Cipriano v. Colvin

Filing 20

Order re: 1 Complaint filed by Michael W. Cipriano stating that the decision of the Commissioner of Social Security denying Plaintiffs claim for a period of disability and disability insurance benefits be REVERSED AND REMANDED due to the lack of substantial evidence to support the ALJs finding that Plaintiffs bipolar disorder is non-severe. Signed by Magistrate Judge Sonja F. Bivins on 9/24/2015. Copies to parties. (mpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL W. CIPRIANO,

*
*
Plaintiff,
*
*
vs.
*
*
CAROLYN W. COLVIN,
*
Commissioner of Social Security,*
*
Defendant.
*

CIVIL ACTION NO. 14-00384-B

ORDER
Plaintiff

Michael

W.

Cipriano

(hereinafter

“Plaintiff”)

brings this action seeking judicial review of a final decision
of the Commissioner of Social Security denying his claim for a
period

of

disability

and

disability

insurance

benefits

under

Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq.
On June 17, 2015, the parties waived oral argument and consented
to have the undersigned conduct any and all proceedings in this
case.

(Docs. 16, 17).

Thus, the action was referred to the

undersigned to conduct all proceedings and order the entry of
judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule
of

Civil

Procedure

73.

Upon

careful

consideration

of

the

administrative record and the memoranda of the parties, it is
hereby ORDERED that the decision of the Commissioner be REVERSED
and REMANDED for further proceedings not inconsistent with this

decision.1
I.

Procedural History
Plaintiff filed applications for a period of disability and

disability insurance benefits on September 2, 2010. 2

(Tr. 96).

Plaintiff alleged that he has been disabled since January 15,
2010, due to “bipolar, anxiety, and lower back.”
110).

(Id. at 107,

Plaintiff’s applications were denied, and upon timely

request,

he

was

granted

an

administrative

hearing

before

Administrative Law Judge Larry J. Butler (hereinafter “ALJ”) on
September

18,

2012.

(Id.

at

32).

Plaintiff

attended

the

hearing with his counsel and provided testimony related to his
claims. 3

(Id.).

On May 10, 2013, the ALJ issued an unfavorable

decision finding that Plaintiff is not disabled.

(Id. at 20).

The Appeals Council denied Plaintiff’s request for review on
July 2, 2014.

(Id. at 1).

Thus, the ALJ’s decision dated May

1

Any appeal taken from this decision shall be made to the
Eleventh Circuit Court of Appeals.
(See Doc. 19)(“An appeal
from a judgment entered by a magistrate judge shall be taken
directly to the United States court of appeals for this judicial
circuit in the same manner as an appeal from any other judgment
of this district court.”).

2

Plaintiff testified at his administrative hearing that he
previously received disability benefits, but he lost the
benefits because he made too much money at his part-time job at
a mental health support center. (Tr. 40).

3

Because the ALJ concluded at step two of the disability
evaluation process that Plaintiff was not disabled, no testimony
was taken from a vocational expert.
2

10, 2013 became the final decision of the Commissioner.
Having

exhausted

his

administrative

timely filed the present civil action.

remedies,

(Doc. 1).

Plaintiff

The parties

agree that this case is now ripe for judicial review and is
properly before this Court pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3).
II.

Issue on Appeal
A.

Whether
the
ALJ
erred
in
finding
Plaintiff’s bipolar disorder non-severe
at step two of the sequential evaluation
process?

III. Factual Background
Plaintiff was born on September 27, 1966, and was fortyfive years of age at the time of his administrative hearing on
September 18, 2012.

(Tr. 32, 96).

Plaintiff testified that he

quit school in the eighth grade and that he passed parts of the
GED but did not attempt all parts of the test.4

(Id. at 37, 54).

Plaintiff testified, and the record shows, that he last
worked part-time from 2002 to 2010 as a co-manager at a mental
health support center but was fired when he stopped showing up
for work.

(Id. at 38-42, 111, 126).

4

Prior to that, Plaintiff

The record shows that Plaintiff made good grades in school but
dropped out of school in the eighth grade. (Tr. 311).
3

worked as a truck driver.

5

(Id. at 42-43, 111).

Plaintiff

testified that he can no longer work because of his bipolar
disorder

which

causes

repeated

periods

of

time

when

he

is

severely depressed, anxious, sleepless, and unable to leave his
home.6

(Id. at 42-43).

Plaintiff testified that he lives with his girlfriend and
his girlfriend’s two children.

(Id. at 55).

In his Function

Report, Plaintiff stated that, depending on how he feels, he may
sleep all day, go for a walk, play the guitar, go to the store,
or watch television.

(Id. at 137).

According to Plaintiff, he

has periods of sleeplessness for days on end and then, periods
where he is at the other extreme, and will stay in the bed
sleeping for days.

(Id. at 138).

At times, he does not attend

to his personal needs and does no cooking.

(Id.).

At other

times, he can prepare meals, do housework and yard work, and
take care of himself.

(Id. at 139).

He drives, shops, goes out

alone, and goes to the drop-in mental health center when he can.
(Id. at 140-41).

He has no problems getting along with family

5

Plaintiff testified that he has attempted volunteer work with a
children’s charity and some part time work in the stucco
business, but he found the work too stressful and began to miss
work. (Tr. 44, 48-49).

6

Plaintiff testified that he has physical problems as well,
including problems with his back and arthritis in his shoulder,
but these conditions do not prevent him from working. (Tr. 53).
4

or others.

(Id. at 142).

He can pay attention and follow

instructions when he is feeling well, but he does not handle
stress well.

(Id.).

Plaintiff testified that he has seen many psychiatrists.
(Id. at 45).

He has taken medication for bipolar disorder since

he was eighteen years old, and the medications sometimes stop
working and sometimes have side effects.

(Id. at 46).

He has

attempted suicide several times, and he has had bouts of cutting
himself.
IV.

(Id. at 46-47).

Analysis
A.

Standard of Review

In reviewing claims brought under the Act, this Court’s
role

is

a

determining

limited
1)

one.

whether

The
the

Court’s
decision

review
of

the

is

limited

to

Secretary

is

supported by substantial evidence and 2) whether the correct
legal standards were applied.
1520, 1529 (11th Cir. 1990).

7

Martin v. Sullivan, 894 F.2d

A court may not decide the facts

anew, reweigh the evidence, or substitute its judgment for that
of the Commissioner.
Cir.

1986).

The

Sewell v. Bowen, 792 F.2d 1065, 1067 (11th
Commissioner’s

findings

of

fact

affirmed if they are based upon substantial evidence.
7

must

be

Brown v.

This Court’s review of the Commissioner’s application of legal
principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th
Cir. 1987).
5

Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v.
Heckler,

703

F.2d

1233,

1239

(11th

Cir.

1983)

(holding

substantial evidence is defined as “more than a scintilla, but
less

than

a

preponderance”

and

consists

of

“such

relevant

evidence as a reasonable person would accept as adequate to
support

a

conclusion.”).

In

determining

whether

substantial

evidence exists, a court must view the record as a whole, taking
into account evidence favorable, as well as unfavorable, to the
Commissioner’s decision.

Chester v. Bowen, 792 F. 2d 129, 131

(11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163, *4
(S.D. Ala. June 14, 1999).
B.

Discussion

An individual who applies for Social Security disability
benefits

must

prove

404.1512, 416.912.

his

or

her

disability.

20

C.F.R.

§§

Disability is defined as the “inability to

engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.”

42

U.S.C.

§§

404.1505(a),

416.905(a).

provide

five-step

a

423(d)(1)(A);
The

Social

sequential

6

see

also

20

Security

evaluation

C.F.R.

§§

regulations
process

for

determining if a claimant has proven his disability. 8

20 C.F.R.

§§ 404.1520, 416.920.
In the case sub judice, the ALJ determined that Plaintiff
has not engaged in substantial gainful activity since January
15, 2010, the alleged onset date, and that he has the “medically
determinable”
pain.

9

impairments

(Id. at 22).

of

bipolar,

anxiety,

and

low

back

The ALJ further determined that while

8

The claimant must first prove that he or she has not engaged in
substantial gainful activity.
The second step requires the
claimant to prove that he or she has a severe impairment or
combination of impairments. If, at the third step, the claimant
proves that the impairment or combination of impairments meets
or
equals
a
listed
impairment,
then
the
claimant
is
automatically found disabled regardless of age, education, or
work experience.
If the claimant cannot prevail at the third
step, he or she must proceed to the fourth step where the
claimant must prove an inability to perform their past relevant
work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In
evaluating whether the claimant has met this burden, the
examiner must consider the following four factors: (1) objective
medical facts and clinical findings; (2) diagnoses of examining
physicians; (3) evidence of pain; and (4) the claimant’s age,
education and work history.
Id.
Once a claimant meets this
burden, it becomes the Commissioner’s burden to prove at the
fifth step that the claimant is capable of engaging in another
kind
of
substantial
gainful
employment
which
exists
in
significant
numbers
in
the
national
economy,
given
the
claimant’s residual functional capacity, age, education, and
work history.
Sryock v. Heckler, 764 F.2d 834, 836 (11th Cir.
1985). If the Commissioner can demonstrate that there are such
jobs the claimant can perform, the claimant must prove inability
to perform those jobs in order to be found disabled. Jones v.
Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v.
Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v.
Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)).

9

Plaintiff does not take issue with the ALJ’s findings related
to his physical impairment of low back pain. Rather, Plaintiff
7

Plaintiff’s medically determinable impairments could reasonably
be

expected

to

produce

the

alleged

symptoms,

his

statements

concerning the intensity, persistence and limiting effects of
the alleged symptoms were not entirely credible.

(Id. at 26).

The ALJ concluded that while Plaintiff has the “medically
determinable”
pain,

he

impairments

“does

not

have

of

bipolar,

an

anxiety,

impairment

or

and

low

combination

back
of

impairments that has significantly limited (or is expected to
significantly limit) the ability to perform basic work-related
activities for 12 consecutive months.”
he

“does

not

have

a

severe

(Id. at 22).

impairment

impairments” and is not disabled.10

or

Therefore,

combination

of

(Id. at 22, 27).

In assessing the severity of Plaintiff’s impairments, the
ALJ made the following relevant findings:
4.
The
claimant
does
not
have
an
impairment or combination of impairments
that
has
significantly
limited
(or
is
expected to significantly limit) the ability
to perform basic work-related activities for
12
consecutive
months;
therefore,
the
claimant does not have a severe impairment
or
combination
of
impairments
(20
CFR
404.1521 et seq.).
challenges only the ALJ’s finding that his bipolar disorder is
non-severe. (Doc. 12 at 1). Therefore, the Court’s discussion
is limited to that issue.
10

Having found that Plaintiff’s impairments were non-severe, the
ALJ did not proceed beyond the second step of the sequential
evaluation process.
8

Basic work activities are the abilities and
aptitudes
necessary
to
do
most
jobs.
Examples of these include:
1. Physical functions such as walking,
standing,
sitting,
lifting,
pushing,
pulling, reaching, carrying, or handling;
2. Capacities
speaking;

for

seeing,

hearing,

3.
Understanding,
carrying
remembering simple instructions;

out,

and
and

4. Use of judgment;
5. Responding appropriately to supervision,
co-workers, and usual work situations; and
6. Dealing with changes in a routine work
setting (SSR-85-28).
In reaching the conclusion that the claimant
does not have an impairment or combination
of impairments that significantly limits his
ability to perform basic work activities,
the undersigned has considered all symptoms
and the extent to which these symptoms can
reasonably be accepted as consistent with
the objective medical evidence and other
evidence, based on the requirements of 20
CFR 404.1529 and SSRs 96-4p and 96-7p.
The
undersigned has also considered opinion
evidence in accordance with the requirements
of 20 CFR 404.1527 and SSRs 96-2p, 96-5p,
96-6p and 06-3p.
In considering the claimant’s symptoms, the
undersigned must follow a two-step process
in which it must first be determined whether
there
is
an
underlying
medically
determinable
physical
or
mental
impairment(s)--i.e., an impairment(s) that
can
be
shown
by
medically
acceptable
clinical
and
laboratory
diagnostic
9

techniques--that
could
reasonably
be
expected to produce the claimant’s pain or
other symptoms.
Second, once an underlying physical or
mental impairment(s) that could reasonably
be expected to produce the claimant’s pain
or other symptoms has been shown, the
undersigned must evaluate the intensity,
persistence, and limiting effects of the
claimant’s symptoms to determine the extent
to
which
they
limit
the
claimant’s
functioning.
For this purpose, whenever
statements about the intensity, persistence,
or functionally limiting effects of pain or
other symptoms are not substantiated by
objective medical evidence, the undersigned
must make a finding on the credibility of
the statements based on a consideration of
the entire case record.
The claimant was 43 years of age as of the
alleged onset date.
He has low back pain
and occasional spasms (Exhibit 4F/2).
The
claimant smokes 2 packs of cigarettes a day
(Exhibits 4F/1 and 11F/1).
He lives with
his girlfriend; he has two children, ages 15
and 16, who live with their mother.
He is
73 inches tall and weighs approximately 220
pounds.
He has a very poor work history.
He testified that he has never applied for
or received unemployment.
He has an 8th
grade education.
He received disability
insurance benefits from February 21, 1994
through January 31, 2004; which resulted in
an overpayment of $20,614.
He testified
that the police tased him on March 19, 2009
after a “suicide” attempt; and he stayed
overnight in the hospital. He has a history
of bipolar disorder; however he is not
taking any medication (Exhibit 11F/4).
The
undersigned notes the claimant appeared fine
at the hearing.
The
undersigned
accepts
the
treatment
records.
The treatment notes confirm that
10

the claimant has a history of bipolar
disorder.
The
treatment
notes
from
Physicians Regional Medical Center, dated
March 16, 2009 - March 18, 2009 show the
claimant was brought to the emergency room
by law enforcement after he was tasered at
home.
Reportedly, the claimant slashed his
wrists.
The claimant stated he had been
under
a
lot
of
personal
stress
for
approximately 1-2 weeks.
The claimant had
been
noncompliant
with
some
of
his
psychotropic
medication.
The
claimant
consumes large quantities of alcohol even
though he stated that he knows that it makes
him more depressed. The hospital records
show
that
his
“hospitalization
was
relatively uneventful” (Exhibit 1F).
. . .
The mental health treatment notes from
Naples
Psychiatric
show
the
claimant
received regular treatment from 2008-2011.
The claimant was diagnosed with bipolar
disorder.
In 2008, the claimant reported
“I’m
feeling
really
good,
exercising,
sleeping 6-7 hours which is good.” The most
recent treatment note, dated March 21, 2011,
shows the claimant stated his application
for SSDI was denied and he is worried about
his finances.
His mood was stable; he was
alert and oriented; he denied suicidal or
homicidal ideation or plan; however he
claimed he had some suicidal thoughts but he
would not act on the thoughts.
The
treatment notes consistently state that the
claimant drinks alcohol regularly.
It was
indicated that the claimant should be seen
again in 3 months.
There are no treatment
records that show the claimant was seen
after March 21, 2011 (Exhibits 7F and 13F).
The undersigned accepts the treatment notes
and finds that the
claimant has been
diagnosed with bipolar disorder; but there
is no evidence to substantiate a finding
that it has more than a minimal effect on
11

the claimant’s ability to perform basic work
activities.
The treatment notes from Neuropsychiatric
Associates of Southwest Florida, P. A. are
from 1998-1999.
The claimant stated he was
diagnosed with Bipolar Disorder at the age
of eighteen (Exhibit 16F).
The claimant
received counseling at Catholic Charities of
Collier County on and off beginning August
25, 2008.
He was diagnosed with bipolar
disorder I disorder, and anxiety disorder
NOS.
He missed appointments and has been
known to self-medicate with alcohol at
times. He was Baker Acted by the police in
April of 2009 (Exhibit 18F).
The most
recent treatment notes indicate he was last
seen on November 16, 2010. The claimant has
chosen to stop taking medication and seeing
his ARNP.
The treatment notes the claimant
has not been hospitalized and has better
control of his anger and his cutting
behavior (Exhibit 19F).
The medical records and reports from the
David Lawrence Center show the claimant has
recorded services from August 29, 2007August 9, 2012 (Exhibits 12F and 15F). The
treatment notes dated March 19, 2009 shows
the claimant was recommended for evaluation
by psychiatrist for a potential Baker Act
lift.
It was indicated that the claimant
was currently receiving services at Catholic
Charities. The claimant reported a total of
8 voluntary hospitalizations since he was
18 and previous Baker Act approximately 7-8
years prior.
The claimant admitted to
periods of time when he was not active with
services. The claimant stated that he drank
12 beers 3 days prior to the evaluation.
The claimant was ultimately discharged from
services and episode of care due to no
contact. . . .
Eshan
M.
Kibria,
D.O.
completed
a
consultative evaluation of the claimant on
12

January
19,
2011
(Exhibit
4F).
The
claimant’s
chief complaint was occasional
spasm low back not related to accident and
injury; bipolar diagnosed at age 18, ok with
medication; and anxiety.
The claimant
admitted he drinks approximately 6 alcoholic
beverages per week and smokes a pack of
cigarettes per day.
Upon examination, Dr.
Kibria
observed
the
claimant
appeared
comfortable sitting; and his personality was
pleasant and cooperative.
The claimant was
noted to be very pleasant.
Work related
mental activities, understanding, memory,
concentration,
social
interaction
and
adaptation were intact.
The claimant was
oriented to time, place and person. . . .
Cheryl
Kasprzak,
Psy.D.
completed
a
consultative evaluation of the claimant on
January 18, 2011 (Exhibit 3F). The claimant
reported that he is unable to work because
he has anxiety daily, has had panic attacks
since age 22, was diagnosed with bipolar at
age 18; and he experiences depression.
He
stated his duration of inability to work
began January 2010.
The claimant reported
that on a typical day he gets up between 9
AM and 1PM, goes to bed between 12 and 6AM
and has had this pattern his entire life.
He is able to shower, dress and shave daily
unassisted.
He drives a vehicle four times
weekly and last drove a vehicle to shoot
pool with friends.
He is able to cook for
and feed himself simple meals, cleans the
bathroom once weekly, and takes out the
trash. He is able to wash dishes by hand or
in the dishwasher and is able to sweep, mop
and vacuum floors, however does not do these
chores.
He watches 8 hours of television
daily, reads self-help books twice monthly,
makes five home-cooked meals weekly and
plays the guitar and shoots pool.
LaWanna
Harvey
a
state
agency
medical
consultant completed a Case Analysis on
February 4, 2011 (Exhibit 5F).
Theodore
13

Weber M.Div., Psy.D., completed a case
analysis on April 19, 2011 (Exhibit 8F).
Bettye
Stanley,
D.O.
completed
a
case
analysis on April 25, 2011 (Exhibit 9F).
Alicia
Maki,
Ph.D.,
a
state
agency
psychological
consultant,
completed
a
Psychiatric
Review
Technique
from
on
February 4, 2011 (Exhibit 6F).
All of the
state
agency
medical
and
psychological
consultants consistently found that the
claimant’s
back problems and mental health
impairments are nonsevere.
After considering the evidence of record,
the undersigned finds that the claimant’s
medically
determinable
impairments
could
reasonably
be
expected
to
produce
the
alleged symptoms; however, the claimant’s
statements
concerning
the
intensity,
persistence and limiting effects of these
symptoms are not entirely credible for the
reasons explained in this decision.
The
state
agency
medical
consultants
recognized that the claimant has medically
determinable impairments.
However, they
denied the claim because they found that the
claimant’s
bipolar disorder, anxiety, and
low
back
pain
were
nonsevere.
They
concluded that a review of the medical
evidence revealed no severe limitations
resulting from the claimant’s condition that
would limit his ability to work (Exhibits
3B, 4B, 7B, 5F, 6F, 8F, 9F).
State agency
medical
and
psychological
consultant’s
findings of fact must be treated as expert
opinion evidence at the administrative law
judge review level. SSR 96-6p, 61 Fed. Reg.
34467
(July
2,
1996).
The
state
consultant’s opinion is found persuasive.
The conclusion that the claimant does not
have a physical impairment or combination of
physical
impairments
that
significantly
limits his ability to perform basic work
activities is supported by the record as a
14

whole.
Because
the
claimant
has
medically
determinable
mental
impairments,
the
undersigned has considered the four broad
functional areas set out in the disability
regulations for evaluating mental disorders
and in section 12.00C of the
Listing of
Impairments (20 CFR, Part 404, Subpart P,
Appendix 1).
These four broad functional
areas are known as the
“paragraph B”
criteria.
For
the
reasons
stated
above,
the
undersigned finds that the medical evidence
of record supports a finding that the
claimant has no limitation in activities of
daily living; only mild limitation in social
functioning;
only
mild
limitation
in
concentration, persistence or pace; and the
claimant has experienced no episodes of
decompensation which have been of extended
duration.
Therefore, since the claimant’s
medically determinable mental impairments
cause no more than “mild” limitation in any
of the first three functional areas and “no”
episodes of decompensation which have been
of extended duration in the fourth area,
they are nonsevere (20 CFR 404.1520a(d)(1)).
In sum, the claimant’s
physical and mental
impairments,
considered
singly
and
in
combination, do not significantly limit the
claimant’s ability to perform basic work
activities.
Thus, the claimant does not
have a severe impairment or combination of
impairments.
(Id. at 22-26).
The

Court

now

considers

the

foregoing

record in this case and the issue on appeal.

15

in

light

of

the

Issue
Whether
the
ALJ
erred
in
finding
Plaintiff’s bipolar disorder non-severe
at step two of the sequential evaluation
process?
Plaintiff argues that the ALJ erred in finding that his
bipolar disorder is “non-severe.” (Doc. 12 at 2).

Specifically,

Plaintiff argues that the substantial record evidence shows that
his bipolar disorder is more than a “slight abnormality” and
that it has more than a “minimal” effect on his ability to do
basic work activities.

Thus, Plaintiff argues, under SSR 96-3p,

it is a “severe” impairment, and the ALJ erred in finding to the
contrary.
finding

(Id.).

that

The Commissioner counters that

Plaintiff’s

bipolar

disorder

is

the ALJ’s

non-severe

is

supported by the opinions of the State Agency reviewers and the
consultants in this case.

(Doc. 13 at 4-14).

Having reviewed

the record at length, the Court finds that the ALJ erred in
finding Plaintiff’s bipolar disorder non-severe.
In this case, the ALJ found at step two of the sequential
evaluation
determinable”

process

that

impairments

Plaintiff
of

bipolar,

had

the

anxiety,

and

“medically
low

back

pain, and determined that they were not “severe” impairments;
thus, he ended the inquiry.

(Tr. 22).

The Court notes at the

outset that “[s]tep two is a threshold inquiry”, and at this
stage, “only claims based on the most trivial impairments are
16

rejected”.
1986).

McDaniel v. Bowen, 800 F. 2d 1026, 1031 (llth Cir.

At

step

two,

the

ALJ

must

determine

whether

the

claimant’s impairments, alone or in combination, “significantly
limit” the claimant’s “physical or mental ability to do basic
work skills”.

Wind v. Barnhart, 133 Fed. Appx. 684, 690 (llth

Cir. 2005 (quoting Phillips v. Barnhart, 357 F. 3d 1232, 1237
(11th Cir. 2004)).

“An impairment is not severe only if the

abnormality is so slight and its effect so minimal that it would
clearly

not

be

ability

to

work,

experience.”

expected

to

interfere

irrespective

of

with

age,

McDaniel, 800 F.2d at 1031.

the

individual’s

education

or

work

However, a diagnosis

is insufficient; instead, the claimant has the burden of showing
the effect of the impairment on his ability to work.

Wind, 133

Fed. Appx. at 690; see also Marra v. Colvin, 2013 U.S. Dist.
LEXIS 105669, *13-14, 2013 WL 3901655, *5 (M.D. Fla. 2013) (“It
is [the] Plaintiff’s burden to prove the existence of a severe
impairment, and [he or] she must do that by showing an impact on
[his or] her ability to work.”).
If an ALJ erroneously finds an impairment to be non-severe
at step two of the sequential evaluation process, the error is
not

fatal

if

the

ALJ

finds

at

least

one

of

Plaintiff’s

impairments to be severe and continues through the sequential
evaluation process and considers the combined effect of all the
17

claimant’s impairments at the later steps.

See Ferguson v.

Astrue, 2012 U.S. Dist. LEXIS 139135, *25, 2012 WL 4738857, *9
(N.D.

Ala.

prevent

2012)(Because

non-severe

step

two

impairments

only

from

acts

as

disability

a

filter

to

consideration,

the ALJ’s failure to find an impairment severe at step two is
not reversible error where the ALJ finds at least one impairment
severe and at the later steps considers the combined effect of
all of the claimant’s impairments); Delia v. Commissioner of
Soc.

Sec.,

433

Fed.

Appx.

885

(llth

Cir.

2011)(Substantial

evidence did not support the ALJ’s finding, at step two, that
the

claimant’s

mental

impairments

were

not

severe;

however,

because the ALJ deemed several of the claimant’s other medical
impairments
sequential

to

be

inquiry

severe
through

and

therefore

steps

three,

continued
four,

on

and

in

the

five,

the

error at step two was harmless and was not cause for reversal).
As noted supra, in this case, the ALJ did not find that any of
Plaintiff’s impairments were severe; thus, he did not proceed
beyond step two of the evaluation process.

Because the ALJ’s

finding that Plaintiff’s bipolar disorder is non-severe is not
supported

by

substantial

evidence,

and

the

evaluation

was

concluded at step two, the decision must be reversed as the
error was not harmless.
In

this

case,

Plaintiff

produced
18

overwhelming

evidence

that established not only a diagnosis of bipolar disorder but
also a history of extensive treatment for significant symptoms
related to that disorder.

Indeed, the record evidence reflects

that as early as 1985, when Plaintiff was eighteen years old, he
was diagnosed with bipolar disorder after experiencing symptoms
of mental illness and attempting to commit suicide by slashing
his wrists.
required

11

(Tr. 307, 319, 339).

significant

involuntary

mental

psychiatric

health

To date, Plaintiff has
treatment,

hospitalizations,

including

eight

two

voluntary

psychiatric hospitalizations, and decades of ongoing out-patient
therapy and psychotropic medication treatment.

(Id. at 249).

For example, the record shows that in 1988, at the age of
twenty-two, Plaintiff began outpatient mental health treatment
at the David Lawrence Center for bipolar disorder.
310).

(Id. at

Also, in 1990, Plaintiff began treatment with Dr. Robert

Wald, M.D., for manic depressive illness and was treated with
Lithium

Carbonate

Plaintiff’s

and

condition

Imipramine.
deteriorated,

(Id.

at

298).

and

he

was

In

1991,

hospitalized

twice in the psychiatric unit of Charter Glades Hospital.

(Id.

at 298, 310).
11

Plaintiff’s family history includes a father, grandfather,
aunt, and two cousins with manic depressive illness/bipolar
disorder and histories of suicide attempts.
(Tr. 285, 307,
320).
19

In

1992,

Plaintiff

continued

outpatient

treatment

for

bipolar disorder and alcohol abuse at the David Lawrence Center
where

he

reported

suicidal

feelings,

sporatic

mood

depression, mind racing, anxiety, and confusion.
313-12).

shifts,

(Id. at 310,

In December 1993, Plaintiff was hospitalized in the

psychiatric

unit

of

Naples

Community

Hospital

for

bipolar

illness after being unable to go to work or get out of bed for
weeks. 12

(Id. at 282-83, 285).

Plaintiff reported erratic moods

and feeling angry and self-destructive.
treated

with

Lithium

Carbonate,

(Id. at 287).

Clonopin,

and

He was

Restoril

and

discharged after approximately two weeks with instructions to
continue his outpatient therapy.
In

January

1994,

results

(Id. at 285, 287).
of

MMPI

testing

revealed

that

Plaintiff was “quite disturbed,” “confused and disorganized,”
“experiencing intense anxiety,” and unable to make even routine
decisions.

(Id. at 288).

In March 1994, Plaintiff was again

admitted to the psychiatric unit of Naples Community Hospital,
where he was treated for bipolar disorder and alcoholism.
at 292, 299).

Plaintiff’s records reflect that, at that time,

he had been hospitalized four times for psychiatric care.
at
12

293).

(Id.

Plaintiff’s

wife

At that time, Plaintiff
technician. (Tr. 283).

reported

had
20

been

that

his

working

condition

as

a

(Id.
was

chemical

deteriorating, that he was unable to get out of bed, that he was
experiencing increased sleeping, anger, suicidal ideation, and a
return to drug and alcohol use, that he was confused, that he
was

finding

it

increasingly

difficult

to

do

things

without

someone helping him, that he was pacing and walking in circles,
and

that

he

activities
Collins,

was

of

daily

M.D.,

unable

to

make

decisions

(Id.

at

living.

noted

that

Plaintiff

regarding

292-93).

was

Dr.

“socially

his
James

withdrawn,

irritable, generally dysphoric and nonfunctional as regards work
and his relationships with others.”

(Id. at 290).

In September 1997, at the age of thirty-one, Plaintiff was
again

admitted

Hospital

where

to
he

the
was

psychiatric
treated

unit

for

at

manic

Naples

Community

symptoms.

Upon

discharge, he was placed on Depakote and continued outpatient
treatment

at

the

David

Lawrence

Center.

(Id.

at

313-15).

Plaintiff’s treatment notes in December 1997 reflect that he was
receiving disability benefits at that time.
In

1998,

at

the

age

of

(Id. at 315).

thirty-one,

Plaintiff

treatment with Dr. Frederick Schaerf, M.D., Ph.D.

13

13

began

(Id. at

Dr. Schaerf noted that Plaintiff had recently been evaluated
at the National Institute of Mental Health, where he had
remained for six weeks.
(Tr. 319).
According to Dr. Schaerf,
he was being evaluated for “transcranial magnetic stimulation
and/or psychiatric medications in conjunction with investigative
drug trials,” but Plaintiff became hypomanic and left. (Id.).
21

319).

Plaintiff’s wife reported that during the winter months,

Plaintiff became “semi-catatonic, where she [was] unable to get
him out of bed, and he remain[ed] in bed actually not even
performing basic elimination in the bathroom during these severe
depressive times.”

(Id.).

These episodes

were followed by

periods of racing nocturnal thoughts, nightmares, sleeplessness,
and suicidal fantasies.

(Id. at 319-20).

A therapist working

with Dr. Schaerf observed that Plaintiff had a strong sense of
hopelessness.

(Id. at 323).

Dr. Schaerf’s records document

that, at that time, Plaintiff had approximately six inpatient
hospitalizations, two inpatient drug rehab treatments, and two
suicide attempts.

(Id. at 320).

Dr. Schaerf likewise noted

that Plaintiff was on psychiatric disability.

(Id. at 321).

In 1999, at the age of thirty-three, Plaintiff continued to
receive
with

weekly

Dr.

outpatient

Schaerf

remission.

for

treatment

bipolar

Plaintiff

and

disorder

experienced

medication
and

some

treatment

alcoholism
improvement

in
on

medications and was “getting back to doing some productive work”
but then reported problems with sleeplessness, mind racing, fear
of people, and fear of leaving the house.

(Id. at 324-29, 332).

By March 1999, Plaintiff was again experiencing problems with
hyperactivity,

depression,

anger,

335-36).
22

and

hopelessness.

(Id.

at

On June 7, 2001, at age thirty-four, Plaintiff was examined
at the request of the Agency by a consultative psychologist, Dr.
Russell Masterson, Ph.D.

(Id. at 338).

Dr. Masterson noted

that Plaintiff had a DUI in the previous year and a half but had
gotten his driving privileges restored.
also

noted

that

compulsively
session.

for

Plaintiff
fifteen

(Id.).

to

worked
twenty

(Id.).

out,

Dr. Masterson

sometimes

miles

in

one

running
exercise

Plaintiff reported that he was sleep deprived

and frequently manic and then depressed.

(Id.).

Plaintiff

reported that his last job was in 2000 when he worked at a
church as a janitor, and before that he worked for brief periods
of time surveying and landscaping.

(Id. at 339-40).

Plaintiff

reported that in the preceding eight months, he had experienced
periods

of

manic

depressive

symptoms,

catatonic and unable to leave the house.

confusion,

and

being

(Id. at 340).

Dr.

Masterson diagnosed “rule out/rule in bipolar disorder without
ongoing

psychosis

illness

with

alcohol/drugs.”

versus

anger

possible

management

(Id.).

schizoaffective
personality

type

problems

of
and

Dr. Masterson assigned a GAF score of

50 to 55, noting “moderate to serious symptoms that seem to
impair

his

relationships

and

his

difficulties

in

controlling

anger and at times his alcohol and substance abuse.” 14
14

(Id. at

GAF (Global Assessment of Functioning) is a numeric scale (0
23

341).

Dr.

Masterson

opined

that

Plaintiff’s

prognosis

was

“poor” because he has “built defenses against medications and he
does

not

follow

through

on

psychiatric treatment plans.”
From

2000

to

rehabilitation

programs

or

(Id.).

2007,

Plaintiff

continued

to

receive

outpatient treatment for bipolar disorder at the David Lawrence
Center.

15

(Id.

at

194,

258-59).

In

2003,

Plaintiff

was

involuntarily hospitalized under the “Baker Act” for two weeks
for

cutting.

discharged

from

(Id.

at

194,

outpatient

Center due to “no contact.”

249).

In

2007,

treatment

at

the

Plaintiff
David

was

Lawrence

(Id. at 258-59).

From 2008 to 2012, Plaintiff received outpatient treatment
through 100) used by mental health clinicians that measures a
patient’s
overall
level
of
psychological,
social,
and
occupational functioning on a hypothetical continuum.
A GAF
score of 41-50 indicates serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or
serious social dysfunction (e.g., no friends, unable to keep a
job).
A GAF score of 51-60 suggests moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks)
or moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or coworkers). A GAF score of 61-70 is indicative of mild symptoms
(e.g., depressed mood and mild insomnia) or some difficulty in
social, occupational, or school functioning (e.g., occasional
truancy,
or
theft
within
the
household),
but
generally
functioning pretty well, has some meaningful interpersonal
relationships. See http://www.gafscore.com.
15

From 2002 through January 2010, Plaintiff worked part time at
a mental health support center, the Sarah Ann Drop In Center, as
a finance manager and supervisor of three other employees. (Tr.
193).
24

from Pamela Collett, ARNP, BC, at Healthy Minds.
346).

(Id. at 227,

When Plaintiff began treatment with Ms. Collett on April

2, 2008, he was forty-one years of age and reported that he was
having

trouble

confusion,
Plaintiff

and

with

sleeplessness,

feelings

stated

that

of

he

suicide.

had

lost

anxiety,

depression,

(Id.

227,

his

at

disability

229).

benefits

because he “made too much money” at his part-time job at the
Sarah Ann Drop In Center.

(Id. at 227).

Ms. Collett diagnosed

Plaintiff with “Bipolar II” and assigned a GAF score of 65,
indicating only mild symptoms at that time.

She

prescribed

medications and instructed Plaintiff to return in three weeks.
(Id. at 229-30).
In

March

2009,

at

the

age

of

forty-two,

Plaintiff

was

involuntarily hospitalized at Naples Community Hospital again
under the “Baker Act” for suicidal ideation and for “actively
cutting himself.” 16

(Id. at 249).

The record shows that police

officers tazed Plaintiff because he had a knife to his stomach
and then transported him to the hospital for treatment of his
wounds.

(Id.).

overwhelmed.

(Id.).

Plaintiff

reported

that

he

was

feeling

His records document that, at that time,

16

Plaintiff’s records show this was the second time he had been
involuntarily hospitalized under the Baker Act.
(Tr. 249).
Plaintiff stated that he cut himself to “let pain and pressure
out.” (Id. at 256).
25

he had at least eight previous hospitalizations for psychiatric
care.

(Id.).

It was also noted that Plaintiff was receiving

out-patient psychiatric care at Catholic Charities and working
part time at the Sarah Ann Drop in Center as a “co-manager,”
where he had worked for the previous seven years. 17
252).

Plaintiff

immensely

and

reported

was

looking

getting back to work.
Plaintiff

and

symptoms.

at

he

forward

(Id.).

assigned

(Id.

that

him

enjoyed
to

being

(Id. at 250,

helping

others

discharged

and

Dr. Daniel Deutschman examined

a

257).

GAF
Upon

of

45,

indicating

discharge,

Dr.

serious

Deutschman

instructed Plaintiff to follow up with outpatient treatment at
Healthy Minds with Pam Collett, ARNP, and at Catholic Charities,
with Debra Hoefling, L.C.S.W.

(Id. at 260, 344).

On October 12, 2009, Plaintiff’s treatment records from Pam
Collett, ARNP, reflect that Plaintiff was “coming out of a bad
depression,”
drinking.
better

and

accompanied

(Id. at 226).
reported

by

suicidal

feelings

and

“alot”

of

In November 2009, Plaintiff was doing

that

“work

[was]

good.”

(Id.

at

225).

However, on December 22, 2009, Plaintiff reported that he was
“up and down” and “cycling.”
Sometime

between

(Id. at 224).

January

and

17

March

2010,

Plaintiff

was

Plaintiff reported that he took a break one time to procure a
full time job, but it did not work out, and he returned to his
part-time job at the Sara Ann Drop In Center. (Tr. 252).
26

terminated from his part-time position at the Sarah Ann Drop In
Center for “missing a significant amount of time at work.”
(Id. at 193, 343).

18

Following his termination of employment,

Plaintiff continued out-patient treatment with Pamela Collett,
ARNP.

Plaintiff’s treatment records from March 3, 2010, reflect

that Plaintiff had stopped going to work in mid-January, that
the cops had been sent to his house to check on him, and that he
had been fired.

(Id. at 222-23).

Plaintiff reported worsening

symptoms, feeling confused, depressed, and as if his life was in
chaos.

(Id. at 223).

He admitted to substance abuse and non-

compliance with his medication.
Hoefling,

L.C.S.W.,

documents

(Id.).

that,

in

A report from Debra
March

2010,

Plaintiff

“was struggling with depression and anxiety – was withdrawn and
not coping well with daily activities.”

(Id. at 343).

“He also

cycled into an accelerated activity level, avoided contacting
his boss and became distracted in other directions.” 19

18

This event coincides with
January 15, 2010. (Tr. 107).

19

Plaintiff’s

alleged

onset

(Id.).

date,

The report states that “[Plaintiff] has made attempts at
increasing exercise, eating well, and trying to stay positive to
improve his mental health. However, he continues to lapse into
mood swings, medication non-compliance, resulting in withdrawal
from friends and family and/or an increase in interpersonal
conflicts, and disruption of his sleep. . . . Besides his
struggle to maintain employment [Plaintiff] also struggles to
function well in relationships[.] [This] adds to his emotional
distress. . . .
Since [Plaintiff] has been out of work and
volunteering a small amount each week, he has not reported
27

On March 24, 2010, Plaintiff reported black out periods, not
sleeping, and not going out of the house for the previous week.
(Id.

at

221).

In

April

2010,

Plaintiff

reported

dissociative periods and improvement in his sleep.
220).

fewer

(Id. at

In June 2010, Plaintiff reported that he was sleeping

better but also having some periods of hypomania.

(Id. at 218).

In September 2010, Plaintiff reported that he was doing alright,
with some ups and downs.

He was volunteering at an equestrian

center for children but was experiencing a lot of anxiety and
sleeplessness.

(Id. at 216).

Plaintiff reported that two days

the previous week he could not get out of the house and that he
was forcing himself to get up and shower.

(Id.).

In December

2010, Plaintiff reported that he was not sleeping, that he was
having

mixed

states

of

up

and

down,

that

he

was

still

volunteering at the equestrian center, but his concentration was
poor, and he was experiencing distractibility and anger. (Id. at
217).
In

with

Debra

Hoefling, L.C.S.W, at Catholic Charities for depression.

(Id.

at

194).

2011,

He

Plaintiff

also

continued

continued

psychotherapy

outpatient

Collett, ARNP, at Healthy Minds.

therapy

(Id. at 231).

with

Pamela

Plaintiff’s

suicidal ideation, cut on himself, or been hospitalized. He was
last Baker Acted by the police in April 2009.”
(Tr. 343-44).
28

records reflect that he was not sleeping well, but his mood had
stabilized for the most part, and he was alert, oriented, clean,
and neat.

(Id.).

He reported some suicidal thoughts but stated

that he would not act on them.20

(Id.).

The record contains a report dated September 6, 2012, from
Ms.

Hoefling,

Charities,

in

L.C.S.W,
which

she

Plaintiff’s

therapist

states

she

that

had

at

Catholic

been

treating

Plaintiff since 2008 and that he “continues to struggle with
moods related to bipolar disorder and anxiety” and that “[l]ack
of motivation, depressive symptoms, and anxiety including social
withdrawal hinder his day to day functioning.”

(Id. at 346).

She continued, “[s]ome positive aspects since last report are
[Plaintiff] has not been hospitalized and has better control of
his anger . . . also his cutting behavior.

He attends therapy

sessions on and off and participates while here -– working on
problem-solving

and/or

dialectical

skills

and/or

cognitive

processing at each visit. . . . [Plaintiff] has not worked or
volunteered in the community and is reluctant to do either for
fear that episodes will prevent reliable follow through.”
at

346-47).

Ms.

Hoefling

concluded

her

report

with

(Id.
an

observation that the lengthy disability process had taken a toll
20

Plaintiff reported that he ceased treatment with Ms. Collett in
2012 because he could no longer afford it. (Tr. 346).
29

on

Plaintiff’s

mental

health

and

that

his

anxiety,

erratic

sleep, depressive symptoms, social withdrawal, and hopelessness
were increasing.

(Id. at 347).

This is the final treatment

note in the record.
Remarkably,
forth

above

despite

related

to

the

extensive

evidence

set

psychiatric

Plaintiff’s

medical

treatment

for

bipolar disorder, both before and after the alleged onset date
of January 15, 2010, the ALJ concluded that Plaintiff’s bipolar
disorder

was

non-severe,

that

is,

that

it

amounted

to

a

“trivial” impairment that had no more than a “slight” effect on
his ability to work.

The ALJ appears to have relied on the

opinions and findings of two State Agency reviewers, Dr. Alicia
Maki,

Ph.D.,

and

Dr.

Theodore

Weber,

Psy.D.,

and

two

consultative examiners, Dr. Cheryl J. Kasprzak, Psy.D., and Dr.
Eshan M. Kibria, M.S., M.B.A., D.O.

Having reviewed the medical

evidence in this case at length, the Court finds that the ALJ’s
reliance on the expert opinions and findings referenced in his
decision is misplaced.
Weighing the opinions and findings of treating, examining,
and

non-examining

physicians

is

disability determination process.

an

important

part

of

the

In reaching a decision, the

ALJ must specify the weight given to different medical opinions
and the reasons for doing so.

See Winschel v. Commissioner of
30

Soc. Sec., 631 F.3d 1176, 1179 (11th Cir. 2011).
do so is reversible error.

The failure to

See Williams v. Astrue, 2009 U.S.

Dist. LEXIS 12010, *4, 2009 WL 413541, *1 (M.D. Fla. 2009).
When weighing the opinions of a treating physician, the
ALJ

must give the opinions “substantial weight,” unless good

cause exists for not doing so.

Costigan v. Commissioner, Soc.

Sec. Admin., 2015 U.S. App. LEXIS 2827, *10, 2015 WL 795089, *4
(11th Cir. Feb. 26, 2015) (citing Crawford v. Commissioner of
Soc. Sec., 363 F.3d 1155, 1160 (11th Cir. 2004) and Broughton v.
Heckler, 776 F.2d 960, 962 (11th Cir. 1985)).

The opinion of “a

one-time examining physician — or psychologist,” on the other
hand,

is

not

entitled

to

the

same

deference

as

a

treating

physician, Petty v. Astrue, 2010 U.S. Dist. LEXIS 24516, *50,
2010 WL 989605, *14 (N.D. Fla. Feb. 18, 2010) (citing Crawford,
363 F.3d at 1160), and an ALJ must have good cause to credit an
examining consulting physician’s opinion over that of a treating
physician.

See Adamo v. Commissioner of Soc. Sec., 365 F. Appx.

209, 213 (11th Cir. 2010).
opinion

of

a

non-examining

Furthermore, absent good cause, the
physician

is

entitled

to

little

weight if it is contrary to either the treating or examining
physician’s findings.

See Lamb v. Bowen, 847 F.2d 698, 703

(11th Cir. 1988); Broughton v. Heckler, 776 F.2d at 962.
In addition, good cause exists to discredit the testimony
31

of any medical source when it is contrary to or unsupported by
the evidence of record.

Phillips v. Barnhart, 357 F.3d 1232,

1240 (11th Cir. 2004).

“Good cause may also exist where a

doctor’s opinions are merely conclusory, inconsistent with the
doctor’s medical records, or unsupported by objective medical
evidence.”

Hogan v. Astrue, 2012 U.S. Dist. LEXIS 108512, *8,

2012 WL 3155570, *3 (M.D. Ala. 2012).

The ALJ is “free to

reject the opinion of any physician [treating, examining, or
non-examining]

when

the

evidence

supports

a

contrary

conclusion.” Sryock v. Heckler, 764 F.2d 834, 835 (11th Cir.
1985) (per curiam) (citation omitted); Adamo, 365 Fed. Appx. at
212 (The ALJ may reject any medical opinion if the evidence
supports a contrary finding.).
The record shows that Plaintiff was examined on January 18,
2011, at the request of the Agency, by psychologist, Dr. Cheryl
J.

Kasprzak,

Psy.D.

(Id.

at

192).

Dr.

Kasprzak’s

records

indicate that Plaintiff drove himself to the appointment and
that he was well groomed, cooperative, and pleasant.

(Id.).

Plaintiff reported that he felt that he could not work because
of his anxiety and depression, which he rated as a seven or
eight on a ten-point scale, and because of panic attacks which
rendered him unable to leave the house on a weekly basis.
at 193-94).

(Id.

Dr. Kasprzak’s examination findings reflected that
32

Plaintiff’s attitude was cooperative, and his thought process,
attention, and concentration were normal.
dysphoric, and his affect was flat.
Kasprzak

diagnosed

Plaintiff

with

However, his mood was
(Id. at 194-95).

bipolar

disorder,

Dr.
panic

disorder with agoraphobia, and alcohol abuse and assigned him a
GAF score of 53, indicating “moderate” symptoms.

(Id. at 195).

Based on her examination on that date, Dr. Kasprzak opined that
Plaintiff’s prognosis was “fair for gainful employment.”

(Id.).

The following day, on January 19, 2011, at the request of
the Agency, Plaintiff was examined by a neurologist, Dr. Eshan
M. Kibria, M.S., M.B.A., D.O.
physical

findings,

Dr.

(Id. at 196).

Kibria

noted

that

In addition to his
Plaintiff’s

work

related mental activities, understanding, memory, concentration,
social interaction, and adaptation were “intact,” that he was
oriented to time, place, and person, that historical events were
related in a coherent manner, that he had a normal fund of
information, and that he had a normal speech pattern.
197).
to

(Id. at

Dr. Kibria rendered no other opinions or findings related

Plaintiff’s

mental

status

or

ability

to

work.

Having

reviewed the record at length, the Court finds that the opinions
and findings of Dr. Kasprzak and Dr. Kibria relied upon by the
ALJ are inconsistent with the treatment records and opinions of
Plaintiff’s treating physicians detailed above, and, thus, the
33

ALJ erred in relying on those opinions and findings.
Next, the record shows that in February and April 2011,
State Agency reviewers, Dr. Alicia Maki, Ph.D., and Dr. Theodore
Weber,

Psy.D.,

reviewed

a

portion

of

Plaintiff’s

medical

records 21 and concluded, based thereon, that Plaintiff’s bipolar
disorder was “non-severe.”
Agency

reviewers

limitation

in

opined

(Id. at 202, 214, 232).
that

activities

concentration,

and

of

persistence

decompensation,
maintaining

social

no

Plaintiff
daily

or

more

had

functioning.

no

at

difficulties
212,

of

maintaining
episodes

“mild”

(Id.

degree

living,

pace,

than

no

The State

232).

of
in
The

Government concedes that the reviewers’ opinions were rendered
“before all the medical evidence was received” but argues that
the

evidence

they

insignificant.

did

not

review

(Doc. 13 at 9-10).

is

either

duplicative

or

Yet, the Government concedes

that the reviewers did not have the benefit of the two reports
from

Debra

Hoefling,

L.C.S.W,

dated

November

16,

2010,

and

September 6, 2012, documenting Plaintiff’s multiple psychiatric
hospitalizations,

his

“struggle

to

maintain

employment,”

his

problems with “day to day functioning,” and his problems with
increasing

anxiety,

sleeplessness,

21

depression,

social

It appears that Exhibits 10F-19F were submitted after the
State Agency reviewers completed their review.
(Tr. 202, 232,
234-347).
34

withdrawal, and sense of hopelessness.
any

event,

regardless

of

which

(Id.; Tr. 343-47).

records

the

State

In

Agency

reviewers considered, their opinions are inconsistent with the
substantial medical evidence in this case, as detailed above.
Given the plethora of medical evidence in this case (all of
which the ALJ found credible) showing that Plaintiff received
decades

of

psychiatric

treatment

for

virtually

constant,

debilitating symptoms of bipolar disorder (including multiple
suicide

attempts,

knives,

severe

multiple

depression,

instances
and

of

cycles

cutting
of

mania

himself

with

followed

by

inability to wake and get out of bed), as well as evidence of a
long history of problems maintaining even part-time employment
and evidence that Plaintiff was previously awarded disability
benefits

for

bipolar

disorder,

the

ALJ’s

conclusion

that

Plaintiff’s bipolar disorder is “non-severe,” meaning that it is
a “trivial”, “slight abnormality” that has no significant effect
on his ability to do basic work activities, is not supported by
substantial evidence and must be reversed.
V.
For

Conclusion
the

reasons

set

forth

herein,

and

upon

careful

consideration of the administrative record and memoranda of the
parties,

it

is

hereby

ORDERED

that

the

decision

of

the

Commissioner of Social Security denying Plaintiff’s claim for a
35

period

of

disability

and

disability

insurance

benefits

be

REVERSED AND REMANDED due to the lack of substantial evidence to
support the ALJ’s finding that Plaintiff’s bipolar disorder is
non-severe.
DONE this 24th day of September, 2015.
/s/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE

36