United States District Court, D. Nebraska
KRISTINE M. DISHONG, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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
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."
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
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.
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
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.
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.
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.
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
explained that she had dropped out of community college
classes because she was failing. T56. But, she said, her plan
was to continue therapy and try to get to where she was
stable enough to go and work. T57. She explained that she had
left her last employment because the projects she was
assigned caused her to decompensate, which she described:
I would lose all track of time, concentration, be unable to
function just as a person, as anyone else would. Those are
the times when you quit showering, you stop eating.
You're irresponsible. Those are the times I had to call
my family in to take care of my daughter. You decompensate to
the point where you just are not there. And going through a
medication change is incredibly difficult. It is for me
anyway. I don't know how it is for others, but for me,
it's very difficult to go through.
T58. Her hypomanic episodes, she said, start out as
depression, and then she becomes "agitated, irritated,
very difficult to be around . . . ." T58. And, she said,
in her hypomanic state she becomes "irresponsible, an
irresponsible person." T59. During the depressive phase
of an episode, all she wants to do is sleep. T59. She said
she relied on her mother and sister for support, explaining
that her sister paid her rent and that she took care of her
there is a lot of time that my mother and my sister have
picked up the pieces, you know, and taken her to their house
and, you know, watched her for a few days while I got myself
in order, you know, because she doesn't need to be there
with me watching me sleep all day and not shower and not eat.
It's not good for her.
T63. Dishong testified that at a job, even if she wasn't
around as many people, the problem was that she still
didn't "have the concentration and the ability to
organize, to keep things moving in the right direction."
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 ...