# Eleanor SHERRILL, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee

> Court of Appeals for the Sixth Circuit · March 27, 1985 · 757 F.2d 803

URL: https://www.frixlaw.com/law-library/cases/9473262

## Case

- **Full name:** 9 soc.sec.rep.ser. 130, unempl.ins.rep. Cch 16,006 Eleanor Sherrill v. Secretary of Health and Human Services
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** March 27, 1985
- **Citations:** 757 F.2d 803; 9 Soc. Serv. Rev. 130; 1985 U.S. App. LEXIS 29858
- **Precedential status:** Published
- **Opinion:** Concurrence by Brown
- **Judges:** Brown, Jones, Peck, Per Curiam
- **Cited by:** 41 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473262

## How later opinions describe it (automated extraction)

- finding that testimony of a physician who specialized in internal medicine did not rise to the level of substantial evidence establishing the nonexistence of claimant's psychiatric impairment
- stating that a non-examining physician’s testimony is entitled to less weight than the opinion of an examining physician

## Opinion text

BAILEY BROWN, Senior Circuit Judge,
concurring.
I concur in the majority’s opinion but write separately to emphasize what I believe to be the principal ground for reversing the Secretary’s decision. It is my view that the testimony of Dr. Lewis, a board certified internist who specialized in pulmonary disease, would be substantial evidence that the claimant was not physically disabled but was not substantial evidence that she was not psychiatrically disabled.
Dr. Lewis testified that although Sherrill suffered from numerous health problems and had been seen by many physicians, her “major” problem was the psychiatric problem. After explaining why Sherrill’s physical disorders did not meet or equal the listed impairments, Dr. Lewis stated that Sherrill’s impairments came closest to meeting section 12.04 — Functional nonpsychotic disorders. 1 In fact, Dr. Lewis’ only basis for believing that Sherrill did not fall within section 12.04 was his opinion that her activities were not markedly restricted and her personal habits and ability to relate to others were not seriously impaired. More than once Dr. Lewis said that wheth *806 er or not Sherrill’s psychiatric impairment fit into section 12.04 was “a judgment call;” and, despite his opinion that Sherrill failed to meet the criteria of section 12.04, Dr. Lewis testified that her psychiatric problems “would obviously severely impair” her ability to do “any kind of work.”
Dr. Lewis possessed excellent qualifications, but he was an internist, not a psychiatrist, and he readily agreed the distinctions involved in determining whether Sherrill met the criteria of section 12.04 were basically psychiatric. The record before the AU contained evaluations by psychiatrists who had examined and treated claimant. The reports of these psychiatrists establish that Sherrill met the criteria of section 12.04 and therefore was disabled. In light of this substantial evidence from physicians trained in the field of psychiatry who had personally examined claimant, and because Dr. Lewis was a non-psychiatrist, non-examining physician who offered ambivalent testimony regarding claimant’s psychiatric impairment, I agree that Dr. Lewis’ testimony regarding claimant’s psychiatric disability does not rise to the level of substantial evidence upon which the AU could properly base a finding of non-disability.
. 12.04 Functional nonpsychotic disorders (psychophysiologic, neurotic, and personality disorders; addictive dependence on alcohol or drugs). With both A and B:
A. Manifested persistence of one or more of the following clinical signs:
1. Demonstrable and persistent structural changes mediated through psychophysiological channels (e.g. duodenal ulcer); or
2. Recurrent and persistent periods of anxiety, with tension, apprehension, and interference with concentration and memory; or
3. Persistent depressive affect with insomnia, loss of weight, and suicidal preoccupation; or
4. Persistent phobic or obsessive ruminations with inappropriate, bizarre, or disruptive behavior; or
5. Persistent compulsive, ritualistic behavior; or
6. Persistent functional disturbance of vision, speech, hearing or use of a limb with demonstrable structural or trophic changes; or
7. Persistent, deeply ingrained, maladaptive patterns of behavior manifested by either:
a. Seclusiveness or autistic thinking or
b. Pathologically inappropriate suspiciousness or hostility;
B. Resulting persistence of marked restriction of daily activities and constriction of interests and deterioration in personal habits and seriously impaired ability to relate to other people.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473262. Public record. Not legal advice.