United States District Court, D. South Dakota, Southern Division
AMY L. WELLMAN, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY; Defendant.
REPORT AND RECOMMENDATION
VERONICA L. DUFFY, United States Magistrate Judge
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. 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.
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.
Statement of the Case
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,  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,
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.
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.
Wellman timely requested review by the Appeals Council (AR18)
and submitted additional evidence (AR8, 19-42, 65-74, 834-83)
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.
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.
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.
Plaintiff's Age, Education and Work Experience
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.
Relevant Medical Evidence
Midwest Psychiatric Medicine
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.
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.
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.
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
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.
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.
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.
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.
Southeastern Behavioral Healthcare
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
Wellman began individual counseling therapy at SEBH on July
29, 2015, and submitted those records to the Appeals Council.
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.
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.
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
Avera Behavioral Health Hospital
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.
Wellman was in the Avera Behavioral Health Partial
Hospitalization program from June 25, 2013, to July 24, 2013.
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.
Avera McGreevy Clinic
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.
Wellman was seen again on August 3, 2012, with continued
right ankle pain and referred to Dr. Craig Smith. AR368.
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.
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.
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.
additional treatment records from Avera McGreevy West Clinic
for March 19, 2014 to October 6, 2015, were submitted to the
Appeals Council. AR8.
Allergy and Asthma Clinic
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.
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.
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.
Wellman was seen on June 24, 2013, for skin tests which
showed positive results to multiple dust/pollens and
mold/dander. AR547, 551.
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.
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
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.
Sanford Neurosurgery and Spine Center
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.
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
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.
Wellman had similar headaches and spinal pressure and saw her
eye doctor again on July 22, 2013, 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.
Sanford Surgical Associates
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.
Craig A. Sauer, DC
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
State Agency Assessments
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.
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
[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.
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.
Testimony at ALJ Hearing
Ms. Wellman's Testimony
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