Dishong v. Colvin

Filing 22

MEMORANDUM AND ORDER - that the Commissioner's Motion to Alter or Amend Judgment (filing 18 ) is denied. Ordered by Judge John M. Gerrard. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KRISTINE M. DISHONG,
Plaintiff,

8:15-CV-399

vs.
MEMORANDUM AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.
This matter is before the Court on the Commissioner's Motion to Alter
or Amend Judgment (filing 18) pursuant to Fed. R. Civ. P. 59(e). The
Commissioner asks the Court to remand this case to her for further
proceedings, rather than ordering an award of benefits. The Commissioner's
motion will be denied.
The Court has broad discretion in determining whether to grant or
deny a motion to alter or amend judgment pursuant to Rule 59(e). United
States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 934 (8th Cir. 2006). Such
motions serve the limited function of correcting manifest errors of law or fact
or presenting newly discovered evidence. Id. They cannot be used to introduce
new evidence, tender new legal theories, or raise arguments which could have
been offered or raised prior to entry of judgment. Id.; see Exxon Shipping Co.
v. Baker, 554 U.S. 471, 485 n.5 (2008).
The order that the Commissioner asks to have amended—the Court's
Memorandum and Order of May 5, 2017 (filing 16)—sets forth the facts of the
case in substantial detail, most of which does not need to be revisited here.
Briefly summarized, the Court found that the ALJ erred in a number of

significant ways, most importantly in discounting the opinion of claimant
Kristine Dishong's treating doctor, Dr. Michael Egger. Filing 16 at 17-30. As
a result, the Court explained,
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. 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. 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. 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.
Filing 16 at 30 (citations and footnote omitted).
The Commissioner does not dispute the Court's findings of error, but
does take issue with the Court's conclusion that benefits should be
immediately awarded. See filing 19. The Commissioner's argument is
threefold: she argues that the Court erred in finding that (1) Dishong met the
criteria of § 12.04A, (2) Dishong met the criteria of § 12.06C, and (3) Dishong
could be expected to miss more than 5 days of work a month. Filing 19 at 3-7.
One point should be clarified at the outset: the Court did err in the
paragraph quoted above, but it is not the error the Commissioner thinks. It
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is, rather, a typographical error: the Court cited §§ 12.04A and 12.06C when
it meant to cite §§ 12.04A and 12.04C.1 That confusion is compounded by the
fact that the Social Security Administration has, by the Court's count,
promulgated 20 different versions of Subpart P, App'x 1 since Dishong's
alleged date of disability.2 So, in order to be clear, the Court will further
explain its conclusion.
The Commissioner argues that the evidence does not support an
immediate finding of disability under § 12.04. Filing 19 at 3-5. The
Commissioner points to the proposition that an immediate finding of
disability should be entered "only if the record overwhelmingly supports such
a finding." Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000) (quotation
omitted). And, the Commissioner argues,
The question of whether Plaintiff met these technical, specific
requirements [of § 12.04A], including a manifestation of the full
symptomatic picture, is one that requires further administrative
fact-finding and evaluation. What qualifies as a full symptomatic
picture of both manic and depressive syndromes is a decision

1

The Court does not, therefore, need to discuss the Commissioner's argument with respect

to § 12.06C—while the Court understands why the Commissioner made it, § 12.06C was not
a basis for the Court's decision.
2

The Eighth Circuit has applied the version of Social Security administrative regulations

in effect at the time of the administrative hearing. Maresh v. Barnhart, 438 F.3d 897, 899
n.1 (8th Cir. 2006); see generally Brady v. Heckler, 724 F.2d 914, 918-19 (11th Cir. 1984); cf.
Criger v. Becton, 902 F.2d 1348, 1350-55 (8th Cir. 1990). But when the question is whether
the case should be remanded for further administrative proceedings, the Court finds it
appropriate to consider both the regulations in effect at the time of the hearing under
review and the regulations presently in force.

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requiring a medical evaluation and is beyond the capacity of a
layman.
Filing 19 at 4.
True enough—but, the Court has a medical evaluation, from Dr. Egger.
And the "specific, technical" requirements of § 12.04A are effectively identical
to the diagnostic criteria for bipolar disorder. As the Commissioner
acknowledges, Dr. Egger diagnosed "296.53": the DSM code for Bipolar I
Disorder, most recent episode depressed, severe. See, Am. Psychiatric Ass'n,
Diagnostic and Statistical Manual of Mental Disorders 126 (5th ed. 2013)
[hereinafter "DSM-5"]; Am. Psychiatric Ass'n, Diagnostic and Statistical
Manual of Mental Disorders 319 (4th ed. 1994) [hereinafter "DSM-IV"]. The
requirements set forth in the version of § 12.04A in effect at the time of the
ALJ's decision mirror the diagnostic criteria of the DSM-IV. Compare §
12.04A (effective Feb. 26, 2014 to Dec. 8, 2014) with DSM-IV at 327, 332, 335,
357. And the current requirements of § 12.04A mirror the diagnostic criteria
of the DSM-5. Compare § 12.04A with DSM-5 at 124, 126. In other words, Dr.
Egger's diagnosis—which, it should be remembered, is entitled to controlling
weight—necessarily meets the Paragraph A criteria.
Under the current regulations, a presumptively disabling impairment
under § 12.04—the listing for "Depressive, bipolar and related disorders"—is
satisfied by meeting § 12.04A and either § 12.04B or § 12.04C. And under the
current regulations, § 12.04C requires a "serious and persistent" mental
disorder: medically documented history of the disorder over a period of at
least 2 years, and evidence of both (1) ongoing medical treatment that
diminishes the signs and symptoms of the disorder and (2) minimal capacity
to adapt to changes in environment or demands not already part of daily life.
In this case, Dishong's medical history, and the records of her ongoing
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medical treatment, are clear. And Dr. Egger's opinion is clear about
Dishong's "very limited ability to set shift & refocus on new data or
direction." T458.
Under the regulations in effect at the time of the administrative
hearing, a presumptively disabling impairment under § 12.04—the listing for
"Affective Disorders"—is satisfied by meeting both § 12.04A and § 12.04B, or
meeting § 12.04C. And § 12.04C required
[m]edically documented history of a chronic affective disorder of
at least 2 years' duration that has caused more than a minimal
limitation of ability to do basic work activities, with symptoms or
signs currently attenuated by medication or psychosocial support,
and one of the following:
1. Repeated episodes of decompensation, each of extended
duration; or
2. A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or
change in the environment would be predicted to cause the
individual to decompensate; or
3. Current history of 1 or more years' inability to function outside
a highly supportive living arrangement, with an indication of
continued need for such an arrangement.
While Dishong is capable of living independently, her medical records are
clear on the history of her disorder and its limitation on her ability to work,
along with repeated episodes of decompensation of extended duration.

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Episodes of decompensation are exacerbations or temporary
increases in symptoms or signs accompanied by a loss of adaptive
functioning, as manifested by difficulties in performing activities
of daily living, maintaining social relationships, or maintaining
concentration, persistence, or pace. Episodes of decompensation
may be demonstrated by an exacerbation in symptoms or signs
that would ordinarily require increased treatment or a less
stressful situation (or a combination of the two). Episodes of
decompensation may be inferred from medical records showing
significant alteration in medication; or documentation of the need
for a more structured psychological support system (e.g.,
hospitalizations, placement in a halfway house, or a highly
structured

and

directing

household);

or

other

relevant

information in the record about the existence, severity, and
duration of the episode.
§ 12.00(C)(4) (effective Feb. 26, 2014 to Dec. 8, 2014). Repeated episodes of
decompensation, each of extended duration, means three episodes within 1
year, or an average of once every 4 months, each lasting for at least 2
weeks. Id. And the records show three episodes of decompensation in the
year prior to the administrative hearing, in June, July, and October 2013.
T412-14, 420, 424-25.
But finally, the Commissioner also disputes the Court's alternative
conclusion that even if the five-step sequential analysis proceeds to step five,
Dishong is still entitled to benefits.3 The Commissioner argues that "Dr.

3

The Commissioner has not reasserted her claim that Dishong was, at step four, capable of

performing her past relevant work, and Dr. Egger's opinion precludes such a finding.

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Egger was not specific, nor did Plaintiff's representative ask him to be
specific, about why Plaintiff would miss five or more days [of work] a month."
Filing 19 at 6. But Dr. Egger's opinion was entitled to controlling weight, and
was sufficient to meet her burden to establish her residual functional
capacity. See Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016). That
opinion established that Dishong was unemployable, and the Commissioner
did not meet her burden to produce evidence showing otherwise. See id.
The Commissioner also contends that "[a]s a corollary, the vocational
expert stated that the percentage of impairment that Dr. Egger proposed in
work-related categories did not indicate disability." Filing 19 at 7. That
contention is not consistent with the record. When asked about one of the
work-related limitations about which Dr. Egger opined, the vocational expert
said that such a person would still be employable. Compare T69-70 with
T456-57. But when asked about all the limitations, the vocational expert said
that the person would not be able to sustain employment. Compare T70 with
T456. In other words, according to the vocational expert, a person with the
limitations ascribed to Dishong by Dr. Egger would be unemployable because
of

absenteeism,

and—independently—also

unemployable

because

of

limitations on her sustained concentration and memory.
In sum, while reversal and remand for an immediate award of benefits
is only appropriate where the record overwhelmingly supports a finding of
disability, the Court finds that "the clear weight of the evidence fully
supports a determination [Dishong] is disabled within the meaning of the
Social Security Act." See Pate-Fires v. Astrue, 564 F.3d 935, 947 (8th Cir.
2009). More importantly, the Eighth Circuit has repeatedly approved of
immediately awarding benefits based upon the controlling weight of a
claimant's treating medical provider. See, id.; Shontos v. Barnhart, 328 F.3d

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418, 427 (8th Cir. 2003); Cunningham v. Apfel, 222 F.3d 496, 503 (8th Cir.
2000); Singh v. Apfel, 222 F.3d 448, 453 (8th Cir. 2000); cf. Papesh v. Colvin,
786 F.3d 1126, 1135-36 (8th Cir. 2015). And where further hearings would
merely delay receipt of benefits, an order granting benefits is appropriate.
Hutsell v. Massanari, 259 F.3d 707, 714 (8th Cir. 2001).
IT IS ORDERED that the Commissioner's Motion to Alter or
Amend Judgment (filing 18) is denied.
Dated this 18th day of July, 2017.
BY THE COURT:

John M. Gerrard
United States District Judge

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