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Dishong v. Berryhill

United States District Court, D. Nebraska

July 18, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          John M. Gerrard United States District Judge

         This matter is before the Court on the Commissioner's Motion to Alter or Amend Judgment (filing 18) pursuant to Fed. R. Civ. P. 59(e). The Commissioner asks the Court to remand this case to her for further proceedings, rather than ordering an award of benefits. The Commissioner's motion will be denied.

         The Court has broad discretion in determining whether to grant or deny a motion to alter or amend judgment pursuant to Rule 59(e). United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 934 (8th Cir. 2006). Such motions serve the limited function of correcting manifest errors of law or fact or presenting newly discovered evidence. Id. They cannot be used to introduce new evidence, tender new legal theories, or raise arguments which could have been offered or raised prior to entry of judgment. Id.; see Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008).

         The order that the Commissioner asks to have amended-the Court's Memorandum and Order of May 5, 2017 (filing 16)-sets forth the facts of the case in substantial detail, most of which does not need to be revisited here. Briefly summarized, the Court found that the ALJ erred in a number of significant ways, most importantly in discounting the opinion of claimant Kristine Dishong's treating doctor, Dr. Michael Egger. Filing 16 at 17-30. As a result, the Court explained, Dr. Egger's opinion, when given controlling weight, establishes the required level of severity under the criteria contained in 20 C.F.R. Part 404, Subpart P, Appx. 1, §§ 12.04A and 12.06C. Thus, Dishong's impairment meets or equals a presumptively disabling impairment, so the analysis stops at step three of the five-step sequential analysis, and Dishong is entitled to benefits. In the alternative, the evidence is uncontested that given an RFC based on Dr. Egger's opinion of Dishong's limitations, particularly the days of work she would be expected to miss, there is not a significant number of jobs in the national economy that Dishong can perform. So, even if the sequential analysis proceeds to step five, Dishong is still entitled to benefits. The Court will therefore reverse the Commissioner's decision and remand for an award of benefits.

         Filing 16 at 30 (citations and footnote omitted).

         The Commissioner does not dispute the Court's findings of error, but does take issue with the Court's conclusion that benefits should be immediately awarded. See filing 19. The Commissioner's argument is threefold: she argues that the Court erred in finding that (1) Dishong met the criteria of § 12.04A, (2) Dishong met the criteria of § 12.06C, and (3) Dishong could be expected to miss more than 5 days of work a month. Filing 19 at 3-7.

         One point should be clarified at the outset: the Court did err in the paragraph quoted above, but it is not the error the Commissioner thinks. It is, rather, a typographical error: the Court cited §§ 12.04A and 12.06C when it meant to cite §§ 12.04A and 12.04C.[1] That confusion is compounded by the fact that the Social Security Administration has, by the Court's count, promulgated 20 different versions of Subpart P, App'x 1 since Dishong's alleged date of disability.[2] So, in order to be clear, the Court will further explain its conclusion.

         The Commissioner argues that the evidence does not support an immediate finding of disability under § 12.04. Filing 19 at 3-5. The Commissioner points to the proposition that an immediate finding of disability should be entered "only if the record overwhelmingly supports such a finding." Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000) (quotation omitted). And, the Commissioner argues,

The question of whether Plaintiff met these technical, specific requirements [of § 12.04A], including a manifestation of the full symptomatic picture, is one that requires further administrative fact-finding and evaluation. What qualifies as a full symptomatic picture of both manic and depressive syndromes is a decision requiring a medical evaluation and is beyond the capacity of a layman.

Filing 19 at 4.

         True enough-but, the Court has a medical evaluation, from Dr. Egger. And the "specific, technical" requirements of § 12.04A are effectively identical to the diagnostic criteria for bipolar disorder. As the Commissioner acknowledges, Dr. Egger diagnosed "296.53": the DSM code for Bipolar I Disorder, most recent episode depressed, severe. See, Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 126 (5th ed. 2013) [hereinafter "DSM-5"]; Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 319 (4th ed. 1994) [hereinafter "DSM-IV"]. The requirements set forth in the version of § 12.04A in effect at the time of the ALJ's decision mirror the diagnostic criteria of the DSM-IV. Compare § 12.04A (effective Feb. 26, 2014 to Dec. 8, 2014) with DSM-IV at 327, 332, 335, 357. And the current requirements of § 12.04A mirror the diagnostic criteria of the DSM-5. Compare § 12.04A with DSM-5 at 124, 126. In other words, Dr. Egger's diagnosis-which, it should be remembered, is entitled to controlling weight-necessarily meets the Paragraph A criteria.

         Under the current regulations, a presumptively disabling impairment under § 12.04-the listing for "Depressive, bipolar and related disorders"-is satisfied by meeting § 12.04A and either § 12.04B or § 12.04C. And under the current regulations, § 12.04C requires a "serious and persistent" mental disorder: medically documented history of the disorder over a period of at least 2 years, and evidence of both (1) ongoing medical treatment that diminishes the signs and symptoms of the disorder and (2) minimal capacity to adapt to changes in environment or demands not already part of daily life. In this case, Dishong's medical history, and the records of her ongoing medical treatment, are clear. And Dr. Egger's opinion is clear about Dishong's "very limited ability to set shift & refocus on new data or direction." T458.

         Under the regulations in effect at the time of the administrative hearing, a presumptively disabling impairment under § 12.04-the listing for "Affective Disorders"-is satisfied by meeting both § 12.04A and § 12.04B, or meeting § 12.04C. And § 12.04C required

[m]edically documented history of a chronic affective disorder of at least 2 years' duration that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs currently attenuated by ...

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