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Dishong v. Berryhill

United States District Court, D. Nebraska

May 5, 2017

KRISTINE M. DISHONG, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge.

         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.

         PROCEDURAL HISTORY

         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 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.

         FACTUAL BACKGROUND

         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 co-occurring mental disorders are common. Id. at 130, 132.

         Medical Records

         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. T301-307.

         December 2011 showed regression, occasioned by elevated obsessive thinking and anxiety, and Dishong reported a "nervous breakdown." T298-300. 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. T378-379. 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 "becomes 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 impairments. T451.

         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.

         Hearing Testimony

         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 daughter, but

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 ...


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