Ivette Arce v. Commissioner of Social Security

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 3, 2024
• Docket: 23-11315
• Status: Unpublished

Opinion

USCA11 Case: 23-11315 Document: 19-1 Date Filed: 01/03/2024 Page: 1 of 6

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 23-11315 Non-Argument Calendar ____________________

IVETTE ARCE, Plaintiff-Appellant, versus COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 2:21-cv-14097-KMM ____________________ USCA11 Case: 23-11315 Document: 19-1 Date Filed: 01/03/2024 Page: 2 of 6

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Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges. PER CURIAM: Ivette Arce appeals the district court’s order affirming the Commissioner’s denial of her Social Security disability insurance benefits (“DIB”) claim. Arce makes three arguments on appeal. First, she argues that the administrative law judge (“ALJ”) erred in assessing her residual functional capacity (“RFC”) because the ALJ did not state how her non-severe mental limitations affected her RFC. Second, she argues that the ALJ erred by not explicitly stating how persuasive the ALJ found a state agency psychologist’s opin- ion. Third, she argues that the ALJ erred by relying on the state agency psychologist’s opinion that failed to include a func- tion-by-function analysis. Where an ALJ denies benefits and the Appeals Council de- nies review, we review the ALJ’s decision as the Commissioner’s final decision. Doughty v. Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). The Commissioner’s decision is reviewed to determine whether it is supported by substantial evidence and whether the correct legal standards were applied. Schink v. Comm’r of Soc. Sec., 935 F.3d 1245, 1257 (11th Cir. 2019). The Social Security regulations outline a five-step process the ALJ must use to determine whether a claimant is disabled: (1) whether she is engaged in substantial gainful activity; (2) if not, whether she has a severe impairment or combination of impair- ments; (3) if so, whether that impairment, or combination of USCA11 Case: 23-11315 Document: 19-1 Date Filed: 01/03/2024 Page: 3 of 6

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impairments, meets or equals the medical listings; (4) if not, whether she can perform her past relevant work in light of her RFC; and (5) if not, whether, based on her age, education, RFC, and work experience, she can perform other work found in the na- tional economy. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011); 20 C.F.R. § 404.1520(a)(4). An ALJ must assess a claimant’s RFC, which is defined as the most a claimant can still do despite her limitations. 20 C.F.R. § 404.1545(a). In determining the RFC, the ALJ must consider all of the claimant’s medically determinable impairments, including those that are not “severe.” Id. § 404.1545(a)(2). The Regulations provide that [t]he RFC assessment must first identify the individ- ual’s functional limitations or restrictions and assess his or her work-related abilities on a function-by-func- tion basis, including the functions in paragraphs (b), (c), and (d) of 20 CFR 404.1545 and 416.945. Only af- ter that may RFC be expressed in terms of the exer- tional levels of work, sedentary, light, medium, heavy, and very heavy. Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2, 1996). Paragraph (c) of 20 C.F.R. § 404.1545 addresses mental abilities, and provides that [w]hen we assess your mental abilities, we first assess the nature and extent of your mental limitations and restrictions and then determine your residual func- tional capacity for work activity on a regular and USCA11 Case: 23-11315 Document: 19-1 Date Filed: 01/03/2024 Page: 4 of 6

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continuing basis. A limited ability to carry out certain mental activities, such as limitations in understand- ing, remembering, and carrying out instructions, and in responding appropriately to supervision, co-work- ers, and work pressures in a work setting, may reduce your ability to do past work and other work.

20 C.F.R. § 404.1545(c); see also 20 C.F.R. § 416.945(c). Consideration of all impairments—severe and non-severe— is required when assessing a claimant’s RFC. Schink, 935 F.3d at 1268. In Schink, we discussed what an ALJ must consider when as- sessing a claimant’s RFC. Schink, 935 F.3d at 1268-70. In Schink, the ALJ stated that he had “considered all symptoms” when as- sessing the claimant’s RFC, but the content of his decision only mentioned that the claimant had bipolar disorder without discuss- ing how that disorder affected the RFC, and the ALJ’s findings only concerned physical capacities. Id. at 1269. We explained that even if the ALJ had considered the mental conditions implicitly in deter- mining the claimant’s RFC, the ALJ had failed to provide sufficient reasoning to show that he had done so, and thus we could not af- firm. Id. We observed that, although at step 2 the ALJ had found Schink’s bipolar disorder to be a non-severe impairment under the four broad functional areas known as “paragraph B” criteria, this was insufficient because consideration of Schink’s RFC “require[d] a more detailed assessment.” Id. As a result, the ALJ’s assessment was “inadequate.” Id. at 1270. Accordingly, we remanded the case to the district court, instructing it to vacate the Commissioner’s USCA11 Case: 23-11315 Document: 19-1 Date Filed: 01/03/2024 Page: 5 of 6

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decision and remand to the Commissioner for further proceedings. Id. Here, as in Schink, the ALJ did not apply the correct legal standards, and remand to the Commissioner for further proceed- ings is necessary. Although the ALJ found mild mental impair- ments in her step 2 analysis, her RFC assessment at step 4 appar- ently was limited to Arce’s physical abilities and impairments and erroneously omitted considering her mental ones. To support her conclusion that Arce could perform work in the national econ- omy—including that of order clerk, telephone information clerk, and charge account clerk—the ALJ had to consider all the duties of that work and evaluate Arce’s ability to perform those duties de- spite all her impairments, severe and non-severe. Accordingly, a remand is necessary for the ALJ to consider how Arce’s non-severe mental limitations affected her RFC.1 Because remand is necessary, we do not reach Arce’s re- maining arguments and offer no opinion as to whether the ALJ erred with respect to those issues. On remand from the district

1 Although the ALJ here said in her step 4 analysis of the RFC that she consid-

ered all of Arce’s symptoms, the same was true in Schink, but here as in Schink, the content of the ALJ’s decision with respect to the RFC only indicated con- sideration of Arce’s physical limitations. Also, as in Schink, 935 F.3d at 1268- 70, we decline to simply assume—because the ALJ considered Arce’s mental limitations at step 2 and found them to be non-severe—that the ALJ did in fact consider whether Arce’s mental limitations affected her RFC, and just con- cluded sub silencio that they imposed insufficient limitation on her ability to work to warrant mention of them in Arce’s RFC. USCA11 Case: 23-11315 Document: 19-1 Date Filed: 01/03/2024 Page: 6 of 6

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court, the ALJ is to consider how Arce’s non-severe mental limita- tions affected her RFC. In remanding this case, we express no opin- ion on whether Arce can ultimately establish that she is disabled within the meaning of the Social Security Act. For the foregoing reasons, we remand to the district court with instructions to vacate the Commissioner’s decision and re- mand to the Commissioner for further proceedings not incon- sistent with this opinion. Accordingly, the judgment of the district court is VACATED AND REMANDED.