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Wellman v. Berryhill

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

November 9, 2017

AMY L. WELLMAN, Plaintiff,


          VERONICA L. DUFFY, United States Magistrate Judge


         Plaintiff, Amy L. Wellman, 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. Wellman has 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. Wellman requests the court remand the matter to the Social Security Administration for further hearing. The Commissioner asks this court to affirm its decision below. The matter is fully briefed and has been referred to this magistrate judge for a report and recommendation. For the reasons more fully explained below, it is respectfully recommended to the district court that the Commissioner's decision be reversed and remanded.


         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 was referred to this magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, United States District Judge.


         A. Statement of the Case

         This action arises from Plaintiff Amy L. Wellman's application for SSDI benefits protectively filed on October 7, 2013, and SSI benefits protectively filed on January 23, 2014, alleging disability since October 7, 2013, due to severe depression, high anxiety, lack of concentration and ability to focus, borderline personality disorder, avoidant personality disorder, schizotypal personality disorder, pseudotumor cerebri, [3] headaches, asthma, and allergies--including perfume allergies. AR232, 234, 243, 271. She subsequently added agoraphobia, celiac disease, and mitral valve prolapse to her list of impairments. AR310, 312, 319.

         Ms. Wellman's SSDI application contains the statement that “I have filed or intend to file for SSI.” AR232. Ms. Wellman's claim was denied initially and upon reconsideration. AR166, 173, 180. Ms. Wellman then requested an administrative hearing. AR188.

         Ms. Wellman's administrative law judge hearing was held on August 25, 2015, by the Honorable Denzel R. Busick (“ALJ”). AR75. Ms. Wellman was represented by other counsel at the hearing, and an unfavorable decision was issued on September 23, 2015. AR43. Plaintiff's current counsel then appeared to appeal her hearing denial. AR18.

         At Step One[4] of the evaluation, the ALJ found that Ms. Wellman's work after the alleged onset date of October 7, 2013, was not performed at the substantial gainful activity (“SGA”) level, and that she was insured for SSDI purposes through December 31, 2018. AR48.

         At Step Two, the ALJ found that Ms. Wellman had severe impairments of pseudo-tumor cerebri, status post VP shunt placement with revision; asthma; obesity; affective disorder; anxiety disorder; and personality disorder. AR48.

         The ALJ also found that Ms. Wellman had non-severe medically determinable impairments of the right lower extremity; chip fracture of the tibia and posterior tibial tendon dysfunction; and post laparoscopic lap band surgery with subsequent removal. AR48.

         The ALJ found that Ms. Wellman did not have an impairment that met or medically equaled one of the listed impairments in 20 CFR 404, Subpart P, App 1 (20 CFR § 404.1520(d)) (hereinafter referred to as the “Listings”). AR49-50. The ALJ found that Ms. Wellman had mild limitations in activities of daily living, and moderate limitations in concentration, persistence and pace, and in social functioning. AR49. The ALJ noted a short-term psychiatric hospital stay from January 17-21, 2014, but no episodes of decompensation of extended duration. AR49. The ALJ stated that the term “mild” as used herein and defined at the hearing, means slightly affected but not interfering with work activity, while “moderate” means affected, not precluded, such that a person is performing at lower acceptable limits for most workplaces. AR49.

         The ALJ determined that Ms. Wellman had the residual functional capacity (“RFC”) to perform:

light to medium work as defined in 20 CFR 404.1567(b) and 416.967(b). She can do so, as follows: She can lift and carry 30 pounds occasionally and 15 pounds or less frequently. She can sit a total of 6 hours, as well as stand and walk, combined, a total of 6 hours in an 8-hour workday. She has no limits in reaching. She has no postural limits and no limits in climbing stairs or ladders. She has no manipulation limits, no visual limits with glasses, and no communication limits. She must avoid any concentrations of dusts, fumes, odors, gases, aerosols in the air, and poor ventilation. Due to non-exertional mental limitations, as discussed, supra, she is essentially limited to jobs involving only brief and superficial contact with others while performing simple, routine and repetitive tasks of about three steps on average.


         The ALJ's credibility finding regarding Ms. Wellman's statements concerning the intensity, persistence and limiting effects of her symptoms was that they were not “entirely credible for the reasons explained herein.” AR51. The ALJ discussed the medical evidence in evaluating Ms. Wellman's credibility, and he discussed her good work history, which he stated provides some positive probative weight in her allegations of disability. AR51-55.

         When discussing Ms. Wellman's mental condition, the ALJ stated, “The undersigned notes that evidence does not support a finding that she experienced any full and continuous 12-month period when her ability to function fell below the above RFC, ” and stated again later in the decision:

However, evidence does not support a finding that she experienced any full and continuous 12-month period from either the July 2013 ending of her employment at Metabank or from her October 2013 alleged onset date when her functioning fell below that identified in her above mental RFC. She reported longstanding struggle with depression and anxiety, including panic attacks, dating back over the past 10 years (Ex. 18F, pgs. 31-32). However, she has shown herself capable of consistently engaging in SGA for better than two decades extending until about the alleged onset date typically in skilled work (Ex. 5D; 2E and 16E). Her prior ability to perform such work despite reported history of depression and anxiety suggests that she remains capable of sustaining mental work-related activities at least at a level identified in the above RFC, particularly given her apparent improvement with treatment.


         The ALJ considered the opinions of the state agency medical consultants who found that Ms. Wellman did not have any severe physical impairments, and gave their opinions “less weight.” AR56. The ALJ stated, “However, the undersigned is satisfied that the claimant's combination of physical impairments effectively limit her to essentially light level work activity as identified in the above RFC. The undersigned accepts that her history of headaches when combined with mental impairments, result in a level of limitation as identified in both the above RFC.” AR56.

         The ALJ considered the pulmonary RFC questionnaire of R. Maclean Smith, M.D., and asserted he said Ms. Wellman had some limitations secondary to asthma which would occasionally interfere with attention and concentration needed to perform even simple work tasks, and Ms. Wellman would need to avoid even moderate exposure to perfumes, fumes, odors, gases, and dust as well as avoiding all exposure to cigarette smoke, and that she would likely miss work once every two months because of respiratory issues. AR56.

         The ALJ gave Dr. Smith's assessment “partial weight, ” because Dr. Smith saw the claimant only a couple of times during the period under consideration including visits of July, 2014, and July, 2015, when Ms. Wellman was doing well during those visits from both a subjective and objective standpoint, and she has generally otherwise presented over time with no particular respiratory deficits identified. AR56. The ALJ also stated Dr. Smith noted that even with rare asthma attacks, they had been only mild to moderate, and he identified her prognosis as “good.” AR56. The ALJ then found, “Thus, it is not likely that she would have particular exacerbation with respiratory issues with medication management and avoiding any concentrations of dusts, fumes, odors, gases, aerosols in the air, and poor ventilation as identified in the above RFC.” AR56.

         The ALJ considered the opinions of the state agency psychological consultants and gave them “considerable weight” because their assessments were “reasonably consistent with the record and the conclusion of limitations in keeping with the above mental RFC.” AR56.

         The ALJ considered the mental limitation questionnaire of Michalene Stevermer, D.O., and gave Dr. Stevermer's assessment “some weight” because the overall record does not support a finding of limitations in general causing greater limitation than allowed in the above RFC. AR56. The ALJ accepted Dr. Stevermer's mild and moderate limitations as reasonably consistent with the overall record and her mental RFC as established, but asserted that the marked limitations Dr. Stevermer identified applied only as to the skilled-level work Ms. Wellman previously performed. AR56-57.

         Based on the RFC determined by the ALJ, the ALJ found that Ms. Wellman had carried her burden at Step 4 to show that she was unable to perform her past relevant work. AR57.

         At Step 5, relying on the testimony of a vocational expert, the ALJ found that an individual with Ms. Wellman's age, education, past work experience, and RFC could perform the occupations of office helper, DOT# 239.567-010 and telephone survey worker, DOT# 205.367-054, and he denied the claim. AR58-59.

         Ms. Wellman timely requested review by the Appeals Council (AR18) and submitted additional evidence (AR8, 19-42, 65-74, 834-83) consisting of:

a. Letters from Ms. Wellman's short-term disability while working at Meta Bank, dated June 20, 2013 to July 24, 2013, with a hand-written note on the July 24, 2013, letter dated August 5, 2013, showing she was terminated.
b. Letters from her employer regarding FMLA usage showing all available leave had been consumed dated June 12, 2013 and June 21, 2013.
c. FMLA certification of health care provider related to psychological impairments dated June 6, 2013.
d. FMLA certification of health care provider related to respiratory impairments dated June 10, 2013.
e. Medical records from Avera McGreevy-West clinic dated March 19, 2014 to October 6, 2015.
f. Medical records from Southeastern Behavioral Healthcare-caseworkers records dated April 21, 2014 to January 7, 2016.
g. Medical records from Southeastern Behavioral Healthcare-psychological records dated October 5, 2015 to January 11, 2016.
h. Medical records from Southeastern Behavioral Healthcare- counseling records dated June 18, 2015 to January 6, 2016.

         The Appeal Council denied the request for review stating:

In looking at your case, we considered the reasons you disagree with the decision and the additional evidence listed on the enclosed Order of Appeals Council [AR5-Exhibits 17E, 21F, 22F, and 23F]. We considered whether the Administrative Law Judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record. We found that this information does not provide a basis for changing the Administrative Law Judge's decision.
We also looked at treatment records from Southeast Behavioral Healthcare, dated September 29, 2015-January 7, 2016; and from Anna McGeevy West Clinic, dated October 6, 2015-January 9, 2016. The Administrative Law Judge decided your case through September 23, 2015. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before September 23, 2015. If you want us to consider whether you were disabled after September 23, 2015, you need to apply again.

         The Appeals Council denied Ms. Wellman's request for review on September 22, 2016, making the ALJ's decision the final decision of the Commissioner. AR1. Ms. Wellman then timely filed this action.

         B. Plaintiff's Age, Education and Work Experience

         Ms. Wellman was born June 9, 1968, and completed college in 2005. AR232, 234, 272. The ALJ identified Ms. Wellman's past relevant work as account processor, business mapping specialist, software developer, and technical support professional---all skilled past work. AR57.

         C. Relevant Medical Evidence

         1. Midwest Psychiatric Medicine

         The first record in the appeal record related to Ms. Wellman's mental health impairments was a recheck exam at Midwest Psychiatric Medicine on August 1, 2012. AR562. Her mental status exam was described as good and she was feeling less anxious and better able to focus/concentrate at work. AR563. She reported doing okay, and the note described her as really doing well, coping much better, with more “good” days than “bad, ” using less daytime clonazepam, usually about 5 days per month, but still takes it at night in order to sleep. AR564. She reported work was going better and she felt positive about things. AR564. Her diagnoses were recurrent major depression and anxiety, and her clonazepam and Zoloft were continued and additional counseling was recommended in the fall near the anniversary of her sister's death. AR565.

         Ms. Wellman was seen again on January 31, 2013, and her mental status exam was generally good, with mildly anxious mood. AR568. She described her anxiety as manageable and she utilizes deep breathing often. AR568. The mental status findings showed she had good appearance, grooming and hygiene, she was coping well, oriented, her memory was grossly intact, she had good attention, concentration, language, fund of knowledge, insight and judgment, she had normal psychomotor activity, thought process, speech, and intact thought content, abstract reasoning, associations, and computations. AR568. Her medications were not changed. AR569.

         Ms. Wellman was next seen on May 30, 2013, and had very high anxiety, feeling “super stressed, ” not coping well. AR573. She reported both her brother-in-law and her niece, the daughter of her sister who had committed suicide, both attempted suicide. AR573. She also reported a recent flare up of her celiac disease, allergic reactions, asthma attacks, and missing a lot of work. AR573. She was still working full-time at Meta Payment Systems, but was finding it difficult to even leave her house. AR573. She reported a down mood with scary, negative, intrusive thoughts, feeling hopeless, very high anxiety, panicky at times when she leaves her house, sleeping tons and still not feeling rested, and eating too much. AR572.

         The mental status examination revealed normal orientation x 3, grossly intact memory, fair attention/concentration (distracted by anxiety), good language and fund of knowledge, affect that was congruent, tearful and anxious, mood that was anxious, worried and dysthymic, and normal psychomotor activity with no tic. AR573. She had no abnormal thoughts, but was struggling with some ruminating worry, self-loathing, obsessive, locked-in thoughts. AR573. Her insight/judgment was fair, content of thought was logical and coherent, her rate of thought was normal but she had lots of racing thoughts and anxiety currently, her reasoning, computation and association were all intact, and her speech, volume of speech, articulation, and coherence and spontaneity of speech were all normal. AR573. Her clonazepam and Zoloft were continued and risperidone added. AR574. Therapy was strongly recommended, and if her primary care was not comfortable completing FMLA paperwork for her the nurse practitioner would complete it for protective leave due to anxiety relapses/exacerbations. AR574.

         A certification of health care provider for FMLA leave for Meta Payment Systems was completed on June 6, 2013, which stated that Ms. Wellman would likely miss work 1-2 days per month due to her acute relapses of depression and anxiety. AR835. Ms. Wellman obtained and submitted this certification to the Appeals Council. AR8.

         Ms. Wellman was next seen on September 3, 2013, for a recheck. AR577. Since her May appointment she had been hospitalized from June 17 to June 21 at Avera Behavioral Health and then in a partial hospitalization program from June 25, 2013, to July 23, 2013. AR577. Her Risperdal had been increased and she began therapy with Dr. Sweatman. AR577. She still reported doing okay overall, but had quit her job after the partial hospitalization program, and moved in with her parents due to financial constraints. AR577. She also reported taking a 12-day vacation with her mom, covering 1200 miles throughout the South, which she enjoyed “98% of the time.” AR577. Ms. Wellman reported more frequent headaches, with an appointment scheduled with Dr. Asfora and that she was still looking for work but wondering how much she would work and about disability. AR577. Ms. Wellman's mood was okay; her anxiety was better with Risperdal, but was still high and was taking clonazepam twice daily. AR577.

         Ms. Wellman informed the state agency that she was receiving counseling from Dr. Sweatman at Midwest Psychiatric, and the state agency contacted claimant's third party to inform them they had recently received records from there, but they did not include any counseling records. AR111, 312.

         Ms. Wellman was seen on March 5, 2014, and the mental status exam revealed she had an overweight appearance, fair eye contact, non-pressured speech, slowed psychomotor activity, neutral mood, flat affect, fair insight and judgment, and otherwise normal thought process, thought content, memory, fund of knowledge, and orientation. AR761-62. The progress note indicated she had been struggling since her discharge from the hospital until the past week with continued anxiety and depression, sleeping excessively, and pacing a lot. AR762. Ms. Wellman's clonazepam had been increased and she had been scheduled for a psychiatric and therapy follow-up at Southeastern Behavioral Healthcare. AR762.

         2. Southeastern Behavioral Healthcare

         Ms. Wellman began care at Southeastern Behavioral Healthcare ("SEBH") on January 31, 2014, meeting with her caseworker; her mood was anxious with congruent affect. AR757. She reported she had been quite anxious since leaving the hospital and was extremely anxious at the appointment. AR757.

         Ms. Wellman continued to meet regularly with her caseworker, and received assistance planning her care, discussing her problems and assistance with other items. AR753-54. On February 24, 2014, she discussed a SSA disability form of her activities she needed to complete and she was overwhelmed thinking about answering the questions. AR751. On March 24, 2014, Ms. Wellman reported she was still waiting on a decision from Social Security, and some days she wakes up and thinks she could go back to work, but once she had to leave the house she could not. AR749.

         Ms. Wellman was seen for psychiatric treatment on April 15, 2014. AR744. She reported she was depressed and was having sleep issues since leaving the hospital in January, had lost 30 pounds since the prior September, her focus and concentration were altered, she felt hopeless, she had problems leaving her house, lacked motivation for self-care, was socially withdrawn, and had ongoing suicidal thoughts. AR744. Ms. Wellman reported that her first psychiatric inpatient treatment was eight years ago, her second admission was five years ago, and then again in June, 2013, and January, 2014. AR745. She also reported seeing Connie Sweatman at Midwest Psych for counseling monthly. AR745. Physically she reported low back pain, headaches from her pseudotumor cerebri, asthma, allergies, sleep apnea, mitral valve prolapse, celiac disease, and obesity. AR745.

         Her mental status exam revealed some psychomotor retardation, fairly good grooming and hygiene, not overly restless or fidgety, intermittent to avoidant eye contact, blunted to dysphoric affect, slowed and deliberate speech, and had frequent suicidal thoughts with a plan but no intent, and the mental status was otherwise normal with goal-directed thoughts, no flight of ideas or looseness of associations, and no psychosis symptoms. AR746-47.

         She was diagnosed with major depression, anxiety with panic features, generalized anxiety disorder with panic features, borderline personality disorder by history, and avoidant schizotypal and borderline features by history. AR747. She had an estimated GAF of 50-55, and had moderate to severe stressors, grief and loss, family issues, significant personality disorder problems, and limited social support. AR747. Due to financial problems she could not afford therapy so was encouraged to work with her pastor until she can get into ongoing therapy through SEBH, and her medications were continued. AR748.

         Ms. Wellman was seen again on May 13, 2014, and she reported her anxiety had improved some day-to-day, but she could not go outside yet, but did so 1 to 3 times a week. AR742. She had not been taking the daytime Klonopin as prescribed because she was afraid it was too sedating. AR742. Her mental status exam revealed blunted affect, dysphoric mood, slowed psychomotor, intermittent eye contact, had passive thoughts of dying, and was otherwise normal as she was alert and cooperative, not overly restless or fidgety, non-pressured speech, no mania or hypomania, and no psychotic indices. AR742. Her GAF was estimated at 50, she was told to take the Klonopin as prescribed, and encouraged to work with her caseworker to get into a grief group or support group. AR742-43.

         Ms. Wellman was seen on July 14, 2014, for psychiatric follow-up and reported she had been forcing herself to leave her home more often and become more active, but she does experience anxiety when she leaves her home although less than in the past. AR818. She reported having panic attacks when she leaves her home although less than in the past. AR818. She reported having panic attacks where she becomes hot, shaky, and experiences racing thoughts about once every two weeks. AR818. Her mental status exam revealed somewhat slowed psychomotor activity, poor eye contact, slowed and soft speech, “good” mood, congruent affect with restricted range, fair concentration, attention span, insight and judgment, and otherwise normal memory, fund of knowledge, and thought processes. AR818. Ms. Wellman's clonazepam was decreased, and other medications were left unchanged. AR819.

         Ms. Wellman was seen again on October 20, 2014, and she reported “doing okay for the most part, ” but was struggling with insomnia, decreased energy, and her anxiety was somewhat better, but was still having panic attacks every other week and only leaving her home two to three days per week. AR811. Her existing medications were continued, and Remeron added. AR812.

         Ms. Wellman was seen on January 19, 2015, for psychiatric follow-up and reported her depression and anxiety had improved since beginning on Remeron. AR808-09. However, she reported not being very active, not leaving the house much and having increased anxiety when she did. AR809. Her existing medications were continued and trazodone was added for insomnia. AR809.

         Ms. Wellman was seen on March 30, 2015, for psychiatric follow-up and her symptoms, problems, treatment and status were largely unchanged. AR805-07. The mental status findings showed fair grooming and hygiene, slowed psychomotor activity, purposeful and voluntary movement, fair eye contact, clear, non-pressured, slowed and soft speech with concrete answers, a cooperative and pleasant attitude, a “pretty good” mood, affect was mood congruent with blunted range, she had no suicidal or homicidal ideation, plan or intent, no hallucinations, loosening of associations, tangential or circumstantial thoughts, she was alert and oriented, cognition and memory functions were intact, fund of knowledge was average, and judgment and insight were fair. AR806.

         Ms. Wellman was seen on July 20, 2015, for psychiatric follow-up and reported increased anxiety and depression, but improved sleep. AR802. She reported feeling hopeless, poor interest in things, fatigued, decreased concentration, suicidal thoughts, increased anxiety, and some PTSD symptoms including flashbacks and nightmares to being molested by her father. AR802. Her mental status exam revealed she appeared anxious, poor eye contact, slowed speech, increased psychomotor activity, depressed and anxious mood, congruent and blunted affect, passive suicidal thoughts, fair insight and judgment, and otherwise normal memory, fund of knowledge, thought processes, and cognitive function. AR803. Her clonazepam was increased, and individual therapy scheduled to start in a week. AR804.

         Dr. Stevermer, a psychiatric resident who treated Ms. Wellman, completed a mental limitations form regarding what Ms. Wellman's limitations would be if she attempted full-time work. AR828. Dr. Stevermer's checkmarks indicated her main limitations were in sustained concentration and persistence, social interaction and adaptation. AR828-29. Ms. Wellman had moderate limitations in performing activities within a schedule, in working in proximity to others without being distracted, in getting along with co-workers and others without distracting them, in using public transportation or going to unfamiliar places, and in setting realistic goals. AR829-30. Dr. Stevermer opined that while Ms. Wellman had a number of other mild limitations, she was markedly limited in her ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number of breaks. AR829. Dr. Stevermer's supporting remarks said Ms. Wellman “has fairly significant anxiety symptoms which have interfered with her day-to-day functioning as well as depression symptoms which has led to poor concentration and decreased motivation.” AR830.

         Ms. Wellman submitted additional SEBH records to the Appeals Council including caseworker treatment notes from April 21, 2014 to January 7, 2016. She continued to meet regularly with her caseworker and discussed her problems, treatment, and coping. AR842-68. Ms. Wellman continued to receive caseworker assistance after the ALJ's decision from September 29, 2015, to January 7, 2016. AR28, 38 (records submitted to Appeals Council).

         Ms. Wellman began individual counseling therapy at SEBH on July 29, 2015, and submitted those records to the Appeals Council. AR869.

         Ms. Wellman reported being depressed, and was having suicidal thoughts, and a crisis plan was developed. AR869. The counselor offered to accompany Ms. Wellman to the psychiatric hospital for an assessment, but she declined. AR869. Ms. Wellman missed her next session on July 31, 2015, due to increased anxiety. AR872. Ms. Wellman continued therapy on August 31, 2015, through September 16, 2015, with a focus on discussing her depression and anxiety and coping methods. AR873-83.

         Ms. Wellman continued to receive individual counseling after the ALJ's decision from October 20, 2015, to December 21, 2015. AR27, 30, 35 (records submitted to Appeals Council). At the last counseling session in the record on December 21, 2015, the counselor encouraged more regular attendance at the sessions and suggested they revert back to weekly sessions instead of every other week. AR35.

         Ms. Wellman submitted additional SEBH records to the Appeals Council including psychiatric treatment notes from October 5, 2015, to January 11, 2016. AR20-22, 39-42 (records submitted to Appeals Council). When she was seen on October 5, 2015, she reported some improvement and her medications were continued unchanged. AR20-22. However, when seen on January 11, 2016, she was having a difficult time leaving her house, and as a result she had missed about half of her counseling appointments. AR40. Her mental status exam revealed poor eye contact, slowed speech, anxious mood, congruent mildly downcast and slightly restricted affect, some mild thought blocking at times, and fair concentration, attention span, and judgment with limited to fair insight. AR41. Ms. Wellman's Risperdal was increased and her mirtazapine stopped. AR41.

         3. Avera Behavioral Health Hospital

         Ms. Wellman was admitted to the mental health hospital on June 17, 2013, due to suicidal thoughts, described as passive death wishes and thoughts of wanting to hurt others, and her GAF was assessed at 40. AR698, 707. Ms. Wellman had met with her HR director at work five days earlier and been told that she had exhausted all but 7 hours of her FMLA protection and he felt she should terminate her job or take short-term disability. AR698. Following inpatient “DBT” treatment and work with Dr. Sweatman, Psy.D., she was discharged to the partial hospitalization program, and continued individual therapy on June 21, 2013. AR698-99.

         Ms. Wellman was in the Avera Behavioral Health Partial Hospitalization program from June 25, 2013, to July 24, 2013. AR684-91.

         Ms. Wellman was hospitalized again due to suicidal thoughts for inpatient treatment from January 17, 2014, to January 21, 2014. AR663-65. She had become overwhelmed at her job of two months and decided to quit, which left her unemployed. AR665. Ms. Wellman's unemployment and difficulty functioning at work led her to feeling suicidal with a plan to overdose. AR665. The doctor noted Ms. Wellman had a history of difficulty sustaining employment with both high pressure and low pressure jobs. AR665. She received dialectical behavior therapy, and after several days in the hospital with group and individual counseling she felt safe to return home. AR665. The doctor noted that she was encouraged by the plan for her to receive case management at SEBH and was resolved to work on filing for disability. AR664-65.

         4. Avera McGreevy Clinic

         Ms. Wellman was seen at Avera McGreevy West Urgent Care Clinic on July 20, 2012, complaining of right ankle and foot pain and an x-ray revealed a chip fracture of the tibia and she was placed in a walking boot. AR371. She also reported a sprain of the right ankle four weeks earlier as well as a bad ankle injury 10 years earlier. AR371.

         Ms. Wellman was seen again on August 3, 2012, with continued right ankle pain and referred to Dr. Craig Smith. AR368.

         Ms. Wellman was seen on August 29, 2012, for a preoperative exam prior to VP shunt placement for pseudotumor cerebri scheduled for August 31, 2012, and she was approved for surgery. AR362-64.

         Ms. Wellman was seen at the Avera McGreevy West Clinic on June 5, 2013, by Dr. Feistner complaining of fatigue and dizziness, and a history of allergies, celiac disease, and mental health issues was noted. AR343. She also reported bilateral head or ear pain. AR345. Ms. Wellman had been experiencing suicidal and racing thoughts recently and had seen Dr. Laura Withhorn who prescribed Risperdal, but that was changed to Zofran due to side effects. AR347. FMLA paperwork was also discussed due to Ms. Wellman's work absences, and Dr. Feistner felt her absences were probably due more to stress and depression so Dr. Withhorn should complete the FMLA forms. AR347.

         Ms. Wellman was seen on March 18, 2014, for a wellness exam and reported that her last year had been a struggle psychiatrically, and she had been working with Dr. Bahnson and seeing someone at Southeastern Behavioral Health due to financial constraints. AR726. The treatment note stated she reported that she was currently not working and thinking of applying for disability. AR726. She was alert and oriented with clear speech. AR727.

         The additional treatment records from Avera McGreevy West Clinic for March 19, 2014 to October 6, 2015, were submitted to the Appeals Council. AR8.

         5. Allergy and Asthma Clinic

         Ms. Wellman was seen on October 28, 2012, at the allergy clinic for follow-up on “AR, VMR, Angioedema, Asthma.” AR549. The treatment notes are hand-written and difficult to read. AR549. The records do indicate that Ms. Wellman reported her asthma had been okay, she had bronchitis following her second ventricular shunt surgery, her throat swelling is helped if she uses Astelin earlier in the evening, and she'd only had one episode of throat swelling due to cologne. AR549.

         Ms. Wellman was seen on June 10, 2013, and reported bad allergies for the past two months with multiple symptoms including breathing problems and headaches. AR550. She reported she had been missing work due to her allergies and had bronchitis three times through the winter. AR550. Her FEV1/FVC ratio was 89%. AR548, 550. Prednisone and Xyzal were prescribed. AR550.

         Ms. Wellman's representative submitted to the Appeals Council a certification of health care provider from Dr. Smith for an FMLA leave request to Meta Payment Systems on June 10, 2013. AR838. Dr. Smith stated that Ms. Wellman “may miss a few days of work” because her respiratory symptoms were poorly controlled despite medical treatment, and he estimated she would likely miss one day every two months. AR840.

         Ms. Wellman was seen on June 24, 2013, for skin tests which showed positive results to multiple dust/pollens and mold/dander. AR547, 551.

         Ms. Wellman was seen on July 25, 2014, and reported she was a lot better with 8-9 months since her throat had swelled and needed to use an epi pen, and had not needed the Xopenex inhaler for five months. AR782. When seen again on July 9, 2015, her report was similar and she had not needed the epi pen in the last year. AR783.

         On August 18, 2015, Dr. Smith completed a pulmonary RFC questionnaire and stated that Ms. Wellman had allergic rhinitis, vascular rhinitis, asthma, and chronic angioedema, and he had been treating her since 2006. AR831. He stated that she had asthma attacks due to allergens, but rarely. AR831. When asked about interference from her symptoms in the workplace, Dr. Smith said she would occasionally experience symptoms severe enough to interfere with her attention and concentration due to a decreased threshold for irritants (“fragrance, smoke”), and Ms. Wellman had reported issues with fragrances in some office settings to him. AR831. Dr. Smith specifically stated Ms. Wellman needed to avoid all exposure to cigarette smoke, and even moderate exposure to perfumes, fumes, odors, gases and dust. AR832. Dr. Smith stated that about one day every one or two months she would be absent from work due to her respiratory problems. AR832.

         6. Orthopedic Institute

         Ms. Wellman was seen on August 6, 2012, for right ankle pain following an injury six weeks earlier; she had been wearing a boot for the past two weeks. AR556. Examination revealed no significant swelling, guarded range of motion and tenderness to palpation. AR556. X-rays did not show anything obvious so an MRI was obtained and showed mild tendinopathy and tenosynovitis of the posterior tibialis and flexor digitorum lonjus tendons. AR556-58. She was continued in a boot with use of ice and anti-inflammatories. AR553-54. However, by October 29, 2012, she continued to have right ankle pain and physical therapy was planned. AR560.

         7. Sanford Neurosurgery and Spine Center

         Ms. Wellman was seen at the neurosurgery and spine center on August 21, 2012, for follow-up on her pseudotumor cerebri with lumbar peritoneal shunt inserted in 2003. AR492. She complained of severe headaches when laying down, associated visual difficulties, and ophthalmologic examination showed possible papilledema. AR492, 580-83 (July 26, 2012 eye exam), 584-86 (Aug. 12, 2012 eye exam). Surgery for a new shunt was planned and performed on August 31, 2012. AR592, 647.

         Ms. Wellman was seen post shunt surgery on September 19, 2012, and her headaches had resolved but she was having swelling and a revision in the shunt was required due to mechanical complication. AR503-04, 640. Ms. Wellman was hospitalized and the shunt was surgically corrected on September 24, 2012. AR628-29. She was seen again following repositioning of the peritoneal catheter on October 10, 2012, with no complications. AR521.

         Ms. Wellman was seen again on September 4, 2013, complaining of headaches. AR543. This followed a June 14, 2013, eye examination where Ms. Wellman again complained of increased spinal pressure and the eye doctor again found possible papilledema. AR587-89. MRIs of the brain, cervical spine and an x-ray shunt survey were all ordered on September 4, 2013. AR542.

         Ms. Wellman had similar headaches and spinal pressure and saw her eye doctor again on July 22, 2013[5], and this exam did not show possible papilledema, but she was again referred to Dr. Asfora. AR590-92. Ms. Wellman did state in a medical history that she submitted that her headaches had returned and her neurosurgeon had referred her to a new neurologist that she was scheduled to see on December 9, 2013. AR329. She also stated she had accepted a part-time position at Premier Bankcard starting November 11, 2013. AR329.

         8. Sanford Surgical Associates

         Ms. Wellman had a prior lap band surgery in 2007 and was seen at Sanford Surgical Associates on a number of occasions due to related problems. AR434. In January, 2012, she was seen to remove all the fluid from the band due to night time reflux, dysphagia, and chest pressure. AR434. She was seen again on October 15, 2013, with problems with food getting stuck, vomiting and choking. AR434. She reported continued nighttime heartburn and reflux/heartburn following meals. AR435. The band was evaluated, determined to be in the proper place and due to her symptoms it was attempted to remove any remaining fluid from the band. AR436. Ultimately, Ms. Wellman had the lap band surgically removed on October 24, 2013. AR449.

         9. Craig A. Sauer, DC

         Ms. Wellman received regular chiropractic treatment between July 12, 2012 and October 23, 2013, for headaches with neck and back pain. AR404-11. She also reported bilateral wrist and ankle pain. AR411. Treatment included spinal manipulation, trigger point therapy, muscle stretches, and traction. AR404-11. Ms. Wellman received treatment nine times in 2012 and 10 times in 2013, and reported headaches at most appointments. AR404-11.

         10. State Agency Assessments

         The state agency physical experts evaluated the file at the initial level on May 7, 2014, and again at the reconsideration level on August 4, 2014, and both times found that Ms. Wellman suffered no severe physical limitations but had migraines, other disorder of the nervous system, other infectious and parasitic disorder, and fracture of the lower extremity that were non-severe impairments, so no physical RFC was completed at either level. AR115, 145-46.

         The state agency mental expert at the initial level found that Ms. Wellman had severe affective disorder, anxiety disorder and personality disorder. AR116. The expert found that Ms. Wellman had mild restrictions in activities of daily living and moderate difficulties in maintaining social functioning and maintaining concentration, persistence or pace and no repeated episodes of decompensation, each of extended duration. AR116. The expert found she was moderately limited in her ability to carry out detailed instructions, maintain attention and concentration, complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without unreasonable breaks, interact with the public, accept instructions and respond appropriately to criticism from supervisors, and get along with co-workers. AR118-19. The medical expert concluded Ms. Wellman:

[H]as some social anxiety and difficulty getting along with others. She would require an environment with reduced contact with others. She has the basic social skills necessary for superficial and brief interactions with co-workers and the public. While she indicates some difficulty with authority figures, she has held several jobs in the past and should be able to interact appropriately with supervisor if she is motivated to keep the job. She would be less distracted and less emotionally labile in a work setting where there is little to no contact with the public.


         The state agency mental expert at the reconsideration level made almost word for word identical findings. AR146-49. This medical expert concluded Ms. Wellman “has the residual mental demands to understand, follow and carry out three step instructions on a consistent basis, though given her hx [history] she would be capable for more complex instructions at times emotional lability tends to impact her being able to do so on a consistent basis. Given interpersonal difficulties and social anxiety, it is best that she work within a work setting where social demands are limited.” AR149.

         D. Testimony at ALJ Hearing

         1. Ms. Wellman's Testimony

         Ms. Wellman testified she was a quality analyst at Meta Payment Systems from 2008 to 2013, and had a lot of absences, so she had obtained FMLA leave the last three years, and had used all of the 12 weeks of allowed absences, except for 7 hours the last year. AR81. Ms. Wellman explained that she used leave for missed days and times when she was late or had to leave early and the absences were due to headaches, allergy issues, and issues with depression and anxiety. AR81-82. She said by the end she was missing 6-8 days per month, and they could not talk to her about the absences until her protection from the FMLA leave was almost used up. AR93. Ms. Wellman testified the job ended after a meeting with the HR vice president who told her she was running out of FMLA protection ...

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