from the United States District Court for the Middle District
of Florida D.C. Docket No. 2:16-cv-00610-CM
WILLIAM PRYOR and ROSENBAUM, Circuit Judges, and MOORE,
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.
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
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.
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.
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.
Schink's Initial Treatment
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.
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
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") score of 55. Id. Dr. Johnson also
noted that Schink had intermixed manic and depressive
episodes, racing thoughts, and rapid cycling manic and
State Doctors' Assessment of Schink
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."
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.
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.
Additional Treatment by Schink's Doctors
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.
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.
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
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.
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.
Questionnaires Completed by Drs. Assad and Hernandez
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.
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."
Schink's Voluntary Hospitalization
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. 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
ALJ, Appeals Council, and District Court Decisions
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.
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
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).
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.
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