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Perrin v. Berryhill

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

November 27, 2017

LINDA R. PERRIN, Plaintiff,


          VERONICA L. DUFFY United States Magistrate Judge.


         Plaintiff, Linda R. Perrin, seeks judicial review of the Commissioner's final decision denying her payment of disability insurance benefits under Title II of the Social Security Act.[1] Ms. Perrin 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. Perrin requests the court remand the matter to the Social Security Administration for further hearing.

         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) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, district judge.


         A. Statement Of The Case

         This action arises from plaintiff Linda R. Perrin's application for SSDI and SSI benefits filed on December 14, 2012, alleging disability since October 1, 2012, due to severe degenerative disc disease, bursitis, depression, Meniere's disease, arthritis, bulging disc, celiac disease, and migraines. AR 103, 113, 384.

         Ms. Perrin's claim was denied initially and upon reconsideration. AR 177, 182. Ms. Perrin then requested her first administrative hearing. AR 189.

         Ms. Perrin received an unfavorable decision after her first administrative law judge hearing on February 20, 2014, and requested review from the Appeals Council, which remanded the claim for clarification of the residual functional capacity (“RFC”) and consideration of new and material evidence. AR 149, 170, 172.

         Ms. Perrin's second administrative law judge hearing was held on October 8, 2015, by the Honorable Denzel R. Busick (“ALJ”). AR 77. Ms. Perrin was represented by other counsel at her first hearing and by her current counsel at her second hearing where an unfavorable decision was issued on November 27, 2015. AR 8, 31, 56.

         At Step One of the evaluation, the ALJ found that Ms. Perrin had not engaged in substantial gainful activity (“SGA”) since the alleged onset date of October 1, 2012, and that she was insured for SSDI purposes through December 31, 2019. AR 13.

         At Step Two, the ALJ found that Ms. Perrin had severe impairments of Meniere's disease, degenerative disc disease - lumbar spine, and obesity. AR 13.

         The ALJ also found that Ms. Perrin had medically determinable impairments of obstructive sleep apnea, migraines, and other headaches, type 2 diabetes, and depression, all of which he determined were non-severe impairments. AR 13-14.

         The ALJ found that Ms. Perrin's depression caused mild limits in activities of daily living, social functioning, and concentration, persistence and pace, and had caused no episodes of decompensation of extended duration. AR 14.

         The ALJ found that Ms. Perrin 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”). AR 14-15.

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

less than a full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b), as follows: She can lift and carry 20 pounds occasionally and 10 pounds or less frequently. She can sit a total of 6 hours, as well as stand and walk, combined, 6 hours in an 8-hour workday. She has no limits in reaching. She can climb stairs slowly, with a handrail, but must avoid working on ladders, scaffolds and ropes. She can balance frequently but crouch, kneel, stoop and crawl only occasionally. She has no manipulation limits with the hands or fingers, no visual limits with glasses, and no communication limits. She must avoid concentrated exposure to extreme cold, high heat, humidity, with no exposure whatsoever to hazards, such as unprotected heights, fast and dangerous machinery.

AR 15.

         The ALJ's credibility finding regarding Ms. Perrin's statements concerning the intensity, persistence and limiting effects of her symptoms was that they were not “entirely credible for the reasons explained herein.” AR 15.

         Based on the RFC determined by the ALJ, the ALJ found that Ms. Perrin was capable of performing her past relevant work as a mailroom supervisor and policy holder-information clerk, both as actually and generally performed, and denied the claim. AR 19.

         Ms. Perrin timely requested review by the Appeals Council (AR 7) and submitted additional new evidence that was considered by the Appeals Council consisting of:

a. S.D. Department of Social Services MAWD Information.
b. S.D. Freedom to Work MAWD FAQ.

AR 2, 4.

         The Appeals Council denied Ms. Perrin's request for review making the ALJ's decision the final decision of the Commissioner. AR 1. Ms. Perrin then timely filed this action.

         B. Plaintiff's Age, Education and Work Experience

         Ms. Perrin was born in 1960, making her 55 years old at the time of the denial, and she completed the 12th grade in 1979. AR 290, 385.

         The ALJ's decision identified Ms. Perrin's past relevant work as a mailroom supervisor and policy holder-information clerk, both defined in the DOT as skilled, SVP 6 occupations. AR 19.

         Ms. Perrin had earnings in 2013 from Best Buy of $11, 113.93 and in 2014 from Best Buy of $2, 613.81. AR 337, 354, 365.

         Ms. Perrin had earnings in 2014 from a bingo hall of $6, 953. AR 365.

         Ms. Perrin had earnings in 2015 through September of $9, 633.89. AR 368.

         C. Relevant Medical Evidence

         1. Midwest Ear Nose and Throat

         Ms. Perrin saw Daniel Todd, M.D., on March 24, 2008, for complaints of dizziness. AR 604. She reported a family history of Meniere's disease. AR 604. Ms. Perrin denied tinnitus or hearing loss. AR 604. Ms. Perrin reported that the disability associated with the dizziness was severe, and she constantly had to make adjustment to daily activities due to the dizziness. AR 604. Associated symptoms included nausea, falls and tremors. AR 604. Ms. Perrin also reported headaches. AR 604. Dr. Todd noted a December 17, 2007, balance test was normal. AR 604. An audiogram revealed normal hearing in the left ear and mild hearing loss in the right ear at 250 Hz and 8000 Hz. AR 606. Dr. Todd assessed Meniere's disease and dizziness and light-headedness. AR 606. Videonystagmography (“VNG”) testing was scheduled. AR 606.

         On May 2, 2008, Dr. Todd stated the VNG looked normal and showed only some slight vestibular imbalance on the left side. AR 600, 616. Ms. Perrin stated that her balance was still an issue and had been especially bad the past week. AR 600. Dr. Todd indicated his overall suspicion was that allergies were a primary player. AR 600.

         2. Avera McGreevy Clinic

         Ms. Perrin was seen by her primary care physician, Michelle McElroy, MD, on May 17, 2012, for her Meniere's disease and back and hip pain. AR 529. Ms. Perrin reported mild back pain and bilateral hip pain rated 8, as well as bilateral knee pain. AR 530. She also reported falling about a month ago, and partially falling two to three times a week due to her Meniere's, which caused balance issues. AR 530. Ms. Perrin reported that pain made it difficult to get up out of a chair, and it was worse after she walked or stood awhile. AR 531. Examination revealed tenderness in the sciatic area and the left trochanter area. AR 531. Ms. Perrin was referred to Core Orthopedics for further treatment of her hips and possible additional injections. AR 531. Ms. Perrin weighed 243 pounds at the time of the exam, and Dr. McElroy recommended she lose twenty more pounds to help with her knee pain. AR 529, 532.

         Ms. Perrin was seen on August 7, 2012, for back and hip pain and she wanted to be checked for fibromyalgia. AR 526. The reported history noted Meniere's, GERD, celiac disease, arthritis, headaches, and degenerative joint disease, and spondolythesis at ¶ 4-5 treated by Dr. Watts with an epidural injection in 2012. AR 526. The notes indicated that an MRI had been obtained by Dr. Watts and an epidural given, which helped with the pain that had been radiating into Ms. Perrin's legs, but she still had low back pain and sharp pain in her legs when working long shifts at her job at Family Dollar. AR 527. She reported her pain was better when working shorter 8-9 hour shifts, and worse with lifting. AR 527. Once the pain started it lasted for the day and she walked hunched over. AR 527. Dr. McElroy noted that Ms. Perrin reported crying easily, feeling down, and was looking at filing for disability because she was worried she would end up in a wheelchair if she did not. AR 527. Dr. McElroy's assessment included chronic low back pain and depression, and Zoloft was prescribed. AR 527. Dr. McElroy gave Ms. Perrin a 15 pound lifting restriction and she was told to restrict her work shifts to 8-9 hours shifts. AR 528.

         When Ms. Perrin was seen on December 12, 2012, for some sinus problems the record indicated she was now working part-time at Best Buy. AR 523.

         Ms. Perrin was seen on February 25, 2013, for migraines, problems with her ears, and she was concerned she may be diabetic as she was thirsty all the time. AR 544, 546. She also reported sciatic pain with occasional radiation down the legs, and increased issues with migraines. She had been avoiding medications, but then reported having flares again. AR 546. She said she wanted to avoid rebound headaches. AR 546. She reported her balance was off and she thought she may need a cane soon. AR 546. Ms. Perrin's gait was normal. AR 547. Dr. McElroy approved her cane request and recommended a four-prong cane, found her hgb a1c was slightly elevated and recommended diet and exercise, told her to keep a headache journal to look for pattern, and to try flexeril for headaches. AR 548.

         Chart notes to the clinic on February 18, 2013, indicated that Ms. Perrin no longer had health insurance (AR 553) and in March she requested that her records be sent to Falls Community Health. AR 549-50.

         Ms. Perrin saw Dr. McElroy on December 30, 2013, and reported headaches, back pain, and trouble falling. AR 576. She reported worse bilateral back pain with radiation to her hips and headaches rated 7/10, and she had fallen in the last three months. AR 577-78. For her history of depression, it was noted Zoloft (sertraline) worked. AR 578. Ms. Perrin reported the pain was constant and sharp causing her to break out in sweats, and she could not work a five-hour shift without pain even when using tramadol and naproxen. AR 579. She was only getting 4-5 hours' sleep per night due to pain and had tried melatonin, but it did not help. AR 579. She had been at the emergency room in September due to her headaches, which caused tremors and numbness in her hands, and she was taking amitriptyline, which reduced the frequency, but she was still having headaches 3-4 times per week. AR 579. Ms. Perrin reported only taking Excedrin Migraine with the worst headaches to try to avoid rebound headaches. AR 579. She said Dr. Shafer had prescribed physical therapy, but it had not helped with her headaches. AR 579. She also reported worsening back spasms and said she was not lifting anything at work, but needed to sit after standing only 15 minutes to relieve her back pain, which made it difficult to work and to do things around the house. AR 579. She said she wanted to stay as active as possible, but could not even finish her dishes without needing to take a break. AR 579. Ms. Perrin also reported falling three times at work, but had not reported it out of fear of losing her job. AR 579. She said she typically was having 3-4 episodes per day losing her balance, and very rarely had a day with no balance episodes. AR 579. Examination revealed that Ms. Perrin's mood was down, she cried easily, tenderness across her low back, positive straight leg raise test, and positive Romberg test. AR 580. Ms. Perrin's gait was normal, her strength was 5:5 in the upper and lower extremities, and her deep tendon reflexes were 2 normal in the upper and lower extremities. AR 580. Her amitriptyline dosage was increased, and she was told to keep a headache journal to keep track of frequency. AR 581. Dr. McElroy restricted her to 5hour maximum work shifts, discussed the importance of using her cane of proper height, and increased her dosage of tramadol. AR 581.

         Ms. Perrin saw Dr. McElroy on March 5, 2014, complaining of headaches, back pain and falling. AR 689. She reported daily headaches with light sensitivity and tremors in her hands, low back pain with radiation to the buttocks making sitting and standing difficult. AR 689-90. Ms. Perrin reported falling more despite using her 4-prong cane, and numbness in her left arm/hand. AR 690. She was still working at Best Buy, but her hours had been cut. AR 690. Examination revealed tenderness over paraspinal regions in the L3-5 region, tremor in the right hand less noticeable when not being observed, and able to move short distances without her cane, but the cane was needed when walking up and down the hall with slowed gait. AR 690. Her strength was 5:5 in the upper and lower extremities. AR 690. A neurology consult was recommended, but Ms. Perrin declined due to lack of insurance, and her amitriptyline was changed to nortriptyline, and hydrocodone added for pain. AR 691.

         Ms. Perrin was seen again on May 20, 2014, for follow-up on her back pain and headaches with continued similar symptoms, including low back pain radiating to her legs, numbness in her hands and arms, and daily headaches, sometimes migraines and sometimes regular headaches. AR 685. She was to continue using her cane, taking Zoloft for her depression and her nortriptyline dosage was increased for her headaches. AR 686.

         Ms. Perrin was seen on July 31, 2014, and her condition and symptoms continued largely unchanged with some added fatigue, which Dr. McElroy felt may be due to her medications. AR 679. She had normal gait, normal deep tendon reflexes, and 5/5 strength in the upper and lower extremities. AR 680. Ms. Perrin had a left hand tremor more predominant when she talked about it, but otherwise unnoticeable. AR 680. Dr. McElroy also noted that she needed a neurology consult but did not have insurance. AR 680. Dr. McElroy prescribed Tramadol three times per day, Hydrocodone at bedtime along with a muscle relaxant, and heat and ice. AR 680.

         Ms. Perrin was seen on September 11, 2014, complaining of intense pain rated 10/10 by her right back and right breast, and was diagnosed with a shingles outbreak and acyclovir was prescribed. AR 674-76. She continued to use her cane, but had fallen the prior Tuesday. AR 670. Ms. Perrin stated she took hydrocodone only at night. AR 670.

         Dr. McElroy saw Ms. Perrin on December 18, 2014, with ongoing back pain and headaches. Ms. Perrin also reported right arm and back pain with hand tremors getting worse, and pain in her right breast. AR 670.

         Dr. McElroy assessed her mood as down and noted she cried at times. AR 671. Dr. McElroy instructed her to continue to use her cane, again noted that she needed a neurology consult, and changed her nortriptyline to gabapentin. AR 671-72.

         Ms. Perrin was seen on January 13, 2015, with ongoing symptoms of back pain, headaches, and balance problems. AR 802. She reported multiple falls despite using her cane, and had been losing her balance more at work, forcing her to sit down more. AR 803. Her medications were continued and blood pressure medication was added. Dr. McElroy was concerned that some of her headaches may be related to high blood pressure or may have some rebound aspects also. AR 804.

         Ms. Perrin was seen again on March 4, 2015, and reported ongoing symptoms and also intermittent numbness in her legs and pain in her feet. AR 791. She was working part-time at a bingo hall. AR 791. Her hydrocodone and tramadol medications were continued for pain and a stress echo was planned due to chest pain. AR 792-93. The exam notes indicated that Ms. Perrin was now on South Dakota Medicaid. AR 788.

         When seen on April 1, 2015, Ms. Perrin had just had her eyes examined and was told she had the beginning of macular degeneration, and needed to see a retinal specialist. AR 785.

         Ms. Perrin had been diagnosed with diabetes some months earlier, and when seen on June 1, 2015, for back pain and also bilateral hand and foot pain she felt the hand and foot pain was from diabetic nerve pain. AR 770, 772. She reported severe foot and leg pain if she stood longer than a couple of hours. AR 772. Ms. Perrin also reported some spells lasting 10-30 minutes where she could hear someone talking to her, but could not understand what the words were. AR 772. Her gait was slowed, but she was not using her cane at the exam. AR 772. She continued working on her blood sugars and was seeing improvement. AR 773. The plan included switching from gabapentin to Lyrica for her neuropathy, physical therapy for her back, and a neurology consult for her spells or possible seizures. AR 773.

         Ms. Perrin was seen on July 10, 2015, following her neurology consultation where it was felt her medication combination may be causing some inflammation. AR 765. Dr. McElroy noted that Ms. Perrin was depressed, stressed, and she reported she could only stand 20 minutes at work without needing to sit or lean on something to help with the back pain. AR 765. Dr. McElroy noted that Ms. Perrin cried easily and was not sleeping well. AR 765. She was scheduled for a sleep study, physical therapy, and Zoloft was changed to Cymbalta for her depression with a plan for a psychological consult if there was no improvement. AR 765-66. The timing of her tramadol was also changed based on the recommendation from the neurologist. AR 766. Her gait was normal using her cane. AR 766. Ms. Perrin had 5:5 strength in the upper and lower extremities, and there was no tremor noted. AR 766.

         Ms. Perrin was seen on August 14, 2015, and reported that the Cymbalta was helping; she had only had one or two breakdowns, noting work was stressful. AR 758. She continued to report back pain, and could only stand about five minutes before needing to bend to get relief from the pain, and had to bend and lean on the counter at work, which her employer did not like. AR 758. She had been going to physical therapy and using a TENS unit, which had helped some with the back pain and her headaches. AR 758. Her Cymbalta dosage was increased and a TENS unit prescribed. AR 759. Under the section, Additional Plan Details, the exam note stated “2. needs a note can only work 4 hours max in a day. No more than 4 shifts in a week. Will re-eval in 2 months.” AR 759.

         Ms. Perrin was seen on August 27, 2015, complaining of abdominal pain with diarrhea and vomiting, and also reported that her headaches were coming back. AR 752. She was referred for a colonoscopy. AR 752. Under the Diet and Exercise section, the exam note stated under Duration, “60-90 minutes/day (works 4 days/week for 4 hours. Walks all day at work, babysits grandkids other days of the week).” AR 751.

         Dr. McElroy completed a Medical Source Statement regarding Ms. Perrin's limitations if she were to attempt full-time sustained work on January 13, 2015. AR 699. In the form Dr. McElroy indicated she agreed that since Ms. Perrin had not been working full-time since October 1, 2012, her treatment notes documented Ms. Perrin's condition at the time of the examination not what it might have been had she been working full-time, and also agreed that if Ms. Perrin attempted sustained full-time work it would have an effect on her symptoms. AR 699. Dr. McElroy indicated that if Ms. Perrin attempted full-time sustained work she would be limited to significantly less than 6 hours sitting per workday and significantly less than 6 hours standing or walking per workday, limited to rarely lifting less than 10 pounds, and never lifting more, rarely twisting or stooping, and occasionally doing repetitive fingering, handling, or reaching with “rarely” defined as 1%-5% of an 8-hour workday, and “occasionally” as 6%-33% of an 8-hour workday. AR 700. Dr. McElroy also stated Ms. Perrin was limited due to her medications, stating, “Has to use narcotic type pain meds cautiously due to side effects - has to time them.” AR 701.

         Dr. McElroy also indicated in the January 13, 2015, Medical Source Statement that Ms. Perrin had migraines severe and frequent enough to more than minimally limit her basic work activities, and when migraines occurred or during the recovery period following the headache she would be unable to perform basic work activities for a period of hours, and her migraines are frequent enough that if she attempted full-time sustained work they would cause absences or periods of inability to work more than two days per month. Dr. McElroy also indicated that to the extent her opinions were based on subjective input from Ms. Perrin, the reported symptoms were reasonably attributed to her diagnosis of chronic migraines and reasonably consistent with available medical signs and findings, and that she believed, based on her treating relationship with Ms. Perrin and applying her professional judgment, that Ms. Perrin's reported symptoms were truthful and not exaggerated. AR 701.

         Dr. McElroy also indicated in the January 13, 2015, Medical Source Statement that Ms. Perrin's use of a cane was medically necessary due to her medical impairments, and that if she were to attempt full-time sustained work her medical impairments would cause her to be absent in excess of two days per month, her ability to concentrate would decline through the day due to pain to the point she would be working at 75% or less of a normal rate by the last two hours of a workday, and would also routinely be off-task 10% of the time or more due to pain. AR 702. Dr. McElroy noted that Ms. Perrin would wear down and exacerbate balance issues and her pain makes her have to change positions and she cannot stay in one place for long. AR 702. Dr. McElroy also indicated that at times lack of insurance and financial limitations made Ms. Perrin reluctant or unable to seek or obtain care when needed. AR 702.

         On August 14, 2015, Dr. McElroy wrote a letter and stated Ms. Perrin should only work four-hour maximum shifts and only four shifts per week. AR 911.

         On September 14, 2015, Dr. McElroy responded to an inquiry and indicated that the limitations she had previously identified for Ms. Perrin in the January 13, 2015, Medical Source Statement were still substantially accurate. AR 904.

         On October 16, 2015, Dr. McElroy responded to an inquiry about the effect Ms. Perrin's chronic pain and depression would have on her ability to work on a sustained full-time basis. AR 926. Dr. McElroy indicated that Ms. Perrin would be moderately limited in her ability to maintain attention and concentration for extended periods (the approximately 2-hour segments between arrival and first break, lunch, second break, and departure); moderately limited in her ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; not significantly limited in her ability to make simple work-related decisions; and, markedly limited in her ability to complete a normal workday and workweek without interruptions from chronic pain or depression symptoms and to perform at a consistent pace without unreasonable number and length of rest periods. AR 927. “Moderately” was defined as an impairment which more than slightly interferes with the individual's ability to perform the designated activity on a regular and sustained basis, i.e., 8 hours a day, 5 days a week, or an equivalent work schedule, and “Markedly” was defined as an impairment which results in a substantial loss in the individual's ability to function independently, appropriately, or effectively in the designated area on a regular and sustained basis, i.e., 8 hours a day, 5 days a week, or an equivalent work schedule.

         3. Core Orthopedics

         Ms. Perrin was seen by Dr. Watts at Core Orthopedics on June 11, 2012, for bilateral buttock pain radiating down her legs to mid-thigh. AR 517. She reported constant pain with some increased pain with standing, and she reported an episode two months earlier of weakness with difficulty getting out of a chair. AR 517. Examination revealed point tenderness along the trochanteric bursa, but was otherwise normal. AR 517. Pelvis and lumbar spine x-rays were obtained that revealed a Grade 1 spondylolisthesis of L4-5 with degenerative changes at ¶ 4-5 and L5-S1, and no degenerative changes were noted of the hip. AR 517. An MRI was obtained on June 11, 2012, which revealed degenerative Grade 1 spondylolisthesis of L4-5 secondary to facet arthropathy with minimal broad-based annular protrusion and no nerve root impingement, mild central spinal stenosis, mild annular disc protrusions at ¶ 11-12 and T12-L1 with no impression upon the thoracic spinal cord, and changes of mild multilevel degenerative spondylosis and facet arthropathy. AR 516.

         Ms. Perrin was seen again on June 13, 2012, to review the MRI results and an epidural steroid injection to L4-5 was planned, and later administered at Avera McKennan hospital on June 18, 2012. AR 513, 637. Dr. Watts also restricted her to no lifting greater than 10 pounds and no working longer than 8-hour workdays for the next month until her condition hopefully calmed down due to the epidural and her back disc herniation. AR 513-14.

         4. Falls Community Health

         Ms. Perrin was seen as a new patient at Falls Community Health on March 14, 2013, for rectal bleeding and to review her multiple medical problems. AR 557. She needed to get cheaper medications and had recently lost her insurance. AR 557. Her assessments included depression and her sertraline was refilled. AR 559.

         Ms. Perrin was seen again on April 18, 2013, after her records had been transferred to Falls Community Health. AR 556. She reported that her Meniere's had been worse lately, and that she had been “hitting the wall most every day at work.” AR 556. Charles Shafer, M.D., recommended she get a cane at a pharmacy or a second hand store. AR 557. Tramadol was prescribed for pain, and her records from Core Orthopedics were requested. AR 557.

         Ms. Perrin was seen on June 20, 2013, to discuss her sciatica, restless leg syndrome, falling problems, and migraines. AR 567. Ms. Perrin also inquired about a handicap sticker for days when having trouble walking. AR 567. She reported that she felt the tramadol was helping her get a little more sleep, her daughter thought she had been moody, so she had stopped taking sertraline, she was having more migraines lately, almost daily, and had been taking at least four Excedrin Migraine daily. AR 567. She also reported that her back pain had been more of an issue lately. AR 567. Ms. Perrin's exam findings were largely normal. AR 568. Her straight leg raising test was negative. AR 568. Her tramadol dosage was increased to help with her sciatica. AR 568. Dr. Shafer also directed her to continue using a cane for balance, and completed a handicap parking form for intermittent use. AR 569.

         Ms. Perrin was seen on September 17, 2013, for follow up on her migraines. AR 565. She had recently been to the emergency room with right hand tremors, which had not returned since that time. AR 565. Dr. Shafer prescribed amitriptyline and physical therapy, which he hoped would help with her MSK (musculoskeletal) contribution to her headaches, which he suspected were mainly “tension” type. AR 567.

         Ms. Perrin was seen on November 18, 2013, for physical therapy and she reported no upper back pain and no neck pain with any motion exam. AR 565. She reported having headaches 2-3 times per week and felt they were migraines and sometimes caused by her sinuses, but did not think her neck caused her headaches. AR 565. The physical therapist's diagnosis was migraine type headaches and that they did not seem cervicogenic in nature, she had no dysfunction or pain in the neck, and he also noted chronic low back pain from degenerative disc disease. AR 565. No physical therapy treatment was planned. AR 565.

         5. Neurology Associates

         Ms. Perrin was seen at Neurology Associates on June 23, 2015, for spells when she would find someone talking to her, but she was unable to understand what the words were. AR 733. She reported that she felt lightheaded and had nausea during the spells, which lasted 10-30 minutes. AR 733. She also reported issues with falls, use of a cane for the last year, and chronic migraines with tremulous following a severe migraine a year earlier. AR 733. Her exam was largely normal except her gait and balance, which had a positive Romberg, and she could not stand unassisted, she ambulated with a cane, her gait was wide-based, and her sensory was mildly diminished to vibratory sensation in the feet bilaterally. AR 735. Dr. Boyle's assessment was that the spells could be partial seizures, TIA, or migrainous phenomenon; she also had a gait disturbance likely caused by Meniere's, and diabetic peripheral neuropathy. AR 736. An electromyography (“EMG”) showed the beta activity found in the EEG was likely a medication effect, the episodes of theta activity was most likely due to alpha hypersynchrony, and there was no evidence for an underlying seizure disorder or focal central nervous system lesion. AR 738. An MRI of the brain was negative. AR 740. A chest x-ray revealed no cardiopulmonary process. AR 742.

         6. Avera McKennan Hospital

         The earliest hospital record in the appeal record from July 17, 2008, a perfusion scan, indicated that Dr. McElroy was Ms. Perrin's treating physician at that time. AR 663.

         Ms. Perrin received physical therapy treatment due to right SI joint/hip pain beginning June 4, 2010, and ending with four sessions on June 14, 2010, with goals met and 95% improvement. AR 645, 647.

         Ms. Perrin was given an epidural injection ordered by Dr. Watts on June 18, 2012. AR 637. During that procedure she reported that she also noticed some increased pain with prolonged sitting, and said that the onset was ongoing, but symptoms had increased recently. AR 636.

         Ms. Perrin was seen at the Emergency Room on September 14, 2013, complaining of tremors in her right hand. AR 627. She reported the tremors had started that day and she had been having headaches the last two weeks lasting longer than her migraines typically did. AR 627. She was observed to be somewhat teary and anxious. AR 627. Examination revealed her right hand had “almost like a pill rolling tremor” and with finger-nose it continued. AR 628. The emergency room doctor noted that when she was engaged it seemed like the tremor was less and then with attention it might be a little more, but the doctor was unsure what that meant. AR 628. Ms. Perrin was given something for her headache and a head CT was performed after waiting quite a while that revealed hyperostosis frontalis interna, but was otherwise normal. AR 628. The tremor resolved and the doctor felt it may have been an atypical migraine or an incidental tremor, but he did not think it was a partial seizure. AR 628.

         Ms. Perrin received physical therapy due to back pain beginning June 9, 2015, and was using a quad cane at the time due to balance issues. AR 853. She was working at the bingo hall and reported limitations with prolonged standing, sitting or walking and difficulty sleeping. AR 853. The Oswestry back questionnaire scored 64%, placing her in the severe disability category. AR 854. She was using her quad cane to ambulate and was observed to have significant decreased balance with tendency to lose balance towards side of leaning and was unable to stand on one leg for more than one second. AR 854. Ms. Perrin had a positive slump test bilaterally. AR 854.

         Ms. Perrin was seen on June 26, 2015, at the hospital for a brain MRI due to spells, gait disturbance and falls, ordered by Dr. Boyle of Neurology Associates. AR 856-58. The MRI was negative. AR 860.

         Ms. Perrin was referred to the Avera Dizziness and Balance Clinic for physical therapy and treatment of imbalance and falls by neurologist, Dr. Boyle, beginning on July 8, 2015. AR 876. She stated she had a long history of increasing balance issues and falls. AR 876. She stated she was working at Burnside Game Place. AR 878. The balance exam revealed mild sway with eyes open, significant sway in all directions with eyes closed and feet apart, and loss of balance with eyes closed and feet together. AR 878. The compliant surface test with eyes open showed mild sway, and with eyes closed loss of balance in less than 4 seconds, and the single leg stance revealed significant sway with either foot held one second. AR 879. Her composite postural stability score was significantly below expected norm. AR 879. The assessment found difficulty in all testing utilizing vestibular and somatosensory input for balance when visual system was altered by either movement in her visual field, eyes being closed, or low light situations. AR 880. Ms. Perrin's dizziness handicap inventory was 38% impairment and her dynamic gait index was 46% impairment and her rehab potential was fair to good with limiting factors possibly being her long-term balance issues. AR 881.

         Ms. Perrin was discharged from the Dizziness Clinic on August 17, 2015, after four therapy sessions. AR 888. Her balance tests had all improved and she was ambulating without an assistive device with no evidence for gait abnormality. AR 889. Her composite stability score had improved to a normal range and her dynamic gait index had improved from a significant fall risk to 4% impairment. AR 889. The notes indicated that Ms. Perrin reported she was no longer having dizziness or imbalance related to her vestibular dysfunction. AR 889.

         7. Avera Behavioral Health

         Ms. Perrin attended counseling on September 15, 2015, and September 29, 2015, and reported issues coping with her medical conditions and that her chronic back pain limited her employment opportunities. AR 914. She reported struggling with her view of herself and being depressed regarding her inability to contribute after being limited by her disabilities. AR 913-14. Cognitive behavioral therapy was recommended. AR 914. She reported pain due to her back and headaches, rated 6/10. AR 917.

         8. Pulmonary & Sleep Consultants

         Ms. Perrin was tested and diagnosed with moderate obstructive sleep apnea on June 17, 2008, and a CPAP was recommended. AR 586.

         Ms. Perrin was tested and diagnosed with mild obstructive sleep apnea on June 30, 2015, and a CPAP was recommended. AR 723.

         9. South Dakota MAWD Program Records

         Ms. Perrin applied for and was found eligible for the South Dakota Medical Assistance for Workers with Disabilities Program (“MAWD”) effective July 1, 2014. AR 704. The notice also stated she was approved for Medicaid effective July 1, 2014. AR 704. The MAWD determination notice stated that the MAWD disability determination team reviewed the medical evidence and work/social history concerning Ms. Perrin and found that she could not perform her past relevant work and a decision of disabled was directed per “Vocational Rule 200.00.” AR 705. The determination was ...

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