Sarracco v. Comm’r of Soc. Sec. (M.D. Fla. July 5, 2016) (Magistrate Judge Philip R. Lammens)

0. Included: Plaintiff’s Brief, Plaintiff’s Reply Brief, and Order

   Issues:

   1. 1)  The ALJ committed reversible error in failing to address the September 2011 testing performed by Dr. Dewan, a psychiatrist, who diagnosed Ms. Sarracco with “Cognitive Disorder NOS” and in failing to find any memory limitations as a result of her cognitive impairment.

   2. 2)  The Appeals Council erred by failing to adequately consider the additional evidence submitted and by not remanding this matter to the ALJ because the additional evidence undermined the ALJ’s findings and conclusions.

   3. 3)  The ALJ’s reasons for rejecting the opinion of Dr. Kulkarni, Ms. Sarracco’s treating specialist, who opined, among other findings, that she has manipulative limitations, are not supported by substantial evidence.

      4) The Commissioner failed to sustain her burden of establishing that there was other work Ms. Sarracco could perform, as the hypothetical questioning relied upon by the ALJ cannot be deemed supported by substantial evidence.

The court held that remand was necessary due to the “ALJ’s failure to consider Dr. Dewan’s opinion relative to evaluation and neurocognitive testing on September 14, 2011.” Slip op. at 5. While the ALJ addressed Dr. Dewan’s findings regarding his first evaluation, the ALJ failed to mention the second evaluation in which “Dr. Dewan conducted neurocognitive testing which resulted, among other findings, in low scores for Plaintiff in both verbal memory and psychomotor speed, as well as low average scores in areas including composite memory, complex attention, cognitive flexibility, processing speed and executive functioning.” Id. at 6. Thus, the ALJ “indeed erred by failing to state with particularity the weight given to Dr. Dewan’s opinions relative to the second evaluation” as it “seems that the ALJ simply overlooked” this evaluation. The court explained that it reached this conclusion for several reasons:

First, there is no explicit or implicit reference to Dr. Dewan’s 2011 evaluation. Second, the ALJ references “the findings in Dr. Dewan’s evaluation,” without reference to the second evaluation, or to “evaluations” in the plural sense. Further, the ALJ’s lengthy discussion of Dr. Dewan’s 2010 evaluation suggests he would have given similarly thorough treatment to the 2011 evaluation, if he had considered it. Finally, the ALJ stated, “[i]n fact, the only mental evaluation was from Dr. Dewan,” again referencing a single evaluation.

It is possible, if not probable, that the ALJ’s findings regarding Plaintiff’s RFC would have been different if informed by Dr. Dewan’s second evaluation. . . . Ultimately, the ALJ concluded Plaintiff was capable of “remembering and carrying out simple job instructions,” but that finding may have been different if he had considered Dr. Dewan’s September 2011 findings regarding Plaintiff’s memory impairments. . . .

Id. at 6-7 (Record citations omitted).

Thus, the court held that reversal and remand was warranted as the ALJ failed to state the weight given to Dr. Dewan’s second opinion. Id. at 7. (citing Sharfarz v. Bowen, 825 F.2d 278, 279 (11th Cir. 1987), Caulder v. Bowen, 791 F.2d 872, 880 (11th Cir. 1986)). Moreover, this error was not harmless as the opinion directly contradicts the ALJ’s findings. Id. (citing Wright v. Barnhart, 153 F. App’x 678, 684 (11th Cir. 2005). While the ALJ found that the claimant was “capable of understanding, remembering, and carrying out simple job instructions, this finding is inconsistent with Dr. Dewan’s second opinion regarding the claimant’s impaired memory.” Id. In light of the ALJ’s failure to “reference or discuss” Dr. Dewan’s second opinion and neurocognitive testing, the court was “unable to determine ‘with at least some measure of clarity the grounds for [the ALJ’s] decision’ about Plaintiff’s ability to remember job instructions.” Id. (citing Owens v. Heckler, 748 F.2d 1511, 1516 (11th Cir. 1984). “Further, I am obliged to refrain from improperly re-weighing the evidence and making factual findings.” Id. (citing Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)).