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Tremaine v. Berryhill

United States District Court, S.D. Indiana, Indianapolis Division

March 30, 2018

SHARON K. TREMAINE deceased by next friend ROBERT E. TREMAINE, Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.


          TANYA WALTON PRATT, JUDGE United States District Court

         Plaintiff Sharon K. Tremaine (“Tremaine”), who is deceased, by next of friend Robert E. Tremaine, her husband, requests judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”), denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (the “Act”). For the following reasons, the Court REMANDS the decision of the Commissioner for further consideration.

         I. BACKGROUND

         A. Procedural History

         On August 23, 2012, Tremaine filed an application for SSI, alleging a disability onset date of January 1, 2005, due to her bipolar disorder with psychotic features, depression, scoliosis, and arthritis in her back. The claim was initially denied on November 1, 2012, and again on reconsideration on January 2, 2013. She filed a written request for a hearing on February 25, 2013.Tremaine died on December 1, 2013.[2] On December 20, 2013, Robert Tremaine (“Robert”) filed a notice of substitution of party in light of Tremaine's death (Filing No. 22-4 at 23).

         On July 10, 2014, a hearing was held before Administrative Law Judge Ronald T. Jordan (the “ALJ”). Robert was present and represented by counsel. Tremaine's sister, Peggy Lybrook, also was present at the hearing. Robert and Peggy Lybrook each testified during the hearing. George E. Parsons, an impartial vocational expert, also testified at the hearing. On August 6, 2014, the ALJ denied Tremaine's application for SSI. Following this decision, Robert requested review by the Appeals Council on October 3, 2014. On December 7, 2015, the Appeals Council denied Robert's request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner for purposes of judicial review. On May 23, 2016, Robert, on behalf of Tremaine, filed this action for judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         B. Factual Background

         At the time of her alleged disability onset date, Tremaine was thirty-four years old. She completed her high school education and took some classes after high school graduation. Prior to the onset of her alleged disability, Tremaine had an employment history of working on an assembly line, and as a teller, a waitress, and a “crew member”. She also attempted to do data entry work through a temporary employment agency in 2008, but this work lasted only one day.

         There is evidence throughout the record that indicates Tremaine suffered from physical impairments of scoliosis, arthritis of the back, insomnia, fatigue, pelvic muscle dysfunction, extensive diffuse hepatocelluar disease, obesity, urinary incontinence, gastroesophageal reflux disorder, and hypothyroidism. There also is evidence in the record that Tremaine sought various treatments for these impairments. However, the parties focus their arguments on Tremaine's mental health impairments, so the Court will focus this background section on her mental health impairments.

         Tremaine suffered from bipolar disorder since at least 2006 (Filing No. 22-2 at 39). She was taking various anti-psychotic prescription medications, including Depakote and Risperidone, to treat her mental health impairments (Filing No. 22-12 at 34). Tremaine's evidence indicates that she sought and received treatment as early as 2008 for her depression and bipolar disorder from the St. Vincent Stress Center. Id. at 32-34.

         In 2011, Tremaine reported that she had difficulty sleeping at night, suffered a loss of energy and a loss of interest in regular activities, and also lost any desire to complete daily tasks or participate in activities she once enjoyed. During an August 2011 office visit with Zachary LaMaster, D.O. (“Dr. LaMaster”), Tremaine and Dr. LaMaster discussed her ongoing depression and worsening symptoms even with the maximum dose of Cymbalta. Dr. LaMaster added Wellbutrin to Tremaine's medication regimen (Filing No. 22-7 at 34-35).

         In January 2012, Tremaine began receiving mental health treatment from therapist Melinda Kelley, M.A. (“Ms. Kelley”), and psychiatrist Leela Rau, M.D. (“Dr. Rau”), at Midtown Community Mental Health Center. Id. at 9. She received this treatment on at least a monthly basis. Id. at 6-9. Tremaine's psychosis deteriorated in May 2012, resulting in the Wishard Hospital police bringing her to the emergency room of Wishard Hospital for active suicidal ideations on May 9, 2012. She was seen by a doctor and then released the same day. Id. at 7, 67.

         Almost two weeks later, on May 17, 2012, Tremaine was psychiatrically hospitalized at Wishard Hospital. She had told her husband that she wanted to kill herself with a knife. It was noted in her treatment record that this was her third suicide attempt. She remained hospitalized for two days and was released on May 19, 2012. During her hospitalization, Tremaine was diagnosed with bipolar disorder and depression and was assigned a global assessment of functioning (“GAF”) score of 45. Tremaine was assessed with having only limited insight and impulsive judgment. Upon discharge, she was prescribed the anti-manic drug Divalproex ER and the anti-psychotic drug Risperidone (Filing No. 22-7 at 6-7). Throughout 2012 and 2013, Tremaine continued receiving mental health treatment and counseling (sometimes multiple times a month) from Ms. Kelley and Dr. Rau at Midtown Community Mental Health Center, and she continued her anti-psychotic prescription drug regimen (Filing No. 22-12 at 3-31; Filing No. 22-7 at 6-9).

         Approximately three months after her psychiatric hospitalization, Tremaine filed her SSI application in August 2012. In support of her SSI application, her therapist, Ms. Kelley wrote a letter on October 11, 2012, stating that Tremaine was being treated for bipolar disorder, and she experienced poor concentration, rapid mood swings, anger outbursts, and a history of suicidal ideations. Ms. Kelley also noted that Tremaine's symptoms interfered with her interpersonal functioning (Filing No. 22-8 at 21).

         On October 26, 2012, J. Nathan Smith, M.D. (“Dr. Smith”), examined Tremaine as part of the disability application process. Dr. Smith noted Tremaine's depression and bipolar disorder and recorded that she was taking mental health medications (Filing No. 22-7 at 76-79).

         On October 29, 2012, Matthew G. Grant, Psy.D. (“Dr. Grant”), performed a psychological evaluation of Tremaine for her SSI application. Tremaine talked to Dr. Grant about her manic episodes that tended to last for three months, how she heard voices when manic but not at other times, and how she slept all the time when depressed. She reported that she had about one manic episode a year and her ensuing depression lasted about six months. She also noted that she had been psychiatrically hospitalized multiple times. She admitted to attempting to kill herself twice by carbon monoxide poisoning and overdosing on pills. She stated that her relationships were affected by her bipolar disorder and that she enjoyed nothing. Tremaine also noted that she suffered from hallucinations when experiencing a manic episode. Dr. Grant concluded his examination by diagnosing Tremaine with bipolar disorder, depression with atypical features, and a GAF score of 50. Id. at 80-85.

         Tremaine's last contact with Ms. Kelley at Midtown Community Mental Health Center occurred on October 22, 2013. She called into the office and explained she was feeling an increase in mania because other medical professionals had discontinued her use of Cymbalta and added Remeron. Ms. Kelley told her to come into the office three days later as a walk-in appointment to meet with the psychiatrist (Filing No. 22-12 at 30). However, Robert called Ms. Kelley two days later, explaining that Tremaine would not be in the office the next day because she had collapsed and had been taken to the hospital. Id. at 31. Unfortunately, this hospitalization ended with Tremaine's passing on December 1, 2013, due to severe sepsis with septic shock, perforated colon with peritonitis, and pseudomembranous colitis due to clostridium difficile (Filing No. 22-5 at 24). Additional facts will be provided as needed in the discussion section below.


         Under the Act, a claimant may be entitled to SSI only after she establishes that he is disabled. 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. § 423(d)(1)(A). In order to be found disabled, a claimant must demonstrate that her physical or mental limitations prevent her from doing not only her previous work but any other kind of gainful employment which exists in the national economy, considering her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).

         The Commissioner employs a five-step sequential analysis to determine whether a claimant is disabled. At step one, if the claimant is engaged in substantial gainful activity, she is not disabled despite her medical condition and other factors. 20 C.F.R. § 416.920(a)(4)(i). At step two, if the claimant does not have a “severe” impairment that meets the durational requirement, she is not disabled. 20 C.F.R. § 416.920(a)(4)(ii). A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). At step three, the Commissioner determines whether the claimant's impairment or combination of impairments meets or medically equals any impairment that appears in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1, and whether the impairment meets the twelve month duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 416.920(a)(4)(iii).

         If the claimant's impairments do not meet or medically equal one of the impairments on the Listing of Impairments, then her residual functional capacity will be assessed and used for the fourth and fifth steps. Residual functional capacity (“RFC”) is the “maximum that a claimant can still do despite his mental and physical limitations.” Craft v. Astrue, 539 F.3d 668, 675-76 (7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(1); SSR 96-8p). At step four, if the claimant is able to perform her past relevant work, she is not disabled. 20 C.F.R. § 416.920(a)(4)(iv). At the fifth and final step, it must be determined whether the claimant can perform any other work in the relevant economy, ...

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