Hans Schink v. Commissioner of Social Security
935 F.3d 1245
11th Cir.
2019

Background

  • Hans Schink applied for Social Security disability benefits (alleged onset Oct. 1, 2004; insured through Sept. 30, 2011) based principally on bipolar disorder and related mental-health problems.
  • Multiple treating providers (Drs. Hernandez and Assad, and earlier Dr. Anthony) consistently diagnosed bipolar disorder, recorded chronic mood lability, anger/impulsivity, and GAF scores roughly 50–60; Schink had a voluntary psychiatric hospitalization in Dec. 2013.
  • A state consultative examiner (Dr. Bernard) examined Schink once and assigned GAF 59; a nonexamining state reviewer (Dr. Bercik) concluded only mild limitations.
  • The ALJ conducted two hearings (one after an Appeals Council remand) and issued an unfavorable decision finding physical impairments severe but ruling Schink’s bipolar disorder non-severe; the ALJ gave minimal weight to treating physicians’ questionnaire opinions and significant weight to Drs. Bernard and Bercik.
  • Appeals Council denied review; district court affirmed. On appeal, Schink argued (1) the ALJ improperly discounted treating physicians’ opinions, (2) the ALJ erred in finding the bipolar disorder non-severe, and (3) the ALJ was biased and should have recused.
  • The Eleventh Circuit held the bias claim forfeited for late presentation, but reversed in part: the ALJ failed to articulate good cause for discounting treating opinions, the non-severity finding was not supported by substantial evidence, and the RFC omitted adequate consideration of mental limitations — remanded for further proceedings.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Weight accorded to treating physicians’ opinions ALJ wrongly gave minimal weight to Drs. Hernandez and Assad; their multi-visit treatment notes and questionnaires deserve substantial weight ALJ relied on perceived sporadic treatment, questionnaire format (vague/check-box) and inconsistency with record to discount them Reversed: ALJ did not articulate good cause; treating sources were true treating providers, notes corroborated questionnaires, and ALJ applied criteria inconsistently when crediting non-treating sources
Severity of bipolar disorder at step two Schink’s bipolar disorder and related symptoms were more than trivial and met the low threshold for a severe impairment ALJ relied on evidence of activities of daily living, some symptom improvement with treatment, and state reviewer conclusions to find non-severe Reversed: substantial evidence does not support non-severity; medical records, GAF scores, episodic severe symptoms, and social/occupational dysfunction show a non-trivial impairment
RFC assessment and mental limitations ALJ failed to include or analyze mental limitations in the RFC despite treating and consultative evidence ALJ implicitly found mental limitations mild and focused RFC on physical capacities Reversed: error not harmless — ALJ’s RFC addressed only physical limitations and failed to explain consideration (or lack) of mental limitations required at step four
Alleged ALJ bias / recusal ALJ had a personal dispute with Schink’s counsel and had filed suit against the Commissioner alleging counsel’s misconduct; recusal required Commissioner argued claim raised too late; procedural rules require earliest opportunity to object to ALJ Affirmed in part: bias claim forfeited for not raising at earliest opportunity; court did not decide the merits of alleged animus

Key Cases Cited

  • Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176 (11th Cir. 2011) (ALJ must state weight given to medical opinions and reasons)
  • Phillips v. Barnhart, 357 F.3d 1232 (11th Cir. 2004) (treating physician’s opinion entitled to substantial weight absent good cause)
  • Lewis v. Callahan, 125 F.3d 1436 (11th Cir. 1997) (failure to articulate reasons for discounting treating opinion is reversible error)
  • McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) (step two severity is a low threshold; trivial impairments may be rejected)
  • McSwain v. Bowen, 814 F.2d 617 (11th Cir. 1987) (one-time examiners are not treating physicians)
  • Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155 (11th Cir. 2004) (treating/examining source distinctions)
  • Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064 (11th Cir. 1994) (court must have sufficient reasoning to determine proper legal analysis was conducted)
  • Lucas v. Sullivan, 918 F.2d 1567 (11th Cir. 1990) (ALJ must consider all duties of past work in step four RFC)
  • Bowen v. Heckler, 748 F.2d 629 (11th Cir. 1984) (ALJ must consider impairments in combination; mental and physical can combine to create disability)
  • Bauer v. Astrue, 532 F.3d 606 (7th Cir. 2008) (chronic mental illnesses have good and bad days; episodic stability does not preclude disability)
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