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Reinhardt v. Berryhill

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

March 1, 2017

KAREN B. REINHARDT, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE

         Plaintiff Karen B. Reinhardt (Reinhardt), who formerly was known as Karen Ford, [1] seeks reversal of the decision of the Commissioner of Social Security (Commissioner) denying her claim for supplemental security income (SSI). This is a case where a decision whether Reinhardt is disabled due to mental health issues is a close call, but the ALJ's decision must be affirmed under the deferential "substantial evidence in the record as a whole" standard. For the reasons explained below, this Court affirms the Commissioner's decision.

         I. Procedural History

         Reinhardt applied for SSI benefits on August 16, 2012. AR[2] 191-97. Reinhardt initially alleged that her disability preventing her from gainful employment began on May 15, 1995. AR 191. Information collected by the Commissioner, however, showed that Reinhardt had income as reported on W-2 forms in 1998, 1999, 2000, 2004, 2005, 2006, 2007, and 2011. AR 201-06. In addition, between May of 1995 and June of 2004, Reinhardt also was self-employed doing daycare and earning on average $7, 000 per year, while raising her own children. AR 231. At the evidentiary hearing before Administrative Law Judge Eskunder Boyd (the ALJ), Reinhardt took the position that she had engaged in no substantial gainful activity since July 31, 2012, instead of the earlier date in 1995. AR35.

         Reinhardt in proceedings before the Commissioner alleged disabilities for both physical and mental health conditions, including the following:

Panic Attacks and Major Depression, PTSD from abuse, Attention Deficit Disorder, High Cholesterol, Bipolar Disorder, Chronic Insomnia, Mitral Valve Prolapse, Sciatic Nerve Problems, Hearing Loss, Cataracts, Glaucoma, Irritable Bowel Syndrome, Hietal (sic) Hernia, Ulcers, Heart Burn, Chronic Pain, Epidural Injections, Edema, Fibromyalgia, Osteoarthritis, Bersitis (sic), Ankle Pain, Tendonitis, Dislocated left and right knees and surgery, Carpal Tunnel (need surgery and have had on right hand), Degenerative Disc Disease, Scoliosis, No Curve in Neck.

         AR 91-92. Various function reports completed by Reinhardt, if believed, indicate that she often is bedridden, seemingly in need of daily home medical care given the extent of her claimed limitations and problems. AR 248-55; AR 264-71; AR 274-81; AR 282-88.

         The Commissioner collected and considered treatment records and had Reinhardt undergo physical and mental.health evaluations, as well as having a Residual Functional Capacity (RFC) Assessment and a Mental RFC Assessment done. AR 91-95; AR 97-102; AR 367-72. The Commissioner denied the claim initially. AR 124-26. Reinhardt sought reconsideration. AR 127- 28. The Commissioner had a second evaluation of Reinhardt's RFC and Mental RFC done. AR 116-18; AR 118-19. The Commissioner then determined that the previous denial of the claim was proper under the law. AR 130-36.

         Reinhardt was tardy in filing her request for hearing; but the Commissioner granted such a hearing. AR 137-41; AR 142-48; AR 151-82; AR 185-90. The ALJ conducted an evidentiary hearing on June 12, 2014. AR 29-69. The ALJ then released his decision and notice, from which Reinhardt now appeals. AR 8-24.

         II. Factual Background

         A. Reinhardt's Relevant Personal History

         Reinhardt was born in February of 1958, and thus was 54 at the time she ultimately claimed to have been last able to engage in substantial gainful activity, and was 56 at the time of the hearing. AR 38; see AR 36. Reinhardt originally is from Michigan, graduated from high school in 1976, and worked as a machinist and welder from 1979 until 1995. AR 294. Reinhardt has two years of college and some computer training. AR 230, Reinhardt married Mark Ford in 1994, had a son bom in 1995 and a daughter born in 1997, and ran an in-home daycare from 1995 until 2005. AR 231; AR294. Reinhardt and her husband divorced in 2011. AR 295. Reinhardt worked as a telemarketer or in similar jobs for parts of 2004, 2005, 2006, 2007, and 2011. AR 201-06; AR 215-21; AR 231. At the time of the evidentiary hearing, Reinhardt testified that she was 5' 1 in height and weighed 210 pounds. AR38.

         Reinhardt has both physical and psychological issues. Although the Court recognizes and considers the interplay between the physical and the psychological issues in Reinhardt's case, it is easier to summarize Reinhardt's treatment history separately for the physical issues and psychological issues.

         B. Reinhardt's Treatment History for Physical Issues

         The Administrative Record is devoid of records concerning Reinhardt's treatment history for physical conditions prior to July 12, 2011, AR 403, although there are records as early as September 1, 2009, from counselor Ellen Hohm for psychological issues. AR 333-39. Reinhardt apparently had been prescribed methadone[3] for pain while living in Michigan. At the June 2014 hearing, Reinhardt testified that she had moved from Michigan to Sioux Falls approximately four and a half years earlier, which would have been around the first of 2010, although some records suggest that she was living in Sioux Falls before then. AR 333-39; AR 387.

         The earliest treatment records in the Administrative Record for Reinhardt's physical conditions are from Dr. James M. Barker, a physician with Avera Medical Group. The early treatment records appear to be for methadone refills, rather than evaluations of Reinhardt's overall physical condition. AR 403. Dr. Barker's record from November of 2011 describes that Reinhardt had pain all over and had quit her job. At that point, Dr. Barker suggested that Reinhardt find a new physician because he felt pressure to reduce narcotic prescriptions, while Reinhardt was seeking an increase in those prescriptions. AR 402. Reinhardt continued, to see Dr. Barker into 2012. AR 398-400.

         On August 15, 2012, Reinhardt sought treatment at Sanford USD Medical Center for right great toe pain, after she had stubbed it and feared that a dirty toothpick was within. She was described as being "in no acute distress." X-rays of the toe were negative and no foreign body was found in it. AR 313-17.

         On October 27, 2012, Reinhardt presented to the Avera McKennan Hospital Emergency Room with what was described as a right ankle sprain from having twisted her ankle while walking down some steps. AR 359-60. The initial x-ray showed no fracture or dislocation. AR 360. Reinhardt followed up with the Orthopedic Institute on October 30, 2012, for the right ankle issue. X-rays revealed a possible old fracture in an area that was not causing her discomfort. AR 366. Having the impression that Reinhardt had plantar fascitis from the injury, a certified nurse practitioner at the Orthopedic Institute placed her in a walking boot. AR 366. According to the medical records, Reinhardt was "insisting on pain pills, " and the certified nurse practitioner gave her 20 hydrocodone[4] tablets and a Medrol Dosepak to reduce swelling. AR 366. The next day, November 1, 2012, Reinhardt presented to Dr. Barker and told him that the second x-rays showed a fracture. She received from Dr. Barker a prescription of 50 oxycodone[5] tablets. AR 389. On November 16, 2012, Reinhardt called Dr. Barker asking for a refill of the oxycodone prescription. Dr. Barker also refilled her clonazepam[6] prescription at that time. AR 388.

         On November 26, 2012, Dr. Barker authored a medical record because someone had overwritten Reinhardt's clonazepam prescription and the pharmacy had filled Reinhardt's. prescription thinking it was for lorazepam.[7] Dr. Barker recorded that both Reinhardt and her husband had accused one another of "misadventures related to narcotics, " and both were on methadone at one point. Dr. Barker was concerned about Reinhardt's high dose of methadone and clonazepam, and about the handwritten alteration over his prescription. Dr. Barker had learned through the South Dakota Narcotic website that Reinhardt had also received a hydrocodone prescription from the Orthopedic Institute, and was deeply concerned about her narcotic use. AR 387. At about the same time, on November 23, 2012, Reinhardt returned to the Orthopedic Institute for examination of her right ankle. She was found to be "in no distress, " and was referred to physical therapy for instructions on strengthening and rehabilitation. AR 365.

         The most thorough record of a physical examination of Reinhardt in the Administrative Record comes from Dr. Mark List of the Center for Family Medicine, who completed a South Dakota Disability Determination and Evaluation of Reinhardt on November 29, 2012. Dr. List interviewed Reinhardt and summarized her disability claim as "alleged problems with back, neck, knees, ankles, shoulders, elbows, spine from cervical down to lumbar, fibromyalgia, osteoarthritis, problems with edema, problems with panic attacks, depression, PTSD, ADHD and bipolar disease." AR 367. Dr. List talked with Reinhardt about her work history and recorded that she had quit her last job at a call center after two weeks because of having too much pain in her knees. AR 367. Dr. List categorized her complaints into seven areas and noted that she was being evaluated separately for psychiatric complaints. AR 367-68. Dr. List observed that Reinhardt had "mild distress when moving any of her joints or with any palpation of any of her joints or extremities." AR 368. Dr. List's physical examination of Reinhardt was extensive. AR 368-69. Dr. List found Reinhardt's reflexes to be intact, but noted that she had a shuffling gait and was walking with a cane. AR 369. Her right ankle was in a brace from the recent sprain. AR 369. Her neck showed a slight decrease in range of motion, but she had full range of motion of the lumbar spine. AR 369. Reinhardt had some right shoulder range-of-motion loss. AR 369. Reinhardt had good range of motion in her knees, but complained of pain with movement of her knees. AR 369. The x-rays ordered by Dr. List of Reinhardt's back showed degenerative disc disease at T-l 1 through L-3, with disc space narrowing at L-l-2 and L-2-3. AR 371. The x-ray ordered by Dr. List of Reinhardt's knee showed advanced tricompartment degenerative changes present in her knee. AR 372.

         Dr. List's assessment was that Reinhardt would have difficulty lifting or carrying more than 25 pounds occasionally, and would be unable to stand for an eight-hour period, but she could stand for two hours spread out throughout the day. AR 369. Dr. List reasoned that "given that she is seated for the entirety of our hour long exam without problems, I feel like she may be able to do some sedentary work doing some sitting." AR 369-70. Dr. List found no objective findings for any vision or hearing deficits, but did find joint pain and problems with ambulation to be legitimate. AR 370. Dr. List concluded that notwithstanding his physical findings, "I find it very hard to believe that she would not be able to do a sedentary job where she would be required to sit for the majority of her day and answer a phone or type on a computer or do some sedentary office work." AR 370.

         Reinhardt separately had a RFC done by Dr. Kevin Whittle on December 22, 2012. Dr. Whittle believed that Reinhardt could occasionally lift 20 pounds, frequently lift 10 pounds, stand or walk for two hours in a day, and sit for six hours of an eight-hour day with breaks. AR 97-98. Dr. Whittle based Reinhardt's limitations on her chronic generalized pain syndrome. AR 98. Dr. Whittle believed that Reinhardt's "[s]ymptoms appear to be out of proportion to the objective findings, " but acknowledged that PTSD and depression were problems that may have been contributing to her symptoms. AR 99. Dr. Whittle then opined that Reinhardt was not disabled based on her ability to do past relevant work as a telemarketer. AR 101-02.

         In March of 2013, Dr. Barker wrote that "it would be difficult for me to justify continued treatment of her chronic pain, " due to his concerns about Reinhardt's narcotic use and possible abuse. AR 385. On March 25, 2013, Reinhardt began seeing Dr. Phillip Kelchen of Falls Community Health as her primary medical doctor. AR 423. Dr. Kelchen took a history from Reinhardt and assessed her as having chronic pain, secondary insomnia, and adjustment disorder with depressed mood. AR 423-24. Reinhardt had run out of medications a couple of days before the visit, and Dr. Kelchen discussed with her getting her to be more active "as inactivity is really at the root of her chronic pain and that greater activity will make her feel better in addition to lessening the pain." AR 424. At the next visit on April 1, 2013, Dr. Kelchen prescribed simvastatin, [8] nortriptyline, [9]methadone, omeprazole, [10] and Paxil, [11] together with encouraging walking for exercise. AR 422-23. By the April 26, 2013 visit, Dr. Kelchen recorded that Reinhardt "has been only moderately compliant with the exercises, " and "really just wants medication." AR 413. As of April 26, 2013, Dr. Kelchen recorded that "other than her chronic pain, she has no complaints." AR 413.

         Reinhardt, on May 25, 2013, was admitted to Avera McKennan Hospital for excruciating left rib pain, apparently from a muscle spasm caused by coughing. AR 426-51. Reinhardt followed up with Dr. Kelchen on June 3, 2013, who described the hospitalization as being one for fear of pneumonia with likely chronic obstructive pulmonary disorder (COPD) and bronchitis. Dr. Kelchen recorded that Reinhardt's "chronic pain in her lower extremities is not noticeable at the present time." AR510.

         As a consequence of Reinhardt's seeking reconsideration of the initial denial of SSI benefits, the Commissioner had a second medical doctor-Thomas Burkhart-do an RFC Assessment on July 5, 2013. Dr. Burkhart's RFC is similar to that of Dr. Whittle. AR 116-18. The end conclusion remained that Reinhardt was not disabled based on an ability to perform past relevant work as a telemarketer. AR121.

         Reinhardt continued to see Dr. Kelchen on a fairly regular basis in 2013. On August 19, 2013, Dr. Kelchen recorded that Reinhardt had experienced an exacerbation of her left knee pain. AR 505-06. Reinhardt went to Sanford Orthopedic & Sports Medicine to see a physician's assistant for left knee pain on August 14, 2013. AR 531-34. After x-rays were taken, the physician's assistant attributed the left knee pain to degenerative joint disease and suggested a series of range-of-motion exercises. AR 534. Dr. Kelchen, on October 8, 2013, talked at length with Reinhardt about her left knee pain and the bone-on-bone arthritis. AR 502-03. Dr. Kelchen described the x-rays as revealing osteoarthritis and a lack of cartilage. AR 504. Reinhardt agreed to be evaluated for possible surgery. AR 502-03.

         To be evaluated for possible left knee replacement surgery, Reinhardt saw Dr. Carl Bechtold at Sanford Orthopedic & Sports Medicine on October 31, 2013. AR 536-37. Reinhardt's knee was tender on examination. Dr. Bechtold's impression was severe bone-on-bone degenerative joint disease of the left knee. Dr. Bechtold talked with Reinhardt about the possibility of knee replacement, but also about her risk factors for a poor outcome due to her fibromyalgia, chronic pain, depression, anxiety, obesity, and smoking. AR 537. Dr. Bechtold and Reinhardt discussed use of a cane to help her walk. AR 537. Dr. Bechtold offered to see Reinhardt in the future, AR 537, although there is no record that she followed up with Dr. Bechtold.

         In late 2013 and into 2014, Reinhardt continued to see Dr. Kelchen on roughly a monthly basis. AR 540-55. On November 6, 2013, Dr. Kelchen recorded that Reinhardt had resumed smoking and was using a cane whenever her left knee pain flared up. AR 553. At a December 2, 2013 visit, Dr. Kelchen recorded that Reinhardt had a marked increase in low back pain. AR 551. At a January 9, 2014 visit, Dr. Kelchen noted that the left knee was quite a bit better than the prior month. AR550.

         In the record of a February 10, 2014 visit, Dr. Kelchen described having a long discussion with Reinhardt about physical activity and work. Reinhardt at that time was looking for a job to work 15 to 20 hours per week, where she could alternate sitting and standing. AR 547. Dr. Kelchen recorded in his note that Reinhardt felt that "she can function [with] the current level of pain." AR 549. Dr. Kelchen thought that having Reinhardt "get a reasonable job herself and have something [to] occupy her time . . . would be a good thing, " and would do the most to help her mood and chronic pain. AR549.

         Reinhardt experienced leg swelling in March of 2014. AR 542-46. At the April 16, 2014 visit, Dr. Kelchen was concerned about Reinhardt's ankle edema and chronic back pain, but noted that she had applied for a job, had a newer car, and should be able to get a job shortly. AR 540. During the May 15, 2014 visit to Falls Community Health, Reinhardt reported "significant improvement in her mood/anxiety since start of Abilify, "[12] and that "this is the best she has ever felt for some time." AR 538.

         Dr. Kelchen's note from June 30, 2014, reads that Reinhardt "states the pain is better this month after being able to walk significantly farther, " and was not having swelling in her legs. AR 604. During the remainder of 2014, Dr. Jennifer Tinguely updated prescriptions and saw Reinhardt. Reinhardt appeared to have low back and knee pain in July of 2014, and edema in her lower legs in September of 2014. AR 596; AR 600; AR 602-03.

         On November 19, 2014, Dr. Tinguely saw Reinhardt for a physical. AR 85. Reinhardt was struggling with pain and asked for an increase in the methadone prescription. AR 85. She also reported stress living at home alone and appeared to be depressed. AR 85. Dr. Tinguely recorded that Reinhardt had a normal neck exam, had a normal eye exam, and had a normal cardiovascular exam, but was "slow to move" with trouble laying down and getting up. AR 87.- Dr. Tinguely switched Reinhardt back to Abilify and increased her methadone prescription. AR 88. The next day-November 20, 2014-Reinhardt went to Avera McKennan Hospital Emergency Room for what was described as a "straightforward COPD exacerbation, very mild." AR 613. The medical record described that "the patient is otherwise doing really quite well." AR 613.

         The final notes in the Administrative Record are from early 2015. Dr. Tinguely saw Reinhardt on January 13, 2015. AR 77-79. Reinhardt reported worsening pain and was distraught because she had been in a car accident where she slid into a brick wall and was concerned about her financial ability to pay for fixing the car. AR 77. The remaining notes from early 2015 seem to concern prescriptions only. AR 77.

         C. Reinhardt's Treatment History for Psychological Issues

         The earliest record[13] of Reinhardt's psychological treatment is from counselor Ellen Hohm dated September 1, 2009. AR 333. Counselor Hohm assessed Reinhardt as having major depressive disorder, dysthymic disorder, and possible bipolar disorder as a "rule out" diagnosis. AR 333. Hohm foresaw weekly treatment of Reinhardt to alleviate and stabilize Reinhardt's depression and to develop healthy cognitive patterns, among other things. AR333.

         The next record of psychological treatment, nearly two years later, is from counselor Hohm dated July 5, 2011, when Hohm recorded that Reinhardt was presenting with depression, anxiety, and stress. AR 340. Hohm, beginning in early August 2011, saw Reinhardt nearly weekly, although Reinhardt missed some of the weekly meetings. AR 342-48. Reinhardt's son was living with her by September 20, 2011. AR 348. There was then a five-month break in counseling records until February 23, 2012, when Reinhardt visited Hohm with anxiety and extreme stress, reporting that she had nearly been murdered by strangulation three weeks previously. AR 350.

         Reinhardt was thereafter treated at the Compass Center, which specializes in assisting those who have been victims of sexual or domestic abuse. AR 318-22. However, Reinhardt was either a no show or cancelled most counseling sessions at the Compass Center in March and April of 2012. The Compass Center ultimately could not complete a ...


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