Ivette Arce v. Commissioner of Social Security

[DO NOT PUBLISH]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
____________________
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2 Opinion of the Court 23-11315
Before J ORDAN , 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
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23-11315 Opinion of the Court 3
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
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4 Opinion of the Court 23-11315
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
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23-11315 Opinion of the Court 5
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.
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6 Opinion of the Court 23-11315
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.
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