[Yocasta M.] v. Kijakazi, No. 22-24081-CV, 2024 WL 1178961 (S.D. Fla. Jan. 31, 2024)

• Plaintiff’s Motion for Summary Judgment
• Plaintiff’s Reply Brief
• Plaintiff’s Objections to Magistrate Judge’s Report and Recommendation to the District Judge 

Topics addressed:

• Specific impairments - visual impairments

• Subjective symptoms - regulatory factors

• Subjective symptoms - work activity

• Domains - concentrating, persisting or maintaining pace

• RFC - relationship with PRTF findings

• RFC - need to consider nonsevere impairments

• Waiver of right to counsel 

• Duty to develop the record for unrepresented claimant
  

Rulings addressed:

• Social Security Ruling 83-10

• Social Security Ruling 96-8p 
  

Issues briefed:

1)  The ALJ failed to properly assess the impact of Plaintiff’s visual impairment onher ability to work.

2) The ALJ failed to obtain a valid waiver of Plaintiff’s right to counsel and she was  prejudiced by the lack of counsel as the ALJ failed to fully develop the record.

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

4) The ALJ committed reversible error in failing to incorporate any mental limitations in Plaintiff’s RFC assessment.

Court decision:
In the Report and Recommendation issued by the U.S. Magistrate Judge Jonathan Goodman, he recommended affirmance of the ALJ’s decision.  2024 WL 1178961 at *1. Specifically, the Magistrate Judge found: (1) “the ALJ’s decision shows that she considered all of the relevant evidence in assessing Plaintiff’s visual impairments, not just her visual acuity”; (2) the “record reflects that [Plaintiff] knowingly and intelligently waived her right to representation” and “Plaintiff has also failed to show prejudice” as she “has not shown a reasonable probability that the new evidence would change the outcome of the ALJ’s decision or that the ALJ erred in failing to order additional consultative examinations”; (3) “the ALJ’s assessment of [Plaintiff]’s subjective testimony is supported by substantial evidence and is not grounds for remand” as the “ALJ clearly articulated her specific reasons for discounting [Plaintiff’s] testimony and those reasons are supported by the record evidence”; and (4) “the ALJ did not err in not including any mental limitations in [Plaintiff’s] RFC” as the “record evidence supports the ALJ’s finding that [Plaintiff’s] mental impairments were nonsevere . . . .” Id. at *8, *14, *16, *18.

After objections were filed, District Judge Robert N. Scola, Jr. declined to adopt the R&R’s conclusion that “the ALJ did not err by not including any mental limitations in [Plaintiff’s] RFC.” 2024 WL 1131041 at *2. The court explained that:

in a recent decision, the Eleventh Circuit held that even if the ALJ finds at step two that a claimant’s mental impairments are mild, the ALJ must nevertheless consider how the “non-severe mental limitations affected her RFC” at step four. Arce, 2024 WL 36061, at *2. In Arce, the Eleventh Circuit vacated the district court’s judgment and remanded the case with instructions to the ALJ to consider how the claimant’s mild mental limitations affected her RFC. Arce, 2024 WL 36061, at *2 (“Although the ALJ found mild mental impairments in her step 2 analysis, her RFC assessment at step 4 apparently was limited to Arce’s physical abilities and impairments and erroneously omitted considering her mental ones.”). Specifically, the Court directed the ALJ to support her conclusion that the claimant could perform work by considering the duties of the work and evaluating her ability to perform those duties despite all limitations—mental and physical. Id. 

In the ALJ’s analysis of [Plaintiff’s] RFC, the mental limitation in “concentrating, persisting or maintaining pace” is never mentioned. The only references to [Plaintiff]’s mental limitations in the RFC analysis are the statements that “she takes no medication for any mental impairment, does not see a mental health professional, and has not been hospitalized for any mental condition[.]” (Tr. 39.) It does not suffice that the ALJ states that she has “considered all symptoms.” See Arce, 2024 WL 36061, at *2; Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1268-70 (11th Cir. 2019). The ALJ must consider [Plaintiff’s] identified mental limitations — specifically, her limitation in “concentrating, persisting or maintaining pace” — when analyzing her ability to perform work and the duties of that work. See Arce, 2024 WL 36061, at *2.

Id. (citing Arce v. Comm’r of Soc. Sec., No. 23-11315, 2024 WL 36061 (11th Cir. Jan. 3, 2024)). Thus, the court remanded the case to the ALJ “with instructions to consider how [Plaintiff] non-severe mental limitations affect her RFC.” Id.

However, the court adopted the R&R’s finding regarding Plaintiff’s visual impairments, finding that the ALJ “did not commit reversible error in assessing Plaintiff’s visual impairments.” Id. at*3. The court also agreed with the R&R’s recommended finding that “the ALJ did not err by not ordering an ophthalmological examination” as an “ALJ is not required to order a consultative examination so long as the record contains sufficient evidence to make a determination.” Id. (citing Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1269 (11th Cir. 2007)). Here, the “ALJ considered extensive medical records, including those from an ophthalmologist.” Id. Thus, the court adopted in part and declined to adopt in part the R&R and remanded the case to the ALJ “with instructions to consider [Plaintiff’s] mental impairments in her RFC.” Id. at *3.