Cromer v. SSA
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,
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
Civil Case No.
MEMORANDUM OPINION & ORDER
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
Commissioner are supported by substantial evidence, and whether
405(g); Richardson v. Perales, 402 U.S. 389, 390, 401 (1971).
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
benefits (DIB) in August 2013, alleging that she became disabled
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
review (Tr. 1-6), making the ALJ’s decision the final agency
404.981, 422.210(a) (2016).
This appeal followed.
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.
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
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.
Given these two issues, the
Plaintiff was 48 years old on her alleged onset date (Tr.
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
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,
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).
social worker, Deborah Spicer (Tr. 306-43, 460-84).
Both Dr. Lamb and Ms. Spicer provided letters and completed
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
coordination with others; making simple work-related decisions;
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
deficiencies in concentration, persistence, and pace; and four
or more episodes of decompensation, each of extended duration
That same month, Ms. Spicer completed the same form also
Plaintiff’s mental functioning (Tr. 457-59). She also wrote a
letter stating Plaintiff was compliant with treatment, but had a
euthymic mood. She stated that although Plaintiff had improved,
Ms. Spicer stated that Plaintiff’s
ability to cope with work was significantly compromised and she
“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).
The following month,
Plaintiff had poor or no ability to relate to co-workers, deal
with the public and work stresses, interact with supervisors,
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).
Dr. Lamb opined that
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.
concluded that Plaintiff had been unable to perform her job
since January 2013 (Tr. 576).
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.
She enjoyed television,
social contact on a routine basis. On examination, Plaintiff was
well groomed, cooperative, and fully oriented and had normal
posture and gait.
She could spell the word “world” backward and
Plaintiff was able to compute basic math calculations and she
had normal attention to task and concentration with no memory
Plaintiff had normal eye contact, responsive facial
expressions, appropriate affect, a neutral mood, normal speech,
average intelligence and found she had intact abstract thought
normal and she displayed no skill deficits (Tr. 346).
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.
He thought Plaintiff’s ability to
affected (Tr. 347).
psychologist Jane Brake, Ph.D., reviewed Plaintiff’s record and
opined Plaintiff had mild restriction of activities of daily
difficulties in maintaining concentration, persistence, and pace
She went on to assess Plaintiff’s mental functioning
variations in two hour segments; relate adequately to others;
and adapt to situational conditions and changes with reasonable
support and structure (Tr. 87).
John Thibodeau, Ph.D., another
attendance, be punctual, and sustain ordinary routines; work in
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).
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
activities within a schedule, and be punctual
within customary tolerances
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;
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
(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
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
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).
In Gayheart, it
was noted that the ALJ had given “little weight” to the treating
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).
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
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.
The ALJ’s opinion, then, hinges on the content of Dr.
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).
The evidence set
isolated pieces of these treatment records, while ignoring any
reference in them—even records of the same date as the cherrypicked
continued mental health problems.
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.
Acting Commissioner’s motion for summary judgment is DENIED.
remanded to the Acting Commissioner for further consideration of
Plaintiff’s ability to perform substantial gainful activity on a
This the 24th day of July, 2017.
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