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Seay v. Berryhill

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

March 27, 2018

KATRINA JOY SEAY, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMM'R OF SOCIAL SECURITY; Defendant.

          MEMORANDUM OPINION AND ORDER

          VERONICA L. DUFFY, United States Magistrate Judge

         Table of Contents

         INTRODUCTION..............................................................................................1

         JURISDICTION...............................................................................................2

         STIPULATED FACTS.......................................................................................2

         A. Procedural History...............................................................................2

         B. Background.........................................................................................3

         C. Vocational Evidence.............................................................................4

         D. Medical Evidence.................................................................................7

         E. Claimant and Third-Party Statements................................................43

         F. Testimony at Administrative Hearing.................................................52

         G. Opinion Evidence..............................................................................55

         H. ALJ Decision.....................................................................................61

         I. Issues Raised by Ms. Seay in this Appeal...........................................62

         DISCUSSION................................................................................................62

         A. Standard of Review............................................................................62

         B. The Disability Determination and the Five-Step Procedure.................64

         C. Burden of Proof.................................................................................65

         D. Whether the ALJ Erred by Finding Ms. Seay's Fibromyalgia was not "Medically Determinable"?..........................66

         1. The Commissioner's Guidance for Evaluating Fibromyalgia.............67

         2. The ALJ Did Not Find Ms. Seay's Fibromyalgia was a Medically Determinable Impairment, but the ALJ Incorporated Limitations from Fibromyalgia into the Physical RFC......................69

         3. The ALJ Did Not Err in Failing to Obtain Dr. Frost's Records..........70

          E. Whether the ALJ Erred by Assigning Considerable Weight to Dr. Pelc's ...................................................74

         F. Whether the ALJ Erred in Evaluating the Weight Given to the Treating Therapist's Opinion?...............................86

         G. Whether the ALJ Applied the Proper Standard to Determine the Credibility of Ms. Seay and Her Mother's Testimony?....................... 102

         1. The Law Applicable to Credibility Determinations.......................... 102

         2. Summary of Ms. Seay and her Mother's Statements...................... 104

         3. Analysis of the ALJ's Credibility Evaluations................................. 109

         H. Whether the ALJ Erred By Relying on Total Numbers of Jobs in the United States at Step Five?...............116

         I. Type of Remand............................................................................... 120

         CONCLUSION............................................................................................. 121

         INTRODUCTION

         Plaintiff, Katrina Joy Seay, 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. Seay 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. Seay requests the court remand the matter to the Social Security Administration for further hearing. The Commissioner asks this court to affirm its decision. The matter is fully briefed and is ready for decision. For the reasons more fully explained below, the Commissioner's decision is reversed and remanded.

         JURISDICTION

         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 is before this magistrate judge pursuant to the consent of the parties. See 28 U.S.C. § 636(c).

         STIPULATED FACTS [2]

          A. Procedural History

         On May 31, 2013, Seay applied for SSD benefits, alleging that she had been disabled since October 16, 2012. AR236. On June 20, 2013, she applied for SSI. AR238.

         She had filed a previous claim for SSI on February 25, 2011, which was initially denied on July 21, 20ll.[3] AR96, 109.

         Prior to hearing, she was sequentially represented by Kay Cox, TANF Disability Advocate (AR120-21); Christine Gingras, a non-attorney (AR122, 234); and Larry Plank, attorney (AR124-25).

         The hearing was held in Rapid City on July 22, 2015. AR54. Testifying were Katrina Seay, claimant; Robert Pelc, Ph.D., the ALJ's [Administrative Law Judge] medical expert; Wilma Goehring, the claimant's mother; and Barry Brown, vocational expert. JSMF 55. Seay was not represented. AR56.

         Debra J. Denney, ALJ, issued an unfavorable step five decision on August 26, 2015. AR25-47. On September 6, 2016, the Appeals Council denied the request for review. AR1. Ms. Seay thereafter filed her appeal of the Commissioner's decision with this court on October 20, 2016. Docket No. 1.

         B. Background

         Seay was born in 1983 in Oklahoma City. AR62, 511. She never knew her father, and her mother was alcoholic, bipolar, and addicted to gambling. AR511-12. She had three stepfathers by age 16, and was first sexually abused by a stepfather at age seven or eight. AR511. At age 15 she was abusing cocaine, methamphetamine, marijuana, and alcohol, completed treatment, and remained abstinent. Id.

         She lived in approximately seven foster homes, two residential facilities, three detention facilities, and ran away multiple times. AR511. She was a "cutter." AR668.

         She reported struggling with her classes in school. AR69. She dropped out of school in the ninth grade due to pregnancy. Id. She obtained her GED at Wichita Area Tech College and stated that school was difficult for her. AR512.

         She gave birth to her first child at age 16 while in foster care, and the child was taken by Child Protection Services. AR511. She had another child at age 20, gave him up, and regretted it. Id.

         She married Nicholas Seay in 2004 in Alabama; they separated in October 2006. AR237, 239.

         She lost parental rights to her two youngest sons in 2010 in South Dakota and exhausted her final appeal of the parental termination order in 2011. AR511. She became pregnant with a fifth child and moved to Kansas. Id. She had her sixth child in January 2015. AR844.

         At the time of hearing she was five feet, eight inches tall, and weighed 325 pounds. AR62. She was right-handed. Id. She was divorced and lived with her two children, ages three and six months, in a rent-subsidized apartment in Belle Fourche. AR62-63, 239. She received TANF and food stamps. AR63.

         C. Vocational Evidence.

         Seay, by Ms. Cox, TANF Disability Advocate, stated in her disability report that she had worked discontinuously as a cashier in a retail store, fabricator and packager in a meat packing business, fuel attendant at a truck stop, and refrigerator stacker in a retail business. AR281.

         Seay testified that she left her last job, as a "fabricator and packager, " due to sexual harassment. AR65. Before that she had a full-time job as a fuel attendant, but when she "told the employer that I had medication that I needed to take in order to keep staying working there, they dropped me to part-time and dropped my benefits." Id. When she was hired full-time in this job, Social Services dropped all services. Id. When the employer cut hours to part-time, resulting in loss of benefits, Seay asked her employer to send a letter to Social Services "so that I could provide for my daughter ... and they refused to do that." AR66.

         Before that she worked as a cashier. The ALJ asked, at hearing, "Did that not work out?" Seay responded,

I have a lot of things that wind up being wrong in social settings when I work....If something that happens while I'm working triggers a PTSD [post-traumatic stress disorder] issue from my past, whatever that traumatic thing might have happened in my past, I get really anxious. I tense up really bad. I feel almost claustrophobic like I can't get out of the situation.... I want to run away and I want to get away from it, but whenever you're in a work environment, you can't tell your employer, oh, I'm sorry, I'm having an anxiety attack, I need a break.... When I have said that in the past to an employer, they let me say that a couple of times before they fire me.

AR66.

         The ALJ asked about a job at Walmart from "June up to February of 2010." AR67. The ALJ asked Seay why she left that job. Seay testified:

The manager supervisor of my department who initially hired me, understood my disabilities, understood that I was on medication to keep working. He unfortunately did not put that in the file and when he died suddenly which no one expected, the management that took over said I'm sorry, we don't have any leniency for you because nothing's in your file that says you take medication or you're given certain exception. And when that happened, they required me to do other things outside the scope of the work that I had been doing.... And it made my physical and emotional disabilities worse than they were. I tried three different positions in that store after that in the course of a few weeks and none of those were working. I got pregnant with my daughter.... I asked management if I could move to another location in the store that wasn't lifting heavy boxes or in a freezer situation because I was pregnant and they said they didn't have anything available.

Id.

         Seay's detailed work history is reported at ¶ 248-51. The report shows that from 1999-2012, she was employed by PNS, Inc. ($60.51), Burger King ($278.13), TB of America ($961.41 in 2000, $62 in 2001), McDonald's ($66.94), ITI Holdings ($30), King Soopers ($2569.83), Lane Holding Co. ($64.08), Westaff USA ($1078.38), K-Mac ($390.60), JAK ($3.78), Four Aces Hotel ($94.65), Time Out Lounge & Bottle Shop ($1158.66), Midwest Motels of Deadwood ($58.50), Mineral Palace Hotel & Gaming ($519.39), Decker's Food Center ($452.45), Wendy's ($156.48), Wal-Mart ($1541.22), Labor Ready Southwest ($10.13), HMC Hotel ($45.50), Wal-Mart ($472.36 in 2008, $6821.90 in 2009, $9077 in 2010, $2747.85 in 2011, and $157.67 in 2012), National Beef Packing ($3343.98), and Garden City Travel Plaza ($1996.79). AR248-51.

         Seay reported having worked in 20 or more jobs. "I was let go from all of my jobs because I missed too much work because of migraines, or because I was not able to socialize with customers, co-workers or the boss, or because I asked them to accommodate my limitations and they were not willing to." AR341.

         She stated that her most successful work was at Walmart. She had worked for Walmart in Spearfish but missed too much work and was fired. AR341. She later worked for Walmart in Rapid City stocking from the refrigerator to the floor. Her boss let her work most of her shift in the cooler. Id. "I had an awesome boss who understood my problems, my limitations and the effect of my medications. He was a kind man. He said you can stay in the cooler, stock shelves, take your time; we will go by your limitations." This went well for a long time and then he died. AR342. The job lasted a month after that.

         She could not tolerate being out of the cooler, walked out and never came back.

         Id.

         D. Medical Evidence.

         Regional Health Physician flow sheets show that Seay's weight ranged from 275 pounds on November 23, 2010, to 290 pounds on October 2, 2013. AR435.

         On August 5, 2012, Seay sought ER treatment for headache with nausea, "similar to previous headaches." She was treated with Percocet[4] and Phenergan.[5] AR394-95.

         On September 11, 2012, Seay sought ER treatment for dizziness, lightheadedness, and headache that started at work. AR375-79. The sole abnormal finding was obesity. AR379. On September 12, 2012, she saw Ajay Thakur, MD, to obtain a return-to-work form. She stated that she felt better except for generalized fibromyalgia pain. Dr. Thakur discussed with her the unclear nature of her illness and advised tests to rule out hypothyroidism. AR386.

         Also on September 12, 2012, she sought treatment at C&S Medical Clinic, where Marcia Snodgrass, NP, assessed shortness of breath, muscle weakness, fibromyalgia, and unspecified chest pain. AR401-02. Ms. Snodgrass prescribed Vicodin, [6] Tramadol, [7] and Lisinopril.[8] AR402.

         On October 10, 2012, C&S Medical Clinic saw Seay for muscle weakness, unspecified chest pain, shortness of breath, and a skin mass. AR403-04. Ms. Snodgrass refilled Lisinopril and Vicodin. AR404.

         On November 29, 2012, Seay sought ER treatment at the Spearfish Regional Hospital for a headache that was worse on the left side. Don Potts, MD, recorded a long history of migraine headaches, that she used to be on Vicodin and Tramadol and this decreased the frequency. He said symptoms were positive for photophobia, nausea, vomiting and neck stiffness. He said she had been diagnosed with fibromyalgia. Dr. Potts treated Seay with Toradol[9] and Phenergan IM. AR521.

         On December 12, 2012, Seay was seen at Behavior Management Systems for a Needs Assessment by Colleen Casavan, B.S., Therapist, and her clinical supervisor, Jenny Greslin[10], MSN, QMHP. AR510. She had been living in Kansas, recently returned to Spearfish, and wanted to resume CARE (Continuous Assistance, Rehabilitation, and Education[11] for individuals with severe and persistent mental illness) services. She was staying with her mother in Belle Fourche along with her one-year-old daughter and boyfriend. Id.

         She had discontinued CARE services in 2010. Ms. Casavan reported that she had a clear direction on what she wanted: "I need case management again.

         I have really bad anxiety, can't focus, and know I get 'sketched out' more than other people do. I don't trust anybody." AR510.

         Ms. Casavan reported that Seay feared her daughter could be taken away if the Department of Social Services (DSS) knew she returned to the area since parental rights to her two sons were terminated in 2010. She was trying to secure an apartment and might want to apply for disability again. AR510.

         Ms. Casavan summarized her prior treatment: in 2009 she had therapy, case management, and medication management. AR510. In February 2009 she was hospitalized at Rapid City Regional West (psychiatric hospital) because, after Child Protection Services (CPS) took her sons, she had a suicide plan. Id.

         In January 2010, angry with providers for not advocating to have her children restored to her custody, she terminated services. During this time she saw a private therapist in Black Hawk and thought the therapist was helpful until her therapist went against her in court. Id.

         Ms. Casavan summarized additional longitudinal history: psychiatric hospitalization at age 18 after becoming homeless and losing her daughter; hospitalization at age 15 for attempted suicide by overdose, followed by drug and psychiatric treatment. AR510. She had been treated with Depakote, Trazodone, [12] Zoloft, [13] Prozac, [14] and Abilify[15] and did not recall any psychotropic medication being notably helpful. Her records indicated non-compliance. She was currently on Tramadol and Vicodin for fibromyalgia. Id.

         Ms. Casavan reported that Seay had a history of five C-sections. AR510. Prior records showed that at age 15 she was beaten up in a group home, had a CT scan, and a pineal cyst was found but not followed up. AR510-11. She had had migraine headaches since age 11. At age 5 she broke her arm and at age 6 she broke her leg (falls). AR511.[16]

         By age 16 she had had three stepfathers. She had an older half-brother and younger half-sister. AR511. She reported a childhood marked by physical, emotional, and sexual abuse. Id. At age 7 a stepfather sexually abused her. Twice she lived with maternal grandparents. Id. She was in about seven foster homes from age 14-18. She was in two residential facilities and three detention facilities. She ran away multiple times. Id.[17]

         She gave birth to her first child at 16 while in foster care. She gave birth to four more children, and the youngest was a year old. AR511. She was married from 2004-06. During the marriage her husband was incarcerated and she had a boyfriend. Child Protection Services removed her sons due to reports of her boyfriend physically abusing them. Her rights were terminated and she exhausted her appeals in 2011. Id.[18]

         She moved to Rapid City, became pregnant with her [sixth] child, and shortly before that child's birth moved to Kansas. AR511. She "struggled" with public assistance in Kansas and returned to South Dakota, bringing her boyfriend. Id.

         Regarding substance use, Ms. Casavan recorded that Seay entered treatment at age 15 for multiple substance and alcohol abuse and she denied further use of drugs. AR511.

         Ms. Casavan related that Seay had several jobs, mainly cashiering, that she was unable to keep because the hours did not work with the day care schedule. She planned to keep looking for employment. AR512.

         Ms. Casavan reported that appearance, affect, and posture were appropriate. Mood was anxious, appropriate, depressed, and relaxed. Thought content was paranoid with suicidal ideation. Body movements were appropriate. AR512.

         Ms. Casavan reported that remote memory was fair, insight was poor, judgment was fair, and energy level was moderate. AR512-13. Ability to manage daily living activity and make major decisions was fair. AR513. Speech was appropriate. Thought process was concrete, organized, and rigid. She related to the examiner in a way that was "average." Id. Facial expressions were appropriate and provocative. Id.

         Ms. Casavan discussed a diagnostic formulation of "Mood Disorder NOS." AR513. She listed symptoms that supported the diagnosis: anxiety, difficulty concentrating, poor focus, excessive worry on a daily basis, restlessness, and extreme irritability. Id. Seay reported minimal symptoms of depression. Id. She reported at times experiencing racing thoughts, distractibility, and poor decision-making, but not the extreme ups and downs that might indicate a strong bipolar disorder diagnosis at this time. Id. A "rule out of personality disorder NOS" was appropriate as Seay had a long history of relationship conflicts including personal and work related, and inappropriate behavior within the community, specifically the court system. Id. She admitted to deceitfulness and manipulation. Id.

         Ms. Casavan listed Seay's strengths: she sought services on her own and recognized the importance of finding a sense of stability to improve her and her daughter's life. She was very independent and articulated her needs well. Although she struggled with trusting others she seemed willing to seek the help she needed. AR513.

         Under the heading "SPMI" (severely and persistently mentally ill) Criteria, introduced by the general criterion, "The individual's severe and persistent emotional, behavioral, or psychological disorder has resulted in at least one of the following, " Ms. Casavan checked these boxes: "A single episode of psychiatric hospitalization" and "Has undergone psychiatric treatment more intensive than outpatient care more than once in a lifetime." Under the category "impaired role functioning, " requiring the presence of three criteria, Ms. Casavan checked: "Is unemployed or has markedly limited job skills and/or poor work history;" "Lack of social support systems in a natural environment;" and "Requires public financial assistance for out of hospital maintenance." AR514. Ms. Casavan recommended the CARE Program -Intensive. Id.

         On December 27, 2012, Ms. Casavan saw Seay to develop a case service plan tailored around securing income to support her and her daughter, managing her anxiety through case management, medications through her primary care provider, and therapy. AR505.

         On December 29, 2012, Seay sought treatment for migraine headache at the Spearfish ER. She had photophobia, said she was unable to keep anything down, and endorsed eye pain. On exam she had a facial droop on the right side; the patient said this was normal and had occurred during the delivery process. AR423.

         On January 15, 2013, Samantha Martinez, BMS case manager[19], said Seay's appearance was disheveled and her mood was anxious. She wanted Martinez to go to a meeting with her at the DSS office where she was applying for a cash credit program but was hoping to not have to work, volunteer, or apply. Martinez told her she had to comply with the regulations. AR503. Seay wanted Martinez to sign a document so she would not have to work, volunteer, or apply, but Martinez told her that was not an option since her case was newly opened; she suggested that she could write a letter that Seay was receiving services. Id.

         On January 22, 2013, Seay called Ms. Martinez threatening to pack her van and leave because no one was helping her. AR500. Martinez explained that she was being treated the same as everyone else. Seay again wanted Ms. Martinez to sign a document stating that because of her mental disability she was not able to work. Ms. Martinez suggested that Seay sign a ROI for her Needs Assessment to be released to DSS. Id. Seay did not want to release it: "[D]o you not understand.... This is how I lost my kids last time why would I do that same thing again." AR500-01. Seay told Ms. Martinez that she was not allowed to come to her house, to stay away, and then hung up. AR501.

         On January 23, 2013, Seay sought treatment for migraine headache at the Spearfish ER. AR525. She stated she'd had one a month for three months. She said that Tramadol made the headaches much less frequent but she was out. Id. Her blood pressure was 140/100. Lee Bailey, MD, treated her with Toradol, Benadryl, [20] Zofran, [21] and IV fluids. He gave her a small amount of Tramadol and Vicodin. Id.

         On January 28, 2013, Forrest Brady, MD, Regional Health Physicians in Spearfish, saw Seay for the first time. AR431. She reported migraines, a right wrist cyst, fibromyalgia, anxiety, hip and back pain. Id. Dr. Brady recorded that she had an extensive history involving fibromyalgia diagnosed by Dr. Steven Frost at the pain clinic in 2010. Id. He had recommended injections but Seay had needle phobia and chose not to. Seay told Dr. Brady that her headaches were markedly better so long as she took Tramadol or Vicodin regularly. She stated that she took Promethazine for migraines, which were provoked, frequently, by anxiety. Id. Dr. Brady diagnosed Anxiety State, unspecified; Chronic Pain Syndrome; and Lumbago. AR432. Dr. Brady noted that Seay was accompanied by her mother. Id. He said she weighed 281 pounds, BMI 42.7, and was obese. He placed her on Cymbalta[22] and gave Seay a prescription for Hydrocodone[23] prn for any pain not covered with the Cymbalta. AR433.

         On February 11, 2013, Dr. Brady said that on Cymbalta 30 mg. Seay was using a little less Vicodin. She felt quite a bit better and more wakeful. AR429.

         On February 14, 2013, Shannon Howard, LPC, QMHP[24], BMS therapist, reported her and Seay's first session. AR516. The focus was grief and loss over the loss of her two sons to the State. She feared this could happen with her daughter, was stressed and worried all the time. Id. Ms. Howard assessed SPMI criteria, which were unchanged. AR516-17. Ms. Howard and Seay planned counseling 1-4 times a month, and stated the measure of success:

She will know she is successful when she is able to go out in public and not look over her shoulder, which she does all the time; when she is not isolating as much; and when she feels she has dealt with her grief and is not triggered by visual reminders to the point that she is overwhelmed with sadness each time.

AR508-09.

         On March 4, 2013, Ms. Howard recorded that Seay felt trapped in her home out of fear of seeing people she did not want to see. She had gained little insight. She did refrain from impulsively moving forward with a homeless man she met on line. AR596.

         On March 6, 2013, Ms. Casavan reported that Seay was "very disturbed" because an agency contacted her for help finding her ex-husband to serve civil papers. AR495. The State was also pressuring her for information about the father of her child as she was receiving assistance and this was a requirement. Id. She said she wanted nothing to do with the father, would not say who he was, and planned to talk with her DSS worker about it. She lived in constant fear of CPS entering her life again. Id.

         On March 12, 2013, Ms. Casavan reported that Seay "focused on her recent lottery win" and the stress of deciding what to do with it. AR493.[25]

         On March 15, 2013, Dr. Brady saw Seay for a complaint of "bad migraines." AR422. She said her back pain was better on Cymbalta, "knows when she misses a dose." She gave a history of "[h]umongous stress and anxiety." She was interested in seeing a chiropractor for her migraines. Id. Dr. Brady again assessed chronic pain syndrome; anxiety state, unspecified; and headache. He agreed to refer her to a chiropractor. Dr. Brady prescribed medications including Cyclobenzaprine, Cymbalta, and Hydrocodone, noting that she was "quite careful" with use of Hydrocodone. Id.

         On March 19, 2013, Seay had therapy with Shannon Howard. AR491. On March 20, she had a session with Ms. Casavan. AR489. On March 26, 2013, she had a therapy session with Ms. Howard. AR486-87.

         On April 1, 2013, Seay met with Ms. Casavan. AR485. She said she was seeing a chiropractor. Id.

         On April 15, 2013, Dr. Brady assessed her conditions, reported that she weighed 279, and reported their discussion of her possible pregnancy and how to address it. AR414.

         On April 15, 2013, Ms. Casavan recorded Seay's complaint of a lot of anxiety, said she was in a pleasant mood but was no longer on speaking terms with the girl she developed a recent friendship with, who has been staying with Seay, along with her son. AR481. Seay would not allow her back into her home while drunk, and the girl accused her of kidnapping her son. Id. No charges were made. Id. Ms. Casavan commended Seay for ending the friendship. Id. Ms. Casavan stated, "Katrina also shared she found out she is five weeks pregnant." Id. "She has concerns about having to get off pain killers due to her chronic pain." Id.

         On April 16, 2013, Ms. Howard recorded that Seay had met a man on the internet and now she was pregnant with her "6th whoops" pregnancy. AR479. She had immediately weaned off medication but said she could not function without it. "Katrina was very disorganized in thought today and scattered from subject to subject, seemingly overwhelmed with this news." Id.

         On April 24, 2013, Seay saw Regan Hill, MD, Regional Health Physicians, Spearfish, for obstetric care. AR451.[26]

         On April 26, 2013, she met with Ms. Casavan to talk through problems and conflicts. AR477.

         On May 5, 2013, Seay was treated at the Spearfish ER for miscarriage. AR527.[27]

         On May 14, 2013, Ms. Howard provided therapy and helped Seay process her loss. Ms. Howard reported that Seay spoke in a slow, deliberate, focused manner; had a flat affect; and had met a man amidst this crisis. "Katrina will not financially help this man come see her." AR474-75.

         On May 21, 2013, Seay met with Ms. Howard. She was upset and angry because she saw her old therapist, involved in a past child custody case, in the waiting room. Ms. Howard helped her work through the anxiety. AR473.

         On May 22, 2013, Seay was brought to the ER by emergency medical services after she swerved to miss an animal and ended up in three inches of water in the ditch. Dr. Krista Birkelo wrote, "She is terrified of water and had an anxiety attack." She had paraspinal tenderness, was alert and oriented with intermittent confusion. The clinical impression was concussion and neck strain. AR530.

         The CT of her thoracic spine showed multiple small Schmorl's nodes, small anterior and lateral osteophytes, and mild levoscoliosis. AR534.

         Cavum septum pellucidum[28] was revealed by a brain CT in the course of workup after her May 22, 2013 car accident. AR533.

         On June 4, 2013, Skylar Bransky, BMS CARE Emergency Services, reported a 54-minute phone call from Seay. AR467. Seay stated she wanted to leave her house, take off and run away from everything. AR469. She'd had an argument with the car mechanic about getting her car back, the police came to her door at 6:30 p.m., and she would not let them in. They said they would get a warrant, and she finally talked to them. Id. They told her that her only option to get her car back was small claims court. They wanted to know if she was going to hurt herself. She said no, and they left. On May 31, 2013, she had gone to tow her car away from the mechanic because he had not fixed it and she needed to turn in her rental car. Id. He called the police and she spent the night in jail. Ms. Bransky reported that Seay agreed that Ms. Bransky and Ms. Howard would come up with a plan of action before she resorted to disappearing. Id.

         On June 7, 2013, Heather Armstrong, LPC, QMHP, Behavior Management Systems, reported that Seay was having stress related to law enforcement, her mom, a limited social support system, and a mechanic not fixing her car. AR466. Seay stated that police had come to her house twice this evening because of a theft her mother reported via the internet. Seay said she would not answer the door, she feared arrest and loss of custody of her daughter, and this was creating significant anxiety. Id. She denied stealing money from her mother. She talked about relocating to an area where she could address her anxiety in a more supportive environment. Id.

         On June 10, 2013, Ms. Howard reported that Seay was very emotional, her face was flat, and her emotions were blunted. Her daughter was with her and Seay showed patience and proper parenting skills. AR471. Her Camaro was still in the possession of the mechanic. She had given him half the money to fix it, and he would not fix or return the car until he received the rest of the money for repair. Id. Her van was broken down, she had used her insurance money to fix the Camaro, and had to return the rental car. She had been arrested for disorderly conduct when she went to get her car and had to be in court on June 28, 2013. Id. Ms. Howard helped her process her irrational thoughts about leaving Belle Fourche just because of her mom. It was decided that Seay would "focus on what she can control, Zy, herself, and finding a way to fix the car." AR471.

         On June 18, 2013, Ms. Howard reported that Seay was excited because "a businessman" paid for her car to be towed and repaired, lent her a car, charged her only $1, 000, and asked her to pay what she could. AR463. Seay "processed her disbelief that there were good people out there." Id.

         On June 27, 2013, Ms. Casavan and her clinical supervisor, Randy Allen, reported a six-month review. AR577-79. During this period, Seay had found housing, accessed DSS and other programs, began therapy, and received medications from her primary care physician. AR578. She was pregnant, miscarried, and processed those feelings fairly well with her therapist. Id. In June she was in crisis over financial difficulties with her vehicle; was in conflict with her mother, who accused her of theft via the internet; and there was police involvement and an arrest for disorderly conduct. Id. She indicated she still feared Child Protection Services involvement, but had been successful avoiding further involvement. The BMS reviewed listed factors constituting medical necessity for continued services: Seay struggled with ongoing anxiety, struggled with problem-solving skills and poor decision-making, had a limited support system, and struggled with interpersonal relationship issues. Id. Without services she could turn to impulsive decision-making leading to legal issues, CPS involvement, and setback in the progress made toward mental health recovery. Id.

         On July 9, 2013, Ms. Howard recorded that the man Seay dated for a week was in jail for violating a TRO. "When he is bailed out she will let him move in...."AR572. "Therapist challenged Katrina that ... she must focus on the red flags she sees instead of the feelings. Therapist also reminded her she has only known him for one week...." AR571.

         On July 17, 2013, Ms. Howard wrote, "She did listen to her instincts and did not use her car title for bail but instead used the money he had which he was upset about but later understood. Her issues include his smoking, drinking, and potential for wanting to use her money...." AR569. On the other hand, he was "good with Zy, goes to work, a good mechanic, and treats her nice." AR570.

         On July 18, 2013, Ms. Casavan reported that this man stole gas from her vehicle, tried to steal her pain medications, and she filed a police report. AR568. "She seems to realize she needs to get to know someone before allowing them to stay with she [sic] and her daughter or try to fix their issues." Id. Ms. Casavan added that Seay had made it to court last week regarding her disorderly conduct charge "involving heated argument with an officer while trying to get her car back from a mechanic." Id.

         On July 23, 2013, Ms. Howard wrote that she continued in the relationship, that the man had agreed to treatment, and Seay hoped he could get his drinking under control. AR566.

         On July 25, 2013, Ms. Casavan and Seay discussed the relationship with this man and her lack of financial stability. Seay was in the pre-contemplative stage with regard to finding employment. AR564.

         On July 30, 2013, Seay sought ER treatment for a migraine. She stated that she'd had a headache more than a week, had sought chiropractic treatment earlier in the day without improvement, and had vomited four times. AR535. A pregnancy test was negative. AR536. The ER provider treated her with Toradol and Zofran. Id.

         On August 19, 2013[29], Ms. Casavan called Seay, who said she was doing "okay, " and reported that there was a warrant for her arrest for failing to appear in court last month. AR562. Ms. Casavan attempted to offer solutions "but Katrina struggled with accepting any responsibility with the situation nor how to address it." Id. Ms. Casavan wrote that the case manager "encouraged [Seay to] consider having her mother watch her daughter in case she needs to go to jail, " but Seay stated "she would rather have CPS step in than have her mother watch Zi." Id. Seay said she had little money and had used most of her resources and the communities'. Ms. Casavan offered to travel to Belle Fourche to see her, but Seay did not answer the phone when Ms. Casavan called back to set a time. Id.

         On August 21, 2013, Seay returned Ms. Casavan's call and spent a great deal of time talking about finding affordable car insurance.[30] AR560. Ms. Casavan asked about the warrant for missing her court date. Seay did not want to "figure" that out right now. Ms. Casavan explained the consequences and Seay said little. Id.

         On August 27, 2013, Ms. Howard wrote that Seay reported ending the relationship with "Billy." AR557. Seay talked about her fears of being alone, of being like her mom, and bringing men in and out of her daughter's life. Seay reported feeling overwhelmed, alone, and frustrated. They agreed that she would try to stop going on websites to find men. Id.

         On August 28, 2013, Ms. Casavan reported, "Katrina said her TANF has been shut off for the month of September due to not complying with child support paperwork identifying the father of her child. She is very angry about this...." AR555. She subsequently was told that if she completed her paperwork by Friday she would receive her benefits again. Seay expressed anxiety about having her daughter's father involved in the future. Id.[31]

         On August 30, 2013, Seay told Ms. Casavan she was "a little happy as she met someone on-line. She does seem to have some insight as she recognizes this may not be a good place to start a relationship however is in the precontemplative stage of change." AR553. Seay was ambivalent about her car dilemmas, whether to get rid of one to be able to repair the other. "CM followed up on Katrina's plans regarding her missed court date however she doesn't plan to address this at this time despite negative consequences that may follow." Id.[32]

         On September 10, 2013, Ms. Howard reported that progress was minimal, and isolating had increased. AR540. Ms. Howard assessed overall progress as "unsatisfactory." "Katrina has had many issues that have taken away from her ability to meet her goals.... Without continued services Katrina is most likely to report an increase in mental health symptoms." Id.

         On September 12, 2013, Ms. Casavan reported that Seay had requested a meeting in the park instead of her apartment, which was being inspected. AR549. She felt too anxious to be in her apartment "as she doesn't like people in her home." There were several things she had been told to fix that she had not gotten to. "CM encouraged her to take responsibility by following through and addressing concerns before they turn into issues leading to increased anxiety. Katrina was receptive however did not commit to changing her behaviors." Id.

         On September 17, 2013, Ms. Howard reported a therapy session. AR547. She "challenged irrational thoughts ... and encouraged Katrina to take things slow with relationships...." AR546.

         On September 24, 2013, Ms. Howard reported a therapy session in which Seay tearfully processed the relationship with the man she was with when her children were taken. AR545. Ms. Howard noted that Seay was "struggling that she still has feelings for him." Id. "The session ... focused on these feelings of loneliness and not being understood." Id. The plan: "Katrina will try to get out of the house once this week." Id.

         On September 27, 2013, Seay sought ER treatment for "acute on chronic back pain" after moving furniture at her apartment. AR590. She had difficulty moving her right leg due to pain. She was treated with Toradol and Norflex, and given a prescription for Flexeril. She had a prescription for Norco at home. Id.

         On October 2, 2013, Ms. Casavan wrote, "Katrina reports that she has been struggling with severe anxiety related to stressful situations." AR543. She had gone off her Cymbalta when she miscarried and had a PCP appointment to get back on. Id. She reported an extensive history of back issues. Id.

         On October 2, 2013, Dr. Brady referred Seay to an obstetrician, with the note: "Pregnant, trying to decide if she can continue with pregnancy." AR411. Height and weight were 68 inches and 290 pounds. AR409.

         On October 8, 2013, Ms. Howard reported that therapy focused on Seay's issues with her mother. The plan: "Katrina will think about attending a social at her daughter's head start program to meet other moms and try to build social support." AR647.

         On October 14, 2017, Ms. Casavan reported that Seay continued to have car issues, hoped SSI would resolve this, and seemed disinterested in other alternatives. AR645. She had been able to get back on medication and was starting to feel that she was managing her stress better. She was afraid to renew her driver license due to the outstanding warrant. Id. Regarding a former alcoholic boyfriend: "She said she plans to drop him off at his halfway house today." Id. Ms. Casavan supported this. She said that due to CARE restructuring, Seay was to be assigned to a new case manager. Id.

         On October 15, 2013, Ms. Howard reported that the focus of therapy was the male friend who was in rehab. AR643. "Katrina will not accept phone call[s] from this man this weekend as she is gaining insight that she puts herself around others that are needy to avoid rejection...." Id.

         On October 22, 2013, the new case manager, Dana Studt, reported that Seay discussed stressors revolving around transportation, and struggled to follow through with ADLs like bathing, cleaning, and laundry. She often felt overwhelmed. AR641.

         On October 29, 2013, Ms. Howard reported the focus of therapy was Seay's disappointment in her mother and a growing friendship with a female friend, Jenna. AR639.

         On November 5, 2013, Ms. Howard worked with Seay on the pros and cons and potential boundaries she needed to set so as not to be drawn into a relationship she did not want. AR637.

         On November 8, 2013, Ms. Studt helped Seay find a dentist who took Medicaid. AR635. Ms. Studt wrote that Seay had concerns about anxiety levels and Ms. Studt helped her compile a list of concerns to take to her PCP at an appointment this afternoon. Id.

         On November 8, 2013, Seay saw Dr. Brady. AR585. She wanted medication to get through the anxiety of seeing the dentist. She told Dr. Brady that the anxiety about just making an appointment was almost too much for her. Id. "She apparently does not always think things out well at the time...." Id. Dr. Brady increased her Cymbalta to 90 mg. AR588. He prescribed Lorazepam[33] 1 mg. an hour before the procedure and she could repeat at the time of the procedure if she needed to. Id.

         On November 12, 2013, Seay saw Ms. Howard, reporting a plan to get a guy to buy a car that she would use. She had mixed feelings about this, and Ms. Howard reviewed pros and cons and how to maintain boundaries. AR633. Also on November 12, Shawn Bitz of BMS reported that "Katrina called in tears" because her dentist said to take four Lorazepam tablets before her visit, and she did. AR631. The dentist appointment was then canceled. She stated that she had been "out of control and sedated" all day and her mother took care of her child but left before Seay was ready for her to leave. Id. "Katrina called in an almost panicked state, afraid she would not be able to take care of her child." Id. She was able to walk, was aware of her surroundings, knew the date and day, and calmed down in the course of the conversation. Id.

         On November 13, 2013, Ms. Studt spoke with Seay on the phone after Seay failed her appointment. Seay said she had taken 5 mg of Lorazepam the day before, for a dentist appointment, and blacked out. Seay said she would call her case manager when she felt recovered enough to drive. AR628.

         On November 22, 2013, Ms. Studt wrote that she "phoned Katrina back after she left CM a frantic voicemail stating that she needed help." AR627. Seay was currently pulled over, with her daughter and a friend, and a policeman wanted to arrest her on her bench warrant. Seay demanded that Ms. Studt drive to Belle Fourche to either give her $275 to pay the fine, to keep her from being arrested, or to take her daughter. Id. Ms. Studt reviewed the limitations of case management. Seay was not receptive, again made demands, and Ms. Studt "enforced boundaries." Seay hung up on the CM. Id.

         On November 25, 2013, Ms. Studt reported a phone conversation with Seay, who said she was calmer today and had arranged with the police to address the warrant. Seay told Studt that she should have come on Friday, when told to, as the case manager was her primary support. Ms. Studt "validated feelings, " reviewed Seay's role in this, and Seay "hung up on CM." AR625.

         On November 26, 2013, Ms. Howard reported a conversation in which Seay related that she had been pulled over for a license plate violation and was informed that she had a bench warrant. AR623. She spent 45 minutes trying to finding someone to give her $200 or watch her child, and she was not able to get ahold of her mother. Id. Seay said this resulted in her "losing it on Dana" and was unsure if the relationship could be fixed. She found out she was getting $15 too much for housing and would be evicted if she could not pay $200 by the end of the day. Id. This put her in "emotional tailspin" and "she fled to Keystone" to the house of a man she has been talking to on a dating site. "Everything was perfect about the night except the location of where he is living and lack of running water." Id.

         On December 9, 2013, Ms. Studt stated that Seay acknowledged behaving poorly during the last interactions with her CM. AR616. Seay was again seeing someone she met on a dating site. "CM expressed concern that Katrina's boyfriend is already living with her and expressed possible safety concerns regarding her daughter. Katrina...agreed to not allow her boyfriend to have unsupervised contact with her daughter until she knows him better." Id.

         On December 10, 2013, Ms. Howard stated the main features in a therapy session:

Katrina reports that things with Mike have evolved to going up there for Thanksgiving and him coming home with her.... He has been with her a few weeks and she has no issues. She feels he is motivated to get a job, willingly looks for work, and is helpful with Zy and supportive of her. One concern is his cigarette and drinking habits that she is supporting now while he looks for work but feels he is communicating that he ... will reimburse her.

AR619. Ms. Howard encouraged her to "please take things slower...." She met Mike "who was polite and appeared attentive to Zy." Id.

         On December 11, 2013, Dr. Brady recorded that Seay was doing much better on Trazodone for sleep and planned to use Trazodone for her next dental appointment. AR925. Assessments included chronic pain syndrome; anxiety state, unspecified; sleep disturbance, unspecified. AR927. He continued Hydrocodone for pain. Id.

         On December 16, 2013, Ms. Studt helped Seay "process stressors" on the phone. AR617. She stress the importance of "addressing things in a timely manner as this tends to be easier than fixing them down the road." Id. "Katrina did not agree to apologize for her behavior today." Id.

         On December 17, 2013, Ms. Howard reported that Seay expressed frustration and anger that "Mike has left.... She is also reporting she is pregnant due to a mix of antibiotics while on birth control. She is upset that mom was willing to buy Mike liquor, cigarettes, a phone card and drive them up there to drop him off yet she never offers to help her financially." AR614. Now she was "strapped for cash as he contributed nothing." Seay was discouraged and upset. Zy was extremely disruptive in session. Id.

         On December 23, 2013, Ms. Studt stated that Seay continued to have difficulty taking responsibility but did acknowledge her part in her current situation, adding, "I just don't want to talk about that right now." AR612. She vented and expressed some sadness that her relationship was over and her former boyfriend was already living with someone else. Id.

         On January 7, 2014, Ms. Howard observed that Seay looked "high" and upset. AR610. Seay stated that she had so much anxiety having to leave her apartment that she took three Valium instead of the normal two. Seay stated that her pain was so high, and anxiety so high, she was having a hard time functioning at all. Id. She said her house was not in the normal clean state as she spent time scrubbing her mattress and had thrown out all sheets. Id. She was upset that she had not protected her daughter and felt guilty that she allowed this man into her home. Zy had no idea what happened, was not alone with the man, and did not witness anything. Seay reported that she was raped in her bedroom, a knife was involved, and she would not go into further detail but blamed herself for letting him in. Id. Now she was taking care of Zy but that was it. Id. "She crashes when Zy sleeps and has not been able to leave the house yet reports not even feeling safe in her house as it is where the rape occurred." Id. "She states that the cops have informed her there is not enough evidence to press charges as it is her word against his." Id. "She had difficulty gaining insight due to being on higher dose of medication" Id.

         On January 21, 2014, Ms. Howard reported therapy focusing on how Seay could get her life back on track and pull herself out of a financial mess. AR608. She did not want to discuss the rape. She would focus on not bringing someone into her life to ...


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