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Kemmet v. Berryhill

United States District Court, E.D. Missouri, Southeastern Division

August 24, 2017

KARLA KEMMET, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Karla Kemmett seeks review of the decision of Social Security Commissioner, Nancy Berryhill, denying her applications for Disability Insurance Benefits and Supplemental Security Income under the Social Security Act.[2] The Court has reviewed the parties' briefs and the administrative record, including the hearing transcript and medical evidence. For the reasons set forth below, the case is reversed and remanded.

         I. Factual and Procedural Background

         Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income on March 25, 2013. (Tr. 222-25, 229-36). In her applications, Plaintiff claimed she was disabled as of September 18, 2010[3] as a result of: seizures, bipolar disorder, depression, migraines, fibromyalgia, heart flutter, thyroid problems, anxiety and panic attacks, low coping skills, difficulty concentrating, dependent personality disorder, borderline personality disorder, post-traumatic stress disorder (PTSD), asthma, and hearing loss in her right ear. (Tr. 97-98). The Social Security Administration (SSA) denied Plaintiff's claims, and she filed a timely request for a hearing before an administrative law judge (ALJ). (Tr. 124, 132-33).

         The SSA granted Plaintiff's request for review, and an ALJ conducted a hearing on June 26, 2014. (Tr. 40-75). At the hearing, Plaintiff testified that she was forty-two years old, had a high school diploma, and lived alone. Plaintiff stated that she worked for sixteen years as a customer service manager at Wal-Mart, and she stopped working after “back to back” seizures on September 18, 2010. (Tr. 45, 67-68). Plaintiff explained that her mother “takes care of” her medicine and confirmed that she was taking: Lamictal, Topamax, “thyroid medicines, ” “hormone replacement, ” fluoxetine, Vistaril, Flonase, Singulair, Maxalt, meloxicam, loratadine, Frova, and Abilify. (Tr. 45-47).

         Plaintiff testified that she had been receiving continuous mental health care, including therapy and medicine management, for the past “three or four years[.]” (Tr. 48). She also attended a weekly support group for people with depression and bipolar disorder and was recently hospitalized for mental health problems. (Tr. 51, 54). In addition to her depression, Plaintiff described “fibro fog, ” and problems with her memory, concentration, and word retrieval. (Tr. 54-55). She had difficulty sleeping and, even with “sleeping medicine, ” only slept about three or four hours per night. (Tr. 52).

         Plaintiff testified that she had not suffered a seizure in the past two years. (Tr. 48). Plaintiff continued to suffer migraines once or twice a week, and the migraines kept her in bed for “at least a good two days.” (Tr. 48). Depending on the severity of the migraine, Plaintiff would either go to Kniebert Clinic for “a shot” or “take a pill, ” alternating between Maxalt and Frova. (Tr. 49).

         In regard to her fibromyalgia, Plaintiff testified “I can't lift a lot. I can't do a lot of things. I can sit a little bit then have to stand a little bit, and lay down a little bit. I just hurt all the time.” (Tr. 50). Plaintiff explained that she did not take any medications specifically for her fibromyalgia because “Dr. Nagy says that it will go against my seizure medicine. About the only thing that I can take is the 800 ibuprofen, ” which did “[n]ot really” help. (Tr. 50-51). Plaintiff had not discussed other possibilities with her neurologist, Dr. Godbey, who treated her for seizures. (Tr. 51).

         Plaintiff stated that, on a typical day, she might arise at 3:00 a.m. or 6:00 a.m., depending on her sleep the night before. (Tr. 52). Plaintiff would “sometimes” read the Bible, but not “very long because my attention span is not good, ” and played with her cats. (Tr. 52). Plaintiff occasionally visited her mother and had “friends that come by and check on me. . . . I'm not able to clean my house, or take care of the cats. So I'm very blessed to have my mom and friends to come by and do that for me.” (Tr. 53). Plaintiff was able to sort her laundry but “somebody has to take it to the laundry room because I can't lift the baskets.” (Tr. 53-54).

         Plaintiff would go to the grocery store “but I always have to take my mom or somebody with me” because she could not lift or carry the groceries. (Tr. 53, 54). Plaintiff went to church twice a week. (Tr. 56). She explained that she was not able to sit for the entire service, so “once I can't sit in there anymore, I'll get up and walk around and watch the TV out there [in the vestibule].” (Tr. 55-56). In regard to exercise, Plaintiff stated: “I walk when I can, but sometimes I just hurt too bad.” (Tr. 54). The heaviest thing Plaintiff was able to lift was “[m]aybe a gallon of milk.” (Tr. 56). Plaintiff did not usually nap but needed to lie down two or three times per day for thirty to ninety minutes. (Tr. 57-58). During the one-hour drive to the hearing, Plaintiff stopped three times to get out of the car, stretch her legs, and move her back. (Tr. 59). The transcript of the ALJ hearing reflected that Plaintiff also asked to stand up about mid-way through her testimony, and requested a break during the vocational expert's testimony. (Tr. 54, 71).

         A psychologist, Dr. Michael Cremerius, testified as a medical expert at the hearing. (Tr. 60- 68). Based on Plaintiff's testimony and medical records, he diagnosed Plaintiff with “cognitive impairments, ” “depression and/or bipolar disorder, ” and dependent personality disorder. (Tr. 61-62). Dr. Cremerius opined that Plaintiff's impairments caused moderate limitations in activities of daily living, social functioning, and concentration, persistence, and pace. (Tr. 61-62). Dr. Cremerius noted “one period of decompensation, ” which was “a two-day psychiatric admission.” (Tr. 62).

         While Dr. Cremerius noted that Plaintiff's primary care physician described her as “profoundly symptomatic, ” her neurologist described her “as marked to extremely limited and symptomatic, ” and her social worker described her as “markedly limited and symptomatic, ” Dr. Cremerius found “it [] hard to understand how they come up with these restrictions.” (Tr. 63). According to his reading of Plaintiff's records, Plaintiff's bipolar disorder, generalized anxiety disorder, and PTSD were stable and her symptoms were generally mild. (Tr. 63). Dr. Cremerius theorized that “these [medical professionals] are describing - not only psychological but physical [restrictions] as well . . . .”

         Finally, a vocational expert testified at the hearing. (Tr. 69-75). The ALJ asked the vocational expert to consider a hypothetical individual with Plaintiff's age, education, and work experience and the ability to: lift twenty pounds occasionally and ten pounds frequently; stand and/or walk six hours in an eight-hour work day; sit eight hours in an eight-hour work day; occasionally climb ramps and stairs; avoid climbing ladders, ropes, and scaffolds and working around unprotected height and machinery; occasionally stoop, kneel, crouch, and crawl; and perform simple and or repetitive work that did not require interaction with the public or co-workers. (Tr. 70-71). The vocational expert testified that such person could perform the jobs of laundry worker or machine tender. (Tr. 71). When the ALJ limited the hypothetical individual to lifting no more than ten pounds and standing or walking two hours in an eight-hour day, the vocational expert testified that he or she could perform sedentary table worker, assembly, or machine feeding jobs. (Tr. 72). However, the need to miss more than two days per month or arrive late, leave early, or take additional breaks at least once per week, would preclude competitive employment. (Tr. 73). The need to lie down twice a day for approximately thirty minutes would also preclude employment. (Id.).

         In his decision of August 15, 2014, the ALJ applied the five-step evaluation set forth in 20 C.F.R. §§ 404.1520, 416.920[4] and found that Plaintiff “has not been under a disability, as defined in the Social Security Act, from February 13, 2013, through the date of this decision[.]” (Tr. 13-25). The ALJ found that Plaintiff had the following severe impairments: bipolar disorder, PTSD, personality disorder, fibromyalgia, migraine headaches, and seizure disorder. (Tr. 16).

         After reviewing the testimony and the medical records, the ALJ found that Plaintiff's “allegation that her impairments, either singly or in combination, produce symptoms and limitations of a severity to prevent all sustained work activity is not credible.” (Tr. 21). The ALJ determined that Plaintiff had the residual functional capacity (RFC) to:

perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except for lifting or carrying more than 20 pounds occasionally and 10 pounds frequently; standing or walking more than 6 hours in an 8-hour workday with normal work breaks; sitting more than 6 hours in an 8-hour workday; no climbing ladders, ropes, or scaffolds; climbing ramps or stairs, stooping, kneeling, crouching or crawling more than occasionally; avoid exposure to hazards (unprotected heights or dangerous machinery); and performing more than simple, routine tasks with no close interaction with the public or co-workers.

(Tr. 20). Finally, the ALJ found that Plaintiff was unable to perform any past relevant work but could perform other jobs that existed in significant numbers in the national economy. (Tr. 23-24).

         Plaintiff filed a request for review of the ALJ's decision with the SSA Appeals Council, which denied review on January 5, 2016. (Tr. 1-6, 299-308). Plaintiff has exhausted all administrative remedies, and the ALJ's decision stands as the SSA's final decision. Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

         II. Standard of Review

         A court must affirm an ALJ's decision if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Buford v. Colvin, 824 F.3d 793, 795 (8th Cir. 2016). “Substantial evidence is less than a preponderance, but enough that a reasonable mind would find it adequate to support the ALJ's determination.” Buford, 824 F.3d at 795 (quoting Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)). In determining whether the evidence is substantial, a court considers evidence that both supports and detracts from the Commissioner's decision. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). However, a court “do[es] not reweigh the evidence presented to the ALJ and [it] defer[s] to the ALJ's determinations regarding the credibility of testimony, as long as those determinations are supported by good reason and substantial evidence.” Renstrue v. Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012) (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)).

         “If, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ's findings, the court must affirm the ALJ's decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). The Eighth Circuit has repeatedly held that a court should “defer heavily to the findings and conclusions” of the Social Security Administration. Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001).

         III. Discussion

         Plaintiff claims that substantial evidence does not support the ALJ's finding that she was not disabled because the ALJ failed to assign proper weight to the medical opinions of Plaintiff's primary care physician, neurologist, and social worker. (ECF No. 17). More specifically, Plaintiff argues that the opinions of these treating sources were entitled to controlling or, at least great, weight and the ALJ failed to provide “good reasons” for assigning them little weight. According to Plaintiff, had the ALJ properly credited their opinions regarding her physical and mental limitations, the ALJ would have found her disabled. The Commissioner counters that the ALJ assigned the medical opinion evidence proper weight and substantial evidence supported the ALJ's conclusion that Plaintiff was not disabled. (ECF No. 22).

         A. Treating physicians

         The Court first considers the weight that the ALJ assigned to the medical opinions of Plaintiff's treating physicians. A treating physician's opinion regarding a plaintiff's impairments is entitled to controlling weight where “the opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record.” Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000). Even if the opinion is not entitled to controlling weight, it should not ordinarily be disregarded and is entitled to substantial weight. Id. This rule is premised, at least in part, on the notion that the treating physician is usually more familiar with a claimant's medical condition than are other physicians. See 20 C.F.R. §§ 404.1527(c), 416.927(c); Thomas v. Sullivan,928 F.2d 255, 259 n.3 (8th Cir.1991). ...


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