Cromer v. SSA

Filing 21

MEMORANDUM OPINION & ORDER, Motions terminated: Pla's motion for S/J #10 is GRANTED, in part, and that the Acting Commissioners motion for S/J #13 is DENIED. IT FURTHER ORDERED that this action be reversed and remanded to the Acting Commissioner for further consideration of Pla's ability to perform substantial gainful activity on a sustained basis. Signed by Judge Joseph M. Hood on 07/24/2017.(LC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
TERESA ELAINE CROMER,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,1

Civil Case No.
16-cv-374-JMH

MEMORANDUM OPINION & ORDER

Defendant.
***

This matter is before the Court upon cross motions for
summary judgment [DEs 10 and 13]. The plaintiff has also filed a
reply memorandum. For the reasons stated below, this action will
be remanded to the Acting Commissioner for further consideration
of Plaintiff’s ability to perform substantial gainful activity
on a sustained basis.
The Court’s review of the Acting Commissioner’s decision
concerning
inquiry

disability

into

whether

upon
or

reconsideration
not

the

is

findings

limited
of

the

to

an

Acting

Commissioner are supported by substantial evidence, and whether
the

correct

legal

standards

were

applied.

See

42

U.S.C.

§

405(g); Richardson v. Perales, 402 U.S. 389, 390, 401 (1971).
Moreover,
1

this

Court’s

review

is

limited

“to

the

particular

The caption of this matter is amended to reflect that Nancy A. Berryhill
became the Acting Commissioner of Social Security on January 23, 2017,
replacing Carolyn W. Colvin in that role.

points that [the claimant] appears to raise in [his] brief on
appeal.” Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 491 (6th
Cir. 2006).
Plaintiff

filed

an

application

for

disability

insurance

benefits (DIB) in August 2013, alleging that she became disabled
in

January

2012,

impairments,

due

to

a

particularly

Administrative

Record

variety

of

bipolar

(Tr.)

physical

disorder

170-82,

and

mental

(Transcript

221).

After

of

early

administrative denials (Tr. 77-105, 107-10, 112-18) and a de
novo hearing (Tr. 27-72), an ALJ denied her claim in July 2015
(Tr. 9-26). The agency’s Appeals Council subsequently declined
Plaintiff’s
decision

request

the

final

for

review

agency

(Tr.

decision

1-6),
for

making

purposes

the

of

ALJ’s

judicial

review (Tr. 1-6), making the ALJ’s decision the final agency
decision

for

purposes

of

404.981, 422.210(a) (2016).
Plaintiff
decision
reasons.

should

argues
be

judicial

review.

See

20

C.F.R.

§

This appeal followed.

that

reversed

the
(or

Acting
at

Commissioner’s

least

remanded)

final

for

two

First, she asserts the ALJ erroneously assigned “no

weight” to the medical opinions of the treating physician, Dr.
Stephen Lamb, a psychiatrist who had treated the plaintiff for
14 years, in violation of the treating physician rule.

This

case is on all fours with Gayheart v. Commissioner, 710 F.3d 365
(6th Cir. 2013), the leading Sixth Circuit case on how an ALJ
2

must weigh medical opinions and on the treating physician rule.
Second, she contends the ALJ refused to take testimony from the
plaintiff’s attending psychiatrist, Dr. Lamb, who attended the
hearing and wanted to testify, when it was clear that Dr. Lamb’s
testimony would have been helpful to the ALJ’s understanding of
the plaintiff’s medical condition.
Court

finds

it

necessary

to

Given these two issues, the

focus

on

Plaintiff’s

mental

impairments.
Plaintiff was 48 years old on her alleged onset date (Tr.
176).

She

has

a

high

school

education

(Tr.

222),

and

past

relevant work as a material handler/team member at an auto plant
(Tr. 68-69, 223).
Plaintiff had a long history of mental health treatment
with Stephen Lamb, M.D. (Tr. 575-76, 485-517, 539-52). In late
2012, Plaintiff started having violent thoughts about a coworker
(Tr. 63, 64, 345), and in January 2013, Plaintiff told Dr. Lamb
that she was very upset and agitated and unable to cope with
work.

She

wanted

to

go

on

disability

(Tr.

512).

Plaintiff

subsequently received short-term and long-term disability from
her job (Tr. 67, 345).
Dr. Lamb’s subsequent treatment notes reflected Plaintiff’s
symptoms waxed and waned over time (Tr. 495-511), particularly
around the time period after her best friend died in a car
accident (Tr. 502-03), but she remained active. For instance,
3

she continued regularly attending her sobriety group meetings
(Tr. 267, 500, 503, 504, 505, 508); gave rides to friends (Tr.
53, 543); volunteered (Tr. 546); went outside (Tr. 235, 248,
543, 546); and spent time with children (Tr. 497, 500, 501).
Plaintiff

also

regularly

attended

counseling

sessions

with

social worker, Deborah Spicer (Tr. 306-43, 460-84).
Both Dr. Lamb and Ms. Spicer provided letters and completed
forms

regarding

Plaintiff’s

limitations.

In

July

2013,

Ms.

Spicer completed forms stating that Plaintiff could not do her
job on the assembly line at the Toyota plant (Tr. 319). In
August 2014, Dr. Lamb completed a form in which he opined that
Plaintiff was moderately limited in remembering instructions and
work-like

procedures;

instructions;
extended

handling

maintaining

periods;

out

very

attention

and

sustaining

an

ordinary

short

and

simple

concentration
routine;

for

working

in

coordination with others; making simple work-related decisions;
interacting

with

the

general

public

and

getting

along

with

coworkers and peers; maintaining socially appropriate behavior;
remaining aware of normal hazards; and set realistic goals. Dr.
Lamb stated Plaintiff was markedly limited in handling detailed
instructions, completing a normal workday and workweek, handling
supervision, and responding appropriately to changes in the work
setting (Tr. 492-94). Dr. Lamb also opined that Plaintiff had no
restrictions

of

activities

of
4

daily

living;

moderate

difficulties

in

maintaining

social

functioning;

moderate

deficiencies in concentration, persistence, and pace; and four
or more episodes of decompensation, each of extended duration
(Tr. 489).
That same month, Ms. Spicer completed the same form also
assessing

multiple

marked

and

moderate

limitations

in

Plaintiff’s mental functioning (Tr. 457-59). She also wrote a
letter stating Plaintiff was compliant with treatment, but had a
significant

struggle

to

achieve

and

maintain

a

consistent

euthymic mood. She stated that although Plaintiff had improved,
her

symptoms

continued

and

interpersonal relationships.

affected

the

quality

of

her

Ms. Spicer stated that Plaintiff’s

ability to cope with work was significantly compromised and she
would

likely

have

significant

difficulties.

She

recommended

“continued disability” (Tr. 456).
In a letter dated October 8, 2014, Dr. Lamb discussed how
Plaintiff’s symptoms wax and wane (Tr. 486).

He stated that

Plaintiff’s course seemed to be one of brief improvements on
medicine followed by a marked worsening, which had prevented her
from doing any meaningful work (Tr. 487).
Dr.

Lamb

completed

another

form

in

The following month,

which

he

opined

that

Plaintiff had poor or no ability to relate to co-workers, deal
with the public and work stresses, interact with supervisors,
maintain

attention

and

concentration,
5

and

demonstrate

reliability.

He estimated that Plaintiff would miss four or

more days of work every month (Tr. 519).

In December 2014, Ms.

Spicer completed the same form opining Plaintiff had poor or no
ability in these same areas as well as in the area of using
judgment (Tr. 520).
Dr. Lamb authored another letter on June 22, 2015, in which
he stated that he had been treating Plaintiff for depression,
anxiety, and bipolar disorder since 2001, and during that time,
he had tried many different medications with varying degrees of
success (Tr. 575).

He noted that Plaintiff’s emotional problems

worsened in late 2012, and he took her off work in early 2013,
as she was potentially a danger to herself and others and not
able to perform her job (Tr. 575-76).
Plaintiff

meets

Listing

12.04

as

her

Dr. Lamb opined that
symptoms

caused

marked

difficulties in maintaining concentration, persistence or pace
and repeated episodes of decompensation, along with a residual
disease process that resulted in such marginal adjustment that
even a minimal increase in mental demands would cause her to
decompensate (Tr. 575).

Dr. Lamb noted that he had suggested

Plaintiff check herself into a psychiatric hospital in February
2015, because of the severity of her condition at that time.

He

concluded that Plaintiff had been unable to perform her job
since January 2013 (Tr. 576).

6

Plaintiff
examination

also

in

underwent

December

a

2013,

consultative

with

Edd

psychological

Easton-Hogg,

Psy.D.

Plaintiff said she had been receiving mental health treatment
for many years, for depression, anxiety, stress, and paranoia.
She stated she had a history of substance abuse and attended a
religious based recovery program (Tr. 345).
she was able to manage bills and shop.
church,

and

the

computer

and

said

Plaintiff reported

She enjoyed television,

that

she

had

appropriate

social contact on a routine basis. On examination, Plaintiff was
well groomed, cooperative, and fully oriented and had normal
posture and gait.
had

average

She could spell the word “world” backward and

ability

to

repeat

digits

forward

and

backward.

Plaintiff was able to compute basic math calculations and she
had normal attention to task and concentration with no memory
deficits.

Plaintiff had normal eye contact, responsive facial

expressions, appropriate affect, a neutral mood, normal speech,
and

logically

organized

Plaintiff

had

average

abstract

thoughts

Dr.

thoughts.

intelligence
Easton-Hogg

Dr.
and

Easton-Hogg
found

estimated

she

estimated

had

intact

Plaintiff

had

average intelligence and found she had intact abstract thought
processes,

good

decision-making

judgment,
skills.

adequate

insight,

Plaintiff’s

coping

and

abilities

normal and she displayed no skill deficits (Tr. 346).

7

appropriate
were

Dr. Easton-Hogg assessed bipolar II disorder and substance
abuse in remission with a GAF score of 60.

He opined that

Plaintiff’s ability to handle instructions and sustain attention
and concentration toward the performance of simple repetitive
tasks, and respond appropriately to supervisors and coworkers
appeared slightly affected.
participate

in

basic

He thought Plaintiff’s ability to

repetitive

work

duties

was

moderately

affected (Tr. 347).
During

the

administrative

proceedings,

state

agency

psychologist Jane Brake, Ph.D., reviewed Plaintiff’s record and
opined Plaintiff had mild restriction of activities of daily
living

and

maintaining

social

functioning

and

moderate

difficulties in maintaining concentration, persistence, and pace
(Tr. 84).
and

She went on to assess Plaintiff’s mental functioning

opined

simple

that

she

familiar

learning

some

understand,

instructions

periods;

requiring

could

and

concentrate

independent

and

recall

procedures
persist

judgment

at

and

and

carry

out

requiring

brief

familiar

tasks

involving

minimal

variations in two hour segments; relate adequately to others;
and adapt to situational conditions and changes with reasonable
support and structure (Tr. 87).
state

agency

understand,

psychologist
and

carry

John Thibodeau, Ph.D., another

opined

out

Plaintiff

simple

could

instructions;

remember,
maintain

attendance, be punctual, and sustain ordinary routines; work in
8

coordination with others, interact with the general public, get
along with coworkers, and handle supervision; make simple work
related decisions; and be aware of normal hazards (Tr. 103).
After

carefully

considering

the

entire

record,

the

ALJ

concluded that Plaintiff’s impairments, though limiting, would
not prevent her from performing work at all exertional levels
within the following parameters:








can remember locations and work-like procedures,
remember and understand very short and simple
instructions,
maintain
attendance,
perform
activities within a schedule, and be punctual
within customary tolerances
can
sustain
an
ordinary
routine
without
supervision,
work
in
coordination
with
or
proximity to others without being distracted by
them, make simple work-related decisions, ask
simple questions and request assistance, and
interact appropriately with the general public;
can accept instructions and respond appropriately
to criticism from supervisors, get along with
coworkers or peers without distracting them or
exhibiting behavioral extremes, and be socially
appropriate and adhere to basic standards of
neatness and cleanliness;
can
be
aware
of
normal
hazards
and
take
appropriate precautions, travel in unfamiliar
places or use public transportation; and set
realistic goals or make plans independently of
others (Tr. 18). Based on the vocational expert’s
testimony, the ALJ concluded that Plaintiff could
perform not only her past work as a team member,
but also jobs existing in the national economy in
significant numbers, including order picker and
machine feeder

(Tr. 20-21). Thus, he found Plaintiff not disabled (Tr. 21).
This case is on all fours with Gayheart v. Commissioner,
710 F.3d 365 (6th Cir. 2013).

The Acting Commissioner did not
9

address

whether,

as

in

Gayheart,

there

is

any

substantial

evidence in the record that Plaintiff could perform ordinary
activities on a sustained basis, which is how the functional
limitations of mental impairments are assessed. See 20 C.F.R. §
404.1520a(c)(2); 20 C.F.R. Part 404, Subpart P, Appendix 1, at
12.00 (“Social functioning refers to your capacity to interact
independently, appropriately, effectively, and on a sustained
basis with other individuals.”).
Gayheart involved a mentally ill patient whose long-term
treating

psychiatrist

generalized

anxiety

found

him

disorder

to

and

have

bipolar

depression,

disorder,

with

“poor

concentration” and “poor abilities to handle simple and routine
tasks in a work setting, to interact socially, and to adapt to
change.” Id., at 369. Here, Dr. Lamb, who has seen Plaintiff
about 10 times per year since 2001, as well as consulted with
her via telephone, explained that the “diagnoses have continued
to be anxiety, depression and bipolar [disorder].” (Tr. 575).
Dr. Lamb has also noted Plaintiff’s poor ability to concentrate,
relate to co-workers, deal with work stresses and demonstrate
reliability. (Tr. 519 and 575-76).
In both this and the Gayheart case, the ALJ gave little or
no weight to the opinion of the treating physician and instead
relied on non-treating sources.

For example, ALJ Kayser gave

“no weight” to Dr. Lamb’s opinion. (Tr. 19).
10

In Gayheart, it

was noted that the ALJ had given “little weight” to the treating
physician.
Gayheart expounded on the “treating physician rule,” and
held that the rule applies unless the ALJ gives “good reasons”
for why the treating physician’s “opinions fail to meet either
prong of [the] test” set forth at 20 C.F.R. § 404.1527(c)(2).
710

F.3d

reasons”
objective

at
why

376.
the

findings

“inconsistent

with

In

other

opinions
and
the

a

words,
are

good

other

the

not
reason

ALJ

must

give

well-supported
why

substantial

the

“good

by

any

opinions

are

evidence”

in

the

record. Id.
ALJ Kayser’s analysis did not meet this standard. He simply
said that he:
As for the opinion evidence, the [ALJ]
gives no weight to Dr. Lamb’s evaluation
because his opinion is contradicted by his
own treatment notes. . . . The [ALJ]
reasonably concludes an individual with poor
or no useful ability to function in multiple
areas as asserted by these providers should
be sent to a mental inpatient facility as
they would be a danger to themselves and to
others.2

2

The ALJ, of course, is clearly not qualified to opine about who “should be
sent to a mental inpatient facility.” The comment is out of bounds as there
is certainly a middle ground between a person who does not need to be
institutionalized, and one who is unable to work because of mental illness.
Plaintiff is in that middle ground, in the estimate of the professionals who
have long treated her.

11

(Tr. 19).
Lamb’s

The ALJ’s opinion, then, hinges on the content of Dr.

“treatment

notes,”

and

specifically

whether

they

contradict his opinion of Plaintiff’s limitations.
The ALJ in his opinion summarized those “treatment notes,”
and apparently believed that they show sufficiently extensive
activity by Plaintiff so as to vitiate Dr. Lamb’s opinions about
his patient’s functional ability. (Tr. 16).
above

leads

to

the

conclusion

that

the

ALJ

The evidence set
“cherry

picked”

isolated pieces of these treatment records, while ignoring any
reference in them—even records of the same date as the cherrypicked

pieces—to

reach

his

conclusion

continued mental health problems.

concerning

Plaintiff’s

This type of analysis was

found to be faulty in Gayheart as the record does not show that
Plaintiff is capable of doing the activities the ALJ found she
was capable of doing on a sustained basis. 710 F.3d at 377.
Accordingly,
summary

judgment

IT

IS

[DE

10]

ORDERED
is

that

GRANTED,

Plaintiff’s
in

part,

motion

and

that

for
the

Acting Commissioner’s motion for summary judgment is DENIED.
IT

FURTHER

ORDERED

that

this

action

be

reversed

and

remanded to the Acting Commissioner for further consideration of
Plaintiff’s ability to perform substantial gainful activity on a
sustained basis.
This the 24th day of July, 2017.

12

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