United States District Court, D. South Dakota, Southern Division
KAREN B. REINHARDT, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER AFFIRMING DECISION OF
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Karen B. Reinhardt (Reinhardt), who formerly was known as
Karen Ford,  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
applied for SSI benefits on August 16, 2012. AR 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.
in proceedings before the Commissioner alleged disabilities
for both physical and mental health conditions, including the
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.
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.
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.
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
Reinhardt's Relevant Personal History
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.
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
Reinhardt's Treatment History for Physical
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 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.
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.
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.
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 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 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 prescription at that time. AR 388.
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. 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.
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.
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.
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.
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,
nortriptyline, methadone, omeprazole,  and Paxil,
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.
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
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.
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.
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.
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.
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.
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, " and that "this is the best she has
ever felt for some time." AR 538.
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.
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.
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.
Reinhardt's Treatment History for Psychological
earliest record 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.
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.
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 ...