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Debra D. v. Berryhill

United States District Court, D. South Dakota, Western Division

September 26, 2018

DEBRA D., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.




         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.


         The parties' JSMF (Docket 11) is incorporated by reference. Further recitation of salient facts is incorporated in the discussion section of this order. 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)).


         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 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.

         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 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”). 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 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).

         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.


         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, 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.

         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.


         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. Stephan M. (AR at p. 720). Dr. Loyal T. agreed to write plaintiff's work supervisor to encourage stress reduction measures at work. Id.


         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 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.

         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 No. 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 her potassium was low[7] and her ALK PHOS[8] was high. Id. The discharge assessment that night was gastroenteritis. Id.


         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- 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. ...

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