United States District Court, N.D. Florida, Gainesville Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE
a Social Security case referred to the undersigned United
States Magistrate Judge for a report and recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.2(D).
It is now before the Court pursuant to 42 U.S.C. §
405(g) for review of the final determination of the Acting
Commissioner (Commissioner) of the Social Security
Administration denying Plaintiff's Title II application
for period of disability and Disability Insurance Benefits.
After careful consideration of the entire record, it is
respectfully recommended that the findings of fact and
determinations of the Commissioner are not supported by
substantial evidence; thus, the decision of the Commissioner
should be reversed and remanded.
Procedural History and Facts
December 6, 2013, Plaintiff Chad Anthony Rollins filed a
Title II application for disability insurance benefits
alleging disability beginning on January 30, 2013, due to
bipolar disorder. Tr. 87, 96. Plaintiff's application was
denied initially on March 12, 2014, and upon reconsideration
on April 22, 2014. Tr. 96, 110. Plaintiff requested a
hearing, which was held on January 25, 2016, in Jacksonville,
Florida, before Administrative Law Judge (ALJ) Gregory J.
Froehlich. Tr. 37-82. Plaintiff, who appeared with counsel in
Gainesville via teleconference, testified and Celena Earl,
Vocational Expert, appeared by telephone and testified.
Psychiatrist T. Carey Merritt, M.D., also testified by
telephone. Five letters containing lay evidence were
submitted. Tr. 311-17.
issued a decision on March 29, 2016, finding Plaintiff is not
disabled and is not entitled to disability benefits. Tr.
18-31. The Appeals Council denied Plaintiff's request for
review on March 10, 2017. Tr. 1-6. Thus, the decision of the
ALJ became the final decision of the Commissioner and is ripe
for review. Accordingly, Plaintiff, represented by counsel,
filed a Complaint for judicial review pursuant to 42 U.S.C.
§§ 1381, et seq., and 42 U.S.C. §
405(g). See ECF No. 1.
counsel first presented the testimony of psychiatrist T.
Carey Merritt, M.D. Tr. 41-55. Dr. Merritt testified that he
began treating Plaintiff in 2008 for what he described as a
neuropsychiatric psychotic condition. Tr. 41-42. He testified
that the neuropsychiatric condition began as a result of side
effects of the drug Tamiflu, which created confusion,
delirium, and psychotic features requiring hospitalization.
Tr. 42-43. His initial diagnosis was schizoaffective disorder
but the working diagnosis is now bipolar disorder type one.
Tr. 52. When Dr. Merritt saw Plaintiff several months after
the initial incident, Plaintiff was having persistent
symptoms involving some confusion, residual delusional
thinking, and a mix of depression and hypomania causing
racing thoughts and susceptibility to metaphysical or highly
spiritual issues. Tr. 43-44. He testified that Plaintiff has
had a number of manic episodes, some brief and some requiring
hospitalization. Tr. 45. He said most of Plaintiff's
treatment has revolved around mood stabilizers and other
medications intended to treat his bipolar disorder, including
seizure medications and antipsychotic medications. Tr. 47.
Plaintiff has been treated with Lithium and risperidone,
Tegretol, Depakote, and Wellbutrin. Tr. 47-48. Dr. Merritt
testified that between 2008 and 2011, Plaintiff's
baseline was more depressed, with periods of depression
sometimes lasting months. Tr. 49.
Merritt testified that Plaintiff has tried to work since 2008
and did return to work several times, including as an
associate pastor, but within a month that fell apart when he
began to cycle upwards. Tr. 50-51. Plaintiff also worked as
an assistant manager at a Chick-Fil-A but deteriorated and
could not continue. He said Plaintiff had an episode the past
December in which he had visual hallucinations and
depression. Tr. 53. Dr. Merritt testified that Plaintiff
tried to perform several different types of jobs but he was
unable to maintain them. Dr. Merritt opined that Plaintiff
was not currently expected to be capable of working part time
or full time, but he hoped that with a long enough period of
recovery with less pressure and with the assistance of
existing treatment and medication, Plaintiff could eventually
go back to a vocation. Tr. 54-55.
Chad Anthony Rollins, age 28 at the time of the alleged onset
date, testified that he has a Bachelor's degree in
business management and is an ordained minister. Tr. 56-57.
In the last fifteen years, he has worked in management for a
fast food restaurant, in retail clothing as a department
manager, as a utility meter reader for four years, in public
relations, and as a youth pastor from 2011 to 2013. Tr.
57-59. His last job as pastor ended in 2013 and his attempt
at working at Chick Fil-A in 2013 was not successful due to
testified his illness began in 2008 when he had a severe
neurological reaction to the medication Tamiflu, which caused
him to exhibit symptoms of extreme mania, psychosis, and
hallucinations. Tr. 59. He was on disability through his
employer Clay Electric for about six months and then went
back to work at Clay Electric until 2010 when he began to
serve as a pastor at a Baptist church. Id. He
testified that while serving as a pastor, he went into a
full-blown manic episode with psychosis and hallucinations.
Tr. 60. He was “Baker Acted” and went to Meridian
Behavioral Healthcare for treatment. Id.
his manic episodes, he said he has racing thoughts, extreme
irritability, extreme hyperactivity, extreme insomnia for
days at a time, and cognitive disfunction due to lack of
sleep, memory loss, and irrational behavior physically and
with money. Tr. 60-61. Plaintiff testified that he has had to
be hospitalized on several occasions. Tr. 61. His last
attempt to work at Chick-Fil-A was unsuccessful even though
the employer, a friend, gave him time to try to
“basically get it together.” Tr. 62. After he
tried to work as a youth pastor part time for a couple of
weeks at a church where his uncle was the pastor, he had a
full-blown episode and had to be hospitalized. Tr. 62-64. He
tried to work helping a friend who was remodeling a house but
that was unsuccessful because he could not complete tasks
when needed. Tr. 63. Plaintiff testified that he has
worked for his father sporadically for a couple days a week
since March or April of 2015 at a local camp that his father
runs. Tr. 64.
testified that he sees Dr. Merritt in the office and
sometimes confers on the telephone. Tr. 65-66. They discuss
his therapy and medications. He said all his medications have
caused side effects including severe weight gain, extreme
thirst and dry mouth, extreme urination, changes to sleep
cycle, shortness of breath, dizziness, and sleepiness. Tr.
66-67. Risperdal is effective to combat his psychosis but
deadens him mentally and affects his cognitive functions and
his mood, often causing depression. Tr. 67. He said
depression, sometimes lasting months, always comes on after a
manic episode and has required him to be hospitalized on
several occasions due to suicidal thoughts and two suicide
attempts. Id. Plaintiff described the suicide
attempts as coming in a manic phase after his depressive
phase had cycled. Tr. 68.
those times that he is neither manic nor depressed, he can
function somewhat normally, but not as he did prior to the
Tamiflu incident in 2008. Tr. 69. He said he is no longer
dependable and consistent in what he tries to do.
Id. His wife has had to go back to work due to his
illness and he watches his young children some when they come
home from school, but he could not do it without help from
other family members. Tr. 70. Plaintiff's father helps
mow the lawn, pressure wash the house, and maintain the cars.
His in-laws help with the children, as do his own parents and
brothers. Tr. 73. When he has a manic episode, his wife
cannot handle him and his brothers must come to take him
somewhere away from his wife and children, or to be
hospitalized. Tr. 70-71. He does not use alcohol or
drugs and does not smoke marijuana or cigarettes. Tr. 72.
Earl, an impartial vocational expert, testified that
Plaintiff's past work could be classified as fast food
worker, light, unskilled, SVP of 2; manager, fast food,
light, skilled, SVP of 5; department manager, medium,
skilled, SVP of 7; meter reader, light, semi-skilled, SVP of
3; customer service representative, sedentary, skilled, SVP
of 5, and pastor, light skilled, SVP of 8. Tr. 76-77. The ALJ
presented the vocational expert with a hypothetical
describing a person of claimant's age, education and past
work, who has no exertional limitations but has mental
limitations to simple tasks with little variation taking a
short period of time to learn up to and including 30 days, is
limited to work settings that do not require production pace
work, is limited socially to relating adequately with
supervisors but with no general public contact, and has only
occasional coworker contact. Tr. 77-78. The vocational expert
testified that such an individual would not be able to
perform the past work done by Plaintiff. Tr. 78.
that same hypothetical, the vocational expert testified that
the person would be able to perform work as an industrial
cleaner, DOT #381.687-018, medium strength level, SVP of 2,
with an estimated 1, 077, 500 jobs in the national economy;
laundry worker, DOT #361.685-018, medium strength level, SVP
of 2, with an estimated 377, 400 jobs in the national
economy; mail clerk, DOT #209.687-026, light, SVP of 2, with
an estimated 70, 900 jobs in the national
economy. Tr. 78.
vocational expert was then presented with the same
hypothetical facts, but with the additional limitation that
the individual would be off task for approximately 20% of the
work day at infrequent intervals, outside normally permitted
breaks. Tr. 78-78. The vocational expert testified that with
these additional limitations, all work would be eliminated.
The vocational expert testified employers would tolerate
absences of no more than one day a month. Tr. 79. When asked
if her testimony conflicts with the Dictionary of
Occupational Titles, the vocational expert testified that the
DOT does not address off-task time or absences per month, but
that her testimony on these issues was based on her training,
education, and knowledge of how jobs are performed in the
labor market. Id.
conclusion of the hearing, Plaintiff's counsel argued
that Plaintiff's mental impairment meets listing 12.04
but, at a minimum, would qualify him for disability due to
medical records documenting suicidal thoughts, extreme
paranoid thinking, rapid cycling with auditory
hallucinations, inability to sleep, deep depression, visual
hallucinations, strong side effects to Risperdal, overly
abstract thinking, loose thoughts, and racing thoughts. Tr.
Findings of the ALJ
decision issued March 29, 2016, the ALJ made the following
1. The claimant meets the insured status requirements
of the Social Security Act through September 30,
2016. Tr. 20.
2. The claimant has not engaged in substantial
gainful activity since January 30, 2013, the alleged onset
The ALJ noted that although Plaintiff did attempt to work
from February 2013 to March 2013, these were unsuccessful
work attempts. Id.
3. The claimant has the following severe impairment:
bipolar disorder. Id.
4. The claimant does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1. Tr. 21.
The ALJ found that Plaintiff's severe impairment does not
meet or medically equal the criteria of listing 12.04. He
found that at least two of the three criteria of
“paragraph B” were not met in that Plaintiff had
only mild restriction in the activities of daily living
rather than marked restriction, citing Plaintiff's
activities at home caring for children, performing household
chores, working a few days a week at his father's
campground, driving, handling finances, and tending to
personal hygiene. Id.
The ALJ further found that Plaintiff had moderate
difficulties in social functioning rather than marked
difficulties. Id. The ALJ found that Plaintiff had
symptoms of irritability, agitation, and anxiety and felt his
ability to interact with others was different than in his
With regard to concentration, persistence, or pace, the ALJ
found Plaintiff had moderate difficulties rather than marked
difficulties as required by “paragraph B.”
Id. The ALJ noted treatment records documenting
confusion and decreased cognition, distractibility and word
finding problems, but other treatment notes show good, but a
bit slower, thought flow, and fair attention and
As to the required repeated episodes of decompensation under
“paragraph B, ” the ALJ found the record
reflected one to two episodes of decompensation, each of
extended duration, rather than the required repeated
episodes, meaning three episodes within one year.
The ALJ also concluded that the criteria of “paragraph
C” were not met, finding that the medical evidence does
not show a history of chronic affective disorder of at least
two years duration that has caused more than minimal
limitation in ability to perform basic work activities, with
symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following: (1) repeated
episodes of decompensation, each of extended duration; or (2)
a residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or
change of environment would be predicted to cause the
individual to decompensate; or (3) a current history of one
or more years' inability to function outside a highly
supportive living arrangement, with an indication of
continued need for such an arrangement. Tr. 21-22.
The ALJ noted that the limitations identified in the
“paragraph B” analysis are not a residual
function capacity assessment but are used to rate the
severity of the impairment at steps 2 and 3 of the sequential
evaluation process. Th ALJ further noted that the residual
functional capacity assessment at steps 4 and 5 requires a
more detailed assessment by itemizing the functions contained
in the broad categories found in ...