Dishong v. Colvin
MEMORANDUM AND ORDER - The Clerk of the Court is directed to substitute Acting Commissioner of Social Security Nancy A. Berryhill as the defendant. The Commissioner's decision is reversed. This matter is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for calculation and award of benefits. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KRISTINE M. DISHONG,
MEMORANDUM AND ORDER
Commissioner of the Social Security
This matter is before the Court on the denial, initially and upon
reconsideration, of plaintiff Kristine M. Dishong's application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et
seq., and supplemental social security income benefits under Title XVI of the
Act, 42 U.S.C. § 1381 et seq. The Court has considered the parties' filings and
the administrative record, and reverses the Commissioner's decision to deny
benefits. The Court will remand this case to the Commissioner for calculation
and award of benefits.
Dishong applied for disability insurance benefits in May 2012, alleging
disability beginning on November 24, 2011. T172-179. Dishong's claims were
denied initially and on reconsideration. T78-79, 81-82. Following a hearing,
the administrative law judge (ALJ) found that Dishong was not disabled as
defined under 42 U.S.C. §§ 416(i) or 423(d), and therefore not entitled to
Nancy A. Berryhill is now the Acting Commissioner of Social Security and will be
automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d).
disability benefits. T11-28. The ALJ determined that although Dishong
suffered from severe impairments, she was capable of performing her past
relevant work and had the residual functional capacity to perform other jobs
that exist in significant numbers in the national economy. T14, 26-28. The
Appeals Council denied Dishong's request for review of the decision. T1-3.
Dishong's complaint seeks review of the ALJ's decision as the final decision of
the Commissioner under sentence four of 42 U.S.C. § 405(g). Filing 1.
The record contains extensive evidence of Dishong's years of psychiatric
treatment, which the Court has thoroughly reviewed. To summarize, Dishong
has suffered a course of bipolar I disorder: a condition characterized by manic
episodes of at least a week, and commonly punctuated by hypomanic episodes
and major depressive episodes. See Am. Psychiatric Ass'n, Diagnostic and
Statistical Manual of Mental Disorders 123-32 (5th ed. 2013) [hereinafter
"DSM-5"]; see also Am. Psychiatric Ass'n, Diagnostic and Statistical Manual
of Mental Disorders 350-58 (4th ed. 1994) [hereinafter "DSM-IV"]. Most
people who have a single manic episode go on to have recurrent mood
episodes, and most manic episodes occur before major depressive episodes.
DSM-5 at 130. More than four episodes in a year is described as "rapid
cycling"; women are particularly likely to experience rapid cycling, and cooccurring mental disorders are common. Id. at 130, 132.
Dishong's primary treatment provider has been Mat Balcetis, M.S.,
NCC, LIMHP, who conducted an initial outpatient evaluation of Dishong in
November 2005. T329-333. By August 2009, Dishong had been diagnosed by
Susan Crane, APRN, with bipolar I disorder with mixed features. T517. On
several instances in 2009 and 2010, Crane opined that Dishong was
temporarily totally disabled from working. T517, 509, 506.
Balcetis saw Dishong on a regular basis starting no later than 2011. (It
is not clear to the Court how complete the medical records are with respect to
the period before then.) The form on which Balcetis recorded his progress
notes ask the treatment provider to check a box indicating the patient's
"Progress Rating on Specific Identified Goal": for the most part, Balcetis
checked "Improvement" on that line over the course of Dishong's treatment.
E.g. T328. But occasionally he thought there was "No Change," and
sometimes he thought Dishong had "Regressed." E.g. T428, 320.
Balcetis' progress notes indicate that through the spring of 2011,
Balcetis thought Dishong had shown improvement toward her goals, which
generally involved improving and stabilizing her mood. E.g. T322-326.
Dishong even showed "Significant Improvement" in late May. T323. But
Balcetis and Crane's notes both reflect that by August, Dishong had slipped
into a manic episode and regressed. T316-321. At the end of August, Crane
again opined that Dishong was temporarily disabled. T481. Crane reached
the same conclusion in early September, although her notes also indicate that
Dishong's mood was becoming more stable. T498, 315. Balcetis noted
regression on September 8, but some stability after that, and even some
improvement. T306-314. Dishong's medications were adjusted. T310, 312. By
October and November, both Crane and Balcetis were noting stable progress.
December 2011 showed regression, occasioned by elevated obsessive
thinking and anxiety, and Dishong reported a "nervous breakdown." T298300. Crane opined on December 13 that Dishong was again temporarily
disabled. T478. Once Dishong was on short-term disability and relieved of the
demands of work, she relaxed some. T296. But she was still unstable,
withdrawn, and anxious; and at the end of January 2012 Balcetis was still
noting "rocky" progress toward her goals. T291-297. February and March
showed some stable progress, but also regression. T284-290. She resigned
from her job in March. T285. In April, Crane's evaluation found severe,
persistent mental illness, and Dishong's prognosis was guarded. T278-281.
By May 2012, Balcetis thought Dishong was showing improvement.
T273-276. Dishong's mood had stabilized and improved—largely, Balcetis
thought, "because she is no longer working, this appears to help greatly with
mood and irritability." T273. In June, Balcetis still thought Dishong was
showing stable improvement, but again noted that "stressors are minimized
[without a fulltime] job." T271.
On July 6, 2012, state agency consultant Glenda L. Cottam, Ph.D., J.D.,
completed a psychiatric review technique based on her review of Dishong's
medical records to that point, in which she agreed that Dishong suffered from
bipolar disorder, an anxiety disorder, and a possible personality disorder.
T349, 351, 353. Cottam found Dishong to be mildly restricted in activities of
daily living, and moderately affected by difficulties in maintaining social
functioning and maintaining concentration, persistence, or pace. T356. Dr.
Cottam also completed a mental residual functional capacity assessment.
T341-344. Dr. Cottam opined that there were no significant limitations of
Dishong's understanding and memory, and that Dishong's sustained
concentration and persistence were not impaired except for moderate
limitation in her ability to maintain attention and concentration for extended
periods. T341. Dishong's social interaction was moderately limited with
respect to her ability to interact appropriately with the general public, accept
instructions and respond appropriately to criticism from supervisors, and get
along with coworkers or peers without distracting them or exhibiting
behavioral extremes. T342. And Dishong was moderately limited in her
ability to respond to changes in the work setting. T342. State agency
consultant Lee Branham, Ph.D., completed a psychiatric review technique on
September 10, 2012, based on his review of the medical records to that point,
and agreed with Dr. Cottam's conclusions. T369.
Balcetis' progress notes reflect improvement through December 2012.
T381-391. Dishong's treatment was transferred from Crane to Michael L.
Egger, M.D., while she continued her regular therapy with Balcetis. T378379. Dr. Egger's initial outpatient evaluation agreed with previous diagnoses
of severe bipolar I disorder. T378; see DSM-5 at 126. Dr. Egger prescribed
additional medication and encouraged Dishong to pursue her disability claim,
opining that "[s]he really cannot sustain competitive employment[.]" T379.
Dishong continued to see Balcetis and Dr. Egger regularly throughout
2013. T388-463. Balcetis noted regression in late January, but generally
thought Dishong was improving. T390-400. Nonetheless, Balcetis regularly
noted Dishong's unstable mood and elevated irritability, and Dishong had
some difficulty with her medications. T390-400. In May, Balcetis opined that
Dishong's mood had "stabilized and improved[,]" but largely "because she is
no longer working." T443. He noted some "difficult weeks" and the
troublesome "side effects and fatigue" associated with her medication
regimen. T443. And, Balcetis noted, "[m]ood instability and irritability can
return with daily and family stresses." T443.
They had returned in force by June 2013, when Dishong regressed
again into another manic episode. T420. She reported to Balcetis that she
was more isolated, irritable, and depressed. T420. But she improved shortly
thereafter, T419, and was stable by the end of June, T417. In July, she was
still struggling with the side effects of her medication, particularly fatigue.
T416. By late July and into August, Balcetis was again noting regression.
T412-414. Dishong stabilized in mid-August, and Balcetis again opined that
her mood had stabilized and improved because she was no longer working.
T411. Dr. Egger noted depression in mid-August, T410, and Balcetis noted
fair to stable progress shortly thereafter, T430.
Dishong was stable in September 2013, and began to show some
improvement. T427-429. But stable improvement at the beginning of October,
T426, gave way to regression in mid-October and early November, T424-425.
Dishong was feeling better and more relaxed, however, by the end of
November into December. T423, 462.
On January 17, 2014, Balcetis completed a mental residual functional
capacity assessment, reiterating the conclusion that Dishong suffered from
severe bipolar I disorder. T447-452. He opined that Dishong's prognosis was
poor, because her "mental health status (to include ability to function at job &
w/family) deteriorates when under stress of daily work." T447. Balcetis
described the side effects of Dishong's medications as "extreme fatigue
requiring long naps." T448. He said that her mood swings and irritability
were "very consistent" and tended "to worsen with normal daily living
stressors." T448. Balcetis opined that Dishong would be precluded from
performing for at least 15 percent of an 8-hour work day in nearly every
category of understanding and memory, and sustained concentration and
memory; and for 10 percent of an 8-hour work day in nearly every category of
social interaction. T449-450. She would be unable to perform for 15 percent of
a work day due to her limited ability to respond appropriately to changes in
the work setting. T450. Balcetis
explained that Dishong
increasingly irritable/angry/anxious" in response to demands placed on the
abilities assessed. T451. Balcetis concluded that when Dishong's limitations
were considered in combination, she would be unable to perform a job for
more than 30 percent of an 8-hour work day, 5 days per week; and that she
would be likely to miss 4 days of work per week as a result of her
Dr. Egger completed a mental residual functional capacity statement
on January 30, 2014. T454-459. He also reiterated the diagnosis of severe
bipolar I disorder. T454; see DSM-IV at 351-52. Dr. Egger opined that
Dishong was able to live independently, but not able to be competitively
employed. T454. He characterized the side effects of Dishong's medications as
"moderate lethargy." T455. Dr. Egger also opined that Dishong would be
precluded from performing for at least 10 percent and usually 15 percent of
an 8-hour work day in nearly every category of understanding and memory,
and sustained concentration and memory; and for 5 to 15 percent of an 8hour work day in every category of social interaction. T456-457. Dr. Egger
found Dishong would be unable to perform for 10 percent of a work day due to
limitation on her ability to respond appropriately to changes in the work
setting, and for 15 percent of a work day due to limitation on her ability to set
realistic goals or make plans independently of others. T457. He explained
that she had a "very limited ability to set[,] shift and refocus on new data or
direction." T458. He concluded that when Dishong's limitations were
considered in combination, she would be unable to perform a job for more
than 30 percent of an 8-hour work day, 5 days per week; and she would be
likely to miss 5 or more days of work per week as a result of her impairments.
T458. He explained that she "cannot sustain attention, concentration or pace
for competitive employment in [the] foreseeable future." T459.
On April 3, 2014, Dishong was seen by Frederick Petrides, Ph.D., for a
consultative examination, and he authored a psychological report. T487. He
does not seem to have reviewed her medical records. Based on his interview
of Dishong, he concluded that she suffered from an "unspecified anxiety
disorder" and "unspecified depressive disorder, mild." T490. He opined that
Dishong "relies on her psychiatric treatment as opposed to attempting to
pursue gainful employment." T490. He completed a form on which he opined
that Dishong's ability to understand, remember, and carry out instructions
was not affected by her impairment; and that her ability to interact
appropriately with supervision, coworkers, and the public, as well as respond
to changes in the routine work setting, was affected by her impairments.
T491-492. But he did not complete the section of the form assessing the
severity of her limitations. T492.
Dishong testified at the administrative hearing regarding the day-today impairments resulting from her condition and the medications she takes
to control it. Dishong said that she struggles with even simple tasks at home,
tending to go from one thing to the next without remembering what she was
doing before. T53. She attributed much of her inability to concentrate on the
side effects of her medications, and said that Dr. Egger had described her as
"medication-resistant." T53. Because of that, she said, she had hypomanic
episodes three to four, or up to six, times a year. T53.
With respect to her daily routine, Dishong testified that in the morning,
she got her daughter up and to school, and tried "to get out of the house and
not be there alone all the time." T55. She visited her mother, and ran
errands, "generally in the morning, because the grocery store is not busy."
T55. She did drive her own car and do her own housework. T56.
Dishong explained that she had dropped out of community college
classes because she was failing. T56. But, she said, her plan was to continue
therapy and try to get to where she was stable enough to go and work. T57.
She explained that she had left her last employment because the projects she
was assigned caused her to decompensate, which she described:
I would lose all track of time, concentration, be unable to function
just as a person, as anyone else would. Those are the times when
you quit showering, you stop eating. You're irresponsible. Those
are the times I had to call my family in to take care of my
daughter. You decompensate to the point where you just are not
there. And going through a medication change is incredibly
difficult. It is for me anyway. I don't know how it is for others, but
for me, it's very difficult to go through.
T58. Her hypomanic episodes, she said, start out as depression, and then she
becomes "agitated, irritated, very difficult to be around . . . ." T58. And, she
said, in her hypomanic state she becomes "irresponsible, an irresponsible
person." T59. During the depressive phase of an episode, all she wants to do
is sleep. T59. She said she relied on her mother and sister for support,
explaining that her sister paid her rent and that she took care of her
there is a lot of time that my mother and my sister have picked
up the pieces, you know, and taken her to their house and, you
know, watched her for a few days while I got myself in order, you
know, because she doesn't need to be there with me watching me
sleep all day and not shower and not eat. It's not good for her.
T63. Dishong testified that at a job, even if she wasn't around as many
people, the problem was that she still didn't "have the concentration and the
ability to organize, to keep things moving in the right direction." T61.
The vocational expert (VE) who testified at the hearing was presented
with a hypothetical assuming a claimant who had no physical impairment
and was generally healthy, and could handle unskilled work with no more
than occasional social interaction. T68. Such limitations, the VE opined,
would permit the claimant to return to Dishong's previous work as a
document preparer, and would permit work in other unskilled jobs. T68-69.
When asked by Dishong's counsel about a claimant who would be precluded
from 15 percent of an 8-hour work day of completing a normal work day or
work week without interruptions from psychologically-based symptoms, and
who could perform at a consistent pace without an unreasonable number and
length of rest periods, the VE thought that such a person would still be able
to maintain employment. T69-70. But when the claimant was unable for 15
percent of the work day to perform activities within a schedule, maintain
regular attendance, be punctual within customary tolerances, sustain an
ordinary routine without special supervision, or work in coordination with or
in proximity to others without being distracted by them—then, the VE said,
such an individual would not be able to maintain employment. T70. And, the
VE said, an individual who was absent from work 5 days a month could not
sustain employment. T71.
SEQUENTIAL ANALYSIS AND ALJ FINDINGS
To determine whether a claimant is entitled to disability benefits, the
ALJ performs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4).
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At the first step, the claimant has the burden to establish that she has
not engaged in substantial gainful activity since her alleged disability onset
date. Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006); 20 C.F.R. §
404.1520(a)(4)(i). If the claimant has engaged in substantial gainful activity,
the claimant will be found not to be disabled; otherwise, the analysis proceeds
to step two. Gonzales, 465 F.3d at 894; 20 C.F.R. § 404.1520(a)(4)(i).
In this case, the ALJ found that Dishong had not engaged in
substantial gainful activity since her alleged disability onset date, and that
finding is not disputed on appeal. T13.
STEPS TWO AND THREE
At the second step, the claimant has the burden to prove she has a
"medically determinable physical or mental impairment" or combination of
impairments that is "severe[,]" 20 C.F.R. § 404.1520(a)(4)(ii), in that it
"significantly limits [her] physical or mental ability to perform basic work
activities." Gonzales, 465 F.3d at 894; see also Kirby v. Astrue, 500 F.3d 705,
707-08 (8th Cir. 2007). Next, "at the third step, [if] the claimant shows that
[her] impairment meets or equals a presumptively disabling impairment
listed in the regulations, the analysis stops and the claimant is automatically
found disabled and is entitled to benefits." Gonzales, 465 F.3d at 894; 20
C.F.R. § 404.1520(a)(4)(iii). Otherwise, the analysis proceeds.
For mental impairments, at steps two and three of the sequential
analysis, the ALJ utilizes a two-part "special technique" to evaluate a
claimant's impairments and determine, at step two, whether they are severe,
and if so, at step three, whether they meet or are equivalent to a "listed
mental disorder." 20 C.F.R. § 404.1520a(a), (d)(1) and (2). The ALJ must first
determine whether the claimant has "medically determinable mental
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impairment(s)." 20 C.F.R. § 404.1520a(b)(1). If any such impairment exists,
the ALJ must then rate the degree of "functional limitation" resulting from
the impairment. 20 C.F.R. § 404.1520a(b)(2). This assessment is a "complex
and highly individualized process that requires [the ALJ] to consider multiple
issues and all relevant evidence to obtain a longitudinal picture of [the
Four "broad functional areas" are used to rate these limitations:
"[a]ctivities of daily living; social functioning; concentration, persistence, or
pace; and episodes of decompensation." 20 C.F.R. § 404.1520a(c)(3). These
areas are also referred to as the "paragraph B criteria," which are contained
in 20 C.F.R. Part 404, Subpart P, Appx. 1, § 12.00 et seq. The first three
criteria are rated using a five-point scale of none, mild, moderate, marked,
and extreme. 20 C.F.R. § 404.1520a(c)(4). The fourth criterion, episodes of
decompensation, is rated as: none, one or two, three, four or more. Id.
After rating the degree of functional limitation resulting from any
impairments, the ALJ determines the severity of those impairments (step
two). 20 C.F.R. § 404.1520a(d). Generally, if the first three functional areas
are rated as "none" or "mild" and the fourth area as "none," the ALJ will
conclude that any impairments are not severe, unless the evidence indicates
otherwise. 20 C.F.R. § 404.1520a(d)(1). If any impairments are found to be
severe at step two, the ALJ proceeds to step three, and compares the medical
findings about the impairments and the functional limitation ratings with
the criteria listed for each type of mental disorder in 20 C.F.R. Part 404,
Subpart P, Appx. 1, § 12.00 et seq.
The ALJ found that Dishong had severe impairments: bipolar disorder,
anxiety, and borderline personality disorder. T14. But, the ALJ found,
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Dishong's impairments did not meet the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appx. 1, § 12.00 et seq. T14.
RESIDUAL FUNCTIONAL CAPACITY
Before moving to step four, the ALJ must determine the claimant's
residual functional capacity (RFC), which is then used at steps four and five.
20 C.F.R. § 404.1520(a)(4). "'Residual functional capacity' is defined as 'the
most [a claimant] can still do' despite the 'physical and mental limitations
that affect what [the claimant] can do in a work setting' and is assessed
based on all 'medically determinable impairments,' including those not found
to be 'severe.'" Gonzales, 465 F.3d at 894 n.3 (quoting 20 C.F.R. §§ 404.1545
To determine a claimant's RFC, the ALJ must consider the impact of
all the claimant's medically determinable impairments, even those previously
found to not be severe, and their related symptoms, including pain. 20 C.F.R.
§§ 404.1529(d)(4) and 404.1545(a)(1) and (2). This requires a review of "all the
relevant evidence" in the case record. 20 C.F.R. § 404.1545(a). Although the
ALJ is responsible for developing the claimant's complete medical history, 20
C.F.R. § 404.1545(a)(3), the claimant bears the burden of proof to
demonstrate his or her RFC. Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir.
2000). The ALJ will consider "statements about what [the claimant] can still
do that have been provided by medical sources, whether or not they are based
on formal medical examinations," as well as descriptions and observations of
the claimant's limitations caused by her impairments, including limitations
resulting from symptoms, provided by the claimant or other persons. 20
C.F.R. § 404.1545(a)(3).
The RFC assesses the claimant's ability to meet the physical, mental,
sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(4). The
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mental requirements of work include, among other things, the ability: to
understand, remember, and carry out instructions; to respond appropriately
to supervision, coworkers, and work pressures in a work setting; to use
judgment in making work-related decisions; and to deal with changes in a
routine work setting. 20 C.F.R. §§ 404.1545(c) and 404.1569a(c); SSR 96-8p,
61 Fed. Reg. 34474-01, 34477 (July 2, 1996). An RFC must assess the
claimant's ability to meet the mental requirements of work, 20 C.F.R. §
404.1545(a)(4), which includes the ability to respond appropriately to
coworkers and work pressures. 20 C.F.R. §§ 404.1545(c) and 404.1569a(c);
SSR 96-8p, 61 Fed. Reg. at 34477. The RFC must include all limits on workrelated activities resulting from a claimant's mental impairments. SSR 85-16,
1985 WL 56855, at *2 (1985).
A special procedure governs how the ALJ evaluates a claimant's
symptoms. The ALJ first considers whether the claimant suffers from
"medically determinable impairment(s) that could reasonably be expected to
produce [the claimant's] symptoms." 20 C.F.R. § 404.1529(a) to (c)(1). A
medically determinable impairment must be demonstrated by medical signs
or laboratory evidence. 20 C.F.R. § 404.1529(b). If this step is satisfied, the
ALJ then evaluates the intensity and persistence of the claimant's symptoms
to determine how they limit the claimant's ability to work. 20 C.F.R. §
404.1529(c)(1). This again requires the ALJ to review all available evidence,
including statements by the claimant, "objective medical evidence,"2 and
"other evidence."3 20 C.F.R. § 404.1529(c)(1) to (3).
20 C.F.R. §§ 404.1529(c)(2) and 404.1528(b) and (c).
"Other evidence" includes information provided by the claimant, treating and non-treating
sources, and other persons. See 20 C.F.R. § 404.1529(a)(1) (and sections referred to therein);
see also 20 C.F.R. § 404.1529(c)(3).
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The ALJ considers the claimant's statements about "the intensity,
persistence, and limiting effects of [her] symptoms," and evaluates them "in
relation to the objective medical evidence and other evidence." 20 C.F.R. §
404.1529(c)(4). Ultimately, symptoms will be determined to diminish the
claimant's capacity for basic work activities, and thus impact the claimant's
RFC, "to the extent that [the claimant's] alleged functional limitations and
restrictions due to symptoms . . . can reasonably be accepted as consistent
with the objective medical evidence and other evidence." Id.; 20 C.F.R. §
404.1529(d)(4). In assessing the credibility of a claimant's subjective
testimony regarding his or her alleged symptoms, the ALJ must weigh a
number of factors. See, Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009); 20
C.F.R. § 404.1529(c)(3)(i–vii). When deciding how much weight to afford the
opinions of treating sources and other medical opinions regarding a
claimant's impairments or symptoms, the ALJ considers a number of factors
set forth in 20 C.F.R. § 404.1527.
The ALJ found that Dishong had the RFC to
perform a full range of work at all exertional levels but with the
following nonexertional limitations: She could perform routine,
repetitive unskilled work . . . where [she] should not need to have
extended concentration or set goals and social interaction could
be occasional, but avoid constant, intense, and frequent with coworkers, supervisors, and the general public.
T15. The ALJ found that Dishong's statements concerning the limitations of
her symptoms were not entirely credible. T17. And, the ALJ found that Dr.
Egger's opinion and Balcetis' opinion were inconsistent with the record. T18,
23. Instead, the ALJ credited Dr. Petrides' opinion, the opinions of the state
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agency consultants, and Alexis Rickert, a "short term disability benefit
specialist,"4 with respect to Dishong's mental condition. T19, 26; see T471.
The ALJ explained that she had "carefully considered" Balcetis' opinion
regarding Dishong's limitations, but said that "there are no treatment
records" to substantiate his opinion, and that the medical records "indicate
that the claimant's mood had stabilized and improved and was consistent
with the residual functional capacity determined in this decision." T23.
Likewise, the ALJ said she had "carefully considered" Dr. Egger's opinion,
but that "there are no treatment records" to substantiate his opinion, and
that the medical records were consistent with the RFC found by the ALJ.
T24. Dr. Petrides and Rickert were, the ALJ explained, "examining sources"
whose opinions were entitled to weight. T26.
STEPS FOUR AND FIVE
At step four, the claimant has the burden to prove that she lacks the
RFC to perform her past relevant work. Gonzales, 465 F.3d at 894; 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant can still do her past relevant work, she
will be found to be not disabled, otherwise, the analysis proceeds to step five.
At step five, the burden shifts to the Commissioner to prove, considering the
claimant's RFC, age, education, and work experience, that there are other
jobs in the national economy that the claimant can perform. Gonzales, 465
F.3d at 894; 20 C.F.R. § 404.1520(a)(4)(v).
The ALJ found that Dishong could perform her past relevant work.
T26. Alternatively, the ALJ found that Dishong could also perform other
The scope of Rickert's actual evaluation of Dishong is wholly unclear. That will be
discussed in more detail below.
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work that exists in significant numbers in the national economy. T27. So, the
ALJ found that Dishong was not disabled. T28. Dishong appeals.
STANDARD OF REVIEW
The Court reviews a denial of benefits by the Commissioner to
determine whether the denial is supported by substantial evidence on the
record as a whole. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing
42 U.S.C. § 405(g)). Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the
conclusion. Id. The Court must consider evidence that both supports and
detracts from the ALJ's decision, and will not reverse an administrative
decision simply because some evidence may support the opposite conclusion.
Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). 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. Id.
Dishong's primary argument is that the ALJ erred in not crediting the
opinions of her treating providers, which support a finding of disability. As a
result, Dishong argues, the ALJ's RFC findings were flawed and the
hypothetical posed to the VE was inaccurate. Instead, Dishong argues, the
ALJ should have credited the opinions proffered by her treating health care
providers—in particular, affording controlling weight to Dr. Egger's opinion—
and concluded that Dishong is disabled. The Court agrees.
The opinion of a treating medical source is given more weight because
those sources are likely to be the medical professionals most able to provide a
detailed, longitudinal picture of the claimant's impairments and may bring a
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unique perspective to the medical evidence that cannot be obtained from the
objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations. 20 C.F.R. §
404.1527(c)(2). When the treating physician's opinion is supported by proper
medical testing, and is not inconsistent with other substantial evidence in the
record, the ALJ must give the opinion controlling weight. See, id.; Anderson
v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012).
Even if the treating source's opinion is not given controlling weight, an
ALJ must apply certain factors—the length of the treatment relationship and
the frequency of examination, the nature and extent of the treatment
relationship, supportability of the opinion, consistency of the opinion with the
record as a whole, and the specialization of the treating source—in
determining what weight to give the opinion. See 20 C.F.R. 404.1527(c)(2); see
also Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). And the
ALJ must always give good reasons for the weight given the treating source's
opinion. 20 C.F.R. § 404.1527(c)(2); see also Anderson, 696 F.3d at 793.
Pursuant to that provision, a decision denying benefits "must contain specific
reasons for the weight given to the treating source's medical opinion,
supported by the evidence in the case record, and must be sufficiently specific
to make clear to any subsequent reviewers the weight the adjudicator gave to
the treating source's medical opinion and the reasons for that weight." SSR
96-2p, 61 Fed. Reg. 34490-01, 34492 (July 2, 1996); Wilson, 378 F.3d at 544.
There is no dispute that Dr. Egger was a treating source whose opinion
was entitled to deference. See 20 C.F.R. § 404.1502. The ALJ stated only that
Dr. Egger's opinion was given "less weight" because, according to the ALJ,
there were no treatment records "from Dr. Egger" to substantiate his opinion,
and the medical records were actually consistent with the ALJ's RFC
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determination. But the ALJ identified nothing particular in Dr. Egger's
treatment notes that is inconsistent with his opinion. The Court recognizes
that it reviews for substance over form: an arguable deficiency in opinionwriting technique does not require the Court to set aside an administrative
finding when that deficiency had no bearing on the outcome. Buckner v.
Astrue, 646 F.3d 549, 559 (8th Cir. 2011). And the Court also recognizes that
it is permissible for an ALJ to discount an opinion of a treating source that is
inconsistent with the source's clinical treatment notes. Davidson v. Astrue,
578 F.3d 838, 843 (8th Cir. 2009). But the Court does not view its standard of
review as requiring it to go blindly hunting through a claimant's medical
records looking for inconsistencies upon which the ALJ might have relied.
Nor does the ALJ's recitation of Dishong's medical history seem to
fairly characterize the available records, because the ALJ routinely omitted
mention of Dishong's manic, hypomanic, or depressive episodes. The ALJ's
summary of the medical history starts in 2005 with Dishong's initial
evaluation by Balcetis, then skips ahead to May 2011, when Dishong had
stabilized and improved. T17-18. The ALJ noted several of Crane's opinions
supporting Dishong's short-term disability claims, but found that "there are
no treatment records from Ms. Crane" to substantiate her opinion. T18. The
ALJ, however, did not address the progress notes from Crane during the
same period, and which describe a manic or hypomanic episode in August
and September 2011. See T315, 317, 319. That episode is also reflected in
Balcetis' records—but the ALJ's recitation of the record skips from Dishong's
sessions with Balcetis in May to her sessions in November, when she was
doing better. Compare T17-18 with T301-320. In other words, the ALJ simply
left out Dishong's regression in August and September.
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And that pattern continues. The ALJ noted that Dishong saw Balcetis
on January 18, 2012, and then skips to Dishong's session with Balcetis on
March 14. T18-19. This omits the "rocky progress" noted by Balcetis on
January 30, the regression noted by Balcetis on February 20, and Crane's
observation of a hypomanic mood on March 9. T286, 288, 291. The ALJ
proceeds to discuss Dishong's sessions with Balcetis on April 3 and Crane on
April 6, then jumps ahead to her sessions with Balcetis on May 1 and May
15. T19-20. The ALJ noted Balcetis' observation that Dishong's mood had
stabilized and improved, but did not note Balcetis' opinion that the
improvement was because Dishong was no longer working. T20. The ALJ
recited Dishong's sessions with Balcetis and Crane during May and June in
some detail, then her sessions with Balcetis in September and November,
when Balcetis felt Dishong was showing improvement. T21.
But the ALJ skipped from Dishong's sessions with Balcetis and Dr.
Egger in December 2012 to her session with Balcetis on February 5, 2013—
leaving out any mention of the regression noted on January 29. T21-22, 288.
The ALJ discussed Dishong's sessions with Balcetis in April and May, but
then jumped to June 28, leaving out the hypomanic episode and regression
noted on June 6. T22, 420. From there, the ALJ skips ahead to August 15,
when Balcetis noted improvement—but that omitted the consistent
regression noted on July 25, July 29, and August 8. T22, 412-414. The ALJ
next noted Balcetis' session with Dishong on November 21, when Balcetis
saw improvement—skipping past the depressive episode that caused
regression Balcetis noted on October 17 and November 7. T22, 424-425.
In other words, Dishong's medical history shows a pattern consistent
with a diagnosis of bipolar disorder—a cycle of improvement and regression—
but the ALJ's description of that history omits any mention of any of the
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records noting regression. It is difficult to credit the ALJ's decision to set
aside the opinion of a treating medical source as not supported by the
treatment records when (1) the ALJ did not identify any inconsistency, and
(2) the ALJ's conclusion that the treatment records support her RFC appears
to have been based on an unrepresentative selection of the evidence.
Nor does the ALJ's discussion of Dishong's day-to-day activities square
with the record. It is true, as the ALJ noted, that Dishong testified to a
number of daily activities such as getting her daughter to school, shopping for
groceries, doing housework, and visiting family and seeing her therapist. T25.
But Dishong also testified that she has difficulty completing some of those
tasks because of her medications, and that her condition sometimes precludes
them entirely. And Dishong's testimony that her mother and sister took care
of her daughter for days at a time during Dishong's depressive states wasn't
addressed in any way by the ALJ. Simply put, Dishong's actual evidence and
testimony does not support the ALJ's incomplete characterization of it. See
Leckenby v. Astrue, 487 F.3d 626, 634 (8th Cir. 2007). The Court would find it
easier to defer to the ALJ's findings of fact if her decision suggested that the
facts had been fully evaluated. But an incomplete description of a claimant's
activities is an unpersuasive basis for an ALJ's dismissal of a treating
source's opinion. See Tilley v. Astrue, 580 F.3d 675, 681 (8th Cir. 2009). The
ALJ's recitation of the facts in this case is precisely the sort of "truncated
discussion" that the Eighth Circuit has found insufficient to support an ALJ's
finding that a claimant's activities are inconsistent with a claim of disability.
See Reed, 399 F.3d at 922-23.
But more importantly, the Court finds nothing in Dishong's testimony
that is inconsistent with the opinions of Dishong's treating medical providers
regarding her limitations and ability to work. See Leckenby, 487 F.3d at 634.
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Dishong's ability to engage in some life activities, despite her bipolar
disorder, "does not mean she retained the ability to work as of the date last
insured." See Tilley, 580 F.3d at 681. The Eighth Circuit has, in fact, "oftexpressed skepticism about the probative value of evidence of day-to-day
activities," and has found it "necessary from time to time" to remind the
Commissioner "'that to find a claimant has the residual functional capacity to
perform a certain type of work, the claimant must have the ability to perform
the requisite acts day in and day out, in the sometimes competitive and
stressful conditions in which real people work in the real world.'" Reed, 399
F.3d at 923-24. The Eighth Circuit has "'repeatedly observed that "the ability
to do activities such as light housework and visiting with friends provides
little or no support for the finding that a claimant can perform full-time
competitive work."'" Id. at 923.
Simply put, this is not a case where the claimant's credibility is
undermined by activity that is inconsistent with her claimed limitations. E.g.
Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007). In point of fact,
Dishong's self-reported activities are wholly consistent with the nature of her
claimed limitations. Dishong's ability to function some of the time does not
contradict the evidence of her inability to function during manic, hypomanic,
or depressive episodes. And Dishong also said that even her routine day-today tasks suffered from time to time, which is consistent with the opinions of
her doctor and therapist that she could be expected to miss work several
times a month due to her limitations.
Other aspects of the ALJ's decision are also troublesome. The ALJ gave
"substantial weight" to the state agency consultants, and "great weight" to
Dr. Petrides, Balcetis, and Rickert. The ALJ's decision to afford "substantial
weight" to the state agency consultants is, the Court supposes, fair enough—
- 22 -
although, the Court notes, the opinions of non-treating practitioners who
have attempted to evaluate the claimant without examination do not
normally constitute substantial evidence on the record as a whole upon which
to base a denial of benefits. Shontos v. Barnhart, 328 F.3d 418, 417 (8th Cir.
2003). But the ALJ's decision to give "great weight" to Dr. Petrides' opinion is
perplexing. The ALJ described Dr. Petrides as "an acceptable medical source
and treating or examining source." T26. True, Dr. Petrides met with Dishong.
T487. But it appears from the record—and the Commissioner appears to
concede—that Dr. Petrides did not review Dishong's medical records.5 See
filing 14 at 15. This is particularly troubling given the episodic nature of
bipolar disorder, diagnosis of which depends on consideration of the patient's
history. See DSM-5 at 131-32. The Eighth Circuit has held that it is
appropriate to discredit the opinion of a medical source who did not review
some of the claimant's medical records. See, McCoy v. Astrue, 648 F.3d 605,
616 (8th Cir. 2011); Wildman v. Astrue, 596 F.3d 959, 967-68 (8th Cir. 2010).
Dr. Petrides reviewed none of them.
As a result, Dr. Petrides' actual diagnosis for Dishong's condition was
an "unspecified anxiety disorder" and "unspecified depressive disorder,
mild"—diagnoses that are at odds with all the other evidence in the record,
and that are contrary even to the ALJ's findings regarding Dishong's
impairments. T490. It is hard to see any justification for giving "great weight"
The parties dispute whether Social Security Administration rules required those records
to be provided. Compare filing 14 at 15-16 with filing 15 at 8-10. The Court is not convinced
it matters: in this instance, given Dishong's diagnosis, Dr. Petrides' failure to review the
records chronicling the course of her disease fatally undermines his credibility, regardless
of whether or not Social Security Administrative guidelines were followed.
- 23 -
to Dr. Petrides' opinion about Dishong's limitations while at the same time
disregarding the diagnosis upon which those limitations were founded.6
And what is further perplexing is the ALJ's decision to afford "great
weight" to the opinion of "Alexis Rickert, Short Term Disability Benefit
Specialist," who the ALJ characterized as an "examining source." There is no
evidence in the record that Rickert examined Dishong. There is nothing in
the record to establish what, if any, credentials Rickert may have had to
opine on Dishong's limitations. In fact, the only inference from the record the
Court can draw is that Rickert is, literally, an employee of Dishong's
disability insurance company.
Rickert appears in the record once, as the signatory to a March 8, 2012
letter to Dishong from Lincoln Financial Group, explaining to Dishong that
her claim for short-term disability benefits had been denied. T471. Rickert
signed the letter, "Alexis Rickert for Michael Mueller, Short Term Disability
Specialist, Lincoln National Life Insurance Company." T471. Mueller's name
appears several times in the record; he was a short-term benefit specialist for
Lincoln Financial Group, and signed several letters to Dishong approving,
extending, or requesting more information relating to Dishong's short-term
Nor is it even clear what Dr. Petrides concluded with respect to Dishong's limitations. On
the Social Security Administration's Form HA-1152 (Medical Source Statement of Ability to
Do Work-Related Activities (Mental)), Dr. Petrides selected "Yes" in response to the
question, "Is ability to interact appropriately with supervision, co-workers, and the public,
as well as respond to changes in the routine work setting, affected by impairments?" T492.
But Dr. Petrides did not complete the following section of the form identifying any
restrictions. T492. It is possible that Dr. Petrides did not understand the form. But the
omission means that despite the ALJ giving "great weight" to Dr. Petrides' opinion, the
form Dr. Petrides completed does not clearly support the ALJ's conclusions regarding
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disability claims. T472, 476, 480, 495. In other words, he was an insurance
claims adjuster. Rickert might have been an adjuster herself, but the way in
which she signed the letter that she sent—"Alexis Rickert for Michael
Mueller"—leaves that fact indeterminable. T471. There is no conceivable
justification for giving "great weight" to her "opinion."
There is yet another complicating factor: Balcetis' treatment notes—
and his opinion, as the health care provider who was clearly most familiar
with Dishong's case—are obviously very significant, but it is not clear what
weight the ALJ gave to them. At one point in her decision, the ALJ wrote
that she had carefully considered Balcetis' records and his January 17, 2014
opinion that Dishong was disabled, but that
there are no treatment records from Mr. Balcetis to substantiate
this opinion, and in fact, medical records from Mr. Balcetis
indicate that the claimant's mood had stabilized and improved
and was consistent with the residual functional capacity
determined in this decision. Therefore, Mr. Balcetis' statement
dated January 17, 2014, is afforded less weight because the
record as a whole supports the above residual functional capacity
T23. Later, however, the ALJ wrote that she had given "great weight" to
Balcetis' opinion and treatment records, because he was an examining source
whose "opinions or treatment records are entitled to weight[.]" T26. "These
assessments and conclusions are based on clinical findings," the ALJ wrote,
"are consistent with each other, and are consistent with other substantial
medical evidence of record." T26.
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It is not clear how to reconcile those statements. The Commissioner
dismisses the later attribution of "great weight" as a "typographical error."
Filing 14 at 14 n.4. It is not that simple. The Court recognizes that an
arguable deficiency in opinion writing that has no practical effect on an ALJ's
decision is not a sufficient reason to set that decision aside. See Welsh v.
Colvin, 765 F.3d 926, 929 (8th Cir. 2014). But it is not easy to find there was
no "practical effect" on the decision when the decision is ambiguous as to the
weight afforded the records and opinion of the claimant's principal health
care provider. It is even harder to meaningfully review an ALJ's decision
when the basis for the decision isn't clear to the parties or the Court.
"It is well-established that an agency's action must be upheld, if at all,
on the basis articulated by the agency itself." Motor Vehicle Mfrs. Ass'n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983). The Court
may not accept appellate counsel's post hoc rationalization for administrative
agency action. Id. It would not be meaningfully different to accept appellate
counsel's articulation of a basis for agency action that was not clearly
articulated by the agency in the first place.
One final puzzle in the ALJ's decision is a paragraph in which the ALJ
There are no opinions from treating or examining physicians that
indicate the claimant is disabled or has significant functional
limitations greater than those reflected above. Nor are there
recommendations that he limit his activities or seek further
treatment. The objective findings also fail to show the claimant's
symptoms are as limiting as he has alleged. His prescribed
medications provide adequate, if not total relief, when taken as
- 26 -
T26. But, of course, there is a treating physician's opinion that Dishong is
disabled, and that she seek further treatment, and no reasonable dispute
that her medications do not control her condition—and, obviously, Dishong is
a woman. The most charitable conclusion the Court can reach is that this
paragraph came from another case entirely, and was accidentally pasted into
the wrong decision. As with Dr. Petrides, Rickert, and Balcetis, it is obvious
that the ALJ made some sort of error—but whether that error was simply in
the drafting, or in the actual decision-making, is not something the Court can
readily determine. And at some point, those mistakes reach critical mass.
When there are significant deficiencies in the ALJ's reliance on each and
every one of the sources she identified as being given "great weight," then we
have passed that point.
The remaining question is whether the Court should remand this case
to the Social Security Administration for clarification, or whether the record
establishes Dishong's entitlement to benefits. The Court concludes that
Dishong is entitled to benefits, because there is not substantial evidence in
the record supporting the ALJ's decision not to afford controlling weight to
Dr. Egger's opinion.
The Court is aware that an ALJ may discount or even disregard the
opinion of a treating source where other medical assessments are supported
by better or more thorough medical evidence, or where a treating source
renders inconsistent opinions that undermine the credibility of such opinions.
Reed, 399 F.3d at 921; see Fentress v. Berryhill, No. 16-1933, 2017 WL
1450473, at *2 (8th Cir. Apr. 25, 2017). But the ALJ must give "controlling
weight" to a treating physician's opinion if it is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence. Papesh v. Colvin, 786 F.3d
- 27 -
1126, 1132 (8th Cir. 2015). And "not inconsistent" means that a wellsupported treating source medical opinion need not be supported directly by
all of the other evidence—that is, it does not have to be consistent with all the
other evidence—as long as there is no other substantial evidence in the case
record that contradicts or conflicts with the opinion. See id.
The ALJ did not identify any substantial evidence that contradicted or
conflicted with Dr. Egger's opinion, and the Court could not find any. The
closest that can be found are the several instances on which it was noted that
Dishong was improving or stable—but, given an established diagnosis of
severe bipolar I disorder, evidence that Dishong does better at some times
than others hardly "contradicts or conflicts" Dr. Egger's opinion. And even if a
treating physician's opinion is not entitled to controlling weight, it should not
ordinarily be disregarded and is entitled to substantial weight. Id. The ALJ
did not afford substantial weight to Dr. Egger's opinion, and the ALJ offered
no basis to give the opinion non-substantial weight. See id.
Nor is there substantial evidence supporting the ALJ's decision to
discount Balcetis' opinion. (Assuming, for the moment, that's what the ALJ
actually did.) Balcetis' opinion was not entitled to controlling weight, because
he was not an "acceptable" medical source—that is, he was not a licensed
physician or psychologist. See 20 C.F.R. § 404.1502(a). But he was still a
"medical source" who was an appropriate source of evidence regarding the
severity of Dishong's impairment, and the effect of the impairment on her
ability to work. Shontos, 328 F.3d at 426 (citing 20 C.F.R. § 404.1513(d)(1)).7
The Court is aware that several relevant regulations were amended effective March 27,
2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg.
5844-01 (Jan. 18, 2017). Those changes, as relevant, apply to claims filed on or after March
- 28 -
The amount of weight given to a medical opinion is to be
governed by a number of factors including the examining
specialization, and other factors. Generally, more weight is given
to opinions of sources who have treated a claimant, and to those
who are treating sources. 20 C.F.R. § 404.1527(d). The
regulations provide that the longer and more frequent the contact
between the treating source, the greater the weight will be given
the opinion: "When the treating source has seen you a number of
times and long enough to have obtained a longitudinal picture of
your impairment, we will give the source's opinion more weight
than we would give it if it were from a nontreating source." Id. at
Shontos, 328 F.3d at 426. And even where controlling weight is not given to a
treating source's opinion, it is weighed according to those factors. Id.
Here, Balcetis saw Dishong 75 times over the course of 24 months,
"which is more than adequate to provide a longitudinal picture of [her]
impairment." Id. Alegent Health Psychiatric Associates provided a "team
approach to mental health care," see id., and Dishong was treated by Balcetis
and Crane, then Balcetis and Dr. Egger. The opinions of Crane, Balcetis and
Egger "reflected clinical judgments of professionals who had interacted with
and observed [Dishong] over time. Their opinions and evaluations were based
on a longitudinal perspective of [Dishong]. The opinions of these three
27, 2017, see 20 C.F.R. § 404.1527 (2017), and the Court generally cites to the versions of
these regulations in effect at the time Dishong's claim was adjudicated.
- 29 -
treating mental health care providers were consistent." Id. Accordingly, the
ALJ's failure to afford controlling or great weight to those opinions was "not
borne out by the record." Id. The ALJ should have afforded great weight to
Balcetis' opinion of January 17, 2014, and controlling weight to Dr. Egger's
opinion of January 30.
Having reached that conclusion, it is unnecessary for the Court to
discuss Dishong's other arguments. Dr. Egger's opinion, when given
controlling weight, establishes the required level of severity under the
criteria contained in 20 C.F.R. Part 404, Subpart P, Appx. 1, §§ 12.04A and
12.06C.8 Thus, Dishong's impairment meets or equals a presumptively
disabling impairment, so the analysis stops at step three of the five-step
sequential analysis, and Dishong is entitled to benefits. See, Gonzales, 465
F.3d at 894; 20 C.F.R. § 404.1520(a)(4)(iii). In the alternative, the evidence is
uncontested that given an RFC based on Dr. Egger's opinion of Dishong's
limitations, particularly the days of work she would be expected to miss,
there is not a significant number of jobs in the national economy that
Dishong can perform. See, Gonzales, 465 F.3d at 894; 20 C.F.R. §
404.1520(a)(4)(v). So, even if the sequential analysis proceeds to step five,
Dishong is still entitled to benefits. The Court will therefore reverse the
Commissioner's decision and remand for an award of benefits. See Shontos,
328 F.3d at 427.
It is likely that Dr. Egger's opinion satisfies the Paragraph 'B' criteria as well, based on
his conclusions that Dishong had a "very limited ability to set shift & refocus on new data
or direction" and "cannot sustain attention, concentration or pace[.]" See 20 C.F.R. Part 404,
Subpart P, Appx. 1, § 12.04B.
- 30 -
The Court has reviewed the administrative record and finds that the
ALJ erred in not affording controlling weight to Dr. Egger's opinion. The
Court will reverse the Commissioner's decision and remand the case for an
award of benefits.
IT IS ORDERED:
The Clerk of the Court is directed to substitute Acting
Commissioner of Social Security Nancy A. Berryhill as the
The Commissioner's decision is reversed.
This matter is remanded to the Commissioner pursuant to
sentence four of 42 U.S.C. § 405(g) for calculation and
award of benefits.
A separate judgment will be entered.
Dated this 5th day of May, 2017.
BY THE COURT:
John M. Gerrard
United States District Judge
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