United States District Court, D. South Dakota, Southern Division
SHERRY L. RUFF, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE
Sherry L. Ruff, seeks judicial review of the
Commissioner's final decision denying her application for
social security disability and supplemental security income
disability benefits under Title II and Title XVI of the
Social Security Act.
Ruff has filed a complaint and has made a motion to reverse
the Commissioner's final decision denying her disability
benefits and to enter an order awarding benefits.
See Docket No. 14. Alternatively, Ms. Ruff requests
the court remand the matter to the Social Security
Administration for further proceedings. Id. The
Commissioner resists Ms. Ruff's motion. See
Docket No. 17.
appeal of the Commissioner's final decision denying
benefits is properly before the court pursuant to 42 U.S.C.
§ 405(g). The parties have consented to this magistrate
judge handling this matter pursuant to 28 U.S.C. §
A. Statement of the
action arises from plaintiff, Sherry L. Ruff's,
(“Ms. Ruff”), application for SSDI and SSI filed
on November 3, 2014, alleging disability since July 22, 2012,
due to seizures, right ankle injury, anxiety and depression.
AR115, 250, 257, 299 (citations to the appeal record will be
cited by “AR” followed by the page or pages).
Prior to the ALJ hearing Ms. Ruff also identified medical
issues with her shoulder, neck, and back, as well as problems
with her balance. AR367.
Ruff's claim was denied initially and upon
reconsideration. AR171179, 184. Ms. Ruff then requested an
administrative hearing. AR193. Ms. Ruff's hearing was
held on April 4, 2017, by Administrative Law Judge
(“ALJ”) Kristi Bellamy. AR89. Ms. Ruff was
represented by other counsel at the hearing, and an
unfavorable decision was issued on May 22, 2017. AR8, 89.
Plaintiff's Age, Education and Work Experience.
Ruff was born in April of 1965 and completed LPN training in
1985, and one year of college in 2005. AR300. Ms. Ruff was 52
years old on the date of the ALJ's decision. AR8, 300.
The ALJ identified Ms. Ruff's past relevant work as date
entry clerk. AR22.
Relevant Medical Evidence.
Sanford Family Medicine Clinic & Sanford Neurology
Ruff was seen by Dr. DeHaan on September 16, 2011, for her
anxiety which had been somewhat controlled, but still having
issues. AR688. She reported that her anxiety symptoms
included insomnia, racing thoughts psychomotor agitation,
feelings of losing control, and difficulty concentrating.
AR688. She also said she had depression symptoms including
depressed mood. AR688. Her medications included clonazepam
and citalopram. AR688. On examination, her grooming was good
and her reasoning and speech pattern and content were normal.
AR689. Ms. Ruff's gait was normal, her sensation was
grossly intact and her reflexes were normal and symmetric.
DeHaan assessed that Ms. Ruff's depression and anxiety
were “stable.” AR689.
Ruff was in an automobile accident on July 22, 2012, in which
she apparently had a seizure and ran into a telephone pole.
AR649, 664, 672. X-rays obtained on July 22, 2012, revealed a
complex fracture dislocation of the right ankle. AR798. A CT
of the right ankle was obtained on July 23, 2012, and
revealed an impaction type fracture involving the talar
head-neck with extension to the talonavicular joint, with
additional fractures in the medial process, anterior process,
the tibia, the inferolateral cuboid, the os trigonum, and
multiple loose bodies associated with the multiple fractures
and marked soft issue edema. AR772.
22, 2012, following the open fracture to her right ankle Ms.
Ruff had an irrigation and debridement of the right ankle
with application of external fixator. AR679, 685. The
external fixator was removed by Dr. Alvine on July 25, 2012,
and the talonavicular joint and subtalar joint of Ms.
Ruff's right ankle were pinned in an essentially anatomic
position. AR680. Dr. Alvine noted that the CT findings also
showed an impaction of the medial talar head that “may
give long-term problems with arthritis. …”
cervical spine MRI obtained on July 23, 2012, revealed
“at the C6-7 level, there is mild central disk
protrusion present. This effaces the thecal sac without
evidence of spinal stenosis or neural foraminal
stenosis.” AR674, 755.
electroencephalogram (EEG) was obtained on July 23, 2012, due
to seizure-like movements following an automobile accident
with three more seizure-like episodes. AR744. The EEG was
abnormal with occasional sharp waves indicative of cortical
irritability with a tendency to have seizures. AR744.
Ruff was discharged on July 25, 2012, to the rehab unit, but
was non-weight bearing on her right foot and Dr. Alvine felt
she would be in too much pain to walk. AR664. By August 3,
2012, Ms. Ruff was able to ambulate 50 feet with weight
bearing, but was not yet able to handle steps and was
discharged home. AR618, 636.
September 25, 2012, Ms. Ruff continued to report severe pain
in her leg following surgery to remove the previously placed
pins in her ankle. AR599. She contacted Dr. DeHaan's
office about refilling her Tramadol, which didn't help
with the pain completely, but helped take the edge off.
Ruff was seen at the neurology clinic on September 27, 2012,
to follow-up on her seizures. AR595. The neurologist
concluded that her history of seizure-like activity
previously and abnormal EEG were convincing enough for
seizures, so he continued her on Keppra, and informed her of
the possible side effect of depression. AR596. The
neurologist also stopped her Tramadol because she was already
taking Celexa for depression and the two together can cause
seizures. AR596. The neurologist's assessment was
epilepsy: focal vs. generalized. AR598. On examination, Ms.
Ruff was oriented, her memory and fluency repetition were
intact, her concentration, attention, and language with
naming were normal, and her fund of knowledge was good.
AR597. She had 5/5 strength in her upper and lower
extremities and her gait examination was normal. AR597.
Ruff saw Dr. DeHaan on October 1, 2012, to follow-up after
her accident and hospitalization. AR594. She said that she
continued to have severe pain and was unable to bear weight
on her right foot. AR594. She had just been seen by Dr.
Alvine who was concerned about development of reflex sympathy
dystrophy (“RSD”). AR594. Ms. Ruff said that she
was having difficulty sleeping and was very depressed,
frustrated and uncomfortable. AR594. She said she was also
having significant anxiety and her clonidine level had been
adjusted. AR594. Examination showed she was tearful, in a
wheelchair, and had significant decreased swelling of the
right lower extremity but still has moderate swelling of the
foot and toes. AR594. Dr. DeHaan prescribed Lyrica and
Nucynta (an opioid) for pain, nortriptyline to help with
sleep, and switched her Celexa to fluoxetine to try to better
control her depression. AR595. Medicaid denied coverage for
the Nucynta, so hydrocodone was prescribed. AR593. Dr. DeHaan
also referred her for physical therapy. AR592.
Ruff saw Dr. DeHaan on November 5, 2012, and continued to
report symptoms of racing thoughts, feelings of losing
control, difficulty concentrating, depressed mood fatigue and
feelings of worthlessness/guilt gradually getting worse since
her accident. AR590. She was walking slowly with a walker and
her neurological examination was “negative.” Her
general appearance was also alert and in no distress. AR591.
Her depression medication, Prozac, was increased. AR591. On
November 9, 2012, Dr. DeHaan extended Ms. Ruff's
handicapped parking permit for 3 months. AR590.
Ruff was seen in the neurology clinic on December 5, 2012,
and reported no additional seizure activity, but she said she
had been diagnosed with RSD in her ankle. AR588-89. On
examination, Ms. Ruff was alert and oriented, her cranial
nerves were intact, she had 5/5 strength in her upper
extremities and 5/5 lower extremity strength on the left, her
right hip flexion and knee extension were 5/t, and the rest
of the exam was not done due to her brace. AR588. Her gait
was antalgic. AR588. Her seizure medication, which she was
tolerating well, was continued. AR588-89.
Ruff was seen at the neurology clinic on June 24, 2013, and
reported no new seizures, but worsening depression because
her 11-year old needed therapy after witnessing her seizures
and she had to move out of her apartment and was looking for
a job. AR582. On examination she was alert and oriented, her
gait was normal, and she had no focal weakness. AR582. Her
seizure medication was changed to Lamictal, a mood
stabilizer, due to possible side effects of depression.
she was seen by Dr. DeHaan the next day he also changed her
depression medication back to Celexa from Prozac to try to
better control her symptoms. AR581. Dr. DeHaan also
encouraged counseling. AR582. On examination, Ms. Ruff's
speech, affect, mood, dress, and thought content were normal.
Ruff saw Dr. DeHaan on July 9, 2013, for a pre-surgery
consultation prior to another surgery by Dr. Alvine on Ms.
Ruff's foot due to ongoing pain. AR578. Under the review
of systems psychiatric it states her anxiety and depression
were “stable now.” AR580. On examination her
gait, station, reflexes, and strength in all muscle groups
were normal. AR580. Her thought content was appropriate.
August 14, 2013, Ms. Ruff contacted Dr. DeHaan to get
approval and a refill for an increased dosage of Celexa due
to increased [stressors], and her dosage was increased.
AR578. On September 11, 2013, Ms. Ruff contacted Dr. DeHaan
by phone because she had been unable to come to Sioux Falls
for an appointment and again requested that her Celexa dosage
be increased due to stressors including her son, surgery, and
moving, and her counselor had recommended she discuss
increasing her dosage with Dr. DeHaan. AR576. Dr. DeHaan
stated she was already at the maximum dose of Celexa. AR576.
Ruff was seen at the neurology clinic on October 24, 2013,
and reported no new seizure activity, and improved depression
being on Lamictal and Celexa. AR573. On May 13, 2014, Ms.
Ruff contacted the neurology clinic and reported having
almost daily episodes for the past two to three months where
she forgets what she is doing and episodes where she will
start to say something and a completely different word comes
out than what she intended to say. AR569-70.
Ruff contacted Dr. DeHaan on June 16, 2014, with increased
symptoms and requested an increased dosage of Klonopin, but
Dr. DeHaan refused because she was already on a high dose,
and indicated she needed to continue with her counseling, and
if she feels she needs more she will need to see a
psychiatrist for recommendations. AR569. Ms. Ruff stated that
she was working one day per week for 4 hours but was
wondering if she needed to stop because her ankle pain was
worsening. AR569. Ms. Ruff mentioned applying for disability
and she was told if she needed help the clinic had a
therapist who could assist her. AR569.
Ruff contacted the neurologist's office on July 2, 2014,
and was scheduled for an EEG later in the month, but had woke
up on the bathroom floor, unaware of what happened and she
believed she had a seizure and bit her lip. AR568. She said
she had 3 beers that evening over about a 3-hour period.
AR568. Her lamotrigine dosage was increased. AR568.
Ruff saw Dr. DeHaan on July 8, 2014, and reported that her
depression and anxiety symptoms were fairly well controlled,
but was having increased stress at home, chronic ankle pain,
and weight gain. AR567. On examination her mood, affect,
speech, dress and thought content were normal. AR567. Dr.
DeHaan continued her medications, stressed the importance of
counseling, and renewed her handicapped parking permit for
another year. AR567.
Ruff contacted the neurology clinic on March 2, 2015, to
cancel an appointment because she had fallen and twisted her
Ruff saw Dr. DeHaan on June 2, 2015, and reported that her
depression and anxiety symptoms had been worse the past six
months and she had chronic pain in her right ankle. AR 928,
930. Her grooming was noted as good, but her insight poor.
AR930. Her medications were continued unchanged. AR930.
Ruff was seen at the neurology clinic on June 5, 2015, for
her seizures and had just completed a video EEG, which showed
no abnormal activity. AR909. Her seizure medication was
changed to Topamax due to weight gain from lamotrigine.
AR909. On examination, Ms. Ruff's gait was normal, her
speech and language were intact, and she had 5/5 strength in
both her upper and lower extremities. AR912.
Russ was seen at the neurology clinic on November 5, 2015,
and reported no new seizure activity, but the neurologist
felt she was having some word-finding trouble during
conversations in the exam, and also appeared a little tired.
AR914. Ms. Ruff was taking gabapentin and asked to have the
dosage increased due to ankle pain, but the neurologist asked
her to see her primary care physician and orthopedic
physician for options because gabapentin was not helping with
the pain and was making her drowsy and loopy. AR914, 917. On
examination, Ms. Ruff was alert, well appearing, but seemed
tired and oriented and her speech was intact, although she
struggled at times with words. AR916. Her gait was normal and
she had 5/5 strength in her upper and lower extremities.
Ruff saw Dr. DeHaan on November 5, 2015, and complained of
weight gain, chronic ankle pain, which was not being helped
by gabapentin, which also made her feel “out of
it.” AR932. She continued to take clonazepam several
times daily for anxiety. AR932. She said that Lexapro seemed
to be “doing well for her depression and anxiety
overall.” AR932. Ms. Ruff reported that her sleep was
okay, but was limited by her inability to walk, and had filed
for disability. AR932. On examination she was alert and in no
severe distress, but she was tearful as she talked about some
of her issues at home, and she exhibited no noticeable
tremors. AR932. Dr. DeHaan's assessment was chronic right
foot pain, status post triple arthrodesis, and he noted that
her chronic pain was a long-term issue that will probably
never be totally resolved. AR933. Dr. DeHaan encouraged Ms.
Ruff to continue with her exercise program, which he thought
would be beneficial as long as she didn't over do that.
AR933. Dr. DeHaan also noted that Ms. Ruff's Lexapro
looked like it was “working fine, ” and
recommended continued counseling, and noted that her seizure
disorder was “currently controlled on Topamax.”
Ruff saw Dr. DeHaan on April 21, 2016, and reported issues
with increased anxiety, and wondered if ADHD could be causing
her difficulties with focus and motivation. AR934. Dr. DeHaan
noted that she had started counseling, and that her focus and
motivation problems could be secondary to her depression.
AR934. Dr. DeHaan's assessments included chronic
depression with anxiety, adjustment disorder with depressed
mood, and poor concentration with family history of ADHD.
AR934. Her Lexapro medication was changed back to citalopram
for her depression. AR934. Dr. DeHaan observed that Ms. Ruff
was alert and in some distress, her mood and affect were
normal and her neurological examination was grossly intact
with no evidence of tremor, her gait was “her normal
ataxic gait for her, ” and she had chronic ankle pain.
Ruff was seen on August 3, 2016, at the Neurology Clinic for
her epilepsy/seizures. AR856. She reported no new seizure
activity and her seizure medication was continued. AR856. On
examination her memory, language, attention, and
concentration were normal and she exhibited normal higher
cognitive functions. AR856. Further, her gait, finger to
nose, and heel to shin examinations were normal and she had
5/5 strength in both the upper and lower extremities. AR856.
She was seen again on February 1, 2017, with no changes in
symptoms or medications. AR926. Her examination findings were
Ruff saw Dr. DeHaan on December 1, 2016, for a physical and
had concerns regarding neck pain and her anxiety, and also
reported constant fatigue. AR936. Her concerns regarding neck
pain were not addressed in the exam notes. AR936.
March 20, 2017, Dr. DeHaan completed a medical source
statement regarding Ms. Ruff's ability to sustain
full-time work. AR849-51. Dr. DeHaan stated Ms. Ruff could
only lift 10 pounds occasionally or frequently, was limited
to standing or walking less than two hours of an 8-hour
workday, could sit about six hours in an 8-hours workday, and
should never climb ramps/stairs or ladders/scaffolds, never
balance, and only occasionally stoop, kneel, or crouch.
AR850. Dr. DeHaan also stated Mr. Ruff was limited to
frequent reaching, handling, fingering, and feeling. AR850.
Core Orthopedics Clinic (including related hospital
Ruff saw Dr. Alvine of Core Orthopedics both at his clinic
and initially when hospitalized on July 23, 2012, following
her automobile accident and ankle injury. AR505. His initial
impression on July 23, 2012, was a complete
dislocated/extruded talus, now reduced with a span and
external fixator, open. AR405.
25, 2012, Dr. Alvine performed surgery on Ms. Ruff's
ankle, irrigating and debriding it, removing the fixator,
pinning it, and closing the wounds. AR402.
Ruff saw Mary Fiedler, a certified nurse practitioner, for
follow-up on August 9, 2012, but her ankle was too swollen to
remove sutures, so she received a splint and was told to
elevate the ankle. AR401. Ms. Ruff reported that her daughter
was getting married in a few days and she “has been up
and not keeping this elevated as much as she probably
should.” AR401. Dr. Alvine saw Ms. Ruff again on August
13, 2012, and Ms. Ruff reported that she had a small
posterolateral talus fracture of her left ankle and was in a
CAM boot, in addition to the injury to her right ankle, with
continued pain with numbness on top of the right foot. AR400.
Ms. Ruff reported that she was “doing well” and
had no complaints or concerns. AR400. On August 28, 2012,
when seen again, one of the pins in the right ankle which had
backed out was removed and she was placed in a CAM boot.
AR399. Dr. Alvine noted that Ms. Ruff's foot alignment
looked good, she had no swelling of the leg or pain to
palpitation in the calf, and her gentle range of motion of
the ankle was without pain. AR399. Dr. Alvine also prescribed
Neurontin because she was hypersensitive to light touch
throughout the foot and he suspected the nerves were waking
up. AR399. By September 6, 2012, Ms. Ruff continued to report
pain issues and she was taken out of the CAM boot and into a
cast, and pin removal was scheduled. AR398. On examination,
her wounds were healed up, she exhibited mild swelling, her
right foot alignment looked good, and she had full range of
motion of her left ankle. AR398.
September 12, 2012, Dr. Alvine surgically removed the pins in
Ms. Ruff's right ankle. AR395, 534-35 (surgical procedure
report), 548 (discharge report).
Ruff saw Dr. Alvine on October 1, 2012, and reported
struggling with burning pain in the top of her right foot and
she said she could not dorsiflex her ankle. AR393.
Examination showed no significant swelling, but she was
hypersensitive to light touch throughout the foot. X-rays of
the ankle showed good alignment of the foot, but again showed
the defect of the talar head. AR393. Dr. Alvine concluded
that Ms. Ruff was developing a complex regional pain syndrome
or RSD, and he prescribed aggressive physical therapy to
improve range of motion, strength, and flexibility and Lyrica
for nerve pain. AR393, 428.
Ruff saw Dr. Alvine on November 5, 2012, and reported she had
continued pain and was unable to put weight on her right
foot. AR391. X-rays showed diffuse osteopenia of the ankle
and examination revealed the foot was cool and clammy, some
generalized swelling, stiff range of motion, and she was
still hypersensitive to light touch throughout the foot.
AR391. Dr. Alvine stated it appeared to be a form of RSD and
he prescribed sympathetic blocks, contrast baths, and
physical therapy. AR391, 429, 527 (right lumbar sympathetic
Ruff saw Dr. Alvine on December 6, 2012, and reported she was
doing better but still struggling. AR387. The sympathetic
block had not helped and her Lyrica dosage had recently been
increased. AR387. She was able to walk without a CAM boot in
the office and exhibited less hypersensitivity and less point
tenderness of the foot. AR387. Dr. Alvine recommended
physical therapy and supportive shoes. AR387. He stated that
she may need a subtalar joint and TN fusion in the future.
Ruff saw Dr. Alvine on January 17, 2013, and she was making
slow steady progress, but still had antalgic gait and walked
fairly stiffly flatfoot, dragging her foot basically, but was
weight bearing. AR384. She said she was basically out of the
boot most of the time and off her walker. AR384. Examination
revealed continued hypersensitivity to light touch and her
foot was somewhat warm. Dr. Alvine felt she had RSD or
regional complex pain syndrome and noted she was taking
hydrocodone, which he cautioned her to take sparingly, as
well as Lyrica, physical therapy and contrast baths. AR384.
Dr. Alvine stated Ms. Ruff should continue to be off work.
Ruff saw Dr. Alvine on February 28, 2013, and had made great
progress; was walking without a walker or cane, and had much
less hypersensitivity to light touch. AR423. Dr. Alvine
stated Ms. Ruff was going to try to go back to work. AR423.
Ruff was discharged from physical therapy on March 14, 2013,
following 32 treatment visits (AR434-42), and the physical
therapy discharge note on April 10, 2013, indicated that she
continued to have ankle pain (rated 4/10), worse when on her
feet, and her ankle impacted her ability to walk, recreate,
bend, work duties, and standing. AR433. Her problems
continued to include her gait, balance, strength, and pain
and her rehabilitation potential was noted as only fair.
AR433, 446. Ms. Ruff was discharged from physical therapy
because she did not show up to appointments and failed to
Ruff saw Dr. Alvine on May 13, 2013, and reported hindfoot
pain and swelling with activity. AR422. She had returned to
work, but said she could not work a full shift. AR422.
Examination showed reduced range of motion of the right
ankle, and decreased sensation to light touch in the dorsum
of the great toe and in the webspace. AR422. Otherwise, her
sensation was normal. AR422. Dr. Alvine noted that “her
foot finally looks good.” AR422. Dr. Alvine stated that
he thought she would eventually need the ankle fusion, and
the subtalar joint was injected. AR422. She was to continue
working only four-hour shifts. AR422. Dr. Alvine also
examined her left ankle which had also been fractured and
reviewed her CT scans and noted that she had a snowboarder
type fracture, so they needed to keep a watch for any
left-sided pain. AR422.
Ruff saw Dr. Alvine on June 25, 2013, and was doing
reasonably well although she said she was having hindfoot
pain with much activity at all. AR417. Based on the damage to
the talar head, dislocated hindfoot, and degenerative
changes, Dr. Alvine recommended a subtalar joint and
talonavicular joint fusion. AR417. An MRI was obtained and
revealed marked signal abnormality of the talus suggesting
underlying AVN with accelerated degenerative changes. AR419.
The fusion surgery and a bone graft was performed by Dr.
Alvine on July 16, 2013. AR413, 513-15 (surgical report).
Ruff saw Dr. Alvine on August 29, 2013, and reported that she
was “doing well” and everything just ached.
AR411. On examination, her right foot range of motion was
without pain. AR411. X-rays showed that unfortunately she was
developing more and more joint space narrowing of the ankle
joint. AR411. She was placed in a CAM boot and told to begin
one-half weight bearing for two weeks then full weight
bearing. AR411, 469 and 475 (physical therapy). Ms. Ruff was
seen on October 3, 2013, and reported she was “doing
well” with no new complaints or concerns. AR410. X-rays
showed internal healing, acceptable alignment, and no
hardware failure or loosening. AR410. Therapy was prescribed
to begin strengthening and weaning into a supportive shoe.
AR410. On November 21, 2013, when seen Ms. Ruff reported she
was doing well and making good progress in physical therapy.
AR409. She also said she had a little ankle soreness and
X-rays showed joint space narrowing of the ankle developing
consistent with posttraumatic arthritis. AR409. A cortisone
injection was given. AR409.
Ruff saw Dr. Alvine on May 21, 2014, for her ankle. AR834.
Dr. Alvine described her as doing well from her double
arthrodesis, but having some pain, and examination revealed a
rigid hindfoot, swelling and stiffness, and pain on flexing.
AR834. X-rays revealed that the ankle joint had narrowed to
about 1mm compared to two years earlier, and there was
sclerosis consistent with some AVN of the dome of the talus.
AR834. AVN is avascular necrosis and is a condition that
occurs when there is blood loss to bone, which cause the bone
to die, and eventually collapse. See
Dr. Alvine stated that eventually she may need her ankle
fused or replaced, but he wanted to hold off as long as
possible, and a cortisone and Marcaine injection was given.
AR834. Following the injection Ms. Ruff reported the pain had
improved, which Dr. Alvine stated confirms the ankle is the
problem, and he provided her a note allowing her to return to
only sedentary work to help with her ankle problems. AR834;
see AR835 (note restricting her to sedentary work
Ruff saw Dr. Alvine on July 10, 2014, and reported continued
pain without relief from the cortisone shot. AR832. On
examination, she dorsiflexes to neutral and plantarflexes
maybe 20 degrees, subtalar motion was rigid, her foot
alignment looked good and she had only mild swelling. AR832.
Dr. Alvine stated it would be nice to replace the joint, but
he was not sure her bone quality was sufficient due to the
talar AVN. AR832. A CT of the right ankle revealed severe
tibiotalar degenerative joint disease with bone-on-bone and
tilt of the talus, which “certainly could be a source
for significant pain” and an intra-articular
nondisplaced sagittally oriented stress fracture of the talar
dome. AR833. After reviewing the CT, Dr. Alvine stated he
felt an ankle replacement would be “fraught with some
potential complications, i.e., setting a component on dead
bone” and the other option is pantalar fusion, which is
not great either. AR831.
Ruff saw Dr. Alvine on July 24, 2014, and x-rays revealed
severe degenerative changes of the ankle joint with
osteopenia centrally in the talus consistent with AVN. AR830.
Dr. Alvine recommended a pantalar fusion because an ankle
replacement would be set on unhealthy bone. AR830. Ms. Ruff
wanted to avoid the pantalar fusion, and Dr. Alvine stated
that he did not blame her because patients with pantalar
fusions do struggle. AR830. He stated that “either way
she probably needs to do something since her ankle is so
painful when she tries to walk.” AR830.
Alvine performed surgery on Ms. Ruff's ankle on September
10, 2014, and removed the hardware of the subtalar joint and
talonavicular joint, replaced the ankle joint and a gastroc
slide procedure. AR484, 486-88. Dr. Alvine noted in his
surgical report that when he removed the talar dome, Ms.
Ruff's bone was “very friable and a chalky and
crumbled, but they [sic] appeared to be good healthy bone at
the base.” AR487.
Ruff saw Dr. Alvine on September 29, 2014, and she was two
weeks post ankle replacement. AR827. She said she was doing
well with no complaints or concerns. AR827. Her incision was
healing, range of motion was without pain, and she was placed
in a short-leg non-weight bearing cast. AR827. On October 27,
2014, Ms. Ruff reported that she was doing “quite
well” and was progressed to a CAM boot with one-half
weight for two weeks then full weight. AR826.
Ruff saw Dr. Alvine on January 5, 2015, four months after her
ankle replacement surgery, and reported that she continued to
have pain, mainly from swelling, and was unable to wear her
regular shoes. AR823. She was wearing kind of a high heeled
boot. AR823. Examination revealed generalized swelling,
reasonably good range of motion, and hypersensitivity to
light touch throughout the foot. AR823. Neurontin was
prescribed for her pain. AR823. Dr. Alvine continued to
restrict her to sedentary work. AR824.
Ruff saw Dr. Alvine on April 6, 2015, six months post-surgery
and she continued to struggle with swelling and pain with
activity without relief from Neurontin. AR822. X-rays of her
ankle showed well positioned components, but did show
“some mild osteopenia underneath the lateral portion of
the talar component, but by and large things look really
good.” AR822. Therapy was recommended to work on edema
control, range of motion, strengthening, and proprioception.
Ruff saw Dr. Alvine on June 29, 2015, nine months
post-surgery, and she continued to report that she struggled
with pain, her ankle feeling like it wants to give out on
her, and not being able to walk as far as she would like.
AR821. She said she wore supportive shoes most of the time,
but was wearing flip flops at the appointment. AR821. Dr.
Alvine prescribed an ankle gauntlet, and neuropathic pain
cream. AR821. Dr. Alvine continued to restrict her to
sedentary work, stating, “I do not think she is in a
position to work on her feet.…” AR821.
Ruff saw Dr. Alvine on September 10, 2015, and continued to
report pain, which seemed to bother her more and more, and
she continued to be hypersensitive to light touch along the
superficial peroneal nerve and the tibial nerve. AR874. She
exhibited no significant swelling and her ankle appeared
stable with good range of motion. AR874. Dr. Alvine felt it
was nerve pain, worse as swelling increased throughout the
day. AR874. On September 10, 2015, Dr. Alvine wrote to Dr.
DeHaan regarding Ms. Ruff's condition and said she was
doing reasonably well, but not as well as he had hoped.
AR875. Dr. Alvine noted that Ms. Ruff was up and walking and
active. AR875. Dr. Alvine said Ms. Ruff was having more
burning pain when she was on her foot all day long that he
suspected was nerve pain and he wanted to increase her
Neurontin dosage, but had not due to questions about
complications with her seizure condition. AR875.
Ruff saw Dr. Alvine on April 11, 2016, with reports of
ongoing pain and swelling in her ankle. AR873. She said she
was “doing okay.” AR873.
reported using a treadmill for exercise but it bothered her
and she had not returned to work. AR873. Examination revealed
mild generalized swelling, tenderness to light touch. AR873.
Ms. Ruff also had good strength in all four planes and Dr.
Alvine noted that “when she stands she has a
well-balanced foot and ankle.” AR873. X-rays did not
reveal any evidence of RSD, and Dr. Alvine felt it was just a
chronic pain issue. AR873. He noted that Ms. Ruff was trying
to get active and looked “better today actually
clinically than she has in a long time.” AR873. Dr.
Alvine recommended “no impact” type of exercise
rather than a treadmill and felt it was a reasonable next
step to try to get back to a sedentary job. AR873.
Ruff saw Dr. Alvine on August 22, 2016, and reported that her
ankle continued to hurt, but she was struggling more with her
left shoulder. AR870. Ms. Ruff reported that she falls due to
her ankle and injured the left shoulder resulting in pain and
numbness going down the arm to the hand. AR870. Examination
revealed full cervical motion, but she moved slowly and had a
positive Spurling maneuver on the left, positive impingement
reinforcement sign, tenderness over the scapula, a positive
Hoffman sign, and range of motion caused pain. AR870. Ms.
Ruff also had 5/5 strength in the upper and lower extremities
with encouragement and her sensation was intact to light
touch throughout her legs. AR870. Her right ankle examination
revealed stiffness, but no swelling or point tenderness and
her foot alignment was good. AR870. A cervical spine MRI was
obtained that revealed a small disc bulge at ¶ 6-C7 with
no nerve or cord compression, and a shoulder MRI revealed
some mild supraspinatus tendinosis and fluid in the
subacromial space, and possible bursitis. AR869, 858
(cervical spine MRI), 860 (left shoulder MRI). Dr. Alvine
referred her to one of the clinic's shoulder specialists,
Dr. Peterson. AR869, 872.
Ruff saw Dr. Peterson on October 7, 2016, for her left
arm/shoulder and reported it was giving out and she had pain
down to her fingers radiating into her hand. AR867, 881.
Examination revealed some mildly pronounced impingement
signs, mild to moderate pain over her AC joint, and she was
very guarded with her pain. AR867. In addition, her left
shoulder examination showed full motion in all planes and her
neurovascular examination was intact with no evidence of
instability with range of motion and mobility. AR867. Dr.
Peterson reviewed the left shoulder MRI and stated it
revealed severe subacrominal bursitis, AC arthritis, and
possibly SLAP tear, but no rotator cuff tear. AR867. Dr.
Peterson's impression was possible evolving frozen
shoulder and a diagnostic lidocaine injection was given to
try to determine where her pain was coming from. AR867. Ms.
Ruff reported that after the injection she was pain free for
a few hours so a repeat corticosteroid injection was
administered on November 2, 2016. AR864, 866, 878.
Dakota Counseling Institute:
Ruff was seen on September 10, 2013, at Dakota Counseling for
an individual psychotherapy intake exam. AR477. She reported
problems with anxiety including worrying, inability to stay
focused, talking too much, racing thoughts, and restlessness
and depression symptoms including feeling sad or blue, loss
of interest in activities, guilt, low energy, and low
self-esteem. AR477. Ms. Ruff reported prior counseling after
her automobile accident in 2012, and she was already taking
anti-depressants which she did not feel were working. AR477.
Ms. Ruff's mental status included affect was often
anxious and at times, tearful, her MMSE score was 27 of 30,
indicating no gross cognitive impairment, but was difficult
to determine due to some tangential answers, and she
acknowledged some passive suicidal ideation without a plan or
intent. AR479. In addition, Ms. Ruff demonstrated appropriate
social interactions, she spoke fluently with no pauses and
appropriate tone, her memory appeared intact, her ideational
processes were goal oriented, and there were no apparent
signs or reports of delusions or hallucinations. AR479. Ms.
Ruff's diagnoses included major depressive disorder,
recurrent, mild, with full inter-episode recovery, and
generalized anxiety; her GAF was assessed at 53. AR479. Under
the SED/SPMI Determination it stated there was no evidence to
support classification of a serious mental illness at this
Ruff saw Donna Aldridge, MA, QMHP, a mental health clinician,
for counseling on January 8, 2016. AR836. Ms. Ruff reported
feeling good that day, however, she was concerned about
long-term “range of motion and pain.” AR836. Ms.
Aldridge observed that Ms. Ruff was alert and oriented, she
appeared to have quite a bit of energy, and her affect was
congruent with the topics discussed. AR836. The session
focused on looking at different treatment goals in order to
develop a treatment plan. AR836.
Ms. Ruff saw Ms. Aldridge for counseling on March 16, 2016,
Ms. Aldridge noted that Ms. Ruff was looking somewhat better
than at her last appointment; she had showered and was
dressed in comfortable business attire. AR837. Ms. Ruff
reported she had been extremely depressed and she was tearful
throughout the session. AR837. The plan for the session was
to see what, if anything, differently Ms. Ruff had been doing
to help deal with her “debilitating depression.”
AR837. Suggestions had been discussed at her last session,
but Ms. Ruff had cancelled an appointment once again because
“it is likely … she just did not want to get up
and get dressed.” AR837. Ms. Aldridge stated that they
discussed some ways to combat the debilitating affects of
depression, and had discussed these before, “but [Ms.
Ruff] does not seem to remember much of those conversations.
It appears she is frequently distracted with other anxieties
and worries and repetition is necessary.” AR837.
Ruff was seen for counseling with Ms. Aldridge on May 4,
2016, and Ms. Ruff appeared tired, and showed signs of
anxiety as well. AR839. She was alert and oriented and her
grooming and dress were appropriate for the weather and
situation. AR839. Ms. Ruff reported feeling depressed and
frustrated, and apologized for missing the prior session,
which she had promised to keep. AR839.
2, 2016, Ms. Aldridge noted that Ms. Ruff appeared more
energized. AR841. She said that she was using the gym more.
AR841. On August 30, 2016, Ms. Aldridge noted that Ms.
Ruff's mood was slightly better and Ms. Ruff reported
that she had not attended gym three times the first week
following her last appointment, but had attended the gym
three times in the second week following her last
appointment. AR847. Ms. Ruff was very happy and proud to
report this, although she wasn't sure she would be able
to keep it up, and indicated that it was a lot of work to get
up, get dressed, go the gym, and then shower again and get
Appeal Record contains additional counseling records
approximately every two weeks through September 13, 2016.
AR837-48. On August 2, 2016, Ms. Ruff's mood was
depressed and evidenced by her psychomotor retardation, body
posture and her statements. AR845. She was alert and oriented
and her grooming and dress were appropriate. AR845. On August
16, 2016, Ms. Ruff's mood seemed slightly less depressed,
but there was still some evidence of psychomotor retardation,
flat affect and some helpless/hopeless ideation. AR846. Ms.
Ruff said that she had been getting out and going to the gym,
but she found that to be nearly impossible. AR846. On
September 13, 2016, (the last counseling record in the Appeal
Record), Ms. Ruff continued to complain of depression, not
wanting to get out of bed, and frequently not taking care of
her personal hygiene. AR848.
March 22, 2017, Ms. Aldridge provided a letter regarding Ms.
Ruff's treatment at Dakota Counseling Institute. AR822.
Ms. Aldridge stated Ms. Ruff had been a patient since 2013
when she briefly attended outpatient therapy. AR882. The
Appeal Record contains Ms. Ruff's intake appointment in
2013, but does not contain any outpatient treatment records
from that time. See AR477-81. Ms. Aldridge stated
that Ms. Ruff returned for therapy in January, 2016, and had
attended therapy generally every two weeks since that time.
AR882. The Appeal Record contains therapy notes from January
8, 2016, through September 13, 2016, but no other treatment
notes. See AR836-48. Ms. Aldridge stated that when
Ms. Ruff returned for treatment in 2016 she was assessed with
PTSD in addition to depression and anxiety, and all three
diagnoses caused Ms. Ruff clinically significant degrees of
difficulty with activities of daily living in all
environments. AR882. Ms. Aldridge noted that Ms. Ruff had
progressed in therapy at times, but due to stress had been
unable to remember and apply what she learned. AR882. Ms.
Aldridge explained that individuals with PTSD reach stimulus
overload at a lower threshold than others and for Ms. Ruff
this was a trigger for severe depression and she becomes
paralyzed in terms of behavior and effectiveness. AR882.
Aldridge stated that despite efforts by Ms. Ruff, she was
severely symptomatic the majority of the time. AR882. Ms.
Aldridge stated that Ms. Ruff was relatively functional when
seen in 2013, but had presented with marked deterioration in
her daily functioning when she returned in 2016. AR882. Ms.
Aldridge stated Ms. Ruff had days where she was unable to
move from her couch due to depression, she lacked energy, she
showed marked psychomotor retardation unless she was anxious,
and she had trouble with initiation and action because she is
easily overwhelmed. AR882. Ms. Aldridge stated Ms. Ruff also
had impaired memory which is common in individuals with
anxiety and depression, and she tries to concentrate, but
intrusive thoughts continue to make concentration and
attention difficult. AR882.
Aldridge stated, “I believe with a strong degree of
psychological certainty that Sherry Ruff is currently unable
to work, and that she has been unable to work at least since
January 2016.” AR883. Ms. Aldridge stated she was open
to inquiry if additional information was needed. AR883.
Aldridge completed a mental limitations form on March 22,
2017, in which she indicated her opinions of Ms. Ruff's
limitations if Ms. Ruff were to attempt to perform sustained
full-time work on a regular and continuing basis. AR884. Ms.
Aldridge indicated if Ms. Ruff attempted full-time work she
would have marked limitations in remembering locations and
work-like procedures, understanding and remembering detailed
instructions, and carrying out detailed instructions,
maintaining attention and concentration for extended periods,
performing activities within a schedule, maintaining regular
attendance, being punctual, working in coordination with or
proximity to others without being distracted by them, making
simple work-related decisions, completing a normal workday
and workweek without interruptions from psychologically-based
symptoms, performing at a consistent pace without
unreasonable breaks, accepting instructions and responding
appropriately to criticism from supervisors, getting along
with co-workers, responding appropriately to changes in work
setting, traveling to unfamiliar places, and setting
realistic goals or making plans independently of others.
Aldridge also indicated if Ms. Ruff attempted full-time work
she would have moderate limitations in her ability to
understand, remember and carry out very short and simple
instructions, sustain an ordinary routine without special
supervision, interact appropriately with the public, ask
simple questions or request assistance, maintain socially
appropriate behavior and adhere to basic standards of
neatness and cleanliness, and be aware of normal hazards.
AR885-86. The degree of limitation terms were defined for Ms.
Aldridge in the form with “marked” meaning a
substantial loss of ability to function on a sustained
full-time basis, and “moderate” as an impairment
that more than slightly interferes with the work ability on a
full-time basis. AR884.
August 8, 2017, Ms. Aldridge provided another letter
regarding Ms. Ruff's treatment at Dakota Counseling
Institute. AR72-73. Ms. Aldridge described some of the
factors leading to Ms. Ruff's PTSD symptoms including
living with a mentally ill mother, being placed in
out-of-home care when her mother was hospitalized or charged
with crimes because her father refused to take her, and being
in several abusive relationships and two abusive marriages.
AR72. Ms. Aldridge stated that Ms. Ruff experiences ongoing
symptoms of PTSD including recurrent, involuntary and
intrusive distressing memories and dreams, intense
psychological distress at exposure to internal and external
cues she interprets as abuse, persistent avoidance of stimuli
associated with the traumatic event, dissociative reactions,
and increasing depression. AR72.
State Agency Assessments
State agency physician consultant at the initial level on May
14, 2015, found that Ms. Ruff had severe physical limitations
of reconstructive surgery of a weight bearing joint and
epilepsy, which limited her to lifting 20 pounds
occasionally, 10 pounds frequently, standing or walking four
hours of an 8-hour workday, sitting about six hours of an
8-hour workday, and she may need a cane for long distances.
AR123, 125. The consultant also limited Ms. Ruff to frequent
postural activities (and occasional climbing of ladders,
ropes, and scaffolds) and to avoid even moderate exposure to
hazards. AR126-27. The consultant noted an opinion on January
5, 2015, from Dr. Alvine, Ms. Ruff's treating orthopedic
surgeon, that restricted Ms. Ruff to work in a sedentary
position, and stated it was “non specific, but
State agency physician consultant at the reconsideration
level on August 24, 2015, found that Ms. Ruff had severe
physical impairments of reconstructive surgery of a weight
bearing joint and major motor seizures, which limited exactly
the same as determined by the consultant at the initial
level. AR150, 152-54. The consultant also noted the same
January 5, 2015, opinion from Dr. Alvine, Ms. Ruff's
treating orthopedic surgeon, that restricted Ms. Ruff to work
in a sedentary position, and again stated it was “non
specific, but reasonable.” AR152.
Testimony at ALJ Hearing
Ms. Ruff's Testimony:
Ruff testified that in 2012 she was in an automobile accident
caused by a seizure and both of her ankles were broken, but
her right ankle was shattered, and eventually her right ankle
was replaced in 2015 by Dr. Alvine. AR94-96.
Ruff testified that her ankle was still painful and she could
only walk 30-35 minutes. AR95. Ms. Ruff testified that when
she sits her right foot swells then freezes up and then makes
it difficult to walk when she gets up. AR93. Ms. Ruff
testified to address the swelling she would elevate the foot,
put ice on it and take gabapentin, but she didn't like
taking gabapentin during the day because it would put her
“like to sleep.” AR94. Ms. Ruff testified that
she felt Dr. DeHaan limited her to lifting only 10 pounds
because she had poor balance due to her ankle and was
unsteady on her feet. AR102.
Ruff testified that due to poor balance caused by her ankle
she stumbles and bumps into walls or something at times and
one time stumbled enough so that she hurt her shoulder. AR96.
Ruff testified that she has seizures and believed her last
one was in July, 2015, when she was home alone and woke up in
the bathroom, felt groggy, and had soiled herself. AR96. She
testified that she did not go to the emergency room for this
seizure “because the seizures that I have had have
never shown up because the activity has already been
Ruff testified that Dr. DeHaan had been treating her for
depression and anxiety for several years due to an abusive
relationship, but it got worse after her automobile accident.
AR96. She testified that both her significant other and her
oldest son were abusive to her, and her older son was
physically abusive to the point she had to call police.
Ruff testified that due to her depression she will not shower
or change clothes for maybe a week, and the only thing she
does is take her youngest son to school and back. AR97. She
said she had few friends and only one who could coax her out
of her house once every other month, did not go to church
because it was too crowded, no longer went to the gym and was
not friends with her neighbors. AR100-01.
Ruff testified that Dr. DeHaan recommended counseling and she
sees Donna Aldridge about every other week, but had cancelled
some appointments, and felt more frequent appointments would
be too hard for her. AR98.
Ruff testified that she had not been referred to a
psychiatrist or psychologist, but Dr. DeHaan had mentioned
it, but she felt so comfortable with Dr. DeHaan. AR99. She
explained that she had tried a number of different
anti-depressants prescribed by Dr. DeHaan, but there were
some limitations due to the risk of seizures with some
Ruff said she had side effects from her medications including
shaky handwriting, sleepiness, slurred speech sometimes,
feeling spaced out, and problems organizing her thoughts.
Ruff testified that she used to go to the store every couple
of days and had reduced her shopping trips to one to two
times per week and goes when the store is not busy due to
anxiety from the people. AR97. She said she no longer cooked,
she just bought microwavable meals and Fiber One bars. AR97.
Ms. Ruff testified that her house was a pit and needed
cleaning and had gotten to the point she didn't even have
any clean dishes left. ...