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Wyman v. Berryhill

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

August 22, 2018

TERESA B. WYMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff, Teresa B. Wyman, seeks judicial review of the Commissioner's final decision denying her application for social security disability and supplemental security income disability benefits.[1]

         Ms. Wyman has filed a complaint and has requested the court to reverse the Commissioner's final decision denying her benefits and to enter an order awarding benefits (Docket 17). Alternatively, Ms. Wyman requests the court remand the matter to the Social Security Administration for further proceedings. Id.

         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).

         FACTS [2]

         A. Statement of the Case

         This action arises from plaintiff, Teresa B. Wyman's, application for SSDI and SSI filed on September 21, 2014, alleging disability since August 1, 2009, due to borderline personality disorder, fibromyalgia, major depressive disorder recurrent, depression, migraines, insomnia, anxiety, post-traumatic stress disorder (“PTSD”), interstitial cystitis, irritable bowel syndrome with chronic constipation, right knee arthritis, gastroesophageal reflux disease (“GERD”), and extreme fatigue. AR27, 227, 237, 281, 283 (citations to the appeal record will be cited by “AR” followed by the page or pages).

         Ms. Wyman's claim was denied initially and upon reconsideration. AR140, 148, 155. Ms. Wyman then requested an administrative hearing. AR162.

         Ms. Wyman's administrative law judge hearing was held on April 18, 2016, by Brenda Rosten (“ALJ”). AR48. Ms. Wyman was represented by other counsel at the hearing, and an unfavorable decision was issued on September 2, 2016. AR21.

         At step one of the evaluation, the ALJ found Ms. Wyman had not engaged in substantial gainful activity (“SGA”), since the date of her alleged onset of disability, August 1, 2009, and that she met the insured status for her SSDI claim through March 31, 2015. AR26.

         At step two, the ALJ found Ms. Wyman had severe impairments of obesity, advanced chondromalacia of the right knee, fibromyalgia, chronic abdominal pain secondary to polycystic ovary syndrome, major depressive disorder, borderline personality disorder and PTSD. AR27.

         The ALJ also found Ms. Wyman had medically determinable non-severe impairments of gastroesophageal reflux disease and migraines. AR27.

         At step three, the ALJ found Ms. Wyman 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 § 416.920(d), 416.925, and 416.926) (hereinafter the “Listings”). AR27. The ALJ found Ms. Wyman had mild limitations in activities of daily living, moderate limitations in social functioning, and moderate difficulties with concentration, persistence or pace. AR28. The ALJ noted Ms. Wyman received inpatient psychiatric care at Avera Behavioral Health for one week in June 2015, but found it was not an episode of decompensation of extended duration. AR28.

         In evaluating whether Ms. Wyman met or medically equaled a Listing, the ALJ stated it examined all the listed impairments and specifically considered Listings § 1.02A (major dysfunction of a joint -major peripheral weight bearing joint such as the hip, knee or ankle) and § 1.02B (major dysfunction of a joint-major peripheral joint in the upper extremity, i.e. shoulder, elbow or wrist/hand). In evaluating whether Ms. Wyman met or medically equaled a Listing the ALJ did not state in the decision whether it considered if Ms. Wyman's fibromyalgia medically equaled a Listing (for example, Listing § 14.09D in the listing for inflammatory arthritis), or whether Ms. Wyman's fibromyalgia medically equaled a Listing in combination with at least one other medically determinable impairment. AR27-29. (The commissioner disputes that this sentence constitutes a material fact).

         The ALJ also considered whether Ms. Wyman met Listings § 12.04 (affective disorders); § 12.06 (anxiety disorders); and § 12.08 (personality disorders). AR27. The ALJ found Ms. Wyman did not meet any of these listings because she failed to satisfy the “B” or “C” criteria for these mental impairments. Id. (These facts regarding the ALJ's consideration of the mental impairment Listings were not noted or stipulated to by the parties, but are noted by the court.).

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

less than the full range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except: lift and/or carry 10 pounds occasionally and less than 10 pounds frequently. Sit about 6 hours in an 8-hour workday, and stand and/or walk combined for about 4 hours in an 8-hour workday. She cannot operate foot controls with her R lower extremity. The claimant can never climb ladders, ropes or scaffolds, but can occasionally climb ramps and stairs using a handrail. The claimant can occasionally balance, and stoop, and can rarely (defined as 1-5% of a workday) kneel, crouch, and crawl. She can have no exposure to work around hazards, such as unprotected heights and fast and dangerous moving machinery. Mentally, the claimant is limited to simple tasks. She can maintain concentration, persistence and pace for 2-hour segments. She can respond appropriately to brief and superficial interactions with the general public.

AR29.

         The ALJ considered the mental medical source statement completed by Ms. Wyman's treating mental health PA-C, Rachelle Broveleit, and noted Ms. Broveleit's opinions, if accepted, would likely support meeting a Listing for Ms. Wyman's mental health impairments. AR35-36. The ALJ gave Ms. Broveleit's opinion little weight because she was a non-acceptable treating medical source, [3] because her opinion appeared to be based on Ms. Wyman's subjective complaints, and because the limitations were disproportionate to Ms. Wyman's level of treatment. AR36-37. The ALJ also noted Ms. Broveleit completed the form with Ms. Wyman's assistance and the conclusions appeared to be based on subjective complaints and not objective findings. AR36-37. The ALJ's credibility finding regarding Ms. Wyman's statements concerning the intensity, persistence and limiting effects of her symptoms was that they were not “entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” AR30. The commissioner disputes that this sentence constitutes a material fact.

         Based on the RFC determined by the ALJ, the ALJ found Ms. Wyman was not capable of performing any past relevant work. AR37-38.

         At step five, relying on the testimony of a vocational expert, the ALJ found there was other work Ms. Wyman could perform including final assembler with 250 jobs in the region, printed circuit board screener with 300 jobs in the region, and stone setter with 250 jobs in the region. AR38-39. The vocational expert defined the region to include North Dakota, South Dakota and Minnesota. AR39.

         Ms. Wyman timely requested review by the Appeals Council (AR214), and submitted new and material evidence to the Appeals Council consisting of:

a. Medical records from Sanford Clinic Family Medicine: letters from Ms. Wyman's treating physician dated September 6, 2016, and October 14, 2016, in which Dr. Jensen stated that due to Ms. Wyman's complex conditions and chronic pain she did not recommend that Ms. Wyman work at this time, and that Ms. Wyman had been unable to work the last six years due to her medical problems. See AR16-20. The Appeals Council stated it did not think this evidence showed a reasonable probability of changing the outcome of the decision so it did not consider and exhibit the evidence. AR2.
b. AR20 is blank. Before any of Ms. Wyman's additional evidence, AR8-20, was presented to the Appeals Council Officers who declined to review the ALJ's decision, an SSA employee scanned the blank side of Dr. Jensen's letter on this one page (AR2-4, 20). Thus, the Appeals Council only saw AR20 as a blank sheet.
c. Ms. Wyman will attach the entire two page letter from Dr. Jensen, including the printed side of AR20 to her brief, but the printed side was not before the Appeals Council.[4]
d. Student Loan Discharge Application and finding of total and permanent disability by the U.S. Department of Education, dated November 1, 2016, which included a physician's certification from Dr. Jensen stating Ms. Wyman was unable to perform substantial gainful activity and identifying numerous mental and physical limitations. AR9-12. The Appeal Council stated because the evidence was dated November 1, 2016, it did not affect the decision, which was decided September 2, 2016. AR2.

         The Appeals Council denied Ms. Wyman's request for review making the ALJ's decision the final decision of the Commissioner. AR1. Current counsel then began to represent Ms. Wyman and this action was timely filed.

         B. Plaintiff's Age, Education and Work Experience

         Ms. Wyman was born in February, 1974, and completed four or more years of college. AR237, 279.

         The ALJ identified Ms. Wyman's past relevant work as a secretary, resident care aide, child monitor, stock clerk and fast food worker. AR38.

         The state agency found Ms. Wyman's work at DSS and Wal-Mart to be unsuccessful work attempts. AR305.

         Ms. Wyman also identified part-time work during a six-week assessment at Goodwill Industries in 2015 arranged by Vocational Rehab Services. AR342, see also AR360.

         C. Relevant Medical Evidence

         1. Sanford Family Medicine Clinic

         Ms. Wyman was seen on April 27, 2008, for abdominal pain, fever, diarrhea and nausea. AR409. She was referred to a specialist and ultimately diagnosed with biliary dyskinesia or chronic inflammation of her gallbladder. AR401, 403.

         Ms. Wyman was seen on November 3, 2008, with continued abdominal pain and fever. AR441. She reported fatigue, aches all over, nausea and occasional vomiting, and her gallbladder had been removed six weeks earlier. AR441. She was taking Prozac for depression but did not feel it was related to the abdominal pain, although she had contacted the clinic because she did not feel the Prozac was working and her dosage had been increased on October 15, 2008. AR432, 441.

         Ms. Wyman was seen on April 14, 2009, with continued abdominal pain symptoms, additional labs were ordered, but Glenn Ridder, M.D., noted many things had been tried without avail. AR452. Dr. Ridder wrote, “she is ‘sure' there is something wrong and I am not so sure.” AR452. Dr. Ridder then wrote, “May need to go back to the GA doc for further eval and tx.” AR452. The lab test revealed abnormal findings in bacteria and mucus, but the record includes no discussion of the abnormal results. AR458. Dr. Ridder's office contacted her on April 15, 2009, and told her the tests were normal. AR466.

         Ms. Wyman contacted the clinic on July 23, 2009, and requested that she be switched back to Zoloft from Prozac because “she feels crazy and not right at all.” AR485. Her Prozac was discontinued and Zoloft was prescribed. AR485.

         Ms. Wyman was seen at the Sanford Family Medicine Clinic on November 9, 2009, for follow-up of depression and anxiety and her symptoms were not well controlled with her medications. AR697. Complaints included crying, headaches, poor motivation, no energy, whole body pain, suicidal ideation without a plan, and being unable to work with her fibromyalgia. AR697. The mental status exam was recorded as normal. AR698. Levaquin, Cymbalta, and Ultram were added with samples given for each. AR698.

         Ms. Wyman was seen on November 24, 2009, for her depression and reported no longer being suicidal, but was not a lot better yet. AR497. Dr. Ridder stated, “She is having some improvement with the depression. She is not suicidal any longer at this time but not a lot better yet.” AR497. Dr. Ridder found in the mental status exam that she was oriented, with normal thoughts, speech, affect, and mood. AR497. He stated, “She is almost smiling.” AR497.

         On January 12, 2010, Ms. Wyman contacted the clinic to request samples of Cymbalta because she did not have insurance or any money. AR695-96.

         Ms. Wyman was seen on March 8, 2010, and she reported that she continued to have some suicidal ideation, lethargy and insomnia. AR694-95. Her mental status exam was again recorded as normal, but her Cymbalta dosage was increased to see if symptoms improved. AR695. Dr. Ridder stated that Mr. Wyman “does look better than I have seen her for quite a while.” AR695. He described Ms. Wyman as alert, oriented, and having normal mood and thought content. AR695.

         Ms. Wyman contacted the clinic on March 25, 2010, and requested that her Cymbalta dosage be increased because the current dosage was not helping much and asked for something to help her sleep because Benadryl and melatonin were not helping. AR529. Her Cymbalta dosage was increased and Ambien prescribed for sleep. AR530. Ms. Wyman reported improved symptoms after adding Abilify on April 15, 2010. AR538.

         Ms. Wyman was seen on May 26, 2010, for complaints of bilateral leg pain from hips down. AR691. She said that she had arthralgia/fibromyalgia for several years and her pain was in all extremities especially in the legs the last few weeks. AR691. Her diagnoses at that time included depression, fibromyalgia, borderline personality disorder, PTSD, migraine, GERD, and insomnia. AR691. Ms. Wyman said she had had tenderness and limited range of motion (“ROM”) of both knees on exam. AR691. Ms. Wyman's back had good flexion and extension, a normal range of motion, and some mild diffuse tenderness. AR691.

         Ms. Wyman was seen on September 30, 2010, for depressive symptoms, which included depressed mood, agitation, anhedonia, anxiety, diminished interest in activities, diminished concentration, fatigue, feelings of worthlessness, insomnia, recurrent thoughts of death, suicidal thoughts with a specific plan, and weight gain. AR689. She had stopped taking Abilify because of side effects. AR689. Her mental status exam was again recorded as normal; she was alert and oriented, with normal thought content, speech, affect, and mood. AR690. Dr. Ridder stated that Ms. Wyman had no pain, redness, or swelling in her joints. AR689. Dr. Ridder observed, “she seems to [sic] pleasant to be either suicidal seriously and is not convincing that she is ready to go soon to do anything about it.” AR690. She was referred for both psychiatric and psychological consults, and urged to present herself to Behavioral Health Services immediately due to her suicidal thoughts. AR690.

         Ms. Wyman was seen on March 29, 2011, for follow-up on weight concerns and right knee pain. AR685. Knee exam revealed antalgic gait, tenderness, mild effusion, reduced ROM, and positive Lachman sign. AR686. An x-ray was unremarkable and a prednisone injection was given. AR686. Following the injection, her knee had been somewhat better, but was starting to bother her again by April 28, 2011. AR684.

         Ms. Wyman was seen on October 2, 2012, for follow-up on her fibromyalgia and depressive symptoms. AR652. She reported depressed mood, agitation, fatigue, insomnia, headaches with neck stiffness and some chest discomfort with stress and trigger point pain. AR652. Dr. Ridder's notes stated, “Teresa notes mild generalized fatigue, somewhat chronic. There's been no weight loss or fever or other localizing symptoms. Exam shows no specific findings to suggest a clear cause.” AR652. Ms. Wyman's musculoskeletal exam showed no pain, redness or swelling on the joints and her neurologic exam showed no chronic headaches or neurological abnormalities. AR652-53. Her extremities were normal. AR652. Her pain was generalized pain scattered about her trunk and extremities. AR652. Her medications were adjusted and it was felt her symptoms were likely related to her fibromyalgia. AR653. Ms. Wyman contacted the clinic a few days later due to her pain and asked about Neurontin or Lyrica. AR650. She was referred to the rheumatology clinic. AR646.

         Ms. Wyman contacted the clinic on June 3, 2013, regarding a migraine and was prescribed Imitrex. AR631.

         Ms. Wyman contacted the clinic on September 19, 2013, complaining of low back pain, fatigue and nausea and vomiting. AR603. Examination showed abdominal tenderness and no CVA tenderness “other than her usual with her fibro.” AR603. Dr. Ridder noted that “Reviewed her meds and she is not the greatest at contin [sic] to take them.” AR603.

         Ms. Wyman was seen by Dr. Jensen on November 19, 2013, to follow-up her pyelonephritis[5] and reported right knee pain, fever and nausea, chronic fatigue, increased migraines and fibromyalgia. AR597. Dr. Jensen increased her Tramadol dosage and recommended an increased dosage of Neurotin, but Ms. Wyman refused the increased Neurontin due to problems with weight gain. AR598. Dr. Jensen noted her mental status as depressed mood, and Ms. Wyman's PHQ-9 score was 25, which was in the severe depression range. AR596-97. When seen three days later, Ms. Wyman still reported pain and pressure in the left flank, but was much better, which she attributed to the Neurontin. AR594.

         Ms. Wyman saw Dr. Jensen on February 11, 2014, for her fibromyalgia and Ms. Wyman noted worsening symptoms since running out of Neurontin. AR581. She said her pain was also worse with exertion, stress, lack of sleep, and weather changes. AR581. Her Tramadol was stopped and cyclobenzaprine added by Dr. Jensen. AR582.

         On June 5, 2014, Ms. Wyman contacted the clinic to refill her Imitrex prescription, and had it refilled again on August 15, 2014. AR561, 567. She was seen on June 13, 2014, for her fibromyalgia and reported chronic generalized pain, fatigue, sleep/mood disturbances, headaches, IBS, multiple tender points with her pain worse with exertion, stress, lack of sleep or weather changes. AR566. Dr. Jensen characterized these as classic fibromyalgia symptoms. AR566. Her Flexeril was discontinued and Neurontin dosage was doubled. AR567. Following her appointment with Dr. Jensen, she met with a nurse to address weight loss. AR565. Her weight at that time was around 255 pounds. AR565.

         Ms. Wyman was seen on July 1, 2014, for tension headaches along with sinus pressure and drainage she said had been continuing for several days. AR564. She had purulent drainage, a sore throat, and a productive cough. AR564. Dr. Jensen diagnosed sinusitis and prescribed antibiotics. Dr. Jensen also “heartily congratulated” Ms. Wyman on an excellent job with lifestyle changes and successful management of her medical condition. AR564.

         Ms. Wyman contacted the clinic on July 9, 2014, about a medication she needed and was described as crying and stating she was suicidal. AR563. Ms. Wyman reported that she was “going through withdrawal” and was out of medication. AR563.

         Ms. Wyman contacted the clinic on September 29, 2014, after being seen in the Brookings Orthopedic clinic and requested a referral for a knee brace. AR559.

         Ms. Wyman was seen on November 11, 2014, to follow-up on her ruptured ovarian cyst and left lower quadrant pain. AR818. She said she had pain, chronically loose stools, and nausea and fevers. AR818. An abdominal CT scan showed degenerative spurring of the spine, and no gastric abnormalities, but did show evidence of a ruptured cyst. AR819. Dr. Jensen felt the ovarian cyst to be the cause of her abdominal pain. AR820.

         Ms. Wyman's physical therapy notes from November 5, 2014, stated that Ms. Wyman has been progressing well in physical therapy despite four missed appointments due to illness and other health issues. AR821. She had normal gait patterns, a normal range of motion in her right knee, and an easier time climbing stairs. AR821.

         Ms. Wyman was seen on November 18, 2014, to follow-up on her ruptured ovarian cyst with ongoing symptoms including pain, fatigue, nausea, and chronic constipation. AR816. She also complained of tension in her neck and more frequent migraines. AR816. Ms. Wyman also continued to have physical therapy on her knee in November and December. AR816. Her physical therapy ended on December 8, 2014, when she cancelled her future appointments because she said that she kept injuring herself and was in too much pain to continue with therapy. AR811.

         Dr. Jensen referred Ms. Wyman for physical therapy beginning January 20, 2015, due to neck pain and chronic headaches. AR805. The physical therapist's subjective history noted a long history of neck pain, headaches, and fibromyalgia limiting her activities of daily living and ability to work, but previously she had been able to do housework and self-care independently. AR805-06. Ms. Wyman reported that typically she got headaches three times per week, and numbness and tingling in her hands, right more than left, especially when waking in the morning. AR806. The physical therapist's examination revealed limited hip ROM, positive adduction drop tests bilaterally, limited cervical rotation to the left, tenderness over the neck, and that she was very hypermobile. AR806.

         Dr. Jensen saw Ms. Wyman on July 10, 2015, for follow up after her inpatient psychiatric treatment at Avera for suicidal ideation. AR992. Dr. Jensen's note stated, “Patient had suicidal ideation but is improving with depression and fatigue since discharge.” AR992. Dr. Jensen's diagnosis was depression with suicidal ideation. AR992.

         Ms. Wyman was seen on November 10, 2015, for follow up on her right knee and medications. AR997. She had been in physical therapy for her knee from July 24, 2015, through August 21, 2015, having two therapy sessions. AR914-17.

         Ms. Wyman's migraine medication, Imitrex, was refilled on February 12, 2016. AR1064. In addition to the Imitrex, Ms. Wyman's medications at that time included Wellbutrin, Zoloft, Vyvanse, Ultram, Trazodone, Tylenol, Neurontin, Celebrex, Zofran, Prilosec, and Ibuprofen. AR1065-66.

         Ms. Wyman's migraine medication, Imitrex, was refilled again on April 7, 2016, and again on May 3, 2016. AR1147, 1167.

         Ms. Wyman saw Dr. Jensen on May 10, 2016, for follow up on her fibromyalgia and had ongoing symptoms of chronic generalized pain, fatigue, sleep/mood disturbances, headaches, IBS, and tender points. AR1172. She reported taking Tramadol at greater than the prescribed dosage due to pain, that Celebrex was making her sleepy, and that she was taking the maximum dosage of Neurotin, which was giving her dry mouth. AR1172. Ms. Wyman said her pain was worse with exertion, stress, lack of sleep and weather changes, and Dr. Jensen wrote that her history was not suggestive of other disorders such as rheumatoid arthritis, osteoarthritis, or systemic lupus erythematosus (“SLE”). AR1172. Ms. Wyman's mental status was normal, as were her extremities. AR1174. Celebrex was discontinued and Flexeril prescribed, as well as either Tylenol 650 mg q.i.d. or Tramadol 75 mg q.i.d. AR1175.

         On September 6, 2016, after the ALJ's decision, but before the Appeals Council review, Ms. Wyman's treating physician, Dr. Jensen, wrote a letter regarding Ms. Wyman's condition and stated Ms. Wyman had been unable to work the last six years due to her medical problems including fibromyalgia, borderline personality disorder, PTSD, migraines, GERD, insomnia, obesity, anxiety, major depressive disorder, recurrent, chronic pelvic pain, urinary urgency, and chronic constipation. AR19. Dr. Jensen stated that the letter was to confirm that Ms. Wyman's medical status had not changed and that she continued to recommend against working outside the home. See page two of Dr. Jensen's letter attached to Ms. Wyman's brief at Docket No. 18. The letter included in the original transcript was notated as page one of two, but the transcript provided by SSA is missing the second page of the September letter, which shows as a blank page. AR20.

         On October 14, 2016, Ms. Wyman's treating physician, Dr. Jensen, wrote a second letter regarding Ms. Wyman's condition and stated that Ms. Wyman had been a patient of hers for three years and due to the complexity of Ms. Wyman's conditions (again listing the same diagnoses as listed in the September 6, 2016, letter) and chronicity of her pain, Dr. Jensen did not recommend that Ms. Wyman work at this time. AR17.

         2. Sanford Orthopedics & Sports Medicine Clinic:

         Dr. Reynen saw Ms. Wyman for right knee pain on February 21, 2012, at the orthopedic clinic. AR672, 674. Exam revealed Ms. Wyman's knee was quite large with tenderness, significant crepitus, and McMurray's testing caused significant discomfort. AR674. X-rays were essentially normal. AR674. An MRI was obtained which revealed prominent changes of osteoarthritis. A knee scope and debridement surgery was planned. AR671, 732. Paul Reynen, M.D., performed the surgery and his postoperative diagnosis was articular surface degeneration of patellofemoral joint and medial compartment. AR669.

         Dr. Reynen saw Ms. Wyman on August 1, 2012, for follow up on Ms. Wyman's right knee. AR657. She reported being pain free at the exam, but she stated that the pain increased to 7/10 if she was on her knee too much or if it was bent or straight too long. Id. Exam confirmed crepitus and physical therapy was ordered. Id.

         Ms. Wyman was seen at the Brookings Orthopedic clinic on February 3, 2014, for complaints of right knee pain worse with extended standing or stairs, and she reported she had three falls in the last 17 months. AR584. X-rays revealed significant medial joint space narrowing of the right knee. AR584, 705. The impression was significant internal derangement with crepitance of the right knee and an MRI was ordered. AR584. The MRI revealed moderate medial compartment arthritis with high-grade cartilage irregularity, and additional irregularities, but no stress fracture or dead bone and the knee arthroscopy surgery was planned. AR581, 702.

         Ms. Wyman was seen at the Brookings Orthopedic clinic on September 29, 2014, and reported that following her debridement surgery the prior Spring, her knee had been doing reasonably well until her knee was struck by a bike, and had then gotten progressively worse. AR558. Dr. Reynen's exam revealed discomfort with ROM testing, and tenderness. AR558. X-rays revealed degenerative changes bilateral knees with moderate to marked medial joint space narrowing on the right and mild narrowing on the left. AR700. Spurring was also noted with the predominant finding of osteoarthritis. AR700. Physical therapy and a knee sleeve were planned and the knee was injected with Kenalog and Marcaine. AR558, 827-29. (October 13, 2014, initial physical therapy evaluation - rehabilitation potential was fair).

         Ms. Wyman was seen on December 10, 2015, for right knee pain by PA Krempges and orthopedist, Chad Kurtenbach, M.D. AR1000, 1002. The PA's examination revealed trace effusion and tenderness. AR1000. X-rays were obtained and the PA's impression was bilateral degenerative joint disease right greater than left, and he recommended conservative treatment including activity modification, rest, anti-inflammatories, physical therapy, knee brace, and periodic injections. AR1001-02. The PA discussed knee replacement with Ms. Wyman but stated that at her young age, additional replacement would likely be needed in the future. AR1001. Dr. Kurtenbach also performed an exam and reviewed the x-ray which revealed osteoarthritis bilaterally, most significant on the right knee, and he also discussed treatment options and recommended conservative treatment including activity modification, rest, anti-inflammatories, physical therapy, and periodic injections. AR1002. Dr. Kurtenbach also discussed surgical knee replacement and noted it was complicated by Ms. Wyman's young age. AR1002.

         Ms. Wyman was seen on January 20, 2016, by Dr. Bechtold for right knee pain. AR1017. She reported swelling, pain at rest and worse pain with use such as prolonged standing and stairs, and that her knee pain limited her daily activities. AR1018. She was quite anxious during the exam and somewhat hypersensitive to palpation about the knee and ROM, and had some varus alignment and thrust ambulation, and grinding, clicking and locking symptoms were present. AR1017. The exam also revealed swelling, joint tenderness, and positive McMurray's test and positive crepitation tests. AR1019. Dr. Bechtold recommended conservative care and discussed a stationary bike, an elliptical machine, or pool therapy as excellent exercises to do to relieve joint stress. AR1019-20. He also recommended Stepping Up To Wellness to help with weight reduction and improve mobility. AR1020. A total knee replacement was discussed, but Dr. Bechtold noted that Ms. Wyman's multiple comorbidities make her highly at risk for uncertain outcome, and another injection was recommended and administered. AR1017-18. He stated he would “try to give her tools to improve her status, but she will definitely need to take ownership on her own largely.” AR1017. Ms. Wyman reported on February 6, 2016, that the injection helped a lot for the first week or so, but her right knee had started hurting again. AR1039.

         In March, 2016, Carl Bechtold, M.D., saw Ms. Wyman for complaints of right knee pain that she claimed prevented her from walking to her living room from her bathroom or kitchen. AR1094. He was concerned about her request for knee surgery because he thought her psychiatric issues and fibromyalgia were known risk factors for a poor outcome. AR1095. He characterized Ms. Wyman as “catastrophizing” with regard to her knee, and he opined that her described pain severity and dysfunction were not consistent with her amount of arthritis. AR1095. Ms. Wyman reported her prior injection helped for about a week and a half, but now she was doing “horrible” and could not even walk around her house due to pain. AR1094. Examination by Dr. Bechtold revealed tearful and anxious affect, very antalgic gait with a pronounced limp, tenderness to fairly gentle palpation of the knee, intact but painful strength, but good ROM. AR1094-95. Dr. Bechtold discussed a total knee replacement, but stated she had a number of red flags for a poor outcome including her psychiatric issues and fibromyalgia. AR1095. Ms. Wyman was very frustrated and crying, and an MRI was ordered. AR1095. In March, 2016, Matthew Hayes, M.D., stated the MRI of Ms. Wyman's right knee showed mild to moderate chondromalacia, small effusion, mild synovitis, tiny debris in the joint space, mild tendinopathy without tear, and minimal inflammation. AR1112. Dr. Hayes also stated the MRI revealed advanced medial compartment chondromalacia with mild stress changes in the femur, peripheral extrusion of the meniscus with fraying of the posterior horn/root without definite acute intrameniscal tear, and mild/moderate patellofemoral chondromalacia. AR1112. Dr. Bechtold recommended continued conservative management and the Stepping Up To Wellness program. AR1118. On March 18, 2016, Dr. Bechtold stated he saw no new findings to explain the severity of her pain. AR1118.

         3. Sanford Rheumatology Clinic

         Ms. Wyman was seen on October 18, 2012, for her fibromyalgia by rheumatologist, Justina Tseng, M.D. AR646. Exam revealed tender points bilaterally in the trapezius, elbow, gluteal, knee distribution and positive anserine bursitis. AR649. Dr. Tseng's assessment was generalized myalgias, headaches, tender points, IBS symptoms, and fatigue consistent with fibromyalgia. AR650. Exercise, sleep hygiene, and stress management were recommended for her fibromyalgia. AR650.

         4. Sanford Hospital

         Ms. Wyman was treated in the emergency room for a severe migraine with vomiting on March 27, 2009. AR389. She stated that she was getting the headaches monthly. AR389.

         Ms. Wyman was treated in the emergency room for a migraine, which was described as recurrent problem on July 5, 2009. AR386.

         Ms. Wyman contacted the hospital on July 28, 2013, and reported pain all over her body with painful joints and muscles and neck pain, causing headache. AR628. She was told to go to the emergency room. AR629. Ms. Wyman presented to the hospital and was admitted with a fever and body aches, headache and shortness of breath. AR612. She was diagnosed with left pyelonephritis, treated with Levaquin and discharged on July 30, 2013. AR615, 620, 624. Ms. Wyman returned to the emergency room on August 1, 2013, due to chest symptoms. AR610. She was diagnosed with atypical chest pain and told to follow up with her physician. AR611.

         Ms. Wyman presented to the hospital on October 29, 2013, and was again ...


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