Dauer v. Berryhill

Filing 18

ORDER granting 14 Motion to Reverse. Signed by Chief Judge Jeffrey L. Viken on 9/26/18. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 17-5027-JLV

DEBRA D., 1
Plaintiff,

ORDER

vs.
NANCY A. BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.
INTRODUCTION

Plaintiff Debra D. filed a complaint appealing the final decision of Nancy
A. Berryhill, the Acting Secretary of the Social Security Administration, finding
her not disabled. (Docket 1). The Commissioner denies plaintiff is entitled to
benefits. (Docket 6). The court issued a briefing schedule requiring the
parties to file a joint statement of material facts (“JSMF”). (Docket 8). The
parties filed their JSMF. (Docket 11). For the reasons stated below, plaintiff’s
motion to reverse the decision of the Commissioner is granted.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 11) is incorporated by reference. Further
recitation of salient facts is incorporated in the discussion section of this order.

The Administrative Office of the Judiciary suggested the court be more
mindful of protecting from public access the private information in Social
Security opinions and orders. For that reason, the Western Division of the
District of South Dakota will use the first name and last initial of every nongovernmental person mentioned in the opinion. This includes the names of
non-governmental parties appearing in case captions.
1

On February 10, 2014, plaintiff Debra D. filed an application for disability
insurance benefits (“DIB”). Id. ¶ 1. She was insured for DIB coverage
purposes through December 30, 2019. Id. She alleged an onset of disability
date of January 1, 2014. Id. On April 6, 2016, an administrative law judge
(“ALJ”) issued a decision finding Debra D. was not disabled. Id. ¶ 4; see also
Administrative Record at pp. 12-26 (hereinafter “AR at p. ____”). The Appeals
Council denied Debra D.’s request for review and affirmed the ALJ’s decision.
(Docket 11 ¶ 13). The ALJ’s decision constitutes the final decision of the
Commissioner of the Social Security Administration. It is from this decision
which Debra D. timely appeals.
The issue before the court is whether the ALJ’s decision of April 6, 2016,
that Debra D. “has not been under a disability within the meaning of the Social
Security Act from January 1, 2014, through [April 6, 2016]” is supported by
substantial evidence in the record as a whole. (AR at p. 12); see also Howard
v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001) (“By statute, the findings of
the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive.”) (internal quotation marks and brackets omitted)
(citing 42 U.S.C. § 405(g)).
STANDARD OF REVIEW
The Commissioner’s findings must be upheld if they are supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006); Howard, 255 F.3d at 580. The
court reviews the Commissioner’s decision to determine if an error of law was
2

committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).
“Substantial evidence is less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal
citation and quotation marks omitted).
The review of a decision to deny benefits is “more than an examination of
the record for the existence of substantial evidence in support of the
Commissioner’s decision . . . [the court must also] take into account whatever
in the record fairly detracts from that decision.” Reed v. Barnhart, 399 F.3d
917, 920 (8th Cir. 2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th
Cir. 2001)).
It is not the role of the court to re-weigh the evidence and, even if this
court would decide the case differently, it cannot reverse the Commissioner’s
decision if that decision is supported by good reason and is based on
substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.
2005). A reviewing court may not reverse the Commissioner’s decision
“ ‘merely because substantial evidence would have supported an opposite
decision.’ ” Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54 F.3d 484,
486 (8th Cir. 1995)). Issues of law are reviewed de novo with deference given
to the Commissioner’s construction of the Social Security Act. See Smith,
982 F.2d at 311.

3

The Social Security Administration established a five-step sequential
evaluation process for determining whether an individual is disabled and
entitled to DIB under Title II. 20 CFR § 404.1520(a). If the ALJ determines a
claimant is not disabled at any step of the process, the evaluation does not
proceed to the next step as the claimant is not disabled. Id. The five-step
sequential evaluation process is:
(1) whether the claimant is presently engaged in a “substantial
gainful activity”; (2) whether the claimant has a severe impairment—
one that significantly limits the claimant’s physical or mental ability
to perform basic work activities; (3) whether the claimant has an
impairment that meets or equals a presumptively disabling
impairment listed in the regulations (if so, the claimant is disabled
without regard to age, education, and work experience); (4) whether
the claimant has the residual functional capacity to perform . . . past
relevant work; and (5) if the claimant cannot perform the past work,
the burden shifts to the Commissioner to prove there are other jobs
in the national economy the claimant can perform.
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). The ALJ applied the
five-step sequential evaluation required by the Social Security Administration
regulations. (AR at pp. 25-26).
STEP ONE
At step one, the ALJ determined plaintiff had “not [been] engaged in
substantial gainful activity since January 1, 2014, the alleged onset date.”
(AR at p. 14).
STEP TWO
At step two, the ALJ must decide whether the claimant has a medically
determinable impairment that is severe or a combination of impairments that
4

are severe. 20 CFR § 404.1520(c). A medically determinable impairment can
only be established by an acceptable medical source. 20 CFR § 404.1513(a).
Accepted medical sources include, among others, licensed physicians. Id. “It
is the claimant’s burden to establish that [her] impairment or combination of
impairments are severe.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
The regulations describe “severe impairment” in the negative. “An
impairment or combination of impairments is not severe if it does not
significantly limit your physical or mental ability to do basic work activities.”
20 CFR § 404.1521(a). An impairment is not severe, however, if it “amounts to
only a slight abnormality that would not significantly limit the claimant’s
physical or mental ability to do basic work activities.” Kirby, 500 F.3d at 707.
Thus, a severe impairment is one which significantly limits a claimant’s
physical or mental ability to do basic work activities.
The ALJ identified Debra D. suffered from the following severe
impairment: “Short-bowel syndrome, degenerative joint disease of the knees,
[and] repeated meniscal derangement status post arthroscopic partial medial
meniscectomies.” (Docket 11 ¶ 6). Plaintiff does not challenge this finding.
(Dockets 14 & 19).
STEP THREE
At step three, the ALJ determines whether claimant’s impairment or
combination of impairments meets or medically equals the criteria of an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (“Appendix 1”).
5

20 CFR §§ 404.1520(d), 404.1525, and 404.1526. If a claimant’s impairment
or combination of impairments meets or medically equals the criteria for one of
the impairments listed and meets the duration requirement of 20 CFR
§ 404.1509, the claimant is considered disabled. At that point the
Commissioner “acknowledges [the impairment or combination of impairments]
are so severe as to preclude substantial gainful activity. . . . [and] the claimant
is conclusively presumed to be disabled.” Bowen v. Yuckert, 482 U.S. 137,
141 (1987). A claimant has the burden of proving an impairment or
combination of impairments meet or equals a listing within Appendix 1.
Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). If not covered by
these criteria, the analysis is not over, and the ALJ proceeds to the next step.
At this step the ALJ determined plaintiff’s severe impairments did not
meet or equal a listing under Appendix 1. (Docket 11 ¶ 9). Plaintiff does not
challenge this finding. (Dockets 14 & 19).
STEP FOUR
Before considering step four of the evaluation process, the ALJ is
required to determine a claimant’s residual functional capacity (“RFC”).
20 CFR § 404.1520(e). RFC is a claimant’s ability to do physical and mental
work activities on a sustained basis despite any limitations from her
impairments. 20 CFR §§ 404.1545(a)(1). In making this finding, the ALJ
must consider all the claimant’s impairments, including those which are not
severe. 20 CFR § 404.1545(e). All the relevant medical and non-medical

6

evidence in the record must be considered. 20 CFR §§ 404.1520(e) and
404.1545.
“The ALJ should determine a claimant’s RFC based on all the relevant
evidence, including the medical records, observations of treating physicians
and others, and an individual’s own description of [her] limitations.” Lacroix
v. Barnhart, 465 F.3d 881, 887 (8th Cir. 2006) (quoting Strongson v. Barnhart,
361 F.3d 1066, 1070 (8th Cir. 2004)); see also Cox v. Astrue, 495 F.3d 614,
619 (8th Cir. 2007) (because RFC is a medical question, the ALJ’s decision
must be supported by some medical evidence of a claimant’s ability to function
in the workplace, but the ALJ may consider non-medical evidence as well);
Guilliams, 393 F.3d at 803 (“RFC is a medical question, and an ALJ’s finding
must be supported by some medical evidence.”). The ALJ “still ‘bears the
primary responsibility for assessing a claimant’s residual functional capacity
based on all relevant evidence.’ ” Id. (citing Roberts v. Apfel, 222 F.3d 466,
469 (8th Cir. 2000)).
“In determining RFC, the ALJ must consider the effects of the
combination of both physical and mental impairments.” Stormo v. Barnhart,
377 F.3d 801, 807 (8th Cir. 2004) (citing Baldwin v. Barnhart, 349 F.3d 549,
556 (8th Cir. 2003)). As stated earlier in this discussion, a severe impairment
is one which significantly limits an individual’s physical or mental ability to do
basic work activities. 20 CFR § 404.1521(a).

7

Relevant to this appeal, the ALJ determined Debra D. retained the RFC
to perform “light work.” 2 (Docket 11 ¶ 10). Plaintiff challenges this finding.
(Docket 14). She argues “[t]he ALJ’s RFC does not include Plaintiff’s need to
take extra breaks to use the bathroom and does not recognize her need to
reduce stress and her expected absences due to necessary emergency room
visits and hospitalizations.” Id. at p. 21. Plaintiff contends these special
circumstances “are supported by the overwhelming consistent evidence from
her doctors, her testimony and third party observations.” Id. Second, Debra
D. argues the RFC is not valid because the “ALJ’s credibility determination is
not supported by substantial evidence.” Id. (capitalization and bold omitted).
The court addresses these challenges in reverse order.
1.

IS THE ALJ’S CREDIBILITY DETERMINATION
SUPPORTED BY THE SUBSTANTIAL EVIDENCE?

Addressing Debra D.’s credibility, the ALJ found:
[T]he claimant’s medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms;
however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely
consistent with the evidence for the reasons explained in this
decision. Here, the claimant has described daily activities and
exhibited behavior that is inconsistent with the claimant’s
allegations of disabling symptoms and limitations. Additionally,
“Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though
the weight lifted may be very little, a job is in this category when it requires a
good deal of walking or standing, or when it involves sitting most of the time
with some pushing and pulling of arm or leg controls. To be considered
capable of performing a full or wide range of light work, you must have the
ability to do substantially all of these activities.” 20 CFR § 404.1567(b).
2

8

the objective medical records do not completely corroborate her
statements and allegations regarding her impairments and resultant
limitations.
(AR at pp. 17-18). Stated another way, the ALJ found:
[Debra D.’s] impairments could be reasonably expected to cause
physical symptoms described above, such as abdominal pain,
tenderness, and discomfort [and] chronic diarrhea . . . . However,
the intensity, persistence and limiting effects of these symptoms, as
shown in claimant’s reported of [sic] daily activities, indicate a
greater functionality than alleged. The claimant testified that she
was working part-time, crocheted, read, watched television, and
helped care for her daughter. Despite the claimant’s symptoms,
the claimant reported that she worked regularly, helped run
errands, had few problems maintaining personal care, did not need
special reminders to take medication, prepared simple meals, did
laundry, washed dishes, ironed clothes, could go out alone, drove a
car, shopped in stores, talked with friends on the computer, went to
church, and had no problems following instructions . . . . Moreover,
the objective medical records indicate that the claimant showed no
acute distress . . . and non-distended abdomen, and intact bowel
sounds.
(AR at pp. 21-22).
Plaintiff argues “[t]he ALJ’s credibility analysis ignores the very essence
of Plaintiff’s disability.” (Docket 14 at p. 24). Debra D. contends “[s]he made
heroic efforts to remaining working despite her severe medical impairments.
The ALJ’s analysis of [her] credibility provides little to no support for the
finding that she can perform full-time competitive work.” Id. As part of her
credibility challenge, plaintiff argues the ALJ failed to give proper consideration
to the third-party statements, the opinions of her medical care providers and
her two therapists. Id. at pp. 25-27.

9

Principal to plaintiff’s credibility challenge is the fact that she suffers
from severe short bowel syndrome. See AR at p. 14. The syndrome is
generally defined as follows:
Short bowel syndrome is a group of problems related to poor
absorption of nutrients. . . . Short bowel syndrome usually occurs
in those who have had at least half of their small intestine removed
and sometimes all or part of their large intestine removed; significant
damage of the small intestine; and/or poor motility, or movement,
inside the intestines. . . . Short bowel syndrome may be mild,
moderate, or severe, depending on how well the small intestine is
working.
(Docket 11 ¶ 7).
While the ALJ addressed many of Debra D.’s medical encounters, the
ALJ did not acknowledge all of them and entirely failed to mention the course
of treatments provided, including the administration of prescription drugs.
Because Debra D. claimed her onset of disability date at January 1, 2014, the
ALJ did not consider any of her 2013 medical records. The court finds those
records are critical to the analysis of Debra D.’s credibility because those
historic records set up a major change in her condition beginning in 2014.
For clarity of the analysis of the ALJ’s decision, the court will place in bold
print the dates of medical care in 2014 and 2015 and prescription drugs not
mentioned by the ALJ. The court also includes Debra D.’s sessions with her
two therapists in this chronology as they will be discussed later in this order.

10

2004-2012
Following a laparoscopic cholecystectomy, Debra D. experienced
complications and in 2004 required surgery involving the removal of five and
one-half feet of her small intestine and her entire colon. Id. ¶¶ 21 & 29. Over
the course of the next several years, Debra D. encountered difficulties with her
condition. Id. ¶ 29. Her medical records note that she suffered abdominal
pain and chronic diarrhea. (AR at pp. 704, 707, 710, 714, 717, 727). These
conditions were generally treated and controlled with prescription medication.
Id. at pp. 707, 711-12, 715-20, 722-28, 732, 741 and 746. A treating medical
provider charted that she suffered episodes of fecal incontinence, both during
the day at work and at night. Id. at pp. 710. Her associated depression was
treated with Cymbalta 3 and Wellbutrin, 4 which failed from time-to-time to
relieve her condition. Id. at pp. 714, 716-17, 723 and 729. She was in
psychotherapy with Dr. Stephan M., a Rapid City, South Dakota, psychiatrist,
and his clinical staff. (Docket 11 ¶ 158). In February 2006, Loyal T., M.D.,
Ph.D., recommended Debra D. discuss her stress and coping issues with Dr.

“Cymbalta (duloxetine) is a selective serotonin and norepinephrine
reuptake inhibitor antidepressant (SSNRI). Duloxetine affects chemicals in the
brain that may be unbalanced in people with depression. Cymbalta is used to
treat major depressive disorder in adults. It is also used to treat general
anxiety disorder in adults . . . .” https://www.drugs.com/cymbalta.html.
3

“Wellbutrin (bupropion) is an antidepressant medication used to treat
major depressive disorder and seasonal affective disorder.”
https://www.drugs.com/wellbutrin.html.
4

11

Stephan M. (AR at p. 720). Dr. Loyal T. agreed to write plaintiff’s work
supervisor to encourage stress reduction measures at work. Id.
2013
On May 11, 2013, Debra D. was admitted to the Rapid City Regional
Hospital through the emergency room because of a sudden onset of abdominal
pain which developed while she was at work driving a trolley in Deadwood,
South Dakota. (Docket 11 ¶ 30; see also AR at p. 422). A CT scan disclosed
a small bowel anastomosis 5 and questionable partial obstruction and a
significant amount of liquid stool throughout the length of her colon. (Docket
11 ¶ 30). She remained in the hospital for three days. Id.
Eleven days later, on May 25, 2013, Debra D. was seen at the Rapid City
Regional Hospital emergency room complaining of diffuse abdominal pain with
bloating and chronic diarrhea. Id. ¶ 31. On examination, the physician
charted her abdomen as “diffuse, soft and tender.” (AR at p. 441). Her
discharge assessment that night was “abdominal pain.” Id. at p. 443.
At about 1:30 a.m. on October 21, 2013, Debra D. went to the Rapid City
Regional Hospital emergency room with complaints of diffuse abdominal pain
and nausea. (Docket 11 ¶ 32; see also 453). A abdominal CT scan disclosed

“An anastomosis is a surgical connection between two structures. . . .
For example, when part of an intestine is surgically removed, the two
remaining ends are sewn or stapled together (anastomosed). The procedure is
known as an intestinal anastomosis.”
https://medlineplus.gov/ency/article/002231.htm.
5

12

no evidence of any obstruction, but she had distention of the right and
transverse colon with fluid and air. (Docket 11 ¶ 32). The discharge
impression was charted as diffuse abdominal pain and proximal colonic
distention without signs of bowel obstruction. Id.
That day Debra D. began a relationship with Catholic Social Services
(“CSS”) for counseling to help deal with her chronic medical problems.
(Docket 11 ¶ 60). Her intake evaluation was performed by Holly T. 6 Id. ¶ 61.
Among other presenting concerns, Debra D. reported experiencing persistent
anxiety, constant fatigue, some difficulty concentrating, some irritability,
insomnia and stomach pain. Id. She described sleeping six to seven hours a
night, but waking up three to four times a night resulting in constant fatigue.
Id. Debra D. was working a five-day a week job and a second, two-day a week
job. Id. The mental status examination charted by Holly T. noted Debra D.
presented with unremarkable appearance and behaviors, normal thoughts and
thought content, normal cognition and perceptions. Id. Holly T.’s clinical
impression was depression due to short bowel syndrome. Id. The therapist
recommended Debra D. participate in further counseling to address her issues.
Id.

Holly T. has a Masters in Social Work (“MSW”), is a Certified Social
Worker (“CSW”), a Clinical Depression Certified Therapist (“CDCT”) and a
licensed Qualified Mental Health Professional (“QMHP”). (Docket 11 ¶ 61).
6

13

On November 18, 2013, Debra D. had an annual physical at Regional
Health Physicians. Id. ¶ 33. Certified Nurse Practitioner (“CNP”) Rhonda E.
charted Debra D.’s mood as anxious and depressed. Id. While the remainder
of the examination was normal, CNP Rhonda E. charted short bowel syndrome
and depressive disorder. Id.
Debra D. saw Holly T. on December 17, 2013. Id. ¶ 62. Debra D.
reported experiencing a bad episode, not otherwise detailed, while shopping
with her daughter, which required her to go home. Id. Debra D. indicated
waking up several times a night and being unable to get back asleep right
away. Id. The therapist’s notes indicated Debra D. was going to try to reduce
her stress by walking regularly and would be decreasing her work hours at the
Northern Hills Training Center on January 1, 2014. Id. Holly T. suggested
decreasing her number of work hours to help decrease her stress level. Id.
On the evening of December 18, 2013, Debra D. went to the Sturgis
Regional Hospital emergency room with complaints of vomiting and diarrhea.
Id. ¶ 34; see also AR at p. 388. She reported passing gas and feeling like she
may have a bowel obstruction. (Docket 11 ¶ 34). Blood testing disclosed

14

her potassium was low 7 and her ALK PHOS 8 was high. Id. The discharge
assessment that night was gastroenteritis. Id.
2014
On January 14, 2014, Debra D. saw Dr. Gary D. because of abdominal
pain which started on December 17, 2013. Id. ¶ 35. An abdominal x-ray
disclosed distal colonic constipation with air fluid levels in the right colon. Id.
A physical examination charted Debra D.’s abdomen as mildly distended, with
both left and right lower quadrant tenderness. Id. Her chart recorded that
she was anxious. Id. The doctor charted that she was taking Perphenazine-

“Low potassium (hypokalemia) has many causes. The most common
cause is excessive potassium loss in urine due to prescription medications that
increase urination. . . . Vomiting, diarrhea or both also can result in excessive
potassium loss from the digestive tract. Occasionally, low potassium is
caused by not getting enough potassium in your diet.” (Docket 11 at p. 11
n.1).
7

ALK PHOS (An Alkaline Phosphatase (ALP) test measures the amount of
the enzyme ALP in the blood. A test for alkaline phosphatase (ALP) is done to:
check for liver disease or damage to the liver. Symptoms of liver disease can
include jaundice, belly pain, nausea, and vomiting; check bone problems
(sometimes found on X-rays), such as rickets, bone tumors, Paget’s disease, or
too much of the hormone that controls bone growth (parathyroid hormone).”
(Docket 11 at p. 11 n.2).
8“

15

Amitriptyline 9 and Wellbutrin. (AR at p. 402). Dr. Gary D. prescribed
Bentyl 10 and Perphenazine-Amitriptyline. Id. at p. 403.
On January 28, 2014, Debra D. met with Holly T. Id. ¶ 63. Debra D.
reported that reducing her work hours decreased some of her stress. Id. The
mental status examination charted by Holly T. showed Debra D. had normal
mood, thought, behavior, speech, affect, appearance and no suicidal ideation.
Id.
On February 2, 2014, Debra D. returned to the emergency room at Rapid
City Regional Hospital with worsening severe diffuse abdominal pain and
intractable watery diarrhea. Id. ¶ 36. Her ALK PHOS was charted as high.
Id. The physical examination noted moderately diffuse abdominal tenderness.
Id. Her condition was treated with Morphine, IV fluids and she was released
in stable condition. Id.; see also AR at p. 465. The discharge assessment was
abdominal pain with resolved pain. (Docket 11 ¶ 36; see also AR at
p. 462).

Perphenazine-Amitriptyline are antidepressants which “affect chemicals
in the brain that may be unbalanced in people with depression or mental
illness. Amitriptyline and perphenazine is a combination medicine used to
treat depression, anxiety, and agitation.”
https://www.drugs.com/mtm/amitriptyline-and-perphenazine.html.
9

Bentyl (dicyclomine) “is used to treat a certain type of intestinal
problem called irritable bowel syndrome. It helps to reduce the symptoms of
stomach and intestinal cramping. This medication works by slowing the
natural movements of the gut and by relaxing the muscles in the stomach and
intestines.” https://www.webmd.com/drugs/2/drug-5245/bentyloral/details.
10

16

On March 13, 2014, Debra D. had a session with Holly T. Id. ¶ 64.
Debra D. reported suicidal ideation, but she did not want to leave her family
and friends. Id. She indicated being off work because of flu issues, but she
was planning to return to work the next week. Id. Holly T. charted that she
would look for an appropriate support group for Debra D. Id.
On March 18, 2014, Debra D. went to see Holly T. Id. ¶ 65. Present
during that counselling session were four other counselors and Dr. Stephen M.
Id. Debra D.’s presenting issue was depression. Id. While not suicidal,
Debra D. was tired of living the way she was. Id. She reported not sleeping
well, waking up frequently, being constantly tired, her appetite was okay, but
she was experiencing stomach cramps constantly. Id. Debra D. further
reported she did not find pleasure in activities and was worried all the time.
Id. The clinical diagnosis was depression disorder due to short bowel
syndrome with depressive features. Id. Debra D. was encouraged to
“maintain [a] relationship with [her] gastroanologist [sic].” (AR at p. 531).
Debra D. met with Holly T. on April 8, 2014. Id. ¶ 67. Debra D.
reported she had just taken a trip to Arizona. Id. During the trip, she slept
well one night, but the other nights she was afraid of having incontinent
accidents. Id. Even with reduced work hours, Debra D. indicated she
continued to struggle. Id. Holly T. recommended a website which has
information about people with short bowel syndrome. (AR at p. 529). That
same day, on CSS’s stationary, Holly T. wrote a “To Whom It May Concern”
17

letter. Id. ¶ 66; see also AR at p. 484. After summarizing Debra D.’s therapy
record, Holly T. stated:
It is of my professional opinion that Debra’s diagnosis of Short Bowel
syndrome has had a great impact on her personal life, preventing
her from being able to do the things she likes to do, and her
capability to work where she has had to decrease a number of hours
that she is able to work because of being ill.
Id.
On April 17, 2014, Debra D. saw CNP Rhonda E. at Regional Health
Physicians. Id. ¶ 37. Her complaints included sluggishness, fatigue,
decreased appetite, shortness of breath, continuing watery diarrhea and short
bowel syndrome. Id. Debra D. reported this current episode started after she
ate nachos. Id. She was given a note to limit her work to two days per week
on a permanent basis due to chronic illness. Id. The note included the
following explanation: “due to her Short Bowel Syndrome she continues to have
bouts of diarrhea that make it hard to perform her duties at work.” Id.
On June 17, 2015, Debra D. saw Holly T. Id. ¶ 68. Debra D. reported
she had been denied disability. Id. She was stressed and reported making a
couple of mistakes at work, which upset her more. Id. Debra D. was very
anxious and stated she did not know if she could continue living the way she
was. Id. She was scheduled to see a new doctor on July 17 and was hoping
he would be responsive to her needs. Id.
On June 24, 2014, Debra D. met with Holly T. Id. ¶ 69. She was
charted as being depressed and worried. Id. Debra D. reported being unable
18

to eat at work because of her concern that she would have to go to the
bathroom many times. Id.

Holly T. discussed how stress plays a part of

physical health, recommended Debra D. cut back on work hours, and referred
her to a psychiatrist at Behavior Management Systems. Id.
On June 25, 2014, Debra D. reported to the Sturgis Regional Hospital
emergency room with complaints of abdominal pain. Id. ¶ 38; see also AR at
p. 609. Her chart noted she was visibly crying and had “moderate . . .
distress.” (AR at pp. 611 & 614). The attending physician ordered IV fluids.
Id. at p. 612. Debra D. was encouraged to see her regular physician as a
follow-up of her current condition and she was discharged with Prilosec. 11 Id.
at p. 615.
Debra D. established a new patient relationship with Dr. Richard K. of
Regional Health Physicians on July 17, 2014. (Docket 11 ¶ 39). The chart
noted Debra D.’s prior care with Dr. Loyal T. and CNP Rhonda E. of the same
clinic. (AR at p. 510). Dr. Richard K.’s examination charted a normal
abdomen with normal bowel sounds. (Docket 11 ¶ 39). His assessment was
short bowel syndrome for which he prescribed Bentyl. (AR at p. 513). Dr.
Richard K. charted that Debra D. had chronic problems for which he had no
solution. (Docket 11 ¶ 39). He recommended she use Bentyl more regularly
“Prilosec (omeprazole) is a proton pump inhibitor that decreases the
amount of acid produced in the stomach.”
https://www.drugs.com/prilosec.html.
11

19

and if it was not providing relief, he would recommend putting her on a low
dose of Hydrocodone. Id. He also prescribed Perphenazine-Amitriptyline.
(AR at p. 513).
That same day, Debra D. met with Holly T. Id. ¶ 70. Her chart
indicates she was agitated, speech pressured and she had not been sleeping
well. Id. They discussed the role stress played in her work and Holly T.
suggested Debra D. keep a journal of activities during the day to see if there
was a pattern. Id. She was encouraged to take care of her health and
personal wellbeing first. Id.
Five days later, on July 22, 2014, Debra D. was seen at the Rapid City
Regional Hospital emergency room. Id. ¶ 40; see also AR at pp. 492-98.
Upon admission, she reported chronic diarrhea with chronic abdominal pain
for which prescription medication had not worked. (Docket 11 ¶ 40). On
physical examination, the nurse charted Debra D.’s abdomen was “Epigastric,
Tender [Left], Normal Bowel Sounds, Tender [Right], Soft And Tender Upper.”
(AR at p. 494). Saline and intravenous Morphine were administered. Id.
During this session, the nursing staff noted Debra D. was “passing flatus and
stool.” Id. Dr. Patrick T.’s discharge impressions were:
1.
2.
3.
4.
5.

acute upper abdominal pain[;]
chronic upper abdominal pain[;]
chronic short gut syndrome[;]
multiple abdominal surgeries[; and]
chronic diarrhea.

Id. at p. 495.
20

On July 24, 2014, Debra D. was seen by Dr. Charles B. at the Regional
Health Physicians Clinic. (Docket 11 ¶ 41; see also AR at p. 506). On
physical examination, the doctor charted her abdomen was “distended and
epigastric tenderness and soft. Bowel sounds/auscultation; normal.” (AR at
p. 509) (bold and capitalization omitted). The doctor charted her mood, affect,
judgment, memory, and speech as normal and she was cooperative. (Docket
11 ¶ 41). Dr. Charles B. recommended she follow up with Dr. Richard K. on
an as needed basis. (AR at p. 509).
On August 12, 2014, Debra D. met with Holly T. (Docket 11 ¶ 71).
Debra D. appeared anxious and indicated being pretty stressed at work. Id.
She reported her work supervisor was not very supportive when Debra D. had
to go home because of illness. Id. Holly T. charted:
[Debra D.] has not had the energy or desire to do anything.
Processed struggles with work and not feeling well. Anxiety seems
to be constant along with depression and not feeling like she wants
to do anything.
Id.; see also AR at p. 526.
On September 17, 2014, Debra D. was seen at the Sturgis Regional
Hospital emergency room. (Docket 11 ¶ 42; see also AR at pp. 627-33). Her
complaints were generalized abdominal pain which had been increasing since
early morning, with diarrhea the day before. Id. at p. 627. The physical
examination charted her abdomen as distended, tender and with hyperactive
bowel. Id. at p. 629. The nursing staff charted that Debra D. was crying and
21

she was under moderate severe distress. Id. Fentanyl 12 was administered
which reduced her pain. Id. at p. 632. Upon discharge, Debra D. was given
Hydrocodone to assist her in continuing to reduce pain. Id.
The next day, Debra D. saw Dr. Richard K. (Docket 11 ¶ 43). During
his physical examination the doctor charted her abdomen was normal, except
for “very minimal tenderness of the upper abdomen.” (AR at p. 566)
(capitalization and bold omitted). The doctor’s assessment included
“depressive disorder” and “short bowel syndrome.” Id. (capitalization and bold
omitted).
On September 25, 2014, Debra D. was seen by Dr. Richard K. (AR at
pp. 568-70. Upon physical examination, the doctor charted her abdomen was
normal, except for “mild diffuse tenderness.” Id. at p. 568 (bold omitted).
During the discussion with his patient, Dr. Richard K. charted “[f]or her short
bowel syndrome and chronic intermittent abdominal pain, we are going to try
her on some narcotics 13 for this. She is fully aware that this is not a longterm treatment plan, but if we can do it where every other month she needs a
day or two of narcotics to try and keep her out of the emergency room it is
certainly appropriate.” Id. He encouraged her to seek “a higher level of care,

“Fentanyl is an opioid medication . . . used to prevent pain . . . .”
https://www.drugs.com/search.php?searchterm=fentanyl.
12

Debra D. was prescribed Hydrocodone with Acetaminophen. (AR at
p. 568).
13

22

i.e. Mayo Clinic, etc. for further evaluation of her short bowel syndrome and
her chronic abdominal pain.” Id.
On October 6, 2014, Debra D. saw Dr. Richard K. for continuing
complaints of abdominal pain and nausea. (Docket 11 ¶ 44). She reported
an acute abdominal episode which had been going on for the past day and onehalf. Id. Debra D. reported using Bentyl but without success. Id. Because
of her condition, Debra D. said she had been unable to sleep the night before
and had to take yesterday off from work. Id. Again, Dr. Richard K.
encouraged her to been seen at the Mayo Clinic. Id.
On December 13, 2014, Debra D. was seen at the Sturgis Regional
Hospital emergency room. Id. ¶ 46; see also AR at p. 637. She reported
severe abdominal pain with diarrhea all day. Id. The chart noted Debra D.
was anxious and experiencing severe distress. (AR at p. 639). Because of her
condition, the nursing staff was unable to obtain IV access. Id. at p. 642.
Fentanyl was injected intramuscularly and she was given Bentyl orally. Id.
After Debra D. was stabilized, she was discharged. Id.
On the late afternoon of December 17, 2014, Debra D. went to the Rapid
City Regional Hospital emergency room. (Docket 11 ¶ 47). She complained of
abdominal pain starting two days earlier. (AR at pp. 650 & 657). Although
her abdomen appeared normal, an abdominal CT scan disclosed “finding
consistent with diarrhea.” Id. at pp. 651-52. She was admitted to the
hospital “for further IV fluids, pain medications and bowel rest.” Id. at p. 652.
23

Emergency room physician Dr. John H. noted the following clinical
impressions:
1.
2.
3.
4.
5.

abdominal pain[;]
acute pancreatitis[;]
dehydration[;]
metabolic acidosis[; and]
hypokalemia[.]

Id.
Upon admission to the hospital on December 17, the nursing staff
charted her condition with “abdominal pain for three days, recurrent, no acute
abdomen, abdominal/pelvic CT with no evidence of acute abdomen or small
bowel obstruction[;] diarrhea—chronic[;] mild pancreatitis[;] hypokalemia—
metabolic acidosis[;] status post multiple abdominal surgeries including small
bowel resection partial.” Id. at p. 659 (capitalization and numbering omitted).
The attending physician, Dr. Margaret D., prescribed Hydrocodone with
Acetaminophen, Bentyl, and a number of over-the-counter medications at
discharge on December 20, 2014. Id. at p. 662.
2015
On January 6, 2015, Debra D. saw Dr. Richard K. (Docket 11 ¶ 49).
Her complaint was another “episode of . . . abdominal pain.” (AR at p. 584).
She reported that since being released from the hospital she had good days and
bad days with intermittent abdominal discomfort. (Docket 11 ¶ 49). The
doctor noted in the history and physical section of her chart that “[s]he always
has diarrhea due to her chronic bowel syndrome. . . . The diarrhea really does
24

not change much from her baseline. These all appear to be intermittent in
nature and she has found no triggering factor.” (AR at p. 584). The doctor’s
physical examination showed a normal abdomen, except for “epigastric
tenderness, [left lower quadrant] tenderness and [right lower quadrant]
tenderness.” Id. at p. 587 (bold omitted). The doctor charted that “today . . .
she appears to be in more pain and discomfort.” Id. at p. 588. Because of
her condition, Dr. Richard K. ordered “a 24-hour urine for 5-HIA serotonin, do
a gastrin level and tryplase.” 14 Id.
On April 6, 2015, Dr. Richard K. directed Debra D. to go to the Sturgis
Regional Hospital emergency room. (Docket 11 ¶ 50). Her chart noted she
was “crying, in obvious distress.” (AR at p. 793). Upon examination, her
abdomen was charted as “[s]oft. She is mildly uncomfortable to palpation in
all quadrants. There is no guarding, no rebound. Her bowel sounds are
positive.” Id. Dr. Michael H. prescribed Fentanyl and Bentyl. Id. at
p. 794. She was “discharged in stable condition.” Id.
On April 13, 2015, Debra D. returned to the Sturgis Regional Hospital
emergency room. (Docket 11 ¶ 51; see also AR at p. 804). She presented with
abdominal pain and diarrhea. (Docket 11 ¶ 51). An abdominal CT disclosed
her colon was moderately distended. Id. She was given IV fluids, Morphine,

Tryplase (Pancreatin) “is a combination of digestive enzymes (proteins).
These enzymes . . . are important for digesting fats, proteins, and sugars.”
https://www.drugs.com/search.php?searchterm=pancreatin.
14

25

Zofran, 15 and Fentanyl. Id.; see also AR at p. 804. The emergency room
physician directed she be admitted to the Rapid City Regional Hospital. Id.
Debra D. was driven to the Rapid City Regional Hospital by her granddaughter.
(Docket 11 ¶ 51).
At the Rapid City Regional Hospital, Debra D. was seen by Dr. Richard K.
(AR at p. 678). The physical examination charted a mildly diffused abdomen.
(Docket 11 ¶ 52). An abdominal CT disclosed considerable gas in the colon.
Id. Debra D. was admitted for pain control and prescribed Norco, 16 Zofran
and IV fluids. Id.; see also AR at p. 685. A colonoscopy was performed.
(Docket 11 ¶ 53). The clinical impression was “moderate colonic spasm.” Id.
Debra D. remained in the hospital for three days and was discharged on April
17, 2015. Id.
On April 24, 2015, Debra D. had a follow-up appointment at the
Spearfish clinic. Id. ¶ 54; see also AR at p. 887. Dr. Richard K. charted she
appeared to be doing well, except his psychiatric examination noted she had
poor insight. (Docket 11 ¶ 54). His clinical assessment included abdominal
pain, unspecified site, irritable bowel syndrome, anxiety state, unspecified,
depressive disorder, not elsewhere classified, and short bowel syndrome. Id.

“Zofran is used to prevent nausea and vomiting . . . .”
www.drugs.com/search.php?searchterm=zofran.
15

Norco is a combination of hydrocodone and acetaminophen “used to
relieve moderate to moderately severe pain.” www.drugs.com/norco.html.
16

26

Dr. Richard K. concluded her irritable bowel syndrome and short bowel
syndrome probably flared up because of stress. Id.; see also AR at p. 892.
While Debra D. was requesting she be released from work for two months, the
doctor was not comfortable releasing her for that extended period. Id.
However, Dr. Richard K. was not opposed to her counselor making that type of
recommendation if appropriate. Id.
On April 29, 2015, on CSS’s letterhead, Debra D.’s new therapist, Cathy
L., wrote a “To Whom It May Concern” letter. Id. ¶ 72. The letter contained
the following:
This letter is in regards to my client, Debra [D.]. I have been seeing
Debra for outpatient mental health therapy since February 2015.
She saw a different therapist from CSS since October 2013. Debra
has been diagnosed with short bowel syndrome by her medical
doctors, which produces pain on a nearly daily basis, and she
experiences frequent diarrhea. It is common that stress can
exacerbate physical illness, and Debra has noticed that her
symptom severity increases when stress increases.
For this
reason, I recommend that Debra take a 2 month leave of absence
from her work at Northern Hills Training Center in order to allow her
symptoms to subside and for her body to heal. This will also allow
her time for her mind to relax as well, and with mind-body
connection, perhaps she would be able to return to work in much
better overall health.
Id.; see also AR at p. 703. 17

The parties identify this therapist as “Kathy,” but the record identifies
her as “Cathy.” (AR at p. 703). Cathy L. has a Masters in Social Work (“MS”),
is a licensed professional counselor in mental health (“LPC-MH”), a QMHP, an
ACT [unknown acronym] and is an outpatient therapist and clinical supervisor
at CSS. (Docket 11 ¶ 72; see also AR at p. 703).
17

27

Debra D. met with Cathy L. on May 28, 2015. (Docket 11 ¶ 73). Other
than being sick the first week of being off from work, Debra D. felt she was
feeling great physically and mentally and happy like she used to feel. Id. She
was still working in her trolley job two days a week and was considering adding
more shifts in the summer, but wanted to wait and see how things were going.
They discussed her suicide risk factors, protective factors and formulated a
suicide prevention plan. Id. Debra D. reported having been recently
prescribed Cymbalta for depression and Hydrocodone for pain. Cathy L.
reported her patient’s condition greatly improved since initiating treatment.
Id. Scheduling of the next session was left up to Debra D. (AR at p. 771).
On July 2, 2015, Debra D. went to the Sturgis Regional Hospital
emergency room. Id. ¶ 55; see also AR at p. 845. Her complaint was chronic
recurring abdominal pain. (Docket 11 ¶ 55). The physical examination
charted a diffusely, mildly uncomfortable abdomen. Id. An x-ray disclosed a
fairly large stool in her colon, despite Debra D.’s explanation that she had three
bowel movements the previous day. Id. Debra D. was given Fentanyl and
Bentyl which reduced but did not resolve her pain. (AR at p. 46). Dr.
Michael H. recommended a stool softener and prescribed Hyoscyamine 18 and
instructed Debra D. to use it when she felt pain coming on. Id.

Hyoscyamine is used to treat stomach and bowel problems. (Docket 11
¶ 55) (referencing www.drugs.com/cdi/hyoscyamine.html).
18

28

On August 27, 2015, Debra D. was seen at the Rapid City Regional
Medical Clinic. Id.¶ 56; see also AR at p. 915. Debra D. was concerned about
a possible kidney infection. (Docket 11 ¶ 56). The urinary analysis was
negative, but she did have ureterolithiasis. 19 Id.; see also AR at p. 915.
Debra D. was given Toradol 20 and her pain diminished. (AR at p. 919).
On October 14, 2015, Debra D. presented at the Rapid City Regional
Hospital emergency room with complaints of severe pain which began 36 hours
earlier. (Docket 11 ¶ 57). She complained of nausea and diarrhea and
described her pain as severe. Id. All laboratory tests and a CT were negative.
Id. Dr. Brook E.’s clinical impressions were:
1.
2.
3.
4.
5.
6.

acute nonspecific diffuse abdominal pain[;]
short gut syndrome[;]
history of pancreatitis[;]
history of small bowel obstruction[;]
nausea[; and]
diarrheal illness[.]

(AR at pp. 932-33). “After [the administration of] fluids and pain medications,
. . .” Debra D. was “discharged with continue symptomatic treatment and
outpatient followup [sic].” Id. at p. 932.

Ureterolithiasis indicates the presence of calculus, kidney stones, in the
ureters. https://medical-dictionary.thefreedictionary.com/ureterolithiasis.
19

“Toradol . . . is a nonsteroidal anti-inflammatory drug . . . . [And] is
used short-term (5 days or less) to treat moderate to severe pain.”
https://www.drugs.com/toradol.html.
20

29

On October 28, 2015, Debra D. was seen at the Rapid City Regional
Hospital emergency room. (Docket 11 ¶ 58). It was reported that while at her
daughter’s home, Debra D. became confused and had slurred speech. Id.
She was found on the bathroom floor completely confused and globally weak.
Id. This episode was not observed by any family member. Id. In the
emergency room, her physical examination showed normal bowel sounds,
diffusely tender abdomen with no rebound or guarding and her back was
nontender. Id. Her gait upon presentation was normal. Id. A head CT was
negative and an abdominal CT disclosed a moderate amount of stool
throughout her colon, suggestive of constipation, but nothing acute. Id.
Debra D. was admitted to the hospital for further treatment and
observation. Id. ¶ 59. Upon admission, her assessment included acute
altered mental status, acute severe dehydration, acute constipation, chronic
reactive airway disease, chronic coronary artery disease, chronic short bowel
syndrome and chronic depression. Id.; see also AR at pp. 946-47.
Intravenous fluids were administered and Debra D. felt better. (AR at p. 956).
With a history of hypoglycemic events, she and the physician discussed
strategies to prevent a reoccurrence. Id.
Against this complete medical history, the ALJ disingenuously concludes
the medical records do not support the severity of Debra D.’s complaints:
[S]he was working part-time, crocheted, read, watched television,
and helped care for her daughter.
Despite the claimant’s
symptoms, the claimant reported that she worked regularly, helped
30

run errands, had few problems maintaining personal care, did not
need special reminders to take medication, prepared simple meals,
did laundry, washed dishes, ironed clothes, could go out alone,
drove a car, shopped in stores, talked with friends on the computer,
went to church, and had no problems following instructions.
Id. at pp. 21-22.
Debra D. described in detail the consequences of her fecal incontinence.
(Docket 11 ¶ V(A)(130)). She wears adult briefs and pads, elastic pants or
skirts and slip on shoes so she can get to a bathroom quickly, hoping not to
have an accident. Id. ¶¶ 143 & 164. There are times when fecal matter
comes out of the legs and out the back of her Depends pad because she
excretes so much fecal matter at one time. Id. ¶ 164. She carries a bag with
extra underwear, shorts and an air freshener. Id. ¶ 146.
Because her fecal incontinence worsened in 2014, Debra D. and her
supervisor at the Northern Hills Training Center agreed to reduce her from five
shifts to two shifts per week. Id. ¶ 130. Her absences from work continued
at a couple days a month, about every three months, and sometimes she would
be gone for a week at a time during hospitalizations. Id. These absences
would cause problems at work because Debra D.’s co-workers were covering for
her and there was a lot of work she could not do. Id. ¶ 131-32. At the Center
there were three bathrooms which made it easier for Debra D. to get to a
bathroom on short notice. Id. ¶ 140. If she had an episode of fecal
incontinence, Debra D. would take a quick shower and change clothes. Id.

31

¶ 141. Even with significant accommodations, Debra D. was not able to
continue working at the Center. Id. ¶ 133.
During this same period, Debra D. was driving a trolley for the City of
Deadwood, South Dakota, working two four-hour shifts a week. Id. ¶ 136.
Debra D. testified that at every trolley stop she would need to go into the
casinos and use the bathrooms. Id. ¶ 137. Even then, sometimes she would
not make it to the bathroom in time, so she began carrying a change of clothes.
Id.
Contrary to the ALJ’s ruling, the objective medical records support a
definitive conclusion that Debra D. suffered intermittent, chronic abdominal
bowel distress and pain, resulting in diarrhea and uncontrollable fecal
incontinence. In this record, there is no suggestion that Debra D. is a
malinger or drug-seeker, but rather an individual observed by not just one but
many qualified physicians and medical care providers to be in chronic, severe
pain. Her pain frequently required narcotic medications such as Morphine,
Fentanyl, Narco, Hydrocodone, Hydrocodone with Acetaminophen and a
nonsteroidal anti-inflammatory drug, Toradol, as well as Bentyl, PerphenazineAmitriptyline, Zofran and Hyoscyamine to address her physical conditions and
Cymbalta or Wellbutrin to combat her resulting stress and depression. With
these diagnoses and based on the medical records identified above, the
objective medical evidence supports the level of severity asserted by Debra D.

32

The ALJ’s declaration that “the objective medical records do not
completely corroborate her statements and allegations regarding her
impairments and resultant limitations” sets too high a bar. (AR at p. 18)
(emphasis added). There not need be complete corroboration between a
claimant’s medical records and her testimony. “The ALJ may not disregard
subjective evidence concerning pain merely because it was not fully
corroborated by the objective evidence.” Smith v. Schweiker, 728 F.2d 1158,
1163 (8th Cir. 1984).
The ALJ gave “no significant weight” to either of Debra D.’s therapists
because they are “not an acceptable medical source under . . . . 20 C.F.R.
§ 404.1513.” (AR at p. 22). The ALJ states Holly T. “does not set out how the
claimant’s condition, physical or mental, specifically impacts the claimant’s
functionality or ability to work, such as indicating that the claimant could only
understand simple instructions. . . . [And Cathy L.] is not qualified to assess
ramifications of alleged mental impairments on a physical condition or to opine
on the cause or duration of a physical impairment.” Id.
Social Security Ruling (“SSR”) 06-03p instructs an ALJ when considering
the opinions and evidence from sources which are not acceptable medical
sources. This category of medical source witnesses includes “nurse
practitioners, physician assistants, licensed clinical social workers,
naturopaths, chiropractors, audiologists, and therapists . . . .” SSR 06-03p,
2006 WL 2263437 (August 9, 2006). Within this ruling, non-medical source
33

witnesses include “siblings, other relatives, friends, neighbors, clergy, and
employers.” Id. “[I]nformation from such ‘other sources’ may be based on
special knowledge of the individual and may provide insight into the severity of
the impairment(s) and how it affects the individual’s ability to function.” Id.
The ALJ missed the point of the therapists’ records. While they may not
have articulated the concerns focused on by the ALJ, the therapists provide
significant evidence supporting Debra D.’s credibility. Both therapists
considered Debra D.’s depression an element intertwined with her short bowel
syndrome and fecal incontinence. Their concern for her chronic condition
provides support to, and does not detract from, Debra D.’s subjective
complaints of pain. With their specialized education and knowledge of Debra
D.’s condition, Holly T. and Cathy L. provide “insight into the severity of” Debra
D.’s impairments and how they “affect[] [her] ability to function.” Id.
The same holds true for the statements of Darcy B., Kathy W., Kym S.
and Vicki O. The ALJ gave only lip service to SSR 16.03p by assigning little
weight to these statements “because of its [sic] high degree of subjectivity, and
its [sic] lack of medically acceptable standards.” (AR at p. 22).
A review of these statements discloses they are not highly subjective, but
articulate events and actions which objectively support Debra D.’s testimony
that pain and fecal incontinence significantly impair her ability to work an 8to-5 job. These third-party statements also provide character support to
Debra D.’s credibility.
34

Co-worker Darcy B. submitted a four-page statement about her
relationship with Debra D. (Docket 11 ¶ III(C)(10-21)). Darcy B. was a senior
staff member of the Northern Hills Training Center. Id. ¶ 11. Darcy B. and
Debra D. were charged with assisting eight mentally disabled and physically
handicapped residents. Id. They assisted with morning routines, showers,
medications distribution, and two meals per shift. Id. In addition, they did
cleaning, vacuuming, shampooing carpets, laundry and other household tasks.
Id. ¶ 12. Darcy B. stated Debra D. was open and honest about her health
conditions. Id. ¶ 13. In the beginning, her condition was not significant
because Debra D. only needed to make a few random trips to the bathroom
throughout the day. Id. She confided in Darcy B. about always being in pain,
but Darcy B. stated Debra D. always tried to keep working and do her fair
share of the workload. Id. Darcy B. described Debra D. as always being an
honest, hardworking individual who tried not to complain. Id. ¶ 15. As the
months went by, things deteriorated and during the last three to four months
when Darcy B. came to work she could tell Debra D. had been crying. Id.
¶ 16. Darcy B. reported although Debra D. tried to stay and work, she was
not physically able to do the things required during their daily routine. Id.
Debra D.’s pain increased as did her trips to the bathroom. Id. ¶ 17. Debra
D. never asked for any special treatment and always tried to do her best at her
job. Id. ¶ 18. Darcy B.’s workload steadily increased because of Debra D.’s

35

inability to work and to compensate for her lack of energy, strength and
constant, excruciating pain. Id. ¶ 19.
Long-time friend Kym S. submitted a third-party statement. (Docket
11 ¶ III(A)(1-3). She has known Debra D. since 2006 and has always been
aware of her medical conditions. Id. ¶ 2. Kym S. states:
Every time we get together, we always have at least 2 days of her
medical problems coming up. She wakes up feeling not so good,
followed by numerous trips to the bathroom, sometimes staying in
there most of the day. If she is in Sturgis, she changes clothes
many times because of the inability to make it to the bathroom.
When she has visited me in Arizona, we have had to make trips to
the clothing store to buy clothes, wipes, and incontinence products,
etc. just to get thru the episode. Also we have had to cancel many
site seeing trips due to her unpreventable illness, as she is almost
bed/couch [bound] until it passes. We have had to even put her in
the hospital usually overnight, so that they can help manage it.
This has always been so bad and I have never figured out how she
manages to work or hold a job. It seems that over the passing years
it has continued to get worse and/or more episodes. I truly believe
that Deb [D.] is an individual who needs disability.
Id. ¶ 3.
Another long-time friend Kathy W. submitted a third-party statement.
Id. ¶ III(B)(1-9). She has been a friend of Debra D. since 1997. Id. ¶ 1.
Kathy W. considers herself a close friend and confidant. Id. ¶ 2. After Debra
D. had her surgery, she began to have problems with her bowels. Their weekly
meetings diminished and ultimately stopped because of her embarrassment.
Id. ¶ 4. Kathy W. and Debra D. still met once a week at her house, Kathy W.’s
house or at a restaurant. Debra D. excused herself frequently to use the
bathroom. Id. ¶ 5. Kathy W. reported that Debra D. canceled many events at
36

the last minute, including special occasions, due to pain or blockage caused by
her short bowel syndrome. Id. Debra D. also turns down invitations by
Kathy W. to accompany her on trips because of the problems associated with
her condition. Id. ¶ 9.
Debra D.’s daughter, Vicki O., submitted a third-party statement. Id.
¶¶ III(D)(1-8). She observed her mother must go to the restroom on a
moment’s notice and her stamina is almost non-existent. Id. ¶ 2. Her mother
is constantly getting up during the night to go to the bathroom and she does
not sleep well. Id. ¶ 5. Sometimes her mother is in such pain that Vicki O.
must remind her take her medications. Id.
Vicki O. states her mother does not do much with her grandchildren
because she is in pain and everything takes too long. Id. ¶ 7. Her mother
used to do a lot of sewing, crocheting and reading, but now just watches
television and lies in bed. Id. She goes to church regularly, visits on the
telephone and spends some time on the computer. Id.
Vicki O. observes her mother has a hard time completing tasks because
she must stop to use the bathroom. Id. ¶ 8. Her mother is now
confrontational and grouchy with others and avoids anyone who is not family.
Id. Debra D. has a hard time with concentration, sometimes has a hard time
understanding, must have things repeated and does not handle stress well.
Id.

37

If these relationships were a valid basis for rejecting their testimony, the
regulations would specifically direct an ALJ to disregard the statements and
observations of these individuals. “To the contrary, the regulations encourage
an ALJ to seek the testimony of family members [and others] because they have
the most frequent contact and exposure to the claimant’s physical and mental
impairments. . . . Consideration of third party statements must be considered
when an ALJ is evaluating a claimant’s pain.” Dillon v. Colvin, 210 F. Supp.
3d 1198, 1207 (D.S.D. 2016) (citing 20 CFR §§ 404.1512(b)(1)(iii),
404.1513(d)(4) and § 404.1529(a); see also SSR 16.03p).
The failure of the ALJ to give due consideration to the testimony of these
witnesses is contrary to the regulations. 20 CFR §§ 404.512(b)(1)(iii),
404.1513(d)(4), and 404.1529(a). The ALJ’s conclusion to give this testimony
little or no weight is not supported by substantial evidence and the ALJ did not
provide good reasons for discounting this testimony. Id.
The court concludes there are no inconsistencies in the record that
justify finding Debra D. not credible. The evidence supporting Debra D.’s
credibility “fairly detracts from [the Commissioner’s] decision.” Reed, 399 F.3d
at 920 (quoting Haley, 258 F.3d at 747); Morse v. Shalala, 32 F.3d 1228, 1229
(8th Cir. 1994). When examined in detail, the records support rather than
contradict the testimony of Debra D. Dukes v. Barnhart, 436 F.3d 923, 928
(8th Cir. 2006); Guilliams, 393 F.3d at 801-02.

38

2.

IS THE RFC SUPPORTED BY SUBSTANTIAL
EVIDENCE?

The ALJ found Debra D. retained the RFC to perform light work. (AR at
p. 16). In support of this conclusion, the ALJ relied on the opinions of two
state agency medical consultants.
These opinions are based on a thorough review of the available
medication records and a comprehensive understanding of agency
rules and regulations. The undersigned finds these opinions are
internally consistent and well supported by a reasonable
explanation and the available [record]. As such, the undersigned
affords these opinions significant weight.
Id. at p. 23.
Plaintiff objects to this finding, asserting “[t]he ALJ’s RFC does not
include Plaintiff’s need to take extra breaks to use the bathroom and does not
recognize her need to reduce stress and her expected absences due to
necessary emergency room visits and hospitalizations.” (Docket 14 at p. 21).
She argues “[a]ll of which are supported by the overwhelming consistent
evidence from her doctors, her testimony and third party observations.
Accordingly, the ALJ’s RFC is not supported by substantial evidence in this
record.” Id.
The Commissioner counters plaintiff’s argument contending that “while
Plaintiff subjectively reported needing extra bathroom breaks, she has not
pointed to any objective evidence supporting this allegation.” (Docket 15 at
p. 7). The Commissioner submits plaintiff’s allegations are not supported
because “her treatment providers did not impose any restrictions or indicate
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the need for job accommodations in their treatment notes.” Id. For that
reason, the Commissioner concludes “Plaintiff failed to prove additional
limitations beyond those the ALJ accounted for in . . . [the] RFC finding.” Id.
at p. 8.
In her reply brief plaintiff argues:
There is no question in this record that Plaintiff suffers from chronic,
unpredictable diarrhea.
It’s repeatedly noted throughout her
medical records and supported by objective medical evidence . . . .
In addition to the overwhelming objective medical evidence
supporting the fact she has chronic unpredictable diarrhea,
Plaintiff’s co-worker’s and friend’s statements support her
‘subjective’ need to use the restroom.
(Docket 16 at pp. 2-3). Plaintiff submits “[a]ll of this evidence overwhelming[ly]
supports Plaintiff’s need for extra bathroom breaks. None of it was properly
considered by the ALJ in her credibility analysis or her RFC with respect to
need for extra breaks.” Id. at p. 3.
The ALJ’s reliance on the two state agency consultants is misplaced.
Neither one of them mentioned the decisions of Debra D.’s treating physicians
to administer prescription drugs for her pain and the fact that even then her
severe abdominal pain and chronic diarrhea never fully disappeared. See AR
at pp. 76-86 & 88-100. It is apparent from the record that these consultants’
opinions were not based on a thorough recognition of the record. Opinions
without consideration of these records “fairly detracts from [the] decision” of
the ALJ to adopt their opinions. Reed, 399 F.3d at 920. The ALJ erred, both
factually and as a matter of law, by choosing to give substantial weight to the
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opinions of the consulting physicians. 20 CFR § 404.1527(c)(2); Choate,
457 F.3d at 869; House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007); Dolph v.
Barnhart, 308 F.3d 876, 878-79 (8th Cir. 2002). The Commissioner’s findings
on this issue are not supported by the substantial evidence in the records as a
whole. 42 U.S.C. § 405(g); Choate, 457 F.3d at 869.
“It [is] the ALJ’s responsibility to determine [a claimant’s] RFC based on
all the relevant evidence, including medical records, observations of treating
physicians and others, and [the claimant’s] own description of [her] limitations.”
Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995) (emphasis added) (citing
20 CFR §§ 404.1545-46). The decision of the ALJ to discount Debra D.’s
description of her physical limitations and their impact on her activities of daily
living affect the step four analysis in establishing a RFC. In addition, the
refusal of the ALJ to consider Vicki O.’s description of her mother’s activities of
daily living impact the step four analysis of establishing RFC for Debra D.
The court finds the Commissioner’s argument is without merit. The
court already concluded the ALJ’s credibility determination was not supported
by substantial evidence and that Debra D. was credible. The conditions
experienced by Debra D. are conditions commonly expected to wax and wane.
It is not unexpected for an individual with these conditions to appear and act
healthy, while at other times to suffer from the extreme, debilitating problems
these physical and mental conditions cause. See Nowling v. Colvin, 813 F.3d
1110, 1123 (8th Cir. 2016) (“the ALJ improperly accorded great weight to
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[those] statements . . . indicating that Nowling demonstrated ‘improvement’
without acknowledging that Nowling’s symptoms waxed and waned throughout
the substantial period of treatment [and] without acknowledging the
unpredictable and sporadic nature of Nowling’s symptoms
. . . .”).
The ALJ’s RFC fails to properly consider plaintiff’s fecal incontinence and
the intermittent and unanticipated resulting chronic diarrhea. This deficiency
in the ALJ’s analysis “fairly detracts from [the Commissioner’s] decision.”
Reed, 399 F.3d at 920 (quoting Haley, 258 F.3d at 747); Morse v. Shalala,
32 F.3d 1228, 1229 (8th Cir. 1994).
This error is compounded. The ALJ found Debra D. was “capable of
performing past relevant work as a teacher’s aide II, trolley driver, and resident
care aide. This work does not require the performance of work-related
activities precluded by the claimant’s [RFC].” (AR at p. 23) (bold omitted).
The failure of the ALJ to acknowledge Debra D. could only work part-time as a
trolley driver and the failure to include Debra D.’s fecal incontinence in the
analysis of whether she was capable of performing these past positions of
employment “fairly detracts from [the Commissioner’s] decision.” Reed,
399 F.3d at 920 (quoting Haley, 258 F.3d at 747); Morse, 32 F.3d at 1229.
Debra D. satisfied the burden of persuasion to demonstrate her RFC must
include a proviso that she be allowed every day to take frequent, unanticipated
bathroom breaks often lasting ten minutes. Stormo, 377 F.3d at 806.
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Remand to permit the ALJ to complete the step four analysis would
normally be in order. But the error is further compounded at step five
because the hypothetical questions posed by the ALJ failed to properly contain
the limitations established in Debra D.’s RFC. Johnson v. Apfel, 240 F.3d
1145, 1148 (8th Cir. 2001) (“The hypothetical question posed to the vocational
expert must capture the concrete consequences of [the] claimant’s
deficiencies.”) (internal quotation marks and citation omitted).
William Tisdale, the vocational expert called by the ALJ, testified that
none of the jobs ultimately identified by the ALJ would accommodate
unscheduled bathroom breaks on an unpredictable basis which could require
at least ten minutes a session. (AR at p. 71). He also acknowledged none of
the jobs would permit an employee to go home and take a shower, or shower at
work and change clothes, on an unpredictable, unscheduled basis because of
fecal incontinence. Id. at pp. 71-73. In other words, there are no jobs
available to Debra D.
The court may affirm, modify, or reverse the Commissioner’s decision,
with or without remand to the Commissioner for a rehearing. 42 U.S.C.
§ 409(g). If the court determines that the “record overwhelmingly supports a
disability finding and remand would merely delay the receipt of benefits to
which the plaintiff is entitled, reversal is appropriate.” Thompson v. Sullivan,
957 F.2d 611, 614 (8th Cir. 1992). Remand to the Commissioner is neither
necessary nor appropriate in this case. Debra D. is disabled and entitled
43

to benefits. Reversal is the appropriate remedy at this juncture. Thompson,
supra.
ORDER
Based on the above analysis, it is
ORDERED that plaintiff's motion (Docket 14) is granted and the decision
of the Commissioner of April 6, 2016, is reversed and the case is remanded to
the Commissioner for the purpose of calculating and awarding benefits to the
plaintiff Debra D.
Dated September 26, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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