Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ruff v. Berryhill

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

January 18, 2019

SHERRY L. RUFF, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Plaintiff, 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.[1]

         Ms. 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.

         This 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. § 636(c).

         FACTS

         [2]A. Statement of the Case

         This 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.

         Ms. 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.

         B. Plaintiff's Age, Education and Work Experience.

         Ms. 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.

         C. Relevant Medical Evidence.

         1. Sanford Family Medicine Clinic & Sanford Neurology Clinic

         Ms. 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. AR689.

         Dr. DeHaan assessed that Ms. Ruff's depression and anxiety were “stable.” AR689.

         Ms. 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.

         On July 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. …” AR680.

         A 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.

         An 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.

         Ms. 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.

         By 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. AR599.

         Ms. 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.

         Ms. 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.

         Ms. 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.

         Ms. 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[3] 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.

         Ms. 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. AR582-83.

         When 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. AR581.

         Ms. 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. AR580.

         On 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.

         Ms. 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.

         Ms. 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.

         Ms. 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.

         Ms. 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.

         Ms. Ruff contacted the neurology clinic on March 2, 2015, to cancel an appointment because she had fallen and twisted her foot. AR812.

         Ms. 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.

         Ms. 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.

         Ms. 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. AR916.

         Ms. 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.” AR933.

         Ms. 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. AR934.

         Ms. 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 unchanged. AR926.

         Ms. 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.

         On 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.

         2. Core Orthopedics Clinic (including related hospital records):

         Ms. 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.

         On July 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.

         Ms. 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.

         On September 12, 2012, Dr. Alvine surgically removed the pins in Ms. Ruff's right ankle. AR395, 534-35 (surgical procedure report), 548 (discharge report).

         Ms. 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.

         Ms. 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 block procedure).

         Ms. 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. AR387.

         Ms. 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. AR385.

         Ms. 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.

         Ms. 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 reschedule. AR433.

         Ms. 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.

         Ms. 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).

         Ms. 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.

         Ms. 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 https://www.webmd.com/arthritis/avascular-necrosis-osteonecrosis-symptoms-treatments#1. 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 only).

         Ms. 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.

         Ms. 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.

         Dr. 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.

         Ms. 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.

         Ms. 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.

         Ms. 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. AR822.

         Ms. 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.

         Ms. 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.

         Ms. 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.

         She 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.

         Ms. 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.

         Ms. 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.

         3. Dakota Counseling Institute:

         Ms. 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 time. AR479.

         Ms. 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.

         When 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.

         Ms. 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.

         On June 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 home. AR847.

         The 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.

         On 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.

         Ms. 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.

         Ms. 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.

         Ms. 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. AR885-86.

         Ms. 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.

         On 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.

         4. State Agency Assessments

         The 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 reasonable.” AR125.

         The 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.

         D. Testimony at ALJ Hearing

         1. Ms. Ruff's Testimony:

         Ms. 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.

         Ms. 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.

         Ms. 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.

         Ms. 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 done.” AR96.

         Ms. 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. AR101.

         Ms. 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.

         Ms. 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.

         Ms. 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 medications. AR99.

         Ms. Ruff said she had side effects from her medications including shaky handwriting, sleepiness, slurred speech sometimes, feeling spaced out, and problems organizing her thoughts. AR100.

         Ms. 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.