Seay v. Colvin
Filing
27
ORDER granting 17 Motion to Reverse; denying 20 Motion to Affirm. Signed by US Magistrate Judge Veronica L. Duffy on 3/27/2018. (CG)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
KATRINA JOY SEAY,
5:16-CV-05096-VLD
Plaintiff,
MEMORANDUM OPINION
AND ORDER
vs.
NANCY A. BERRYHILL, ACTING
COMM'R OF SOCIAL SECURITY;
Defendant.
Table of Contents
INTRODUCTION .............................................................................................. 1
JURISDICTION ............................................................................................... 2
STIPULATED FACTS ....................................................................................... 2
A.
Procedural History ............................................................................... 2
B.
Background ......................................................................................... 3
C.
Vocational Evidence............................................................................. 4
D.
Medical Evidence. ................................................................................ 7
E.
Claimant and Third-Party Statements ................................................ 43
F.
Testimony at Administrative Hearing ................................................. 52
G.
Opinion Evidence .............................................................................. 55
H.
ALJ Decision ..................................................................................... 61
I.
Issues Raised by Ms. Seay in this Appeal ........................................... 62
DISCUSSION ................................................................................................ 62
A.
Standard of Review. ........................................................................... 62
B.
The Disability Determination and the Five-Step Procedure. ................ 64
C.
Burden of Proof. ................................................................................ 65
D.
Whether the ALJ Erred by Finding Ms. Seay’s Fibromyalgia was not
“Medically Determinable”?.................................................................. 66
1.
The Commissioner’s Guidance for Evaluating Fibromyalgia ............. 67
2.
The ALJ Did Not Find Ms. Seay’s Fibromyalgia was a Medically
Determinable Impairment, but the ALJ Incorporated
Limitations from Fibromyalgia into the Physical RFC ...................... 69
3.
The ALJ Did Not Err in Failing to Obtain Dr. Frost’s Records .......... 70
E.
Whether the ALJ Erred by Assigning Considerable Weight to
Dr. Pelc’s Opinions? .......................................................................... 74
F.
Whether the ALJ Erred in Evaluating the Weight Given to the
Treating Therapist’s Opinion? ........................................................... 86
G.
Whether the ALJ Applied the Proper Standard to Determine the
Credibility of Ms. Seay and Her Mother’s Testimony? ....................... 102
1.
The Law Applicable to Credibility Determinations.......................... 102
2.
Summary of Ms. Seay and her Mother’s Statements ...................... 104
3.
Analysis of the ALJ’s Credibility Evaluations ................................. 109
H.
Whether the ALJ Erred By Relying on Total Numbers of Jobs in the
United States at Step Five? .............................................................. 116
I.
Type of Remand ............................................................................... 120
CONCLUSION ............................................................................................. 121
ii
INTRODUCTION
Plaintiff, Katrina Joy Seay, seeks judicial review of the Commissioner’s
final decision denying her payment of disability benefits under Title II and Title
XVI of the Social Security Act.1 Ms. Seay filed a complaint and has requested
the court to reverse the Commissioner’s final decision denying her disability
benefits and to enter an order awarding benefits. Alternatively, Ms. Seay
requests the court remand the matter to the Social Security Administration for
further hearing. The Commissioner asks this court to affirm its decision. The
matter is fully briefed and is ready for decision. For the reasons more fully
explained below, the Commissioner’s decision is reversed and remanded.
1Supplemental
Security Income (SSI) benefits are sometimes called “Title XVI”
benefits, and Social Security Disability (SSD/DIB) benefits are sometimes
called “Title II benefits.” Receipt of both forms of benefits is dependent upon
whether the claimant is disabled. The definition of disability is the same under
both Titles. The difference--greatly simplified--is that a claimant’s entitlement
to SSD/DIB benefits is dependent upon one’s “coverage” status (calculated
according to one’s earning history), and the amount of benefits are likewise
calculated according to a formula using the claimant’s earning history. There
are no such “coverage” requirements for SSI benefits, but the potential amount
of SSI benefits is uniform and set by statute, dependent upon the claimant’s
financial situation, and reduced by the claimant’s earnings, if any. There are
corresponding and usually identical regulations for each type of benefit. See,
e.g. 20 C.F.R. § 404.1520 and § 416.920 (evaluation of disability using the fivestep procedure under Title II and Title XVI). In this case, Ms. Seay filed her
application for both types of benefits. AR236-47. However, her coverage
status for SSD benefits expired on March 31, 2004, and she was never insured
at the time of her alleged onset date (10/16/12), in that quarter, or anytime
thereafter. AR261. The determination that Ms. Seay was never insured during
the necessary period to entitle her to Title II/SSD/DIB benefits was not
appealed to this court. Therefore, although she applied for both types of
benefits, it is accepted that she does not qualify for Title II/SSD/DIB benefits,
so this opinion discusses only her application for Title XVI/SSI benefits.
1
JURISDICTION
This appeal of the Commissioner’s final decision denying benefits is
properly before the district court pursuant to 42 U.S.C. § 405(g). This matter is
before this magistrate judge pursuant to the consent of the parties. See 28
U.S.C. § 636(c).
STIPULATED FACTS2
A.
Procedural History
On May 31, 2013, Seay applied for SSD benefits, alleging that she had
been disabled since October 16, 2012. AR236. On June 20, 2013, she applied
for SSI. AR238.
She had filed a previous claim for SSI on February 25, 2011, which was
initially denied on July 21, 2011.3 AR96, 109.
Prior to hearing, she was sequentially represented by Kay Cox, TANF
Disability Advocate (AR120-21); Christine Gingras, a non-attorney (AR122,
234); and Larry Plank, attorney (AR124-25).
The hearing was held in Rapid City on July 22, 2015. AR54. Testifying
were Katrina Seay, claimant; Robert Pelc, Ph.D., the ALJ’s [Administrative Law
The following statement of facts is taken from the parties’ joint stipulated
statement of facts. See Docket No. 16. The court has made minor modifications
such as grammar, punctuation, and incorporating the defined terms from the
parties’ glossary into footnotes at the appropriate place in the text. Also
various statements of fact were rearranged chronologically where appropriate.
2
The relevance of this date is that the window for reopening an SSI claim
closes if the claimant fails to re-apply within two years after the initial denial of
the prior claim. 20 CFR § 416.1488. Even then, SSA may reopen the claim only
if the agency finds there is good cause to do so, as defined in 20 CFR
§ 416.1489.
3
2
Judge] medical expert; Wilma Goehring, the claimant's mother; and Barry
Brown, vocational expert. JSMF 55. Seay was not represented. AR56.
Debra J. Denney, ALJ, issued an unfavorable step five decision on
August 26, 2015. AR25-47. On September 6, 2016, the Appeals Council denied
the request for review. AR1. Ms. Seay thereafter filed her appeal of the
Commissioner’s decision with this court on October 20, 2016. Docket No. 1.
B.
Background
Seay was born in 1983 in Oklahoma City. AR62, 511. She never knew
her father, and her mother was alcoholic, bipolar, and addicted to gambling.
AR511-12. She had three stepfathers by age 16, and was first sexually abused
by a stepfather at age seven or eight. AR511. At age 15 she was abusing
cocaine, methamphetamine, marijuana, and alcohol, completed treatment, and
remained abstinent. Id.
She lived in approximately seven foster homes, two residential facilities,
three detention facilities, and ran away multiple times. AR511. She was a
"cutter." AR668.
She reported struggling with her classes in school. AR69. She dropped
out of school in the ninth grade due to pregnancy. Id. She obtained her GED at
Wichita Area Tech College and stated that school was difficult for her. AR512.
She gave birth to her first child at age 16 while in foster care, and the
child was taken by Child Protection Services. AR511. She had another child at
age 20, gave him up, and regretted it. Id.
3
She married Nicholas Seay in 2004 in Alabama; they separated in
October 2006. AR237, 239.
She lost parental rights to her two youngest sons in 2010 in South
Dakota and exhausted her final appeal of the parental termination order in
2011. AR511. She became pregnant with a fifth child and moved to Kansas.
Id. She had her sixth child in January 2015. AR844.
At the time of hearing she was five feet, eight inches tall, and weighed
325 pounds. AR62. She was right-handed. Id. She was divorced and lived with
her two children, ages three and six months, in a rent-subsidized apartment in
Belle Fourche. AR62-63, 239. She received TANF and food stamps. AR63.
C.
Vocational Evidence.
Seay, by Ms. Cox, TANF Disability Advocate, stated in her disability
report that she had worked discontinuously as a cashier in a retail store,
fabricator and packager in a meat packing business, fuel attendant at a truck
stop, and refrigerator stocker in a retail business. AR281.
Seay testified that she left her last job, as a "fabricator and packager,"
due to sexual harassment. AR65. Before that she had a full-time job as a fuel
attendant, but when she "told the employer that I had medication that I needed
to take in order to keep staying working there, they dropped me to part-time
and dropped my benefits." Id. When she was hired full-time in this job, Social
Services dropped all services. Id. When the employer cut hours to part-time,
resulting in loss of benefits, Seay asked her employer to send a letter to Social
4
Services "so that I could provide for my daughter ... and they refused to do
that." AR66.
Before that she worked as a cashier. The ALJ asked, at hearing, "Did that
not work out?" Seay responded,
I have a lot of things that wind up being wrong in social settings
when I work....If something that happens while I’m working
triggers a PTSD [post-traumatic stress disorder] issue from my
past, whatever that traumatic thing might have happened in my
past, I get really anxious. I tense up really bad. I feel almost
claustrophobic like I can't get out of the situation.... I want to run
away and I want to get away from it, but whenever you're in a work
environment, you can't tell your employer, oh, I'm sorry, I'm having
an anxiety attack, I need a break.... When I have said that in the
past to an employer, they let me say that a couple of times before
they fire me.
AR66.
The ALJ asked about a job at Walmart from "June up to February of
2010." AR67. The ALJ asked Seay why she left that job. Seay testified:
The manager supervisor of my department who initially hired me,
understood my disabilities, understood that I was on medication to
keep working. He unfortunately did not put that in the file and
when he died suddenly which no one expected, the management
that took over said I'm sorry, we don't have any leniency for you
because nothing's in your file that says you take medication or
you're given certain exception. And when that happened, they
required me to do other things outside the scope of the work that I
had been doing.... And it made my physical and emotional
disabilities worse than they were. I tried three different positions in
that store after that in the course of a few weeks and none of those
were working. I got pregnant with my daughter.... I asked
management if I could move to another location in the store that
wasn't lifting heavy boxes or in a freezer situation because I was
pregnant and they said they didn't have anything available.
Id.
5
Seay's detailed work history is reported at AR248-51. The report shows
that from 1999-2012, she was employed by PNS, Inc. ($60.51), Burger King
($278.13), TB of America ($961.41 in 2000, $62 in 2001), McDonald's
($66.94), ITI Holdings ($30), King Soopers ($2569.83), Lane Holding Co.
($64.08), Westaff USA ($1078.38), K-Mac ($390.60), JAK ($3.78), Four Aces
Hotel ($94.65), Time Out Lounge & Bottle Shop ($1158.66), Midwest Motels of
Deadwood ($58.50), Mineral Palace Hotel & Gaming ($519.39), Decker's Food
Center ($452.45), Wendy's ($156.48), Wal-Mart ($1541.22), Labor Ready
Southwest ($10.13), HMC Hotel ($45.50), Wal-Mart ($472.36 in 2008,
$6821.90 in 2009, $9077 in 2010, $2747.85 in 2011, and $157.67 in 2012),
National Beef Packing ($3343.98), and Garden City Travel Plaza ($1996.79).
AR248-51.
Seay reported having worked in 20 or more jobs. "I was let go from all of
my jobs because I missed too much work because of migraines, or because I
was not able to socialize with customers, co-workers or the boss, or because I
asked them to accommodate my limitations and they were not willing to."
AR341.
She stated that her most successful work was at Walmart. She had
worked for Walmart in Spearfish but missed too much work and was fired.
AR341. She later worked for Walmart in Rapid City stocking from the
refrigerator to the floor. Her boss let her work most of her shift in the cooler. Id.
"I had an awesome boss who understood my problems, my limitations and the
effect of my medications. He was a kind man. He said you can stay in the
6
cooler, stock shelves, take your time; we will go by your limitations." This went
well for a long time and then he died. AR342. The job lasted a month after that.
She could not tolerate being out of the cooler, walked out and never came back.
Id.
D.
Medical Evidence.
Regional Health Physician flow sheets show that Seay's weight ranged
from 275 pounds on November 23, 2010, to 290 pounds on October 2, 2013.
AR435.
On August 5, 2012, Seay sought ER treatment for headache with
nausea, "similar to previous headaches." She was treated with Percocet4 and
Phenergan.5 AR394-95.
On September 11, 2012, Seay sought ER treatment for dizziness,
lightheadedness, and headache that started at work. AR375-79. The sole
abnormal finding was obesity. AR379. On September 12, 2012, she saw Ajay
Thakur, MD, to obtain a return-to-work form. She stated that she felt better
except for generalized fibromyalgia pain. Dr. Thakur discussed with her the
unclear nature of her illness and advised tests to rule out hypothyroidism.
AR386.
Percocet (Oxycodone/Acetaminophen) is an opioid used to relieve moderate to
severe pain. https://medlineplus.gov/druginfo/meds/a682132.html, accessed
March 26, 2018.
4
Phenergan (Promethazine) is a phenothiazine (dopamine antagonist) used to
relieve histamine reactions, anaphylaxis, to relax and sedate patients before
and after surgery, during labor, and to prevent and control nausea and
vomiting. https://medlineplus.gov/druginfo/meds/a682284.html, accessed
March 26, 2018.
5
7
Also on September 12, 2012, she sought treatment at C&S Medical
Clinic, where Marcia Snodgrass, NP, assessed shortness of breath, muscle
weakness, fibromyalgia, and unspecified chest pain. AR401-02. Ms. Snodgrass
prescribed Vicodin,6 Tramadol,7 and Lisinopril.8 AR402.
On October 10, 2012, C&S Medical Clinic saw Seay for muscle weakness,
unspecified chest pain, shortness of breath, and a skin mass. AR403-04.
Ms. Snodgrass refilled Lisinopril and Vicodin. AR404.
On November 29, 2012, Seay sought ER treatment at the Spearfish
Regional Hospital for a headache that was worse on the left side. Don Potts,
MD, recorded a long history of migraine headaches, that she used to be on
Vicodin and Tramadol and this decreased the frequency. He said symptoms
were positive for photophobia, nausea, vomiting and neck stiffness. He said she
had been diagnosed with fibromyalgia. Dr. Potts treated Seay with Toradol9 and
Phenergan IM. AR521.
Vicodin (Acetaminophen with Hydrocodone) is an opioid painkiller.
https://medlineplus.gov/ency/article/002670.htm, accessed March 26, 2018.
6
Tramadol (Ultram) is a narcotic used to relieve moderate to moderately severe
pain. https://medlineplus.gov/druginfo/meds/a695011.html, accessed
March 26, 2018.
7
Lisinopril is an angiotensin-converting enzyme (ACE) inhibitor used to treat
high blood pressure by decreasing chemicals that tighten the blood vessels.
https://medlineplus.gov/druginfo/meds/a692051.html, accessed March 26,
2018.
8
Toradol (Ketoralac) is an injectable NSAID used to relieve moderately severe
pain. https://medlineplus.gov/druginfo/meds/a614011.html, accessed
March 26, 2018.
9
8
On December 12, 2012, Seay was seen at Behavior Management Systems
for a Needs Assessment by Colleen Casavan, B.S., Therapist, and her clinical
supervisor, Jenny Greslin10, MSN, QMHP. AR510. She had been living in
Kansas, recently returned to Spearfish, and wanted to resume CARE
(Continuous Assistance, Rehabilitation, and Education11 for individuals with
severe and persistent mental illness) services. She was staying with her mother
in Belle Fourche along with her one-year-old daughter and boyfriend. Id.
She had discontinued CARE services in 2010. Ms. Casavan reported that
she had a clear direction on what she wanted: "I need case management again.
I have really bad anxiety, can't focus, and know I get 'sketched out' more than
other people do. I don't trust anybody." AR510.
Ms. Casavan reported that Seay feared her daughter could be taken away
if the Department of Social Services (DSS) knew she returned to the area since
parental rights to her two sons were terminated in 2010. She was trying to
secure an apartment and might want to apply for disability again. AR510.
Ms. Casavan summarized her prior treatment: in 2009 she had therapy,
case management, and medication management. AR510. In February 2009 she
was hospitalized at Rapid City Regional West (psychiatric hospital) because,
after Child Protection Services (CPS) took her sons, she had a suicide plan. Id.
In January 2010, angry with providers for not advocating to have her children
Signature is difficult to decipher, but Jenny Greslind is shown as the BMS
Northern Hills Site Supervisor at http://www.bmscares.org/aboutus/meetour-staff, last accessed March 26, 2018.
10
http://www.bmscares.org/services/major-mental-illness-adults, last
accessed March 26, 2018.
11
9
restored to her custody, she terminated services. During this time she saw a
private therapist in Black Hawk and thought the therapist was helpful until her
therapist went against her in court. Id.
Ms. Casavan summarized additional longitudinal history: psychiatric
hospitalization at age 18 after becoming homeless and losing her daughter;
hospitalization at age 15 for attempted suicide by overdose, followed by drug
and psychiatric treatment. AR510. She had been treated with Depakote,
Trazodone,12 Zoloft,13 Prozac,14 and Abilify15 and did not recall any
psychotropic medication being notably helpful. Her records indicated noncompliance. She was currently on Tramadol and Vicodin for fibromyalgia. Id.
Ms. Casavan reported that Seay had a history of five C-sections. AR510.
Prior records showed that at age 15 she was beaten up in a group home, had a
Trazodone is a serotonin modulator used to treat depression; it is also used
to treat insomnia and schizophrenia.
https://medlineplus.gov/druginfo/meds/a681038.html, accessed March 26,
2018.
12
Zoloft (Sertraline) is a selective serotonin reuptake inhibitor (SSRI) used to
treat depression, OCD, PTSD, and social anxiety disorder.
https://medlineplus.gov/druginfo/meds/a697048.html, accessed March 26,
2018.
13
Prozac (Fluoxetine) is a selective serotonin reuptake inhibitor (SSRI) used to
treat depression, OCD, and panic attacks.
https://medlineplus.gov/druginfo/meds/a689006.html, accessed March 26,
2018.
14
Abilify (Aripiprazole) is an atypical antipsychotic used to treat symptoms of
schizophrenia or episodes of mania or mixed episodes of mania and depression
in adults with bipolar disorder. It is also used with an antidepressant to treat
depression that cannot be controlled by antidepressant alone.
https://medlineplus.gov/druginfo/meds/a603012.html, accessed March 26,
2018.
15
10
CT scan, and a pineal cyst was found but not followed up. AR510-11. She had
had migraine headaches since age 11. At age 5 she broke her arm and at age 6
she broke her leg (falls). AR511.16
By age 16 she had had three stepfathers. She had an older half-brother
and younger half-sister. AR511. She reported a childhood marked by physical,
emotional, and sexual abuse. Id. At age 7 a stepfather sexually abused her.
Twice she lived with maternal grandparents. Id. She was in about seven foster
homes from age 14-18. She was in two residential facilities and three detention
facilities. She ran away multiple times. Id.17
She gave birth to her first child at 16 while in foster care. She gave birth
to four more children, and the youngest was a year old. AR511. She was
married from 2004-06. During the marriage her husband was incarcerated and
she had a boyfriend. Child Protection Services removed her sons due to reports
of her boyfriend physically abusing them. Her rights were terminated and she
exhausted her appeals in 2011. Id.18
She moved to Rapid City, became pregnant with her [sixth] child, and
shortly before that child's birth moved to Kansas. AR511. She "struggled" with
public assistance in Kansas and returned to South Dakota, bringing her
boyfriend. Id.
16
The Commissioner disputes the relevance of this paragraph.
17
The Commissioner disputes the relevance of this paragraph.
18
The Commissioner disputes the relevance of this paragraph.
11
Regarding substance use, Ms. Casavan recorded that Seay entered
treatment at age 15 for multiple substance and alcohol abuse and she denied
further use of drugs. AR511.
Ms. Casavan related that Seay had several jobs, mainly cashiering, that
she was unable to keep because the hours did not work with the day care
schedule. She planned to keep looking for employment. AR512.
Ms. Casavan reported that appearance, affect, and posture were
appropriate. Mood was anxious, appropriate, depressed, and relaxed. Thought
content was paranoid with suicidal ideation. Body movements were
appropriate. AR512.
Ms. Casavan reported that remote memory was fair, insight was poor,
judgment was fair, and energy level was moderate. AR512-13. Ability to
manage daily living activity and make major decisions was fair. AR513.
Speech was appropriate. Thought process was concrete, organized, and rigid.
She related to the examiner in a way that was "average." Id. Facial expressions
were appropriate and provocative. Id.
Ms. Casavan discussed a diagnostic formulation of "Mood Disorder NOS."
AR513. She listed symptoms that supported the diagnosis: anxiety, difficulty
concentrating, poor focus, excessive worry on a daily basis, restlessness, and
extreme irritability. Id. Seay reported minimal symptoms of depression. Id. She
reported at times experiencing racing thoughts, distractibility, and poor
decision-making, but not the extreme ups and downs that might indicate a
strong bipolar disorder diagnosis at this time. Id. A “rule out of personality
12
disorder NOS” was appropriate as Seay had a long history of relationship
conflicts including personal and work related, and inappropriate behavior
within the community, specifically the court system. Id. She admitted to
deceitfulness and manipulation. Id.
Ms. Casavan listed Seay's strengths: she sought services on her own and
recognized the importance of finding a sense of stability to improve her and her
daughter's life. She was very independent and articulated her needs well.
Although she struggled with trusting others she seemed willing to seek the help
she needed. AR513.
Under the heading "SPMI" (severely and persistently mentally ill) Criteria,
introduced by the general criterion, "The individual's severe and persistent
emotional, behavioral, or psychological disorder has resulted in at least one of
the following," Ms. Casavan checked these boxes: "A single episode of
psychiatric hospitalization" and "Has undergone psychiatric treatment more
intensive than outpatient care more than once in a lifetime." Under the
category "impaired role functioning," requiring the presence of three criteria,
Ms. Casavan checked: “Is unemployed or has markedly limited job skills
and/or poor work history;” “Lack of social support systems in a natural
environment;” and “Requires public financial assistance for out of hospital
maintenance.” AR514. Ms. Casavan recommended the CARE Program Intensive. Id.
On December 27, 2012, Ms. Casavan saw Seay to develop a case service
plan tailored around securing income to support her and her daughter,
13
managing her anxiety through case management, medications through her
primary care provider, and therapy. AR505.
On December 29, 2012, Seay sought treatment for migraine headache at
the Spearfish ER. She had photophobia, said she was unable to keep anything
down, and endorsed eye pain. On exam she had a facial droop on the right
side; the patient said this was normal and had occurred during the delivery
process. AR423.
On January 15, 2013, Samantha Martinez, BMS case manager19, said
Seay's appearance was disheveled and her mood was anxious. She wanted
Martinez to go to a meeting with her at the DSS office where she was applying
for a cash credit program but was hoping to not have to work, volunteer, or
apply. Martinez told her she had to comply with the regulations. AR503. Seay
wanted Martinez to sign a document so she would not have to work, volunteer,
or apply, but Martinez told her that was not an option since her case was newly
opened; she suggested that she could write a letter that Seay was receiving
services. Id.
On January 22, 2013, Seay called Ms. Martinez threatening to pack her
van and leave because no one was helping her. AR500. Martinez explained that
she was being treated the same as everyone else. Seay again wanted
Ms. Martinez to sign a document stating that because of her mental disability
she was not able to work. Ms. Martinez suggested that Seay sign a ROI for her
Needs Assessment to be released to DSS. Id. Seay did not want to release it:
19
Inferred because she referred to herself as "CM." AR503.
14
"[D]o you not understand.... This is how I lost my kids last time why would I do
that same thing again.” AR500-01. Seay told Ms. Martinez that she was not
allowed to come to her house, to stay away, and then hung up. AR501.
On January 23, 2013, Seay sought treatment for migraine headache at
the Spearfish ER. AR525. She stated she'd had one a month for three months.
She said that Tramadol made the headaches much less frequent but she was
out. Id. Her blood pressure was 140/100. Lee Bailey, MD, treated her with
Toradol, Benadryl,20 Zofran,21 and IV fluids. He gave her a small amount of
Tramadol and Vicodin. Id.
On January 28, 2013, Forrest Brady, MD, Regional Health Physicians in
Spearfish, saw Seay for the first time. AR431. She reported migraines, a right
wrist cyst, fibromyalgia, anxiety, hip and back pain. Id. Dr. Brady recorded that
she had an extensive history involving fibromyalgia diagnosed by Dr. Steven
Frost at the pain clinic in 2010. Id. He had recommended injections but Seay
Benadryl (Diphenhydramine) is an antihistamine that is also used to treat
insomnia. https://medlineplus.gov/druginfo/meds/a682539.html,
accessed March 26, 2018.
20
Zofran (Odansetron) is a serotonin 5-HT3 receptor antagonist, blocking the
action of serotonin causing nausea and vomiting.
https://medlineplus.gov/druginfo/meds/a601209.html, accessed March 26,
2018. SSRIs exert their beneficial effects in depressive syndromes by increasing
brain serotonin levels. They also increase serotonin levels in other tissues,
particularly the GIT, which contains 90% of the body’s store of serotonin and
large numbers of serotonin-responsive cells. Increased serotonergic
neurotransmission causes anorexia, nausea, vomiting and diarrhea in other
settings, such as carcinoid syndrome, so gastrointestinal adverse effects are
not unexpected with drugs that increase tissue serotonin levels.
http://link.springer.com/article/10.2165/00023210-199708050-00005,
accessed March 26, 2018.
21
15
had needle phobia and chose not to. Seay told Dr. Brady that her headaches
were markedly better so long as she took Tramadol or Vicodin regularly. She
stated that she took Promethazine for migraines, which were provoked,
frequently, by anxiety. Id. Dr. Brady diagnosed Anxiety State, unspecified;
Chronic Pain Syndrome; and Lumbago. AR432. Dr. Brady noted that Seay was
accompanied by her mother. Id. He said she weighed 281 pounds, BMI 42.7,
and was obese. He placed her on Cymbalta22 and gave Seay a prescription for
Hydrocodone23 prn for any pain not covered with the Cymbalta. AR433.
On February 11, 2013, Dr. Brady said that on Cymbalta 30 mg. Seay
was using a little less Vicodin. She felt quite a bit better and more wakeful.
AR429.
On February 14, 2013, Shannon Howard, LPC, QMHP24, BMS therapist,
reported her and Seay's first session. AR516. The focus was grief and loss over
the loss of her two sons to the State. She feared this could happen with her
daughter, was stressed and worried all the time. Id. Ms. Howard assessed SPMI
criteria, which were unchanged. AR516-17. Ms. Howard and Seay planned
counseling 1-4 times a month, and stated the measure of success:
Cymbalta (Duloxetine) is a selective serotonin and norepinephrine reuptake
inhibitor (SNRI) used to treat depression and generalized anxiety disorder.
https://medlineplus.gov/druginfo/meds/a604030.html, accessed March 26,
2018.
22
Hydrocodone is an opioid used to relieve severe pain in people who are
expected to need medication to relieve severe pain around-the-clock for a long
time. https://medlineplus.gov/druginfo/meds/a614045.html, accessed March
26, 2018.
23
http://www.bmscares.org/about-us/meet-our-staff, accessed March 26,
2018.
24
16
She will know she is successful when she is able to go out in
public and not look over her shoulder, which she does all the time;
when she is not isolating as much; and when she feels she has
dealt with her grief and is not triggered by visual reminders to the
point that she is overwhelmed with sadness each time.
AR508-09.
On March 4, 2013, Ms. Howard recorded that Seay felt trapped in her
home out of fear of seeing people she did not want to see. She had gained little
insight. She did refrain from impulsively moving forward with a homeless man
she met on line. AR596.
On March 6, 2013, Ms. Casavan reported that Seay was "very disturbed"
because an agency contacted her for help finding her ex-husband to serve civil
papers. AR495. The State was also pressuring her for information about the
father of her child as she was receiving assistance and this was a requirement.
Id. She said she wanted nothing to do with the father, would not say who he
was, and planned to talk with her DSS worker about it. She lived in constant
fear of CPS entering her life again. Id.
On March 12, 2013, Ms. Casavan reported that Seay "focused on her
recent lottery win” and the stress of deciding what to do with it. AR493.25
On March 15, 2013, Dr. Brady saw Seay for a complaint of "bad
migraines." AR422. She said her back pain was better on Cymbalta, "knows
when she misses a dose." She gave a history of "[h]umongous stress and
anxiety." She was interested in seeing a chiropractor for her migraines. Id.
Dr. Brady again assessed chronic pain syndrome; anxiety state, unspecified;
25
The Commissioner disputes the relevance of this paragraph.
17
and headache. He agreed to refer her to a chiropractor. Dr. Brady prescribed
medications including Cyclobenzaprine, Cymbalta, and Hydrocodone, noting
that she was "quite careful" with use of Hydrocodone. Id.
On March 19, 2013, Seay had therapy with Shannon Howard. AR491.
On March 20, she had a session with Ms. Casavan. AR489. On March 26,
2013, she had a therapy session with Ms. Howard. AR486-87.
On April 1, 2013, Seay met with Ms. Casavan. AR485. She said she was
seeing a chiropractor. Id.
On April 15, 2013, Dr. Brady assessed her conditions, reported that she
weighed 279, and reported their discussion of her possible pregnancy and how
to address it. AR414.
On April 15, 2013, Ms. Casavan recorded Seay's complaint of a lot of
anxiety, said she was in a pleasant mood but was no longer on speaking terms
with the girl she developed a recent friendship with, who has been staying with
Seay, along with her son. AR481. Seay would not allow her back into her home
while drunk, and the girl accused her of kidnapping her son. Id. No charges
were made. Id. Ms. Casavan commended Seay for ending the friendship. Id.
Ms. Casavan stated, “Katrina also shared she found out she is five weeks
pregnant.” Id. “She has concerns about having to get off pain killers due to her
chronic pain.” Id.
On April 16, 2013, Ms. Howard recorded that Seay had met a man on the
internet and now she was pregnant with her "6th whoops" pregnancy. AR479.
18
She had immediately weaned off medication but said she could not function
without it. "Katrina was very disorganized in thought today and scattered from
subject to subject, seemingly overwhelmed with this news." Id.
On April 24, 2013, Seay saw Regan Hill, MD, Regional Health Physicians,
Spearfish, for obstetric care. AR451.26
On April 26, 2013, she met with Ms. Casavan to talk through problems
and conflicts. AR477.
On May 5, 2013, Seay was treated at the Spearfish ER for miscarriage.
AR527.27
On May 14, 2013, Ms. Howard provided therapy and helped Seay process
her loss. Ms. Howard reported that Seay spoke in a slow, deliberate, focused
manner; had a flat affect; and had met a man amidst this crisis. "Katrina will
not financially help this man come see her." AR474-75.
On May 21, 2013, Seay met with Ms. Howard. She was upset and angry
because she saw her old therapist, involved in a past child custody case, in the
waiting room. Ms. Howard helped her work through the anxiety. AR473.
On May 22, 2013, Seay was brought to the ER by emergency medical
services after she swerved to miss an animal and ended up in three inches of
water in the ditch. Dr. Krista Birkelo wrote, "She is terrified of water and had
an anxiety attack." She had paraspinal tenderness, was alert and oriented with
26
The Commissioner disputes the relevance of this paragraph.
27
The Commissioner disputes the relevance of this paragraph.
19
intermittent confusion. The clinical impression was concussion and neck
strain. AR530.
The CT of her thoracic spine showed multiple small Schmorl's nodes,
small anterior and lateral osteophytes, and mild levoscoliosis. AR534.
Cavum septum pellucidum28 was revealed by a brain CT in the course of
workup after her May 22, 2013 car accident. AR533.
Cavum Septum Pellucidum:
Center for Science & Law, Neurolaw Class. 1999. "Psychopathy: a
Misshapen brain." The septum pellucidum is a region associated with the
limbic system that first forms as bilateral tissue flap in the ventricles. During
late development, the two tissue flaps fuse together to form the septum. If the
two tissue flaps do not fuse, then it creates a cavity between the ventricles
known as the cavum septum pellucidum (CSP) and the CSP is a structural
marker of limbic system maldevelopment. A June 2010 study by Dr. Adrian
Raine at the University of Pennsylvania found that individuals with a cavum
septum pellucidum (CSP) were more likely to exhibit antisocial or psychopathic
behaviors. http://www.neulaw.org/blog/1034-class-blog/3276-psychopathy-amisshapen-brain, accessed March 26, 2018.
............
British Journal of Psychiatry. Aug 2010. 197(3) 186-192. Raine et al.
"Neurodevelopmental marker for limbic maldevelopment in antisocial
personality disorder and psychopathy." Individuals with a [cavum septum
pellucidum] have significantly higher levels of antisocial personality,
psychopathy, criminal charges and convictions compared with those lacking a
CSP. http://bjp.rcpsych.org/content/197/3/186.full, accessed March 26,
2018.
............
Psychiatry Res. 2010 Feb 28; 182(2):108-113. Beaton et al. "Increased
incidence and size of cavum septum pellucidum in children with chromosome
22q11.2 deletion syndrome." "Given the variety of conditions in which enlarged
cavum septi pellucidi is found, it is most appropriate to consider this anomaly
as a nonspecific marker for disturbed brain development."
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2904971/, accessed March
26, 2018.
..........
Neurology MedLink. Original June 16, 1995, last updated March 9,
2017. Barth et al. "Cavum septi pellucidi and cavum vergae." The midline
cavities are essentially temporary embryonic structures that involute during
late pregnancy and infancy. Persistence of these structures beyond this period
28
20
On June 4, 2013, Skylar Bransky, BMS CARE Emergency Services,
reported a 54-minute phone call from Seay. AR467. Seay stated she wanted to
leave her house, take off and run away from everything. AR469. She'd had an
argument with the car mechanic about getting her car back, the police came to
her door at 6:30 p.m., and she would not let them in. They said they would get
a warrant, and she finally talked to them. Id. They told her that her only option
to get her car back was small claims court. They wanted to know if she was
going to hurt herself. She said no, and they left. On May 31, 2013, she had
gone to tow her car away from the mechanic because he had not fixed it and
she needed to turn in her rental car. Id. He called the police and she spent the
night in jail. Ms. Bransky reported that Seay agreed that Ms. Bransky and
Ms. Howard would come up with a plan of action before she resorted to
disappearing. Id.
On June 7, 2013, Heather Armstrong, LPC, QMHP, Behavior
Management Systems, reported that Seay was having stress related to law
enforcement, her mom, a limited social support system, and a mechanic not
does not cause any symptoms but is statistically related to malformations and
psychiatric disturbances, mainly dependent on size.
http://www.medlink.com/article/cavum_septi_pellucidi_and_cavum_vergae.
Accessed March 26, 2018.
..........
Psychiatry Res. 2010 Feb 28;181(2):108-13. Beaton et al. Cavum septum
pellucidum occurs with chromosome 22q11.2 deletion, and a "large CSP may
be a biomarker of atypical brain development. The implication of these larger
CSP for cognitive and behavioral development is a topic in need of further
investigation.” Increased incidence and size of cavum septum pellucidum was
found in children with chromosome 22q11.2 deletion syndrome.
http://www.ncbi.nlm.gov/pubmed/20074913, accessed March 26, 2018.
21
fixing her car. AR466. Seay stated that police had come to her house twice this
evening because of a theft her mother reported via the internet. Seay said she
would not answer the door, she feared arrest and loss of custody of her
daughter, and this was creating significant anxiety. Id. She denied stealing
money from her mother. She talked about relocating to an area where she
could address her anxiety in a more supportive environment. Id.
On June 10, 2013, Ms. Howard reported that Seay was very emotional,
her face was flat, and her emotions were blunted. Her daughter was with her
and Seay showed patience and proper parenting skills. AR471. Her Camaro
was still in the possession of the mechanic. She had given him half the money
to fix it, and he would not fix or return the car until he received the rest of the
money for repair. Id. Her van was broken down, she had used her insurance
money to fix the Camaro, and had to return the rental car. She had been
arrested for disorderly conduct when she went to get her car and had to be in
court on June 28, 2013. Id. Ms. Howard helped her process her irrational
thoughts about leaving Belle Fourche just because of her mom. It was decided
that Seay would "focus on what she can control, Zy, herself, and finding a way
to fix the car." AR471.
On June 18, 2013, Ms. Howard reported that Seay was excited because
"a businessman" paid for her car to be towed and repaired, lent her a car,
charged her only $1,000, and asked her to pay what she could. AR463. Seay
"processed her disbelief that there were good people out there." Id.
22
On June 27, 2013, Ms. Casavan and her clinical supervisor, Randy
Allen, reported a six-month review. AR577-79. During this period, Seay had
found housing, accessed DSS and other programs, began therapy, and received
medications from her primary care physician. AR578. She was pregnant,
miscarried, and processed those feelings fairly well with her therapist. Id. In
June she was in crisis over financial difficulties with her vehicle; was in conflict
with her mother, who accused her of theft via the internet; and there was police
involvement and an arrest for disorderly conduct. Id. She indicated she still
feared Child Protection Services involvement, but had been successful avoiding
further involvement. The BMS reviewed listed factors constituting medical
necessity for continued services: Seay struggled with ongoing anxiety, struggled
with problem-solving skills and poor decision-making, had a limited support
system, and struggled with interpersonal relationship issues. Id. Without
services she could turn to impulsive decision-making leading to legal issues,
CPS involvement, and setback in the progress made toward mental health
recovery. Id.
On July 9, 2013, Ms. Howard recorded that the man Seay dated for a
week was in jail for violating a TRO. "When he is bailed out she will let him
move in...."AR572. "Therapist challenged Katrina that ... she must focus on
the red flags she sees instead of the feelings. Therapist also reminded her she
has only known him for one week...." AR571.
On July 17, 2013, Ms. Howard wrote, "She did listen to her instincts and
did not use her car title for bail but instead used the money he had which he
23
was upset about but later understood. Her issues include his smoking,
drinking, and potential for wanting to use her money...." AR569. On the other
hand, he was "good with Zy, goes to work, a good mechanic, and treats her
nice." AR570.
On July 18, 2013, Ms. Casavan reported that this man stole gas from her
vehicle, tried to steal her pain medications, and she filed a police report.
AR568. "She seems to realize she needs to get to know someone before allowing
them to stay with she [sic] and her daughter or try to fix their issues." Id.
Ms. Casavan added that Seay had made it to court last week regarding her
disorderly conduct charge "involving heated argument with an officer while
trying to get her car back from a mechanic." Id.
On July 23, 2013, Ms. Howard wrote that she continued in the
relationship, that the man had agreed to treatment, and Seay hoped he could
get his drinking under control. AR566.
On July 25, 2013, Ms. Casavan and Seay discussed the relationship with
this man and her lack of financial stability. Seay was in the pre-contemplative
stage with regard to finding employment. AR564.
On July 30, 2013, Seay sought ER treatment for a migraine. She stated
that she'd had a headache more than a week, had sought chiropractic
treatment earlier in the day without improvement, and had vomited four times.
AR535. A pregnancy test was negative. AR536. The ER provider treated her
with Toradol and Zofran. Id.
24
On August 19, 201329, Ms. Casavan called Seay, who said she was doing
"okay," and reported that there was a warrant for her arrest for failing to
appear in court last month. AR562. Ms. Casavan attempted to offer solutions
"but Katrina struggled with accepting any responsibility with the situation nor
how to address it.” Id. Ms. Casavan wrote that the case manager “encouraged
[Seay to] consider having her mother watch her daughter in case she needs to
go to jail,” but Seay stated “she would rather have CPS step in than have her
mother watch Zi." Id. Seay said she had little money and had used most of her
resources and the communities'. Ms. Casavan offered to travel to Belle Fourche
to see her, but Seay did not answer the phone when Ms. Casavan called back
to set a time. Id.
On August 21, 2013, Seay returned Ms. Casavan's call and spent a great
deal of time talking about finding affordable car insurance.30 AR560.
Ms. Casavan asked about the warrant for missing her court date. Seay did not
want to "figure" that out right now. Ms. Casavan explained the consequences
and Seay said little. Id.
On August 27, 2013, Ms. Howard wrote that Seay reported ending the
relationship with "Billy." AR557. Seay talked about her fears of being alone, of
being like her mom, and bringing men in and out of her daughter's life. Seay
Seay's schedule with BMS included at least weekly visits. There may be
missing records for the previous month.
29
30
The Commissioner disputes the materiality of this information.
25
reported feeling overwhelmed, alone, and frustrated. They agreed that she
would try to stop going on websites to find men. Id.
On August 28, 2013, Ms. Casavan reported, "Katrina said her TANF has
been shut off for the month of September due to not complying with child
support paperwork identifying the father of her child. She is very angry about
this...." AR555. She subsequently was told that if she completed her paperwork
by Friday she would receive her benefits again. Seay expressed anxiety about
having her daughter's father involved in the future. Id.31
On August 30, 2013, Seay told Ms. Casavan she was "a little happy as
she met someone on-line. She does seem to have some insight as she
recognizes this may not be a good place to start a relationship however is in the
precontemplative stage of change." AR553. Seay was ambivalent about her car
dilemmas, whether to get rid of one to be able to repair the other. "CM followed
up on Katrina's plans regarding her missed court date however she doesn't
plan to address this at this time despite negative consequences that may
follow." Id.32
On September 10, 2013, Ms. Howard reported that progress was
minimal, and isolating had increased. AR540. Ms. Howard assessed overall
progress as "unsatisfactory." "Katrina has had many issues that have taken
away from her ability to meet her goals.... Without continued services Katrina
is most likely to report an increase in mental health symptoms.” Id.
31
The Commissioner disputes the relevance of this paragraph.
32
The Commissioner disputes the relevance of this paragraph.
26
On September 12, 2013, Ms. Casavan reported that Seay had requested
a meeting in the park instead of her apartment, which was being inspected.
AR549. She felt too anxious to be in her apartment "as she doesn't like people
in her home." There were several things she had been told to fix that she had
not gotten to. "CM encouraged her to take responsibility by following through
and addressing concerns before they turn into issues leading to increased
anxiety. Katrina was receptive however did not commit to changing her
behaviors." Id.
On September 17, 2013, Ms. Howard reported a therapy session. AR547.
She "challenged irrational thoughts ... and encouraged Katrina to take things
slow with relationships...." AR546.
On September 24, 2013, Ms. Howard reported a therapy session in which
Seay tearfully processed the relationship with the man she was with when her
children were taken. AR545. Ms. Howard noted that Seay was “struggling that
she still has feelings for him." Id. "The session ... focused on these feelings of
loneliness and not being understood." Id. The plan: "Katrina will try to get out
of the house once this week." Id.
On September 27, 2013, Seay sought ER treatment for "acute on chronic
back pain" after moving furniture at her apartment. AR590. She had difficulty
moving her right leg due to pain. She was treated with Toradol and Norflex, and
given a prescription for Flexeril. She had a prescription for Norco at home. Id.
On October 2, 2013, Ms. Casavan wrote, "Katrina reports that she has
been struggling with severe anxiety related to stressful situations.” AR543. She
27
had gone off her Cymbalta when she miscarried and had a PCP appointment to
get back on. Id. She reported an extensive history of back issues. Id.
On October 2, 2013, Dr. Brady referred Seay to an obstetrician, with the
note: "Pregnant, trying to decide if she can continue with pregnancy." AR411.
Height and weight were 68 inches and 290 pounds. AR409.
On October 8, 2013, Ms. Howard reported that therapy focused on Seay's
issues with her mother. The plan: "Katrina will think about attending a social
at her daughter's head start program to meet other moms and try to build
social support." AR647.
On October 14, 2017, Ms. Casavan reported that Seay continued to have
car issues, hoped SSI would resolve this, and seemed disinterested in other
alternatives. AR645. She had been able to get back on medication and was
starting to feel that she was managing her stress better. She was afraid to
renew her driver license due to the outstanding warrant. Id. Regarding a former
alcoholic boyfriend: "She said she plans to drop him off at his halfway house
today." Id. Ms. Casavan supported this. She said that due to CARE
restructuring, Seay was to be assigned to a new case manager. Id.
On October 15, 2013, Ms. Howard reported that the focus of therapy was
the male friend who was in rehab. AR643. "Katrina will not accept phone call[s]
from this man this weekend as she is gaining insight that she puts herself
around others that are needy to avoid rejection...." Id.
28
On October 22, 2013, the new case manager, Dana Studt, reported that
Seay discussed stressors revolving around transportation, and struggled to
follow through with ADLs like bathing, cleaning, and laundry. She often felt
overwhelmed. AR641.
On October 29, 2013, Ms. Howard reported the focus of therapy was
Seay's disappointment in her mother and a growing friendship with a female
friend, Jenna. AR639.
On November 5, 2013, Ms. Howard worked with Seay on the pros and
cons and potential boundaries she needed to set so as not to be drawn into a
relationship she did not want. AR637.
On November 8, 2013, Ms. Studt helped Seay find a dentist who took
Medicaid. AR635. Ms. Studt wrote that Seay had concerns about anxiety levels
and Ms. Studt helped her compile a list of concerns to take to her PCP at an
appointment this afternoon. Id.
On November 8, 2013, Seay saw Dr. Brady. AR585. She wanted
medication to get through the anxiety of seeing the dentist. She told Dr. Brady
that the anxiety about just making an appointment was almost too much for
her. Id. "She apparently does not always think things out well at the time...."
Id. Dr. Brady increased her Cymbalta to 90 mg. AR588. He prescribed
Lorazepam33 1 mg. an hour before the procedure and she could repeat at the
time of the procedure if she needed to. Id.
Lorazepam (Ativan) is a benzodiazepine used to relieve anxiety. It is also used
to treat irritable bowel syndrome, epilepsy, insomnia, nausea and vomiting
from cancer treatment, and agitation caused by alcohol withdrawal.
33
29
On November 12, 2013, Seay saw Ms. Howard, reporting a plan to get a
guy to buy a car that she would use. She had mixed feelings about this, and
Ms. Howard reviewed pros and cons and how to maintain boundaries. AR633.
Also on November 12, Shawn Bitz of BMS reported that "Katrina called in
tears" because her dentist said to take four Lorazepam tablets before her visit,
and she did. AR631. The dentist appointment was then canceled. She stated
that she had been "out of control and sedated" all day and her mother took
care of her child but left before Seay was ready for her to leave. Id. "Katrina
called in an almost panicked state, afraid she would not be able to take care of
her child." Id. She was able to walk, was aware of her surroundings, knew the
date and day, and calmed down in the course of the conversation. Id.
On November 13, 2013, Ms. Studt spoke with Seay on the phone after
Seay failed her appointment. Seay said she had taken 5 mg of Lorazepam the
day before, for a dentist appointment, and blacked out. Seay said she would
call her case manager when she felt recovered enough to drive. AR628.
On November 22, 2013, Ms. Studt wrote that she "phoned Katrina back
after she left CM a frantic voicemail stating that she needed help." AR627. Seay
was currently pulled over, with her daughter and a friend, and a policeman
wanted to arrest her on her bench warrant. Seay demanded that Ms. Studt
drive to Belle Fourche to either give her $275 to pay the fine, to keep her from
being arrested, or to take her daughter. Id. Ms. Studt reviewed the limitations
of case management. Seay was not receptive, again made demands, and
Ms. Studt "enforced boundaries." Seay hung up on the CM. Id.
30
On November 25, 2013, Ms. Studt reported a phone conversation with
Seay, who said she was calmer today and had arranged with the police to
address the warrant. Seay told Studt that she should have come on Friday,
when told to, as the case manager was her primary support. Ms. Studt
"validated feelings," reviewed Seay's role in this, and Seay "hung up on CM."
AR625.
On November 26, 2013, Ms. Howard reported a conversation in which
Seay related that she had been pulled over for a license plate violation and was
informed that she had a bench warrant. AR623. She spent 45 minutes trying to
finding someone to give her $200 or watch her child, and she was not able to
get ahold of her mother. Id. Seay said this resulted in her "losing it on Dana"
and was unsure if the relationship could be fixed. She found out she was
getting $15 too much for housing and would be evicted if she could not pay
$200 by the end of the day. Id. This put her in "emotional tailspin" and "she
fled to Keystone" to the house of a man she has been talking to on a dating
site. "Everything was perfect about the night except the location of where he is
living and lack of running water.” Id.
On December 9, 2013, Ms. Studt stated that Seay acknowledged
behaving poorly during the last interactions with her CM. AR616. Seay was
again seeing someone she met on a dating site. "CM expressed concern that
Katrina's boyfriend is already living with her and expressed possible safety
concerns regarding her daughter. Katrina...agreed to not allow her boyfriend to
have unsupervised contact with her daughter until she knows him better." Id.
31
On December 10, 2013, Ms. Howard stated the main features in a
therapy session:
Katrina reports that things with Mike have evolved to going up
there for Thanksgiving and him coming home with her.... He has
been with her a few weeks and she has no issues. She feels he is
motivated to get a job, willingly looks for work, and is helpful with
Zy and supportive of her. One concern is his cigarette and drinking
habits that she is supporting now while he looks for work but feels
he is communicating that he ... will reimburse her.
AR619. Ms. Howard encouraged her to "please take things slower...." She met
Mike "who was polite and appeared attentive to Zy." Id.
On December 11, 2013, Dr. Brady recorded that Seay was doing much
better on Trazodone for sleep and planned to use Trazodone for her next dental
appointment. AR925. Assessments included chronic pain syndrome; anxiety
state, unspecified; sleep disturbance, unspecified. AR927. He continued
Hydrocodone for pain. Id.
On December 16, 2013, Ms. Studt helped Seay "process stressors" on the
phone. AR617. She stress the importance of "addressing things in a timely
manner as this tends to be easier than fixing them down the road." Id. "Katrina
did not agree to apologize for her behavior today." Id.
On December 17, 2013, Ms. Howard reported that Seay expressed
frustration and anger that "Mike has left.... She is also reporting she is
pregnant due to a mix of antibiotics while on birth control. She is upset that
mom was willing to buy Mike liquor, cigarettes, a phone card and drive them
up there to drop him off yet she never offers to help her financially." AR614.
32
Now she was "strapped for cash as he contributed nothing." Seay was
discouraged and upset. Zy was extremely disruptive in session. Id.
On December 23, 2013, Ms. Studt stated that Seay continued to have
difficulty taking responsibility but did acknowledge her part in her current
situation, adding, "I just don't want to talk about that right now." AR612. She
vented and expressed some sadness that her relationship was over and her
former boyfriend was already living with someone else. Id.
On January 7, 2014, Ms. Howard observed that Seay looked "high" and
upset. AR610. Seay stated that she had so much anxiety having to leave her
apartment that she took three Valium instead of the normal two. Seay stated
that her pain was so high, and anxiety so high, she was having a hard time
functioning at all. Id. She said her house was not in the normal clean state as
she spent time scrubbing her mattress and had thrown out all sheets. Id. She
was upset that she had not protected her daughter and felt guilty that she
allowed this man into her home. Zy had no idea what happened, was not alone
with the man, and did not witness anything. Seay reported that she was raped
in her bedroom, a knife was involved, and she would not go into further detail
but blamed herself for letting him in. Id. Now she was taking care of Zy but
that was it. Id. "She crashes when Zy sleeps and has not been able to leave the
house yet reports not even feeling safe in her house as it is where the rape
occurred.” Id. “She states that the cops have informed her there is not enough
evidence to press charges as it is her word against his.” Id. “She had difficulty
gaining insight due to being on higher dose of medication" Id.
33
On January 21, 2014, Ms. Howard reported therapy focusing on how
Seay could get her life back on track and pull herself out of a financial mess.
AR608. She did not want to discuss the rape. She would focus on not bringing
someone into her life to save her but get through each day on her own and get
out of the house. Id.
On January 28, 2014, she did telephone case management with
Ms. Studt. AR606. They discussed current legal issues. "Katrina displayed little
insight today into the role she has played in these situations and took little to
no personal responsibility." Id.
On February 3, 2014, Seay sought ER treatment for migraine headache
and vomiting. AR592-93.
On February 5, 2014, Ms. Studt recorded that Seay hoped the judge
would throw out her case on Friday, that due to ongoing migraines her PCP
had referred her to a neurologist, and that her therapist did not feel group
therapy would be appropriate at this time. AR604.
On February 5, 2014, BMS reported its six-month review. Progress
toward Seay's goal ("deal with my stress better" (AR714)) was satisfactory.
AR715. "Although Katrina can often be insightful, she was not able to meet her
objective over the last six months." The therapist noted that in six months she
had entered into three short-lived relationships and reported that she felt
happier and more emotionally stable when in a relationship. Id. The BMS
report also noted: “Although she seems receptive to the idea that she is
34
intelligent enough to go on to further her education and possibly work,
provided her anxiety is better-managed, Katrina is primarily in the
precontemplative stage of change." Id. She remained fairly crisis-oriented, due
in large part due to her tendency to avoid dealing with issues. Id. “For instance,
her failure to address an old medical bill resulted in having her Medicaid
coverage suspended. Other examples were noted. Id.
Medical justification for continued services was stated:
Katrina continues to require the support of the CARE program as
she works towards recovery. She often reports that her high
anxiety prevents her from following through with various
tasks/appointments; she is currently working with her [PCP] in
finding a satisfactory medication plan. She may benefit from
increased support from her case manager in this area[.] Katrina’s
choices and patterns of avoidance often create stressful situations
from [sic] her. Continued support from both her case manager and
therapist may help Katrina make improvements in this area[.] If
she were to close from services at this time, Katrina would likely
stop making progress and could potentially require hospitalization.
AR715.
On February 14, 2014, Ms. Casavan stated that Seay clearly had
developed more insight, although she continued to have a pattern of on-line
relationships and was thinking of moving to a different state "where an on-line
relationship is." AR599-600. Her legal troubles had been resolved and she was
to write an apology letter to an officer. AR600.
On February 17, 2014, Seay saw Helen Kuehlman, DO, at Regional
Health Physicians for acute pharyngitis. AR949. It was noted that she needed
to see Dr. Brady to sign a pain contract in order to fill her Vicodin. Id.
35
On February 25, 2014, Ms. Howard reported that "things with the man
from Wyoming are not going to work as she is catching too many [red] flags....
She met another man today whom she liked until she heard he was in
shelter...." AR598.
On March 25, 2014, Ms. Howard reported another case service review
noting that Seay was feeling overwhelmed by life stressors, leading to isolation
and increased depression. The measure of success was to get out of her house
and engage in one activity a week, use skills to deal with stress, make
decisions best for her and Zy, and emotional stability. AR722-23. Her progress
had been unsatisfactory, with two pregnancies, two miscarriages, a rape,
numerous relationships with men only to be left financially more challenged,
continued strained relationship with her mother with her mother twice
notifying the police to do a welfare check, continued isolation, interactions with
law enforcement, and struggles with reliable transportation. AR726. Medical
necessity for continued services was found: "Without ongoing therapy Katrina
would most likely deteriorate to the point of needing hospitalization and
potentially lose custody of her child. Id.
On June 3, 2014, Dr. Hill saw Seay for her pregnancy and listed
diagnoses, assessments, history and treatment plan: maternal obesity
syndrome, history of five cesarean deliveries, high-risk pregnancy, primary
fibromyalgia syndrome, backache. AR750-51.
36
On June 20, 2014, Dr. Kuehlman reported that Seay came to the clinic
with her case manager to establish care. AR943. They discussed how to treat
her conditions, and what medication to use or avoid in view of her pregnancy.
AR946.
On July 24, 2014, the BMS six-month review was reported and a new
case service plan was created. AR705-13. The current goal was to "deal with
my stress better." AR705. Progress toward this goal was "satisfactory" and
"Katrina continues to struggle to manage her anxiety and stress." AR 706.
Katrina acknowledges that she does not always address important issues in a
timely manner and finds them more overwhelming when they have become
emergencies.... On a few occasions, Katrina did stop attending appointments,
did not return calls, and isolated in her apartment. She has since set up her
voicemail and has been returning messages in a timely manner. Katrina had
two miscarriages and is now thirteen weeks pregnant. She recently contacted
an adoption agency in California and did meet prospective parents. Id. She
had not made a decision about adoption. Id. "Dr. Brady refused services after
Katrina had missed several appointments," and she changed to a new PCP. Id.
Medical necessity was found for continued services. AR712. A new CSP
(case service plan) was developed. Id. The objective: "I would like to work on
moving to Spearfish" where she did not have conflicts with anyone and would
be better able to access BMS and medical care. AR708.
On July 22, 2014, Ms. Studt reported a case review and new service
plan. AR704-10. Clinical supervisor Greslin signed off. AR707. The main goal of
37
the plan, as stated by Seay, was: "I want to be able to leave the house and
really, honestly feel happy about taking my child to the park." AR708. The
statement of medical necessity noted significant progress toward recovery.
AR706. She was said to have excellent insight into her tendency to avoid
stressful situations until she could no longer ignore them.
Continued encouragement and assistance may help Katrina
improve her ability to address things in a more timely manner,
thus reducing stress and anxiety.... If she were to close from or
reduce services at this time, she would likely have difficulty moving
through the stages of change, could become increasingly isolated
and depressed, and might become increasingly dependent on the
system.
AR708.
On September 30, 2014, Ms. Howard reported that she and Seay worked
out a new goal with a March 28, 2015 target date. AR693. The goal was to
"learn how to be better, to deal with life instead of ignore the problems, to be
able to do what I need for Zy and me and figure out what to do about the baby.
I want to make better choices." Id.
On November 11, 2014, Jessica Donner, Regional Health Physicians,
reported an OB visit. The patient was no longer doing adoption due to stress
and planned to keep the baby. She reported that she got fuzzy spots in her
vision when she changed positions. AR792-93.
On January 15, 2015, Marvin Buehner, MD, at Black Hills Ob-Gyn,
reported that Seay would have a C-section on January 21, 2015. AR663. She
had some complications with the procedure. AR663.
38
On January 29, 2015, Jessica Myers, BMS, wrote an individualized
action plan (IAP). Objectives were identified to achieve the goal to obtain
housing. The goal would be met when Seay made it to the top of the Section 8
voucher list, which could take 12 months. AR689. Goal 3, "I want to be able to
handle normal life," would be supported by continued communication and
work with case management. AR690. The goal would be considered met when
Seay felt more comfortable handling daily activities outside the home. "Katrina
gets anxiety when she leaves her home to do anything." She also had anxiety
having people come into her home. Id. Goal 4 was to get back on medications
when Seay was done breast feeding. AR691. "Katrina does not have a current
psych eval so she cannot get meds through a PCP or our CNP. Id.
On March 10, 2015, Ms. Howard discussed Seay's goal: “[L]earn how to
deal with stress and be able to take care of me and Zy." AR685. Ms. Howard
noted that Seay got anxiety when she left her home or had people come into
her home and when she had to talk to someone in authority. AR686-87. The
new goal, "Handling my emotions so I can take care of my kids and deal with
stress better," would be met by getting out of the house three times a week,
feeling able to take care of kids and self, managing emotions better,
communicating with mom better, and "anxiety not at 10 when out of house."
AR687.
On March 19, 2015, BMS medication management was reported by Ann
Hodgman, RN, MSN, CNP. AR672-73. She reported the History of Present
39
Illness (HPI): “[A]dmits crying spells, helpless/worthless, irritable/angry yelling, throw[ing] objects, wt is up due to implanted birth control; sleeping 6
hrs per night due to being up with the baby; wakes up worrying, biggest stress:
finances; panic attacks daily for years; avoids crowds; handwashing to excess,
check locks.” AR668. At age 15 she had been a cutter. Id. In 2008 she was
suicidal, triggered by the loss of her kids, but she did not make a suicide
attempt. Id. The HPI continues: “[E]xcess energy - pressured speech/no need
for sleep – lasted 1 day - 1x per week for years occurs more often the
depression lasting one week, mind racing, mood swings, troubles focus/ADHD
in childhood - no dx no tx.” Id. Seay rated anxiety at 10 and depression at
7/10. She denied feeling hopeless, hallucinations, homicidal. Id. She had not
been on mental health medications since 2009. Id. She was previously on
Prozac and Abilify, she could not remember how long. Id.
Ms. Hodgman reported the longitudinal history set out above, with minor
variations and inaccuracies (oldest child age 29). AR669. She reported the
foster care and the abuse. AR670. She reported Seay’s history of pregnancies –
children ages 15, 10, 8, 7, 3, and 2 months, with several fathers. Id. She
reported the ages of the children when Seay lost them: 14 months, at birth, 14
months, and two and one-half years. Id. Ms. Hodgman reported her mental
status examination: Appearance and posture normal. Build was overweight.
Eye contact was intense. Attitude toward examiner was mistrustful. Mood was
anxious. Seay was tearful. Her affect was labile. Speech was over productive.
40
Thought process was logical, perception was normal and she denied
hallucinations. Thought content was characterized by preoccupations and
ruminations, and was depressive and self-deprecatory. Seay stated, "I hate the
lady who took my kids away from me." Her cognition appeared normal and
Ms. Hodgman estimated average intelligence. Regarding capacity for insight,
Seay had difficulty acknowledging psychiatric problems. Regarding judgment,
her ability to make reasonable decisions was impaired. AR671. Ms. Hodgman
assessed mood disorder, generalized anxiety disorder, and unspecified
personality disorder. She prescribed Lamictal34 and Hydroxyzine.35 Id.
On April 14, 2015, Dr. Kuehlman reported that Seay wanted a referral to
pain management for chronic back pain that made it difficult to get going in
the morning. Seay reported that her back pain was made worse by bending
over. AR856. She stated that Seay's anxiety level was up since having her son,
she was more on edge, and she could snap a little easier than usual. Id.
Dr. Kuehlman examined Seay and reported that she was morbidly obese, had
an abnormal slightly flat affect, poor dentition, and a crowded airway. AR859.
Lamictal (Lamotrigine) is an anticonvulsant also used to increase the time
between episodes of depression, mania, and other abnormal moods in patients
with bipolar I disorder. It has not been shown to be effective when patients
experience the actual episodes and other medications must be used to help
people recover from these episodes.
https://medlineplus.gov/druginfo/meds/a695007.html, accessed March 26,
2018.
34
Hydroxyzine (Atarax, Vistaril) is an antihistamine used to relieve allergic
itching; it is also used alone or with other medications to relieve anxiety and
tension. https://medlineplus.gov/druginfo/meds/a682866.html, accessed
March 26, 2018.
35
41
She assessed chronic pain syndrome and planned a pain management referral.
She assessed anxiety and planned a psychiatry referral. She assessed
depressive disorder and prescribed learning about mood disorders. Id. She
addressed contraception. She recommended a DASH diet to help her elevated
blood pressure, and exercise. Id.
On April 29, 2015, Lisa Kautzman, MSN, CNP, QMHP for BMS, reported
a 20-minute session for medication management with psychotherapy.
AR700-04. Ms. Kautzman reported the HPI: "mood/sleep/anxiety; She states
the symptoms are chronic and are fairly controlled. I am not so great." AR700.
Her mood was anxious. AR701. Judgement, in terms of the ability to make
reasonable decisions, was impaired. Id. Her diagnoses were unspecified
episodic mood disorder, anxiety, dysthymic disorder, and adjustment disorder
with mixed anxiety and depressed mood. AR702. The medication Lyrica36
caused edema, and Lorazepam made her feel hung over. Id. Active medications
were Lamictal, Hydroxyzine, and Duloxetine. Id. Ms. Kautzman wrote a
medication plan: "Went off Lamictal and Hydroxyzine, attempt Buspirone37 and
Lyrica (Pregabalin) is an anticonvulsant used to relieve neuropathic pain. It
is also used to treat fibromyalgia.
https://medlineplus.gov/druginfo/meds/a605045.html, accessed March 26,
2018.
36
Buspirone (BuSpar) is an anxiolytic used to treat symptoms of anxiety
disorders. https://medlineplus.gov/druginfo/meds/a688005.html, accessed
March 26, 2018.
37
42
restart Cymbalta.” AR703. She discussed a trial of Trileptal.38 She said to keep
stress low; monitor mood, sleep, and anxiety; and engage in therapy with
Shannon Howard. Id.
On May 27, 2015, Ms. Kautzman assessed unspecified episodic mood
disorder, dysthymic disorder, posttraumatic stress disorder, and adjustment
disorder with mixed anxiety and depressed mood. AR696. She adjusted the
medication doses and discussed a trial of Trileptal. AR698-99. She said to keep
stress low and monitor mood/sleep/anxiety. AR698.
E.
Claimant and Third-Party Statements
On March 23, 2013, Crystal Bach, Social Security employee, reported a
telephone communication with Seay. AR99. Ms. Bach stated that Seay was
"slow to come up with answers and then gave answers not for the questions
asked." AR99. The DDS examiner reported that Seay failed to respond to letters
asking her to call. AR100.
On June 20, 2013, Seay submitted her first disability report. AR 278.
She named her mother, Wilma Faith Goehring, as someone who could be
contacted to help with her claim. AR278. The report was completed by Kay
Cox, of the Department of Labor in Spearfish. AR279. Medical conditions
alleged were fibromyalgia, anxiety, depression, migraines, back pain, anemia,
right leg shorter than left causing uneven hips and pain, confusion/anxiety in
public settings, "slips and falls easily," and PTSD. Id.
Trileptal (Oxcarbazepine) is an anticonvulsant that is also used to treat
bipolar disorder.https://medlineplus.gov/druginfo/meds/a601245.html,
accessed March 26, 2018.
38
43
Seay, by Kay Cox, reported that she was five feet, eight inches tall and
270 pounds. Id. She stated that she stopped working because of her conditions
and other reasons, specifically sexual harassment and false claims. AR280.
She believed that her conditions became severe enough to prevent work on
February 15, 2002. Id. The level of formal schooling was not reported but she
completed a GED in 2000. Id.
The disability report stated that she had been treated at Hintgen
Chiropractic Clinic in 2013 for "[w]hiplash, migraines, back pain, hips, neck."
AR284. She was in counseling with Diana Smith, MSW, at Serenity Mental
Health in Black Hawk in mid-2010 for anxiety, depression, PTSD, attempted
suicide, and possible multiple personality disorder. AR285. Her primary care
providers at Spearfish Regional Medical Clinic from "2003(?)" to April 2013
were Kerry Greer, Dr. Forrest Brady, Dr. Regan Hill, and Dr. Kullerd, who
treated her for "miscarriage, something on uterus found by ultrasound,
fibromyalgia, back pain, hip pain, anemia, depression, anxiety, migraines, cold
sores." AR286. Dr. Steven Frost, West River Anesthesiology Consultants, had
seen her from Fall 2010 to mid-2011 for pain management and psychiatric
management. AR287-88.
Seay, by Kay Cox, stated in her disability report that she felt she should
have been in special education because of problems concentrating, that she
had migraines from age 12 on, that it took three days to recover from a
migraine, and that medications (to enable work) caused high blood pressure
44
that made her feel like she was going to pass out. She stated, "Had much
abuse in my childhood and I'm still dealing with the after-effects." AR289.
On July 1, 2013, Seay completed a DDS "Function Report." AR291. She
stated,
I have severe anxiety that makes me freak out. I don't show it on
the outside but on the inside my heart is pounding, blood pressure
goes up, I sweat, and I can’t focus on the task at hand. Because of
these things I mess up on my job. This has happened with every
job I have had including being fired. I don't have good boundaries
and it has caused problems in my jobs.
AR291.
Seay reported her daily activities at AR292, continued at AR298:
I wake up when my daughter wakes me, from 8:30 - 11 a.m. I take
care of daughter's need. Have more low energy days than normal
or high energy days. Only wash dishes when everything is dirty.
On bad days when I ... [AR292] emotionally can’t tolerate anything
we don’t leave the house. I try to buy enough groceries so we don't
have to leave the house. Feel horrible and rotin [sic] for not taking
daughter outside. When I feel like this I lay in bed, watch tv, play
games on computer while my daughter is in her room playing or
watching cartoons. I’ve been known to play Nintendo all night and
forget to sleep. I go to bed anywhere from 9 PM to not at all.
She reported that she took care of her daughter's daily needs and no one
helped. AR292. In response to other questions she wrote, "Since 8 years old I
have had problems so hard to remember." Id. "The illnesses and injuries cause
me to zone out therefore not sleeping." Id. "I often only bathe when I’m too dirty
or smelly." Id.
Seay said she needed reminders to take medicine: "either someone
remind me or something beeping - don't have either." AR293. She responded
that she made "quick meals if it can’t be made in less than 10 min it takes to
45
much energy;" she put off laundry and dishes "till I am out of clothes or dishes,
and "if I do nothing else it can take me up to 2 days to wash laundry and
because of the way I have to wash dishes so as to not be in pain the dishes
never get caught up." Id. She wrote, "I have to take pain meds in order to do the
laundry or stand up to wash dishes for longer than 5 min". Id.
Seay wrote that she went outside "only when my emotions can handle it."
AR294. She rode or drove in a car. Id. She stated that she could not go out
alone: "get paranoid if I’m by myself". Id. She stated that she shopped for
groceries, for her daughter's needs, and for car parts, and that she did so "only
as little as possible and only as needed." Id. She said she was able to pay bills,
count change, use a checkbook and money orders, and handle a savings
account. Id.
She watched tv and listened to music in the car. AR295. She chatted and
played games on Facebook with friends every day. Id. Asked where she went on
a regular basis, she responded, "only go to appointments or necessary places."
Id. In response to the question about how often she went to church,
community center, social groups, etc., she wrote, "don’t go." Id.
To the question about problems getting along with others, she wrote,
"have a strained and dysfunctional relationship with my mom." AR296. She
wrote, "I use to do things with friends and be more social. Have problems with
trust based on past experiences." Id. To the question asking what abilities were
affected, she did not check any boxes and wrote, "My issues effect all of the
above but my medications make them tolerable." Id.
46
She stated that she could walk 4-5 blocks and resumed walking "when
my chest quits being tight and my breathing is no longer shallow." AR296. To
the question, how long can you pay attention, she wrote, "not very long get side
tracked." Id. She said she did not finish what she started. Id. In response to the
question how well she followed written instructions, such as a recipe, she
wrote, "if I haven’t done it before I follow it very well". Id. She wrote that she did
not follow spoken instructions very well. Id.
She wrote that she did not get along with authority figures: "not at all
recently went to jail for arguing with cops." AR297. She said she had been fired
because of problems getting along with others. Id. She wrote, "have had to take
more breaks than other people because I overreact to various things."
Id. She said this happened at Walmart where she did not handle stress "at all."
Id. She said she did not handle changes in routine "at all." Id. She
acknowledged unusual behavior or fears "because of traumatic things that
have happened in my life." Id.
Seay reported side-effects of medications: Cymbalta caused face sore and
dry mouth; and Vicodin caused "nausea, dry mouth, itchiness". AR298.
In her reconsideration disability report on December 6, 2013, Seay
reported a "new condition:" "Scoliosis found after injury to back." AR309. She
reported seeing a chiropractor for "Pain in hips, back, neck, Migraines." AR310.
She reported seeing Behavior Management Systems for "Depression
Anxiety, PTSD, anxiety in public places I always have problems with
paperwork: I don't process information correctly, or turn things in on time. I
47
also have problems dealing with organizations. When I don't understand, I get
anxious, then angry and burn bridges when I don't mean to." AR310-11. She
reported having 1:1 counseling and case management, which "helps me
decipher which is the best thing to do and what order to do them in because
my head doesn't compute it right." AR311.
She reported going to Spearfish Regional Hospital on September 28,
2013:
Back became very painful while I was cleaning. Pain was so bad
that I could barely move. I could not get out of the car without
much help due to pain in legs, hip and back. Hospital personnel
had to help me out. Had to be transported via wheelchair.
Someone else had to drive me home and help with everything for
two days including caring for my daughter.
AR311-12. She reported her medications and side-effects: antibiotic for rash
that is a side-effect of Cymbalta; Baclofen for tense and cramping muscles,
with side-effect of sleepiness; and Cymbalta for anxiety & fibromyalgia, with
side-effect of "[s]ores on face, arms, stomach, dry mouth, dizziness when
standing, muscle twitching if I forget to take it." AR312. She reported taking
Meloxicam for inflammation and pain. She took Vicodin for pain and
fibromyalgia and had side-effects of itching, constipation. Id.
She reported, "If Fibromyalgia is flared up I'm unable to do daily tasks
such lifting, cleaning, can only climb stairs very slowly, can't walk any
distance." AR313.
On April 30, 2014, she completed a third disability report in which she
stated, in response to the question were there new limitations,
48
I don't have any desire to go anywhere or do anything. The only
reason I do go anywhere is because I know my daughter needs to
it. I recently found out I am pregnant so I cannot take any of my
medications.... I was also raped on New Years Eve 2013 which has
emotionally affected me, made me even more depressed, more
anxiety, and not wanting to leave my house.
AR318.
Asked how her illnesses, injuries, or conditions affected her ability to
care for her personal needs, Seay wrote,
Only shower on days I have to go to appointments which means
that I also stay in the same clothes and dont [sic] do anything with
myself, make bare minimum of food for myself and daughter, my
daughter dresses herself or else she may stay in the same clothes
also.... dont [sic] leave my house, do less housework and laundry
as I dont [sic] have the desire or energy.
AR321.
On January 8, 2016, Seay stated that when she worked at Walmart she
was on "excessive pain killers and muscle relaxers. I was diagnosed with
fibromyalgia in 2010, but I was allergic to Lyrica and had to take medications
that affected my judgment." AR341. Seay also stated, “I pulled double shifts
when my boys' case went all wrong and I worked in order not to deal with it.
Pain helped me not deal with it. Sleep and work, that was my existence when I
was going through the parental termination proceedings." AR342.
Seay's mother, Wilma Faith Goehring, completed a third-party function
report. AR299. She reported seeing Seay from 2 hours a week to 4 hours a day.
Id. She stated that Seay lived in apartment with her toddler daughter. Id.
She stated, "When Katrina is out among people she takes on a personality that
is usually acceptable to who she is associating with. But behind closed doors
49
she is worn out from a fake self." Id. Ms. Goehring stated that Seay did "[v]ery
little house cleaning, migraines a lot, sleeps a lot." Id.
Ms. Goehring reported, "Her 3 story apartment is very physical for her
hips to go up and down." AR300. Ms. Goehring stated that Seay took care of
her daughter, i.e., cooked for her, did her laundry and bathed her, and played
with her. Id. Ms. Goehring stated that she helped her daughter: "When her
laundry and housework have been piling up, usually because of migraines &
hip pain, I go over to help play with Zyriah and do part of the work." Id.
She stated, "Katrina has been like this since birth, but has progressively
gotten worse." AR300. She stated, "Over sleeps alot. Fear of the public energy
keeps her behind locked doors and sometimes keeps her awake for 48 hrs,
then migraine, then sleep." Id.
Ms. Goehring stated, regarding house and yard chores, "Katrina can do
it all if she doesn't have to contemplate seeing anyone." AR301. She stated, "A
chore may take her all of one day or all of two weeks, according to outside of
home associations." Id.
At times she could not do chores: "Appointments with the outside of
herself world, including me can cause so much emotional stress that she gets
migraines and cannot do house chores." AR302. She went out "As seldom as
possible" due to "Fear of a migraine caused from social stress." Id. She drove a
car and could go out alone. Id. She shopped in stores and by computer for
food, children's clothes and toys, and car needs. Id. She shopped at night if
possible, noting that Walmart was open for 24 hours. AR303.
50
Ms. Goehring said Seay played Nintendo "as an addiction." AR303. She
said that Seay played with her daughter often. Id. She wrote: "Progressively
over her years she has become more re-clusive and has been in more pain." Id.
"She doesn't go anywhere if she doesn't have to." Id.
Ms. Goehring wrote, "I am her mother. I could write a book on her social
issues from 5 yrs old and on. S.S. Teachers, Foster homes, My Mom's home,
social service, & police." AR304. She wrote that from age five to 15, Seay "tried
to obey," that from age 13-18½ she was in foster homes, and from "18½ to now
- a whole nother [sic] book". Id.
Ms. Goehring said, regarding written instructions, that "A Recipe is fine Essay written instruction is bad. She reads too much into what is instructed".
AR304. As for spoken instructions, "Not very well if she doesn't want to. Or if
there are too many variables she stresses out & can't follow thru". Id.
Ms. Goehring stated that Seay did not get along well with others and
"Always tries to tell authority how they are suppose [sic] to do their job
including how I should be a mother to her." AR305. Also, "She reads too much
into the conversation, then stress migraines and pain kick in." Id. This had
happened with "All employers." Id. Ms. Goehring stated that her daughter did
not handle stress well. Id. "She either calls the cops to come 'fix it' or becomes
very reclusive and not even open her door to me." Id. She did not handle
changes in routine "at all." Id. "She fears people, including me at times." Id.
Ms. Goehring reported, "At 17 yrs she had her 1st baby. Her physical
pain in the lower back became very bad. With each pregnacy [sic] and delivery
51
her back pain has worsened. The many jobs she has attempted to do end
negative because of pain or/and fear of others." AR306.
F.
Testimony at Administrative Hearing
On July 22, 2015, Seay testified that she had other evidence that she
would like to submit: "some history from when I was a teenager." AR59. The
ALJ told her, "that really wouldn't be probative of the time period that we're
going to be talking about." Id.
The ALJ stated that she would consider the period from about May 30,
2012, to the present. AR61. She stated, "what I show for ... impairments ... is
that you have a diagnosis of fibromyalgia." Id. The ALJ noted a diagnosis of
migraine headaches and scoliosis. AR62. Seay testified that scoliosis caused
back and hip pain. Id.
She had a driver license and a car. Her mother paid for car insurance
and gas. She drove once or twice a week. AR63. She drove to therapy
appointments at Behavior Management Services where she had had weekly
appointments with her therapist, Shannon Howard, for two and a half years.
AR 64. Seay was "not real clear" what her mental diagnosis was. Id. "Maybe
PTSD, anxiety." Id.
Seay testified that she had difficulties getting primary care providers to
give ongoing medication for her migraines, or "what they call chronic pain
issues." AR76.
The ALJ asked, "Did anyone officially diagnose fibromyalgia...?” AR76.
Seay testified, "Yes. Dr. Frost ... with the pain management clinic at the Rapid
52
City Hospital ... [t]he end of 2010." Id. The ALJ asked if she took medication for
that, and Seay said she did not. Id.
The ALJ asked, "Are you having financial constraints getting your
medication?" AR77. Seay said, "No. I'm having medical constraints getting my
medication." Id. The ALJ asked what she did for her fibromyalgia pain, and
Seay said she had been seeing a chiropractor for two and a half years "in
combination with the initial medication and doctor that was willing to prescribe
these things.... He referred me to this chiropractor which is Dr. Tony
Hintgen...." Id. Seay testified in response to the ALJ's question that, for her
migraines, she had tried OTC medications and they did not do much. Id.
She testified that when she had no medications for migraines she went to the
emergency room. Id. The ALJ asked how many times in the last couple years,
and Seay was not sure and estimated "over ten." AR78.
The ALJ asked if she had trouble remembering to go to her
appointments, and Seay said she did. AR78. In response to the ALJ's
questions, Seay said she had anxiety sitting in a full waiting room, tension at
the hearing, and that it bothered her if someone sitting next to her wanted to
chat. AR79.
Seay testified that her difficulty interacting with people began in 2000
and got significantly worse the end of 2008. AR79. She did not see her baby's
father anymore. AR79-80. She did not belong to any clubs or have coffee with
people who lived in her apartment building. AR80. An Early Head Start teacher
53
came into her home once a week for her daughter "[b]ut I really don't like
people in my home." Id.
Seay's mother, Wilma Goehring, testified that she saw her daughter
about once a week. AR81. She said she offered to help with the children "a lot.
Katrina doesn't -- she's too paranoid sometimes to let people around her,
including myself." Id. Seay would ask her mother to go with her to an
appointment that was stressful. AR82.
Ms. Goering testified that her daughter's "emotionally functioning
happened when she was five and ... she's been in and out of foster care as a
teenager I got my degree in psychology, just so I could be the best mom I could
be without the guilt trip that borderline puts on you." AR83. She testified that
she thought her daughter had a borderline personality disorder. Id. She stated,
"She's called the police on me when I've knocked on her door before, she
doesn't want me there." Id.
Ms. Goehring stated that "Shannon at Behavior Management is the best
counselor that Katrina has had in all these years." AR83. "[S]he goes through
caseworkers and counselors like crazy." Id. The ALJ asked about Seay's ability
to mother her children and Ms. Goehring testified that she worried about the
children, "Absolutely," when her daughter did not answer the phone or the
door, and wondered "how much is she shutting life out that the children are
not getting to experience," although she was pleased that Head Start was
coming into the home. AR84-85. "I chalk that up to Shannon knowing
dialectical behavior therapy." AR85.
54
Ms. Goehring testified that Seay had "emotional issues of being able to
keep a doctor consistently." AR86. "She gets the doctors so confused in her
methods of communication that doctors don't want to see her anymore....
This last pregnancy, she goes through three or four OB doctors in one
pregnancy." Id. Ms. Goehring said the same thing happened with counselors
and attorneys: "she goes through them like crazy is [why] she doesn't have an
attorney with her here today ... because she's had lots of attorneys say we don't
want to deal with you...." Id.
Ms. Goehring testified that Seay was "not a pain pill addicted person.
This runs in our family. The stress of the fibromyalgia, the pain, the muscle
aches, ... and then if you put any kind of emotional issue on top of it, you've
really got lots of stress." AR87.
G.
Opinion Evidence
On October 11, 2013, Kevin Whittle, M.D., DDS non-examining
physician, opined a physical RFC for light work (occasionally lifting and/or
carrying up to 20 pounds and frequently lifting and/or carrying up to 10
pounds, sitting, standing, and/or walking for six hours in an eight-hour
workday. AR 104. Dr. Whittle stated reasons: "Limitations due to widespread
chronic pain related to fibromyalgia." Id. Dr. Whittle opined postural limitations
that permitted occasional climbing of ramps and stairs, ladders, ropes, and
scaffolds; occasional stooping and unlimited balancing; occasional kneeling,
crouching, and crawling. AR105. He opined that she had no manipulative,
visual, communicative, or environmental limitations. Id.
55
On October 17, 2013, Eleni Muntz, Ph.D., non-examining psychologist
for DDS, listed Seay's diagnoses: fibromyalgia, migraine, anxiety and affective
disorders. AR102. Dr. Muntz opined "mild" restrictions in the first three "B"
criteria and opined no episodes of decompensation of extended duration. Id.
Dr. Muntz stated reasons: C&S Medical Clinic on October 10, 2012 noted
"negative for anxiety depression and sleep disturbances." Id. Behavior
Management reported that Seay was in therapy to help with various
psychosocial stressors and past "trauma" and to address issues regarding her
relationship with her mother. Id. She had been off her Cymbalta at one point
and realized she needed to get back on it. Id. Dr. Brady said she had
situational depressive disorder and anxiety and was "in no acute distress." Id.
According to her function report, Seay lived with family and had no problems
with personal care, simple meal preparation and simple household chores,
could drive and go out alone, shop and manage finances, was sociable, could
follow basic instructions and complete questionnaires. Id. She reported
problems adjusting to change and coping with stressors. AR103. Her mother
said Seay could read simple instructions. Id. Her mother said Seay had
interpersonal problems as she "tends to tell people how they are supposed to
do their job." Id. Dr. Muntz opined that with medical compliance her symptoms
would be stable. Id.
On March 18, 2014, Jerry Buchkoski, Ph.D., non-examining DDS
consultant, opined a PRTF and mental RFC that agreed with Dr. Muntz's.
AR114-15.
56
On March 18, 2014, Tom Burkhart, M.D., non-examining DDS
consultant, opined a physical RFC that agreed with Dr. Whittle's. AR116-17.
On January 5, 2015, Shannon Howard completed a Mental Impairment
Questionnaire (stamped received by ODAR on July 16, 2015). AR964-71.
Ms. Howard reported seeing Seay weekly since March 19, 2013. AR964. She
reported Seay's Axis I and II diagnoses were 296.90, Mood Disorder NOS, and
301.9, Personality Disorder NOS. Id.
Ms. Howard checked signs and symptoms: Poor memory, mood
disturbance, emotional lability, social withdrawal or isolation, decreased
energy, anhedonia or pervasive loss of interests, feelings of
guilt/worthlessness, difficulty thinking or concentrating, persistent irrational
fears, generalized persistent anxiety, hostility and irritability. AR 964-65. She
listed other symptoms: worry, past trauma/loss, self-blame, depression,
sleepless[?], difficult interpersonal relationships. AR 965.
Ms. Howard listed clinical findings: Ongoing anxiety, depression,
relational issues, difficult[y] leaving house, anhedonia, irritable, lack of
motivation, worry, fear. AR 965. She stated that Seay was not a malingerer. Id.
Ms. Howard stated the prognosis: "Will need ongoing therapy for some time."
AR966. She estimated that Seay's impairments or treatment would cause more
than three absences per month. AR967.
Ms. Howard assessed Seay’s ability to do unskilled work as follows: fair
ability to remember work-like procedures; fair ability to understand, remember
and carry out short and simple instructions, make simple work-related
57
decisions, and be aware of normal hazards and take appropriate precautions;
poor or no ability to maintain attention for two hour segment; maintain regular
attendance and be punctual within customary, usually strict, tolerances;
sustain an ordinary routine without special supervision; work in coordination
with or proximity to others without being unduly distracted; accept
instructions and respond appropriately to criticism; get along with coworkers
or peers without unduly distracting them or exhibiting behavioral extremes;
respond appropriately to changes in a routine work setting; and deal with
normal work stress. AR968.
Ms. Howard provided an explanation of the limitations in the fair and
poor categories: "Anxiety & depression affect focus and motivation & history of
not dealing or working well w/ others." AR969. Ms. Howard added that Seay
had a "history of not being able to follow through" Id. Ms. Howard assessed
"poor or no" ability to interact appropriately with the general public, maintain
socially appropriate behavior, travel in unfamiliar places, and use public
transportation. Id. Ms. Howard explained her assessment: "history of issues w/
public, unknown places & leaving house." AR970.
Ms. Howard assessed "marked" restriction of activities of daily living,
"marked" difficulties maintaining social functioning, "marked" deficiencies of
concentration, persistence or pace resulting in failure to complete tasks in a
timely manner; and "three or more" episodes of deterioration or
decompensation in work or work-like settings which caused withdrawal from
58
the situation or exacerbation of signs and symptoms (which may include
deterioration of adaptive behaviors). AR970.
Robert Pelc, Ph.D., testified at the July 22, 2015 hearing. AR68. Prior to
hearing, the ALJ had sent him a letter stating that he was receiving copies of
pertinent medical exhibits and a list of exhibits. AR216. He testified that he
had reviewed the "F" exhibits through 22F. AR69. He identified the mental
impairments that he was able to find established. The first category was
affective disorder characterized in multiple ways as mood disorder NOS,
dysthymic disorder, major depressive disorder, and adjustment disorder with
mixed emotional features involving depression and anxiety, and situational
depression. AR70. The second category was anxiety-related disorders
characterized as either generalized anxiety or post-traumatic stress disorder.
Id. The third category was personality disorder "not otherwise specified." AR7071.
Dr. Pelc opined that Seay had "mild" restriction of activities of daily
living; "moderate" limitation in her social functioning; "moderate" difficulties in
maintaining concentration, persistence, or pace; and "zero" episodes of
decompensation of extended duration. AR71. Dr. Pelc opined that she had
"generally clear thinking process, but at times, distracted or disrupted by her
anxiety." AR72. He opined in response to the ALJ's question that Seay was able
to concentrate sufficiently to perform unskilled work that required one- to
three-step instructions. AR72-73. He opined that he "would not preclude" work
"in a routine work setting with people nearby and having to interact with those
59
people." AR73. "I would place her in an occasional to frequent range regarding
interacting with the public, supervisors, and coworkers." Id.
The ALJ asked if Seay would be "emotionally labile? Would she have
outbursts in an unexpected nature?" AR73. Dr. Pelc opined that, occasionally
that may occur ... but I would not see it as a recurring thing." Id.
The ALJ asked Dr. Pelc to opine whether mental health limitations would
preclude regular attendance at work. AR73. Dr. Pelc opined, "Not on the
regular or recurring basis would I expect that to happen." AR74. Dr. Pelc
opined that Seay was able to ask questions at work if she required assistance
while performing simple and repetitive or routine tasks, but with more complex
tasks she would have more trouble. Id. Dr. Pelc opined that she could interact
with the public but not on an ongoing, frequent basis. AR75.
Barry Brown, vocational expert, opined at hearing that an individual with
the RFC posed by the ALJ could work as a merchandise marker, DOT
209.587-034, and that there were 271,000 such jobs in the United States. She
could also work as a router, DOT 222.587-038, with 52,000 such jobs in the
United States. AR87-89. Mr. Brown opined that the individual would not be
able to perform any work if she would be absent from work three times a
month, could maintain attention for two hours at a time, could not work closer
than ten feet from other workers, required a slow work speed, and required one
extra 15-minute work break during the work day resulting from inability to
respond appropriately to constructive criticism. AR89.
60
Mr. Brown testified that if the individual would miss work three times in
a month, she could not do work. AR90.
H.
ALJ Decision39
On August 26, 2015, ALJ Debra Denney issued a fourteen page, single-
spaced written decision denying benefits. AR28-41.
At step one, the ALJ found Ms. Seay had not engaged in substantial
gainful activity since the date of her SSI application (May 30, 2013). AR30.
At step two, the ALJ found Ms. Seay had the following severe
impairments: mental impairments variously diagnosed as affective disorder,
anxiety disorder, (PTSD), and personality disorder; and physical impairments
consisting of scoliosis and obesity. AR30.
At step three, the ALJ found Ms. Seay did not have an impairment or
combination of impairments that met or medically equaled a Listing under 20
C.F.R. Part 404, Subpart P, Appendix 1. AR31-32.
At step four, the ALJ found Ms. Seay had the residual functional capacity
to perform unskilled, limited light duty work, so long as her interactions with
co-workers, supervisors and the public was not on an extended, constant
basis. AR32-40.
At step five, the ALJ found there were a significant number of jobs in the
United States that Ms. Seay could perform. AR40-41. As such, the ALJ found
that Ms. Seay was not disabled. AR41.
This section and the following section are not part of the parties’ stipulated
facts.
39
61
I.
Issues Raised by Ms. Seay in this Appeal
Ms. Seay raises the following five issues before this court:
1.
Whether the ALJ committed reversible error when she rejected
Ms. Seay’s fibromyalgia, without developing the evidence based on the rationale
that fibromyalgia was not “medically determinable?”
2.
Whether it was error to assign “considerable weight” to Dr. Pelc’s
opinions and to incorporate them into the RFC?
3.
Whether it was error to rely upon non-examining DDS consultant
opinions to rebut the treating therapist’s assessment, which was supported by
the agency records and other evidence?
4.
Whether the ALJ applied an improper standard when assessing the
credibility of statements of Ms. Seay and her mother concerning the intensity,
persistence and limiting effects of her symptoms?
5.
Whether the ALJ failed to apply the statutory standard when
finding that a significant number of jobs existed that matched the RFC
formation?
DISCUSSION
A.
Standard of Review.
When reviewing a denial of benefits, the court will uphold the
Commissioner’s final decision if it is supported by substantial evidence on the
record as a whole. 42 U.S.C. § 405(g); Minor v. Astrue, 574 F.3d 625, 627
(8th Cir. 2009). Substantial evidence is defined as more than a mere scintilla,
less than a preponderance, and that which a reasonable mind might accept as
62
adequate to support the Commissioner’s conclusion. Richardson v. Perales,
402 U.S. 389, 401 (1971); Klug v. Weinberger, 514 F.2d 423, 425
(8th Cir. 1975). “This review is more than a search of the record for evidence
supporting the [Commissioner’s] findings, and requires a scrutinizing analysis,
not merely a rubber stamp of the [Commissioner’s] action.” Scott ex rel. Scott
v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008) (internal punctuation altered,
citations omitted).
In assessing the substantiality of the evidence, the evidence that detracts
from the Commissioner’s decision must be considered, along with the evidence
supporting it. Minor, 574 F.3d at 627. The Commissioner’s decision may not
be reversed merely because substantial evidence would have supported an
opposite decision. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005); Woolf
v. Shalala 3 F.3d 1210, 1213 (8th Cir. 1993). If it is possible to draw two
inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, the Commissioner must be affirmed. Oberst v.
Shalala, 2 F.3d 249, 250 (8th Cir. 1993). “In short, a reviewing court should
neither consider a claim de novo, nor abdicate its function to carefully analyze
the entire record.” Mittlestedt v. Apfel, 204 F.3d 847, 851 (8th Cir. 2000)
(citations omitted).
The court must also review the decision by the ALJ to determine if an
error of law has been committed. Smith v. Sullivan, 982 F.2d 308, 311
(8th Cir. 1992); 42 U.S.C. § 405(g). Specifically, a court must evaluate whether
the ALJ applied an erroneous legal standard in the disability analysis.
63
Erroneous interpretations of law will be reversed. Walker v. Apfel, 141 F.3d
852, 853 (8th Cir. 1998)(citations omitted). The Commissioner’s conclusions
of law are only persuasive, not binding, on the reviewing court. Smith, 982
F.2d at 311.
B.
The Disability Determination and the Five-Step Procedure.
Social Security law defines disability as the inability to do any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. §§ 416(I), 423(d)(1); 20 C.F.R. § 16.905. The impairment
must be severe, making the claimant unable to do his previous work, or any
other substantial gainful activity which exists in the national economy.
42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 16.905-16-911.
The ALJ applies a five-step procedure to decide whether an applicant is
disabled. This sequential analysis is mandatory for all SSI and SSD/DIB
applications. Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993); 20 C.F.R.
§ 416.920. When a determination that an applicant is or is not disabled can be
made at any step, evaluation under a subsequent step is unnecessary. Bartlett
v. Heckler, 777 F.2d 1318, 1319 (8th Cir. 1985). The five steps are as follows:
Step One: Determine whether the applicant is presently engaged
in substantial gainful activity. 20 C.F.R. § 416.920(b). If the
applicant is engaged in substantial gainful activity, he is not
disabled and the inquiry ends at this step.
Step Two: Determine whether the applicant has an impairment or
combination of impairments that are severe, i.e. whether any of the
applicant’s impairments or combination of impairments
64
significantly limit his physical or mental ability to do basic work
activities. 20 C.F.R. § 416.920(c). If there is no such impairment
or combination of impairments the applicant is not disabled and
the inquiry ends at this step. NOTE: the regulations prescribe a
special procedure for analyzing mental impairments to determine
whether they are severe. Browning v. Sullivan, 958 F.2d 817, 821
(8th Cir. 1992); 20 C.F.R. § 416.920a. This special procedure
includes completion of a Psychiatric Review Technique Form
(PRTF).
Step Three: Determine whether any of the severe impairments
identified in Step Two meets or equals a “Listing” in Appendix 1,
Subpart P, Part 404. 20 C.F.R. § 416.920(d). If an impairment
meets or equals a Listing, the applicant will be considered disabled
without further inquiry. Bartlett 777 F.2d at 1320, n.2. This is
because the regulations recognize the “Listed” impairments are so
severe that they prevent a person from pursuing any gainful work.
Heckler v. Campbell, 461 U.S. 458, 460 (1983). If the applicant’s
impairment(s) are severe but do not meet or equal a Listed
impairment the ALJ must proceed to step four. NOTE: The “special
procedure” for mental impairments also applies to determine
whether a severe mental impairment meets or equals a Listing.
20 C.F.R. § 416.920a(c)(2).
Step Four: Determine whether the applicant is capable of
performing past relevant work (PRW). To make this determination,
the ALJ considers the limiting effects of all the applicant’s
impairments, (even those that are not severe) to determine the
applicant’s residual functional capacity (RFC). If the applicant’s
RFC allows him to meet the physical and mental demands of his
past work, he is not disabled. 20 C.F.R. §§ 416.920(e); 416.945(e).
If the applicant’s RFC does not allow him to meet the physical and
mental demands of his past work, the ALJ must proceed to Step
Five.
Step Five: Determine whether any substantial gainful activity
exists in the national economy which the applicant can perform.
To make this determination, the ALJ considers the applicant’s
RFC, along with his age, education, and past work experience. 20
C.F.R. § 416.920(f).
C.
Burden of Proof.
The plaintiff bears the burden of proof at steps one through four of the
five-step inquiry. Barrett v. Shalala, 38 F.3d 1019, 1024 (8th Cir. 1994);
65
Mittlestedt, 204 F.3d at 852; 20 C.F.R. § 416.912(a). The burden of proof shifts
to the Commissioner at step five. Clark v. Shalala, 28 F.3d 828, 830 (8th Cir.
1994). “This shifting of the burden of proof to the Commissioner is neither
statutory nor regulatory, but instead, originates from judicial practices.”
Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999). The burden shifting at step
five has also been referred to as “not statutory, but . . . a long standing judicial
gloss on the Social Security Act.” Walker v. Bowen, 834 F.2d 635, 640 (7th Cir.
1987). Moreover, “[t]he burden of persuasion to prove disability and to
demonstrate RFC remains on the claimant, even when the burden of
production shifts to the Commissioner at step five.” Stormo v. Barnhart 377
F.3d 801, 806 (8th Cir. 2004).
D.
Whether the ALJ Erred by Finding Ms. Seay’s Fibromyalgia was not
“Medically Determinable”?
Ms. Seay argues the ALJ found her fibromyalgia was not a medically
determinable impairment because no medical records in the administrative
record documented the necessary findings to support a conclusion that
Ms. Seay suffered from a medically determinable impairment of fibromyalgia.
Those records existed in Dr. Steven Frost’s medical records for Ms. Seay, she
asserts. Ms. Seay believes the ALJ should have developed the record and
obtained Dr. Frost’s records.
The Commissioner asserts the ALJ did find Ms. Seay suffered from
fibromyalgia as a medically determinable impairment. The Commissioner
further asserts that the ALJ had no duty to obtain Dr. Frost’s records because
they pertain to a time period outside of the alleged period of disability which
66
the ALJ was considering based on Ms. Seay’s application. The parties’ contrary
positions require the court to first ascertain what conclusion the ALJ did in
fact make regarding whether Ms. Seay’s fibromyalgia was a medically
determinable impairment.
1.
The Commissioner’s Guidance for Evaluating Fibromyalgia
The Commissioner has provided guidance for ALJs evaluating
fibromyalgia in SSR 12-2p. Under SSR 12-2p, fibromyalgia may be analyzed
using either of two sets of criteria. See SSR 12-2p, IIA and B. One set of
criteria is based on the 1990 American College of Rheumatology (ACR) Criteria
for Classification of Fibromyalgia. Id. at IIA. The other set of criteria is based
on the 2010 ACR Preliminary Diagnostic Criteria. Id. at IIB.
Under the 1990 ACR standard, the Commissioner “may” find that a
claimant has a medically determinable impairment (MDI) of fibromyalgia (FM) if
the following criteria are met:
1.
A history of widespread pain in all quadrants that has
persisted for at least 3 months. The pain may fluctuate in
intensity and may not always be present.
2.
At least 11 of 18 specified tender points on physical
examination, both above and below the waist.
3.
Other disorders that could cause the above symptoms have
been excluded or ruled out.
Id. at IIA.
Alternatively, the Commissioner directs in SSR 12-2p that, under the
2010 ACR standard, the Commissioner “may” find that a claimant has a MDI of
FM if the following criteria are met:
67
1.
A history of widespread pain in all quadrants that has
persisted for at least 3 months. The pain may fluctuate in
intensity and may not always be present (same as (1) above).
2.
Repeated manifestations of six or more FM symptoms, signs,
or co-occurring conditions, especially manifestations of fatigue,
cognitive or memory problems (“fibro fog”), waking unrefreshed,
depression, anxiety disorder, or irritable bowel syndrome.
3.
Evidence that other disorders that could cause these
repeated manifestations of symptoms, signs, or co-occurring
conditions were excluded.
Id. at IIB.
The actual diagnosis of fibromyalgia was made by Dr. Frost; Ms. Seay
indicated to the Commissioner that the last time she saw Dr. Frost was in mid2011. AR287. Her disability application was dated May 31, 2013. AR236-47,
261. Therefore, Dr. Frost’s records concern a period of time two years before
the period of disability alleged.40 Ms. Seay is correct in positing that the
records of Dr. Frost were not before the ALJ. Ms. Seay does not assert what
Dr. Frost’s records would show had they been made part of the record.
Although Ms. Seay alleged a disability onset date of October 16, 2012, she
applied for benefits on May 31, 2013. As discussed at footnote 1, supra,
Ms. Seay is only potentially eligible for SSI benefits, and not SSD benefits.
Because SSI benefits are not retroactive to the date of application (see SSR 8320), the period of disability under consideration begins with the date of her
application. Nevertheless, medical records from outside the period of disability
under consideration may be considered “to elucidate a medical condition
during the time for which benefits might be awarded.” Cox v. Barnhart, 471
F.3d 902, 907 (8th Cir. 2006). The ALJ specifically stated she considered
medical records from outside the disability period. AR28 (citing 20 C.F.R.
§ 416.912(d)).
40
68
2.
The ALJ Did Not Find Ms. Seay’s Fibromyalgia was a Medically
Determinable Impairment, but the ALJ Incorporated
Limitations from Fibromyalgia into the Physical RFC
The ALJ stated twice, quite clearly, that she found Ms. Seay’s
fibromyalgia was not a medically determinable severe impairment. AR36 (“The
record does not contain evidence consisting of signs, symptoms, and laboratory
findings to establish medically determinable impairments of fibromyalgia . . .”);
AR37 (“the undersigned concludes the claimant does not have a medically
determinable impairment of fibromyalgia.”).
However, the ALJ noted that both Dr. Kevin Whittle and Dr. Tom
Burkhart, state agency medical consultants, did opine that Ms. Seay had a
medically determinable severe impairment of fibromyalgia. AR37. The ALJ
then stated that she accepted the opinions of Dr. Whittle and Dr. Burkhart in
arriving at Ms. Seay’s physical RFC. AR37. Thus, while the ALJ felt the
evidence was lacking for finding Ms. Seay’s fibromyalgia to be a severe
medically determinable impairment, she accepted the physical limitations
Dr. Whittle and Dr. Burkart opined as to fibromyalgia in arriving at the
physical RFC in Ms. Seay’s case. Id. The ALJ specifically noted that there was
an absence of any opinion from a treating or examining physician indicating
Ms. Seay’s physical RFC was more limited than what Drs. Whittle and
Burkhart had opined.
69
3.
The ALJ Did Not Err in Failing to Obtain Dr. Frost’s Records
The duty of the ALJ to develop the record—with or without counsel
representing the claimant--is a widely recognized rule of long standing in social
security cases:
Normally in Anglo-American legal practice, courts rely on the rigors
of the adversarial process to reveal the true facts of the case.
However, social security hearings are non-adversarial. Well-settled
precedent confirms that the ALJ bears a responsibility to develop
the record fairly and fully, independent of the claimant’s burden to
press his case. The ALJ’s duty to develop the record extends even
to cases like Snead’s, where an attorney represented the claimant
at the administrative hearing. The ALJ possess no interest in
denying benefits and must act neutrally in developing the record.
Snead v. Barnhart, 360 F.3d 834, 838 (8th 2004) (citations omitted). See also
Johnson v. Astrue, 627 F.3d 316, 319-20 (8th Cir. 2010) (ALJ has a duty to
develop the record even when claimant has counsel). If the record is
insufficient to determine whether the claimant is disabled, the ALJ must
develop the record by seeking additional evidence or clarification. McCoy v.
Astrue, 648 F.3d 605, 612 (8th Cir. 2011).
However, this is true only for “crucial” issues. Ellis v. Barnhart, 392
F.3d 988, 994 (8th Cir. 2005). A claimant must show that the ALJ’s failure to
fully develop the record resulted in prejudice to her before remand will be
warranted. Id. Where the failure to develop concerns a “central and potentially
dispositive issue” which the ALJ failed to explore, remand is required. Snead,
360 F.3d at 839. But the ALJ’s “duty is not never-ending and an ALJ is not
required to disprove every possible impairment.” McCoy, 648 F.3d at 612.
70
Here, crucially, the ALJ accepted the only opinions in the record
concerning Ms. Seay’s physical RFC—the opinions of Drs. Whittle and
Burkhart—and both physicians found Ms. Seay had a severe medically
determinable impairment of fibromyalgia and accordingly attributed physical
limitations to that condition. AR36-37, 97-119. No other treating or
examining physician opined as to Ms. Seay’s physical RFC.
There is nothing in the record to suppose that Dr. Frost’s records, had
they been obtained, would have contradicted the opinions of Drs. Whittle and
Burkhart. All three physicians apparently agreed Ms. Seay suffered from
fibromyalgia.
Ms. Seay never asserts that Dr. Frost’s records would have
contained a different assessment of her physical functioning as a result of
fibromyalgia. In any event, since fibromyalgia symptoms wax and wane (see
SSR 12-2p), and since Dr. Frost’s records reflect Ms. Seay’s physical wellbeing
at a time well outside the disability period under consideration, Dr. Frost’s
records would have been of limited evidentiary value.
The court notes Ms. Seay herself never described significant physical
limitations as a result of her fibromyalgia. She stated she could only walk 4-5
blocks before needing to rest, but that was because of shortness of breath.
AR296. She stated she could perform all manner of physical and postural acts
when she takes her medications. Id. She did say she has to take a pain pill if
she is going to do laundry or dishes. AR293. She described an acute back
pain incident in September, 2013, that occurred after she had been cleaning,
but this, too, was never attributed to fibromyalgia. AR312.
71
In a December 6, 2013, disability report, she stated if her fibromyalgia
flared up, she was unable to do daily tasks such as lifting, cleaning, and
walking for any distance. AR313. At such times she could climb stairs very
slowly. Id. She did not report how often her fibromyalgia flares or how long a
flare lasts when it does occur. Id.
In her hearing testimony, Ms. Seay described hip and back pain from
scoliosis, but no pain or functional limitations from fibromyalgia. AR62. She
described limitations from heavy lifting, but that was due to pregnancy, not
fibromyalgia. AR67.
Ms. Seay’s mother, Wilma Goehring, also said very little about physical
pain or fibromyalgia. In her third-party function report, she reported the
problem with Ms. Seay’s hips (described as “too open”) made it difficult for
Ms. Seay to go up and down stairs. AR300. Ms. Goehring stated this hip
problem got worse with the birth of each of Ms. Seay’s children. AR306. The
focus of this third-party statement, like Ms. Seay’s statements themselves, was
on Ms. Seay’s mental impairments. AR299-306. Fibromyalgia was not
mentioned by Ms. Goehring. Id. Likewise, the focus of Ms. Goehring’s hearing
testimony was on Ms. Seay’s mental impairments. AR81-87. Although
fibromyalgia was mentioned, it was only in passing, it was described as a
family trait, and it was linked to Ms. Seay’s emotional issues. AR87.
The court concludes that remand is not warranted on this issue.
Although the ALJ found Ms. Seay did not suffer from a medically determinable
impairment of fibromyalgia, the ALJ gave Ms. Seay the benefit of the doubt and
72
arrived at her physical RFC by incorporating the opinions of doctors favorable
to Ms. Seay on this issue. This is not a case where the ALJ failed to develop
the record as to a central and potentially dispositive issue, as in Snead. All of
Ms. Seay’s own statements show that her mental impairments were the main
focus of her inability to work. Fibromyalgia was a lesser issue and the missing
medical records are outside the period of disability.
This is a case where the ALJ saw the evidence differently than the
consulting doctors, but gave the benefit of the doubt to the claimant and
credited the only medical opinions in the record concerning the effect of
fibromyalgia on Ms. Seay’s functioning. Those opinions happened to be
favorable to Ms. Seay on the issue of whether her fibromyalgia was a severe
medically determinable impairment. Accordingly the court concludes there
was no prejudice to Ms. Seay arising from the ALJ’s failure to request
Dr. Frost’s medical records from 2010 and 2011.
Ms. Seay states that if the court remands with instructions to the ALJ to
obtain Dr. Frost’s records, the court should also instruct the ALJ to develop the
record regarding Ms. Seay’s cavum septum pellucidum condition. See Docket
No. 19 at p. 17. Ms. Seay literally does not discuss the issue further. Id. She
does not provide factual or legal support for her request. Id. Since the court
has concluded it will not reverse on the fibromyalgia issue, and since Ms. Seay
does not support her request for remand on the cavum septum pellucidum
issue, the court declines the invitation to remand on this ground.
73
E.
Whether the ALJ Erred by Assigning Considerable Weight to
Dr. Pelc’s Opinions?
Medical opinions are evidence which the ALJ will consider in determining
whether a claimant is disabled, the extent of the disability, and the claimant’s
RFC. See 20 C.F.R. § 404.1527. All medical opinions are evaluated according
to the same criteria, namely:
--whether the opinion is consistent with other evidence in
the record;
--whether the opinion is internally consistent;
--whether the person giving the medical opinion examined
the claimant;
--whether the person giving the medical opinion treated the
claimant;
--the length of the treating relationship;
--the frequency of examinations performed;
--whether the opinion is supported by relevant evidence,
especially medical signs and laboratory findings;
--the degree to which a nonexamining or nontreating
physician provides supporting explanations for their
opinions and the degree to which these opinions
consider all the pertinent evidence about the claim;
--whether the opinion is rendered by a specialist about
medical issues related to his or her area of specialty;
and
--whether any other factors exist to support or contradict the
opinion.
See 20 C.F.R. § 416.927(c)(1)-(6); Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir.
2007).
74
“A treating physician’s opinion is given controlling weight ‘if it is wellsupported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence.’ ”
House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007) (quoting Reed, 399 F.3d at
920); 20 C.F.R. § 416.927(c). “A treating physician’s opinion ‘do[es] not
automatically control, since the record must be evaluated as a whole.’ ” Reed,
399 F.3d at 920 (quoting Bentley v. Shalala, 52 F.3d 784, 786 (8th Cir. 1995)).
The length of the treating relationship and the frequency of examinations of the
claimant are also factors to consider when determining the weight to give a
treating physician’s opinion. 20 C.F.R. § 416.927(c). “[I]f ‘the treating
physician evidence is itself inconsistent,’ ” this is one factor that can support
an ALJ’s decision to discount or even disregard a treating physician’s opinion.
House, 500 F.3d at 744 (quoting Bentley, 52 F.3d at 786; and citing Wagner,
499 F.3d at 853-854; Guilliams v. Barnhart, 393 F.3d 798, 803 (8th Cir.
2005)). “The opinion of an acceptable medical source who has examined a
claimant is entitled to more weight than the opinion of a source who has not
examined a claimant.” Lacroix v. Barnhart, 465 F.3d 881, 888 (8th Cir. 2006)
(citing 20 C.F.R. §§ 404.1527)); Shontos v. Barnhart, 328 F.3d 418, 425 (8th
Cir. 2003); Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998)).
When opinions of consulting physicians conflict with opinions of treating
physicians, the ALJ must resolve the conflict. Wagner, 499 F.3d at 849.
Generally, the opinions of non-examining, consulting physicians, standing
alone, do not constitute “substantial evidence” upon the record as a whole,
75
especially when they are contradicted by the treating physician’s medical
opinion. Wagner, 499 F.3d at 849; Harvey v. Barnhart, 368 F.3d 1013, 1016
(8th Cir. 2004) (citing Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999)).
However, where opinions of non-examining, consulting physicians along with
other evidence in the record form the basis for the ALJ’s decision, such a
conclusion may be supported by substantial evidence. Harvey, 368 F.3d at
1016. Also, where a non-treating physician’s opinion is supported by better or
more thorough medical evidence, the ALJ may credit that evaluation over a
treating physician’s evaluation. Flynn v. Astrue 513 F.3d 788, 792 (8th Cir.
2008)(citing Casey, 503 F.3d 687, 691-692 (8th Cir. 2007)). The ALJ must give
“good reasons” for the weight accorded to opinions of treating physicians,
whether that weight is great or small. Hamilton v. Astrue, 518 F.3d 607, 610
(8th Cir. 2008).
In this case, as discussed in the
FACTS
section above, the ALJ considered
and assigned weight to six medical sources. Those medical sources and the
weight assigned their opinions are summarized here:
Kevin Whittle, M.D. and Tom Burkhart, M.D. (non-treating, nonexamining State Agency medical consultants who reviewed the evidence
at the initial and reconsideration levels of adjudication, respectively on
October 11, 2013, and March 18, 2014. Drs. Whittle and Burkhart
evaluated Ms. Seay’s physical impairments, and concluded that
Ms. Seay had a medically determinable severe impairment of
fibromyalgia, and that she was capable of lifting/carrying 20 pounds
occasionally and 10 pounds frequently, standing/walking 6 hours out of
an 8 hour workday, sitting 6 hours out of an 8 hour work day, and was
unlimited in pushing and pulling. They further opined Ms. Seay had the
following postural limitations: occasional climbing of ramps and stairs,
occasional climbing ropes, ladders, and scaffolds, unlimited balance,
occasional stooping, kneeling, crouching, and crawling. In other words,
76
these State Agency physicians assigned a modified light-duty physical
residual functional capacity.
As to these opinions, the ALJ indicated she did not agree with their
conclusion that Ms. Seay had the medically determinable impairment of
fibromyalgia. The ALJ concluded, however, that considering Ms. Seay’s
other medically determinable impairments (obesity and scoliosis), and
because Ms. Seay’s treating physicians did not disagree with the State
Agency physicians’ opinions regarding her physical abilities, the ALJ
would “accept” the State Agency physicians’ opinions regarding
Ms. Seay’s physical residual functional capacity.
Shannon Howard, M.A., LPC. Ms. Howard was Ms. Seay’s weekly
counselor at Behavior Management Systems from early 2013 forward.
Ms. Howard completed a Mental Impairment Questionnaire on January
5, 2015. Ms. Howard indicated Ms. Seay had mental diagnoses of
296.90 (mood disorder) and 301.9 (personality disorder) with a current
and past one-year GAF of 57. Ms. Howard opined Ms. Seay’s limitations
would cause Ms. Seay to be absent from work more than three times per
month and that Ms. Seay had fair, poor, or no ability to perform
unskilled work activities, fair, poor, or no ability to interact
appropriately with the general public and to maintain socially
appropriate behavior. Ms. Howard also opined that Ms. Seay was
unable to work 8 hours per day, 5 days per week and that Ms. Seay had
“marked” limitations in activities of daily living, “marked” limitations in
maintaining social functioning, and “marked” limitations in
concentration, persistence and pace. Finally, Ms. Howard opined
Ms. Seay has experienced “repeated” episodes of decompensation.
As to this medical opinion, the ALJ noted Ms. Howard “is a nonacceptable medical source under the regulations( (20 C.F.R. 404.1502)
but nonetheless gives her opinion some weight, as she is a therapist and
has a treating relationship with the claimant.” The ALJ further qualified
this statement, however, by stating Ms. Seay’s own description of her
symptoms and the therapy notes and records did not support the
severity of the limitations assessed in Ms. Howard’s opinion. The ALJ
further characterized Ms. Howard’s opinion as “markedly inconsistent”
with other substantial evidence in the record, including the State Agency
consultants and the medical expert (Dr. Pelc), who were acceptable
medical sources and whose opinions suggested Ms. Seay had much
greater functional capacity.
Eleni Muntz, Ph.D. and Jerry Buchkosksi, Ph.D. (non-treating, nonexamining State Agency psychological consultants who reviewed the
evidence at the initial and reconsideration levels on October 17, 2013,
77
and March 18, 2014, respectively). These two consultants reviewed
Ms. Seay’s records (not including records received into the record after
the date of Ms. Seay’s request for a hearing, which was filed on April 24,
2014) and determined she had medically determinable anxiety and
affective disorders, but they opined those conditions imposed no more
than “mild” limitations on the “paragraph B” criteria and were therefore
non-severe.
The ALJ assigned these opinions “some weight, but less weight than the
opinion of the medical expert [Dr. Pelc] who reviewed all the evidence,
including additional records received since the request for hearing.”
Robert Pelc, Ph. D. (non-treating, non-examining medical consultant who
testified telephonically at the ALJ hearing on July 22, 2015). Dr. Pelc
reviewed the “F” exhibits (the medical records).41 He testified that the
evidence established Ms. Seay had the following diagnoses: Affective
disorders (characterized in Listing 12.04 as mood disorder, NOS,
dysthymic disorder, major depressive disorder, and adjustment disorder
with mixed emotional features involving depression and anxiety, or as
situational depression). Ms. Seay also had a diagnosis of anxiety
disorder under Listing 12.06 (characterized as an anxiety disorder, NOS,
generalized anxiety, disorder, or PTSD). Finally, Dr. Pelc opined
Ms. Seay also had a diagnosis of personality disorder, NOS, under
Listing 12.08. Relative to the “B” criteria, Dr. Pelc opined Ms. Seay had
“mild” deficits in activities of daily living, “moderate” degree of limitation
in social functioning, and “moderate” difficulties in maintaining
concentration, persistence and pace. Dr. Pelc did not believe Ms. Seay
had any episodes of decompensation. He did not believe that any of her
mental impairments met or equaled a Listing.
The ALJ assigned Dr. Pelc’s opinion “considerable weight (20 C.F.R.
404.1527) and indeed greater weight than the opinions of the State
Agency psychological consultants, in reaching a conclusion of mental
residual functional capacity because Dr. Pelc had the opportunity to
review all the records. Further, he is an expert in evaluating mental
disorders and the evidence upon which he relied supports his opinion.”
The court notes that during his testimony, Dr. Pelc indicated he had
reviewed the “entire file-- AR69--” but referred only to the medical records and
the “F” exhibits. Additionally, the letter which the ALJ sent to Dr. Pelc
enclosing materials for Dr. Pelc’s review, discussed above, only referred to the
“medical exhibits.” AR216. The government does not contest Ms. Seay’s
assertion that Dr. Pelc reviewed only the medical records (the “F” exhibits) in
preparation for offering his testimony during the ALJ hearing.
41
78
Ms. Seay asserts the ALJ’s assignment of “great weight” (or any weight) to
Dr. Pelc’s opinion constitutes reversible error because Dr. Pelc, in forming his
opinion, considered medical evidence alone, which is contrary to Social
Security regulation. The regulation to which Ms. Seay refers is 20 C.F.R.
§ 416.920a, pertaining to the assessment of mental disorders.
The Commissioner concedes the fact that Dr. Pelc failed to review all the
evidence that may be considered in determining what weight the ALJ should
accord his PRTF opinion. The Commissioner argues 20 C.F.R. § 416.920a
requires the ALJ, not the state agency doctor, to consider all of the evidence,
including the exhibit “E” evidence.42 Here, the Commissioner argues, it does
not matter that Dr. Pelc did not consider all the evidence because the ALJ
properly considered all the evidence.
In brief, the Commissioner also argues the ALJ properly weighed
Dr. Pelc’s opinion because Dr. Pelc formed his opinion after “considering all the
objective medical evidence and listening to Seay’s hearing testimony.” The
court rejects outright the proposition that Dr. Pelc listened to Ms. Seay’s
hearing testimony. Dr. Pelc testified at the ALJ hearing telephonically. The
transcript clearly shows the ALJ did not telephonically connect Dr. Pelc into
the conversation at the hearing until after Ms. Seay had testified. See AR68.
And, the ALJ disconnected Dr. Pelc immediately after Dr. Pelc finished
The court notes that the disability file exhibit “E” evidence consists of
disability worksheets, disability reports, function reports, 3rd party function
reports, work background information, medication lists, and claimant
statements.
42
79
testifying, and before the ALJ resumed questioning Ms. Seay and before
Ms. Goehring (Ms. Seay’s mother) began her testimony. AR75. (ALJ resumed
questioning Ms. Seay at AR75, Ms. Goehring began testifying at AR80). Before
she began questioning Dr. Pelc, the ALJ did not summarize Ms. Seay’s
testimony for Dr. Pelc’s benefit. AR68.
Not to be deterred, the Commissioner argues that all the same
information Ms. Seay expressed during the hearing she also expressed to her
physicians, so this same information could also have been gleaned by Dr. Pelc
from simply reading the medical records.
Are medical experts hired by the Commissioner to render opinions as to
the PRTF or mental RFC required to review the claimant’s testimony, read their
disability and function reports and the third party reports contained within the
administrative record? Section 404.920a uses the pronoun “we” and promises
that “we” will consider “all relevant evidence to obtain a longitudinal picture of
your overall degree of functional limitation.” 20 C.F.R. § 404.920a(c)(1). “We,”
“our,” and “us” are defined as “the Social Security Administration” (“SSA”).
20 C.F.R. § 404.102.
The SSA has a Hearings, Appeals, and Litigation Law Manual (HALLEX)
that provides guidance to its employees and agents. It is not binding on either
this court or on the SSA. Schweiker v. Hansen, 450 U.S. 785, 789 (1981). But
the agency’s own interpretation of the statutes and regulations it regularly
implements has some persuasive authority. Draper v. Colvin, 779 F.3d 556,
560-61 (8th Cir. 2015) (according deference to the SSA’s interpretation of
80
statute due to thoroughness of agency’s consideration, validity of its reasoning,
consistency, formality, and expertise). The Social Security Act is “among the
most intricate ever drafted by Congress.” Schweiker v. Gray Panthers, 453
U.S. 34, 43 (1981). Therefore, even though the SSA’s policy and procedure
manual does not have the binding effect of law, it is nevertheless persuasive.
Draper, 779 F.3d at 561 (citing Davis v. Sec’y of Health & Human Servs., 867
F.2d 336, 340 (6th Cir. 1989)).
The HALLEX provides guidance to ALJs who procure the opinions of
medical experts. In doing so, the “ALJ must make every effort to obtain all
essential documentary evidence early enough to allow the ME [medical expert]
. . . sufficient time to consider the evidence before he or she responds to
questions at a hearing.” HALLEX at I-2-5-30A (emphasis added). The HALLEX
further directs that an “ALJ will provide an ME with any relevant evidence that
the ME will need to formulate and provide an opinion.” Id. at I-2-5-38B3
(emphasis added). The ME is not required to attend the entire hearing and
listen to the claimant’s testimony. Id. at I-2-6-70B. However, if the ME is not
present to hear the claimant’s testimony, the ALJ must summarize that
testimony for the ME on the record. Id. The ALJ also must “verify the ME has
examined all medical and other relevant evidence of record; . . .” Id. (emphasis
added). If an ME only needed to review medical records alone, it seems
counterintuitive that the Commissioner would direct its employees to make
sure other relevant evidence was also placed before the ME.
81
These quoted provisions of the HALLEX pertain to all expert testimony
from an ME on any subject; it is not limited to testimony regarding mental
impairments. So in interpreting what constitutes “all relevant evidence” aside
from medical evidence, § 416.920a comes into play. That provision, as well as
listings 12.00C through 12.00G, make clear that in determining the impact on
functioning as a result of a claimant’s mental impairments, the entire
longitudinal record must be considered. 20 C.F.R. § 416.920a(c)(1). That
record includes consideration of whether the claimant lives in a highly
structured setting so as to alleviate stress and minimize symptoms. See 20
C.F.R. Part 404 Subpart P App. 1, § 12.04 (depressive, bipolar and related
disorders); 12.06 (anxiety and obsessive-compulsive disorders).
Further support for this interpretation can be found within the text of
§ 416.920a itself. Part (e)(5) of that section provides in pertinent part:
If the [ALJ] requires the services of a medical expert to assist in
applying the [psychiatric review] technique but such services are
unavailable, the [ALJ] may return the case to the State agency or
the appropriate Federal component. . . for completion of the
standard [PRTF]. If, after reviewing the case file and completing
the [PTRF], the State agency or Federal component concludes that
a determination favorable to you is warranted . . .
See 20 C.F.R. § 416.920a(e)(5) (emphasis added). This provision clearly
requires that when a state agency ME completes the PRTF, it must review the
entire case file, not just the medical evidence within the file.
Based on a review of all the pertinent regulations and the
Commissioner’s persuasive interpretation of those regulations, the court
concludes that, at a minimum, a state agency ME must review all medical
82
evidence. Further, when assessing the functional impact of mental
impairments, “all relevant evidence” includes consideration by the ME of the
claimant’s own testimony as to the effects and limitations imposed by their
mental impairment. Were it otherwise, the Commissioner would not require
the ME to either hear the claimant’s testimony at the hearing or to have the
ALJ summarize that testimony for the ME. Were it otherwise, the
Commissioner also would not require state agency MEs to review the entire
case file in arriving at the PRTF.
In this case, both Ms. Seay and her mother, Wilma Goehring, testified at
the hearing regarding Ms. Seay’s extreme anxiety and deterioration in social
and/or stressful settings. Both women also completed written function reports
detailing Ms. Seay’s functioning. The information contained within their oral
testimony at the hearing and within their written reports is detailed below in
section G of this
DISCUSSION
portion of this opinion. Suffice it to say that both
women consistently reported that Ms. Seay did not function well in public, did
not get along well with other people, and that her mental issues prevented her
from holding a job or forming lasting or meaningful personal relationships.
That she had never held a job for very long, and never earned very much
money is certainly borne out by the objective evidence. See e.g. AR248-252
(earnings history); AR325-26 (work history report). This is the type of
information that is not necessarily discernable by a non-treating, nonexamining medical consultant solely from reading a cold medical record.
Especially in this case where, during the relevant time frame, it does not
83
appear Ms. Seay was employed at all, so she was not specifically talking to her
medical providers about the effect that the stress of normal, everyday
workplace issues would have upon her functionality.
There may be a case where a claimant’s physician allows their patient
the in-office time to describe the effects of her mental impairments in exquisite
detail, and the physician in turn dictates into the medical record the claimant’s
description with the same exquisite detail. In such a case, assuming it exists,
review of medical records alone might suffice in order to form an expert
opinion. But this court has rarely seen such detailed medical records in the
administrative record of a Social Security appeal. Where a clear, full picture of
the impact of one’s mental impairment upon functioning is not recorded in
medical records, an ME must be given access to “other relevant evidence” that
includes such descriptions. This may be disability and function reports
submitted by the claimant or the claimant’s hearing testimony, or all three.
The court does not declare that an ME must specifically review all “Exhibit E”
materials prior to opining about PRTF or mental RFC, only that the
representative information must reach the ME in some form.
In this case, it did not. Ms. Seay’s mother emphatically stated during
her hearing testimony and in her written statement that Ms. Seay went
through physicians and therapists “like crazy” (AR83, 86) because Ms. Seay
drove even those professional people who were trying to help her in her life
away. Ms. Goehring credited Shannon Howard as the best therapist Ms. Seay
ever had. AR83.
84
As summarized above in the
FACTS
section of this opinion, Shannon
Howard’s counseling records delve into Ms. Seay’s inability to handle the stress
of even everyday ordinary problems, to recognize and deal with problems before
they become emergencies, her inability to maintain lasting relationships,
and/or her motivation for entering into serial brief intimate relationships
having had their genesis in online introductions. Even Ms. Howard’s records,
however, did not mention that Ms. Seay’s brief periods of successful
employment were apparently made possible only by extreme accommodation
from her employer—a fact not relevant to Ms. Howard until she was specifically
asked, because Ms. Seay was unemployed during the time she counseled with
Ms. Howard. That missing piece of the puzzle came from Ms. Seay’s testimony
(AR65-67), and from her written statement in the administrative record
(AR341-42).
Here, the ALJ gave “great weight” to Dr. Pelc’s opinion, “some weight” to
the opinions of the non-treating, non-examining State Agency psychologists,
and “little weight” to Ms. Seay’s treating counselor, Shannon Howard. He also
“accepted” the opinions of the State Agency consulting physicians who
rendered opinions regarding Ms. Seay’s physical functional capacity.
Substantial evidence does not support the ALJ’s conclusion that Dr. Pelc’s
opinion is entitled to the “great weight” it was given by the ALJ because
Dr. Pelc was a non-treating non-examining ME, he did not review the “Exhibit
E” materials, nor did he hear Ms. Seay’s testimony, or that of her mother,
Wilma Goehring, who also testified at the hearing. Additionally, there is no
85
evidence that this information was provided to Dr. Pelc in summary form by
the ALJ. On remand, the consulting physician should consider “all relevant
evidence” as required by 20 C.F.R. § 416.920a(c)(1).
F.
Whether the ALJ Erred in Evaluating the Weight Given to the
Treating Therapist’s Opinion?
Next, Ms. Seay asserts the ALJ erred by assigning only “some weight” to
the opinion of her treating counselor, Shannon Howard. The ALJ noted that
even though Ms. Howard was a treating provider, she was not an “acceptable
medical source” under the regulations (20 C.F.R. § 416.902). That regulation
provides that licensed physicians, licensed psychologists, licensed
optometrists, licensed podiatrists, qualified speech pathologists, licensed
audiologists, licensed advanced practice registered nurses, and licensed
physician’s assistants are “acceptable medical sources.” Id. Only “acceptable
medical sources” are qualified to provide the evidence necessary to establish
the existence of a medically determinable impairment. Sloan v. Astrue, 499
F.3d 883, 888 (8th Cir. 2007). Likewise, only “acceptable medical sources” can
provide medical opinions or be considered a treating source. Id.
According to 20 C.F.R. § 416.913(d)(1) as it existed on the date of the
ALJ’s decision,43however, as Ms. Seay’s therapist Ms. Howard would have been
The regulations have since been amended and reorganized. The 2017
versions of § 416.913 and § 416.927 (regarding sources of medical evidence
and the weight to be assigned to medical opinions) have been rewritten.
However, as with regulation SSR 96-7p, discussed below in footnote 44, (now
SSR 16-3 regarding “credibility”) the rewritten versions indicate they are only
applicable to claims filed prospectively after the change. In the case of
§ 416.913 and § 416.927 the changes are applicable only to claims filed after
March 27, 2017.
43
86
an “other source” whose opinion the ALJ could have considered to determine
the severity of Ms. Seay’s impairments, and to determine how such
impairments affected her Ms. Seay’s ability to work.
In her brief, Ms. Seay refers to SSR 06-03p. That Social Security Ruling
has likewise been rescinded effective March 27, 2017. It was, however, in effect
as of the day Ms. Seay filed her application for SSI benefits (June 30, 2013)
and as of the day the ALJ issued her decision (August 26, 2015). It appears
that the language of SSR 06-03p, or substantially similar language, has been
incorporated into the new version of 20 C.F.R. § 416.927(f), which appears in
the 2017 version of the CFR.
That provision (20 C.F.R. § 416.927(f)), is applicable only to claims filed
before March 27, 2017. The result is the same—SSR 06-03p and 20 C.F.R.
§ 416.927(f) both apply to Ms. Seay’s case. The court takes a moment,
however, to observe that as to claims filed after March 27, 2017, the CFRs
regarding acceptable medical sources, medical opinions, and how the SSA
must articulate the manner in which it evaluates the medical evidence, has
been completely re-written.
For example, for claims filed after March 27, 2017, though a provider
must still be an acceptable medical source to provide an opinion about the
existence of a medical impairment, all medical sources may provide medical
opinions on other issues.44 The SSA, however, will not be required to articulate
See https://www.ssa.gov/disability/professionals/bluebook/revisionsrules.html
44
87
any particular weight (including controlling weight) assigned to the medical
opinions in the file. Instead, the ALJ will consider the “persuasiveness” of all
medical opinions (not only the acceptable medical source opinions) using the
factors specified in the regulations. Supportability and consistency will be the
most important factors, and usually the only factors the ALJ is required to
articulate.45
Additionally, three new types of medical providers (advanced practice
registered nurses, audiologists, and physician assistants) were added to the list
of acceptable medical sources.46 The Social Security Administration has
explained all these changes were made, in part, to
reflect modern healthcare delivery and to address adjudicative
issues resulting from the current rules. First, the final rules reflect
that individuals now often choose to receive evaluation,
examination, and treatment from multiple medical sources, some
of which may not be AMSs. Second, the current policies that focus
upon weight, including the treating source rule, have resulted in
reviewing courts focusing more on whether we sufficiently
articulated the weight we gave opinions rather than on whether
substantial evidence supports the Commissioner’s final decision . .
See https://www.ssa.gov/disability/professionals/bluebook/revisionsrules.html (accessed March 26, 2018).
Returning to the weight the ALJ assigned to Ms. Howard’s opinion, the
court refers to Ms. Howard’s mental impairment questionnaire, dated January
5, 2015. AR964-71. First, Ms. Howard indicated that she saw Ms. Seay
“weekly” from March 19, 2013, to the “present.” AR964. Because Ms. Howard
45
Id.
46
Id.
88
was not an acceptable medical source, she was not allowed to establish the
presence or identity of Ms. Seay’s mental impairment(s). Ms. Howard’s opinion
about the mental impairments from which Ms. Seay suffered, however, was the
same as the opinions accepted as credible by the ALJ. Specifically,
Ms. Howard opined that Ms. Seay suffered from 296.90 and 301.9 (mood
disorder and personality disorder).47 The State Agency psychological experts
(Drs. Muntz and Buchkoski) and the medical consultant (Dr. Pelc) agreed with
these diagnoses. Under 20 C.F.R. § 416.913(d)(1) and SSR 06-03p, then,
Ms. Howard is qualified to opine about the severity of Ms. Seay’s undisputed
medical impairments, and how those impairments affected Ms. Seay’s ability to
work. Sloan, 499 F.3d at 888; Shontos, 328 F.3d at 426.
Ms. Howard was asked to identify the signs and symptoms exhibited by
Ms. Seay which were associated with her diagnoses. Ms. Howard identified the
following: poor memory, mood disturbance, emotional lability, social
withdrawal or isolation, decreased energy, anhedonia48 or pervasive loss of
See http://www.icd9data.com/2015/Volume1/290-319/295299/296/296.90.htm; http://www.icd9data.com/2014/Volume1/290319/300-316/301/301.9.htm (accessed March 26, 2018).
47
48
People who experience anhedonia have lost interest in activities they used to
enjoy and have a decreased ability to feel pleasure. Anhedonia is a core
symptom of major depressive disorder, but it can also be a symptom of other
mental health disorders. Symptoms include social withdrawal, a lack of
relationships or withdrawal from relationships, negative feelings toward
yourself or others, reduced emotional abilities, difficulty adjusting to social
situations, a tendency toward showing fake emotions, such as pretending to be
happy. See
https://www.healthline.com/health/depression/anhedonia#symptoms
(accessed March 26, 2018).
89
interest, feelings of guilt or worthlessness, difficulty thinking or concentrating,
persistent irrational fears, generalized persistent anxiety, hostility and
irritability. AR964-65. Ms. Howard described Ms. Seay’s other symptoms as
well: “worry, past trauma, loss, self-blame, depression, sleep loss, difficult
interpersonal relationships.” AR965. Under clinical findings, Ms. Howard
wrote “ongoing anxiety, depression & emotional issues, difficult leaving house,
anhedonia, irritable, lack of motivation, worry, fear.” Id.
Asked specifically if Ms. Seay was a malingerer, Ms. Howard circled “no.”
Asked specifically if Ms. Seay’s impairments were reasonably consistent with
the symptoms and functional limitations described in her evaluation,
Ms. Howard circled “yes.” Id. Ms. Howard described her treatment, and
Ms. Seay’s response to the treatment, as follows: “Individual therapy weekly.
Has built solid relationship w/counselor, established trust, open to challenge &
feedback & worked hard at this.” AR965. As her counselor, Ms. Howard was
unaware of Ms. Seay’s medications or their side effects. AR965. As for
Ms. Seay’s prognosis, Ms. Howard believed Ms. Seay would need “ongoing
therapy for some time.” AR966. She believed Ms. Seay’s condition had lasted
and could be expected to continue for at least 12 months. Id. She expected
Ms. Seay’s condition would cause Ms. Seay to be absent from work more than
three times per month. AR967.
Ms. Howard rated Ms. Seay’s ability to perform unskilled work as limited
by her anxiety and depression. She explained that Ms. Seay’s anxiety and
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depression affected her ability to focus and her motivation, and that Ms. Seay
had a history of an inability to deal with or work well with others. AR969.
As a result of these impairments, Ms. Howard rated Ms. Seay’s ability to
make simple work-related decisions, ask simple questions or ask for
assistance, and be aware of hazards/take precautions as “good.”
She rated Ms. Seay’s ability to remember work procedures, understand
and remember short instructions, and carry out short and simple instructions
as “fair.” AR968.
She rated Ms. Seay’s ability to maintain attention for a two-hour
segment, maintain regular attendance and be punctual within customary,
usually strict tolerances, sustain an ordinary routine without special
supervision, work in coordination with or proximity to others without being
unduly distracted, complete a normal workday and workweek without
interruptions from psychologically based symptoms, perform at a consistent
pace without an unreasonable and length of rest periods, accept instructions
and respond appropriately to criticism from supervisors, get along with coworkers or peers without unduly distracting them or exhibiting behavioral
extremes, respond appropriately to changes in a routine work setting, and deal
with normal work stress all as “poor.” AR968.
Ms. Howard indicated Ms. Seay had “none” or “poor” mental abilities to
deal with the stress of skilled or semi-skilled work or to set realistic goals or
make plans independently of others. AR969. In support of this opinion,
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Ms. Howard explained that Ms. Seay had a history of not being able to follow
through. Id.
Next, Ms. Howard opined that Ms. Seay had “good” ability to adhere to
basic standards of neatness and cleanliness, but “poor or none” ability to
interact appropriately with the general public, maintain socially appropriate
behavior, travel in unfamiliar places, and use public transportation. AR969.
As to these limitations, Ms. Howard explained Ms. Seay had a history of issues
in public if the place was unknown, and of leaving her house. AR970.
Finally, Ms. Howard opined Ms. Seay had “marked” degrees of limitation
in her activities of daily living, “marked” deficiencies in concentration,
persistence or pace, resulting in her failing to complete tasks in a timely
manner, in a work setting or elsewhere, “marked” difficulties in maintaining
social functioning, and “repeated” episodes of deterioration or decompensation
in work or work-like settings which had caused her to withdraw from that
setting or which had caused an exacerbation of her symptoms. AR970.
The reasoning the ALJ offered for assigning only “some weight” was that
Ms. Seay’s own description of her functioning, the therapy notes, and the other
medical records “as described above” (referring to the ALJ’s written decision)
did not support the severity of the assessed limitations. AR38. Furthermore,
the ALJ stated, Ms. Howard’s opinion was markedly inconsistent with “other
substantial evidence” which the ALJ described as the State Agency
psychological consultants (Drs. Buchkoski and Muntz) and the medical expert
(Dr. Pelc)—all of whom were acceptable medical sources and whose opinions
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suggested Ms. Seay had much greater capacity to function independently,
appropriately, and effectively on a sustained basis. AR38.
Returning to SSR 06-03p, that Ruling instructs that “other” medical
sources such as therapists like Ms. Howard may give evidence to show the
severity of a person’s impairment and how it affects the person’s ability to
function. Id. at p. 5-6. The SSR explains that while the regulations explicitly
provide criteria for evaluating medical opinions from acceptable medical
sources, they do not explicitly address how to consider relevant opinions from
“other” medical sources, such as therapists. Id. at p. 7.
With the growth of managed health care in recent years and the
emphasis on containing medical costs, medical sources who are
not “acceptable medical sources,” such as nurse practitioners,
physician assistants, and licensed clinical social workers, have
increasingly assumed a greater percentage of the treatment and
evaluation functions previously handled primarily by physicians
and psychologists. Opinions from these medical sources, who
are not technically deemed “acceptable medical sources”
under our rules, are important and should be evaluated on
key issues such as impairment severity and functional
effects, along with the other relevant evidence in the file.
Id. at p. 8 (emphasis added).
The ruling explains that the same factors which apply to “acceptable
medical sources” can be applied to “other sources.” Id. at p. 10. In other
words, how long the source has known the claimant and how frequently the
source has seen the claimant; how consistent the opinion is with the other
evidence; the degree to which the source presents relevant evidence to support
the opinion; how well the source explains her opinion; whether the source has
a specialty or area of expertise related to the claimant’s impairments; and any
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other factors tending to support or refute the opinion. Id. at p. 10. The ruling
goes on to address--in particular--opinions from medical sources who are not
“acceptable medical sources.” These medical sources may address some of the
same issues as acceptable medical sources, including symptoms, diagnosis and
prognosis, what the individual can still do despite the impairment, and
physical and mental restrictions. Id. at pp. 10-11. The Social Security
Administration further explained:
Not every factor for weighing opinion evidence will apply in every
case. The evaluation of an opinion from a medical source who is
not an “acceptable medical source” depends on the particular facts
in each case. Each case must be adjudicated on its own merits
based on a consideration of the probative value of the opinions and
a weighing of all the evidence in that particular case.
The fact that a medical opinion is from an “acceptable medical
source” is a factor that may justify giving that opinion greater
weight than an opinion from a medical source who is not an
“acceptable medical source” because, as we previously indicated in
the preamble to our regulations at 65 FR 34955, dated June 1,
2000, “acceptable medical sources” “are the most qualified health
care professionals.” However, depending on the particular facts
in a case, and after applying the factors for weighing opinion
evidence, an opinion from a medical source who is not an
“acceptable medical source” may outweigh the opinion of an
“acceptable medical source,” including the medical opinion
of a treating source. For example, it may be appropriate to give
more weight to the opinion of a medical source who is not an
“acceptable medical source” if he or she has seen the individual
more often than the treating source and has provided better
supporting evidence and a better explanation for his or her
opinion. Giving more weight to the opinion from a medical source
who is not an “acceptable medical source” than to the opinion from
a treating source does not conflict with the treating source rules in
20 CFR 404.1527(d)(2) and 416.927(d)(2) and SSR 96-2p, “Titles II
and XVI: Giving Controlling Weight To Treating Source Medical
Opinions.”
Id. at p. 11 (emphasis added).
94
Ms. Seay asserts the ALJ erred in rejecting Ms. Howard’s opinion
because there was not substantial evidence in the record which was
inconsistent with Ms. Howard’s opinion. The ALJ cited as such evidence “the
State Agency psychological consultants and [Dr. Pelc].” Ms. Seay asserts the
State Agency psychological experts opinions were not substantial evidence
because they never treated or even examined her, and, as the ALJ
acknowledged, they only reviewed incomplete medical records (up until the
date of Ms. Seay’s request for hearing). Ms. Seay asserts (and this court
agrees) Dr. Pelc’s opinion was not substantial evidence for the reasons
addressed in
DISCUSSION
Section E, above.
The Commissioner does not dispute that ordinarily, the opinion of a nontreating, non-examining physician does not constitute substantial evidence
upon which to base a claimant’s residual functional capacity finding. Wagner,
499 F.3d at 849; Harvey, 368 F.3d at 1016 (citing Jenkins, 196 F.3d at 925)).
The Commissioner asserts that nevertheless, in this instance, the opinions of
the non-treating, non-examining State Agency physicians and the opinion of
Dr. Pelc are more consistent with the remainder of the record evidence.
Likewise, the Commissioner asserts that opinions from non-acceptable
medical sources can never be accorded “controlling weight.” Whatever
“controlling weight” means, it does not mean that after weighing all the
evidence and the appropriate factors, the ALJ may never adopt the wellsupported opinion of a non-acceptable medical source in the face of
disagreement in the record by not-so-well supported opinions of acceptable
95
medical sources—at least as to the issue of the severity of the claimant’s
impairment and how it affects the claimant’s ability to function. As to these
issues, the Social Security Administration has explicitly instructed that a nonacceptable medical source opinion may “outweigh” an opinion from an
acceptable medical source. SSR 06-03p, pp. 11-12.
The next reason the ALJ cited for giving “little weight” to Ms. Howard’s
assessment was that it was inconsistent with Ms. Seay’s own description of her
level of functioning. In support of that justification, the ALJ cited Ms. Seay’s
activities of daily living (taking care of her daughter, preparing meals, laundry,
dishes, driving, shopping, handling her finances, playing video games, listening
to music, watching TV, checking Facebook, and attending her medical
appointments). Ms. Seay’s description of these activities, however, was in fact
consistent with what was described in Ms. Howard’s medical source statement.
Though she described herself as capable of these activities of daily living,
Ms. Seay’s description of functioning in this area was far from normal. She
washed dishes and clothes only when there were no clean ones left. She often
bathed only when she began to stink. She felt guilty (“horrible and rotin”) for
not taking her child outside to the park. Though she went grocery shopping,
when she did she tried to buy enough so she would not have to leave the house
again soon. She did not like to leave the house alone because of her paranoia.
Ms. Seay’s self -description in other facets of her life was also consistent
with Ms. Howard’s medical source statement. Ms. Seay reported she did not
get along well with authority figures—but yet she resorted to calling to police to
96
come resolve her conflicts with others. She did not trust people, had
relationship conflicts, and was susceptible to stress headaches as a result.
She quickly entered into relationships with men, but the relationships never
lasted. She reported excessive worry and irritability. She reported having
worked at over 20 jobs but being fired from nearly all of them because of her
inability to get along with supervisors and co-workers. Most, if not all, of these
self-reported traits were endorsed by Ms. Seay’s mother—both in
Ms. Goehring’s written statement and in her oral testimony at hearing. See
summary of the same in the
DISCUSSION
Section G.2.b, below.
The Commissioner further asserts that the severity of the symptoms and
functional abilities portrayed in Ms. Howard’s medical source statement is
inconsistent with her own and other medical records. In support of that
assertion, the Commissioner cites several medical records in which Ms. Seay’s
mood is reported as “pleasant.” AR483, 485, 489, 493, 495, 497, 499. On
these occasions, her therapist indeed recorded her mood as “pleasant.” A
sample first sentence from one of these records is, “Katrina is in a pleasant
mood today however had a great deal of recent stresses to talk about.” AR483.
Ms. Seay continued to report ongoing stresses, and her counseling sessions
focused on such subjects as appropriate boundaries for building normal
friendship and family relationships, her personality disorder, paranoia, and
beginning to understand how to make better choices. Id. On the page which
the Commissioner cites in support of Ms. Seay’s independent decision making
abilities (AR578), the Commissioner fails to note the remainder of that same
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record, where Ms. Casavan (Ms. Seay’s therapist at the time) noted Ms. Seay’s
need for continued treatment:
Katrina will continue to receive mental health services as she
continues to struggle with ongoing anxiety and at times, struggles
with appropriate problem solving skills leading to poor decision
making. She plans to continue to utilize therapy and seems to
benefit from ongoing case management services as she has a
limited support system and struggles with ongoing interpersonal
relationship issues. Without further services, Katrina may turn to
impulsive decision making leading to further legal issue, CPS
involvement, and a setback in the progress she has made towards
her mental health recovery.
See AR578. Though Ms. Seay’s mood is noted as “pleasant,” one wonders
“pleasant compared to what?” This note is does not paint the picture of
someone capable of day-in, day-out, full-time work, and is entirely consistent
with Ms. Howard’s medical source statement.
Finally, in brief, the Commissioner argues the ALJ gave appropriate
weight to Ms. Howard’s medical source statement because Ms. Seay’s anxiety
and depression were “situational” and because the record generally shows that
therapy and medication improved Ms. Seay’s symptoms. In her reply brief,
Ms. Seay addresses the merits of these contentions (i.e. that her mental
impairments are not “situational” and that her medications do not render her
able to function in the workplace).
The ALJ did not specifically articulate these two reasons for the
functional restrictions they found to be most appropriate regarding Ms. Seay’s
work abilities. This justification does appear in the opinions of the State
Agency consultants (Drs. Muntz and Buchkoski), whose opinions the ALJ gave
“some weight.” Both of those doctors referred to Ms. Seay’s depression and
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anxiety as “situational,” and indicated that with medication compliance “it is
assumed her depression symptoms . . . will be stable.” AR102, 114.
The court notes, however, that Dr. Pelc, who reviewed a more
longitudinal medical record,49 and whose opinion the ALJ gave “considerable
weight” did not refer to Ms. Seay’s anxiety and depression as “situational,” and
did not discuss her medications at all. AR68-75. In fact, Dr. Pelc referred to
Ms. Seay’s anxiety as “ongoing” and offered her “ongoing” anxiety as his reason
for rating two of Ms. Seay’s abilities in the “B” criteria (concentration,
persistence and pace, and social functioning) in the moderate impairment
category. This opinion differed from the State Agency physicians who believed
her mental impairments were “situational” and who opined all of her “B”
criteria limitations were “mild” and who assumed her symptoms would
stabilize if she was compliant with her medication.50
The court notes that the Commissioner’s assertions regarding the effects
of Ms. Seay’s medications are not borne out by the record. First and foremost,
Ms. Seay had recently changed medications at the time of the hearing—to
Wellbutrin and back to Cymbalta. AR703. The records cited by the
Commissioner in support of her assertion that Ms. Seay’s medications
“reasonably controlled” her mental impairments reveal the following: In
February, 2013 Ms. Seay reported Cymbalta worked well to manage her
The ALJ erred by assigning “considerable weight” to Dr. Pelc’s opinion for the
reasons explained in the DISCUSSION section E, above.
49
As discussed in the DISCUSSION Section G, below, Ms. Seay had been on new
psychological medication for only a few months at the time of hearing.
50
99
anxiety, but in that same visit reported she still felt “paranoid” when out in
public with her daughter. AR497. When she reported trazadone was working
well, it was for helping her sleep, not for her depression or anxiety. AR581.
The records cited by the Commissioner regarding Ms. Seay’s medications
(AR675, 680, 695, 700) each begin with the same phrase “she states the
symptoms are chronic and fairly controlled.” Id. Those same records, however,
are followed by Ms. Seay’s quotes from the particular day, including “I am
horrible” and “I am not so great.” Id. Additionally, the “prescriber’s evaluation”
section of those same notes indicate that the “Lamictal [is] too sedating”
“Hydroxyzine doesn’t do anything,” and “c/o anxiety, low energy.” Id. Whether
Ms. Seay’s medications improved her mental impairments to a degree which
would facilitate substantial gainful employment is certainly not a foregone
conclusion.
More importantly, however, because there is no mention of these issues
by the consultant upon whose opinion the ALJ relied nor in the ALJ’s written
decision, the court is left to speculate whether the ALJ believed Ms. Seay’s
anxiety and depression impairments were “situational” and if so, whether that
belief had anything whatsoever to do with the ALJ’s failure to assign greater
weight to Ms. Howard’s opinion. The same is true for whether the ALJ believed
Ms. Seay’s medication compliance would affect her functional ability, and if so,
whether that belief had anything whatsoever to do with the ALJ’s failure to
assign greater weight to Ms. Howard’s opinion.
100
Ms. Howard saw Ms. Seay on a weekly basis and was in the best position
to observe the effect Ms. Seay’s medications had upon her anxiety, depression,
and her ability to function in the workplace. Had the ALJ accepted
Ms. Howard’s medical source opinion, Ms. Seay would have been deemed
disabled and entitled to benefits. “The reviewing court will not speculate on
what basis the Commissioner denied a social security disability claim.” Collins
v. Astrue, 648 F.3d 869, 872 (8th Cir. 2011) (reversing and remanding because
the ALJ did not specify how he reached his step five decision). See also
Strayhorn v. Califano, 470 F. Supp. 1293, 1297 (E.D. Ark. 1979). There, it was
explained why the reviewing court must be able to discern the ALJ’s rationale
for her decision. Id.
In our view an examiner’s findings should be as comprehensive
and analytical as feasible, and where appropriate, should include a
statement of subordinate factual foundations on which ultimate
factual conclusions are based, so that a reviewing court may know
the basis for the decision. This is necessary so that the court may
properly exercise its responsibility under 42 U.S.C. § 405(g) to
determine if the Secretary’s decision is supported by substantial
evidence.
Id. (citing Baerga v. Richardson, 500 F.2d 309, 312 (3rd Cir. 1974).
For all of these reasons, the ALJ’s assignment of only “some weight” to
Ms. Howard’s opinion is not supported by substantial evidence. This case will
be remanded for a proper consideration of all the evidence, including
Ms. Howard’s opinion, regarding the severity of Ms. Seay’s impairments and
their effect upon her ability to work.
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G.
Whether the ALJ Applied the Proper Standard to Determine the
Credibility of Ms. Seay and Her Mother’s Testimony?
1.
The Law Applicable to Credibility51 Determinations
In determining whether to fully credit a claimant’s subjective complaints
of disabling pain, the Commissioner engages in a two-step process: (1) first, is
there an underlying medically determinable physical or mental impairment
that could reasonably be expected to produce the claimant’s symptoms; and
(2) if so, the Commissioner evaluates the claimant’s description of the intensity
and persistence of those symptoms to determine the extent to which the
symptoms limit the claimant’s ability to work. See SSR 16-3p; 20 C.F.R.
§ 416.929. Here, the ALJ found Ms. Seay had medically determinable
physical52 and mental impairments that could reasonably be expected to
produce her symptoms in accordance with part 1 above. So the credibility
determination rested on the second prong discussed above.
The court notes that as of March 28, 2016, the Commissioner determined to
discontinue the use of the term “credibility” in its sub-regulatory policy. See
SSR 16-3p (which superseded SSR 96-7p). The Commissioner wanted to make
clear that in evaluating a claimant’s subjective complaints of symptoms, it was
not evaluating the claimant’s character. Id. The court uses the term
“credibility” herein because it is prevalent in the case law that has developed,
the ALJ used that term (AR33), and the ALJ issued her decision under the
prior SSR 96-7p because the ALJ’s decision (Aug. 26, 2015), was issued before
SSR 96-7p was superseded by SSR 16-30 (Mar. 28, 2016). Nevertheless, like
the Commissioner, this court emphasizes that “credibility” is not
interchangeable with “character.”
51
As discussed previously, the ALJ did not herself find that Ms. Seay suffered
from medically determinable physical impairments, most notably fibromyalgia,
but the ALJ did adopt the opinions of physicians who did conclude she suffered
from fibromyalgia. The ALJ then incorporated those physicians’ opinions as to
the effect of fibromyalgia into Ms. Seay’s physical RFC.
52
102
In evaluating the second prong of the analysis, an ALJ must consider
several factors. The factors to consider include: whether such complaints are
supported by objective medical findings, whether the claimant has refused to
follow a recommended course of treatment, whether the claimant has received
minimal medical treatment, whether the claimant takes only occasional pain
medications, the claimant=s prior work record, observation of third parties and
examining physicians relating to the claimant=s daily activities; the duration,
frequency, and intensity of the pain; precipitating and aggravating factors;
dosage, effectiveness, and side effects of medication; and functional
restrictions. Wagner, 499 F.3d at 851 (8th Cir. 2007) (citing Polaski v. Heckler,
739 F.2d 1320, 1322 (8th Cir. 1984)). A claimant=s subjective complaints of
pain may be discredited only if they are inconsistent with the evidence as a
whole. Id.
With regard to the factor of a claimant’s daily activities, the ALJ must
consider the “quality of the daily activities and the ability to sustain activities,
interest, and relate to others over a period of time and the frequency,
appropriateness, and independence of the activities.” Wagner, 499 F.3d at 852
(citing Leckenby v. Astrue, 487 F.3d 626, 634 (8th Cir. 2007)) (emphasis in
original). Although activities which are inconsistent with a claimant’s
testimony of disabling pain reflect negatively on the claimant’s credibility, the
ability to do light housework and occasional visiting with friends does not
support a finding that the claimant can do full-time work in the Acompetitive
and stressful conditions in which real people work in the real world.” Reed,
103
399 F.3d at 923 (quoting Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.
1989)).
An ALJ need not methodically discuss every Polaski factor so long as the
factors are all acknowledged and considered in arriving at a conclusion. Steed
v. Astrue, 524 F.3d 872, 876 (8th Cir. 2008). If adequately supported,
credibility findings are for the ALJ to make. Id. (citing Dukes v. Barnhart, 436
F.3d 923, 928 (8th Cor. 2006)). Generally, the ALJ is in a better position to
evaluate credibility of witnesses and courts on judicial review will defer to the
ALJ’s credibility determinations so long as they are supported by substantial
evidence and good reasons. Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.
2006). See also Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004)
(stating “[w]e will not substitute our opinion for that of the ALJ, who is in a
better position to assess credibility.”).
The Eighth Circuit has said “in many disability cases, there is no doubt
that the claimant is experiencing pain; the real issue is how severe that pain
is.” Woolf, 3 F.3d at 1213. So too, here: there is no question Ms. Seay
experienced symptoms; the real issue is how severe those symptoms are. The
Polaski factors assist the ALJ in making that determination.
2.
Summary of Ms. Seay and her Mother’s Statements
a.
Ms. Seay
Ms. Seay reported on June 20, 2013, that she stopped working in
October, 2012, “because of my conditions” generally, and also because of
“sexual harassment [and] false claims.” AR280. She listed her medical
104
conditions as: fibromyalgia, anxiety, depression, migraines, back pain,
anemia, leg length differential, and PTSD. AR279. She reported she took
Cymbalta for her fibromyalgia and anxiety, flexoril for muscle relaxing,
tramadol for pain, and Vicodin for pain. AR282. She described problems in
concentrating and problems from migraine headaches. AR289. Dealing with
the aftermath of childhood abuse was also noted by Ms. Seay as causing
problems. Id.
In a function report one month later, Ms. Seay answered the question,
“How do your illnesses, injuries or conditions limit your ability to work?” by
describing her mental impairments. AR291. She described severe anxiety that
made her “mess up” on the job, “zone out” and interfere with sleep. AR291-92.
She described taking care of her own daily needs and those of her daughter’s,
but that she had more low-energy days than regular- or high-energy days.
AR292. She would only wash dishes when everything was dirty, and only
bathe herself when she was dirty or smelly. Id. She described needing
reminders to take her medications. AR293. She cooked meals, but only if they
took less than 10 minutes to make. Id. She stated she had to take pain pills
to stand up for more than 5 minutes. Id. She described going out to shop,
including driving, when her emotions could “handle it” and only when needed.
AR294. She stated she could handle her own finances, including using a
checkbook, paying bills, and counting change. Id.
In the same function report, Ms. Seay described watching television
daily, and chatting and playing games with friends on the internet daily.
105
AR295. She stated she did not go out of the house unless it was for an
appointment or something necessary. Id. As to specific information about her
mental and physical abilities,53 Ms. Seay chose not to answer the specific
questions; instead she merely wrote “my issues affect all of the above but my
medications make them tolerable.” AR296.
Ms. Seay stated she could walk 4 to 5 blocks before needing to rest
because of shortness of breath. Id. She stated she did not finish (movies,
conversations, chores, reading) what she started. Id. She stated she followed
written instructions for the first time very well, but did not follow spoken
instructions well. Id. She stated she did not get along well with authority
figures, noting she had recently been arrested for “arguing with cops.” AR297.
She stated she had unusual behavior or fears because of trauma that had
occurred in her life. Id.
In a December 6, 2013, disability report, Ms. Seay stated she has anxiety
in public and problems with paperwork because she doesn’t process
information correctly or turn things in on time. AR311. She described getting
anxious and angry when she doesn’t understand something. Id.
In an April 30, 2014, disability report, Ms. Seay described worsening
anxiety and depression. AR318. She also stated she was currently unable to
The function report form asked Ms. Seay to indicate if her conditions affected
her ability to do the following: lifting, squatting, bending, standing, reaching,
walking, sitting, kneeling, talking, hearing, stair climbing, seeing, memory,
completing tasks, concentration, understanding, following instructions, using
hands, and getting along with others. AR296. Obviously, it would have been
helpful to have Ms. Seay answer the questions about these specific matters.
53
106
take her medications because she was pregnant again. Id. She described
leaving her house less often. AR318, 322.
In a January 8, 2016, typewritten statement to the Appeals Council, she
described her working experience at Wal-Mart, saying that pain and mental
impairments made it difficult to work. AR341-42. Her former boss enabled her
to keep this job for a time by allowing her to work a great deal of the time in the
cooler where she would have no contact with other people. Id. When this boss
suddenly died, the new boss would not accommodate Ms. Seay and she could
not perform the job as required. Id.
In her testimony before the ALJ, Ms. Seay described having a car and
driver’s license which she used to drive once or twice a week. AR63. She
agreed with the ALJ’s description of her physical impairments consisting of
fibromyalgia, migraine headaches, and scoliosis. AR61-62. She verified height
and weight numbers that placed her in the extreme obesity Body Mass Index
(BMI) category. AR62. See SSR 02-1p (BMIs over 40 are classified by the
Commissioner as “extreme”). Ms. Seay agreed her mental impairments
consisted of PTSD, anxiety, and depression. AR64.
In terms of her ability to work, Ms. Seay testified solely to mental
impairments and the impact they had on her ability to function socially. AR6668. The only limitation on her physical functioning which she testified about
was an inability to lift heavy boxes during her pregnancy. AR67.
107
b.
Wilma Goehring
In a third-party function report dated August 21, 2013, Wilma Goehring
described her daughter’s impairments as taking on a different personality out
in public which wears her out, having a lot of migraines, having a physical
problem with her hips which made stair climbing difficult, fear of the public,
sleeping a lot, and cleaning house very little. AR299-300. Ms. Goehring stated
Ms. Seay cared for her daughter and played video games, cooked frozen or
prepared foods, and did laundry. AR300-01. Ms. Goehring said her daughter
took care of her own personal needs and needed no reminders to take her
medications. AR300-01. Although Ms. Goehring said Ms. Seay could do her
own house and yard work, it might take all of one day or all of two weeks to
finish. AR301. Having to venture outside her house caused so much stress
that she was unable to do any housework on these days. AR302.
Ms. Goehring linked her daughter’s migraines to the stress of having to
engage in social activities. Id. Ms. Goehring stated her daughter did her own
shopping for food, clothing, toys and car needs, but said her ability to shop was
affected by the amount of social stress involved. Id. Ms. Seay was able to
handle her own finances, pay bills, and handle a checking account in
Ms. Goehring’s opinion. Id. Ms. Goehring described her daughter’s condition
as getting progressively worse, resulting in more reclusiveness and more pain.
AR303. Ms. Seay did not leave her apartment if she did not have to according
to her mother. Id.
108
Ms. Goehring described her daughter’s physical problems as “too open
hips” which caused pain and got worse with each pregnancy. AR304, 306.
She emphasized her daughter’s social impairments. Id. She stated Ms. Seay
was unable to handle stress, unable to get along with others, and that she
feared other people, including Ms. Goehring sometimes. AR304-05. She
attributed Ms. Seay’s failure to hold any job to her fear of others and to her
pain from “too open hips.” AR306.
At the ALJ hearing, Ms. Goehring testified her daughter is “too paranoid”
to allow others to help her. AR81. She stated Ms. Seay’s emotional problems
began at age 5 and progressively got worse. AR83. Ms. Goehring testified she
obtained a psychology degree in an attempt to be the best mother she could be
to Ms. Seay. Id. She opined Ms. Seay suffered from borderline personality
disorder. Id. Ms. Seay’s personality disorder resulted in her “going through”
doctors, counselors, and attorneys as these professionals are unable to deal
with Ms. Seay’s frustration, paranoia and fear. AR83, 86.
She stated Ms. Seay was a good mom. AR85. Physically, Ms. Goehring
again described Ms. Seay’s problem as “too open hips.” Id. She testified that
fibromyalgia runs in their family and that the muscle aches exacerbate
Ms. Seay’s emotional issues. AR87.
3.
Analysis of the ALJ’s Credibility Evaluations
The ALJ concluded the testimony of Ms. Seay and Ms. Goehring was
“sincere,” and that Ms. Seay’s impairments could reasonably be expected to
cause the alleged symptoms, but that “the intensity, persistence and limiting
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effects of the symptoms are not entirely credible” for two reasons: (1) lack of
support in the objective medical records and (2) inconsistency with opinion
evidence from acceptable medical sources. AR35. Other than these two
factors, the ALJ did not discuss any of the other Polaski factors. AR35-40.
The medical records for the period of disability in Ms. Seay’s case—from
May 31, 2013, to July 22, 2015—are significant for two features. First,
Ms. Seay’s primary impairment, as emphasized by Ms. Seay and Ms. Goehring
almost to the exclusion of any other impairment—is her mental impairment(s).
Despite this, Ms. Seay was not on any psychiatric medications until March 19,
2015, a mere four months prior to the ALJ hearing. AR670-71. At that time,
she was prescribed Lamictal and hydroxyzine. AR671. When Ms. Seay came
back for her next appointment on April 29, 2015, her psychiatric medications
were changed. AR700-04. The Lamictal and hydroxyzine were discontinued
and Ms. Seay was started on Wellbutrin and restarted on Cymbalta.54 Id.
There are no mental health medical records following this medication change to
gauge how the medications affected Ms. Seay’s ability to function.
The parties’ joint statement of facts describes Cymbalta as a psychiatric
medication used to treat depression and anxiety. See Footnote 22, supra.
However, Ms. Seay’s medical records reflect it was prescribed for her for back
pain, specifically for any pain not covered by Hydrocodone. AR433. She took
Cymbalta from January 28, 2013, to May 5, 2013, and reported her pain was
better with Cymbalta and that she “knew when she missed a dose.” AR422.
She quit taking Cymbalta May 5, 2013, when she suffered a miscarriage,
AR527, 543, but went back on the drug sometime in October or November,
2013. AR543, 585. She was pregnant from approximately March, 2014, to
January 21, 2015, during which time she stated she quit taking Cymbalta.
AR772. She then resumed taking it April 29, 2015. AR700-04. Whether
Cymbalta was prescribed for Ms. Seay as a psychiatric or pain medication, it
appears she took it only sporadically because of her pregnancies.
54
110
The second notable feature of Ms. Seay’s medical records for the period of
disability is that she was pregnant three times during this two-year period and
she discontinued all her medications while pregnant. Therefore, the
symptoms—both mental and physical—could be expected to increase during
these periods where medication was not being taken.
As to physical impairments, the ALJ noted that Ms. Seay reported only
two migraines during a nine-month pregnancy, even though she was not taking
any narcotics or Cymbalta during the pregnancy. AR36 (citing Ex. 19F at
p. 12). In another medical record, the ALJ noted Ms. Seay reported her
migraines were well-controlled with tramadol, but that she had run out of this
medication, prompting her to report to the emergency room. AR35 (citing
Ex. 8F at pp. 2, 4, 6, 15). The ALJ noted Ms. Seay had one acute episode of
back pain from moving furniture in September, 2013, but her physical exam
was normal even on this occasion, as well as other occasions. AR34-36. As to
the entire host of physical and postural functions listed in Ms. Seay’s function
report, the ALJ noted Ms. Seay said her medications made all these functions
“tolerable.” AR33 (citing AR296).
The ALJ noted that during Ms. Seay’s last pregnancy of record, a few
weeks before she gave birth a drug screening test was positive for an
unspecified drug of abuse, though the record noted Ms. Seay stated she had
stopped taking narcotics months before. AR36 (citing AR772 dated December
23, 2014).
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Not mentioned by the ALJ are numerous conflicts between Ms. Seay’s
statements about her functional abilities and Ms. Goehring’s statements. For
example, Ms. Seay said she needed reminders to take her medication while
Ms. Goehring said she needed no reminders. Compare AR293 with AR301.
Ms. Goehring stated Ms. Seay had no problems with her own personal care,
while Ms. Seay stated she only bathed when she became stinky or had to go
out of her house. Compare AR301 with AR292. While Ms. Seay said she could
perform postural and physical actions so long as she took her medications,
AR296, Ms. Goehring stated her daughter had difficulty with the following: lift,
squat, bend, stand, reach, walk, sit, kneel, climb stairs, complete tasks,
concentrate, understand, follow instructions, use hands, and get along with
others, AR304.
The ALJ should not, perhaps, accord great weight to Ms. Seay’s own
assessment of her mental functioning. Her medical records indicate she has
difficulty acknowledging her psychiatric problems. AR670-71. However, the
primary reasons cited by the ALJ for discounting Ms. Seay and Ms. Goehring’s
testimony as to the severity of symptoms was the fact that the medical evidence
did not support their testimony.
In the Wagner case, the ALJ’s discrediting of the claimant’s subjective
complaints of pain was affirmed on appeal where Wagner had engaged in
extensive daily activities, as evidenced by his “Daily Activities Questionnaire”
and his testimony at the hearing, and where his testimony as to the limiting
effect of his pain was inconsistent with the medical record because his records
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reflected that he did not pursue ongoing evaluation or treatment for his pain
and he did not seek or take pain medication on a regular basis. Wagner, 499
F.3d at 852-853. See also Baker v. Barnhart, 457 F.3d 882, 892-894 (8th Cir.
2006) (affirming ALJ’s discrediting of claimant’s subjective complaints of pain
where claimant engaged in a significant amount of activities of daily living--full
self-care, driving a car, shopping, and running errands--a medical source
opined that the claimant engaged in symptom exaggeration, the claimant did
not take pain medication, and the absence of an etiology for the alleged pain).
In Bentley, 52 F.3d at 785-786, the ALJ’s discrediting of the claimant’s
subjective complaints of pain was affirmed on appeal where the claimant had
not sought medical treatment for his pain for a long period of time and was not
taking any prescription medication for pain. In addition, the record reflected
that the claimant had applied for a number of jobs during his claimed disability
period. Id.
In Harvey, an ALJ who discredited the claimant’s testimony as to
limitations on his activities was affirmed where the evidence showed the
claimant had made prior inconsistent statements to his physicians regarding
his limitations and his asserted need to use crutches or a non-prescribed
walker was inconsistent with statements made by the claimant on other
occasions. Harvey, 368 F.3d at 1015-1016.
In Guilliams, 393 F.3d at 802-803, the Eighth Circuit affirmed an ALJ’s
discrediting of the claimant’s subjective complaints of back pain where
claimant used a cane, but no medical prescription for the cane existed; where
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several medical exams revealed the claimant to be in no significant distress;
where MRIs of the spine revealed essentially normal findings; where the
claimant=s muscle mass was not atrophied despite his allegation of restriction
of motion and diminishment of strength; where the claimant declined to follow
medical advice regarding treatment of his pain; and where medical evidence
demonstrated that pain medication alleviated the claimant’s symptoms of pain.
In Dolph v. Barnhart, 308 F.3d 876, 879-880 (8th Cir. 2002), the ALJ’s
discrediting of the claimant’s subjective complaints of pain from kidney disease
and degenerative spine disease was affirmed where the claimant’s records of
her kidney disease showed “consistently stable renal function” and there was
no record support for complaints of ongoing, severe, protracted discomfort.
An ALJ may consider whether an examining medical source determines
that the claimant was malingering in assessing the credibility of the claimant’s
testimony as to subjective complaints of pain. Clay v. Barnhart, 417 F.3d 922,
930 n.2 (8th Cir. 2005) (two psychologists’ findings that claimant was
malingering cast suspicion on the claimant’s credibility). “Especially in
cases . . . where medical evidence is conflicting, a claimant’s failure to seek
treatment may buttress a particular physician’s opinion.” Shannon v. Chater,
54 F.3d 484, 486 (8th Cir. 1995).
Here, the ALJ failed to consider and discuss numerous Polaski factors:
(1) whether Ms. Seay refused to follow medical treatment; (2) whether she had
received only minimal medical treatment; (3) whether she took only minimal
medications; (4) Ms. Seay’s activities of daily living; and (5) the dosage,
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effectiveness and side effects of medications. Wagner, 499 F.3d at 851. Nearly
all of these factors favor crediting Ms. Seay’s and her mother’s testimony.
Ms. Seay never refused to follow any medical treatment except to lose weight
and get more exercise. She received far more than minimal treatment,
traveling from Belle Fourche to Rapid City two or more times per month for
counselling—a drive of an hour’s duration or more. She took the medications
she was prescribed when she was not pregnant, and she was prescribed some
serious pain relief medications such as Vicodin, Hydrocodone, Flexeril, and
Cymbalta. And her activities of daily living were not inconsistent with her
described symptoms.
Even given all of this, were the court not already determined to remand
this matter on the basis of other issues the court might affirm the ALJ’s
credibility determination. The evidence is certainly mixed and that—along with
the deference due an ALJ’s credibility determination—would combine to
counsel that affirmance was in order. Except for the final Polaski issue—the
dosage, effectiveness, and side effects of medication.
Ms. Seay had only been prescribed psychiatric medications a few short
months before the ALJ hearing. And even in that short time period, her
medications had been completely changed to something different during that
time. There is no record indicating how the final prescribed medications
worked to control Ms. Seay’s symptoms. Remand is warranted in this case
based on other issues. The court also remands as to the Polaski issue so as to
give the ALJ an opportunity to obtain Ms. Seay’s mental health and medical
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records post-April, 2015. By doing so, the ALJ will be able to address how Ms.
Seay’s prescribed psychiatric medications are affecting her ability to function.
On remand, the ALJ should also consider and discuss how the other Polaski
factors impact the credibility decision.
H.
Whether the ALJ Erred By Relying on Total Numbers of Jobs in the
United States at Step Five?
At step five, the ALJ found there were other jobs Ms. Seay could do with
her RFC. AR41. The ALJ’s conclusion was based on testimony from the VE
that there were 271,000 merchandise marker jobs “in the United States.”
AR89. He also testified there were 52,000 router jobs “in the United States.”
AR89. By testifying to the number of jobs available in the entire United States,
Ms. Seay alleges the VE, and the ALJ, used the wrong standard. Her argument
is based on statutory language.
Section 423(d) of Title 42 provides in pertinent part as follows:
(d) “Disability” defined
(1)The term “disability” means—
(A) Inability to engage in any substantial gainful
activity by reason of any medically determinable
physical or mental impairment which can be expected
to result in death or which has lasted or can be
expected to last for a continuous period of not less
than 12 months;
***
(2) For purposes of paragraph (1)(A)—
(A) An individual shall be determined to be under a
disability only if his physical or mental impairment or
impairments are of such severity that he is not only
unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work
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which exists in the national economy, regardless of
whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists
for him, or whether he would be hired if he applied for
work. For purposes of the preceding sentence (with
respect to any individual), “work which exists in the
national economy” means work which exists in
significant numbers either in the region where
such individual lives or in several regions of the
country.
See 42 U.S.C. § 423(d)(1)(A) and (2)(A) (emphasis added).
What is clear from the above emphasized language is that “work which
exists in the national economy” is a term of art in Social Security law. It does
not mean work in the entire United States. Instead, it means “work which
exists in significant numbers either in the region where such individual lives or
in several regions of the country.” Id. (emphasis added). Now, what does that
definition mean exactly?
The Commissioner argues it need not establish jobs exist in Ms. Seay’s
immediate area. Yes. That is true, but it begs the question. The
Commissioner does have to show that jobs exist in Ms. Seay’s “region” or in
“several regions of the country.” We know from the statutory language that
“region” does not mean “immediate area,” but defining what a term does not
mean is not all that helpful in defining what it does mean.
The Commissioner’s regulation, 20 C.F.R. § 404.1566, is likewise
unhelpful. It does not define “region.” Id. It says that “region” is not equal to
“immediate area.” Id. at (a)(1).
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In Barrett v. Barnhart, 368 F.3d 691, 692 (7th Cir. 2004), the court held
the “other regions” language that Congress used in § 423(d)(2)(A) was intended
to prevent the Social Security Administration from denying benefits on the
basis of isolated jobs existing only in very limited numbers in relatively few
locations outside the claimant’s region. This sentiment is paralleled in the
Commissioner’s regulation where it states: “[i]solated jobs that exist only in
very limited numbers in relatively few locations outside of the region where you
live are not considered ‘work which exists in the national economy.’ We will
not deny you disability benefits on the basis of the existence of these kinds of
jobs.” 20 C.F.R. § 404.1566(b).
The dictionary defines “region” as “a large, indefinite part of the earth’s
surface, any division or part.” Webster’s New World Dictionary, at 503 (1984).
“A subdivision of the earth or universe.” OED (3d ed. Dec. 2009). We know
from Congress’ statute and from the Commissioner’s regulation, that “region”
does not mean the entire country. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R.
§ 1566(b). The dictionary defines “region” as an indefinite parcel that is part of
the whole, and so must be something less than the whole. The court
concludes, as it must, that “nationwide” does not truly mean “nationwide.”
Such is the nature of agency law. Instead, at step five, the ALJ must find that
jobs the claimant can do exist in substantial numbers in the claimant’s own
“region” (something less than the whole nation), or in “several regions” (several
parts that, together, consist of something less than the whole nation). Id.
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The Commissioner cites Johnson v. Chater, 108 F.3d 178 (8th Cir.
1997), in support of the assertion that in the VE’s testimony in this case was
sufficient to uphold the ALJ’s decision at step five. The Johnson decision is
inapposite. In the Johnson case, the claimant appealed the issue whether the
VE’s testimony was sufficient to prove that there were jobs existing in
substantial numbers in the national economy. Id. at 178. The VE had testified
that Johnson could perform sedentary, unskilled work such as being an
addresser or document preparer. Id. at 179. The VE said that there were 200
such positions in Iowa and 10,000 such positions nationwide. Id. Johnson
took issue with whether 200 positions in his home state of Iowa constituted
“substantial” numbers of jobs. Id. at 180 n.3. The court rejected Johnson’s
argument and held that the VE’s “testimony was sufficient to show that there
exist a significant number of jobs in the economy that Johnson can perform.”
Id. at 180.
The facts in Johnson stand in stark contrast to the facts in Ms. Seay’s
case. In Johnson, the VE testified to the number of jobs available in the
claimant’s region (in that case, his state), and also the number of jobs available
in the whole country. Id. at 179. Here, the VE testified only to the number of
jobs available “in the United States.” AR89. As established above, both
§ 423(d)(2)(A) and § 404.1566 require more specificity than that. The ALJ and
the VE must find that substantial numbers of jobs are available in Ms. Seay’s
region or in several regions. See Harris v. Barnhart, 356 F.3d 926, 931 (8th
Cir. 2004 (the ALJ must find at step five that claimant is “capable of
119
performing work that exists in significant numbers within the regional and
national economies.”) (emphasis added).
The burden on is on the Commissioner at step five of the sequential
analysis. Johnson, 108 F.3d at 180. Therefore, the absence of valid evidence
of substantial numbers of jobs in Ms. Seay’s “region” or in “several regions” is
an absence of evidence that cuts against the Commissioner. The failure of
proof requires remand to the agency to further develop the facts at step five.
I.
Type of Remand
For the reasons discussed above, the Commissioner’s denial of benefits is
not supported by substantial evidence in the record. Ms. Seay requests reversal
of the Commissioner’s decision with remand and instructions for an award of
benefits, or in the alternative, reversal with remand and instructions to
reconsider her case.
Section 405(g) of Title 42 of the United States Code governs judicial
review of final decisions made by the Commissioner of the Social Security
Administration. It authorizes two types of remand orders: (1) sentence four
remands and (2) sentence six remands. A sentence four remand authorizes the
court to enter a judgment “affirming, modifying, or reversing the decision of the
Secretary, with or without remanding the cause for a rehearing.” 42 U.S.C.
§ 405(g).
A sentence four remand is proper when the district court makes a
substantive ruling regarding the correctness of the Commissioner’s decision
and remands the case in accordance with such ruling. Buckner v. Apfel, 213
120
F.3d 1006, 1010 (8th Cir. 2000). A sentence six remand is authorized in only
two situations: (1) where the Commissioner requests remand before answering
the Complaint; and (2) where new and material evidence is presented that for
good cause was not presented during the administrative proceedings. Id.
Neither sentence six situation applies here.
A sentence four remand is applicable in this case. Remand with
instructions to award benefits is appropriate “only if the record overwhelmingly
supports such a finding.” Buckner, 213 F.3d at 1011. In the face of a finding
of an improper denial of benefits, but the absence of overwhelming evidence to
support a disability finding by the Court, out of proper deference to the ALJ the
proper course is to remand for further administrative findings. Id.; Cox v.
Apfel, 160 F.3d 1203, 1210 (8th Cir. 1998).
In this case, reversal and remand is warranted not because the evidence
is overwhelming, but because the record evidence should be developed,
clarified and properly evaluated. See also Taylor v. Barnhart, 425 F.3d 345,
356 (7th Cir. 2005) (an award of benefits by the court is appropriate only if all
factual issues have been resolved and the record supports a finding of
disability). Therefore, a remand for further administrative proceedings is
appropriate.
CONCLUSION
Based on the foregoing law, administrative record, and analysis, Katrina
Seay’s motion to reverse [Docket No. 17] is granted and the Commissioner’s
motion to affirm [Docket No. 20] is denied. The Commissioner’s decision is
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REVERSED and REMANDED for reconsideration pursuant to 42 U.S.C.
§ 405(g), sentence four.
DATED March 27, 2018.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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