United States District Court, S.D. Indiana, Indianapolis Division
SHARON K. TREMAINE deceased by next friend ROBERT E. TREMAINE, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of the Social Security Administration, Defendant.
ENTRY ON JUDICIAL REVIEW
WALTON PRATT, JUDGE United States District Court
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.
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. 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
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).
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.
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.
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.
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).
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,
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).
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).
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).
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.
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.
DISABILITY AND STANDARD OF REVIEW
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).
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. §
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, ...