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Schink v. Commissioner of Social Security

United States Court of Appeals, Eleventh Circuit

August 27, 2019

HANS SCHINK, Plaintiff - Appellant,

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:16-cv-00610-CM

          Before WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and MOORE, [*] District Judge.

          PER CURIAM.

         Appellant Hans Schink applied for Social Security disability benefits based on various physical impairments and the fact that he suffered from bipolar disorder. The matter proceeded to a hearing before an administrative law judge ("ALJ"), who denied benefits. Schink appealed the decision and the Appeals Council remanded the matter to the ALJ for further proceedings. Schink fared no better the second time the ALJ considered his case.

         Following the second denial by the ALJ, Schink again appealed. But this time the Appeals Council affirmed the denial of benefits. Schink then filed a complaint with the district court, which affirmed the decision to deny benefits. Schink now asks us to find that the ALJ erred by (1) discounting his treating physicians' opinions and (2) concluding that his bipolar disorder was not a severe impairment. Schink also contends that remand to a different ALJ is warranted because of a high risk that the ALJ who considered his claims was biased against him.

         After careful review, we conclude that Schink's claim of bias was forfeited, but we also conclude that the ALJ's decision contains errors that must be addressed. Specifically, we find that the ALJ failed to articulate good cause for discounting two treating physicians' opinions, that substantial evidence does not support the finding that Schink's bipolar disorder was non-severe, and that the ALJ failed to consider Schink's mental impairments when assessing his residual functional capacity. We therefore affirm in part and reverse in part the order of the district court affirming the denial of benefits, and we remand with instructions to vacate the Commissioner's decision and to remand to the Commissioner for further proceedings.

         I. Facts

         A. Background

         Schink applied for disability insurance benefits in February 2010, alleging an onset date of October 1, 2004. He claimed disability due to bipolar disorder, type-2 diabetes, and various physical impairments. Schink remained insured through September 30, 2011, so he was required to establish disability on or before this date to be entitled to benefits. As for other relevant characteristics, Schink has a high school education and past relevant work as a car salesman.

         B. Medical Evidence

         In setting forth a summary of the relevant medical evidence, we focus on only Schink's mental impairments, since those are at issue in this appeal.

         1. Schink's Initial Treatment

         Although Schink produced extensive medical records, we do not discuss every detail relating to Schink's mental health. Nevertheless, we note that records indicate Schink had a history of bipolar disorder and a family history of depression. In June 2008, when we pick up Schink's more recent medical history, doctors believed that antidepressant therapy would be beneficial, and Schink began taking Lexapro.

         Notes from psychotherapy sessions in the Spring of 2009 indicate that Schink's speech was pressured, his mood was agitated, his affect was limited, his judgment was poor, and his relationships were isolated. During this timeframe, Schink met regularly with psychotherapist Nicholas Anthony, Ph.D., who diagnosed Schink with bipolar disorder. Dr. Anthony determined that Schink displayed symptoms of aggression, anger, and agitation, as well as scattered concentration. At times, Schink's condition improved, though he continuously suffered from bipolar disorder. Dr. Anthony also found Schink's affect to be "blunted" and his energy to be low, and he concluded that Schink had "marginal social and interpersonal involvement."

         In 2010, Schink met with other doctors who similarly documented Schink's chronic mood swings, depression, anger, and anxiety. During this timeframe, Schink revealed that his father had committed suicide by jumping off a bridge, his mother had died at age 48 (and suffered from depression), and his brother had been murdered. Psychiatrist Raymond Johnson, M.D., recorded that Schink was "extremely hyperverbal and angry" as he fantasized about "get[ting] back at people" who upset him. Schink was consistently diagnosed with bipolar disorder and in mid-2010 was assigned a global assessment of functioning ("GAF")[1] score of 55. Id. Dr. Johnson also noted that Schink had intermixed manic and depressive episodes, racing thoughts, and rapid cycling manic and depressive episodes.

         2. State Doctors' Assessment of Schink

         Because he filed for disability benefits in February 2010, Schink was referred for a consultative psychological examination with J.L. Bernard, Ph.D., on June 30, 2010. During the examination, Schink reported that he was agitated, felt like he could kill someone, was very depressed, had memory problems, and had passive suicidal thoughts. Dr. Bernard noted that Schink was talkative, but on several occasions, Schink could not offer details on how he spent portions of his life. Schink reported that he discontinued work because he could "no longer deal with people." He further told Dr. Bernard that he spent most of his time watching television, walking the dog, doing very little housework, napping, playing on his computer, and going for drives. And he told Dr. Bernard that he cooked "minimally" and "read once in a while."

         Dr. Bernard indicated that Schink's attitude at the interview was "brusque, arrogant, flippant, and abrasive," with "a harshness and domineering aspect to his personality" and an "irritable" affect, although his mood was stable. The doctor also reported that Schink had decreased memory skills, pressured speech, and felt like "killing people most of the time." Dr. Bernard diagnosed Schink with mood disorder, personality disorder not otherwise specified with cluster B features, problems dealing with the social environment, and occupational limitations. Dr. Bernard assigned Schink a GAF score of 59 and indicated that his prognosis was chronic.

         In furtherance of the disability claim, state agency consulting psychologist Anne-Marie Bercik, Ph.D., conducted a review of Schink's psychiatric medical history on August 30, 2010. She did not meet with Schink in person. Using a checklist and a scale of "mild," "moderate," "marked," and "extreme," Dr. Bercik concluded that Schink had only mild limitations of daily living, maintaining social functioning, and maintaining concentration, persistence, or pace, and had no episodes of decompensation. Dr. Bercik's overall impression after reviewing Dr. Bernard's notes was that while Schink had some mental deficits, his impairments were not severe and did not currently meet or equal a mental listing.

         3. Additional Treatment by Schink's Doctors

         Schink returned to see Dr. Anthony in the Fall of 2010, at which point he had been taking Klonopin for anxiety and Celexa for depression for approximately two-to-three months. Dr. Anthony completed a formal assessment of Schink and, on a scale that included "mild," "moderate," and "severe," Dr. Anthony concluded that Schink had "moderate" symptoms of loss of interest or pleasure, sleep disturbance, loss of energy, irritable mood, and cognitive impairment. Dr. Anthony found moderate improvement in reduction of agitation and minimal improvement in Schink's mood, and he assigned a GAF score of 50.

         In April 2011, Schink began to see psychiatrist Nelson A. Hernandez, M.D. Schink complained of racing thoughts, depression, poor sleep, and increased anxiety. Dr. Hernandez completed a Mental Status Examination form, which set forth his opinion that Schink's affect was labile and his anxiety was moderate, and that he exhibited depression with anhedonia. Dr. Hernandez also indicated that Schink's mood was dysthymic, his recent memory was impaired, his judgment was fair, and his thought organization was circumstantial. Dr. Hernandez diagnosed Schink with bipolar disorder and anxiety disorder and assigned a GAF score of 60. Dr. Hernandez recommended that Schink begin taking Zoloft and referred him for treatment by Dr. Charles Assad.

         Schink returned to see Dr. Hernandez twice in September 2011. At the first meeting, Schink reported having fair energy level, less depression and fewer mood swings, but he noted he still had some racing thoughts. At the second meeting, Schink stated that he was feeling better with less agitation and better sleep.

         Based on Dr. Hernandez's recommendation, Schink began mental-health treatment with psychologist Charles Assad, Ph.D., in June 2011. At that time, Dr. Assad noted that Schink was poorly groomed and that he had pressured speech. Dr. Assad also described Schink as having a cooperative attitude, elevated anxiety and depression, and hypomanic affect. Dr. Assad diagnosed Schink with bipolar disorder and depression, and assigned a GAF score of 55. During a follow-up visit later that month, Dr. Assad found that Schink continued to present with similar symptoms. The next month, however, Dr. Assad found Schink's thought processes were "clearer and more logical" and that he had less pressured speech, but his "bipolar lability [was clearly] continuing." During an appointment in late July 2011, Dr. Assad again noted rapid speech and tangential thought processes. Schink met with Dr. Assad several more times through October 2011. During these visits, Dr. Assad determined Schink had a depressed mood and affect as well as anger and resentfulness.

         Schink returned to see Dr. Assad various times from October 2011 through 2012 and 2013, on a biweekly basis. Dr. Assad's records reflect that Schink's impulsiveness and irascibility caused him continuing trouble with relationships and interactions with strangers, that he suffered from financial problems, and that he struggled to follow through on scheduling medical appointments and dealing with other logistic issues in his life.

         4. Questionnaires Completed by Drs. Assad and Hernandez

         On October 11, 2011, Dr. Assad completed a questionnaire concerning Schink's mental residual functional capacity, in which he assessed Schink's ability to engage in work-related activities on a day-to-day basis. According to Dr. Assad, Schink had "marked" limitations in his abilities to (1) accept instruction from or respond appropriately to criticism from supervisors or superiors, (2) work in coordination with or in proximity to others without distracting them or exhibiting behavioral extremes, (3) respond appropriately to coworkers or peers, (4) relate to the general public and maintain socially appropriate behavior, (5) maintain attention and concentration for more than brief periods, (6) perform at production levels expected by most employers, (7) respond appropriately to changes in work setting, (8) maintain personal appearance and hygiene, and (9) tolerate customary work pressures. Dr. Assad also opined that Schink had "extreme" limitations in his ability to behave predictably, reliably, and in an emotionally stable manner. Finally, Dr. Assad estimated that Schink had "mild" limitations in other areas. The questionnaire defined the terms "mild," "marked," and "extreme" as used by Dr. Assad.

         In late September 2011, Dr. Hernandez filled out a similar questionnaire. He did not indicate any "extreme" limitations, but he reported "marked" limitations in the areas of Schink's ability to behave in a predictable, reliable, and emotionally stable manner, and in his ability to tolerate customary work pressures. In all other areas, Dr. Hernandez found Schink to have "moderate" limitations. Dr. Hernandez also indicated that if Schink were placed under stress, Schink's condition would likely deteriorate. Dr. Hernandez based this assessment on the fact that Schink had showed multiple "flare-ups."

         5. Schink's Voluntary Hospitalization

         Schink was voluntarily hospitalized for one week at Park Royal Hospital from December 13, 2013, through December 20, 2013. A discharge summary explains that upon admission, Schink was in distress, had mood swings, was depressed, and was placed on supervision every fifteen minutes to ensure his safety.[2] Schink was given lithium, Wellbutrin, and Ativan. The lithium was later replaced with Trileptal, and Schink was started on Abilify. Upon discharge from the hospital, Schink fared better, denying depression, anxiety, or suicidal plans. The discharge summary listed bipolar disorder, type 2, most recent episode depressed, and mood disorder.

         C. ALJ, Appeals Council, and District Court Decisions

         In late October 2011, Schink appeared before the ALJ for a hearing on his disability claim. On December 30, 2011, the ALJ issued an unfavorable decision. Schink filed a request for review of the ALJ's decision, and the Appeals Council remanded the claim by Order dated June 18, 2013.

         The ALJ held a de novo hearing on January 28, 2014, as a result of the Appeals Council's remand order. Schink testified at the hearing that two different employers had fired him after less than three days of employment due to his difficulty controlling his anger and the way he spoke to customers. He testified that it was "really hard for [him] to deal with people" because "sometimes they really aggravate[d] [him] very bad." He also stated that he "[didn't] really cook or anything" and that he no longer drove much because he "g[o]t very, very angry at people driving." At one point, the ALJ remarked that Schink had cried "a couple of times during the hearing" and asked if that was "normal" for him. Schink replied that he was "upset" and "embarrassed" to be at the hearing, that he "want[ed] to be able to do something," and that he felt like he was "falling apart." He added, "I used to be okay. I don't know what happened to me, you know."

         The ALJ issued another unfavorable decision on March 16, 2015, concluding Schink was not under a disability within the meaning of the Social Security Act from October 1, 2004 (the alleged date of onset of disability), through September 30, 2011 (the date of last insured).

         Although the ALJ determined that Schink suffered from various physical impairments that were severe, he found that Schink's bipolar disorder was not severe. In making this determination, the ALJ discussed Schink's treatment with Drs. Anthony, Hernandez, and Assad, as well as the questionnaires regarding Schink's Mental Residual Functional Capacity completed by Drs. Hernandez and Assad. He also acknowledged the psychological evaluation completed by Dr. Bernard on June 30, 2010.

         The ALJ accorded minimal weight to Dr. Hernandez's and Dr. Assad's opinions as set forth in their respective questionnaires. He explained that he did so, among other reasons, because the questionnaires used terms-including "mild," "extreme," and "unable to function"-that either did not appear in official forms used by the Social Security Administration or struck the ALJ as vague or ill-defined. As a result, the ALJ deemed the questionnaires ambiguous with respect to both the questions asked and the providers' responses. He also objected that the questionnaire did not address the category of "Understanding and Memory." The ALJ further accorded minimal weight to the treating doctors' opinions because he concluded that they were not well-supported by medically acceptable clinical and laboratory diagnostic ...

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