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Schink v. Commissioner of Social Security

United States District Court, M.D. Florida, Fort Myers Division

August 28, 2017

HANS SCHINK, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          CAROL MIRANDO United States Magistrate Judge.

         Plaintiff Hans Schink seeks judicial review of the denial of his claim for disability, disability insurance benefits (“DIB”) and supplemental security income (“SSI”) by the Commissioner of the Social Security Administration (“Commissioner”). The Court has reviewed the record, the briefs, and the applicable law. For the reasons set forth herein, the decision of the Commissioner is AFFIRMED.

         I. Issues on Appeal[1]

         Plaintiff raises four issues on appeal: (a) whether the Administrative Law Judge (“ALJ”) properly accorded minimal weight to the opinions of Plaintiff's treating physicians; (b) whether the ALJ properly found that Plaintiff's mental impairment was not severe; (c) whether substantial evidence supports the ALJ's finding that Plaintiff could perform his past relevant work; and (d) whether the ALJ had a bias that affected his decision.

         II. Procedural History and Summary of the ALJ Decision

         On February 8, 2010, Plaintiff filed applications for SSI and a period of DIB alleging that he became disabled and unable to work on October 1, 2004. Tr. 105, 172-84. Plaintiff alleged disability due to bipolar disorder, type II diabetes and right rotator cuff problems. Tr. 106, 226. Plaintiff's applications were denied initially and upon reconsideration. Tr. 133-36, 138-40. Plaintiff requested a hearing before an ALJ and initially received a hearing before ALJ Larry J. Butler on October 20, 2011. Tr. 81-104, 141-42. Plaintiff, who was represented by counsel during the hearing, appeared and testified at the hearing. Tr. 83. On December 30, 2011, the ALJ issued a decision finding Plaintiff not disabled from October 1, 2004 through September 30, 2011, the date last insured. Tr. 112-20. Following the ALJ's decision, Plaintiff filed a request for review by the Appeals Council, which was granted on June 18, 2013. Tr. 126-29. The Appeals Council remanded the case to the ALJ for further proceedings. Id. Plaintiff received a second hearing before the ALJ on January 28, 2014, during which he again was represented by an attorney. Tr. 46-74. Plaintiff appeared and testified at the hearing. Id.

         On March 16, 2015, the ALJ issued a second decision finding Plaintiff not disabled from October 1, 2004 through September 30, 2011, the date last insured. Tr. 19-37. At step one, the ALJ determined that Plaintiff last met the insured status requirements of the Social Security Act on September 30, 2011, and had not engaged in substantial gainful activity from August 19, 2004 through September 30, 2011. Tr. 22-23. At step two, the ALJ determined that through the date last insured, Plaintiff had the following severe impairments: right shoulder and low back pain syndrome, history of hypertension, diabetes mellitus, hypothyroidism and obesity. Tr. 23. At step three, the ALJ concluded that through the date last insured, Plaintiff “did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Tr. 30.

         The ALJ then determined that through the date last insured, Plaintiff had the residual functional capacity (“RFC”) to perform the full range of light work[2] limited to “lifting/carrying up to 20 pounds occasionally and up to 10 pounds frequently. [Plaintiff] can sit, stand and/or walk for a total of six hours during an eight-hour workday. [Plaintiff] can occasionally stoop or crouch. [Plaintiff] can frequently reach in all directions, including overhead.” Id. Next, the ALJ found that through the date last insured, Plaintiff was capable of performing his past relevant work as a car salesman. Tr. 36. Thus, the ALJ concluded that Plaintiff was not disabled from October 1, 2004 through the date last insured, September 30, 2011. Tr. 37.

         Following the ALJ's decision, Plaintiff filed a request for review by the Appeals Council, which was denied on June 7, 2016. Tr. 1. Accordingly, the March 16, 2015 decision is the final decision of the Commissioner. Plaintiff filed an appeal in this Court on August 4, 2016. Doc. 1. Both parties have consented to the jurisdiction of the United States Magistrate Judge, and this matter is now ripe for review. Docs. 12, 13.

         III. Social Security Act Eligibility and Standard of Review

         A claimant is entitled to disability benefits when he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to either result in death or last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A); 20 C.F.R. § 404.1505(a).[3] The Commissioner has established a five-step sequential analysis for evaluating a claim of disability. See 20 C.F.R. §416.920. The Eleventh Circuit has summarized the five steps as follows:

(1) whether the claimant is engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or combination of impairments; (3) if so, whether these impairments meet or equal an impairment listed in the Listing of Impairments; (4) if not, whether the claimant has the residual functional capacity (“RFC”) to perform his past relevant work; and (5) if not, whether, in light of his age, education, and work experience, the claimant can perform other work that exists in “significant numbers in the national economy.”

Atha v. Comm'r Soc. Sec. Admin., 616 F. App'x 931, 933 (11th Cir. 2015) (citing 20 C.F.R. §§ 416.920(a)(4), (c)-(g), 416.960(c)(2); Winschel v. Comm'r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011)). The claimant bears the burden of persuasion through step four; and, at step five, the burden shifts to the Commissioner. Id. at 933; Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). The scope of this Court's review is limited to determining whether the ALJ applied the correct legal standards and whether the findings are supported by substantial evidence. McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988) (citing Richardson v. Perales, 402 U.S. 389, 390 (1971)). The Commissioner's findings of fact are conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a scintilla, i.e., evidence that must do more than create a suspicion of the existence of the fact to be established, and such relevant evidence as a reasonable person would accept as adequate to support the conclusion.” Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995) (internal citations omitted); see also Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (finding that “[s]ubstantial evidence is something more than a mere scintilla, but less than a preponderance”) (internal citation omitted).

         The Eleventh Circuit has restated that “[i]n determining whether substantial evidence supports a decision, we give great deference to the ALJ's fact findings.” Hunter v. Soc. Sec. Admin., Comm'r, 808 F.3d 818, 822 (11th Cir. 2015) (citing Black Diamond Coal Min. Co. v. Dir., OWCP, 95 F.3d 1079, 1082 (11th Cir. 1996)). Where the Commissioner's decision is supported by substantial evidence, the district court will affirm, even if the reviewer would have reached a contrary result as finder of fact, and even if the reviewer finds that the preponderance of the evidence is against the Commissioner's decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991); Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). “The district court must view the record as a whole, taking into account evidence favorable as well as unfavorable to the decision.” Foote, 67 F.3d at 1560; see also Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992) (stating that the court must scrutinize the entire record to determine the reasonableness of the factual findings). It is the function of the Commissioner, and not the courts, to resolve conflicts in the evidence and to assess the credibility of the witnesses. Lacina v. Comm'r, Soc. Sec. Admin., 606 F. App'x 520, 525 (11th Cir. 2015) (citing Grant v. Richardson, 445 F.2d 656 (5th Cir.1971)). The Court reviews the Commissioner's conclusions of law under a de novo standard of review. Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir. 2007) (citing Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir. 1990)).

         IV. Discussion

         a. Whether the ALJ properly accorded minimal weight to the opinions of Plaintiff's treating physicians

         At step two, the ALJ found that through the date last insured, although Plaintiff had various severe impairments, his bipolar disorder was not a severe impairment. Tr. 23-31. The ALJ discussed in detail the treatment notes concerning Plaintiff's bipolar disorder. Tr. 24-31. Relevant here are the treatment notes and opinions of Plaintiff's two treating psychiatrists, Nelson A. Hernandez, M.D., P.A., and Charles Assad, Ph.D. Tr. 24-29, 31.[4]

         On April 26, 2011, Plaintiff saw Dr. Hernandez for his bipolar disorder. Tr. 646. Dr. Hernandez noted that Plaintiff was diagnosed with bipolar disorder in 2004. Id. During this visit, Plaintiff reported, among other things, that he had mood swings, racing thoughts and had been sad and depressed lately. Id. He also noted that he experienced increased anxiety and had not been sleeping well lately. Id. Nonetheless, Plaintiff did not have any panic attacks or auditory, visual or tactile hallucinations and had a good appetite. Id. Plaintiff further denied any delusions and was oriented to time, place and person. Id.

         Dr. Hernandez opined that Plaintiff's motor behavior was retarded, and his mood was dysthymic and depressed. Tr. 649. His affect was frequently changing, and his recent memory was impaired. Id. Plaintiff had moderate anxiety and depression with the inability to experience pleasure. Id. In contrast, Dr. Hernandez indicated that Plaintiff was clean and cooperative, although he was tearful. Id. Dr. Hernandez further noted that Plaintiff's speech was normal, and his thought process was organized and circumstantial. Id. Plaintiff had relevant content of thought, intact cognition and fair insight and judgment. Id. He was oriented to person, place and time and denied any suicidal or homicidal ideations, and Plaintiff's perception was normal without any delusions. Id. Plaintiff also did not exhibit any dominant character structure. Id.

         Dr. Hernandez diagnosed Plaintiff with bipolar disorder and anxiety disorder. Tr. 650. Plaintiff's Global Assessment of Functioning (“GAF”)[5] score was 60.[6] Id. Along with other plans for Plaintiff, Dr. Hernandez referred him to Dr. Assad and asked him to return in two weeks. Id. The ALJ discussed this evaluation in his decision. Tr. 24.

         On September 1, 2011, Plaintiff returned to Dr. Hernandez. Tr. 677. Plaintiff reported that he had a “fair” energy level, fewer mood swings and racing thoughts and was “less” depressed. Id. Plaintiff's sleep was “fair.” Id. His appetite was good; and he did not have any auditory, visual or tactile hallucinations. Id. Plaintiff was oriented to person, place and time, and his memory was intact, although his recent memory was impaired. Id. Dr. Hernandez opined that Plaintiff's psychomotor was less retarded than it was during the prior visit, even though his affect was frequently changing. Id. Plaintiff's mood was less depressed than it was during the prior visit, and Plaintiff had mild anxiety. Id. His thought content and process were intact, and he denied any suicidal or homicidal ideas or plans. Id. Plaintiff had fair insight and judgment. Id. Dr. Hernandez, among other things, prescribed medications and asked Plaintiff to follow up with Dr. Assad and return in two weeks. Id.

         Plaintiff again saw Dr. Hernandez on September 15, 2011. Tr. 676. Plaintiff indicated he felt better during this visit. Id. He continued to show improvements, as he had less mood swings and racing thoughts and was less agitated. Id. Plaintiff reported that he slept better and his appetite was good. Id. During this visit, Plaintiff's psychiatric examination was unremarkable and showed improvements; Plaintiff's recent memory was better, and his psychomotor was less retarded. Id. Plaintiff's mood was less depressed, and his thought process was intact and circumstantial. Id. His affect was appropriate, and Plaintiff had good insight and judgment. Id. As a result, Dr. Hernandez, among other plans, asked Plaintiff to follow up with Dr. Assad and return in four weeks. Id.

         On September 21, 2011, Dr. Hernandez completed a Questionnaire as to Mental RFC based on his examination of Plaintiff. Tr. 666. Regarding Plaintiff's social interaction, Dr. Hernandez opined that Plaintiff has a moderate[7] impairment of the ability to accept instructions from or respond appropriately to criticism from supervisors or superiors. Id. Dr. Hernandez also indicated that Plaintiff has a moderate impairment of the ability to work in coordination with or in proximity to others without distracting them or exhibiting behavioral extremes. Id. He further noted that Plaintiff has moderate impairments of the ability to maintain attention and concentration for more than brief periods of time and the ability to perform at production levels expected by most employers. Tr. 667.

         With respect to adaptive skills, Dr. Hernandez opined that Plaintiff has moderate impairments to respond appropriately to changes in a work setting. Id. The doctor also noted that Plaintiff has moderately impaired abilities to remember locations and workday procedures and instructions, to be aware of normal hazards and take necessary precautions and to maintain personal appearance and hygiene. Id. Furthermore, Dr. Hernandez noted that Plaintiff has markedly[8] impaired abilities to behave predictably, reliably and in an emotionally stable manner and to tolerate customary work pressure. Id. In addition, Dr. Hernandez noted that Plaintiff's condition is likely to deteriorate if he is placed under stress, particularly that of a job, because Plaintiff's condition “showed multiple flare-ups.” Tr. 668. He concluded that although Plaintiff is capable of managing his own funds, his impairment has lasted or is expected to last twelve months or more. Id.

         The ALJ fully discussed this opinion in his decision. Tr. 25. He accorded minimal weight to the opinion for reasons that are explained below. Tr. 28-29. Dr. Hernandez treated Plaintiff twice after he completed the evaluation, on October 11, 2011 and December 25, 2011. Tr. 675, 681. Although these visits are subsequent to Plaintiff's date last insured, Dr. Hernandez's findings from these visits were substantially similar to ones from the prior visits.[9] Tr. 675, 81. Thus, the findings from these two visits also support the ALJ's finding that Plaintiff's bipolar disorder was not a severe impairment from October 1, 2004 to September 30, 2011. Tr. 23, 31, 675, 681.

         Dr. Assad had frequent counseling sessions with Plaintiff in 2011. Tr. 579-81, 744. On June 6, 2011, Plaintiff first saw Dr. Assad for his anxiety, depression and history of bipolar II disorder. Tr. 580. During this visit, however, as the ALJ correctly noted, Plaintiff “discussed his marital problems.” Tr. 24, 580. Dr. Assad found that Plaintiff appeared neat and properly groomed and had good insight. Tr. 580. He also noted that Plaintiff's attitude was cooperative, and his recent and remote memories were “ok.” Id. Plaintiff did not have any delusions and denied any homicidal ideation. Tr. 581. Plaintiff's thought organization was “engaged at times.” Id. Dr. Assad opined that Plaintiff's cognition was clinically at least average, and his perception was accurate and clear. Id. Plaintiff was oriented to time, place and person. Id.

         In contrast, Dr. Assad found that Plaintiff's mood was elevated, elated, expansive and anxious. Tr. 580. Plaintiff's affect exhibited some hyperactivity and some hypomania. Id. Dr. Assad further noted that Plaintiff had increased anxiety and depression, and his judgment was impaired especially during hypomanic episodes. Id. Plaintiff's speech was rapid and pressured at times, and Plaintiff admitted to having passive suicidal ideation at times. Tr. 581. Dr. Assad indicated “depressed” as Plaintiff's character structure. Id. Dr. Assad diagnosed Plaintiff with bipolar II disorder and gave a deferred diagnosis on Plaintiff's personality disorders. Id. Dr. Assad indicated that Plaintiff's GAF score from the prior year was 50, [10] and his current score was 55. Id. Dr. Assad, among other things, ordered short-term therapy for Plaintiff and requested coordinated services with Dr. Hernandez. Id.

         The ALJ correctly noted that Plaintiff's subsequent counselling “revolved around [Plaintiff's] relationship with his wife.” Tr. 25, 579, 744. Apart from Plaintiff's marital issues, Dr. Assad found on June 20, 2011 that although Plaintiff continued to have pressured speech and disjointed thought process, Plaintiff was able to be redirected and to remain on topic. Tr. 579. On July 6, 2011, Dr. Assad opined that compared to the prior visit, Plaintiff's thought process was clearer and more logical, and his speech was less pressured. Id. Nonetheless, the doctor noted that Plaintiff still had bipolar, rapid changes in his mood. Id. On July 20, 2011, Dr. Assad noted that Plaintiff had rapid speech and “somewhat” tangential thought process. Id. The ALJ discussed Dr. Assad's treatment notes in his decision. Tr. 24-25.

         On August 29, 2011, Dr. Assad indicated that Plaintiff had depressed mood and affect, which was tied to Plaintiff's relationship issue. Tr. 744. Similarly, on September 19, 2011, Dr. Assad noted Plaintiff's disappointment and anger associated with his roommate. Id. Dr. Assad opined that Plaintiff tended to respond to his disappointment and anger with either intense anger or passive-aggressive behavior. Id. Although Plaintiff continued to see Dr. Assad, the treatment notes from Plaintiff's subsequent visits are beyond the relevant time period of October 1, 2004 to September 30, 2011. Tr. 733-44, 868.

         On October 11, 2011, Dr. Assad complete a Questionnaire as to Mental RFC based on his treatment of Plaintiff. Tr. 670-73. With respect to Plaintiff's social interaction, Dr. Assad opined that Plaintiff has a marked impairment of the ability to accept instructions from or respond appropriately to criticism from supervisors or superiors. Tr. 670. Dr. Hernandez also indicated that Plaintiff has a marked impairment of the ability to work in coordination with or in proximity to others without distracting them or exhibiting behavioral extremes. Id. He further noted that Plaintiff has markedly impaired abilities to respond appropriately to co-workers or peers and to relate to the general public and maintain socially appropriate behavior. Tr. 671. Dr. Assad indicated that his responses would not change even if only minimal contact or interaction with others is required. Id.

         In the area of sustained concentration and persistence, Dr. Assad opined that Plaintiff has moderately impaired abilities to perform and complete work tasks in a normal work day or week at a consistent pace, to work in cooperation with or in proximity to others without being distracted by them, and to carry through instructions and complete tasks independently. Id. He further noted that Plaintiff has a mildly[11] impaired ability to process subjective information accurately and to use appropriate judgment. Id. Dr. Assad also indicated that Plaintiff has markedly impaired abilities to maintain attention and concentration for more than brief periods of time and to perform at production levels expected by most employers. Tr. 672.

         With regard to Plaintiff's adaptive skills, Dr. Assad opined that Plaintiff has marked impairments of the abilities to respond appropriately to changes in a work setting, to maintain personal appearance and hygiene, and to tolerate customary work pressures. Id. Furthermore, he noted that Plaintiff has a moderately impaired ability to remember locations and workday procedures and instructions. Id. He also indicated that Plaintiff has a mildly impaired ability to be aware of normal hazards and take necessary precautions. Id. Lastly, Dr. Assad opined that Plaintiff has an extreme[12] impairment of the ability to behave predictably, reliably and in an emotionally stable manner. Id.

         In addition, Dr. Assad noted that Plaintiff's condition is not likely to deteriorate if he is placed under stress, particularly that of a job. Tr. 673. He concluded that although Plaintiff is capable of managing his own funds, his impairment has lasted or is to be expected to last twelve months or more. Id. The ALJ ...


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