United States District Court

for the

Southern District of Florida

Maira Martinez, Petitioner,

v.

Commissioner of the Social Security 

Administration, Respondent.

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Civil Action No. 20-cv-22812-RNS

Order Adopting in Part 

Magistrate Judge’s Report And Recommendation

This matter was referred to United States Magistrate Judge John J. 

O’Sullivan for a report and recommendation on the parties’ cross-motions for 

summary judgment (ECF Nos. 27, 28). On December 13, 2021, Judge

O’Sullivan issued a report (R. & R., ECF No. 35), recommending that the Court 

grant the Plaintiff’s amended motion (ECF No. 27) and deny the Defendant’s 

motion (ECF No. 28).

Plaintiff Maira Martinez filed objections to the report (Pl. Obj., ECF No. 

36), which have been fully briefed (Def. Resp., ECF No. 37; Pl. Reply, ECF No. 

39). The Court has reviewed de novo the portions of Judge O’Sullivan’s report 

to which the Plaintiff has objected, see 28 U.S.C. § 636(b), and has reviewed 

the remaining portions of the report for clear error. See Macort v. Prem, Inc., 

208 F. App’x 781, 784 (11th Cir. 2006).

Having considered Judge O’Sullivan’s report, the record, and the relevant 

legal authorities, the Court adopts in part Judge O’Sullivan’s report (ECF No. 

35) as set forth below. Accordingly, the Court grants the Plaintiff’s amended 

motion for summary judgment (ECF No. 27) and denies the Defendant’s 

motion for summary judgment (ECF No. 28).

1. Background

In her amended motion for summary judgment Plaintiff Maira Martinez 

seeks reversal and remand of the Commissioner of Social Security’s decision

that she is not disabled. Judge O’Sullivan’s report recommends granting the 

Plaintiff’s motion and remanding the matter on the basis of three findings. 

Those are:

I. The ALJ did not properly evaluate the medical source opinions;

II. The ALJ properly evaluated the Plaintiff’s subjective symptoms of 

her right upper extremity and spinal impairments; and

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III. The ALJ properly considered the Plaintiff’s mild mental 

impairments in determining the Plaintiff’s capability of performing 

skilled and semi-skilled work in finance.

(R. & R.) The Plaintiff only objected to the second and third findings. The 

Commissioner, in turn, filed no objections to the report and “offere[d] no 

response” to the Plaintiff’s objection concerning Judge O’Sullivan’s second 

finding. (Def. Resp. 1.)

2. Analysis

Concerning the second finding, the Plaintiff argues that the ALJ’s 

evaluation of the Plaintiff’s subjective symptoms “was not based on a proper 

foundation” given that the ALJ did not properly evaluate the medical source 

opinions. (Pl. Obj. 2.) The Plaintiff also says that “finding II is not necessary 

and potentially in conflict with the instructions in finding I.” (Id.) The Court 

agrees and declines to adopt finding II.

Concerning the third finding, the parties disagree on whether the ALJ 

properly accounted for the Plaintiff’s mental impairments in her residual 

functional capacity (“RFC”) determination at step four of the five-step analysis 

used to evaluate a denial of disability benefits. The Commissioner admits that 

the ALJ failed to discuss the “Plaintiff’s mental impairments in the section of 

the decision explaining the RFC finding[.]” (Def. Resp. 2.) Nevertheless, the 

Commissioner argues the omission was not harmful error because the ALJ 

discussed the same at step two and thus “there was nothing more to explain in 

the [RFC] part of the decision.” (Id. at 3.)

Yet even when mental impairments are non-severe, the ALJ is “required 

to consider them when assessing the claimant’s RFC.” Pupo v. Comm’r, Soc. 

Sec. Admin., 17 F.4th 1054, 1064 (11th Cir. 2021). And importantly, an ALJ’s 

statement that she has “considered all symptoms” does not suffice alone. Id.

Thus, a decision that “contains no real discussion of how the mental condition 

affected [the claimant’s] RFC” beyond references that are “purely biographical 

or occur within summaries of medical examinations relating to [the claimant’s] 

physical conditions” is insufficient. See Schink v. Comm’r of Soc. Sec., 935 F.3d 

1254, 1269 (11th Cir. 2019).

A review of the ALJ’s decision shows that to be the case here. As noted 

above, the Commissioner even admits that “[t]he ALJ did not particularly 

discuss Plaintiff’s mental impairments . . . aside from noting normal mental 

status examination findings that were documented during her treatment for 

physical impairments.” (Def. Resp. 2.) Although the Commissioner argues that 

error was harmless, Eleventh Circuit precedent is clear: “[t]he ALJ must 

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consider all of the evidence in the record in determining the claimant’s RFC.” 

E.g., Owens v. Comm’r of Soc. Sec., 508 F. App’x 881, 883 (11th Cir. 2013) 

(citing Phillips v. Barnhart, 357 F.3d 1232, 1238 (11th Cir. 2004)); see also 

Pupo, 17 F.4th at 1065 (discussing an ALJ’s failure “to mention any impact [the 

claimant’s] incontinence might have had on her RFC.”). As such, the Court 

cannot adopt finding III. See Schink, 935 F. 3d at 1269 (“[T]he ALJ’s failure ‘to 

provide the reviewing court with sufficient reasoning for determining that the 

proper legal analysis has been conducted mandates reversal’ in its own right.”)

(quoting Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th 

Cir. 1994)).

3. Conclusion

The Court adopts in part Judge O’Sullivan’s report (ECF No. 35). 

Specifically, the Court adopts the totality of Judge O’Sullivan’s report except for 

its findings at parts II and III of its Analysis. (Id. at 27-34.) The Court grants

the Plaintiff’s amended motion for summary judgment (ECF No. 27) and 

denies the Defendant’s motion for summary judgment (ECF No. 28). 

Accordingly, the Court remands this matter for further proceedings consistent 

with Judge O’Sullivan’s report as adopted herein.

Done and ordered in chambers at Miami, Florida on February 23, 2022.

_______________________________

Robert N. Scola, Jr.

United States District Judge

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