[Antonio F.] v. Kijakazi, No. 21-80456-CIV, 2022 WL 17987822 (S.D. Fla. Sept. 16, 2022)

[Antonio F.] v. Kijakazi, No. 21-80456-CIV, 2022 WL 17987822 (S.D. Fla. Sept. 16, 2022), on reconsideration, No. 21-CV-80456-BER, 2023 WL 2388657 (S.D. Fla. Jan. 3, 2023) (Decision by U.S. Magistrate Judge Bruce Reinhart, by consent)

Briefs for purchase: 

• Plaintiff’s Motion for Summary Judgment

• Plaintiff’s Reply Brief

• Plaintiff’s Motion for Rehearing

• Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Motion for Rehearing 

Topics addressed:

• Severity standard 

• RFC – need to consider severe and nonsevere impairments

• RFC - relationship with PRTF findings

• Subjective symptoms - daily activities

• Appeals Council - new evidence

• Harmless error
  

Rulings addressed:

• Social Security Ruling 96-8p
  

Issues briefed:

1)  The Appeals Council committed reversible error in failing to remand this matter to the ALJ for consideration of the newly submitted evidence.

2) The ALJ’s reasons for discrediting Plaintiff’s testimony are not based on substantial evidence.

3) The ALJ’s finding that Antonio F.’s medically determinable mental impairment of depression is not a severe impairment is not supported by substantial evidence.

4) The ALJ committed reversible error in failing to incorporate anymental limitations in her RFC assessment.

Court decision:
The court initially affirmed the denial of benefits, first finding that the Appeals Council’s refusal to remand was not erroneous. 2022 WL 17987822 at *7. The court noted the new evidence included (1) documentation of conservative treatment which “does not amount to the type of evidence that would have altered the ALJ’s assessment of [Plaintiff’s] impairments and limitations”; (2) “records that predate [Plaintiff’s]’s spinal surgery and are therefore not relevant to the ALJ’s assessment of his permanent limitations post-surgery”; and (3) documentation from the NYC Fire Department that he could not continue working as a firefighter, which “would not have changed the outcome because the ALJ came to the same conclusion . . . .” Id. Thus, “the Appeals Council reviewed the newly submitted evidence and correctly concluded that it did ‘not show a reasonable probability that it would change the outcome of the decision.’” Id. (citation omitted).

The court also found no error in the ALJ’s finding regarding the ALJ’s evaluation of Plaintiff’s subjective complaints. Id. at *8. While “some of the medical records when viewed in isolation, appear to support [Plaintiff’s] subjective complaints and the physical limitations he testified to at the hearing,” despite fluctuations, the “record as a whole demonstrates that his condition improved significantly over the course of his treatment with Dr. Main.” Id. “This objective medical evidence is buttressed by additional evidence in the record regarding [Plaintiff’s] activities.” Id.

Next, the court held that substantial evidence supported the ALJ’s finding that Plaintiff’s mental impairments were not severe and it was “not incorrect for the ALJ to reject the opinions of the non-examining consultants” who had found that Plaintiff had “moderate limitations in his ability to interact with others, as well as in his ability to concentrate, persist and maintain pace.” Id.  at *8-9. “Instead, the ALJ properly relied on the notes prepared by” a consultative examiner who cited “[Plaintiff’s] own admissions that he suffered from only mild depression and that he declined to take the anti-depressant that was prescribed to him.” Id. at *9.

Finally, the court rejected Plaintiff’s assertion that the ALJ “improperly excluded [Plaintiff’s] mental health limitations from her RFC assessment” because: (1) “the ALJ’s decision specifically states that her “[RFC] assessment reflects the degree of limitation the undersigned has found in the “paragraph B” mental function analysis”; and (2) “there is evidence that the ALJ included [Plaintiff’s] alleged mental impairments in her RFC assessment because the hypothetical questions the ALJ posed to the vocational expert incorporated specific mental limitations” which “caused the vocational expert to exclude the job of cashier from those that [Plaintiff] potentially could perform.” Id.

Plaintiff filed a Motion for Reconsideration, asserting the court erred in finding that the ALJ properly considered Plaintiff’s mental limitations in assessing his residual functional capacity, which was granted. See [Antonio F.] v. Kijakazi, No. 21-CV- 80456-BER, 2023 WL 2388657, at *1 (S.D. Fla. Jan. 3, 2023). The court found that:

the matter must be remanded in accordance with Eleventh Circuit precedent which requires the ALJ to make additional findings regarding the limitations caused by [Plaintiff’s] non-severe mental impairments. As the Eleventh Circuit has held, “Consideration of all impairments, severe and non-severe, is required when assessing a claimant’s RFC.” Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1268- 69 (11th Cir. 2019) (citation omitted). “If an ALJ fails to address the degree of impairment caused by the combination of physical and mental medical problems, the decision that the claimant is not disabled cannot be upheld.” Id. at 1269.

Id. The court noted that in her decision, despite acknowledging that the paragraph B limitations were “not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process” and the “mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment,” the “ALJ failed to then provide the ‘more detailed assessment’ required at Steps 4 and 5.” Id. Additionally, despite claiming that she “considered all symptoms” in the RFC assessment:

there is no indication in the ALJ’s decision that she did so. Rather, the ALJ’s analysis of [Plaintiff’s] RFC is limited strictly to his physical impairments and there is no discussion of his mild mental impairments. R. 33-35. Although the ALJ did incorporate hypothetical mental limitations in her questioning of the vocational expert, the ALJ did not offer any explanation for her apparent decision to exclude those mental limitations from her RFC assessment. 

Thus, upon reconsideration, I find that the ALJ was required to include [Plaintiff’s] non-severe mental impairments in assessing his RFC, and to provide a “detailed assessment” of all his limitations at Steps 4 and 5, as well as “sufficient reasoning” for her ultimate conclusion as to whether [Plaintiff] is disabled. See Schink, 935 F.3d at 1269-70 (where ALJ “provided no real assessment of how Schink’s mental impairments . . . affected his ability to work” the assessment was “inadequate;” “Severe or not, the ALJ was required to consider Schink’s mental impairments in the RFC assessment;” failure to do so “mandates reversal”).

Id.