Kepford v. Comm’r of Soc. Sec. (M.D. Fla. July 18, 2018) (Magistrate Judge Mark A. Pizzo)

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  1. Included: Plaintiff’s Brief, Report and Recommendation, and Order

    Issues Briefed:

    1. 1)  The ALJ failed to provide sufficient rationale, supported by substantial evidence, in rejecting the neurospychological evaluation of Dr. Merin, resulting in an unsupported mental residual functional capacity.

    2. 2)  The physical residual functional capacity determination is unsupported by substantial evidence of record.

    3. 3)  The unfavorable credibility finding is unsupported by substantial evidence of record.

    After Plaintiff filed his brief, the Commissioner sought a voluntary remand, representing that:

    Upon remand, the Appeals Council will instruct an Administrative Law Judge to reassess the opinion of the examining psychological consultant and provide sufficient rationale supported by substantial evidence, for the weight assigned to the opinion; reassess Plaintiff’s residual functional capacity (RFC) and provide sufficient rationale, supported by substantial evidence, for the FRC finding; update the record, and issue a new decision.

  2. Allen v. Comm’r of Soc. Sec., Case No, 6:17-cv-203-GLK (M.D. Fla. June 14, 2018) (Decision by Magistrate Judge Gregory J. Kelly)

    Included: Joint Memorandum and Memorandum of Decision

    Issues Briefed:

    1. 1)  Whether the step four finding was contrary to law.

    2. 2)  Whether the ALJ erred in weighing the medical opinions of record.

    3. 3)  Whether the residual functional capacity finding was supported by substantial evidence.

    4. 4)  Whether the credibility finding was based on substantial evidence.

In Allen, the ALJ collectively gave “some weight” to the opinion of Dr. Ryan, a one-time examining physician and Francisco Gonzalez, a physician’s assistant, but “did not state the weight given to any specific portion of the Opinions or any functional limitations found therein.” Slip op. at 7. However, the court found that these opinions were “conflicting and contain functional limitations that were not included in the RFC” and found that the claimant was more restricted than found by the ALJ. Id. However, the ALJ did not:

1) explicitly state that such limitations were rejected; or 2) incorporate such limitations in the RFC. The ALJ only stated that his RFC finding was appropriate after considering Claimant’s treatment records, imaging reports, and findings on physical examinations. The ALJ failed to explicitly state which of the Opinions’ limitations he rejected and failed to correlate specific medical evidence to any rejected functional limitations.

Id. at 7-8.

The court explained that an ALJ cannot “implicitly reject a medical opinion.” Id. at 8 (citing McClurkinv.Soc.Sec.Admin.,625F.App’x.960,962-63(11thCir.2015)). Whiletheopinionsat issue are not entitled to any specific weight or deference, “the ALJ decided to collectively give some weight to the Opinions” and “[a]fter doing so, . . . failed to incorporate certain limitations found therein or to identify which portions of the Opinions were rejected.” Id. (citing McSwain v. Bowen, 814 F.2d 617, 619 (11th Cir. 1987); Johnson v. Astrue, No. 3:07-cv-424-J-TEM, 2008 WL 4456749, at *5 (M.D. Fla. Sept. 30, 2008). “Thus, the ALJ’s error does not arise from the weight given to the Opinions, but rather his failure to: 1) explicitly identify any functional limitations that were rejected; and 2) correlate any medical evidence to those specific limitations.” Id. Moreover, the error was not harmless “because some of the limitations found in the Opinions are more restrictive than Claimant’s RFC.” Id.

Thus, the court concluded that:

because the: 1) ALJ decided to collectively give some weight to the Opinions; 2) Opinions not only conflict with each other but also contain functional limitations that are more restrictive than Claimant’s RFC; and 3) ALJ never explicitly identified the portions of the Opinions that he rejected or incorporated such portions in Claimant’s RFC, the Court is unable to determine whether the ALJ applied the proper legal standards to the Opinions. See Hanna, 395 F. App’x at 636. Given the foregoing, the Court finds remand necessary for the ALJ to provide a more specific discussion on the weight given to the Opinions and the functional limitations found therein. See Ricks, 2012 WL 1020428 at * 9. On remand, should the ALJ decide to give any weight to any of the Opinions, he must state the precise weight given to each opinion and the reasons therefor. See Winschel, 631 F.3d 1178-79. If the ALJ accepts or rejects any portion of a medical opinion, he must identify those specific portions and explain why such portions were accepted or rejected.

Id. at 9 (citing Hanna v. Astrue, 395 F. App’x 634, 636 (11th Cir. 2010); Ricks v. Astrue, No. 3:10-cv- 975-TEM, 2012 WL 1020428, at * 9 (M.D. Fla. Mar, 27, 2012); Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176 (11th Cir. 2011)).