Gomez-Alday v. Commissioner of Social Security

Filing 17

ORDER adopting 15 Report and Recommendations. The decision of the Commissioner is affirmed. The Clerk is DIRECTED to enter judgment accordingly, to terminate any pending motions and deadlines, and to close the file. See order for details. Signed by Judge John L. Badalamenti on 9/15/2022. (JHA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DEBORAH GOMEZ-ALDAY,
Plaintiff,
v.

Case No. 2:21-cv-395-JLB-NPM

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

/
ORDER

Plaintiff Deborah Gomez-Alday appeals the Commissioner of Social Security’s
(“Commissioner”) final decision denying her claim for a period of disability and
disability insurance benefits. (Doc. 1.) The Magistrate Judge issued a Report and
Recommendation, recommending that the Court affirm the Commissioner’s
decision. (Doc. 15.) Upon review of the record, the Report and Recommendation,
and Ms. Gomez-Alday’s timely objections (Doc. 16), the Court adopts the Report and
Recommendation and affirms the Commissioner’s decision.
BACKGROUND
Ms. Gomez-Alday applied for disability insurance benefits. (Doc. 11-3 at 14,
26; Doc. 11-5 at 5.) Following a hearing, an administrative law judge (“ALJ”)
determined that Ms. Gomez-Alday had not engaged in substantial gainful activity
between the alleged onset date and the date last insured, and that she had the
following severe impairments: degenerative disc disease of the lumbar, thoracic, and
cervical spine; osteoarthritis of the hands; and neurofibroma involving the right

shoulder. (Doc. 11-2 at 28, 43–75; Doc. 11-4 at 16.) The ALJ further found that Ms.
Gomez-Alday did not have an impairment or combination of impairments that met
or medically equaled the severity of a listed impairment. (Doc. 11-2 at 31.) The
ALJ then determined that Ms. Gomez-Alday had a residual functional capacity
(“RFC”) as follows:
lift and/or carry 50 pounds occasionally and 25 pounds
frequently; sit for 6 hours in an 8 hour workday; stand
and/or walk for 6 hours in an 8 hour workday; occasional
climbing of ramps or stairs; occasional climbing of ladders,
but no climbing of ropes or scaffolds; frequent balancing,
stooping, kneeling, and crouching; occasional crawling;
frequent overhead reaching with the right upper
extremity; frequent handling and fingering; and no
exposure to hazardous machinery or unprotected heights.
(Id. at 32.) The ALJ concluded that, based on the RFC and testimony of the
vocational expert, Ms. Gomez-Alday could perform past relevant work as a physical
therapist. (Id. at 37.) Accordingly, Ms. Gomez-Alday’s claim for disability
insurance benefits was denied. (Id.)
STANDARD OF REVIEW
A district judge may accept, reject, or modify a magistrate judge’s report and
recommendation. 28 U.S.C. § 636(b)(1). When a party makes a timely and specific
objection to a report and recommendation, the district judge “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id.
In this Social Security appeal, the Court must determine whether the ALJ’s
decision is “supported by substantial evidence and based on proper legal standards.”

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Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011) (citation
omitted). “Substantial evidence is more than a scintilla and is such relevant
evidence as a reasonable person would accept as adequate to support a conclusion.”
Id. The Court may not decide the facts anew, reweigh evidence, or substitute its
judgment for the ALJ’s. Id. Even where the Court finds that the evidence more
likely supports a different conclusion, the ALJ’s decision must be affirmed if it is
supported by substantial evidence. See Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990).
DISCUSSION
Ms. Gomez-Alday raises two objections to the Magistrate Judge’s Report and
Recommendation, contending that the ALJ failed to (1) include mild mental
limitations in the RFC assessment, and (2) explain why Ms. Gomez-Alday’s past
work as a physical therapist was past relevant work. Upon review, Ms. GomezAlday’s objections are unpersuasive.
Objection 1: The ALJ improperly failed to include mild mental limitations
in the RFC assessment.
Ms. Gomez-Alday first contends that the ALJ erred in not including Ms.
Gomez-Alday’s mild, non-severe mental limitations in the RFC. (Doc. 16 at 1–5.)
She further asserts that the Magistrate Judge misapprehended her argument that
“the ALJ found that [Ms. Gomez-Alday] has mild limitations on her ability to
perform basic work activities, but then failed to include them into the RFC
assessment.” (Id. at 1.) This contention is unpersuasive.

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A claimant’s RFC is based on “impairment(s), and any related symptoms,
such as pain, [that] may cause physical and mental limitations that affect what [the
claimant] can do in a work setting.” 20 C.F.R. § 404.1545(a)(1). An ALJ must
“assess and make a finding about [the claimant’s] [RFC] based on all the relevant
medical and other evidence.” 20 C.F.R. § 404.1520(e). In doing so, the ALJ must
consider all medically determinable impairments, including those that are not
“severe.” 20 C.F.R. § 404.1545(a)(2), (e). As the Magistrate Judge observed, the
mental limitations identified in evaluating the severity of limitations are not an
assessment of a claimant’s RFC. (Doc. 15 at 10; Doc. 11-2 at 31); see 20 C.F.R. §§
404.1520(a)(4)(ii)-(iii), 404.1520a(d); SSR 96-8p, 1996 WL 374184, *4 (July 2, 1996). 1
Once the RFC is assessed, the ALJ will compare the RFC “with the physical and
mental demands of [a claimant’s] past relevant work.” 20 C.F.R. § 404.1520(f).
Further, an RFC assessment or hypothetical question posed to a vocational
expert need not include a mild mental limitation where there is no work limitation.
See Williams v. Soc. Sec. Admin., 661 F. App’x 977, 979–80 (11th Cir. 2016) (holding
ALJ did not err in omitting limitations due to depression in RFC notwithstanding
finding that it caused mild limitations at step two); Medwit v. Comm’r of Soc. Sec.,
No. 2:20-cv-143-JLB-NPM, 2021 WL 1341390, *5 (M.D. Fla. Feb. 22, 2021) (“Since
the ALJ only assessed ‘mild’ limitations in the four areas of mental functioning, the

“At the second step of sequential evaluation, . . . medical evidence alone is
evaluated in order to assess the effects of the impairment(s) on ability to do basic
work activities. If this assessment shows the individual to have the physical and
mental ability(ies) necessary to perform such activities, no evaluation of past work
(or of age, education, work experience) is needed.” SSR 85-28, 1985 WL 56856, at *4.
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ALJ did not err by not providing a mental RFC.”), adopted, 2021 WL 1138179 (M.D.
Fla. Mar. 25, 2021).
Here, the ALJ evaluated Ms. Gomez-Alday’s mental impairments, found that
none were severe, and deemed her anxiety and post-traumatic stress disorder
(PTSD) medically determinable impairments that did not “cause more than minimal
limitation in [Ms. Gomez-Alday’s] ability to perform basic mental work activities.”
(Doc. 11-2 at 29.) In so finding, the ALJ evaluated the various areas of mental
functioning and determined that Ms. Gomez-Alday had mild limitations in each
area. (Id. at 29–30.) 2
Additionally, the ALJ considered Ms. Gomez-Alday’s subjective statements as
well as objective medical and opinion evidence relating to her mental impairments.
(Id. at 28–36.) For example, the ALJ found that her allegations that PTSD and
anxiety with panic attacks caused difficulty focusing were inconsistent with
objective evidence indicating the absence of work-related limitations. (Id. at 33.)
Indeed, the evidence considered by the ALJ included consistently normal mental
examination findings by various medical providers and a conservative treatment for
anxiety. (Id. at 28–30); see, e.g., Grantham v. Acting Comm’r of Soc. Sec. Admin.,
654 F. App’x 1015, 1017 (11th Cir. 2016). The ALJ further noted Ms. GomezAlday’s activites of daily living, which included international trips and taking care

The ALJ evaluated Ms. Gomez-Alday’s degree of mental limitation in four
broad functional areas: (1) understanding, remembering, or applying information;
(2) interacting with others; (3) concentrating, persisting, or maintaining pace; and
(4) adapting or managing oneself. See 20 C.F.R. §§ 404.1520a(b)(2), (c)(3), (4), (e)(4).
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of her elderly parents. (Doc. 11-2 at 31); see 20 C.F.R. § 404.1529(c)(3)(i); Dyer v.
Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005).
Accordingly, unlike in Winschel, the ALJ considered Ms. Gomez-Alday’s
mental impairments and determined they did not cause work limitations. 631 F.3d
at 1180–81. And the hypothetical questions posed to the vocational expert included
the limitations in the RFC. (Doc. 11-2 at 32, 71–73.) Lastly, the Court is
unpersuaded by Ms. Gomez-Alday’s assertion that her physical therapist job
exceeded “basic work activities” and may require “greater than simple instructions”
such that the ALJ should have included additional mental limitations in the RFC.
(Doc. 16 at 3.) Instead, as noted, the ALJ did not err in not including Ms. GomezAlday’s mild, non-severe mental limitations in the RFC or hypothetical questions
posed to the vocational expert, and the RFC was supported by substantial evidence.
Objection 2: Ms. Gomez-Alday presented evidence that her past work as a
physical therapist was not past relevant work and the ALJ failed to
explain how he reached the opposite conclusion.
Ms. Gomez-Alday next contends that the ALJ erred in not explaining why he
determined that Ms. Gomez-Alday could return to past work as a physical therapist,
notwithstanding her presentation of evidence that purportedly demonstrated her
past work was not past relevant work. (Doc. 16 at 5–9.) Specifically, Ms. GomezAlday asserts that the ALJ did not address evidence that “she only performed this
job at substantial gainful activity (‘SGA’) levels for only two years and only on a
part-time basis.” (Id. at 5.) Upon review, this objection is also unpersuasive.

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Past relevant work is defined as “work that [the claimant has] done within
the past 15 years, that was substantial gainful activity, and that lasted long enough
for [the claimant] to learn to do it.” 20 C.F.R. § 404.1560(b)(1). Despite Ms. GomezAlday’s contentions to the contrary, in some circumstances experience outside the
15-year period may be considered in evaluating past relevant work. See SSR 82-62,
1982 WL 31386 at *2 (“[I]n some cases [work] performed prior to the 15-year period
may be considered as relevant when a continuity of skills, knowledge, and processes
can be established between such work and the individual’s more recent
occupations.”); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991) (“[T]he
fifteen year limitation described in the regulations does not create a prohibition
against considering work outside that period.”).
Notably, a claimant has the burden to show that past work is not past
relevant work and that she cannot return to past relevant work as actually
performed or as generally performed in the national economy. See Waldrop v.
Comm’r of Soc. Sec., 379 F. App’x 948, 953 (11th Cir. 2010) (finding ALJ sufficiently
determined claimant could perform past relevant work as generally performed
despite argument that record contained limited information about duties as actually
performed). Courts have further found that a failure to argue or prove before the
ALJ that a claimant did not perform past work long enough to learn it precludes the
claimant from raising the issue on appeal. See, e.g., Schlegel v. Comm’r of Soc. Sec.,
No. 6:16-cv-1236-Orl-DCI, 2017 WL 2379811, *2–3 (M.D. Fla. June 1, 2017) (finding
that claimant’s failure to raise a past-relevant-work objection during administrative

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proceeding was “fatal” on appeal); New v. Comm’r of Soc. Sec., No. 5:12-cv-211-Oc18PRL, 2013 WL 3804846, at *3 (M.D. Fla. July 8, 2013) (same).
As the Magistrate Judge correctly determined, despite potentially presenting
some evidence that might bear on the question of past relevant work, Ms. GomezAlday did not raise the issue to the ALJ and failed to meet her burden to show that
her past work is not past relevant work and that she could not return to past
relevant work as actually performed or as generally performed in the national
economy. (Doc. 15 at 15–16.) In finding that Ms. Gomez-Alday was able to perform
past relevant work as a physical therapist, the ALJ relied on the testimony of the
vocational expert—unobjected to by Ms. Gomez-Alday or her counsel—which the
ALJ deemed “consistent with the [Dictionary of Occupational Titles] and the
vocational expert’s training and experience.” (Doc. 11-2 at 37, 71–73.)3 The ALJ
further determined that “[i]n comparing [Ms. Gomez-Alday’s] residual functional
capacity with the physical and mental demands of this work, . . . [Ms. Gomez-Alday]
was able to perform it as generally performed.” (Id. at 37.) 4

On this point, the Court also agrees with the Magistrate Judge that “[w]hile
the ALJ did not use the word ‘relevant’ when questioning the vocational expert
about Gomez-Alday’s past work, a review of the transcript leaves no doubt that this
was the import of the ALJ’s step-four colloquy with the expert.” (Doc. 15 at 17.)
Accordingly, Ms. Gomez-Alday’s contentions in this regard are unpersuasive.
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As the Magistrate Judge and Commissioner correctly noted, the record
reflects that Ms. Gomez-Alday worked since 1989 with occasional breaks in work,
and there is no indication that this work was not performed at substantial gainful
activity levels or that she did not work as a physical therapist long enough to learn
the job. (Doc. 15 at 16–17; Doc. 14 at 28–33.) Again, Ms. Gomez-Alday did not raise
this issue with the ALJ.
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As noted, the ALJ’s hypothetical questions to the vocational expert
encompassed all limitations included in the RFC, and the vocational expert’s
testimony supports the ALJ’s determination. See 20 C.F.R. § 404.1560(b)(2);
Waldrop, 379 F. App’x at 952–53; Leigh v. Comm’r of Soc. Sec., 496 F. App’x 973,
974–75 (11th Cir. 2012). In short, Ms. Gomez-Alday has shown no error, and the
Magistrate Judge did not err in finding that the ALJ properly determined that Ms.
Gomez-Alday could return to past relevant work or that the ALJ’s decision was
supported by substantial evidence.
CONCLUSION
After an independent review of the record, it is ORDERED:
1.

Ms. Gomez-Alday’s objections to the Magistrate Judge’s Report and
Recommendation (Doc. 16) are OVERRULED.

2.

The Report and Recommendation (Doc. 15) is ADOPTED and made
part of this Order.

3.

The decision of the Commissioner is AFFIRMED under sentence four
of 42 U.S.C. § 405(g).

4.

The Clerk is DIRECTED to enter judgment accordingly, to terminate
any pending motions and deadlines, and to close the file.

ORDERED in Fort Myers, Florida, on September 15, 2022.

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