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 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.
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).
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.
16 at 30 (citations and footnote omitted).
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.
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. 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. So, in order to be clear, the Court will
further explain its conclusion.
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
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.
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.
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.
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