Frohman-Eades v. Kijakazi

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
MELISSA F.E.,1
Plaintiff,
vs.
DR. KILOLO KIJAKAZI,2 Acting
Commissioner, Social Security
Administration,
Defendant.
CIV. 20-5075-JLV
REDACTED ORDER
INTRODUCTION
Plaintiff filed a motion appealing the final decision of Dr. Kilolo Kijakazi,
Acting Commissioner of the Social Security Administration, finding her not
disabled. 	(Docket 19). 	Defendant denies plaintiff is entitled to benefits.
(Docket 23). 	For the reasons stated below, plaintiff’s motion to reverse the
1 The Administrative Office of the Judiciary suggested the court be more
mindful of protecting from public access the private information in Social
Security opinions and orders. 	For that reason, the Western Division of the
District of South Dakota will use the first name and last initial of every
non-governmental person mentioned in the opinion. 	This includes the names of
non-governmental parties appearing in case captions.
2 Dr. Kilolo Kijakazi became the Acting Commissioner of Social Security on
July 9, 2021. 	Pursuant to Fed. R. Civ. P. 25(d), Dr. Kijakazi is automatically
substituted for Andrew Saul as the defendant in all pending social security
cases. 	No further action need be taken to continue this suit by reason of the last
sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Dr.
Kijakazi will be referred to as the “Commissioner” for the remainder of this order.
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decision of the Commissioner (Docket 19) is granted and defendant’s motion to
affirm the decision of the Commissioner (Docket 22) is denied.
FACTUAL AND PROCEDURAL HISTORY
The court issued a briefing schedule requiring the parties to file a joint
statement of material facts (“JSMF”). 	(Docket 15). 	The parties filed their
JSMF. 	(Docket 16). 	The parties’ JSMF is incorporated by reference. 	Further
recitation of salient facts is incorporated in the discussion section of this order.
On April 9, 2018, plaintiff applied for disability insurance benefits and
supplemental security income pursuant to Titles II and XVI of the Social Security
Act, 42 U.S.C. §§ 401-33 and 1381-83f, respectively. 	(Docket 16 ¶ 1). 	She
alleged an onset of disability date of September 1, 2017. 	Id. 	On April 8, 2020,
an ALJ issued a decision finding plaintiff not disabled from September 1, 2017,
through the date of the ALJ’s decision. 	See Docket 14-1 at pp. 19-37.3
Plaintiff sought review from the Appeals Council of the ALJ’s decision. 	(Docket
16 ¶ 4). 	On October 27, 2020, the Appeals Council denied plaintiff’s request for
review. 	Id. 	The ALJ’s April 8, 2020, decision constitutes the final decision of
the Commissioner of the Social Security Administration. 	It is from this decision
which plaintiff timely appeals.
The issue before the court is whether the ALJ’s decision plaintiff was not
“under a disability, as defined in the Social Security Act, from September 1,
2017, through [April 8, 2020]” is supported by substantial evidence in the record
3 The court cites to the page of the document as filed in CM/ECF as
opposed to the page of the administrative record.
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as a whole. 	(Docket 14-1 at p. 37) (bold omitted); 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)).
STANDARD OF REVIEW
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)).
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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 disability insurance benefits under Title II or supplemental security income
under Title XVI. 	20 CFR § 404.1520(a) and 416.920(a).4 	If the ALJ determines
a claimant does not meet 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 The criteria under 20 CFR § 416.920 are the same as those under
20 CFR § 404.1520. 	Boyd v. Sullivan, 960 F.2d 733, 735 (8th Cir. 1992).
All further references will be to the regulations governing disability insurance
benefits, unless otherwise specifically indicated.
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(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. 	(Docket 14-1 at pp. 21-37).
STEP ONE
At step one, the ALJ determined plaintiff “has not engaged in substantial
gainful activity since September 1, 2017, the . . . alleged onset [of disability].”
Id. at p. 21 (bold omitted). 	Plaintiff does not challenge this finding. 	(Docket
19).
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 his 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.”
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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. 	A severe impairment or
combination of impairments must meet the regulations’ duration requirement
that the impairment(s) are “expected to result in death” or otherwise “must have
lasted or must be expected to last for a continuous period of at least 12 months.”
20 CFR § 404.1509.
The ALJ identified plaintiff suffered from the following severe impairments:
“[l]umbar degenerative disc disease; obesity; adjustment disorder with anxious
mood; personality disorder (with preoccupation with somatic and/or cognitive
concerns); depressive disorder; and panic disorder with agoraphobia.” 	(Docket
14-1 at p. 21) (bold omitted). 	Plaintiff does not challenge this finding. 	(Docket
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
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§ 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). 	Plaintiff has the burden of proof that her impairment meets or
equals the severity of one of the listed impairments. 	Johnson v. Barnhart, 390
F.3d 1067, 1070 (8th Cir. 2004).
The ALJ determined plaintiff “does not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed
impairments in” Appendix 1. 	(Docket 14-1 at p. 25) (bold omitted). 	Plaintiff
does not challenge this finding. 	(Docket 19).
STEP FOUR
At the outset of step four, the ALJ must determine a claimant’s residual
functional capacity (“RFC”). 	20 CFR § 404.1520(e). 	A claimant’s
“impairment(s), and any related symptoms, such as pain, may cause physical
and mental limitations that affect what [the claimant] can do in a work setting.”
Id. § 404.1545(a)(1). 	An RFC assessment is the ALJ’s determination of “the
most [claimant] can still do despite [her] limitations.” 	Id. 	In assessing RFC,
the ALJ considers “the total limiting effects” of a claimant’s impairment(s)—i.e.,
all of a claimant’s medically determinable impairments, even those that are not
severe, and their resulting symptoms and limitations on the claimant’s physical,
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mental and sensory abilities. 	Id. §§ 404.1545(e), 404.1545(b)-(d). 	The ALJ
must consider all relevant medical and non-medical evidence in the record.
20 CFR §§ 404.1520(e) and 404.1545; see also Lacroix v. Barnhart, 465 F.3d
881, 887 (8th Cir. 2006) (“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.”
(quoting Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004))).
The ALJ uses the RFC assessment at step four to decide whether a
claimant can perform her “past relevant work.” 	20 CFR § 404.1545(a)(5)(i). 	If
the ALJ finds the claimant can perform her past relevant work, the claimant is
not disabled, as defined under the Social Security Act. 	If the ALJ finds a
claimant cannot perform her past relevant work, the ALJ proceeds to step five.
The ALJ found plaintiff has the RFC to perform light work. 	(Docket 14-1
at p. 26). 	Light work
involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. 	Even
though the weight lifted may be very little, a job is in this category
when it requires a good deal of walking or standing, or when it
involves sitting most of the time with some pushing and pulling of
arm or leg controls. 	To be considered capable of performing a full
or 	wide 	range 	of 	light 	work, 	you 	must 	have 	the 	ability 	to 	do
substantially all of these activities. . . .
20 CFR § 404.1567(b). 	Specifically, the ALJ found plaintiff
can frequently climb stairs and ramps; never climb ladders, ropes,
or scaffolds; and frequently balance, stoop, kneel, crouch, and
crawl. 	She 	should 	avoid 	moderate 	exposure 	to 	loud 	noise, 	to
vibration, 	and 	to 	hazards, 	such 	as 	unprotected 	heights 	and
dangerous machinery. 	She can perform simple, routine tasks,
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without simple work-related decisions and few workplace changes.
She can occasionally interact with supervisors and co-workers, with
no tandem tasks, and no public contact.
(Docket 14-1 at p. 26) (bold omitted).
Plaintiff challenges the ALJ’s assessment of her RFC. 	(Docket 19). 	She
alleges the ALJ improperly considered:
(1) 	Plaintiff’s testimony. 	Id. at p. 32; and
(2) 	The medical opinions of treating psychiatrist Dr. R. 	Id. at
p. 46.
The court will address plaintiff’s claims in the order it deems most productive to
resolution of the issues.
Medical Opinions of Dr. R.
The parties agree Dr. R.’s opinions must be considered in accord with the
revised regulation governing evaluation of medical evidence. 	See Dockets 19 at
p. 46 and 23 at pp. 8-9 (referencing 20 CFR § 404.1520(c) (2017)). 	Subsection
1520(c) requires an ALJ to consider (1) supportability; (2) consistency;
(3) relationship with the claimant; (4) specialization; and (5) other factors when
judging medical opinions. 	20 CFR § 404.1527c(c). 	An ALJ is required to
“articulate . . . how persuasive [the ALJ] find[s] all of the medical opinions and all
of the prior administrative medical findings in . . . [the] record.” 	Id.
§ 404.1520c(b). 	“Supportability” and “consistency” are the two most important
factors in determining the persuasiveness of a medical opinion. 	Id.
§ 404.1520c(b)(2). 	The regulations continue to give greater consideration to a
treating physician than a physician who only reviews the record. 	“A medical
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source may have a better understanding of your impairment(s) if he . . . examines
you than if the medical source only reviews evidence in your folder.” 	Id.
§ 404.1520c(c)(3)(v).
The ALJ considered Dr. R.’s “mental limitation checkbox form [of] October
2019.” 	(Docket 14-1 at p. 30) (referencing Docket 14-4 at pp. 91-93). 	After
articulating a short summary of some of Dr. R.’s findings, the ALJ found Dr. R.
concluded plaintiff had the following limitation:
• 	moderate5 limitations in understanding, remembering, and
carrying out simple instructions;
• 	marked6 limitations in understanding, remembering, and
carrying out complex instructions;
• 	marked limitations in the ability to make judgments in simple and
complex work-related decisions;
• 	marked limitations interacting appropriately with the public;
• 	moderate limitations interacting appropriately with supervisors
and co-workers;
• 	moderate limitations responding appropriately to usual work
situations and to changes in a routine work setting; and
• 	[she] can manage benefits in her own best interests at times.
Id. (formatting modified for the ease of the reader); see also Docket 16
¶¶ 236-38. 	The ALJ found
5 “Moderate” is determined to be “more than a slight limitation . . . but the
individual is still able to function satisfactorily.” 	(Docket 14-4 at p. 91).
6 “Marked” is determined to be a “serious limitation . . . [such that] [t]here is
a substantial loss in the ability to effectively function.” 	(Docket 14-4 at p. 91).
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Dr. 	R.’s 	opinion 	unpersuasive. 	It 	is 	unsupported 	by 	Dr. 	H.[’]
extensive 	neuropsychological 	testing 	results. 	Indeed, 	it 	is
inconsistent with Dr. R.’s own 2019 mental status examinations,
which 	only 	reported 	dull, 	depressed, 	flat/frozen 	effect 	[sic],
hyper-talkative, and flat mood, signs that are not consistent with
“marked” limitations.
(Docket 14-1 at p. 30).
Plaintiff objects to the ALJ’s finding. 	(Docket 19 at p. 48). 	She submits
Dr. R.’s opinions are “consistent with the treatment notes and . . . . also his
expertise and experience as a psychiatrist.” 	Id. 	Plaintiff asserts a comparison
of the treatment notes of Social Worker Ms. T. are consistent with Dr. R.’s notes
“and show mood swings showing dramatic shifts in mood, symptoms of anxiety
and panic and limitations on [plaintiff’s] activities and contact with other people.”
Id. at pp. 48-49. 	Plaintiff argues her “inability to keep jobs due to her mood
disorder is documented by the Social Security Administration’s records[.]” 	Id. at
p. 49. 	She contends “no mental health provider has even discussed the
possibility that she return to gainful employment, even part-time.” 	For these
reasons, plaintiff submits “Dr. R.’s opinions are supported and consistent.” 	Id.
(emphasis and underlining omitted). 	In conclusion, plaintiff argues
[T]he ALJ’s finding that Dr. R.’s mental status examinations are
inconsistent with his opinions regarding limitations is an example of
the ALJ improperly substituting his own lay opinion for those of a
medical expert . . . . This is an error of law.”
Id. (references omitted).
Medical opinions are “statements from acceptable medical sources that
reflect judgments about the nature and severity of [a claimant’s] impairment(s),
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including [their] symptoms, diagnosis and prognosis, what [claimant] can still do
despite impairment(s), and [her] physical or mental restrictions.” 	20 CFR
§ 404.1527(a)(1). 	Generally, greater weight is given to medical opinions from
examining medical professionals compared to non-examining ones. 	Id.
§ 404.1520c(c)(v). 	Additionally, greater weight is given to opinions from treating
sources—i.e., medical professionals who have an ongoing relationship with the
claimant. 	Id. § 404.1520c(c)(3). 	A treating source’s opinion on the nature and
severity of a claimant’s impairment(s) is given greater weight if the ALJ
determines it is supported by “objective medical evidence” and the medical
opinion is consistent “with the evidence from other medical sources.” 	Id.
§§ 404.1520c(c)(1) & (2).
The ALJ found “Dr. R.’s opinion unpersuasive” because it was
“unsupported” by the February 13, 2018, neuropsychological testing conducted
by Dr. H. 	(Docket 14-1 at p. 30). 	Also, the ALJ discounted Dr. R.’s ultimate
opinion because it was “inconsistent with [the doctor’s] own 2019 mental status
examinations.” 	Id.
The ALJ failed to acknowledge that Dr. H.’s psychological testing of
plaintiff was conducted in February 2018. 	(Docket 16 ¶¶ 18-25). 	While Dr. H.
reported the “results are unimpaired and within normal range for [plaintiff’s] age
. . .” the results indicated “probable invalidity due to over reporting and that
there may be emotional distress including depression and anxiety with past
history of suicidal ideation. . . . [And] there may also be over activation possibly
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indicating cyclic mood disorder.” 	Id. ¶¶ 25-26 (emphasis added; internal
quotation marks and brackets omitted). 	Dr. H.’s “diagnostic impressions
included: adjustment disorder with anxious mood, normal neurocognitive
functioning (with the exception of mild range impairment and visual memory),
and rule out Schizoid personality disorder.” 	Id. ¶ 29. 	The psychologist
recommended plaintiff
be observed over time regarding the possibility of a cycling mood
disorder, given the fluctuation in symptoms reported. . . . patient
does not report previous diagnosis of cycling mood disorder (i.e.
Bipolar II disorder),7 but it should be ruled out given the observed and
reported symptoms and behaviors.
Id. ¶ 31 (emphasis added; internal quotation marks and brackets omitted).
When plaintiff was seen for the second and only other time in March 2018,
by Dr. H., she noted in the chart “the test results showed intact neurocognitive
functioning, but she had very high anxiety and could benefit from working with a
therapist or counselor.” 	Id. ¶ 39 (internal quotation marked omitted). 	Dr. H.
recommended plaintiff seek therapeutic counseling with Ms. T. at Regional
Neuropsychology to help plaintiff “adjust[] to her declining health and energy
level.” 	Id. 	Dr. H. also charted that “a psychiatry consult would also potentially
be of benefit.” 	Id. ¶ 41 (emphasis added).
Beginning in April 2018 and continuing through November 2019, plaintiff
was seen 18 times by Ms. T., a clinical social worker at Regional Health. 	(Docket
7 Bipolar disorder, formerly called “manic depression,” is a chronic
condition involving mood swings with at least one episode of mania and repeated
episodes of depression. 	MedicineNet.com.
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16 ¶¶ 42-54, 60-61, 64-73, 144-48, 167-73, 178-85, 190-92, 194-96).
Beginning with the first therapy session on April 2, 2018, Ms. T. noted it would
be important “to assess for bipolar disorder and potential personality disorder
diagnoses.” 	Id. ¶ 51. 	As will be discussed later, plaintiff’s cyclical condition
proved this concern accurate.
Dr. R. saw plaintiff six times over 20 months, from June 20, 2018, through
January 23, 2020, plus completed a narrative report to the Social Security
Administration in October 2018 and the Medical Source Statement of Ability to
Work Related Activities (Mental) report on October 9, 2019. 	See Docket 16 at
¶¶ 74-83, 106-109, 156-60, 175-77, 186-189, 206-08 & 231-15. 	Dr. R.’s initial
diagnosis in June 2018 was “major depression, bereavement, panic disorder
with agoraphobia,8 and PTSD.” 	Id. ¶ 80. 	He recommended a trial period of
“Lurasidone9 . . . [and] Lorazepam.10” 	Id.
8 “Agoraphobia . . . is a type of anxiety disorder in which [an individual]
fear[s] and avoid[s] places or situations that might cause [the individual] to panic
and . . . feel trapped, helpless or embarrassed. . . . The anxiety is caused by fear
that there’s no easy way to escape or get help if the anxiety intensifies.”
https://www.mayoclinic.org/diseases-conditions/agoraphobia/symptoms-caus
es/syc-20355987 (last visited February 21, 2022).
9 Lurasidone belongs in the class of atypical antipsychotic drugs and is
used to treat schizophrenia and depression associated with bipolar disorder. 	It
is intended to help an individual think more clearly, feel less nervous and
participate in everyday life. 	It may also help decrease hallucinations, improve
mood, sleep, appetite and energy level. 	https://www.webmd.com/drugs/2/
drug-155126/lurasidone-oral/details (last visited February 20, 2022).
10 Lorazepam is in the class of benzodiazepine drugs which acts on the
brain and central nervous system to treat anxiety. 	https://www.webmd.com/
drugs/2/drug-8892-5244/lorazepam-oral/lorazepam-oral/details (last visited
February 20, 2022).
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When Dr. R. saw plaintiff on July 18, 2018, he charted “her mood was
considerably improved and was doing more with her kids although she had
periods of irritability which happened nearly daily.” 	Id. ¶ 82. 	He noted her
counseling with Ms. T. 	Id. ¶ 83. 	Dr. R. charted plaintiff’s mood to be “midscale
and she was less anxious and more optimistic.” 	Id.
Dr. R. filed a narrative report with the Social Security Administration on
October 3, 2018, in which he wrote that plaintiff “had had approximately 30 jobs
in her life but can’t hold them because of mood issues.” 	Id. ¶¶ 106-07. 	The
report indicted “it is quite possible that [plaintiff] suffers a Bipolar Disorder but
current diagnosis is Major Depression, Panic Disorder and PTSD.” 	Id. ¶ 109
(brackets omitted).
During a May 22, 2019, therapy session, Ms. T. discussed a possible
bipolar disorder diagnosis with plaintiff because of her fluctuating energy and
depression cycles. 	Id. ¶¶ 144-47. 	Plaintiff’s mental status exam “revealed
anxious and depressed mood, appropriate affect, hopelessness, no suicidal
ideation, restless/broken sleep, and tearful in discussing shameful behaviors.”
Id. ¶ 148.
When Dr. R. saw plaintiff on June 19, 2019, it was obvious he had access
to and was incorporating Ms. T.’s therapy notes in his treatment of plaintiff’s
condition: “Social worker . . . T.’s note suggested [plaintiff] had a manic episode
in April but was depressed in the May visit.” 	Id. 	¶ 157. 	Reviewing Ms. T.’s
notes, Dr. R. observed plaintiff’s “apparently expressed remorse at past
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behaviors . . . may have occurred during hypomanic or manic episodes.” 	Id.
“Dr. R. wrote “for the last year I have been tilting the treatment toward Bipolar
Disorder and now it appears that that is the primary diagnosis.” 	Id. (emphasis
added; brackets omitted). 	He noted plaintiff “quit all medication because of a
heavy feeling in her head about three weeks ago and she feels numb, is avoidant
of others, and has a lot of anxiety but only a few panic attacks since then.” 	Id.
¶ 158. 	Her “mental status exam revealed she was dull and flat and [her] mood
was below midscale [possibly 3/10].” 	Id. ¶ 159. 	Dr. R. amended his diagnosis
to include bipolar disorder and “prescribed Ziprasidone11 and Alprazolam.12”
Id. ¶ 160.
During a July 29, 2019, therapy session, Ms. T. noted plaintiff’s “mental
status exam showed dysphoric13 and anxious mood, appropriate affect, restless
and broken sleep, and . . . her participation level was active/eager.” 	Id. ¶ 168.
Plaintiff’s mental status changed during their therapy session on August 14,
11 Ziprasidone is in a class of medications called atypical antipsychotics
and is used to treat schizophrenia and bipolar disorder to help a patient think
more clearly, feel less agitated and take a more active part in life.
https://www.webmd.com/drugs/2/drug-20568/ziprasidone-oral/details (last
visited February 20, 2022).
12 Alprazolam is in the class of medications called benzodiazepines which
act on the brain and nerves to treat anxiety and panic disorders to produce a
calming effect. 	https://www.webmd.com/drugs/2/drug-8171-7244/
alprazolam-oral/alprazolam-oral/details (last visited February 20, 2022).
13 Dysphoria is a psychological state of generalized unhappiness,
restlessness, dissatisfaction, or frustration, and it can be a symptom of several
mental health conditions that affect mood, such as depression and mania.
https://www.goodtherapy.org/blog/psychpedia/dysphoria (last visited
February 21, 2022).
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2019, revealing “dysphoric and anxious mood, restricted affect and restless and
broken sleep.” 	Id. ¶ 169-170.
When seen by Dr. R. on August 29, 2019, he charted plaintiff
is locked in a depression . . . . blah and not caring about anything,
including relationships with family or much of anything else. . . . her
energy was low and she wants to sleep to avoid things during the day
and her sleep at night is restless and she gets only four to five hours.
. . . she was having headache pain of a sharp nature and her left eye
was becoming blurry and she was losing hair and did not want to be
in public. . . . she is not thinking clearly and does not know what to
do next nor has she experimented.
Id. ¶ 175 (brackets omitted). 	Dr. R. noted her mental status exam showed “she
is clearly depressed with affect frozen in a dull mask. 	She speaks in a low tone
and there some plaintiveness.” 	Id. ¶ 177 (brackets omitted). 	He charted “her
therapist feels that she is bipolar and I do as well.” 	Id. (emphasis added). 	He
prescribed Alprazolam and increased the Ziprasidone dosage. 	Id. (brackets
omitted).
On October 9, 2019, Ms. T. noted plaintiff’s mental status exam had
shifted to “euthymic14 and anxious mood, expansive affect, and active/eager
participation level.” 	Id. ¶¶ 184-85. 	Later that same day when seen by Dr. R.,
he noted plaintiff “switched into mania in mid-September. 	. . . Her thoughts
began racing and concentration was poor.” 	Id. ¶ 186. 	Dr. R. charted that Ms.
14 Euthymia is a condition where an individual experiences feelings of
tranquility and cheerfulness with an increased level of resilience to stress. 	With
depression at one end of the bipolar spectrum and mania at the other end,
euthymia is a state of stable moods. 	https://www.healthline.com/health/
euthymic (last visited February 21, 2022).
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T. thought plaintiff “was manic and of course this was correct.” 	Id. ¶ 187. 	Dr.
R. noted plaintiff was
hyper talkative and uses bad language. . . . she is full of energy and
not at all tired. . . . there was some element of excitement within her,
but it is mixed with negative thoughts about her life and the world she
lives in. . . . dress and grooming are fine and she is still able to interact
in an appropriate manner despite the bad language. . . . [Plaintiff] . . .
was full of energy and not tired.
Id. ¶ 188 (internal quotation marks and brackets omitted). 	“Dr. R. assessed
mixed mania and raised her Ziprasidone again. . . . recommended starting
Lithium Carbonate15 as well as continuing . . . Alprazolam.” 	Id.
¶ 189.
On October 15, 2019, Dr. R. completed the Medical Source Statement of
Ability to Work Related Activities (Mental) report. 	Id. ¶ 236. 	Dr. R.’s principal
findings were that plaintiff had
• 	moderate limitations in understanding, remembering, and
carrying out simple instructions;
• 	marked limitations in understanding, remembering, and carrying
out complex instructions;
• 	marked limitations in the ability to make judgments in simple and
complex work-related decisions;
• 	marked limitations interacting appropriately with the public;
15 Lithium carbonate is used to treat bipolar disorder. 	It works to restore
the balance of neurotransmitters in the brain to stabilize mood and reduce
extremes in behavior, decreasing the frequency of manic episodes and
decreasing the symptoms of manic episodes. 	https://www.webmd.com/drugs
/2/drug-5887-795/lithium-carbonate-oral/lithium-controlled-release-oral/det
ails (last visited February 20, 2022).
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• 	moderate limitations interacting appropriately with supervisors
and co-workers; and
• 	moderate 	limitations 	responding 	appropriately 	to 	usual 	work
situations and to changes in a routine work setting.
Id. ¶¶ 236-38. 	In support of these opinions Dr. R. wrote plaintiff suffered
Sudden dramatic shifts in mood. Very unstable. Episodic intense
anger. Panic disorder. Can’t be in public except brief forays for
necessities. . . . Energy, concentration and sleep are poor. 	History of
hallucinations. . . . Has had about 30 jobs; can’t stay with them.
Id. ¶¶ 236 & 238.
When Dr. R. saw plaintiff on December 16, 2019, he noted she “was
avoiding people around the holidays.” 	Id. ¶ 206. 	Because a friend nearly died
while on Lithium, plaintiff “became scared and quit . . . lithium.” 	Id. 	The
mental status exam noted plaintiff “was alert and oriented, mood was midscale
or a notch lower, she speaks rapidly but relevantly about current circumstances
and uses some bad words, however she seems sincere.” 	Id. ¶ 208. 	Despite Dr.
R.’s recommendation, plaintiff refused to go back on Lithium. 	Id.
On January 23, 2020, Dr. R. saw plaintiff. 	Id. ¶ 213. 	He charted
she had been in a dysphoric manic state since going off meds a
month ago. . . . she had ruined her friendships by saying things that
were on her mind that were inappropriate. . . . [she] had some
paranoia and was having nightmares about she and her child being
murdered. . . . she had suicidal ideation as well as panic levels of
anxiety and not infrequently, she is up 24 hours and has plenty of
energy the next day.
Id. ¶¶ 213-14. 	The mental status exam that day noted “she was anxious,
fearful, and very distraught. . . . She begs me to do something so she can become
normal and put her life back together.” 	Id. ¶ 215. 	Plaintiff “was willing to use
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the Alprazolam and Ziprasidone, but not Lithium.” 	Id. 	“Dr. R. recommended
increasing . . . Ziprasidone and using the full dose of . . . Alprazolam.” 	Id.
It borders on disingenuous that the ALJ would find Dr. R.’s opinions
inconsistent with Dr. H.’s early testing in 2018 or Dr. R.’s own findings in 2019.
Dr. H.’s report is consistent with Dr. R.’s subsequent findings and diagnosis. 	To
report only the test findings of 2018, but then ignore Dr. H.’s concerns about
plaintiff’s mental health status ignores the reality of bipolar disorder.
“Conditions such as . . . bipolar disorder . . . are conditions commonly
known to wax and wane. 	It is not unexpected for an individual with these
conditions to appear and act healthy, while at other times to suffer from the
extreme, debilitating problems these physical and mental conditions cause.”
Dillon v. Colvin, 210 F. Supp. 3d 1198, 1209 (D.S.D. 2016) (internal citation
omitted). 	Dr. R.’s examinations, charts and reports are consistent with the
psychological records of Dr. H. as well as the therapy records of Ms. T. 	Dr. R.’s
clinical work together with his prescribing powerful mood-altering medications is
supported by the work of Ms. T. as well as other physicians who examined and
treated plaintiff in 2018-2020.
In April 2018, Neurologist Dr. V. found plaintiff had “a generalized
anxiety disorder in addition to question of underlying personality
disorder as raised through formal neuropsychological testing.”
Docket 16 ¶¶ 55-59;
In January 2019, Neurologist Dr. S. noted a Mayo Clinic neurologist
diagnosed plaintiff with a “possible mood disorder.” 	Id. ¶ 123. 	Yet,
his own mental status examination of plaintiff that day, Dr. S. found
her “mood and affect were normal.” 	Id. ¶ 124;
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In July 2019, Dr. S. charted plaintiff’s psychiatric and behavioral
systems as a “dysphoric mood and sleep disturbance and [she] was
nervous and anxious and is under mental health treatment. . . . her
mood and affect were flat and she had many somatic complaints
along with normal speech and normal gait.” 	Id. ¶¶161-63. 	Dr. S.
diagnosed abnormal brain MRI, fibromyalgia, migraine without
status migrainosus, not intractable, unspecified migraine type and
multiple neurological symptoms. 	Id. ¶ 164;
In November 2019, Dr. S. noted plaintiff’s psychiatric symptoms were
“positive for dysphoric mood and sleep disturbance and [she] is
nervous/anxious. . . . her mood and affect were flat and she had
many somatic complaints although her recent and remote memory
were normal, her attention and concentration were normal and her
speech, level of consciousness and knowledge were normal.” 	Id. ¶¶
202-05 (internal quotation marks omitted); and
In January 2020, Dr. S. noted plaintiff’s “mood and affect were not as
flat as previous visits and she had many somatic complaints ongoing
but reduced from last visit.” 	Id. ¶ 209.
The records developed by the neurologists as well as Ms. T.’s and Dr. R.’s records
support the mental health reality that plaintiff’s bipolar disorder waxed and
waned. 	Dillon, 210 F. Supp. 3d at 1209.
Rather than give greater consideration to Dr. R.’s opinions and
conclusions supported by these other physicians, the ALJ chose to adopt the
findings of two consulting physicians who completed paper reviews of the record
in August 2018 and February 2019. 	(Docket 14-1 at p. 30) (referencing Docket
16 ¶ 233 & 235). 	The ALJ justified this decision by finding any
new treatment records submitted after they issued their findings do
not contain any psychological testing results, normal and abnormal
mental status examination signs, or mental health treatment that is
either inconsistent or in conflict with the testing results, mental
status examination signs, and treatment in the records they had
available for review.
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Id. 	This is simply wrong. 	Plaintiff’s records discussed above not only disprove
such a finding but resoundingly disclose that plaintiff’s bipolar disorder
remained uncontrolled with medications and she was unable to function
normally. 	Dr. R.’s medical diagnosis, opinions and treatment regime support
the conclusions he provided to the Social Security Administration on October 15,
2019, and are entitled to greater weight than physicians who only reviewed the
early record in the case. 	20 CFR §§ 404.1520c(b)(2) & (c)(3)(v).
The ALJ erred, both factually and as a matter of law, when he chose to give
substantial weight to the opinions of the consulting physicians. 	The
Commissioner’s findings on this issue are not supported by substantial evidence
in the record as a whole. 	42 U.S.C. § 405(g); Choate, 457 F.3d at 869.
B. 	Credibility of Plaintiff
The ALJ’s decision to dismiss Dr. R.’s opinions affected the decision to
discount plaintiff’s testimony.
I find the degree and persistence of several of the claimant’s alleged
symptoms, 	e.g., 	deteriorating 	memory, 	anger/outbursts, 	needing
special reminders to take medications, needing special reminders to
take care of personal needs/grooming, unable to prepare meals due
to poor concentration, having difficulty with math now, needing
reminders to go places, only able to pay attention for a couple of
minutes at one time, and unable to follow spoken instructions, as
well 	as 	difficulty 	handling 	changes 	in 	routine, 	communicating,
completing tasks, concentrating, understanding, and finishing what
she starts, are inconsistent with the three mild and one moderate
“paragraph B” criteria findings, . . . as well as with [the consulting
physicians’] persuasive prior administrative medical findings.
Docket 14-1 at p. 34.
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Without detailing the specifics of plaintiff’s testimony, the court concludes
there are no inconsistencies between plaintiff’s testimony and the testimony of
her health care providers that justify a finding plaintiff not credible. 	See Docket
16 ¶¶ 239-68. 	The evidence supporting plaintiff’s credibility “fairly detracts
from [the Commissioner’s] decision.” 	Reed, 399 F.3d at 920 (quoting Haley,
258 F.3d at 747); Morse v. Shalala, 32 F.3d 1228, 1229 (8th Cir. 1994). 	When
examined in detail, the record supports rather than contradicts plaintiff’s
testimony. 	Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Guilliams,
393 F.3d at 801-02.
C. 	Jobs Available to Plaintiff
The “burden of production shifts to the Commissioner at step five.”
Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004); see also Baker, 159 F.3d
at 1144.
A vocational expert (“VE”) testified during the administrative hearing.
(Docket 14-1 at pp. 77-85; see also Docket 16 ¶¶ 269-75). 	The VE testified that
outside of regularly scheduled breaks the most time off task an employer would
tolerate in unskilled jobs would be about five percent. 	Id. ¶ 272. 	If an
individual inappropriately responded to changes in routine work assignments
“five percent of the time, that would be very problematic especially after one or
two times.” 	Id. ¶ 274 (internal quotation marks omitted). 	If the individual
missed more than one day a month, the VE stated that “would preclude work.”
(Docket 16 ¶ 273). 	The VE testified if an individual is unable to make judgments
on simple work-related decisions ten percent of the time, that would not permit
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employment in a “competitive work venue.” 	Id. ¶ 275. 	In other words, applying
Dr. R.’s opinions, there are no jobs available to plaintiff.
D. 	Conclusion
The court may affirm, modify, or reverse the Commissioner’s decision,
with or without remand to the Commissioner for a rehearing. 42 U.S.C.
§ 409(g). 	If the court determines that the “record overwhelmingly supports a
disability finding and remand would merely delay the receipt of benefits to
which the plaintiff is entitled, reversal is appropriate.” 	Thompson v. Sullivan,
957 F.2d 611, 614 (8th Cir. 1992). 	Remand to the Commissioner is neither
necessary nor appropriate in this case. 	Plaintiff is disabled and entitled to
benefits. 	Reversal is the appropriate remedy at this juncture. 	Thompson,
supra.
ORDER
Based on the above analysis, it is
ORDERED that plaintiff's motion (Docket 19) is granted and the decision
of the Commissioner of April 8, 2020, is reversed and the case is remanded to the
Commissioner for the purpose of calculating and awarding benefits to the
plaintiff.
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IT IS FURTHER ORDERED that defendant’s motion to affirm (Docket 22) is
denied.
Dated April 28, 2022.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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