United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
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.
AND PROCEDURAL HISTORY
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.
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)).
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).
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)).
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.
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.
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).
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).
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.
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).
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.
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).
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.
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)).
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 §
to this appeal, the ALJ determined Debra D. retained the RFC
to perform “light work.” (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
THE ALJ'S CREDIBILITY DETERMINATION SUPPORTED BY THE
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
(AR at pp. 21-22).
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.
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).
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.
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 and Wellbutrin,  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.
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 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.
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.
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
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. 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.
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.
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.
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 and her ALK PHOS was high.
Id. The discharge assessment that night was
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 and Wellbutrin. (AR at p. 402). Dr. Gary
D. prescribed Bentyl and Perphenazine-Amitriptyline.
Id. at p. 403.
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.
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. ...