         Case: 18-14562   Date Filed: 05/13/2020   Page: 1 of 11



                                                                   [PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 18-14562
                    ________________________

                D.C. Docket No. 0:17-cv-60910-KMM



MARCIA BONAVIA SAMUELS,


                                                         Plaintiff - Appellant,


                                versus


ACTING COMMISSIONER OF SOCIAL SECURITY,


                                                       Defendant - Appellee.

                    ________________________

             Appeal from the United States District Court
                 for the Southern District of Florida
                   ________________________

                           (May 13, 2020)
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Before MARTIN, GRANT, and LAGOA, Circuit Judges.

MARTIN, Circuit Judge:

      Marcia Bonavia Samuels appeals the District Court’s order affirming the

Commissioner of Social Security’s (the “Commissioner”) denial of her application

for disability insurance benefits. Ms. Samuels applied for disability benefits based

on her bipolar disorder. In this appeal, Ms. Samuels first claims the administrative

law judge (“ALJ”) erred at the fourth step of the disability analysis by failing to

give her treating physician’s opinion the proper weight and by discounting her own

testimony. She also argues the ALJ erred at the fifth step of the analysis by relying

on testimony from a vocational expert in response to a hypothetical question that

omitted her impairments.

      We vacate the judgment of the District Court and remand to the

Commissioner for further proceedings. The ALJ did not have the benefit of our

decision in Schink v. Comm’r of Soc. Sec., 935 F.3d 1245 (11th Cir. 2019) (per

curiam), which may alter the fourth step of the ALJ’s disability analysis.

Additionally, we agree with Ms. Samuels that the ALJ’s hypothetical to the

vocational expert did not sufficiently communicate her limitations from bipolar

disorder.




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                               I.     BACKGROUND

      Ms. Samuels began receiving treatment for bipolar disorder in 2004. Since

that time, she has been prescribed a variety of medications that have changed over

the course of her treatment. Her medication “works reasonably,” but she suffers

side effects and deals with the up-and-down nature of her bipolar disorder. These

cycles include a constant feeling of depression combined with manic episodes

characterized by symptoms of aggression, difficulty getting along with others, and

insomnia.

      Ms. Samuels has a bachelor’s degree in biology as well as a Juris Doctor

degree. She worked as an attorney until 2009, when she attempted suicide.

Although she worked on some legal cases after her suicide attempt, she couldn’t

concentrate and was not paid for her work as an attorney after that date. Ms.

Samuels also lost interest in her hobbies, including gardening and talking to

friends. She stayed in bed, communicated only with her mother and children, and

skipped showering; she had no appetite and lost weight; and had suicidal thoughts.

Indeed, to this day, and despite taking her medication, Ms. Samuels has daily

suicidal thoughts.

      Based on these symptoms from her bipolar disorder, Ms. Samuels applied

for disability insurance benefits on December 24, 2012, with an onset date of

January 1, 2008. The Social Security Administration (“SSA”) initially denied her


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application. On reconsideration, the SSA determined she was disabled beginning

May 27, 2012 but not earlier. Ms. Samuels then requested a hearing before an ALJ

regarding her disability between January 1, 2008 and May 26, 2012.

      Ms. Samuels and a vocational expert (“VE”) appeared and testified at the

hearing. Ms. Samuels testified about living with her bipolar disorder as described

above. The ALJ also posed a few hypothetical questions to the VE regarding Ms.

Samuels’s functions and limitations. The ALJ ultimately determined Ms. Samuels

was not disabled between January 1, 2008 and December 31, 2013, the date she

was last insured. Specifically, the ALJ concluded that Ms. Samuels had the

residual functional capacity (“RFC”) to perform “medium work” and that she

could understand, remember, and carry out short, simple work instructions and

occasionally interact with the public. Although the ALJ decided Ms. Samuels

could not return to her past professions as either an attorney or a researcher

because of bipolar disorder, the ALJ found she could engage in other types of

employment. As a result, Ms. Samuels was denied Social Security disability

benefits.

      The Appeals Council denied Ms. Samuels’s request for review. She filed a

complaint in the U.S. District Court for the Southern District of Florida, alleging

the Commissioner’s decision was not supported by substantial evidence and was

contrary to law. The Commissioner denied Ms. Samuels’s allegations and both


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parties filed for summary judgment. A magistrate judge recommended the District

Court deny Ms. Samuels’s motion and grant the Commissioner’s motion for

summary judgment. Over Ms. Samuels’s objections, the District Court adopted the

magistrate judge’s report and recommendation and granted the Commissioner’s

motion. This is Ms. Samuels’s timely appeal.

                          II.   STANDARD OF REVIEW
      When an ALJ denies benefits and the Appeals Council denies review, “we

review the ALJ’s decision as the Commissioner’s final decision.” Doughty v.

Apfel, 245 F.3d 1274, 1278 (11th Cir. 2001). “[W]e review de novo the legal

principles upon which the Commissioner’s decision is based.” Moore v. Barnhart,

405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam). But we review the

Commissioner’s decision “only to determine whether it is supported by substantial

evidence.” Id. “Substantial evidence is . . . such relevant evidence as a reasonable

person would accept as adequate to support a conclusion.” Id. Our limited review

does not allow us to “decid[e] the facts anew, mak[e] credibility determinations, or

re-weigh[] the evidence.” Id. We also review de novo the judgment of the District

Court. Ingram v. Comm’r of Soc. Sec. Admin., 496 F.3d 1253, 1260 (11th Cir.

2007).




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                                 III.   DISCUSSION

      In making disability determinations, the Commissioner engages in a five-

step process. See 20 C.F.R. § 404.1520(a)(4). A claimant applying for disability

insurance benefits bears the burden of proving that she is disabled. See Doughty,

245 F.3d at 1278. At the first two steps, which are not at issue here, the claimant

must show that she is not currently engaged in substantial gainful activity and that

she has a severe impairment. See § 404.1520(a)(4)(i)–(ii). Third, also not at issue

here, the claimant has the opportunity to show that the severity and duration of the

impairment meets or equals the criteria contained in the Listing of Impairments.

See id. § 404.1520(a)(4)(iii). If the claimant’s impairments do not meet or equal

those listed in the regulations, the Commissioner must determine her RFC before

proceeding to the fourth step. Id. § 404.1520(a)(4) & (e). A claimant’s RFC is “an

assessment, based upon all of the relevant evidence, of a claimant’s remaining

ability to do work despite [her] impairments.” Lewis v. Callahan, 125 F.3d 1436,

1440 (11th Cir. 1997); see also §§ 404.1520(e), 404.1545(a)(1) & (3)–(4).

      At the fourth step, the ALJ considers the claimant’s RFC and past relevant

work to determine if she has an impairment that prevents her from performing her

past relevant work. See id. § 404.1520(a)(4)(iv) & (e). As we said in Schink, the

ALJ must consider the episodic nature of bipolar disorder. See 935 F.3d at 1267.




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Evidence that the claimant “seemed to be doing better” during certain times does

not support a finding that her impairment is not severe. Id.

      Finally, if the claimant cannot perform her past work, the burden shifts to the

Commissioner to show that there are jobs that the claimant can perform. See Foote

v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (per curiam); see also §

404.1520(a)(4)(v). If the Commissioner can show there are other jobs the claimant

can perform, she is considered to be not disabled. See Winschel v. Comm’r of

Soc. Sec., 631 F.3d 1176, 1180 (11th Cir. 2011).

      Ms. Samuels challenges three of the determinations the ALJ made related to

the RFC findings. These determinations are associated with both steps four and

five of the disability analysis. In particular, Ms. Samuels claims the ALJ erred at

the fourth step by both failing to give her treating physicians’ opinions the proper

weight and by discounting her own testimony. Ms. Samuels says the ALJ erred at

the fifth step by relying on VE testimony in response to a hypothetical question

that omitted her impairments.

      Ms. Samuels’s step four arguments may have merit. But the Commissioner

should have a chance to weigh the evidence in light of our directive in Schink. See

935 F.3d at 1267–68. We therefore remand for further consideration without

expressing a view on the ultimate merits of Ms. Samuels’s contention that the ALJ




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should not have discounted her own opinion and those opinions of her treating

physicians.

       Ms. Samuels is clearly correct, though, that the hypothetical the ALJ posed

to the VE was improper because it did not “accurately describe[] all the mental

restrictions found for Ms. Samuels in the ALJ’s decision.” After finding that Ms.

Samuels was not disabled at step four of the disability inquiry, the ALJ proceeded

to step five. At that step, ALJs are required to “determine whether significant

numbers of jobs exist in the national economy that the claimant can perform.”

Winschel, 631 F.3d at 1180 (citing, inter alia, 20 C.F.R. § 404.1520(a)(4)(v)).

Where, as here, there are nonexertional limitations,1 the ALJ “must introduce

independent evidence, preferably through a vocational expert’s testimony,” of the

existence of such jobs. Wolfe, 86 F.3d at 1077–78. In order for the VE’s

testimony to constitute substantial evidence, “the ALJ must pose a hypothetical

question which comprises all of the claimant’s impairments.” Winschel, 631 F.3d

at 1180 (quotation marks omitted).

       Here, the ALJ introduced evidence that Ms. Samuels could perform other

jobs through VE testimony. The ALJ asked the VE to assume: (1) Ms. Samuels’s

education and work experience; (2) that she had certain physical limitations


       1
         Examples of nonexertional mental impairments include “difficulty maintaining attention
or concentration” and “difficulty understanding or remembering detailed instructions.” Wolfe v.
Chater, 86 F.3d 1072, 1078 (11th Cir. 1996) (quoting 20 C.F.R. § 404.1569a(c)(ii) & (iii)).

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including, among others, a maximum weight to lift or carry and maximum time

periods in which to sit and stand; (3) that she have “only occasional exposure” to

unprotected heights and dangerous equipment; (4) that she “would be able to

understand, remember and carry out short, simple work instruction”; and (5) that

she “had only occasional interaction with the public.” The VE stated that a

claimant with those hypothetical limitations could perform certain jobs, like a linen

room attendant or a dining room attendant. Based on this testimony, the ALJ

concluded that Ms. Samuels “was capable of making a successful adjustment to

other work that existed in significant numbers in the national economy.”

        While the ALJ need not list “every symptom of the claimant,” the

hypothetical must provide the VE with a complete picture of the claimant’s RFC.

See Ingram, 496 F.3d at 1270. That is to say the hypothetical must include the

claimant’s impairments or “otherwise implicitly account for these limitations.”

See Winschel, 631 F.3d at 1180–81. Here, it does not appear that the hypotheticals

accounted for the episodic nature of bipolar disorder. See Schink, 935 F.3d at

1268.

        At step two, the ALJ specifically found that Ms. Samuels’s bipolar disorder

was a “severe impairment[]” that “caused significant limitation in the claimant’s

ability to perform basic work activities.” But in posing the hypothetical, the ALJ

nowhere indicated that medical evidence suggested Ms. Samuels’s ability to work


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was affected by that impairment. Nor did any of the hypothetical restrictions

implicitly account for Ms. Samuels’s mental limitations as reflected in the record.

      In particular, the ALJ did not account for unexcused absences or time spent

off-task, which were limitations caused by Ms. Samuels’s bipolar disorder that

were reflected in the record. Dr. Flemenbaum opined that Ms. Samuels was

“moderately limited” in her ability to complete a normal workweek. The

Commissioner’s own expert found that Ms. Samuels’s ability to perform activities

within a schedule, maintain regular attendance, and be punctual within customary

tolerances was “markedly limited.” Asking the VE to assume that Ms. Samuels

could carry out “simple work instruction” and had only “occasional interaction”

with the public is not sufficient to communicate Samuels’s limitations from her

bipolar disorder. Cf. Winschel, 631 F.3d at 1181 (reversing the denial of disability

benefits because, at step two, ALJ determined impairments limited claimant “in

maintaining concentration, persistence, and pace” but wholly failed to include such

limitations in hypothetical).

      Because the ALJ asked the VE a hypothetical question “that failed to include

or otherwise implicitly account for” Ms. Samuels’s impairments, the VE’s

testimony “is not ‘substantial evidence’ and cannot support the ALJ’s conclusion”

that Samuels “could perform significant numbers of jobs in the national economy.”




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See Winschel, 631 F.3d at 1181. The Commissioner must address and resolve this

issue on remand.

                               IV.   CONCLUSION

      Based on this record, and in accordance with our precedent, we VACATE

the judgment of the District Court and REMAND to the Commissioner for further

proceedings consistent with this opinion. In particular, the Commissioner must

account for the episodic nature of Ms. Samuels’s bipolar disorder in determining

her RFC and whether there are jobs in the national economy that Samuels can

perform.




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