U.S.C. 405(g), but are not conclusive when derived by ignoring evidence, misapplying the law or judging matters entrusted to experts." Nyugen v. Chater, 172 F.3d at 35. "[T]he ALJ must consider all the record evidence and cannot "pick and choose" only the evidence that supports his position." Loza v. Apfel, 219 F.3d 378, 393 (5
Based upon a review of the record in its entirety, the undersigned is of the opinion that the ALJ did not "cherry-pick" the evidence necessary to support his RFC and any error in evaluating the reports provided by Robertson and Lindsey was harmless error. The claim that the ALJ failed to satisfy his duty to evaluate all record evidence is without merit.
Reading the record as a whole, the court concludes that the ALJ's opinion is supported by substantial evidence and should be affirmed. It is clear that the ALJ reviewed the entire record and developed it further by obtaining a consultative examination by Dr. Whelan, properly identified and analyzed the relevant listed impairments, fully discussed the evidence contained in the record and concluded that the balance tipped toward functional ability in determining whether the plaintiff's impairment met or equaled a listed impairment. The plaintiff did not provide credible evidence that her alleged impairment affects her ability to work, and the ALJ more than adequately explained his reasons for reaching his RFC. As a consequence, the undersigned holds that the ALJ's decision was supported by substantial evidence and must be affirmed. A final judgment in accordance with this memorandum opinion will issue this day.
SO ORDERED.